Williams v. State

• Citation: 240 P.2d 1132,95 Okla.Crim. 131,31 A.L.R.2d 851
• Decision Date: 06 February 1952
• Docket Number: No. A-11466,A-11466
• Parties: , 31 A.L.R.2d 851 WILLIAMS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1132

240 P.2d 1132

95 Okla.Crim. 131, 31 A.L.R.2d 851

WILLIAMS v. STATE.

No. A-11466.

Criminal Court of Appeals of Oklahoma.

Feb. 6, 1952.

Rehearing Denied Feb. 27, 1952.

Syllabus by the Court.

1. Stated irregularities in affidavit for search warrant and search warrant not sufficient to sustain motion to suppress.

2. A search warrant is not void on its face because it directs the search of several properties, including a motor vehicle. All that the constitutional and statutory provisions require in this respect is, that no warrant shall issue to search any place 'without describing it as nearly as may be.' Okla.Const. Art. II, § 30; Tit. 37 O.S.1941 § 87. A general warrant, which the law condemns and which the cited constitutional and statutory provisions was intended to prevent, is a warrant to search all places without describing them, or to search a number of properly described places shown on the face of the warrant or by the evidence on motion to suppress, to be occupied by different owners or lessees.

3. Where search warrant is directed to 'The Sheriff, Under Sheriff, or any Deputy Sheriff, or Constable or Police Officer of Creek County, Oklahoma', and a simultaneous search is made by the procuring deputy sheriff and a police officer who was also a deputy sheriff, held that the responsibility for the return and inventories rested with the officer procuring the warrant and to whom the magistrate delivered the same, and where several properties are owned and occupied by the same person involved, as here, it is such procuring officer's responsibility to tabulate on the original copy of warrant the results of the search, as to each property listed in warrant, and the return should be executed by such officer. It is not objectionable that proper officers assisting in the search join in signing the return. Amendment may be made any time prior to trial.

4. Under Chap. 153, § 3, S.L.1933, Tit. 37 O.S.A. § 82, the keeping in excess of one quart of vinous, fermented or malt liquors in or about one's residence shall be prima facie evidence of intention to convey, sell, or otherwise dispose of such liquors. And the term 'prima facie evidence' as used in the statute is that degree of proof, which unexplained or uncontradicted is alone sufficient to establish the unlawful intent if it be credited by the jury.

5. Record examined, and held, that the remarks of the trial judge made in the presence of the jury are not approved, yet they are not prejudicially erroneous under the facts disclosed by the record.

Edgar B. Maggi, Bristow, for plaintiff in error.

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

POWELL, Judge.

Thomas Williams was charged by information filed in the Superior Court of Creek County with the crime of possession of intoxicating liquor with the intent to sell the same; was tried before a jury, convicted and his punishment assessed at a fine of fifty dollars and confinement in jail for thirty days. Appeal has been duly perfected to this court.

The record discloses that prior to trial defendant filed a motion to suppress the evidence, setting up the insufficiency of the affidavit upon which the same was based; that the property described in the affidavit and search warrant was not so properly and particularly described as to constitute sufficient grounds for a lawful search and seizure; that the search warrant was not fully issued, served and returned as provided by law.

The search warrant was based on an affidavit filed by Earl Sellers, a deputy sheriff, and the warrant was delivered to him for service. Material parts of the affidavit and that will here receive consideration, read:

'That intoxicating liquors are being sold, bartered and given away, and are being kept and stored for the purpose of sale, barter and gift, in violation of the prohibitory laws of the State of Oklahoma, on the following described premises and the buildings thereon, to-wit:

'Log Cabin Inn, located on Highway 66, in Sec. 18, Twp. 16, Rgn. 9, Creek County, Oklahoma, on each side of highway, and premises

'Little Log Cabin Inn located on Highway 66, in Sec. 18, Twp. 16, Rng. 9 Creek County, Oklahoma, on west side of highway, and premises

'Residence of Thomas Williams, out houses, garage and grounds, located at 416 South Walnut Street, Bristow, Oklahoma.

'One 1949 Pontiac Automobile, license No. 5-6858, 1949, kept at either or all of said locations and on highway 66 between said locations.

