Denmark v. State , 71 Okla. Crim. 424 ( 1941 )

Motion for rehearing in this case calls our attention to the fact that there was a stipulation on file signed by the assistant county attorney of Oklahoma county, attorney for defendant, and the judge of the court of common pleas, whereby it was agreed and understood that the court would consider the evidence taken on the motion to suppress the evidence as if the same had been submitted on the trial of the case, and that the original affidavit and search warrant would be made a part of the record and considered by the court in the final hearing of the same. This stipulation and the search warrant were not attached to the case-made, but will now be considered as a part of the record.

It is contended that the decision in the case at bar is in conflict with the former decision of this court rendered on the 18th day of December, 1940 (Denmark v. State, 71 Okla. Cr. 95,108 P.2d 550, 551), against this same defendant, and in which the identical premises were searched, and in which case the judgment and sentence of the court of common pleas of Oklahoma county was reversed.

We have carefully examined the record in both cases and find that the facts are materially different. In the first case the intoxicating liquor was not found in or about the building occupied by defendant, but was found by the officers in an abandoned automobile and also under the steps of a building separate and apart from the premises occupied by defendant and one to which the public had access; that the defendant was not present at the time the liquor was found and made no statement in reference thereto. There was no evidence to show his actual possession of the intoxicating liquor.

In the instant case he was present at the time the search of the premises was made and made statements to the officers which were practically an admission that the liquor found in the basement belonged to him. We have examined the search warrant, and it describes the place to be searched as follows: "A two story frame building and all out-buildings located in the rear of 113 Northeast 10th Street Oklahoma City, Oklahoma County, Oklahoma."

The liquor was found in the basement and a part of the premises above described. It runs in the name of John Doe. As in the former case, we do not think it is the best practice for officers to place the name of John Doe or any other fictitious name in search warrants where the name of the party to be searched is known to the officers, and this practice is condemned, but as stated in the former opinion: "We are not saying that this, within itself, would be reversible error".

The officers testified that the defendant occupied the premises as described in the search warrant. The liquor was found in the basement, and the statements made by defendant to the officers were amply sufficient for the court to find that the intoxicating liquor was in his possession.

We are of the opinion the petition for rehearing should be denied.

JONES, J., concurs. DOYLE, J., absent.