Evans v. State

The plaintiff in error, hereinafter referred to as the defendant, was on a charge of a second violation of the prohibition law convicted of transporting intoxicating liquor, and his punishment fixed at a term of one year and one day imprisonment in the state penitentiary, and a fine of $50, and has appealed.

Before the case was called for trial, the defendant filed his motion to suppress the evidence, and offered proof in support of the same, which motion was overruled, and the defendant excepted.

The defendant's second assignment of error is that the court erred in overruling plaintiff in error's motion to suppress the evidence. The defendant urges in his motion to suppress the evidence that all the evidence upon which the information is based was illegally obtained by an unlawful search of the automobile of this defendant by the officers without being authorized to make said search by a valid search warrant as required by law; that the pretended search warrant upon which the illegal search and seizure was made was insufficient in both form and substance, as shown by a copy of the search warrant.

In the condition in which we find the record, the second assignment of error is the only one it is deemed necessary to consider. Section 2876, C. O. S. 1921, is as follows: *Page 85

"A search warrant is an order in writing, in the name of the state; signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate."

Section 7009, C. O. S. 1921, in part is as follows:

"If it shall be made to appear to any judge of any court of record or any justice of the peace that there is probable cause to believe that liquor, the sale of which is prohibited by this act, is being manufactured, sold, bartered, given away, or otherwise furnished, or is being kept for the purpose of being sold, bartered, given away, or otherwise furnished in violation of this act, such judge or magistrate shall, with or without any endorsement of such complaint by the county attorney, issue a warrant, directed to any peace officer, in the county, whom the complaint may designate, commanding him to search the premises described and designated in such complaint and warrant and to seize all such liquor there found."

That part of the search warrant in this case necessary to be referred to is as follows:

"Warrant for Search and Seizure.

"Before me E. B. Ambler, Justice of the Peace, in and for Lincoln County.

"In Re: Application of Lewis Wallace, Sheriff, for search warrant.

"The State of Oklahoma, to __________ Greeting: Proof by affidavit having been made before me by __________ stating."

It is plain to be seen that the search warrant in this case is void, for the reason that it is not directed to any officer in Lincoln county, or any other county in the state. In Dunn v. State, 40 Okla. Cr. 76, 267 P. 279, this court in its syllabus said:

"A search warrant is 'process.' It must run in the name of the state of Oklahoma to some peace officer or *Page 86 peace officers of the state. It can be served only by the officer mentioned in its direction, but by no other person except in aid of the officer on his requiring it, he being present and acting in its execution." McAdoo v. State,36 Okla. Cr. 198, 253 P. 307.

It is clearly shown from the record in this case that the search warrant upon which the state relied for the officer's authority to search the premises of the defendant was void, for the reason that it was not directed to any peace officer in the county of Lincoln, the county in which the warrant was issued. All of the evidence having been obtained by the services of a void search warrant, it follows that the motion to suppress should have been sustained.

EDWARDS, J., concurs.