McCann v State

McCann v State
1948 OK CR 93
198 P.2d 436
87 Okl.Cr. 387
Decided: 10/06/1948
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Searches and Seizures-Name of Person to Be Searched Essential in Search Warrant. A search warrant issued for purpose of searching a person should particularly describe the person, and his name, if known, should be stated in the warrant

2. Same-Description of Person and Place in Search Warrant. Where real property is to be searched, the place to be searched should be particularly described in affidavit and search warrant, and, though not absolutely essential if the place is particularly described, name of owner should be set out, or, if unknown, he should be so described.

3. Same-Trial--Overruling Motion to Suppress Evidence not Error. The overruling of motion to suppress evidence obtained under search warrant was not error, notwithstanding that warrant was issued in the name of John Doe, where there is no evidence to show that policeman who executed affidavit for search warrant knew that defendant was the person occupying the premises described In the affidavit.

Appeal from Court of Common Pleas, Oklahoma County; Carl Traub, Judge.

Virgil Pinkston McCann was convicted of illegal possession of intoxicating liquor, and he appeals. Affirmed.

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Lee Williams, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for defendant in error.

JONES, J. The defendant, Virgil Pinkston McCann, was charged in the court of common pleas of Oklahoma county with the illegal possession of intoxicating liquor; a jury was waived, the defendant was tried, found guilty and sentenced to serve 30 days in the county jail, and pay a fine of $300, and has appealed.

The single proposition presented by the appeal is that the court erred in overruling the motion to suppress evidence.

The affidavit for search warrant and the warrant used by the police officer in making a search of the premises described by the search warrant were introduced in evidence. The premises as described in the search warrant were as follows:

"A parking lot and all buildings, located at 127 N.W. 5th Street, in Oklahoma City, Oklahoma."

The search warrant is what is commonly known as a John Doe warrant and recites that "John Doe, whose more full, true and correct name is not known, etc., occupied the premises." Counsel contend that the defendant was known to the policeman making the affidavit for the warrant, and where the name of owner or occupant of the premises to be searched is known, it is essential to the particular description of the premises to set forth his name in the affidavit and warrant. Mason v. Statel 63 Okla. Cr. 153, 73 P.2d 468.

The affidavit was executed by Ray Peddicord, a policeman of Oklahoma City. He was not called as a

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witness on the motion to suppress evidence. There is nothing in the record to indicate that he knew that the defendant was the person who had charge of the premises described in the warrant. There is a distinction in the decided cases between those cases where a warrant is issued for the search of property and for the search of a person.

In Chronister v. State, 73 Okla. Cr. 367, 121 P.2d 616, this court held: