Southard v. State, A-12288

• Decision Date: 16 May 1956
• Docket Number: No. A-12288,A-12288
• Citation: 297 P.2d 585
• Parties: Jack SOUTHARD, Plaintiff 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 585

297 P.2d 585

Jack SOUTHARD, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12288.

Criminal Court of Appeals of Oklahoma.

May 16, 1956.

Syllabus by the Court

1. Under the Constitution and laws of this State, an information charging defendant with a misdemeanor is required to be verified in positive form. 22 O.S.1951 § 303. But the proper procedure to raise the question is by motion to quash or set aside the information, and thereafter by demurrer.

2. It is insufficient for the issuance of a search warrant that an affiant or deponent swear, ever so positively, to the conclusion that liquor is stored or kept in violation of law in a described building, without affirmatively stating the facts upon which his knowledge is founded.

3. An affidavit based only upon hearsay and information and belief and not in positive terms is insufficient to support a search warrant.

4. In view of the fact that this court has held in a long line of decisions that one can not go behind the affidavit for a search warrant and show that the affiant did not have personal knowledge or any knowledge of the charges alleged in the affidavit, the facts stated in an affidavit for a search warrant should be of such nature and kind as might be competent for the consideration of a jury in a prosecution for possession of liquor in violation of law, and facts should be shown indicative of an illegal purpose as well as of possession.

5. And while a search warrant must be based upon evidential facts, the quantum of evidence necessary to show probable cause may be quite insufficient to support a verdict of guilty.

6. Where the affidavit for search warrant is based upon hearsay and information and belief and not in positive terms, timely motion to suppress evidence obtained by reason of the search warrant issued should have been sustained.

Appeal from the County Court of Pittsburg County; Tom G. Haile, Judge.

Jack Southard was convicted of the offense of unlawful possession of intoxicating liquor, and appeals. Reversed.

Robert J. Bell, Charles B. Tucker, McAlester, for plaintiff in error.

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

POWELL, Judge.

The plaintiff in error, Jack Southard, hereinafter referred to as defendant, was charged in the county court of Pittsburg County with the offense of unlawful possession of intoxicating liquor, was tried before the court a jury being waived, and found guilty and his punishment fixed at thirty days confinement in the county jail and a fine of $100, and costs.

Three propositions are advanced for reversal: (1) That the trial court committed error in overruling the motion to quash the warrant of arrest on the ground that the information was unverified; (2) That the affidavit for search warrant was insufficient and that defendant's motion to suppress the evidence should have been sustained; and (3) That the evidence was wholly insufficient to support a verdict of guilty.

Considering the first proposition. From the record it appears that Dee Sanders, Sheriff of Pittsburg County, signed the information but that it was not verified. By statutory provision it is required that in a misdemeanor case the information must be verified. 22 O.S.1951, § 303; Lloyd v. State, 42 Okl.Cr. 163, 274 P. 901. However, the proper procedure to raise the question of verification is by motion to quash or set aside the information. The reasons supporting the rule may be found by an examination of Roberts v. State, 72 Okl.Cr. 384, 115 P.2d 270, and In re Talley, 4 Okl.Cr. 398, 410, 112 P. 36, 31 L.R.A.,N.S., 805. We do not find where any motion or other pleading was filed to vacate or set aside the information or warrant of arrest on the ground that the information was unverified. The question was not specifically raised in motion for new trial, but is raised for the first time on appeal. This comes too late. Willis v. State, 64 Okl.Cr. 213, 78 P.2d 840.

We do not find merit in the third proposition to the effect that the evidence was wholly insufficient to support a verdict of guilty. The officers found 24 pints of bonded whiskey in a secret compartment in defendant's bath room. It is true that defendant testified, and swore that he had the liquor in question for his own personal use, and that he did not have it for sale or to give away, but all such matters were for the consideration of the jury, or in this case the court, in determining the ultimate facts. We shall not go into this further, as the proposition raised has too often been passed on in cases with similar fact situations and contrary to the contentions now advanced.

