DENMARK v. STATE

(Syllabus.)

1. Appeal and Error — Proceedings in Court of Record Presumed Regular — Burden to Show Error. The presumption is that all proceedings in a court of record are regular, and the burden is upon him who assails such proceedings to show clearly the irregularities complained of.

2. Intoxicating Liquors — Evidence Sustained Conviction for Unlawful Possession. Evidence examined, and found sufficient to affirm the judgment and sentence convicting defendant of the charge of unlawful possession of intoxicating liquor.

BAREFOOT, P.J.

Defendant was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit, 20 pints of tax-paid liquor; was by agreement tried before the court without the intervention of a jury, was convicted, and sentenced by the court to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

For reversal of this case it is contended that the court erred in overruling the motion of defendant to suppress the search warrant, and that the evidence was insufficient to justify the conviction of defendant. These questions may be considered together. Counsel for defendant filed a written motion to, suppress the evidence for the following reasons, to wit:

"(1) That the search warrant, under which the evidence to be adduced was seized, was not obtained by an affidavit as required by law.

"(2) That the subject matter seized by said search warrant was not examined by the officer issuing said search warrant, and no determination made by the magistrate or justice of the peace that said evidence was a violation of the law.

"(3) That said warrant is void, ineffective and of no force and effect for the reason that the same does not state facts sufficient for the search and seizure of the evidence to be adduced and does not properly describe the premises where the search and seizure was made."

When the above motion was presented counsel for defendant stated, "I think it is best to let the motion be overruled at this time." It was by the court overruled, and the defendant excepted. No evidence was offered to sustain the motion, and the search warrant was not introduced in evidence and a copy of the same nowhere appears in the record.

The state offered in evidence to sustain the allegations of the information the testimony of four police officers. They testified that they searched the premises of defendant located at 113 Northeast 10th street in Oklahoma City. One of the officers testified that he had a skeleton key which unlocked the basement door. That in the front part of the building was a paint shop and office. That back of this were living quarters occupied by the defendant, Hobson G. Denmark, and his brother and his wife. It was in two apartments. The basement was under the building occupied by the defendant and his brother. That on the day the premises were searched, December 1, 1938, the defendant was present and accompanied the officers to the basement. That the only property in the basement was a lot of junk consisting of cans and bottles. That no paint was stored there. Upon moving one of the cans the officers found a hole in the floor where was secreted 20 pints of tax-paid whisky. The defendant denied to the officers finding the whisky that it belonged to him, but one of the police officers, C. W. Scott, testified that the defendant said to him: "If I had come on and stayed out of there, they would never found the whisky."

This witness was further asked this question:

"Q. What did he have to say about the whisky business, if anything? A. Oh, nothing, more than that business was very poor and had a lot of hard luck trying to sell it. * * * Q. But on this date, there wasn't anybody there except Denmark, was there? A. I am positive that there was not; yes, sir."

The defendant when confronted with the whisky by the officers made the statement: "I haven't got the basement, the man that runs the paint company has got it."

The officer then said to defendant:

"Well, I guess we will just take him down," and he (the defendant) said, "Well, he thought we was going to," and he said, "You know it is not his whisky, he is not in the whisky business," and he said, "I will go down with you." That's what happened.

Twenty pints of tax-paid whisky was identified by the officer in charge of the storage room at the county jail as having been turned over to the sheriff's office by the police officers and was introduced in evidence. The defendant did not take the witness stand and offered no evidence. From the above statement it will be seen that the court did not err in finding the defendant guilty.

An attempt is made to question the description in the search warrant, but, as above stated, the defendant did not offer the search warrant in evidence and the same does not appear in the record. The presumption is that all proceedings in a court of record are regular, and the burden is upon him who assails such proceedings to show clearly the irregularities complained of. This burden was not met in the instant case. Lancaster v. State, 2 Okla. Cr. 681, 103 P. 1065; Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121; Ables v. State, 35 Okla. Cr. 26, 247 P. 423.

It is also contended that, by reason of defendant's brother and his wife living at the same premises, the search was irregular and did not justify the conviction of defendant. We think from the evidence above quoted that the same was sufficient to convict the defendant, regardless of the fact that his brother occupied a part of the premises.

For the reasons above stated, the judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

JONES and DOYLE, JJ., concur.

On motion for rehearing. Motion denied.

Mac Q. Williamson, Atty. Gen., and Phil E. Daugherty, Asst. Co. Atty., of Oklahoma City, for the State.

James W. Flinn, of Oklahoma City, for defendant.