Glass v State

Glass v State
1927 OK CR 177
258 P. 286
37 Okl.Cr. 303
Decided: 07/16/1927
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Statutory Provisions. Under the statute (section 7013, C.S. 1921), a private residence is immune from search and seizure, unless a showing is made by affidavit that such residence, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.

2. Intoxicating Liquors Unlawful Possession Conviction not Sustained. In a prosecution for unlawful possession of intoxicating liquor, evidence held insufficient to sustain a conviction.

Page 304

Appeal from County Court, Hughes County; Owen H. Rives, Judge.

Marshall Glass was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed.

Anglin & Stevenson, for plaintiff in error.

Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, P.J. Plaintiff in error was convicted on a charge that he did unlawfully have in his possession a quantity of intoxicating liquor, to wit, whisky, and in accordance with the verdict of the jury he was sentenced to pay a fine of $50, and to confinement in the county jail for 30 days. To reverse the judgment he appeals.

The first error assigned for reversal is the admission of evidence procured under a search warrant issued upon an affidavit which was not sufficient to give the justice of the peace jurisdiction to issue.

The record sustains this assignment. By numerous decisions of this court it is held that liquor obtained by a search of defendant's premises under a search warrant issued without authority of law for the sole purpose of obtaining evidence against him in violation of the Bill of Rights, § 30, guaranteeing security of the people in their right to be exempt in their persons, houses, papers, and effects from unreasonable searches and seizure, is inadmissible against him. Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Cudjo v. State, 34 Okla. Cr. 199, 245 P. 906.