Barnes v State

Barnes v State
1935 OK CR 16
41 P.2d 126
56 Okl.Cr. 402
Decided: 02/08/1935
Oklahoma Court of Criminal Appeals

(Syllabus.)

Trial - Admission of Ex Parte Statement in Affidavit for Search Warrant as Primary Evidence Held Reversible Error.

Appeal from County Court, Blaine County; H.D. Winkler, Judge.

Mrs. V.L. Barnes was convicted of the crime of destroying evidence, and she appeals. Reversed.

Page 403

J.O. Whiteside, for plaintiff in error.

J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Ted R. Fisher, Co. Atty., for the State.

DAVENPORT, P.J. The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Blaine county of the crime of destroying evidence, and was sentenced to pay a fine of $50 and cost.

The condition we find this record in, it is only necessary to consider one question, that is, the question of the introduction as primary evidence of the affidavit for the search warrant; when the state offered the affidavit for the search warrant as State Exhibit A, the defendant objected to the same on the ground that it was incompetent, irrelevant, and immaterial; the affidavit was not in sufficient form to authorize the issuance of the search warrant, which objection of the defendant was overruled and exceptions duly saved.

This court has repeatedly held that it is error for the state to introduce the affidavit for the search warrant as primary evidence. Williams v. State, 34 Okla. Cr. 359, 246 P. 895; Weeks v. State, 41 Okla. Cr. 95, 270 P. 858; Ford v. State, 45 Okla. Cr. 161, 282 P. 370.