Herron v. State
| Decision Date | 20 March 1928 |
| Docket Number | A-6184. |
| Citation | 265 P. 147,39 Okla.Crim. 346 |
| Parties | HERRON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by Editorial Staff.
A statement by defendant, when officers entered his home and presented a search warrant, that "you don't need it," did not waive defendant's constitutional right where the search warrant was unlawfully issued, since it is not to be construed as an invitation to search the premises but rather as a statement of intention not to resist search under the warrant.
Appeal from County Court, Okmulgee County; W. S. Barnett, Judge.
W. F Herron was convicted of the unlawful possession of intoxicating liquor, and he appeals. Reversed and remanded, with direction.
Statement officers did not need warrant held not to waive right to object to search on warrant unlawfully issued.
Eaton & Cavanaugh, of Okmulgee, for plaintiff in error.
Edwin Dabney, Atty. Gen., for the State.
Plaintiff in error, W. F. Herron, was sentenced to serve a term of 6 months in the county jail and to pay a fine of $500 for the unlawful possession of intoxicating liquor. To reverse the judgment he appeals.
The evidence shows that on the day alleged, under authority of a search warrant, four officers visited defendant's home, a little south and east of Kusa, and searched the house and premises.
When the case was called for trial, the defendant objected to the introduction of any testimony being given by the officers whose names are indorsed on the information, for the reason that the search and seizure was made by these officers under a void search warrant, issued upon an affidavit which was legally insufficient. In support of the motion the affidavit and search warrant were offered in evidence, which motion was overruled.
M. L. Lairmore, deputy sheriff, testified that he laid the search warrant on the table, and the defendant said, "You have me, you don't need it."
E. T. Mitchel, deputy sheriff, testified that when they entered the house Lairmore said, "I have a search warrant," and the defendant said, "You don't need it for me."
The court in its instructions to the jury stated that the search warrant introduced in evidence in this case, being based upon an insufficient affidavit, is void, and that the search and seizure made thereunder would be in violation of the constitutional and statutory rights of the defendant, but further instructed the jury that, if the...
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