Watson v. State

• Citation: 117 P.2d 808,73 Okla.Crim. 58
• Decision Date: 01 October 1941
• Docket Number: A-9823.
• Parties: WATSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

117 P.2d 808

73 Okla.Crim. 58

WATSON v. STATE.

No. A-9823.

Court of Criminal Appeals of Oklahoma

October 1, 1941

Syllabus by the Court.

1. When a motion to suppress the evidence is filed questioning the validity of the search warrant, it is the best practice for the court to hear this motion before the trial of the case and the burden of proof is upon the defendant to show the illegality of the search warrant.

2. The description of premises to be searched is sufficient if it enables the officer executing the search warrant to locate the premises to be searched without the aid of any other information except that contained in the search warrant.

3. Before a search warrant may be issued to search a private residence for intoxicating liquor, an affidavit must be filed stating that it is being used as a "store, shop, hotel boarding house, or place for storage, or unless such residence is a place of public resort."

4. Affidavit examined and found insufficient upon which to base the issuance of a search warrant to search the private residence or home of defendant.

Appeal from County Court, Pittsburg County; Wm. Jones, Judge.

John Watson was convicted of the unlawful possession of intoxicating liquor, and he appeals.

Judgment reversed with directions to discharge the defendant.

Mac Q Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen and Paul Gotcher, Co. Atty., of McAlester, for the State.

Guy L. Andrews, of McAlester, for defendant.

BAREFOOT Presiding Judge.

Defendant was charged in the County Court of Pittsburg county with the crime of unlawful possession of intoxicating liquor, to wit: six pints of gin, six pints of whiskey, and four half-pints of whiskey, mixed brands; was tried, convicted and sentenced to pay a fine of $100 and to serve sixty days in jail, and has appealed.

The main ground relied upon by defendant for reversal of this case is that the court erred in refusing to sustain the motion to suppress the evidence because it was obtained by reason of an illegal search of his home. It is first contended that the description in the search warrant is insufficient to justify the search of defendant's premises and that the affidavit was insufficient under the statute to justify a search of defendant's home. The affidavit upon which the search warrant was issued was made by the sheriff of Pittsburg county, and was as follows:

"Walter Haggard, Sheriff of Pittsburg County, being first duly sworn, upon oath, states that spirituous, vinous, fermented, and malt liquors, including whiskey, wine, and other intoxicating liquors, for containing more than four per cent alcohol, measured by volume, and capable of being used as a beverage, is had and kept for the purpose of sale, barter, giving away and otherwise furnishing the same; and that same is being sold, bartered, given away, and otherwise furnished in violation of the Laws of the State of Oklahoma, in the above named County and State, in and upon the following described premises, to-wit:

The Boga Night Club, Dance Hall, Beer Parlor, and Sandwich Shop; and the premises and all buildings on the premises including the building used as a home by John Watson; located 300 yards west of the city limits on the south side of highway 270, McAlester, Pittsburg County, Oklahoma.

Affiant further states that the basis of this complaint and the facts upon which it is founded are as follows:

Affiant has seen persons whose names are known to him drinking whiskey in the above described premises. The affiant has seen drunk persons in this place of business. It is a place of public resort; and whiskey is kept therein.

Wherefore, affiant prays that a Warrant of Search and Seizure do issue to the Sheriff of said County and State for the said described person and premises; to the end that said violation of law be suppressed, and that the offending parties be dealt with according to law."

A motion was made to suppress the same, and a hearing was had thereon prior to the trial, and evidence taken. By this procedure the burden of proof was upon the defendant to affirmatively show that the search warrant was illegal. Holland v. State, 58 Okl.Cr. 404, 54 P.2d 216; Ray v. State, 43 Okl.Cr. 1, 276 P. 785; Ford v. State, 45 Okl.Cr. 161, 282 P. 370.

It will be noted that the affidavit, after describing the premises, says: "*** located 300 yards west of the city limits on the south side of highway 270, McAlester, Pittsburg County, Oklahoma."

But on the motion to suppress, defendant offered evidence that it was a distance of 1,381 feet from the edge of his property line to the city limits, and that certain other parties owned the property as described in the search warrant. This contention overlooks the fact that the description in the search warrant used the words, "The Boga Night Club, Dance Hall, Beer Parlor, and Sandwich Shop", and also used the name "John Watson". The officers testified that they knew from this description in the search warrant where it was located. It did not require any information other than the description in the search warrant to locate the premises. Under this statement of facts it does not occur to us that this contention is well taken and is highly technical. Smith v. State, 56 Okl.Cr. 103, 34 P.2d 280; Pickens v. State, Okl.Cr.App., 106 P.2d 127; Pickens v. State, Okl.Cr.App., 110 P.2d 319; Mitchell v. State, 43 Okl.Cr. 63, 277 P. 260; Weisband v. State, 69 Okl.Cr. 79, 100 P.2d 297; Crim v. State, 68 Okl.Cr. 390, 99 P.2d 185; Crouse v. State, 69 Okl.Cr. 24, 100 P.2d 467.

The second contention, that the affidavit for the search warrant does not state facts sufficient under the statute to permit the search of defendant's home, presents a more serious question. The statute which permits the searching of one's home is Oklahoma Statutes 1931, Section 2639, Oklahoma Statutes Annotated, Title 37, Section 88, and is as follows: "No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort."

It is the contention of defendant that the affidavit for the search warrant nowhere states that the home of defendant is used as "a store, shop, hotel, boarding house, or place for storage, or *** is a place of public resort", it being contended that that part of the affidavit which states, "It is a place of public resort; and whiskey is kept therein", has reference...