text:
    EARL SKINNER v. STATE.
    No. A-9438.
    Feb. 10, 1939.
    (87 P. 2d 341.)

      John T. Levergood, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Thos. C. Wyatt, Co. Atty., of Shawnee, for the State.
   BAREFOOT, J.

The defendant, Earl Skinner, was convicted in the county court of Pottawatomie county, of the unlawful possession of intoxicating liquors, and was assessed a fine of $250, and sentenced to serve 60 days in the county jail, and has appealed.

The record in this case reveals that the sheriff of Pottawatomie county procured a search warrant for the purpose of searching defendant’s automobile. That he went to the town of Wanette, in Pottawatomie county, for the purpose of searching the same. That as he entered the town he saw the defendant run and get into his car and drive into an alley, and from this alley turn into the street. Evidently the defendant saw the sheriff and was making an effort to get away from him, as the testimony of the sheriff and his deputy revealed that defendant was going at the rate of 60 or 65 miles an hour when he was overtaken by the sheriff and his car stopped. That his car was being driven in a careless and reckless manner, and was weaving from one side of the street to the other. The sheriff testified that he arrested defendant for reckless driving, and as he expressed it “speeding.”

The testimony of the sheriff was as follows:

“A. He went down the street north. I came into Main street, saw him going down the alley, I believe driving about 60 or 65 miles, reckless driving. Mr. Lever-good: We object, that is a conclúsion of the witness, we move to strike it. The Court: Objection sustained. The jury are instructed that ‘that was reckless driving’ was a conclusion. He may state what he saw. A. I saw him driving about 60 or 65 miles an hour, swaying from one side to the other. I went half a block north I saw him turn north, and he goes half a block north and turned east. He ran up by the side of the garage. Q. Which direction was he going? A. North. He ran up by the side of an old building, garage, hay barn, I don’t know what it was. I drove up in front of him, driving a Lincoln Zephyr. I jumped out, when I jumped out he throwed the car in reverse and started to back up. I said: ‘Earl, stop.’ He stopped and said what was the matter. I says, ‘You are under arrest for reckless driving.’ I said, ‘What have you got in that car?’ He said, ‘Different brands.’ Q. Of what? A. He did not say. Q. All right, go ahead? A. I said, ‘Earl, I am going to search your car.’ He asked me if I would let him drive to the country. I said, ‘Yes.’ Mark Frazier got out of the car. I placed Mark Frazier in the car with Earl Skinner, and told him to drive out in the country to the first section line east and turn south. He went to the second section line across the Santa Fe tracks going west, turned about a quarter south. I was following the car. I honked for him to stop and they stopped. I opened the turtle back of the car and saw— Q. Whose car was that that you opened the turtle back on? A. Earl Skinner’s. Q. All right. A. So it was loaded with bonded, tax-paid whisky. Earl says to me, Tf you will not arrest me I will give you the whisky and $50.’ I said, T would do that if it wasn’t for Mark Frazier, I am afraid he would tell it.’ I searched the car, put the whisky in the Lincoln Zephyr. Q. How much whisky was there? A. Two hundred fifty some odd pints. I arrested Earl, and he asked me if he might come in the next morning and make his bond. I says, ‘You may.’ He came in the next morning and made his bond, and I brought the whisky to town. Q. Did that happen in Pottawatomie county, state of Oklahoma? A. It did.”

A motion was made by defendant to quash the search warrant, and the motion was sustained by the court, and the state relied upon the evidence of the sheriff as being sufficient to convict the defendant without the necessity of a search warrant. We are of the opinion that the state was right in this contention. The testimony of the sheriff reveals that the defendant jumped into his car immediately after seeing the sheriff. He ran into an alley and turned into the street and was driving at the rate of 60 or 65 miles an hour. He made several turns at street intersections, and his car was driven from side to side. Under these circumstances the sheriff had the right to arrest him for careless and reckless driving. It is just such instances as this, and especially where there are street intersections, that the careless and reckless driver does not respect the rights of little children playing on the streets, and often disaster follows.

