Hughes v. State
| Decision Date | 04 September 1946 |
| Docket Number | A-10587. |
| Citation | 172 P.2d 435,83 Okla.Crim. 16 |
| Parties | HUGHES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from Court of Common Pleas, Oklahoma County; Glen O. Morris Judge.
Carl Hughes was convicted of unlawful possession of intoxicating liquor, and he appeals.
Affirmed.
Syllabus by the Court.
1. If the descriptions in search warrant are sufficient to enable officer executing the search warrant to locate the premises to be searched without aid of any other information save that contained in warrant, the warrant is sufficient.
2. In hearing on motion to suppress evidence, court's finding on disputed question of fact as to whether search warrant sufficiently described defendant's premises will be sustained where there is competent evidence in record to support finding.
3. Where issue raised is fundamental, directed to jurisdiction of trial court, Criminal Court of Appeals will determine matter, even though raised for first time on appeal.
4. A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution either by express agreement or conduct, or by such failure to insist upon it in seasonable time as will operate as an estoppel to his afterwards setting it up against the state.
A. E Pearson and Warren H. Edwards, both of Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Ewing C. Sadler, Asst. Atty. Gen., for defendant in error.
The defendant, Carl Hughes, was charged in the Court of Common Pleas of Oklahoma County with the offense of unlawful possession of intoxicating liquor, was tried, convicted, sentenced to serve thirty days in jail and pay a fine of fifty dollars, and he appealed.
At the time the case was called for trial, counsel for defendant filed a motion to suppress the evidence on the ground that the search warrant under which the whiskey involved in the prosecution was seized did not clearly describe the premises of the defendant which were searched by the officers. Evidence was introduced by the defendant and by the state at the hearing on the motion to suppress evidence.
The description in the search warrant reads: 'A one-story frame dwelling house and all our buildings located at 234 N.W. 62nd Street, being near the S.E. Corner of N. Harvey Street, and 62nd Street, adjacent to Oklahoma City, in Oklahoma County, Oklahoma.' In addition to this description, the warrant alleged the premises were occupied by Carl Hughes.
The defendant testified that 21 quarts and 55 pints of intoxicating liquor seized by the officers on August 3, 1944, and 21 four-fifths bottles and 31 pints of liquor seized by the officers on September 24, 1944, belonged to him and were taken in a search of his house in his presence. He testified that the correct legal description of his premises was 236 N.W. Ashland Boulevard; and his house did not have a number on it, but that there were some vacant lots between his house and the corner, and that if the house was numbered according to the way they are generally numbered in Oklahoma City it would have number 236. He further admitted on cross-examination that there was no other house in that block. He further stated on cross-examination that the street he lived on was one block south of the main paved thoroughfare known as 63rd Street, and that the street he lived on was commonly known as 62nd Street; that 62nd Street and Ashland Street were the same streets, and that Harvey Street ran north and south on the west side of the block in which he lives.
E. D. Hill, an engineer, testified that he had formerly been county surveyor of Oklahoma County, and as such was familiar with the plats and locations of the streets in Oklahoma County. He further testified that the defendant lived near the junction of Ashland and Harvey Streets, and that if the house had been numbered it should be 236 or 238 Ashland Boulevard. On cross-examination he testified that the defendant's house was one block south of 63rd Street and the second pair of lots east of Harvey Street on Ashland Boulevard and was the only house in the block on the south side of the street. He further testified that if he was directing a person to the defendant's house he would tell them to go to 63rd Street and then one block south on Harvey Street and go to the house on the south side of the street east of Harvey.
The trial court then asked the witness Hill this question: 'If I were to tell you, Mr. Hill, I want to go up to a house located on the southeast corner of 62nd and North Harvey Streets, would you go to this house?' To which the witness answered:
On behalf of the state, Noah Richmond, a deputy sheriff, testified that he was one of the officers who made the raid at the defendant's place. That he had never been to the defendant's house prior to the raid; that he was given the search warrant to execute with the description set forth in it, and got to defendant's house without the aid of any other information than that contained in the search warrant. That the description set forth in the search warrant was the correct description of the premises given according to the streets as they were commonly known in Oklahoma City. That the open paved street from Lincoln Boulevard to Western Avenue was commonly known as 63rd Street; that 62nd Street was just a block south of 63rd Street, and the defendant's house was close to the southeast corner of the intersection of 62nd Street and North Harvey Street. That there was no other house in the block by which he would be confused as to which building was described in the warrant.
The settled rule as to a sufficient description in a search warrant has been stated as follows in Pitzer v. State, 69 Okl.Cr. 363, 103 P.2d 109: 'The description of the house to be searched, the names of the occupants of the premises, together with the legal description set forth in the search warrant, should all be read together; and if the same are sufficient to enable the officer executing the search warrant to locate the premises to be searched without the aid of any other information save that contained in the warrant, the same is sufficient.' See also Mitchell v. State, 43 Okl.Cr. 63, 277 P. 260; Bohannon v. State, 66 Okl.Cr. 190, 90 P.2d 675.
In the instant case, there was dispute between the testimony on behalf of defendant and the...
To continue reading
Request your trial
-
Williams v. State
...not only certain statutory rights, but also certain constitutional rights. Norman v. State, 81 Okl.Cr. 78, 160 P.2d 739; Hughes v. State, Okl.Cr., 172 P.2d 435; Fields v. State, 77 Okl.Cr. 1, 138 P.2d 124; parte Gault et al., 78 Okl.Cr. 172, 146 P.2d 133; In re Carpenter, 80 Okl.Cr. 78, 157......
-
West v. Bryant, 18-6059
...an "order overruling [a] motion to suppress . . . [is] not a final order in the case and hence not appealable." Hughes v. State, 172 P.2d 435, 438(Okla. Crim. App. 1946); see also Di Bella v. United States, 369 U.S. 121, 131 (1962) ("Orders granting or denying suppression . . . are truly in......
-
Wallace v. State
... ... of the defendant's premises would have had difficulty in ... locating it from the descriptive averments contained in the ... warrant, without seeking aid from any other source than that ... set forth in the warrant. Kutz v. State, 83 Okl.Cr ... 324, 177 P.2d 139; Hughes v. State, 83 Okl.Cr. 16, ... 172 P.2d 435, 436. In the latter case this court said: ... 'If the descriptions in search warrant are sufficient to ... enable officer executing the search warrant to locate the ... premises to be searched without aid of any other information ... save that ... ...
-
Neighbors v. State
...Ex parte Hazel, Okl.Cr., 157 P.2d 225; Ex parte Carpenter, Okl.Cr., 157 P.2d 231; Norman v. State, Okl.Cr., 160 P.2d 739; Hughes v. State, Okl.Cr., 172 P.2d 435-439, cases cited. We have carefully examined the cases cited by the defendant and by the State to support their respective content......