Laub v. State

EDWARDS, P. J., The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Canadian county on a charge of having the unlawful possession of whisky. By a search of the residence of defendants a small quantity of whisky was found in a fruit jar. Andrew Laub, Sr., was sentenced to pay a fine of $400 and to serve 90 days in the county jail, and Andrew Laub, Jr., was sentenced to pay a fine of $100 and to serve 80 days in the county jail. There is but one material question in this case. That is, whether legal process may be served on Sunday. The affidavit for a search warrant was filed with the county judge on Sunday, the search warrant was issued on Sunday, and the search warrant was served and the search made on Sunday. The defendants moved to quash and suppress the warrant and the evidence obtained thereunder, and objected to the introduction of evidence for this reason. There is considerable conflict in the authorities as to what judicial and ministerial acts may be done on Sunday. The observance of the Sabbath is commanded by the Old Testament. In 321 A. D., Constantine the Great passed an edict fixing Sunday as a day of rest. 37 Cyc. 540, II A. In the textbooks and cases on the subject, it is *173 said that from the beginning of the Christian era the courts sat on Sunday. * * That the ancient Christians practiced this for two reasons: One was in opposition of the heathen who Avere superstitious about the observation of days and times, conceiving some to be ominous and unlucky and others lucky, and that therefore the Christians laid aside all observance of days. That a second reason they had was that by keeping their own courts always open they prevented Christian suitors from resorting to heathen courts. In the year 517 A. D., by a canon of the church Sunday was made a non juridical day. This canon was adopted as law by the Saxon Kings of England and later confirmed by William the Conqueror and Henry II, and thus became recognized and established to be common law. * * So that under the common law it is held that judicial acts done on Sunday are void. 25 R. C. L. p. 1444, § 43; Moss v. State, 131 Tenn. 94, 173 S. W. 859. This case is copiously annotated in Ann. Cas. 1916B, 1. The decisions under the Sunday laws of the different states are not in accord. It is generally held that judicial acts performed ■■'n Sunday are void, but those of a ministerial character, unless in conflict with some statute, are valid. In England the service of writs on Sunday are expressly prohibited by Act 29, Charles II, c. 7. In some of the states the service of process on Sunday is forbidden, and where so forbidden, service is invalid. City of St. Paul v. Robinson, 129 Minn. 383, 152 N. W. 777, Ann. Cas. 1916E, 845. See notes, Ann. Cas. 1916E, 845. This state forbids the service of process on Sunday, with certain exceptions. Section 1827, Comp. St. 1921, is: “All service of legal process of any description whatever, upon the first day of the week, is prohibited, except in cases of breach of the peace, or apprehended breach of *174 the peace, or when sued out for the apprehension of a person charged with crime, or except where such service shall be specially authorized by law.” The term “legal process,” as used in the above statute, is very comprehensive. As the term is used in reference to the criminal law, it includes all writs, warrants, summons, and orders of courts of justice or judicial officers issued in the course of judicial proceedings. 21 R. C. L. p. 1261; 32 Cyc. 419f. A search warrant is defined by section 2876, Comp. St., as: “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.” It is a legal process. McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307; Sloan v. State, 45 Okla. Cr. 228, 282 Pac. 898. It will be seen from section 1827, supra, that there are three exceptions under which it is legal to serve process on 'Sunday. First, in case of breach or apprehended breach of the peace; second, when issued for the apprehension of a person charged with a crime; third, when the service is specially authorized by law. There are some instances where process is specially authorized to be served on Sunday, as, for instance, the writ of ha-beas corpus by section 442, Comp. St. 1821. The process of search warrant does not fall under the second exception, as it is not for the apprehension of a person charged with crime. If the service of the process in this case on Sunday can be justified, it must fall under the first exception above named. That is, where it is issued to prevent a breach or apprehended breach of the peace. A search warrant may in some instances be an appropriate process to prevent a breach or apprehended breach of the *175 peace. In such case it may be served legally on Sunday. Where it is sought to act under this exception to section 1827, supra, and to justify the service of process on Sunday, the better practice is to set out in the affidavit or application to procure the process, facts bringing it within the exception. This, however, would not be essential in all cases, as process coming into the hands of an officer on a juridical day might be served legally on Sunday if the exception existed. Where process is challenged because of service on Sunday, the justification should show that it falls within the statutory exception. Under the facts disclosed by the record in this case, nothing is shown, either at the time of procuring the process on a Sunday or when the same was challenged by motion to quash and suppress, to bring the service of the process within the exceptions named by the statute; but, to the contrary, the record discloses that the officer who' made the affidavit and procured the search warrant did so without apprehending or having any reason to apprehend a breach of the peace. Officers of the law should not permit their zeal to override the plain provision of the law. The process could have been procured and served just as effectively on a day other than Sunday. Nothing being shown to bring the service of this process within the exceptions of the statute, but it clearly appearing that the service on Sunday was not within the exceptions, it was invalid and the motion to suppress should have been sustained. The case is reversed. DAVENPORT, J., concurs.