The statute giving the sheriff the right of arresting defendant is section 10323, Okla. Stats. 1931, 47 Okla. St. Ann. § 92. This is the statute prohibiting reckless and careless driving in Oklahoma. It is a criminal statute and carries with it a punishment for its violation of a fine of not less than $10 nor more than $100, or by imprisonment in the county jail of not less than 10 days nor more than 30 days, or by both such fine and imprisonment. When defendant was stopped by the sheriff he was immediately asked “What he had,” and he said, “Different brands,” and upon being informed by the sheriff that he intended to search his car, he informed the sheriff that he had friends in the city and did not wish it searched there, and asked permission to drive into the country before the search was made. This was permitted by the sheriff, and was an invitation on the part of the defendant to search his car. A search was made and in the back end of the car was found 251 pints of tax-paid whisky. Under these circumstances, the sheriff had the right to search the car without the necessity of a search warrant.

It is strongly contended that the evidence of the sheriff and his deputy was an afterthought, and after he found out that the search warrant was illegal and could not be used. This was a matter for the consideration of the jury. The sheriff testified positively, as did also his deputy, and we see no reason why this court should disregard the same especially after defendant was found guilty by the jury.

This court has heretofore held that in connection with a lawful arrest, the officer may search the person arrested, and seize any thing found upon him, or in his immediate control; the possession of which is unlawful. It is true that in order to justify the search of the person, and the immediate surroundings of the person arrested, the arrest must be done in good faith, and not as an excuse or subterfuge for the purpose of making an unlawful search.

In the case of Smith v. State, 52 Okla. Cr. 315, 4 P. 2d 1076, the facts were almost identical with the testimony in the case at bar. The court said:

“The facts are undisputed. Before trial a motion to suppress the evidence was filed on the ground that it had been obtained by an unlawful search. A hearing was had, and the motion was overruled. The case depends entirely on whether or not the evidence was obtained by an unlawful search. Upon this point the record shows that the sheriff and deputies saw defendant on the highway and followed him some 12 miles, in the course of which they went through the town of Snyder. The sheriff testified defendant traveled at a speed of from 58 to 60 miles an hour; that, when he finally overtook and stopped him, he arrested him for speeding and reckless driving; that the search was made as an incident to a lawful arrest. Defendant, testifying on the motion to suppress, said the sheriff when he stopped him on the highway informed him he was arresting him for speeding. Twenty-four half gallons of whisky were found in the turtleback of the car. In the final trial, defendant did not take the stand and offered no testimony.

“It is well settled that an officer making an arrest has authority to search the person and immediate place of arrest of his prisoner and to take from him any dangerous weapons or anything that he may reasonably deem necessary to his own or the public safety or to prevent the escape of his prisoner or which might be used as evidence against him on the trial or which he believes to be connected with the offense charged or that may give a clue to the commission of the crime. 2 R.C.L., p. 467, § 25, notes; 5 C. J., p. 434, § 74 F, notes; Reifsnyder v. Lee, 44 Iowa [101] 104, 24 Am. Rep. 733; Berg v. State, 29 Okla. Cr. 112, 233 P. 497; Washington v. State, 37 Okla. Cr. 415, 259 P. 150; Callahan v. State, 42 Okla. Cr. 425, 276 P. 494.

“The right to take from a person lawfully arrested property found in his possession or the place of his arrest is not unlimited. It has been said that it is doubtful if the right exists except for some of the reasons enumerated. 5 C. J. 435, § 74, note 95.
“In the case of contraband, however, as intoxicating liquor or narcotics, the possession of which itself constitutes a crime, it surely would be the duty of the arresting officer to seize when discovered. Also the quantity of whisky conveyed by defendant in his automobile is a reason for the excessive speed at which he traveled.
“This court will not uphold an unreasonable search where it appears that one is illegally arrested on some subterfuge for the purpose of justifying or attempting to justify a search otherwise unlawful. If the arrest is unlawful, the search is unlawful. Wallace v. State, 49 Okla. Cr. 281, 294 P. 198. As we read the record, this is not the situation here. A person driving an automobile upon the highway at the speed shown by the evidence is engaged in the commission of a misdemeanor (section 2, Laws 1923, C. 16, as amended by chapter 43, Session Laws 1929, 47 Okla. St. Ann. § 92) and may be lawfully arrested by a peace officer.”

