Walker v. State, A-11144

• Decision Date: 27 September 1950
• Docket Number: No. A-11144,A-11144
• Citation: 92 Okla.Crim. 247,222 P.2d 766
• Parties: WALKER v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 766

222 P.2d 766

92 Okla.Crim. 247

WALKER v. STATE.

No. A-11144.

Criminal Court of Appeals of Oklahoma.

Sept. 27, 1950.

Syllabus by the Court

1. Ordinarily under the provisions of Title 22, § 1227, O.S.A.1941, and Title 37, § 84, O.S.A.1941, if a person was present in a place to be searched and in possession of contrabrand a copy of the warrant should be served upon such person.

2. Ordinarily, where service of search warrant is not made by serving a copy of the warrant in the manner provided by statutes, Title 22, § 1227, O.S.A.1941, and Title 37, § 84, O.S.A.1941, any evidence secured thereunder is inadmissible against the defendant.

Percy Hughes, Hobart, for plaintiff in error.

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

BRETT, Judge.

Plaintiff in error, Lee Walker, defendant below, was charged by information jointly with Floyd M. Drake, in the district court of Jackson county, Oklahoma, with the crime of maintaining a public nuisance in room 427 in the New Orient Hotel, in Altus, Oklahoma, on or about February 14, 1948. The information in substance alleged that Lee Walker and Floyd M. Drake, opened, managed and conducted in said room certain poker tables, craps or dice tables where gambling games were played for money, checks, credits or other representatives of value; contrary to the provisions of Title 21, § 946, O.S.A.1941. A severance was asked and granted the defendants named in the information and they were separately tried. Walker was tried by a jury on April 5, 1948, found guilty and his punishment fixed at a fine of $1500.00 and judgment and sentence entered accordingly. From that judgment and sentence this appeal has been perfected.

The defendant urges 3 propositions herein. It will only be necessary to consider but one. His first contention is that the trial court erred in overruling his motion to suppress a part of the evidence. In this connection the defendant does not question the sufficiency of the application for and the search warrant itself, but contends the search was made without proper service of the warrant upon Floyd Drake who was in charge of the premises at the time the raid was made. The evidence offered by the sheriff which was sought to be suppressed but which was admitted was in relation to what the search and seizure disclosed. He testified that when he came into the room he found men therein engaged in gambling one of whom was Floyd M. Drake as heretofore set out and named in the information herein, as codefendant, but for whom on trial a severance was had. The sheriff said he found in use certain poker tables, dice tables, chairs, dice cups, playing cards, and a bar behind which was several bottles of liquor partially used and incident to the operation of the club. Specifically this was the evidence which was sought to be excluded on the trial of the case at bar but which was admitted in evidence in the trial on the merits over the objection of the defendant.

There were three witnesses called to testify on the motion to suppress. The first of these was the sheriff who testified in relation to service of the search warrant; that he procured such a warrant on February 14, 1948. The warrant empowered him to search rooms 426 and 427 of the New Orient Hotel; that after he procured the search warrant he proceeded to the hotel in company with the Highway Patrolman from Lawton, Oklahoma. He said he had a copy of the search warrant in his pocket but that the original had been left in his office. When they arrived at the hotel he said they went to the fourth floor and proceeded at once to Room 427. The door to said room was closed. He and the other officers knocked, opened it and went in. The only person named in the information who was present was Floyd Drake. Immediately upon entering Room 427 though being armed with a valid copy of the search warrant he made no attempt to serve it on Floyd Drake whom the record shows was in charge. He did not inform Drake he had the search warrant, read it to him, inform him of its contents or serve it upon him in any manner whatsoever, and he made no attempt so to do. He said he immediately began his search; that he said nothing to Drake; that he himself was the only officer who had the search warrant on his person. He said the search lasted for more than 30 minutes and he was in and out of the room. After the search was apparently completed he called a truck to get the furniture and move it out. After the sheriff completed the search of Room 427 and obtained all the articles of personal property concerning which he gave testimony and to which objection was made, the sheriff testified that he then went to Room 426 and conducted a search. In making this search the officers broke in a door and apparently aroused Mrs. Abbott who was on another floor and heard the noise and came to the floor where the officers were making the raid, and upon her appearing after completion of the raid in Room 427 she was served with the search warrant. Though the record discloses that the clubroom was being operated for the benefit of the patrons of the New Orient Hotel, it does not clearly appear that Mrs. Abbott was connected with the operation of the same. Room 427 was registered in the name of Lee Walker, the defendant herein, and in the name of no one else. On the motion to suppress Walker testified that his codefendant Drake was employed by him in the operation of the clubroom. The record discloses that Walker was at...