Defendant's second proposition, that the court erred in overruling his motion to suppress the evidence, presents a close and serious question. It was raised by motion filed on September 9, 1955 and heard and overruled on October 20, 1955, prior to trial on November 8, 1955. At trial defendant objected to the introduction of evidence on account of the asserted illegal search and seizure, based among other things, on the ground, as set out in the written motion, that the search warrant was void by reason of an insufficient affidavit for search warrant. A consideration of the written motion to suppress and the evidence in support thereof will dispose of this case.

The record discloses that the evidence tending to support the charge for which defendant was tried was obtained by a search warrant issued upon an affidavit, contended by defendant to have been strictly upon information and belief, and not in positive terms.

As a prelude to an analysis of the affidavit, some basic principles should be reviewed. It should be kept in mind that in a long line of cases this court has held that where an affidavit to procure a search warrant is in positive terms, one will not be permitted to go behind the affidavit and show that the officers did not have sufficient knowledge of the charges alleged in the affidavit. Rausch v. State, 65 Okl.Cr. 52, 82 P.2d 687; Griffin v. State, 95 Okl.Cr. 421, 246 P.2d 424, and a long list of cases cited; Bryson v. State, 96 Okl.Cr. 49, 248 P.2d 253; Crossland v. State, Okl.Cr., 266 P.2d 649; Addington v. State, Okl.Cr., 268 P.2d 912.

The above rule came about for the reason that an examining magistrate has been recognized as something more than an automaton. It is his duty to examine the affidavit presented to see whether or not it fulfills the requirements of the law, and not only that, to determine that the person presenting the affidavit knows its contents and wants to and does swear to the same. It is a solemn instrument, not to be lightly made, because it is the key that opens the citizen's door to the officers to search his home, or his place of business for evidence of the crime that may be charged. It is the vehicle provided by the Constitution that permits the invasion of the citizen's privacy. Therefore we have said that the affidavit and search warrant should be strictly construed, Linthicum v. State, 66 Okl.Cr. 327, 92 P.2d 381; Mayberry v. State, 62 Okl.Cr. 183, 70 P.2d 1106; Mason v. State, 63 Okl.Cr. 153, 73 P.2d 468; Edwards v. State, 95 Okl.Cr. 37, 239 P.2d 434; though a technical construction should not be placed thereon which destroys the true meaning. Shiever v. State, 94 Okl.Cr. 37, 230 P.2d 282.

It is well known that many county attorneys, recognizing the great difficulty officers and magistrates have had in preparing affidavits for search warrants that would fulfill the requirements of the law, have prepared printed forms to meet varied situations, where the affiant could mark or strike out such allegations as not applicable to the case at hand, and there are usually blanks for the setting out of additional facts peculiar to the particular case. It is imperative, if the affidavit is to mean anything, that the allegations not applicable and that can not truthfully be sworn to be stricken. This practice, of using printed forms, has been approved in many cases where we have said that 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 out in the affidavit to justify the magistrate in concluding that there was probable cause for issuing the warrant. Griffin v. State, supra; Addington v. State, supra. But this does not give license to a complainant to indiscriminately affix his signature to an affidavit for search warrant and demand the signature of the magistrate to a search warrant without reading the form or being questioned by the magistrate concerning the contents.

We should also keep in mind the certain constitutional and statutory provisions. The Bill of Rights, O.S.1951 Const. Art. II, § 30, reads as follows:

'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.'

Title 22 O.S.1951 § 1223 provides:

'A search warrant shall not be issued except upon probable cause, supported by affidavit, naming or describing the person, and particularly describing the property and place to be searched.'

Section 1224 of the same Title provides:

'The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.'

Section 1222 of the same Title sets out three grounds for obtaining a search warrant, the third being:

'Third. When it is in the possession of any person, with the intent to use it as a means of committing a public offense, or in the possession of another to whom he may have...