See Romines v. State, 45 Okla. Cr. 40, 281 P. 310; Ansley v. State, 44 Okla. Cr. 382, 281 P. 160; McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006; Oklahoma Natural Gas Corp. v. Schwartz, 146 Okla. 250, 293 P. 1087.

It was also contended that because no charges were filed against defendant, charging him with reckless driving, that he should be discharged. We are of the opinion that before the right to search after arrest, that the arrest should be in good faith, and that proper grounds should exist therefor, and it is better practice that the arrest should be followed by proper charges. As heretofore stated, the facts existed for the proper arrest of defendant, and the county attorney evidently was of the opinion that by charging defendant with the unlawful possession of intoxicating liquor, he could be punished sufficiently by this charge, and for this reason did not file a charge of reckless driving which he would have been justified in doing in this case. However, where the arrest is made, and as the result of such arrest defendant’s automobile is searched without the necessity of a search warrant, it generally is the best practice to file a charge against a defendant for the crime for which he was arrested.. If by the search it is discovered another crime has been committed, the county attorney in his discretion may also file a charge against him for the commission of that crime.

Finding no error in this case we are of the opinion that the judgment of the county court of Pottawatomie county should be affirmed, and it is so ordered.

DOYLE, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    HARRY S. WILLIAMS v. STATE.
    No. A-9464.
    Feb. 10, 1939.
    (87 P. 2d 344.)
    Dave Tant, of Oklahoma City, and A. J. Stevens and C. E. Wilhite, both of Alva, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case in substance charged that on or about the first day of March, in the county of Woods, the defendant, Harry S. Williams, did in the nighttime of said day, set fire to a frame dwelling house, in which there was no human being a,t the time, the same being the property and residence of said Williams, located on lot 6, block 9, of Mable McGrath addition to the city of Alva.

Upon his trial the jury found him guilty as charged in the information and assessed his punishment at imprisonment in the penitentiary for two years.

From the judgment rendered in pursuance of the verdict on December 10, 1937, an appeal was taken by filing in this court on March 10, 1938, a petition in error with case-made.

On December 28, 1938, the Attorney General filed a motion to dismiss the appeal, “for the reason that said plaintiff in error has made application to His Excellency, the Governor, for clemency and has been given parole.”

No response to the motion to dismiss has been filed.

The provisions of our Code of Criminal Procedure, 22 Okla. St. Ann. § 1051, which allow appeals by defendants, as a matter of right from any judgment of conviction against them, do not give the right to a paroled plaintiff in error to still maintain and prosecute his appeal, and where the plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and when the attention of this court shall be called judicially to the fact that a parole has been granted and accepted, his appeal will be dismissed. Baxter v. State, 24 Okla. Cr. 41, 215 P. 639.

In Odom v. State, 8 Okla. Cr. 540, 129 P. 445, 446, we said:

“It is our opinion that the right of appeal does not exist when the defendant is not actually or constructively in custody, so that the judgment and sentence of the trial court can be enforced if affirmed by the appellate court. It would be a farce to proceed to determine the merits of the appeal unless the courts had control over the plaintiffs in error, so that the judgments might be made effective. A plaintiff in error, by accepting a parole, abandons his appeal and waives the right to have it determined.”

