McCann v State

McCann v State
1948 OK CR 106
198 P.2d 1010
87 Okl.Cr. 444
Decided: 10/27/1948
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Intoxicating Liquors-Necessary Showing for Right to Search Private Residence. If one uses his home as a place of storage of intoxicating liquors, which are stored with the intention of violating the liquor laws of the state, or if the home is used for permitting persons to come to the home to purchase

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liquor, either to be consumed on the premises, or to be carried away, it then becomes a "place of public resort" within meaning of statute providing that no warrant shall be issued to search a private residence unless it is used as a store, shop, hotel, boarding house, or place of storage, or is a "place of public resort."37 0. S. 1941 § 88.

2. Searches and Seizures Sufficiency of Affidavit for Search Warrant to Justify Issuance of Warrant. Where search of private. residence is sought to be made, sufficient evidentiary facts must be set forth in affidavit to show that residence is a place of public resort and there further must be sufficient facts set forth in the affidavit to justify the magistrate who issues the warrant in making a finding of probable cause for issuance of a warrant based on the affidavit.

3. Same-Held, Affidavit Sufficient to Authorize Magistrate to Issue Search Warrant. Record examined, and affidavit for search warrant held sufficient to authorize magistrate to issue warrant for search of premises of accused and legality of search is sustained.

Appeal from Court of Common Pleas, Oklahoma County.

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

Lee Williams of Oklahoma City, for plaintiff in error.

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

JONES1 J. The defendant, Virgil Pinkston MeCann, 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.

It is contended that the court erred in overruling the motion to suppress evidence.

At the time the motion to suppress evidence was presented, Jack Caldwell, a police officer of Oklahoma

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City, was called as a witness by the defendant. He testified that he was the officer who signed the affidavit to procure the search warrant and that he served the warrant the next day after it was issued; that he went to the place described in the warrant, but found no one there; that the door was unlocked, so he tacked the warrant to the door, looked inside of the room and found 42 pints of whisky.

He further testified:

"Q. Did you know who, of your own knowledge, who lived there in that room? A. Yes, Sir. Q. Who? A. Virgil McCann."

Counsel then sought to question the officer as to the source of his information for the positive statements set forth in the affidavit, but the trial court correctly sustained objections to such examination.

The affidavit and warrant were introduced in evidence.

The defendant also testified at the hearing on the motion to suppress evidence that the whisky seized by the officers belonged to him, and that shortly after the raid he went to the police station and paid a $20 fine; that he later served five months in the county jail and thought that he was cleaning up all of his old liquor cases when that was done. However, on cross-examination, he admitted that he had not served any time in jail or disposed of the charge involving the specific liquor in question. The defendant contended that the whisky was his for his own personal use and not for sale, but to offset this, the county attorney introduced in evidence the record of 24 prior convictions sustained by the accused for violations of the liquor law.

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It is contended that the affidavit for the search warrant was insufficient to justify the issuance of the warrant for the reason that it failed to allege that the premises in question were occupied by Virgil McCann as a private residence.