Appeal from County Court, Tulsa County; W.E. Coffey, Judge pro tem.

Page 178

Earl Shanks was convicted of unlawful possession of intoxicating liquor, and he appeals. Reversed.

Ed Crossland, for plaintiff in error.

The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.

PER CURIAM. Appellant, Earl Shanks, was convicted of having possession of intoxicating liquor with intent to sell the same, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $100 and to be confined in the county jail for 30 days.

To reverse the judgment, appellant assigns as grounds the insufficiency of the affidavit upon which the search warrant issued, and the invalidity of the search warrant, and that the evidence offered by the state tending to prove the guilt of appellant was incompetent, because said evidence was obtained through such illegal search warrant.

The evidence offered to support the motion to suppress shows that the affidavit and search warrant issued thereon describes the place as one box house on the northeast quarter of sec. 21, tp. 17, R. 13 E. and all outbuildings, and that appellant resides on the northeast quarter of sec. 21, tp. 17, R. 14 E., that the place searched was 6 miles east of the place described in the affidavit and search warrant. Upon the undisputed facts, the motion to suppress should have been sustained. Emmons v. State, 33 Okla. Cr. 40, 241 P. 1107.

The admission of the evidence obtained by such search warrant, over timely objection, as made in this case, was prejudicial error.

The judgment is therefore reversed.