It is therefore considered, adjudged and ordered that this appeal be and the same is hereby dismissed, and the cause remanded to the district court of Woods county.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    LOUIS COMBS v. STATE.
    No. A-9572.
    Feb. 24. 1939.
    (87 P. 2d 980.)
    Potter & Potter, of Blackwell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Louis Combs, was tried and convicted in the district court of Garfield county, upon an information charging that on or about the 2d day of March, 1938, in Garfield county, he committed the crime of burglary, in that he did break into and enter a certain store building, located at 4th and Willow street, in the city of Enid, then and there occupied by and in the possession and charge of Charles Calavis. On May 2d, 1938, the court rendered judgment in pursuance of the verdict and he was sentenced to confinement in the state penitentiary at McAlester for term of two years.

From the judgment an appeal was duly perfected by filing in this court on September 30, 1938, a petition in error with case-made attached.

On February 17, 1939, the plaintiff in error filed a motion to dismiss his appeal as follows:

“Comes now the defendant, Louis Combs, in person and by his attorney of record, Bruce B. Potter of the firm of Potter and Potter, of Blackwell, Oklahoma, and advises the Honorable Court that the defendant, Louis Combs, is now confined in the state penitentiary at McAlester, Oklahoma, satisfying a sentence imposed in the above styled case. That said case was abandoned by this defendant upon his submission to the authorities at Enid, Oklahoma, for satisfaction of said sentence and that it is the desire of the defendant and his counsel that said appeal be dismissed.
“Wherefore motion is made that said case be dismissed.
“Louis Combs,
“Defendant.
“Potter and Potter.”

The Constitution and laws of this state give to every citizen convicted of crime in the courts of this state the right to appeal from any judgment rendered against him in a court of record. It is a privilege granted by the law to persons convicted of crime which they may exercise at their option.

When an appeal has been taken, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. McDessey v. State, 61 Okla. Cr. 345, 68 P. 2d 113; Huber v. State, 13 Okla. Cr. 209, 163 P. 329; Hancock v. State, 57 Okla. Cr. 329, 48 P. 2d 348.

It is therefore adjudged and ordered that the appeal herein be dismissed, and the cause remanded to the district court of Garfield county.

BAREFOOT and DAVENPORT, JJ., concur.


author: BAREFOOT, J.

text:
    WILLIAM HULSEY v. STATE.
    No. A-9499.
    March 3, 1939.
    (87 P. 2d 1110.)

      Truman Harrison and Hal Welch, both of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. V. Stanfield, Co. Atty., of Ada, for the State.
   BAREFOOT, J.

The defendant, William Hulsey, was convicted in the district court of Pontotoc county of the crime of rape in the first degree, and was sentenced by the court to serve a term of 20 years in the penitentiary, and has appealed.

The first assignment of error is that the evidence is insufficient to sustain the verdict.

The record reveals that defendant is a seven-eighths blood Chickasaw Indian, 20 years of age. He was convicted of statutory rape upon his cousin, Martha Jean Colbert, age 9. That on Sunday, July 4, 1937, defendant came to the home of Waldron Colbert, the father-in-law of the mother of prosecutrix, and stayed there that day. That between sundown and dark defendant and prosecutrix, and defendant’s six-year-old sister, Geraldine Hulsey, and William Williams, a boy about 12 years of age, left in defendant’s automobile to go to a picnic at Birds Mill. They returned to the Waldron Colbert home in the early part of the night.

Prosecutrix testified that she was 9 years of age; that she had attended school, and was in the fourth grade; that on the evening of July 4, 1937, she went to a picnic at Birds Mill with defendant, his sister, Geraldine Hulsey, and William Williams; that on the way there defendant stopped his car and she and defendant got out; that defendant told her he was going to White’s store to get some gas. She accompanied him. When they had passed over a hill defendant placed a handkerchief over her mouth; that she tried to hollo but could not; that he took her through a wire fence; that she cried and holloed and tried to get him to take her back to the car; that he pulled off her pants and had intercourse with her; that defendant told her he would kill her if she told her mother. They afterwards went on to the picnic and stayed there for several hours and then returned home; that she did not tell her mother that night because she was afraid. The following day defendant took her mother and her home. Afterwards she wrote a note to her mother telling her what had happened. Her mother took her to the office of the county attorney and a warrant was sworn out for the arrest of defendant.

