Juhl v. State

DAVENPORT, P. J. The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, to wit, choctaw beer, with the unlawful, willful, and wrongful intent to barter, sell, give away, and otherwise furnish the same to others, and was sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days. Prom which judgment the defendant has appealed. Before the trial began the defendant appeared by his attorney and filed a motion to suppress the evidence obtained by the state by a search of the premises at 2427 West G. street, Oklahoma City, Okla., on the 5th day of August, 1929, for the reason that the building searched was used for no purpose other than a homestead, and was not used for a business property or for business purposes. Second, that the officers had no' legal search warrant to search the property they did search, and the property seized was in violation of the lega|l and constitutional rights of the defendant. Testimony was taken upon the motion to suppress, and the testimony disclosed that the affidavit for the search warrant and the search warrant did not describe the home of the defendant which the officers searched. The testimony shows that the defendant, with his family, lived at 2427 West G., which was not described in the affidavit or the search warrant. *141 ’ Tbe defendant, bas assigned several errors alleged to bave been committed by tbe trial court. Assignment No. 3 is: “Because tbe court erred in overruling tbe defendant’s motion to suppress tbe evidence.” Section 7012, O. O. S. 1921, provides: “No sucb warrant shall issue but upon probable cause, supported by oatb or affirmation describing as particularly as may be tbe place to be searched, and tbe person or thing to be seized.” This section refers to tbe issuing of search warrants. Tbe general rule is that search warrants are to be strictly construed and tbe place to be searched is limited to tbe place described therein. Section 7013, C. O. S. 1921, is as follows: “No warrant shall be issued to search a private residence, occupied as sucb, unless it, or some part of it, is used as a store, shop, hotel, boarding bouse, or place for storage, or unless such residence is a place of public resort.” In Miller et al. v. State, 34 Okla. Cr. 103, 245 Pac. 68, it is said, it is evident that it was tbe intention of tbe framers of tbe Constitution and tbe lawmakers to limit tbe right of search to places and premises where tbe proper affidavit showing probable cause was filled, particularly describing the premises to be searched. This court bas repeatedly held that tbe description in tbe affidavit and search warrant must particularly describe tbe place to be searched and tbe thing to be seized. Neither tbe affidavit nor search warrant in this case is sufficient to warrant a search of tbe defendant’s residence, as they do not describe tbe residence of tbe defendant with that particularity required by tbe statute; in fact, neither tbe affidavit nor tbe search warrant describes tbe residence of the defend *142 ant. Tbe motion of tbe defendant to suppress tbe evi-! dence offered by tbe state was well taken and should have ¡ been sustained. Tbe testimony secured by tbe illegal ’ search and seizure was inadmissible. There are other errors assigned by tbe defendant which possess merit, but in tbe view we take of this record it is not necessary to consider them. There being no competent testimony to' sustain the judgment, tbe case is reversed. . CHAPPELL and EDWARDS, JJ., concur.