Wagner v. State
| Decision Date | 10 September 1941 |
| Docket Number | A-9822. |
| Citation | 117 P.2d 162,72 Okla.Crim. 393 |
| Parties | WAGNER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. The court did not err in refusing to quash a search warrant by reason of the officer having served the original upon the defendant instead of the copy.
2. The fact that the justice of the peace who issued the search warrant permitted the officer to sign the copy after the search was made, and make his return thereon, was not such error as to void the warrant.
3. Where a search warrant was issued to a chief of police, and served by one of his policemen at his direction and the chief was in close proximity to where the search was conducted serving another warrant, and personally present after the liquor was found by the officers, was sufficient to establish the fact that the search was being conducted under his personal supervision.
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.
5. 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.
Appeal from County Court, Carter County; John E. McCain, Judge.
Bill Wagner was convicted of unlawful possession of intoxicating liquor, and he appeals.
Affirmed.
Mac Q Williamson, Atty. Gen., and Alvin C. Bruce, Co. Atty., of Ardmore, for the State.
Sigler & Jackson, of Ardmore, for defendant.
Defendant Bill Wagner, was charged in the County Court of Carter County with the crime of unlawful possession of intoxicating liquor to wit: 3 3/4 pints of whiskey, was tried, convicted and sentenced to pay a fine of $50 and serve thirty days in the county jail, and has appealed.
The error alleged for the reversal of this case is based upon the contention of the illegality of the search warrant and the refusal of the court to sustain a motion to suppress the evidence obtained thereunder. The affidavit as a basis for the issuance of the search warrant was as follows:
The evidence reveals that a search warrant was issued, and that the original copy, which was signed by the magistrate, was taken by the officer and that this original was served upon the defendant, and that when the officer returned to the office of the justice of the peace he signed the copy after the search was made, and that the return of the officer was made upon this copy instead of the original search warrant, which was served upon and left with the defendant. The record further reveals that the copy of the search warrant was signed by the justice of the peace after the search was made. It is contended that this procedure was such as to void the search. It occurs to us that this is very technical. We find no reason why the original search warrant could not have been served on defendant as well as the copy. The fact that the justice of the peace placed his signature on the copy after the search was made, under the circumstances above stated, was an irregularity that was not material and was not one of which defendant may complain.
It is also contended that the search warrant was not executed by Clarence Harris, the chief of police of Ardmore, who made the affidavit and to whom the search warrant was issued. The evidence on the motion to suppress revealed that the chief of police had three search warrants. That the places to be searched were in close proximity to each other. That two of his policemen accompanied him, and when they got out of the car he handed the search warrant issued for defendant's place of business to one of his policemen for execution, and that presumably he went into one of the nearby places for the purpose of searching it. That the whiskey was found in defendant's place by the policemen, and the chief of police came to defendant's place while the search was in progress but after the identical liquor had been found. Under this state of facts we think that the statute was fully complied with, as the search was being executed under the direct supervision of the chief of police who was personally present during part of the time that the search was made. This is also a very technical objection which does not in our opinion void the search.
It is finally contended that the affidavit is insufficient upon which to base the issuance of the warrant for the reason it does not state facts but mere conclusions and did not justify the magistrate in making a finding of probable cause. It will be noted that the affidavit upon which the search warrant is based is not as full as might have been desired, but a careful examination of it reveals that it states sufficient facts to justify the issuance of the search warrant by the magistrate. The affidavit is made by Clarence Harris, chief of police of the city of Ardmore. It contains (a) the name Bill Wagner, whose place of business is to be searched, (b) it states that he operates a business establishment and place of public resort, and (c) that it is located at 219 North Caddo Street, Ardmore, Oklahoma. This fully identifies the defendant and definitely describes the place to be searched, and gives the court the information that it is a place of business and a place of public resort and affirmatively shows by these allegations that it was not the home or private residence of defendant. The affidavit then states that defendant had in his possession and under his control for the purpose of selling, bartering, giving away or otherwise furnishing certain intoxicating liquor, "to-wit: Whiskey, Beer and Wine and other compounds." This statement is positively made and is not made upon information and belief. While its terms are general and not specific, it does allege them as facts. The affidavit then states as a fact and not on information and belief, as have so many search warrants that have been passed upon by this court and have been held illegal and void, that (a) various persons frequent said premises at all hours of the day and night, (b) that persons have come from within and upon said premises in an intoxicated condition and (c) with the odor of intoxicating liquor upon their breath, (d) that said premises bear the reputation of being a place where intoxicating liquor may be purchased in violation of the statutes of Oklahoma, (e) that various persons have congregated on said premises and engaged in disorderly conduct, making loud and boisterous noises, and (f) that numerous fights and quarrels have occurred at said premises while under the control of defendant. While the above statements are general in their nature and it might have been better that the party making the affidavit had said positively that this occurred in his presence, yet the statements are made and there is no expression or statement that they are made on information and belief. They are made by an officer who evidently came in contact with defendant and his place of business almost daily. He, no doubt, was well acquainted with the place of business of defendant and had the personal knowledge of his reputation in the city of Ardmore. For these reasons it does not seem reasonable to say that the affidavit filed as a basis for the search warrant in ...
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... ... review of them would unduly lengthen the opinion in this ... case. The facts in those cases in most instances are entirely ... different from the facts in this case. Many of these ... decisions have been reviewed in the case of Wagner v ... State, Okl.Cr.App., 117 P.2d 162, and Hays v ... State, 71 Okl.Cr. 62, 108 P.2d 186. See, also, Dobbs ... v. State, 39 Okl.Cr. 376, 265 P. 658; Rhodes v ... State, 40 Okl.Cr. 124, 267 P. 490; Peters v ... State, 71 Okl.Cr. 175, 110 P.2d 300; Gransbury v ... State, 64 Okl.Cr. 423, ... ...
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