Pennington v. State, A-12286

• Decision Date: 26 September 1956
• Docket Number: No. A-12286,A-12286
• Citation: 302 P.2d 170,1956 OK CR 98
• Parties: Lillie Ann PENNINGTON and Willie Howard, Plaintiffs 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 170

302 P.2d 170

Lillie Ann PENNINGTON and Willie Howard, Plaintiffs in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12286.

Criminal Court of Appeals of Oklahoma.

Sept. 26, 1956.

Syllabus by the Court.

1. In construing an ambiguous statute, resort may be had to judicial construction by use of extrinsic aids such as constitutional provisions and other general statutory provisions and special legislation relating to the subject matter under consideration.

2. Where a statute is ambiguous and its meaning doubtful, it should be given a construction that is reasonably sensible and in keeping with the public policy of the state.

3. The law does not require the doing of useless things in order to comply literally with the terms of the statutes, hence an officer armed with a search warrant is not required to demand entrance into a house if no one is there upon whom demand could be made.

4. Where an officer with a valid search warrant for the search of a house finds no one upon the premises on whom a demand for admittance can be made, he may force an entrance for the purpose of serving such search warrant.

5. Criminal Court of Appeals will seek to harmonize the general statutory provisions and the special statutory provisions relative to search and seizure with the view of giving effect to a consistent legislative policy as expressed in the provisions of the statutes relative to search and seizure.

6. The law ordinarily contemplates personal service of a search warrant, if some person is present and in possession of the place to be searched, before the search is commenced, but such personal service is not always essential to a valid search where no one is present upon whom service may be had.

7. The privilege of immunity from unlawful search and seizure is personal and unless urged at the first opportunity, is waived.

8. Where a case is tried on what purports to be a stipulation of facts, and the record presents a matter of speculation and creates doubt in this court's mind as to what facts were agreed upon, the case will be reversed for a new trial.

Appeal from the District Court of Tulsa County; Lewis C. Johnson, Judge.

The plaintiffs in error, Lillie Ann Pennington and Willie Howard, were convicted of unlawful possession of marihuana; sentenced as to both to a year in the state penitentiary. Reversed and remanded for a new trial.

Hall & Graham, Tulsa, for plaintiffs in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

The plaintiffs in error, Lillie Ann Pennington and Willie Howard, defendants below, were charged by information in the District Court of Tulsa County, Oklahoma, with the crime of unlawful possession of two partially smoked cigarettes and one whole cigarette of marihuana, in violation of 63 O.S.1951 § 451. A jury was waived and the case tried to the court; defendants were found guilty and punishment fixed as to both at a year in the state penitentiary; judgment and sentence were entered accordingly from which this appeal has been perfected.

The defendants moved to suppress the evidence for the reason that the search warrant, under which the marihuana was seized, was for stolen property, that entry to the house was obtained by use of force, and the search warrant was not served on the defendants or anyone else, the defendants or no one else being present at the time of the search and seizure. The search warrant was left on the television set after a forcible entry. This was the principal point urged by the defendants in their memorandum brief in the trial court.

The defendants urge that the Oklahoma Constitution, Article 2, Section 30, provides against unreasonable searches and seizures and that the foregoing procedure was contrary to law, since not only the constitutional provision but the statutory limitations relevant to search and seizure are to be strictly construed.

The particular statutory provisions involved are 22 O.S.1951 § 1227, § 1228, and 37 O.S.1951 § 84, quoted below.

22 O.S.1951 § 1227 reads:

'A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.'

22 O.S.1951 § 1228 reads:

'The officer may break open an outer or inner door or window of a house, or any part of the house, or anything therein, to execute the warrant, if, after notice of his authority and purpose he be refused admittance.'

37 O.S.1951 § 84, the pertinent part thereof as to service, reads:

'* * * A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.'

The facts, as we can best ascertain from an alleged stipulation of the parties, are briefly as follows. November 4, 1954, a search warrant was obtained for the search of the defendants' permises authorizing the seizure of stolen property, jewelry, etc., allegedly in the possession of Willie Howard. The officers, armed with the search warrant, upon arrival found the doors and windows of the house were closed and no one present upon whom service of the search warrant could be made. The officers made forcible entry through a window and by unlocking a door from the inside. In the course of the search, they found upon a shelf in plain view the marihuana in question, which formed the basis for this prosecution. A copy of the search warrant was left on the top of the television set and which was later found by the defendant, Howard. Upon the basis of these facts, a motion to suppress was filed and heard.

Counsel for the defendants contend that this is a case of first impression in Oklahoma and diligent search has failed to disclose a case in point. The essence of the defendants' contention is that 22 O.S.1951 § 1227 makes no provision as to what constitutes service of the search warrant and under the rule of strict construction, personal service thereof is required.

We are of the opinion that to so hold would constitute a narrow and strained construction since all the constitution requires is that the search and seizure be reasonable. If such were not the case, reasonable efforts of the officers to enforce the law against the possession of contraband would oftentimes convert what in fact is a reasonable search and seizure into an unreasonable one by judicial construction. In the absence of express provisions in 22 O.S.1951 § 1227, as to the method of service of a search warrant, we are therefore limited only by the constitutional inhibition against unreasonable searches and seizures. What is reasonable is what is ordinarily fair and if the manner of service is such as does not subject the defendant to unreasonable treatment, the same will meet the requirements of both the law and justice.

Nevertheless, 22 O.S.1951 § 1227 is certainly ambiguous as to the manner of obtaining service of the search warrant and the courts, because of ambiguity therein, of necessity must resort to judicial construction. In doing so, we may look to extrinsic aids such as the provisions of the constitution heretofore alluded to, and other Oklahoma statutory provisions related to search and seizure enacted about the same time though in the nature of special legislation covering search and seizure in the field of intoxicating liquor and enforcement of the prohibition law. We may also resort to rules of construction for determining the meaning of the statutes in question. In this connection it has been held where a statute is ambiguous and its meaning doubtful, it should be given a construction that is reasonable, sensible, and in keeping with the public policy of the state. Riley v. Cordell, 200 Okl. 390, 194 P.2d 857; 50 Am.Jur 385, 393; 59 C.J. 1013; 82 C.J.S., Statutes, § 353, p. 739. Moreover, it has been held that...