Seay v. State

• Decision Date: 28 February 1951
• Docket Number: No. A-11347,A-11347
• Citation: 93 Okla.Crim. 372,228 P.2d 665
• Parties: SEAY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 665

228 P.2d 665

93 Okla.Crim. 372

SEAY v. STATE.

No. A-11347.

Criminal Court of Appeals of Oklahoma.

Feb. 28, 1951.

Syllabus by the Court.

1. It is reversible error for the court to permit the state to introduce the search warrant as primary evidence where the recitals of such warrant are with reference to the essence of the offense charged.

2. The reception of hearsay testimony which contributed to a verdict of guilty does not constitute harmless error, but is ground for reversal.

3. In a prosecution for having possession of intoxicating liquors with intent to sell same, the burden was on the state to prove that the place where the liquor was found was in defendant's possession or under his control, or that the intoxicating liquor was his, or that he had possession of same either as owner or employee.

4. Where an officer to whom a search warrant is directed is present and acting in the execution of the search warrant, the fact the warrant may have been in the manual possession of a special police officer not named therein, who served the warrant, is substantial compliance with the provisions of Title 22, § 1227, O.S.A.1941, to the effect that a search warrant may be served by any of the officers mentioned in its direction, he being present and acting in its execution.

Garrett & Garrett and Norman & Wheeler, all of Muskogee, for plaintiff in error.

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

BRETT, Presiding Judge.

Plaintiff in error Cecil Seay, defendant below, was charged by information in the county court of Muskogee county, Oklahoma, with the offense of unlawful possession of 21 fifths, 20 pints, 3 half pints of whiskey, 14 fifths of gin, 20 pints of gin and 3 fifths or rum, on or about April 18, 1949 at his residence in the city of Muskogee. The defendant was tried by a jury, convicted and the jury being unable to agree on his punishment the same was fixed by the trial judge at 90 days imprisonment in the county jail and a fine of $300, and judgment and sentence was entered accordingly.

There are numerous assignments of error but it will only be necessary for us to discuss at length those we believe to be decisive of the issues herein, the principal one of which the Attorney General confesses constitutes reversible error. The confession of error by the Attorney General relates to the introduction in the state's case in chief of the search warrant under which the search was conducted and the hereinbefore described liquor was seized. The introduction in evidence of the search warrant in the state's case in chief clearly constituted reversible error. Edwards v. State, Okl.Cr.App., 212 P.2d 150, 151, wherein we said:

'This court has repeatedly held that it is error for the court to permit the state to introduce the search warrant as primary evidence where the recitals of such warrant are with reference to the essence of the offense charged. Wallace v. State, Okl.Cr.App., 208 P.2d 190, not yet reported in State reports; Weaver v. State, 78 Okl.Cr. 277, 147 P.2d 800; Lucas v. State, 56 Okl.Cr. 413, 41 P.2d 131; Savalier v. State, 85 Okl.Cr. 87, 185 P.2d 476, 477 (both of said last two cited cases involve only the introduction of the warrant in evidence). In the latter case the court said:

"The defendant did not take the witness stand; his character had not been placed in issue. The admission of the warrant placed the character of the defendant in issue which was highly prejudicial.

"So far as we are advised, this court has in every instance where such question has been raised, reversed the conviction of the accused and held the admission of a search warrant as independent evidence of defendant's guilt was prejudicial error. Lucas v. State, 56 Okl.Cr. 413, 41 P.2d 131; Bruner v. State, 44 Okl.Cr. 425, 281 P. 319; Weeks v. State, 41 Okl.Cr. 95, 270 P. 858; Williams v. State, 34 Okl.Cr. 359, 246 P. 895; Johnson v. State, 52 Okl.Cr. 76, 2 P.2d 972.'

'In the case at bar the defendant did not take the witness stand and make an issue of his character and reputation. The admission of the search warrant in the instant case was therefore highly prejudicial and constitutes reversible error.'

This case therefore must be reversed for the foregoing reason if for none other.

But there are other serious errors in relation to admissibility of evidence but since this case must be tried again we shall merely call attention to other serious errors in the hope that they may not be repeated again. The defendant complains in his brief of certain hearsay evidence offered in an attempt to establish the defendant's residence at the place the liquor was seized, in an effort to establish the defendant's residence at the place where the liquor was found and thereby connect the defendant with its possession. This evidence was offered through Police Officer Harold Burns. The police officer was handed a telephone book which he identified as that of the telephone company at Muskogee, Oklahoma. Thereafter upon interrogation the officer proceeded to testify that the defendant was listed in the said telephone book as 'Cecil Seay, Beverages, 2324 Elmira, 678'. This evidence constituted hearsay and therefore was clearly inadmissible. That it was highly prejudicial cannot be doubted, for the recitals contained in the telephone book and the recitals contained in the search warrant constituted the only evidence by which the defendant was connected with the possession of the liquor, all of which was inadmissible and highly prejudicial to the rights of the defendant. This court has repeatedly held that the reception of hearsay testimony which contributed to a verdict of guilty does not constitute harmless error, but is ground for reversal. ...