Murphy v. State, A-11486
| Decision Date | 18 June 1952 |
| Docket Number | No. A-11486,A-11486 |
| Citation | 245 P.2d 741,95 Okla.Crim. 333 |
| Parties | MURPHY v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. A search warrant is 'process'. It must run in the name of the State of Oklahoma and to some peace officer or peace officers of the State. It can be served only by the officer mentioned in its direction, and not by any other person, except in aid of the officer on his requesting it, he being present and acting in its execution.
2. Laws authorizing invasion of private premises and the sanctity of the home by search and seizure proceedings are to be strictly construed.
3. In a prosecution for unlawful possession of intoxicating liquors, evidence obtained by means of illegal search and seizure held inadmissible.
Tom Payne, Okmulgee, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.
Arley Murphy was charged in the county court of Okmulgee County with the unlawful possession of intoxicating liquor, was convicted by a jury, and his punishment fixed at ninety days in the county jail, and a fine of $250. Appeal has been perfected to this court.
Plaintiff in error filed brief in support of his appeal, and when the matter came on for oral argument, one of the assistants to the Attorney General announced in open court that he could not defend the appeal, and he has not filed a brief.
Of the various assignments of error set out by defendant, the only question which requires consideration relates to the action of the court in denying the motion of appellant to suppress the evidence obtained, on the ground that the warrant was not issued, served and returned in the manner provided by law, and the evidence was obtained in violation of defendant's constitutional and statutory rights.
A hearing was had on the motion to suppress the evidence, and defendant introduced the testimony of two witnesses, Blane Hill, a captain on the police force of the city of Okmulgee, and Charles E. Steele, assistant county attorney of Okmulgee County, both of whom were present and participated in the raid. K. D. Bailey, the county attorney, and George Carter, a member of the Okmulgee police force, were also present.
The defendant alleged in his motion to suppress, among other things, that the search was unlawful for the reason that the purported officer making the return was not authorized by the laws of this State. The return on the search warrant is signed.
'Blane Hill'
'Charles E. Steele'
And a note in the lower left-hand corner of the return recites: 'Officers present at the raid were: Blane Hill, Charles E. Steele and George Carter.' There is nothing on the search warrant to show whether Blane Hill attempted to serve the same as sheriff, deputy sheriff, constable, marshal, or a police officer.
Mr. Hill testified on the motion to suppress:
The return referred to, and which was introduced in evidence, shows that the liquor was found in 'Hill Dale Place, an addition to Henryetta, Oklahoma.'
Certainly Blane Hill, as captain of the Okmulgee police, had no authority to make a raid or serve a search warrant in an addition to another city or town in the county, or outside of his own city, when not accompanied by the sheriff or one of his duly authorized deputies.
On cross-examination by the county attorney, Mr. Hill was asked:
The commission was introduced in evidence, and on re-direct examination witness was asked:
The statutes prescribe the procedure which must be followed by the sheriff in the appointment of his deputies. The appointment must be in writing, filed with the county clerk, approved by the board of county commissioners, and the deputy must give a bond to the sheriff. Tit. 19 O.S.1951 §§ 541-548. A card signed by the Sheriff on January 3, 1945, had been issued to Blane Hill, and he had signed the oath of office appearing on the card before the court clerk of Okmulgee County, but that seems to be all that was done toward his appointment as a deputy sheriff. The appointment was not filed with the county clerk, and he testified that his...
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...(4th Cir.), Cert. denied, 292 U.S. 642, 54 S.Ct. 778, 78 L.Ed. 1494 (1934); Pass v. State, 193 So.2d 119 (Miss.1966); Murphy v. State, 95 Okl.Cr. 333, 245 P.2d 741 (1952). See also Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Go-Bart Importing Co. v. United States......
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