Relf v. State , 35 Okla. Crim. 234 ( 1926 )

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having illegal possession of intoxicating liquor, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 30 days.

The only assignment of error in the brief of defendant is that the trial court permitted the introduction of evidence obtained by an illegal search. This objection was presented by a motion to suppress evidence before the trial and the objection made in the course of the trial. It is not contested by the state by any brief.

The evidence is that certain officers searched the residence of the defendant, occupied with his family, and found two quarts of whisky. They were acting upon a search warrant based upon an affidavit made on information and belief, and which fails to conform to the requirements of section 7013, Comp. Stat. 1921, which provides no warrant shall be issued to search a private residence occupied as such unless it or some part of it is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort. An affidavit wholly failing to conform to the requirements of the law affords no sufficient basis for the issuing of a search warrant. The motion to suppress evidence should have been sustained.

The case is reversed and remanded.