Lardi v. State, A-12010

• Decision Date: 15 September 1954
• Docket Number: No. A-12010,A-12010
• Citation: 274 P.2d 409
• Parties: Gregg LARDI, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 409

274 P.2d 409

Gregg LARDI, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12010.

Criminal Court of Appeals of Oklahoma.

Sept. 15, 1954.

Syllabus by the Court.

1. The trial court's ruling upon a motion to suppress the evidence obtained by means of a search warrant, in the determination of a question of fact will be sustained where there is a conflict in the evidence and there is substantial competent evidence in the record to support the court's finding.

2. The specific description of the premises to be searched is sufficient, if it enables officers executing search warrant to locate the premises to be searched without the aid of any other information save that contained in the warrant, other than information as to general location.

3. Title 37, O.S.1941, § 88, provides that before a search warrant may be issued for the search of a private residence, it must be shown that the same, or some part of it, is used as a 'store, shop, hotel, boarding house, or place for storage, or that such residence is a place of public resort.'

Under Title 37, O.S.1941, § 88, it is not necessary for the affidavit for search warrant to state all of the above conditions, but if any of them are stated in the affidavit, it is sufficient to justify the issuance of the warrant by the magistrate.

4. Where the affidavit to procure a search warrant correctly describes the property to be searched, and states that 'the premises are being used as a place where spirituous, vinous, fermented and malt liquors * * * are * * * stored, and kept for the purpose and intent of being sold', and that 'said premises are used as a public resort', it is sufficient upon which to issue a search warrant to search a private residence, regardless of the fact that the affidavit does not use the exact words 'private residence'.

B. S. Null, Hartshorne, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., Homer W. Neece, Co. Atty., McAlester, for defendant in error.

BRETT, Judge.

The plaintiff in error Gregg Lardi, defendant below, was charged in the county court of Pittsburg county, Oklahoma, with the offense of unlawful possession of intoxicating liquors. The information alleged and the proof established that he was in possession of 84 pints of assorted whiskey. He was tried by a jury, convicted and punishment fixed at a fine of $400 and 4 months in jail; judgment and sentence was entered accordingly, from which this appeal has been perfected.

In his brief the defendant first urges that the court erred in overruling the motion to suppress the evidence. He attacks the search and seizure first on the grounds that the affidavit was signed by a person other than the one who furnished the information. This is an attack upon the truthfulness of the affidavit. The record discloses the affidavit was sworn to positively. In this connection it has been repeatedly held that where the affidavit is sworn to positively, the sufficiency thereof may not be attacked at the time of trial. Padgett v. State, Okl.Cr., 248 P.2d 1055; Hughes v. State, 85 Okl.Cr. 25, 184 P.2d 625; Perry v. State, 83 Okl.Cr. 162, 174 P.2d 388; Workman v. State, 83 Okl.Cr. 245, 175 P.2d 381.

Next the defendant attacks the legality of the search and seizure on the ground that the description contained in the search warrant described a lavender house while the defendant and two witnesses testified the house was pink. To the contrary Sheriff Dee Sanders and Deputy Sheriff P. L. Richardson testified that the house as described in the search warrant was lavender. Hence the trial court was confronted with a conflict in the evidence. In this connection it has been repeatedly held that the trial court's ruling upon a motion to suppress the evidence obtained by means of a search warrant, in the determination of a question of fact will be sustained where there is a conflict in the evidence and there is substantial competent evidence in the record to support the court's finding. Johnson v. State, Okl.Cr., 244 P.2d 344; Garner v. State, Okl.Cr., 239 P.2d 433; King v. State, 92 Okl.Cr. 389, 223 P.2d 773; Hughes v. State, 83 Okl.Cr. 16, 172 P.2d 435. The record discloses ample evidence to sustain the trial court's finding that the house was lavender as it was described in the search warrant.

The defendant further contends that the property was not described in the search warrant with such particularity and sufficient certainty to justify the search. The description contained in the search warrant reads as follows, towit:

'A Small Frame house painted a Lavender Color, located on the North Side of Highway No. 270, approximately 100 feet North of Greggs Tavern, all situated on Lot 47, of Townsite Addition No. 5, Except the East 75 Feet by...