The county attorney had prosecutrix examined by Dr. Catherine Brydia and Dr. Ernest A. Canada, who was county physician. Dr. Brydia testified they made an examination of prosecutrix, and also made a microscopic examination of her, and had a slide run at the hospital, and found “intracellular and extracellular diplo cocci,” which in English means she had “gonorrhea.” This examination was made on the 8th day of July, 1937. She found her to be sore and swollen. Dr. Brydia was also recalled and testified that she had examined prose-cutrix during the trial, on the 18th day of October, 1937, and that the hymen had been broken, and that parts of it could be observed by a minute examination. She was corroborated in this statement by Dr. Parsons. This evidence was admitted in rebuttal after Dr. Welborn had testified for defendant that he examined prosecutrix about August 23, 1937, after she returned from the hospital at Fort Sill, and that in his opinion she was a person who did not have a hymen, and that from his examination he could not find anything to show she ever had one.

Dr. Parsons, who was connected with the United States government • at the Comanche and Kiowa Indian Hospital at Fort Sill, testified that prosecutrix was admitted to that hospital, and that he had made an examination of her on the 12th day of July, 1937. His report was read and introduced in evidence. It was a complete physical examination. This examination showed a rupture of the hymen, lacerations between the minor and major labiae on each side. He testified she had “gonorrhea.”

Dr. Canada, county physician of Pontotoc county, testified that he examined defendant on the 8th day of July, 1937. That he examined one discharge himself and sent another slide to the bacteriologist at the Ada Hospital. From these examinations he testified as follows: “From my examination, and from the slides I concluded that the man had gonorrhea.” He also testified on cross-examination that it had been running for several weeks.

Defendant, testifying in his own behalf, admitted being at the home of the mother of prosecutrix on July 4, 1937, and going to the picnic at Birds Mill. He testified that the gas line on his car was stopped up and he got out of the car to fix it but that the other children remained in the car. That he at no time had intercourse with the prosecutrix, and did not harm her in any way. He further testified that Mack Colbert, the father of prose-cutrix, who was in jail, had asked him to watch his wife, Della Colbert, and that he had reported to Mack that he had seen his wife and a man in a room and that the man had his arms around her, and a bottle of liquor was on the table, and for this reason she was mad at him and had instituted this prosecution for this reason.

Defendant also offered Dr. O. E. Welborn, who testified that he examined defendant about six weeks before the trial, which was started on the 18th day of October, 1937, and he did not have gonorrhea at that time. That he examined prosecutrix after her return from the Fort Sill Indian Hospital about August 23d, and did not find her to be suffering from gonorrhea. That in his opinion she did not have a hymen, and that only about 50 per cent of women have hymens.

Marie Williams also testified for defendant. She was 12 years of age, and had lived with her mother near the home of prosecutrix for two years. That she had stayed all night with the prosecutrix in June, July and August, 1936. That on one of these occasions they were playing over the hill near the Colbert home and she saw two 12-year-old boys get on prosecutrix at different times and stay there for five minutes. This evidence was permitted to be introduced by the court because the state had showed that the prosecutrix had contracted a venereal disease and for no other purpose.

Dr. Joseph G. Breco also testified for defendant that he had examined him two weeks prior to trial and did not find him suffering from gonorrhea, but on cross-examination testified that he could have had it in July, 1937, and been well when he examined him.

Neither the state nor defendant placed Geraldine Hulsey, age six, sister of defendant, and William Williams, age 12, the other two parties who went with defendant and prosecutrix in the car to the picnic, upon the stand, and they did not testify in the case.

Defendant, in his brief states:

“The testimony of the state in this case is based wholly on the uncorroborated testimony of a 9-year-old girl. The testimony is incredible and unreasonable.”