'That the reason for affiant's knowledge is from personal knowledge. Having seen Thomas Williams break bottle containing liquor, whiskey, gin or rum, on said premises. Observing and having seen drunk people in and on said premises. That the premises bears the general reputation of a place where intoxicating liquor can be purchased, had and drunk. That Thomas Williams bears the reputation of a bootlegger and person who sells intoxicating liquor. And from the affidavits hereto attached on the back hereof.

'Affiant further states that persons have been seen to go upon said premises in a sober condition and to come away therefrom in an intoxicated condition, and affiant knows of these things of his own knowledge.

'That although the dwelling house on and that will receive consideration, read: residence house, the same is in truth and in fact a public resort where persons are accustomed to congregate and gather for the purpose of buying and drinking intoxicating liquors.'

The material parts of the search warrant, and that will receive consideration, read:

'In the Name of the State of Oklahoma:

'To the Sheriff, Under Sheriff, or any Deputy Sheriff or Constable or Police Officer of Creek County, Oklahoma, Greetings: * * *

'You Are Therefore Hereby Commanded to search, either in the day or night, the following described premises, situated and being within Creek County, Oklahoma, to-wit:

'Log Cabin Inn located on Highway 66, in Sec. 18, Twp. 16, Rng. 9 Creek County, Oklahoma, on east side of highway and premises thereto

'Little Log Cabin Inn located on Highway 66, in Sec. 18, Twp. 16, Rng. 9 Creek County, Oklahoma, on west side of highway and premises thereto

'Residence of Thomas Williams, out-houses, garage and grounds located at 417 South Walnut Street, Bristow, Oklahoma

'One 1949 Pontiac Automobile, license No. 5-6858, 1949, kept at either or all of said locations and on highway 66 between said locations.'

The return reads as follows:

'I received this warrant on the 2 day of May, A.D. 1949, and served the within named by delivering a true copy on the 2nd May 1949.

'Executed the same by serving a copy hereof as follows: The following is a correct list of all property seized by me hereunder: 48 1/2-pints Sunnybrook Whiskey, 24 1/2-pints Seg. 7 Crown, 33 pints Segrams 7 Crown, 15 pints gen.

'Same property is now in my possession Sheriff's office under lock and key.

'Lee Johnson, Sheriff

By /s/ Earl Sellers, Deputy

/s/ H. T. Gay, Chief of Police.'

The evidence on motion to suppress developed that Earl Sellers, deputy sheriff of Creek County, signed the affidavit for search warrant, and on obtaining the search warrant kept the original and several copies and gave a copy to Hughey T. Gay, Chief of Police of the City of Bristow. Sellers went to the Log Cabin Inn, served a copy of the warrant on an employee there and thereafter made a search for whisky, but found none. He did not search the Little Log Cabin Inn. As Sellers was leaving the Log Cabin Inn he saw the defendant drive up and he went back and searched his car but still did not find any liquor. He advised the defendant that the police were then searching defendant's home. The record is silent as to whether the officer served a copy of the search warrant on defendant prior to searching his automobile.

The evidence further developed that Hughey T. Gay, the Chief of Police, searched the defendant's home at 416 South Walnut Street, Bristow, and that the liquor listed on return to search warrant was found at that place. In describing location of place to be searched, the figure '7' had either been typed over a '6', or the '6' over the '7', but the officer apparently interpreted the address as 416, as he searched the right place. It was the contention of the State that the '6' had been clearly typed over the '7'. In the absence of a photostat copy of the original warrant, we are unable to determine that the number in the warrant was misleading or that there was error in the typing.

The Oklahoma Constitution, Art. II, § 30, reads: 'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.'

The statutory provision, Tit. 37 O.S.1941 § 87, reads: 'No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.' (Emphasis ours.)

From reading the material excerpts from the affidavit for search warrant and search warrant, quoted above, it is immediately noticed that with the exception of the residential property it was not specifically stated that the defendant Thomas Williams was the owner or had under control the other property to be searched and therein described. It might be so inferred, and the proof on hearing of motion to suppress and on trial so showed, and without denial. But is this sufficient? There are statements in Stouse v. State, 62 Okl.Cr. 46, 70 P.2d 145, and other cases to the effect that the name of the owner or occupant, if not unknown, is one of the essentials to a particular description of the place to be searched, but a careful reading of a majority of the cases decided by this court where the specific point was...