Lowe v. State , 49 Okla. Crim. 330 ( 1930 )

The plaintiff in error, hereinafter called the defendant, was convicted of having in his possession about one and one-half pints of intoxicating liquor, and was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. From the judgment and sentence, the defendant has appealed.

In the trial of the case the state offered in evidence the affidavit upon which the search warrant was obtained, and the search warrant. The defendant objected, which objection was overruled, and the defendant duly excepted to the ruling of the court.

This court has repeatedly held that it is error for the state to read the affidavit for the search warrant and the warrant to the jury as primary evidence. Williams v. State,34 Okla. Cr. 359, 246 P. 895; Weeks v. State, 41 Okla. Cr. 95, 270 P. 858; Ford v. State, 45 Okla. Cr. 161,282 P. 370.

It is our opinion that the court erred in admitting the affidavit for the search warrant, and the search warrant issued thereon as primary evidence, as it deprived the defendant of his right to confront the witnesses and cross-examine them. The allegations in the affidavit tended to establish facts very material against the affidavit.

For the reason stated, the case is reversed.

EDWARDS, P.J., and CHAPPELL, J., concur.