Shiever v. State, A-11314
| Decision Date | 11 April 1951 |
| Docket Number | No. A-11314,A-11314 |
| Citation | 230 P.2d 282,94 Okla.Crim. 37 |
| Parties | SHIEVER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. An affidavit for the procurement of a search warrant should not be based upon information and belief, but should state facts upon which the same is based; but when facts are stated in the affidavit, and the same are positive, and by one who has a right to know the facts, it is sufficient ground for the magistrate to issue the warrant.
2. In construing the affidavit as a basis for the issuance of a search warrant, the whole affidavit should be considered. While the affidavit and search warrant should be strictly construed, a technical construction should not be placed thereon which destroys the true meaning.
3. The fact that an affidavit for a search warrant is in the main based upon allegations in a printed form, does not invalidate a warrant based thereon if there are sufficient evidentiary facts set forth in the affidavit to justify the magistrate in concluding that there was probable cause for issuing the warrant.
4. Sections 1225, 1226, and 1227 of Title 37, O.S.A. should be construed together, and as so construed with reference to the direction as to service, where the warrant is in substantially the form set out in the statute, and in the within case being, after formal heading: 'The State of Oklahoma: To Any Sheriff, Constable, Marshal or Policeman of Payne County, Oklahoma:' the same is sufficient, and the statute does not require the warrant to be directed to a particular peace officer by name, though the magistrate is not prohibited from so limiting the search warrant in a particular case.
5. A search warrant otherwise valid, which has been executed within ten days from the time it was issued, is not rendered invalid by failure of the officer to make return thereon.
6. Evidence sustained conviction for unlawful possession of intoxicating liquor, after having been twice previously convicted for unlawful possession of intoxicating liquor.
7. Where information charges defendant with illegal possession of liquor after two prior convictions for violations of the prohibitory liquor laws the trial court acted properly in submitting the punishment defined by Tit. 37 O.S.A. § 12, and not the punishment provided by Tit. 37 O.S.A. § 14.
8. The introductory paragraph of an information is ordinarily equivalent to a mere descriptive label, and a wrong name given to the crime in that part of an information is an irregularity only and not fatal. The character of the offense must be determined by a consideration of the language contained in the charging part of the information.
9. Where the jury finds an accused guilty of the crime charged and leaves the punishment to be fixed by the court, and on motion in arrest of judgment and for new trial counsel for the defendant charges that the county attorney plead with the jury to leave the punishment to the court, and this was not denied, and in connection therewith it was stipulated at the time of hearing by the trial court of said motions, that immediately after the jury retired the county attorney handed to the court an account book bearing the name of defendant's wife, but otherwise not identified and not having been offered in evidence, and the book contained a long list of purported whiskey and gin sales, but bearing no dates such facts will be considered by this court where the punishment fixed is severe, in determining whether the sentence should be modified. The action of the county attorney cannot be overlooked, being inherently irregular, and not approved.
Ralph B. Simcoe, Guy L. Horton, Stillwater, Rutherford H. Brett, J. W. Murphy, Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.
Ed Shiever was charged by information filed in the District Court of Payne County with unlawful possession of intoxicating liquor, second or subsequent offense (a charge based on Tit. 37 O.S.A. § 12), though the descriptive label as set out in the first paragraph of the information indicated a charge of being an habitual violator of the prohibition laws of the State of Oklahoma, (which would have been a charge founded on Tit. 37 O.S.A. § 14, and being a section of the statutes that has been heretofore by this court declared unconstitutional and repealed by implication). This matter will have our attention lator on herein.
A motion to suppress evidence was filed by defendant, but no evidence was introduced in support thereof, the basis for suppression being alleged defects in the affidavit for the search warrant and in the search warrant. Thus, only questions of law were raised. The motion to suppress was overruled and the defendant was tried before a jury, resulting in a verdict of guilty 'of unlawful possession of intoxicating liquor, second or subsequent offense, as charged in the information', with punishment left to be fixed by the court, who thereafter assessed a fine of $500, and sentenced defendant to be confined in the State Penitentiary at McAlester for a period of one year. A motion in arrest of judgment and for new trial was overruled, and thereafter appeal was duly perfected to this court.
Three propositions for reversal are urged. It is first contended that the court erred in permitting the evidence procured under the search warrant to be introduced over the objection of defendant, it being contended that:
'(a) The affidavit to obtain the search warrant was insufficient, being based on information and belief and not on specific facts on which a charge of perjury could be predicated.
'(b) The search warrant in this case was invalid, not having been directed by the magistrate to 'a peace officer in his county' naming him, instead of being directed to any Sheriff, Constable, etc., of Payne County, Oklahoma.
'(c) The return on the search warrant was not verified as required by mandatory statute, and is therefore a nullity.'
We have carefully read the affidavit for search warrant, and while it is true that the terms are general, they are set out as facts, and the affidavit is made by an officer who had been acquainted with the defendant for many years, and apparently was well acquainted with the premises searched. We do not find any statement purporting to be based on information and belief, but on the contrary do find the allegations to be in definite, positive and specific language, containing (a) the name of Ed Shiever, whose premises were to be searched; (b) that it is stated that said buildings and the private dwelling on said premises is a place of public resort where persons congregate to buy and drink liquor; (c) the exact location of the premises; and (d) statement that intoxicating liquors are being kept, stored and concealed in the building of said premises and in the private dwelling house situated thereon, and being kept, manufactured, stored and concealed for the purpose of being sold, bartered and given away and otherwise furnished in violation of the prohibitory laws of the State of Oklahoma.
It is then stated in the affidavit that the general reputation of the place and premises is that it is a place where intoxicating liquor is being kept, concealed and sold.
We believe the principle of law set forth in Wagner v. State, 72 Okl.Cr. 393, 117 P.2d 162, 163, hereinafter quoted, to be applicable to the facts in the within case, to-wit:
'4. An affidavit for the procurement of a search warrant should not be based upon information and belief, but should state facts upon which the same is based; but when facts are stated in the affidavit, and the same are positive, and by one who has a right to know the facts, it is sufficient ground for the magistrate to issue the warrant.
See also McCarthy v. State, 86 Okl.Cr. 51, 189 P.2d 436; Hughes v. State, 85 Okl.Cr. 37, 185 P.2d 236; and Young v. State, 74 Okl.Cr. 64, 123 P.2d 294.
While the affidavit is far from being a model, and could have been improved by detailing of additional facts, we deem the purported facts set forth and sworn to to be not on information and belief, but upon positive and definite allegations sufficient to comply with the statutory provisions. Tit. 37 O.S.A. § 87 and § 88. The reasoning supporting this conclusion is detailed in the body of the Wagner and Hughes cases above cited.
It is complained that the affidavit in question was on a printed form. This court has held that an affidavit on a printed form is not for that reason invalid. Perry v. State, 83 Okl.Cr. 162, 168, 170, 174 P.2d 388, 392, 393.
It is contended that the search warrant was illegal and invalid in that it was not directed by the magistrate to 'a peace officer' in his county. It was directed as follows: 'The State of Oklahoma: To Any Sheriff, Constable, Marshal or Policeman of Payne County, Oklahoma.' The applicable statute is Tit. 22 O.S.A. § 1225, reading: 'If the magistrate be thereupon satisfied of the existence of grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him, with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate, and also to arrest the person in whose possession the same may be found, to be dealt with according to law.'
It will be noted that it is provided that the magistrate shall issue the search warrant to a peace officer in his county. It could hardly be contended that any sheriff, constable, marshal, or policeman of Payne County, Oklahoma, was not a...
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