(Syllabus.)

1. Evidence — Truth of Facts Stated in Affidavit for Search

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Warrant not Issue at Trial. Where an affidavit for a search warrant states facts sufficient to give the magistrate jurisdiction to issue a search warrant, the truth of the facts set out in the affidavit is not an issue at the trial.

2. Intoxicating Liquor — Contention for Maintaining Nuissance, as Modified, Affirmed Against One Defendant, but Reversed as to Another. The evidence held sufficient to sustain the verdict, as modified, as against one defendant, but not sufficient as against the other.

Appeal from County Court, Oklahoma County; Jas. C. Cheek, Judge.

Rosa Broughton and T.A. Wilson were convicted of maintaining and operating a public liquor nuisance, and they appeal. Modified and affirmed as to Rosa Broughton; reversed as to T.A. Wilson.

H.J. Mackey, for plaintiffs in error.

The Attorney General, for the State.

BESSEY, P.J. Rosa Walker, alias Rosa Broughton, and T.A. Wilson were jointly prosecuted for maintaining a public nuisance, a resort where intoxicating liquor was kept and distributed contrary to law.

Defendant Rosa Walker claimed that the place in controversy was her home, and denied that it was a place of public resort or a place where intoxicating liquors were stored or kept for distribution. Both she and the defendant Wilson claimed that he was merely a visitor there, and had nothing to do with the management of the place. Both defendants were found guilty as charged, and the punishment of each fixed at confinement in the county jail for a period of 6 months and a fine of $500.

Most of the evidence was obtained by means of a search and seizure made under authority of a search warrant. In the execution of the search warrant, the officers found and seized some whisky and a quantity of "choc" beer with a high percentage of alcoholic content. They found secret places, apparently designed to hide

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and keep liquors, and also found a number of bottles and some other evidence of an incriminating character.

It is earnestly contended on behalf of plaintiffs in error that the search was unauthorized and illegal, because the affidavit for the search warrant did not in fact speak the truth. The affidavit recited that the place to be searched was a place where intoxicating liquor was kept in storage for an unlawful purpose.

In the case of Walter Phillips v. State, 34 Okla. Cr. 52, 244 P. 451, it was held that, where an affidavit for a search warrant states facts sufficient to give the magistrate jurisdiction to issue a search warrant, the truth of the facts set out in the affidavit is not an issue at the trial. If the affiant committed perjury he may be prosecuted criminally, or be amenable for damages in a civil proceeding.

While the proof was sufficient to support a verdict of guilty as against defendant Rosa Broughton, from the whole record it appears, on rehearing, that Rosa Broughton may not have been responsible for all the things found on her premises, and that the punishment assessed against her was excessive. The judgment rendered against her is therefore modified by reducing the period of confinement in jail to 60 days, and the judgment as so modified is affirmed. The proof as against defendant T.A. Wilson is insufficient, and the judgment as to him is reversed.

DOYLE and EDWARDS, JJ., concur.