Ray v. State

1929 OK CR 122, 276 P. 785, 43 Okla. Crim. 1, 1929 Okla. Crim. App. LEXIS 182

• Court: Court of Criminal Appeals of Oklahoma
• Decided: April 6, 1929
• Docket: No. A-6684.
• Status: Published

Opinions

CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county on a charge of having possession of whisky with intent to> barter, sell, give away, and otherwise furnish the same to other persons contrary to law, and was sentenced to' pay a fine of $200 and to be imprisoned in the county jail for 30 days. Motion for new trial was filed and overruled and exceptions saved, and the case appealed to this court.-

When the state offered the evidence procured under the search warrant, the defendant objected on the ground that the affidavit was based on information and belief. This objection was overruled by the court, the evidence admitted, and defendant now urges error in admitting this evidence, claiming the affidavit was insufficient to warrant the issuance of the search warrant.

The burden of proving the invalidity of the search rested on the defendant and not on the state. The trial court permitted the defendant to cross-examine the witness who made the affidavit for the search warrant as to his knowledge and information upon which the affidavit was based, although the affidavit on its face purported to be sworn to as to' some allegations on personal knowledge and as to others on information on facts therein stated, and the affidavit was positively sworn to.

In the case of Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451, this court held:

“The sufficiency in form, or substance of the affidavit for search warrant and the search warrant itself may be challenged by a motion to suppress, evidence or by an objection to the admission of evidence. Such challenge is to be determined by the trial court. It is never a question for the jury. The purpose of the verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to' determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial func■tion. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant”—the court also citing Alvey v. Commonwealth, 199 Ky. 655, 251 S. W. 856; Bowen v. Commonwealth, 199 Ky. 400, 251 S. W. 625; State v. English, 71 Mont. 343, 229 Pac. 727; People v. Haas, 79 Mich. 449, 44 N. W. 928; Potter et al. v. Barry, 156 Mich. 183, 120 N. W. 586, in support of this decision.

In Dolan v. Commonwealth, 203 Ky. 400, 262 S. W. 574, it was said:

“* * * It is the rule in this state that if the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information, or the means by which it was obtained. * *

The sufficiency of the affidavit in this case must therefore be tested from the affidavit itself and not by reason of any extraneous testimony of the person sworn. It was] improper for the court to permit the defendant to cross-examine Hill, who made the affidavit for the search warrant.

In the case of Baker v. State, 28 Okla. Cr. 408, 231 Pac. 320, this court said:

“There are three forms of affidavits for search warrants more or less prevalent.

“(1) Affidavits on mere information or belief.

“(2) Affidavits importing positive knowledge of the possession of the instruments or things used or obtained! in violating the law.

“(3) Affidavits setting out facts showing probable cause for a belief that the law has been violated by the accused and facts showing probable cause for believing that the accused is in possession of the instruments used in its violation or of the products of its violation.

“Method numbered 1 is always bad. Method numbered 2 may be employed where the affiant can truthfully state of his own personal knowledge that the law has been violated and that the accused is in possession of the physical evidence demonstrating that fact. Method numbered 3 is sufficient in every case, and is therefore the safer method.”

In the body of the opinion this court says:

“The affiant should swear to facts showing probable cause for his belief. That does not mean that the affiant must know absolutely that the person is a thief, or has liquor in his possession, or is guilty of some other offense. To make an affidavit based on positive knowledge of guilt would in many instances be impossible, but the affidavit should state facts upon which the belief is founded. The records of this court have demonstrated, over and over again, that most sheriffs and peace officers (also some county attorneys) do not comprehend the true purpose and requisite features of an affidavit for a search warrant. To obviate this misconception we make these further explanations: In every instance the affidavit should state some fact or facts showing probable cause, as a basis or foundation for an affiant’s belief.”

In the case of Reutlinger v. State, 29 Okla. Cr. 290, 234 Pac. 224, this court says:

“The finding of probable cause, as well as the issuing of the search warrant is a judicial function to be exercised by the magistrate alone, upon the sufficiency of the facts stated in the affidavit, which should have the force and effect of evidence, as distinguished from the mere conclusions of the affiant.”

The function of the search and seizure proceeding is to aid the proper officers in procuring evidence to be used by the state in prosecuting the defendant, which evidence could not be secured without the aid of a search warrant. Being a preliminary proceeding to the main case, it is only necessary that the affidavit should show probable cause as in a preliminary hearing. The same degree of proof not being required in a preliminary hearing, as in a trial, so the same degree of proof should not be required in procuring a search warrant as would be required in securing a conviction in a trial. Tested by the authorities cited in this opinion, the affidavit was sufficient to authorize the issuance of a search warrant, and the evidence obtained by means of the search was properly admitted.

The defendant for his second ground of error challenged the authority of the justice of the peace to issue the search warrant in this case. In the case of Ex parte Hand, 13 Okla. Cr. 614, 166 Pac. 449, this court held:

“A person in undisputed possession of the office of justice of the peace and exercising the functions properly belonging thereto under color of title to such office is a de facto justice of the peace and his official acts are binding on the public and third persons.”

In the case of White v. State, 23 Okla. Cr. 206, 214 Pac. 205, in the body of the opinion, this court says:

“It has often been held that there is a presumption that a public officer did his duty and that statutory and constitutional modes of procedure have been followed.” Hess v. State, 9 Okla. Cr. 516, 132 Pac. 505; Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314.”

This court will not resort to the doctrine of judicial notice as to minor district officers, such as justices of the peace, appointed under section 3420, C. O. S. 1921, except where it is necessary to do so in order to properly and correctly determine the controversy. It is a sufficient answer to defendant’s objection to say that the justice of the peace was in possession of the office, assuming to act under color of title, and his acts, therefore, were not subject to collateral attack.

The evidence being sufficient to sustain the conviction, and the errors of law complained of being found to be without merit, the cause is affirmed.

EDWARDS, P. J., concurs.