Pitzer v. State
| Decision Date | 29 May 1940 |
| Docket Number | A-9625. |
| Citation | 103 P.2d 109,69 Okla.Crim. 363 |
| Parties | PITZER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Where the notices of appeal required by statute have not been served, this defect may be cured by the service of a summons in error upon the Attorney General or by securing a waiver thereof.
2. Where an affidavit for search warrant recites positive evidentiary facts sufficient to show probable cause for the issuance of a search warrant, the same will not be held invalid by reason of the fact that it refers to the whiskey beer, ale, and wine therein mentioned as containing more than one-half of one per cent alcohol, as this court will take judicial notice of the fact that whiskey contains more than 3.2 per cent alcohol measured by weight.
3. The description of the house to be searched, the names of the occupants of the premises, together with the legal description set forth in the search warrant, should all be read together; and if the same are sufficient to enable the officer executing the search warrant to locate the premises to be searched without the aid of any other information save that contained in the warrant, the same is sufficient.
4. In a prosecution for a second violation of the prohibitory liquor laws, the fact of a prior conviction being one of the material elements of the offense, the same must be proven by competent evidence beyond a reasonable doubt the same as all other material allegations of the information.
5. Where, in a prosecution for a second violation of the prohibitory liquor laws, record evidence of a former conviction is offered of one of the same name as that of the defendant on trial, the same will be considered as strong circumstantial evidence that the person named in the former conviction and the defendant on trial are one and the same person; and where no contradictory evidence is introduced the same will be held to be sufficient to show a prior conviction.
Appeal from District Court, Cimarron County; F. Hiner Dale, Judge.
Asa Pitzer was convicted of the unlawful possession of intoxicating liquor, second offense, and he appeals, and the state moves to dismiss the appeal.
Motion to dismiss overruled, and judgment affirmed.
O. S Shaw and M. E. Becker, both of Boise City, for plaintiff in error.
Mac Q Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
The defendant Asa Pitzer was charged in the District Court of Cimarron County with the offense of unlawful possession of intoxicating liquor, and charged that the same was the "second offense;" was tried, convicted, and sentenced to serve a term of thirty days in the county jail and pay a fine of $50, and has appealed.
The Attorney General has filed herein a motion to dismiss for the reason that no notice of appeal was served upon either the county attorney or the court clerk as required by Section 3193, O.S. 1931, 22 Okl.St.Ann. § 1055. The defendant filed a verified response to this motion, in which he admits that no notice of appeal was served on the court clerk or the county attorney of Cimarron County, but alleges that the Attorney General did execute and file a waiver of summons in error on the 22nd day of July, 1939.
An examination of the record sustains the allegations of the response of the defendant, and shows that the Attorney General executed and filed a waiver of the issuance and service of a summons in error on July 22, 1939, and that the same was filed on that date.
As was stated in the second syllabus in Lutke v. State, 37 Okl.Cr. 18, 255 P. 719: "Where the notices of appeal required by statute have not been served, this defect may be cured by the service of a summons in error upon the Attorney General or by securing a waiver thereof."
The motion to dismiss being without merit, the same is hereby overruled.
The defendant contends that the affidavit for search warrant was insufficient both by reason of the failure to allege sufficient evidentiary facts in the body of the affidavit and because the description of the premises set forth in the affidavit did not sufficiently describe the premises to be searched. Secondly, the defendant contends that the district court was without jurisdiction to try said case for the reason that the State failed to prove "second offense."
Before the commencement of the trial of this case, the defendant filed his motion to suppress the evidence; a hearing was had thereon; the affidavit and search warrant upon which this information was predicated were introduced in evidence. The affidavit for search warrant recites certain positive evidentiary facts from which the justice of the peace could find that probable cause existed for the issuance of a warrant. The defendant contends that since the affidavit used was from an old form, which recited that the whiskey and other liquors named in the affidavit contained more than one-half of one per cent instead of more than 3.2 per cent alcohol, that the same is insufficient upon which to base the issuance of a search warrant. This court will take judicial notice of the fact that whiskey is intoxicating and contains more than 3.2 per cent alcohol by weight. The statement that the liquors contained more than one-half of one per cent of alcohol is mere surplusage.
While we shall not hold that the affidavit in this case is a model in form and substance, we do hold that there are facts stated therein which were sufficient to warrant the magistrate in making a finding of probable cause. While a search warrant must be based upon evidentiary facts, the quantum of evidence necessary to show probable cause may be quite insufficient to support a verdict of guilty. Smith v. State, 30 Okl.Cr. 144, 235 P. 273; Heath v. State, 54...
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Farrow v. State
...to show probable cause on which to base a search warrant. See Key v. State, Okl.Cr., 100 P.2d 291 (Pottawatomie County); Pitzer v. State, Okl.Cr.App., 103 P.2d 109. As the second assignment of error, the affidavit and search warrant were both signed "W. F. Durham, Justice of the Peace." The......
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...69 Okl.Cr. 79, 100 P.2d 297; Stouse v. State, 62 Okl.Cr. 46, 70 P.2d 145; Peters v. State, 71 Okl.Cr. 175, 110 P.2d 300; Pitzer v. State, 69 Okl.Cr. 363, 103 P.2d 109. But if the officers executing the search warrant can locate the premises to be searched without the aid of no other informa......
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