129 P.2d 196 | Okla. Crim. App. | 1942
Defendant, William R. Vincent, was charged in the common pleas court of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to-wit, 49 pints and 3 1/2 pints of tax-paid whisky, was tried before the court without the intervention of a jury, by agreement, was convicted and sentenced to pay a fine of $50 and serve 30 days in jail, and has appealed.
It is first contended that the court erred in overruling the motion to quash the search warrant and suppress evidence. This is based upon the proposition that the search warrant had therein the name "John Doe" and not the name of the defendant, William R. Vincent, who was known to the officer making the affidavit. We have often announced that it was the best practice for officers, in making affidavits for search warrants, to state the name of the individual whose premises were to be searched. Denmark v. State,
"A. I did not know who might be in charge of the place. There had been another man, by the name of T. J. or J. T. Smith, at one time we raided and I didn't know who would be in charge of the place at the time we went there."
While we are of the opinion as heretofore stated that officers should give the exact name of the defendant where known, yet under the facts here stated this failure would not be reversible error. John Doe search warrants have long been recognized by the courts, but as above stated we do not approve their use unless necessary.
It is next contended that the court erred in overruling the plea in bar presented by the defendant. This plea is based upon the fact that county officers searched the premises of the defendant about 4 p. m. on the 5th day of October, 1940, and found 49 pints and 3 1/2 pints of tax-paid whisky in a plant on defendant's premises about 25 feet from his back door, and that about 9:30 at night of the same day other state officers from the State Highway Department bought whisky from the defendant and searched his premises and found nine pints *119
of whisky in a separate plant. Defendant claimed, and so testified at the hearing on the plea in bar, that it was the same whisky and that county officers failed to find the nine pints at the time of the search at 4 p. m. This is an attempt on the part of the defendant to bring himself within the rule often announced by this court that there cannot be separate offenses charged where only one offense has been committed. Estep v. State,
In the case of Beaman v. State,
We find no error in the overruling of the plea in bar filed in this case.
It is lastly contended by the defendant that the judgment and sentence is in violation of the constitutional rights of the defendant and contrary to the law and the evidence. This contention is made upon the plea that defendant cannot twice be put in jeopardy for the same offense. The statement which we have above made clearly reveals that this contention is without merit.
It is revealed by the record that defendant's place had been searched upon numerous occasions and liquor *121 had been found thereon. The search upon this occasion resulted in the finding of 49 pints and 3 1/2 pints of tax-paid liquor in a secreted plant on the defendant's premises. He admitted to the officers it was his liquor. Defendant did not take the witness stand or offer any evidence in his own behalf. Under these facts it is clear that the judgment and sentence of the court of common pleas of Oklahoma county should be affirmed, and it is so ordered.
DOYLE and JONES, JJ., concur.