BREWER v. STATE

BREWER v. STATE
1953 OK CR 61
256 P.2d 1117
96 Okl.Cr. 377
Case Number: A-11755
Decided: 04/29/1953
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Searches and Seizures Requisite Statement of Facts in Affidavit for Search Warrant. An affidavit for search warrant should not be based upon information and belief but should state facts upon which the same is based, but when facts are stated in the affidavit that are positive and by one who has the right to know the facts, it is sufficient ground for magistrate to issue the warrant.

2. Same Whole Affidavit to Be Considered in Construction not too Technical. In construing the affidavit as a basis for the issuance of a search warrant, the whole affidavit should be considered, and while the affidavit and search warrant should be strictly construed, a technical construction should not be placed thereon which destroys the true meaning.

3. Same Sufficiency of Affidavit for Search Warrant to Comply With Statutory Provisions. Affidavit for search warrant not purporting to be based on information and belief but containing allegations in definite and specific language containing the name of person whose premises were to be searched and exact location of the premises wherein it was claimed that intoxicating liquors were being kept, stored and concealed, was sufficient to comply with statutory provisions. 37 O.S. 1951 §§ 87 [37-87], 88 [37-88].

4. Same Sufficiency of Evidence to Sustain Finding on Disputed Questions of Fact on Hearing on Motion to Suppress Evidence. The finding of trial court on disputed questions of fact at a hearing on motion to suppress evidence will be sustained where there was competent evidence in the record to support the court's finding.

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

Clyde Brewer was convicted for 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.

The defendant, Clyde Brewer, was charged by an information filed in the county court of Beckham county with the unlawful 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 $150.

The same questions are presented by this appeal as were considered by the court in the case against this identical individual which was decided April 1, 1953. Brewer v. State, 96 Okla. Cr. ___, 255 P.2d 954. The attack was made upon the affidavit for the search warrant and also it was contended that the warrant described premises occupied by more than one family and was therefore a blanket search warrant. The affidavits which formed the basis for the issuance of the search warrants in Brewer v. State, supra, and in this case were identical and our opinion in the above case will control the disposition of this case. Furthermore, the contention that the premises described in the warrant covered the family dwellings of more than one family was based upon substantially the same evidence that was introduced in Brewer v. State, supra. In that case we held that the trial court's finding on a disputed question of fact at a hearing on a motion to suppress evidence will be sustained where there was competent evidence in the record to support the court's finding.

Page 378

We find no substantial errors in this record and in accordance with the opinion in the Brewer v. State case cited above, the judgment and sentence of the county court of Beckham county is affirmed.

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