Picklesimer v. State , 58 Okla. Crim. 219 ( 1935 )

I am not able to agree with the majority opinion. The defendant was convicted of having unlawful possession of intoxicating liquor. The case is reversed for the sole reason that the sheriff on cross-examination was not permitted to answer the question if he had signed the complaint for search warrant. How this question was material before the jury is more than I can see. If it be said that it would show the interest of the witness, surely it may be assumed that the sheriff has an interest in the enforcement of the liquor law, and if the exclusion of his answer was error, it would be harmless under section 3206, Okla. Stat. 1931, which reads:

"No judgment shall be set aside or new trial granted by any appellate court of this State in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right."

There are more than one hundred opinions of this court in which this statute has been upheld and approved.

The majority opinion discusses the truth of the affidavit for search warrant; in many cases this court has said that, the truth of an affidavit for a search warrant is not an issue in the trial of the case in which evidence obtained by it is offered. Phillips v. State, 34 Okla. Cr. 52,244 P. 451, 452; Blair v. State, 55 Okla. Cr. 280,29 P.2d 998. In the Phillips Case we said:

"The sufficiency in form or substance of the affidavit for search warrant and the search warrant itself may be challenged by a motion to suppress evidence or by an objection to the admission of evidence. Such challenge is to be determined by the trial court. It is never a question for the jury. The purpose of the verified complaint for search warrant is to invoke the judicial power of the magistrate, and, when filed, it is the duty of the magistrate to determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. In so determining the magistrate exercises a judicial function. Whether or not he errs in his conclusion or whether or not the affidavit upon which the search warrant is obtained is true is not an issue under the trial of a case predicated upon evidence obtained by such search warrant."

The defendant was the only witness in her behalf. Her testimony is evasive and shows her to be guilty; she admitted she had pleaded guilty to three charges in the county court.

For these reasons, I dissent.