Lindley v. State, A-12265
| Decision Date | 29 February 1956 |
| Docket Number | No. A-12265,A-12265 |
| Citation | 294 P.2d 851 |
| Parties | Jack LINDLEY, 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 |
Syllabus by the Court.
1. No particular ceremony is necessary to constitute the act of swearing to an affidavit for search warrant; it is only required that something be done in the presence of the magistrate issuing the search warrant which is understood by both the magistrate and the affiant to constitute the act of swearing.
2. Unless error complained of contributes to the verdict of the jury, the same may be held to be harmless.
3. Where, in a prosecution for unlawful possession of intoxicating liquor, the defendant offers no evidence the whiskey was for a lawful purpose, the defendant should be bound by the provisions of 37 O.S.1951 § 82, that the keeping in excess of one quart of intoxicating liquor constitutes prima facie evidence of unlawful intent to convey, sell, etc.
4. In a case where unlawful possession of intoxicating liquor is charged, and there is no defense that the liquor was possessed for a lawful purpose, the imposition of the minimum sentence of $50.00 and 30 days in jail refutes the claim that the jury was influenced by the county attorney's erroneous conduct.
Appeal from the County Court of Pittsburg County; Tom G. Haile, Judge.
The plaintiff in error, Jack Lindley, was convicted of unlawful possession of intoxicating liquor. Affirmed.
Willard M. Gotcher, McAlester, and Paul W. Gotcher, Muskogee, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, Jack Lindley, was convicted in the County Court of Pittsburg County, Oklahoma, for the offense of unlawful possession of intoxicating liquor in violation of 37 O.S.1951 § 82; sentenced to 30 days in jail and a fine of $50.00 and he appeals.
The defendant first alleges the court erred in over-ruling the motion to suppress evidence obtained in the search warrant. The search warrant, as originally issued, provided for the search of a certain white frame building, etc., the location of which was described as being the west 150 feet of lot 1, a subdivision of the NW 1/4 of the NE 1/4 and W 1/2 of the NE 1/4 of the NE 1/4 of Sec. 24, T 5, R 14 E, together with all outbuildings, places and premises used and connected therewith. Under authority of this warrant, the sheriff approached the premises and observed a Chevrolet automobile and a Chrysler automobile parked in the driveway of the premises. With the aid of field glasses, he procured the license number of both automobiles and returned to the Justice of the Peace where he therein inserted in the warrant the description of the said automobiles, with the consent of the Justice of the Peace. It appears that he was not formally sworn as to the information relating to the two automobiles. For the latter reason, the validity of the search warrant is attacked.
However, formal swearing was not necessary under the authority of Farrow v. State, 71 Okl.Cr. 397, 112 P.2d 186, 187, wherein it was said:
'It is only required that something be done in the presence of the magistrate issuing the search warrant which is understood by both the magistrate and the affiant to constitute the act of swearing.'
Loudermilk v. State, 83 Okl.Cr. 374, 177 P.2d 129. Moreover, in the case of Leslie v. State, Okl.Cr., 294 P.2d 854, and under the authorities cited therein, it was not necessary for the sheriff to procure a second search warrant covering the said automobiles. The two automobiles were included within the description as originally contained in the search warrant and the subsequent attempt of the sheriff to include the automobile therein, was an unnecessary, void, and useless effort, not affording the defendant grounds of relief in this case. The motion to suppress the search warrant was therefore, properly overruled by the trial court.
The defendant's next proposition is that the court erred in allowing the county attorney, on cross examination, to ask certain impeaching questions in relation to the conviction of a Jack Lindley in the state of Texas in 1926 for the crime of burglary. The record discloses that at the time of the alleged offense in Texas, the defendant was nine years of age. This evidence would have been highly prejudicial but the county attorney in his argument to the jury admitted his error and asked that the jury not consider the portion thereof and offered his apology to the defendant, his father, and the defendant's wife. We are inclined to believe that the county attorney's conduct, under these conditions, would not have been prejudicial to the defendant but to the state instead.
Next, the defendant complains that the county attorney asked the defendant, for the purpose of impeachment, if he had not been, 'convicted in Muskogee for violation of the revenue act and was fined $50 a couple of...
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State v. McKenzie
...victim's watch was found in a pool of blood by the investigating officers before going to town to get the warrants. See: Lindley v. State, (1956), Okl.Cr., 294 P.2d 851. This, in our opinion, is a sufficient showing of probable cause to issue the Defendant next attacks the specificity of th......
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State v. McKenzie
...victim's watch was found in a pool of blood by the investigating officers before going to town to get the warrants. See: Lindley v. State (1956), Okl.Cr., 294 P.2d 851. two is my statement as to what I determined, that she [186 Mont. 495] was missing and may have been the victim of foul pla......
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State v. McKenzie
...victim's watch was found in a pool of blood by the investigating officers before going to town to get the warrants. See: Lindley v. State, Okl.Cr. (1956), 294 P.2d 851. This, in our opinion is a sufficient showing of probable cause to issue the Defendant next attacks the specificity of the ......
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People v. Jones
..."and surrounding curtilage" and car in driveway within curtilage); Leslie v. State, 294 P.2d 854 (Okl.Crim.App. 1956); Lindley v. State, 294 P.2d 851 (Okl.Crim.App. 1956); Long v. State, 532 S.W.2d 591 (Tex.Crim.App., Contra: United States v. Cody, 390 F.Supp. 616 (E.D.Tenn., 1974); People ......