Pritchett v. State

• Citation: 143 P.2d 622,78 Okla.Crim. 67
• Decision Date: 01 December 1943
• Docket Number: A-10232.
• Parties: PRITCHETT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

143 P.2d 622

78 Okla.Crim. 67

PRITCHETT v. STATE.

No. A-10232.

Court of Criminal Appeals of Oklahoma

December 1, 1943

Syllabus by the Court.

1. Sec 2639, O.S.1931, Tit. 37 O.S.A. 1941, sec. 88, provides "No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort."

2. Where it is the intention of an officer to search the private residence of a citizen of this State it is his duty to procure a search warrant before doing so.

3. It is the duty of the court, upon hearing a motion to suppress the evidence secured by reason of a search, to pass upon the question of the legality of the same. This is a judicial question for the consideration and determination of the court.

4. A waiver of one's constitutional right granting him immunity against search of his premises without the aid of a search warrant should be free and voluntary.

5. Before the Criminal Court of Appeals will hold that constitutional immunity protecting a person and his home from unlawful search has been waived by accused, the proof of the State must be clear and convincing that the waiver was a free and voluntary act.

6. This court has often held that it is unnecessary for the court to define the term "reasonable doubt" in his instructions to the jury.

Appeal from Court of Common Pleas, Tulsa County; Bert E. Johnston Judge.

Mack Pritchett was convicted of possession of intoxicating liquor, and he appeals.

Reversed and remanded.

Frank Leslie, of Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and O. C. Lassiter, Asst. Co. Atty., Tulsa County, both of Tulsa, for defendant in error.

BAREFOOT Judge.

The defendant, Mack Pritchett, was charged in the Court of Common Pleas of Tulsa County with the crime of unlawful possession of intoxicating liquor, to-wit: Ten pints of gin and thirteen pints of whiskey; was tried, convicted and sentenced to pay a fine of $50.00 and serve thirty days in the county jail. From this judgment and sentence he has appealed.

The contention for reversal of this case is based upon the fact that the court erred in refusing to sustain the motion to suppress the evidence. This motion, omitting the caption, is as follows:

"Comes now Mack Pritchett, defendant herein, and moves the court to suppress the evidence in said cause for the following reasons, to-wit:

That the search of defendant's home was unlawful, illegal and unauthorized.

That the officers conducting the raid and search did not have a search warrant for the premises raided and searched.

That the defendant was not in the commission of any crime in the presence of the arresting officers.

That the officers were on the premises unlawfully and in violation of the rights of this defendant."

The motion was heard by the court before the trial of the case. At the hearing, the defendant testified that the search was made of his home, or residence, outside the city limits of Tulsa, on the 27th day of February, 1941, and that no search warrant had been secured and none was served prior to the search.

The State then placed Roy Mogridge upon the stand. He testified that he was Investigator for the Department of Public Safety. He admitted that the premises were searched without securing a search warrant, but testified that he had come to Tulsa at the suggestion of the Police Department, and that he, in company with the chief of the raiding squad of the Tulsa police, two other police officers of his squad, and Cliff Goldsmith of the Department of Public Safety, went in two cars to the home or premises of the defendant. That he got out of the car and went in person to the door of defendant's home and knocked, and the defendant knew him and invited him in. That defendant and some other person whom witness did not know were sitting at a table. He said to the defendant: "Mack, I don't know if you will allow me but I would like to look over your place. I do not have a search warrant." Defendant answered: "You do not have to have a search warrant, just go ahead." That the witness then said: "You know about raids and know that you can demand a search warrant," and defendant said: "Yes, but you do not have to have any, just go ahead and search."

The defendant denied that any such conversation occurred. He testified that the witness came to the back door of his home, and defendant said: "Come in, Roy"; and that Mogridge said: "I am going to raid you." Defendant testified that he said: "I guess it will be all right." He testified that nothing was said about a search warrant.

