Hess v. State

• Decision Date: 29 November 1921
• Docket Number: Case Number: 10435
• Citation: 202 P. 310,84 Okla. 73,1921 OK 411
• Parties: HESS et al. v. STATE.
• Court: Oklahoma Supreme Court

1921 OK 411

202 P. 310

84 Okla. 73

HESS et al. v. STATE.

Case Number: 10435

Supreme Court of Oklahoma

Decided: November 29, 1921

Syllabus

¶0 1. Intoxicating Liquors--Searches and Seizures--Forfeiture of Property--Statutory Provision--Jurisdiction of Courts.

Section 3617 of Revised Laws of 1910, does not authorize an officer having power to serve criminal process to search premises without a search warrant, but only authorizes such officer, when a violation of any provision of the prohibitory laws occurs in his presence, to arrest the offender without a warrant and seize any liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging unlawfully used in the commission of the offense committed in his presence, and when a seizure of such property is so made, such seizing officer must immediately take the seized property before the court or judge having jurisdiction of the offense for which the offender was arrested, and there make complaint, under oath, charging the offense so committed, and make a return setting forth a particular description of the liquor and property seized. Thereupon the court or judge must issue a warrant commanding and directing the officer to hold the property so seized in his possession until discharged by due process of law, and such action on the part of the seizing officer and court as necessary to vest the court with jurisdiction to entertain a proceeding for the forfeiture of such property.

2. Same--Search and Seizure Without Search Warrant--Rooming Houses--Constitutional Rights.

The entry by an officer upon the premises of an individual occupied and used as a rooming house without a search warrant and the searching of the premises and the seizure of furniture, bedding, and fixtures in the rooming house without the process of any court authorizing such search and seizure was unauthorized, and such officer was a trespasser and the seizure of the property under such circumstances was an invasion of the constitutional rights of the person occupying the premises guaranteed by article 2, section 30 of the Bill of Rights of the Constitution. relating to unreasonable searches and seizures, and the property so seized under such circumstances should have been ordered returned to the occupant of the premises by the court in which forfeiture proceedings were instituted pursuant to such unlawful acts.

3. Same--Seizure and Forfeiture of Property--Statutory Proceedings--Jurisdiction.

The forfeiture of property alleged to have been used in violation of the prohibitory laws of the state is a statutory proceeding, and a court cannot acquire jurisdiction of property sought to be forfeited except in the manner prescribed by the statute.

Error from County Court, Oklahoma County; W. R. Taylor, Judge.

Action by the State of Oklahoma for the forfeiture of property; Addie Hess and others, claimants and interveners. Judgment of forfeiture. Claimants and interveners appeal. Judgment vacated, and cause remanded, with directions.

Charles H. Ruth, for intervener Addie Hess.

Harlan T. Deupree, for intervener Robert Ball.

Joe Bailey Allen, for intervener Sigmund Mayer.

Ledbetter, Stuart & Bell, for intervener Phonograph Shop, Inc.

M. S. Singleton, for intervener White Sewing Machine Company.

Robert Burns, County Attorney, for the State.

KENNAMER, J.

¶1 This appeal is prosecuted by Addie Hess, White Sewing Machine Company, a corporation, Phonograph Shop, Sigmund Mayer, and Robert Ball, as plaintiffs in error, to reverse a judgment of forfeiture entered in the county court of Oklahoma county, Oklahoma, on the 21st day of June, 1918, decreeing the forfeiture of furniture and fixtures used in a rooming house at 2201/2 and 2221/2 North Broadway, Oklahoma City, to the state of Oklahoma, defendant in error. The record discloses that on or about May 20, 1918, Wade Spears, a police officer of Oklahoma City, went to this rooming house without a search warrant, seized the property, and thereafter, on the 21st day of May, caused to be filed in the county court the following information:

"In the name and by the authority of the state of Oklahoma, comes now Charles B. Selby, the duly qualified and acting county attorney, in and for Oklahoma county, state of Oklahoma, and on his official oath gives the county court in and for said Oklahoma county and state of Oklahoma to know and be informed that heretofore, to wit, on the 1st day of March, 1918, continuously up to and Including the 20th day of May, 1918, in Oklahoma county, state of Oklahoma, Addie Hess, whose full and correct name is to your informant unknown, then and there being, did then and there willfully and unlawfully maintain a nuisance in this, that she, the said Addie Hess, then and there being the lessee of those premises described as 220 1/2 and 222 1/2 North Broadway street, Oklahoma City, Oklahoma county, state of Oklahoma, and then and there being in possession and occupancy thereof as such lessee, in the conduct, operation and management of a rooming house under the name of Hess Rooms, did then and there willfully, unlawfully, wrongfully and knowingly invite and procure persons of both sexes to thereto resort and congregate for immoral purposes and where such persons so resorting and congregating continuously during said period of time conducted themselves in other respects in a disorderly manner in this: that such persons were intoxicated and in a drunken condition and used vile, obscene, indecent and profane language, and did expose their nude persons, all of which said acts offends the decency and endangers the comfort, repose, health and safety of others, all to the common nuisance of the public. Contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma, Charles B. Selby, County Attorney, Oklahoma County."

¶2 That after having filed the information. he made the following return of his acts with reference to the property seized by him:

"I, the undersigned, Wade Spear, who verified the information filed in the above court on the 21st day of May, 1918, against Addie Hess, defendant, a copy of which information is hereto attached, marked Exhibit 'A', and made a part hereof, do hereby make, in said case, the return following:

"That the said violation and offense set out the charge in said information occurred in my presence in said Oklahoma county, Oklahoma, on the 20th day of May, 1918, and that arrested the Addie Hess, therefore, without warrant; and at the same time and place seized and now hold in my possession and before the court, the personal property following:

"One lot of furniture and fixtures now at 220 1/2 and 222 1/2 North Broadway, copy of which is hereto attached, marked Exhibit 'A,' and made a part thereof, of which the said Addie Hess, defendant, was then and there using unlawfully in the commission of said offense. That the same was seized by me at 220 1/2 and 222 1/2 North Broadway, in Oklahoma City, said county and state, and I now have the same in possession, and pray that warrant issue to me, the sheriff of said county directing that the same be held until discharged by due process of law and that hearing and adjudication on this return be had in like manner so if the seizure had been made under search warrant.

"Wade Spear."

"Subscribed and sworn to before me this 21st day of May, 1918.

"Carol Sanders."

"Deputy Court Clerk."

¶3 That thereafter Addie Hess, on the 29th day of May, 1918, filed a verified claim of said property and denied that the property was being used in violation of the laws of the state of Oklahoma.

¶4 The Phonograph Shop, Inc., filed a plea of intervention, asserting a lien upon one Edison Diamond Disc Phonograph, style C-200, No. 11976.

¶5 The White Sewing Machine Company filed a plea of intervention, asserting ownership to the White sewing machine No. 2629473 by virtue of a conditional sale contract.

¶6 Sigmund Mayer filed a plea of intervention, asserting that he had a mortgage lien upon a part of the property seized by the officer, Wade Spear.

¶7 Robert Ball filed a plea of intervention, asserting that he had a mortgage lien upon the property to secure the payment of $ 750 and there was balance due on said mortgage debt of $ 500.

¶8 The interveners all asserted that they had no knowledge of any of said property being used in any way in violation of the law of the state of Oklahoma.

¶9 On the 21st day of June, 1918, the cause came on for trial and a jury was impaneled and the cause proceeded to trial. Wade Spear was called as the first witness on behalf of the state, and at the time the state offered his testimony Addie Hess, claimant of the property, made an objection to the introduction of any testimony on behalf of the state for the reason that the petition wholly fails to state a cause of action in favor of the state and against the claimant, Addie Hess, for the confiscation of the property. The record does not disclose whether or not the objection was ever ruled upon by the court. A brief review of the testimony found in the record discloses about the following state of facts: That the claimant, Mrs. Hess, for some time had been conducting a rooming house at 220 1/2 and 222 1/2 North Broadway, Oklahoma City. That the building in which the rooming house was conducted on the date of the seizure had about 40 rooms furnished with the ordinary fixtures and bedding of an ordinary rooming house. That one week prior to the raid made by Wade Spear, one Mrs. Herbert C. Monroe had been rooming at Mrs. Hess' place. She testified that during the week she roomed there she had noticed some people that appeared to be intoxicated at times; that on the night prior to the raid some soldiers were stopping at the rooming house and they had been singing "Nobody Knows How Dry I Am." The evidence shows that there had been some ill feeling between Mrs. Monroe and Mrs. Hess, and that on the night of the seizure of the property by the officer Mrs....