Thompson v. State

• Decision Date: 13 July 1949
• Docket Number: A-11017.
• Citation: 208 P.2d 584,89 Okla.Crim. 383
• Parties: THOMPSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

208 P.2d 584

89 Okla.Crim. 383

THOMPSON v. STATE.

No. A-11017.

Court of Criminal Appeals of Oklahoma

July 13, 1949

Appeal from County Court, Choctaw County; Eugene D. Ellis, Judge.

J. W (Wess) Thompson was convicted for the unlawful possession of intoxicating liquor and sentenced to serve 30 days in jail and to pay a fine of $50, and he appeals.

Reversed.

Syllabus by the Court.

1. An application for a continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there is an abuse of such discretion this court will not reverse the judgment for refusal to grant a continuance.

2. Under the provisions of Title 37 O.S.A. 1941 § 84: 'A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, * * * and if no person be found in the possession thereof a copy of said warrant shall be posted on the door of the building or room wherein the same are found.' Ordinarily where some person is in possession of the place to be searched, service of the warrant should precede the search, but it is within the contemplation of the law that conditions may arise where to require such before the search would defeat the ends of justice. Thereunder personal service of the warrant may be delayed until after the search and seizure has commenced or until completed.

3. The giving of an instruction will not be considered as error in absence of exception thereto, unless it is so fundamentally erroneous as to mislead jury and thus deprive defendant of his constitutional right to a fair and impartial trial.

4. The proper practice is for the state to prove venue by direct and positive evidence, yet the essential test is whether or not the venue has in some way been proven. Venue may be established by circumstantial evidence.

5. In a criminal case the venue must be proved as laid in the information; and where there is no evidence of venue in the record, a conviction will be reversed.

Jack Bradley, Hugo, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

The defendant J. W. (Wess) Thompson was charged in the county court of Choctaw County, Oklahoma, with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in jail and to pay a fine of $50.

The record discloses that defendant was in possession of some 16 pints of whiskey. From the judgment and sentence herein imposed the defendant perfects this appeal. At the outset let us observe the defendant offered no evidence in his behalf designed to prove his innocence of the charge against him. He makes several assignments of error which we will consider in the order of their presentment.

The first contention is that the trial court erred in not granting his motion for a continuance requested by reason of the absence of R. L. Page, deputy sheriff, who was confined in the hospital. It was alleged if he were present he would testify that the search began before the warrant was served. In addition thereto, the court heard evidence on the motion. Thus the court knew in substance what the absent witness would testify to if he were present. The record herein, as to service of the warrant, completely refutes the allegation as to what the officer would have testified to. It shows the warrant was served on an 18-year old boy who was in charge of the premises. It further discloses when it was found the defendant was on the premises in bed, a copy of the warrant was then served on him in person. Upon the hearing of this evidence the court refused a continuance. In so holding the court properly ruled. Title 37, § 84, O.S.A.1941, reads in part as follows: 'A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, * * *.'

This section would indicate that it would be required if a person was present and in possession of the liquor contrabrand a copy of the warrant should be served upon such person. The record herein clearly supports a compliance of the statute in this regard. Under the defendant's theory the search could not be had in absence of service of the warrant. Hence the request for a continuance to obtain the testimony of R. L. Page. Such a contention is clearly not within the contemplation of the provisions of the statute. The foregoing section of the statute further reads: '* * * and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.'

It thus appears that it is within the contemplation of the statute that a search may be commenced and completed without personal service of a copy of the warrant if no person is on the premises at said time and in charge of the liquor. It is within the contemplation of the statute that the search may be commenced and service of a copy of the warrant be had upon the appearance of a person in charge of the premises after the search is commenced or service of the warrant may be made by posting the same on the door of the building or room in the absence of any one in possession. Roe v. State, 32 Okl.Cr. 113, 240 P. 140. But there are cases where to require service of the warrant even when one was in possession of the liquor sought to be seized would defeat the ends of justice. In Roberts et al. v. State, 53 Okl.Cr. 409, 12 P.2d 253, a case very similar to the one at bar, wherein the court held neither the law nor common sense requires an officer under such circumstances to serve a search warrant before seizing the whiskey. Thigpen v. State, 51 Okl.Cr. 28, 299 P. 230; United States v. Camarota, D.C., 278 F. 388. While ordinarily the law contemplates if some person is present and in possession of the place to be searched the warrant will be served, before the search is commenced, but it is not always essential to a valid search, for it is not always possible so to do in the enforcement of the law. It is therefore apparent that personal service of the warrant before search is commenced is not essential to a valid search and seizure. In view of the foregoing conclusions we are of the opinion the evidence of R. L. Page would therefore have been immaterial, particularly when this record shows service of the warrant as required by law. The denial of the continuance was a matter within the court's sound discretion, and the evidence amply supports his denial of the same. Murphy v. State, 70 Okl.Cr. 1, 112 P.2d 438; Hiatt v. State, 67 Okl.Cr. 372, 94 P.2d 262. Quite clearly he did not abuse his discretion. The motion for continuance was therefore properly overruled.

He next contends that the evidence was insufficient to sustain the conviction. This assignment is wholly without merit. The finding of the quantity of liquor in the case at bar in the defendant's...