Lowe v. State

1930 OK CR 517, 294 P. 216, 49 Okla. Crim. 330, 1930 Okla. Crim. App. LEXIS 255

Opinion

DAVENPOBT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having in his possession about one and one-half pints of intoxicating liquor, and was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. Prom the judgment and sentence, the defendant has appealed.

In the trial of the tase the state offered in evidence the affidavit upon which the search warrant was obtained, and the search warrant. The defendant objected, which objection was overruled, and the defendant duly excepted to the ruling of the court.

This court has repeatedly held that it is error for the state to read the affidavit for the search warrant and the warrant to the jury as primary evidence. Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858; Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370.

It-is our opinion that the court erred in admitting the affidavit for the search warrant, and the search warrant issued thereon as primary evidence, as it deprived the defendant of his right to confront the witnesses and cross-examine them. The allegations in the affidavit tended to establish facts very material against the affidavit.

For the reason stated, the case is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.