Laub v. State , 49 Okla. Crim. 171 ( 1930 )

I cannot agree with the majority opinion in this case. The court has gone back into the dark ages and appealed to a canon of the Catholic Church as a basis which would justify the holding that a search warrant could not be served on Sunday. Protestant Churches have not subscribed to any such doctrine and have never taught that criminals could not be arrested or restrained for violation of law on Sunday. Many authorities in the United States are to the contrary.

In the case of United States v. Harbin (D.C.) 27 F.2d 892, page 893, it is said:

"Search warrants, like warrants of arrest, are processes for emergencies, which should not be crippled in effectiveness by ancient Sabbatarian learning as to Sunday being a nonjuridical day. They are expressly hedged about by various restrictions, which should not be extended by implication. The delay of a day would often be fatal to effectiveness and afford immunity, smacking somewhat of the antiquated right of sanctuary, for the criminal."

In Cornelius on Search and Seizure, p. 365, § 144, the rule is stated:

"As a general rule, official acts relating to process in criminal cases may be performed on Sunday or on legal holidays, but no cases have been found which hold that the service of a search warrant could not be made either on Sunday or on a legal holiday unless prohibited by statute," citing authorities from Alabama, Connecticut, Idaho, Massachusetts, Ohio, Pennsylvania, Texas, and Vermont.

Thus it will be seen that many authorities in the United States hold the service of process on Sunday legal, unless expressly forbidden by statute.

Section 1827, C.O.S. 1921, provides:

"All service of legal process of any description whatever, upon the first day of the week, is prohibited, except in cases of breach of the peace, or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service shall be specially authorized by law."

I agree with the majority opinion that process cannot be served on Sunday in Oklahoma, unless it falls within the exceptions set forth in section 1827, supra, but contend that the facts in the case at bar bring it squarely within the exception of "apprehended breach of the peace." Under the provisions of this statute a search warrant may be legally served where a breach of the peace is apprehended.

In the case of People v. Kramer, 225 Mich. 35, 195 N.W. 802, 803, the court had under consideration the legality of the service of a search warrant on Sunday, and used the following language:

"`Now, what is understood by "a breach of the peace?" By "peace," as used in the law in this connection, is meant the tranquility enjoyed by the citizens of a municipality or community where good order reigns among its members. It is the natural right of all persons in political society, and any intentional violation of that right is "a breach of the peace." It is the offense of disturbing the public peace, or a violation of public order or public decorum. Actual personal violence is not an essential element in the offense. If it were, communities might be kept in a constant state of turmoil, fear and anticipated danger from the wicked language and conduct of a guilty party, not only destructive of the peace of the citizens but of public morals, without the commission of the offense. The good sense and morality of the law forbid such a construction.' Here, however, the language is to `preserve the peace.' Measures taken to prevent the unlawful traffic in intoxicating liquors are clearly measures taken to preserve the peace of the community; they prevent lawlessness and intoxication, and tend to the establishment of law and order."

The unlawful possession, transporting, or sale of intoxicating liquor is a breach of the peace within the meaning of section 1827, supra. Where officers possess information which would cause an ordinarily prudent person to act upon the belief that a breach of the peace was about to occur, a search warrant may legally issue and service on Sunday would be legal. If this were not true, then Sunday would be an open day for the bootlegger, who would ply his trade with impunity, resting secure in the knowledge that the state was impotent to interfere with his unlawful business by searching his premises on that day.

In the case at bar the record discloses that a wolf hunt was being conducted from the home and farm of the defendants, and a crowd of people gathered there on Sunday afternoon evidently for the purpose of drinking and carousing. To say that the officers were impotent in such case is to overrule the authority of the law and render its enforcement impossible on Sunday.

I cannot agree with the majority opinion for the further reason that such service is authorized by sections 2880 and 2881, C.O.S. 1921, and thus falls within the final exception of section 1827, supra.

Chapter 7, article 19, C.O.S. 1921 (sections 2876-2896), provides generally for the issuance and service of search warrants and when considered with sections 7009, 7010, C.O.S. 1921, constitute the code regulating the issuance and service of search warrants.

Section 2881, among other things, provides:

"You are therefore commanded * * * to make immediate search."

Webster defines "immediate" as instant; present; without intervention of time. The word "immediate" is defined by Worcester as meaning having nothing intervening, either as to place, time, or action. The word "immediately" means instantly; directly; without delay; forthwith; just now.

In Bailey v. Commonwealth, 74 Ky. (11 Bush) 688, 691, the court said:

"`Immediate' is not a technical word, and we do not find that it has acquired a peculiar meaning in the law differing from its common and approved popular signification."

No statute prohibits the issuance of process on Sunday. Since there is authority for the issuance of search warrants on Sunday, and since section 2881 provides for immediate service thereof, such process is not forbidden by section 1827, supra, and the issuance and service thereof would therefore be legal.

In the majority opinion the court says:

"The process could have been procured and served just as effectively on a day other than Sunday."

The business of handling intoxicating liquor must be and is carried on surreptitiously, and is of such a nature that any delay in the service of process would defeat the very purpose for which such process should be issued. In the case at bar the crowd had gathered and the intoxicating liquor was there ready to be consumed. To state the facts is to refute the argument of the court that service might have been effectively had on the next day.

As was said by Judge Holmes in United States v. Harbin, supra:

"The delay of a day would often be fatal to effectiveness and afford immunity, smacking somewhat of the antiquated right of sanctuary, for the criminal."

I cannot agree with the majority opinion for another reason. In paragraph 3 of the syllabus the court says:

"Where the service of process is challenged because of service on Sunday, it will be held invalid unless it is shown in justification for such service that it falls within one of the exceptions of section 1827, Comp. St. 1921."

In the case of White v. State, 23 Okla. Cr. at page 206,214 P. 202, 205, this court said:

"It has often been held that there is a presumption that a public officer did his duty and that statutory and constitutional modes of procedure have been followed," citing Hess v. State,9 Okla. Cr. 516, 132 P. 505, and Anderson v. State,8 Okla. Cr. 90, 126 P. 840, Ann. Cas. 1914C, 314.

In Ables v. State, 35 Okla. Cr. 26, 247 P. 423, this court says:

"Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed." Anderson v. State,8 Okla. Cr. 90, 126 P. 840, Ann. Cas. 1914C, 314; Williams v. State,17 Okla. Cr. 452, 190 P. 892; Harris v. State, 18 Okla. Cr. 470,196 P. 354; Cardwell v. State, 20 Okla. Cr. 177, 201 P. 817; Redden v. State, 22 Okla. Cr. 179, 210 P. 556.

Under these and numerous other holdings of this court, the presumption of law was that the officers did their duty, that the exception in section 1827, supra, existed, and that the proceedings were legally authorized and regular in all respects. To overthrow this rule and shift the burden to the state is to put upon the state a burden not contemplated by law and to provide another technical loophole through which the guilty bootlegger may escape just punishment. To so hold furnishes weak-kneed officers who have no desire to enforce the law an added excuse for failing to do so.

Sometimes courts, in their zeal to protect the constitutional rights of defendants, destroy the law and the constitutional rights of law-abiding citizens. It is as much the duty of this court to preserve the constitutional right of law-abiding citizens to be protected from the danger, disorder, crime, and confusion which arise from the illegal sale of liquor as it is to protect the bootlegger in his constitutional rights.

For the reasons stated, I cannot agree with the majority opinion of the court.