Thomas v State

Thomas v State
1941 OK CR 71
113 P.2d 609
72 Okl.Cr. 118
Decided: 05/14/1941
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Searches and Seizures-Requisite Affidavit and Warrant for Search of Private Residence. Before a private residence may be searched it is necessary that a search warrant be secured, and the affidavit upon which the warrant is based should state that it is "used as a store, shop, hotel, boarding house, or place for storage, or * * * a place of public resort." Oklahoma Statutes 1931, section 2639, O. S. A. title 37, sec. 88.

2. Intoxicating Liquors-Necessary to Prove Unlawful Intent Where Less Than Quart of Liquor Found by Search of Residence. Where a search is made of a private residence and less than one quart of liquor was found, there is no prima facie intent to "convey, sell or otherwise dispose of such liquors" by reason of the possession thereof, and it is necessary for the state to prove an intent to convey, sell, or otherwise dispose of the same by the defendant.

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

Napoleon Thomas was convicted of the crime of unlawful possession of intoxicating liquor, and he appeals. Reversed and defendant discharged.

Bruce & Rowan, of Oklahoma City, for defendant.

Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State

BAREFOOT, P. J. Defendant, Napoleon Thomas, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating

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liquor, to wit: one-half gallon of nontax-paid liquor; was tried by the court after having waived a jury, found guilty, and his punishment assessed at a fine of $50 and a term of 30 days in the county jail, and has appealed.

The charge against this defendant was the outgrowth of a search of his home without a search warrant. On the early morning of July 30, 1939, two deputy sheriffs of Oklahoma county were sent by the sheriff's office to 608 Wisconsin avenue, Oklahoma City, to investigate some disturbance. On arriving there the officers observed through the windows several Negroes engaged in a crap game. They entered the house and arrested four of the participants in the game and seized the money that was on the table, which amounted to about 18 cents. The defendant was not in the game, but was asleep in an adjoining room. He was awakened by the officers who stated that they saw the defendant take a half-gallon jar from the icebox and empty a part of its contents into the stove. They recovered a part of it, about a half pint, and pronounced it corn whisky. They delivered this to the sheriff and it was introduced in evidence. The officers were unable to testify as to the amount of liquor in the jar. They at no time had a search warrant for the purpose of searching the premises. There was no proof that the place had the reputation of being a place where intoxicating liquors were kept or sold or that it was "used as a store, shop, hotel, boarding house, or place for storage, or * * * a place of public resort." Oklahoma Statutes 1931, sec. 2639, O. S. A., title 37, sec. 88.

The defendant testified that the place where he was arrested was his home and that he lived there with his wife. He was arrested and taken to jail with the other parties who were engaged in the crap game, and he further testified that he did not know what charges were to be

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preferred against him. He denied any knowledge of the liquor.

The officers had the right to arrest the parties whom they saw participating in the crap game, but the defendant was in an adjoining room asleep, according to their testimony. We hardly think that the evidence in this case is strong enough to sustain the charges preferred. The amount of liquor was less than one quart, and this, of course, would not constitute prima facie evidence of defendant's intent to violate the law. Where the amount of liquor seized was less than one quart, it was necessary for the state to prove intent to violate the law on the part of the defendant. Oklahoma Session Laws 1933, chapter 153, sec. 3, O. S. A. title 37, section 82; Thomas v. State, 70 Okla. Cr. 404, 106 P.2d 836; Knighton v. State, 64 Okla. Cr. 322, 79 P.2d 1030; Barksdale v. State, 34 Okla. Cr. 91, 244 P. 828; Byers v. State, 46 Okla. Cr. 358, 287 P. 1075; Reed v. State, 24 Okla. Cr. 305, 217 P. 1058; Haltom v. State, 58 Okla. Cr. 117, 50 P.2d 744.