The witness Roy Mogridge on cross-examination testified that he was in the City of Tulsa on the date of the search, in company with Cliff Goldsmith of the Department of Public Safety. That they intended to search for whiskey, and left to go to defendant's place. That they did not know exactly where they were going, but they went directly to the home of defendant, and his was the only place they searched. That defendant lived just outside of the city limits of the City of Tulsa. That after receiving permission from the defendant, he went to the car where the other officers were upon the premises of defendant, that they immediately searched, and found the amount of liquor stated in the information. That it was hidden in barrels buried in the chicken yard, and in boxes used for the purpose of conveying game chickens that were located on the premises. Some of the officers thought that a small amount of whiskey was found in the house, but of this they were not certain. This was the testimony given by them at the trial.

The trial court, after hearing this evidence, overruled the motion to suppress, and the case proceeded to trial, with the results above stated.

Evidently the court's view in overruling the motion to suppress was based upon the idea that this question of fact should be submitted to the jury. The court did submit this issue to the jury, instructing them that if they found that the defendant had waived his right to have the issuance of a search warrant before his house could be searched, then it was not necessary for the officers to have one before making the search, but that if they believed he had not waived his right, then they should return a verdict of not guilty.

If this was the opinion of the court as to the law, then it was the wrong opinion. We have often held that the question of deciding the validity of a search warrant, or the necessity of having one, is a judicial question for the consideration and determination of the court, and therefore not a question for the jury. Sims v. State, 73 Okl.Cr. 321, 121 P.2d 317; Phillips v. State, 34 Okl.Cr. 52, 244 P. 451; Ray v. State, 43 Okl.Cr. 1, 276 P. 785; Houchin v. State, 58 Okl.Cr. 329, 52 P.2d 1085; Barfield v. State, 68 Okl.Cr. 455, 99 P.2d 544.

Having come to the conclusion that it was the duty of the court to pass upon this question as a matter of law, did the court err in overruling the motion to suppress the evidence by reason of the search under the facts as they existed in this case?

In the case of Denton v. State, 62 Okl.Cr. 8, 70 P.2d 135, 141, we reviewed at length the law of search warrants, and the manner of their issuance and service, reviewing many cases from this court, and other states. We discussed the question here involved. It is unnecessary to again review these decisions at length. In that opinion, we said: "We are therefore of the opinion that defendant did not waive his constitutional right to have his premises searched without a valid search warrant when he said, 'That is fine and dandy, go right ahead,' but rather that this statement on his part had the meaning that he did not intend to resist the officer in the execution of the warrant under his official duty."

In that case we cited and quoted from a number of cases which discussed and decided this exact question. Smith v. State, 34 Okl.Cr. 434, 246 P. 1109; Herron v. State, 39 Okl.Cr. 346, 265 P. 147; Thomas v. State, 40 Okl.Cr. 98, 267 P. 278; Shockley v. State, 35 Okl.Cr. 437, 251 P. 514; Wilkerson v. State, 37 Okl.Cr. 43, 256 P. 63; Wilson v. State, 38 Okl.Cr. 409, 262 P. 501; United States v. Rembert, D.C., 284 F. 996; Salata v. United States, 6 Cir., 286 F. 125; Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; United States v. Kelih, D.C., 272 F. 484; Dukes v. United States, 4 Cir., 275 F. 142, 143; Meno v. State, 197 Ind. 16, 17, 164 N.E. 93; State v. Lock, 302 Mo. 400, 259 S.W. 116; Morton v. State, 136 Miss. 284, 101 So. 379; Smith v. State, 133 Miss. 730, 98 So. 344; People v. Reid, 315 Ill. 597, 146 N.E. 504; State v. Luna, Mo.App., 266 S.W. 755.

The cases above cited give so fully the reason for the rule announced, that we refrain from again quoting from them, except to call attention to the case of Smith v. State, supra [34 Okl.Cr. 434, 246 P. 1110], where it is stated:

"There is much conflict of authority as to what constitutes a waiver of defendant's constitutional rights in search and seizure cases. We think the rule supported by reason and the weight of authority requires the state, where objection is properly made, to show that defendant waived his constitutional rights by freely and voluntarily consenting to the search. The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected by every court in the English speaking world, from Magna Charta down to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.

The mere fact that a

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