Opinion
No. A-5297.
Opinion Filed May 1, 1926.
Intoxicating Liquors — Police Judge Without Authority to Issue Search Warrants. Under the provisions of the Enforcement Act (section 7009, Comp. Stat. 1921), the authority for issuing search warrants to search and seize intoxicating liquors is specifically delegated to judges of courts of record and justices of the peace. A police judge is without authority to issue warrants in connection with alleged violations of the prohibitory liquors laws.
Appeal from County Court, Oklahoma County; Jas. C. Cheek, Judge.
Orval Gardner and wife were convicted of maintaining a place where liquors were kept for the purpose of sale, and appeal. Reversed and remanded, with instructions to dismiss.
Wright Gill, for plaintiffs in error.
Geo. F. Short, Atty Gen., for the State.
The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on a charge of maintaining a place where liquors were kept for the purpose of sale. The evidence upon which a conviction was had was obtained under a search warrant issued by the police judge of Oklahoma City. Under the prohibitory liquor law, a search warrant may be issued only by judges of courts of record and justices of the peace (section 7009, Comp. Stat. 1921), and, where a search warrant in a liquor case is issued by a police judge, it is a nullity, and evidence obtained by it should be excluded on timely objection. Terry et al. v. State, 31 Okla. Cr. 91, 237 P. 465; Reinhart v. State, 32 Okla. Cr. 109, 240 P. 139; Cook v. State, 33 Okla. Cr. 54, 242 P. 277. In this case motion to suppress the evidence before entering upon the trial was made, and objection made at the time evidence was interposed.
For the reasons assigned, the case is reversed and remanded, with instructions to dismiss.