220 P. 974 | Okla. Crim. App. | 1923
Bert Clark, plaintiff in error, in this opinion designated the defendant, was, by information filed in the county court of Harmon county on July 9, 1921, charged with having in his possession on that day one gallon of whisky, *404 with the unlawful intent to barter, sell, and otherwise dispose of the same. At the trial, by verdict of a jury, he was found guilty as charged. Subsequently, on January 25, 1922, the court pronounced sentence on the verdict, fixing his punishment at a fine of $100 and 30 days in jail. From the judgment so rendered, he appeals.
This conviction was predicated largely upon evidence procured by an unauthorized search and seizure. Evidence so procured has been held to be inadmissible, for the reasons set out and analyzed in detail in the case of Gore v. State,
It has been urged that in this case the objection to the reception of this evidence came too late because it was not made until after the evidence on both sides had been introduced. The better practice is, where incompetent evidence, whether oral, documentary, or physical, is offered, for the objections thereto to be interposed at the time and a failure to so do may be considered a waiver. The reasons for this rule are well stated in Youman v. Commonwealth,
Eliminating this illegal evidence, we find there is not sufficient proof to sustain the verdict. *405
The judgment of the trial court is therefore reversed, and the cause remanded.
MATSON, P.J., and DOYLE, J., concur.
