Overturf v. State

• Decision Date: 09 May 1940
• Docket Number: A--9670.
• Citation: 102 P.2d 623,69 Okla.Crim. 303
• Parties: OVERTURF et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

102 P.2d 623

69 Okla.Crim. 303

OVERTURF et al. v. STATE.

No. A--9670.

Court of Criminal Appeals of Oklahoma

May 9, 1940

Syllabus by the Court.

1. A search warrant otherwise valid is not rendered invalid by failure to serve the same within three days after it is issued, but the same must be served within ten days after it is issued.

2. An officer may arrest without a warrant for violation of the liquor laws committed in his presence, and may seize all liquors found in possession of the offender.

3. The cases of O'Neal v. State, Okl.Cr., 87 P.2d 1108 and Reynolds v. State, 48 Okl.Cr. 131, 289 P. 782 are expressly overruled.

Appeal from Common Pleas Court, Oklahoma County; Carl Traub, Judge.

S. M Overturf and S.E. Grubb were convicted for the illegal possession of intoxicating liquor, and they appeal.

Affirmed.

Joe Adwon, of Oklahoma City, for plaintiffs in error.

Mac Q Williamson, Atty. Gen., for defendant in error.

JONES Judge.

The defendants S. M. Overturf and S.E. Grubb were charged in the Common Pleas Court of Oklahoma County with the offense of illegal possession of intoxicating liquor, were tried, convicted and sentenced to each serve a term of six months in the county jail and to pay a fine in the sum of $500, and have appealed.

The proof shows that on January 6, 1939, a search warrant was issued for service on the Pine Knot Bar, located at 16 South Robinson Street in Oklahoma City. That on January 14th, two of the deputy sheriffs went to this place of business, and after entering the same saw about 200 pints of whiskey setting in plain sight on the floor. The defendant Overturf was sitting at a desk making records of whiskey sales; the defendant Grubb was behind the bar mixing drinks. The books of the defendants were seized and introduced in evidence. These books showed that various kinds of liquors were kept for sale; the various brands were listed on a record, and the number of pints of each brand which were sold daily were noted in the book. An examination of so much of the record as was introduced in evidence shows that the liquor sales averaged approximately $250 per day.

In their brief filed with this court, the defendants make only one contention. They insist that the court erred in refusing to sustain their motion to suppress the evidence for the reason that the search warrant was not executed within three days after it was issued, and cite in support of this contention the case of O'Neal v. State, Okl.Cr., 87 P.2d 1108, decided by this court on March 3, 1939.

Section 3231, O.S. 1931, 22 Okl.St.Ann. § 1231, provides as follows: "A search warrant must be executed and returned to the magistrate by whom it is issued within ten days. After the expiration of these times respectively, the warrant, unless executed is void."

This court in the case of Whitwell v. State, Okl.Cr., 83 P.2d 881, 882, in an opinion by Judge Doyle held: "A search warrant otherwise valid which has been executed within ten days from the time it was issued is not rendered invalid by the failure of the officer to make return thereon."

To the same effect are the cases of Viadock v. State, 30 Okl.Cr. 374, 236 P. 56; Mullus v. State, 32 Okl.Cr. 134, 240 P. 135; Crim v. State, Okl.Cr., 99 P.2d 185.

The case of O'Neal v. State, supra, and the case of Reynolds v. State, 48 Okl.Cr. 131, 289 P. 782, interpreted Section 2635, O.S. 1931, 37 Okl.St.Ann. § 84, which provides the procedure which may be followed in the procurement of a search warrant to make a search of premises for intoxicating liquor, and the views expressed in these cases are in direct conflict with the opinions in the cases hereinabove cited.

Section 2635, 37 Okl.St.Ann. § 84, supra, makes no reference to the time within which a search warrant must be executed other than to say that a return showing the manner of service shall be made within three days. This provision should be harmonized, if...