FITZGERALD v. STATE

FITZGERALD v. STATE
1953 OK CR 57
256 P.2d 479
97 Okl.Cr. 7
Case Number: A-11750
Decided: 04/15/1953
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Intoxicating Liquors Search Warrant May Be Issued on Filing of Affidavit by Public Officer. A magistrate may issue a search warrant on filing of affidavit by public officer stating positive knowledge that particularly described place, owned by named person, is place of public resort, that intoxicating liquor is stored and sold on such premises in violation of law, and that people congregate at such place to drink and purchase liquors in violation of law.

2. Same Affidavit for Search Warrant Held not Based on Information and Belief. The affidavit for search warrant was not based on information and belief.

3. Same Contention of Defendant He Should Be Acquitted Because Officer Failed to Report All of Whiskey Seized not Sustained. The contention of defendant that he should be acquitted because of the dereliction of the officer in not reporting, on his return made in connection with the service of the warrant, all of the whiskey seized by search of defendant's premises, would not be sustained.

Appeal from County Court, Beckham County; R.L. Minton, Judge.

Raymond Fitzgerald was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Orval Grim, Sayre, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES, J.

This prosecution against the defendant Raymond Fitzgerald was commenced in the county court of Beckham county and is a companion case to the case of Fitzgerald v. State, No. A-11748, 97 Okla. Cr. ___, 256 P.2d 477. By agreement, the case was tried to the court without a jury on the same day the other case was tried and the appeal was lodged herein at the same time.

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On appeal, the same two propositions are presented as were presented in the case of Fitzgerald v. State, No. A-11748, supra. Only one brief was filed for both cases. The affidavit for the search warrant was identical in wording to that we discussed in the former case, and our conclusions in that case will apply with equal force to the contentions herein made. We find no errors in the record which would authorize or justify a reversal of the conviction.

The judgment and sentence of the county court of Beckham county is accordingly affirmed.

POWELL, P.J., and BRETT, J., concur.