Estes v. State
| Decision Date | 22 November 1926 |
| Docket Number | A-5834. |
| Parties | ESTES v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
The inclusion in a verdict of recommendation that the court suspend the jail sentence imposed during good behavior is improper, though not prejudicial to defendant.
In a prosecution for unlawful possession of intoxicating liquor evidence obtained by an illegal search of defendant's home is inadmissible against defendant.
Appeal from County Court, Garvin County; J. D. Cofield, Judge.
Joe Estes was convicted of the unlawful possession of intoxicating liquor, and he appeals. Reversed.
J. S Garrison and Yerker E. Tayler, both of Pauls Valley, for plaintiff in error.
The Attorney General, for the State.
The information in this case charged that in Garvin county November 8, 1924, Joe Estes did have in his possession about 1 1/2 gallons of corn whisky, with the unlawful intent of selling the same. On the trial, the jury returned a verdict as follows:
"We, the jury, impaneled and sworn in the above-entitled cause, do upon our oaths find, from the law and the evidence the defendant, Joe Estes, guilty, as charged in the information, of unlawful possession of intoxicating liquor and assess his punishment at $250 and six months in county jail, with the recommendation that he be paroled on good behavior on the jail sentence."
Motion for new trial was duly filed and overruled. The judgment of the court was that defendant pay a fine of $250 and serve six months in the county jail. From such judgment, he appeals.
It is assigned as error that the verdict is so uncertain that no valid judgment can be rendered thereon.
In our opinion, the verdict of the jury is not uncertain. It fixes defendant's punishment, and the clause in it to which the defendant objects is merely a recommendation that the court suspend the jail sentence imposed during good behavior. It is, in no sense, a part of the verdict. It was improper to make this recommendation in the verdict, but it does not affect the verdict in any way and is not prejudicial to the defendant.
Under the assignment that the court erred in overruling the defendant's motion for a directed verdict, it is contended that there was no evidence tending to support the allegations in the information, except such evidence as was procured by an illegal search of the defendant's home.
J. R. Moore, town marshal, testified that he had a search warrant, but he did not show it to the defendant or defendant's wife; that, later, he turned it over to Mr. Ross.
W. E. Ball, deputy city marshal, testified that he accompanied his chief, but did not see a search warrant or know anything about one.
R. W Ross, justice of the peace of Lindsay township, testified that he issued a search warrant to search the premises...
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