Perry v. State

Court of Criminal Appeals of Oklahoma

Perry v. State

1954 OK CR 143, 276 P.2d 941, 1954 Okla. Crim. App. LEXIS 219

CourtCourt of Criminal Appeals of Oklahoma

DecidedNovember 17, 1954

DocketA-12037

StatusPublished

This text of 1954 OK CR 143 (Perry v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Perry v. State, 1954 OK CR 143, 276 P.2d 941, 1954 Okla. Crim. App. LEXIS 219 (Okla. Ct. App. 1954).

Pincite

Opinion

POWELL, Presiding Judge.

; Irvin J. Perry was charged by information filed in the county court of Texas County with unlawful possession of intoxicating liquor, was tried before a jury and convicted, but being unable to agree upon the punishment to be assessed, left that to the court, who assessed the penalty at 60 days confinement in the county jail, and a fine of $100. Appeal has been duly perfected to this court.

The State by its first witness, Dudley Smith, City Marshal of Hooker, developed that such officer and deputy sheriff H. L. Davis, under authority o-f a search warrant searched the residence of the defendant at the edge of Hooker, and found 16 pints of mix brands, tax paid whiskey. Also about one-fourth pint of whiskey.

The State offered in evidence the search warrant that authorized the search, and the trial court, over the objections of counsel for the defendant ad-, mitted the same in evidence. This constituted error. The State had a good case, but by inattention to the uniform holdings of this court from its beginning,' brought about fundamental error that requires the reversal of the conviction. We shall not go into a dissertation of the reason why this is so, but shall refer to a few. cases that may be consulted where this mat-, ter has been previously treated. Wiese v. State, 32 Okl.Cr. 203, 240 P. 1075; Lucas v. State, 56 Okl.Cr. 413, 41 P.2d 131;, Wallace v. State, 89 Okl.Cr. 365, 208 P.2d 190; Savalier v. State, 85 Okl.Cr. 87, 185 P.2d 476; Robbins v. State, 93 Okl.Cr. 363, 228 P.2d 663; Wagner v. State, 68 Okl.Cr. 447, 99 P.2d 161; Edwards v. State, 90 Okl.Cr. 211, 212 P.2d 150; Berg v. State, Okl.Cr., 262 P.2d 913, 915.

The defendant did not testify and his, character was not placed in issue. The: recitals in the search warrant were as to , the essence of the offense charged.

It goes without saying that no mat- ' ter how guilty an accused may be, he is entitled to a fair trial. And as we pointed ' out in Berg v. State, supra:

“In an early case this court said that a person accused of crime is entitled to a fair and impartial trial, conducted • according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted .at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.”

The’case is reversed and remanded.

JOiNES and BRETT, JJ., concur.

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POWELL, Presiding Judge.

; Irvin J. Perry was charged by information filed in the county court of Texas County with unlawful possession of intoxicating liquor, was tried before a jury and convicted, but being unable to agree upon the punishment to be assessed, left that to the court, who assessed the penalty at 60 days confinement in the county jail, and a fine of $100. Appeal has been duly perfected to this court.

The State by its first witness, Dudley Smith, City Marshal of Hooker, developed that such officer and deputy sheriff H. L. Davis, under authority o-f a search warrant searched the residence of the defendant at the edge of Hooker, and found 16 pints of mix brands, tax paid whiskey. Also about one-fourth pint of whiskey.

The State offered in evidence the search warrant that authorized the search, and the trial court, over the objections of counsel for the defendant ad-, mitted the same in evidence. This constituted error. The State had a good case, but by inattention to the uniform holdings of this court from its beginning,' brought about fundamental error that requires the reversal of the conviction. We shall not go into a dissertation of the reason why this is so, but shall refer to a few. cases that may be consulted where this mat-, ter has been previously treated. Wiese v. State, 32 Okl.Cr. 203, 240 P. 1075; Lucas v. State, 56 Okl.Cr. 413, 41 P.2d 131;, Wallace v. State, 89 Okl.Cr. 365, 208 P.2d 190; Savalier v. State, 85 Okl.Cr. 87, 185 P.2d 476; Robbins v. State, 93 Okl.Cr. 363, 228 P.2d 663; Wagner v. State, 68 Okl.Cr. 447, 99 P.2d 161; Edwards v. State, 90 Okl.Cr. 211, 212 P.2d 150; Berg v. State, Okl.Cr., 262 P.2d 913, 915.

The defendant did not testify and his, character was not placed in issue. The: recitals in the search warrant were as to , the essence of the offense charged.

It goes without saying that no mat- ' ter how guilty an accused may be, he is entitled to a fair trial. And as we pointed ' out in Berg v. State, supra:

“In an early case this court said that a person accused of crime is entitled to a fair and impartial trial, conducted • according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted .at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.”

The’case is reversed and remanded.

JOiNES and BRETT, JJ., concur.

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Bluebook (online)

1954 OK CR 143, 276 P.2d 941, 1954 Okla. Crim. App. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-state-oklacrimapp-1954.

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