In justification of this statement the following cases, decided by this court, are cited: Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083; Cape v. State, 61 Okla. Cr. 173, 66 P. 2d 959; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530; also, State v. Goodale, 210 Mo. 275, 109 S. W. 9.

These cases and others from this state announce the rule that a conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix; but that her testimony must not be contradictory, inconsistent and unreasonable, and bear upon its face inherent evidence of improbability. McDonald v. State, 61 Okla. Cr. 287, 67 P. 2d 806; McLaurin v. State, 34 Okla. Cr. 324, 246 P. 669; Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Reeves v. Territory, 2 Okla. Cr. 351, 101 P. 1039.

A reading of the facts in the cases above cited and others from this state will reveal that where cases were reversed for this reason, the facts of the particular case bore out the reasons above stated. This is not true in the instant case. Here the prosecutrix was corroborated in many details. The testimony of the physicians who examined her, and testified to her physical condition corroborate her testimony. The evidence that prosecutrix was suffering from a venereal disease, and the defendant was also afflicted with the same disease, and that from an examination of him it had been running for several weeks, was strong corroborative evidence. The testimony of defendant corroborates her in every detail, except that he denies he wronged her in any way. She related the same evidence upon her direct examination as she did upon her cross-examination. There was at no time any contradiction in her testimony, nor was it unreasonable. There may have been some circumstances which might have caused one to believe that there may not have been much resistance on her part, but she being only of the age of 9 years, under the law it made no difference whether the act was accomplished with or without her consent. Oklahoma Statutes 1931, section 2518, Oklahoma Statutes Annotated, title 21, § 1114.

It is next contended that a reversal of this case should be had by reason of certain remarks made by the county attorney in his closing argument. The closing argument made by the county attorney is given in the case-made. We have carefully read the same, and it is not necessary to extend this opinion by referring to the different statements. The argument was a clear, concise analysis of the case from the state’s standpoint, and we do not think any statement was made that would justify a reversal of this case. There was only one statement to which reference may be made. The mother of prosecutrix had testified that when her daughter told her what had happened to her she wrote a note. This original note was not offered in evidence, but while prosecutrix was on the witness stand, the attorney for defendant had her write before the jury exactly what the note contained. It was “Mother, Bill did something bad to me. Your little girl. (Signed) Martha Jean Colbert.” Counsel for defendant, in his argument, had asked the question, “Where is the original note?” The county attorney, in reply to this question, said that he had the original note in his possession. We do not think the county attorney should have made this statement when the note had not been introduced in evidence by him. But under the circumstances as above stated, we do not think this was prejudicial error sufficient to reverse this case. The defendant’s attorney, on cross-examination, had her write what the note contained.

Defendant further contends he was not permitted by the court to cross-examine the mother of prosecutrix with reference to her attitude toward defendant by reason of conversations which he claimed he had with her husband. She was permitted to say: “A. Oh, sure I do feel a little bit hard at him, and I believe he has had enough experience now to not do nothing like that again.” We do not think the court erred in refusing to admit the evidence offered, and to which an exception was taken.

Defendant excepted to the giving of instruction No. 10 by the court. We do not consider it necessary to quote this instruction in full. It has reference to the statement made by the prosecutrix to her mother, and told the jury if it was made within a reasonable time, and they so found beyond a reasonable doubt, they might consider the same, but if they did not find beyond a reasonable doubt that the complaint was made within a reasonable time, they would wholly disregard the same. Complaint is made of that part of the instruction which says, “That is, that if the complaint was made by the said Martha Jean Colbert within a reasonable time after the alleged occurrence of rape, may, if believed by you, be sufficient corroborative evidence,” on the ground that it is a comment on the weight of the testimony. We do not consider there was any error in this instruction as a whole. In fact, it was not necessary to give this instruction at all, and when read as a whole, it was more favorable to defendant than it was against him. All of the instructions were very favorable to defendant.

In connection with defendant’s contention that the evidence was insufficient, counsel calls attention to a statement shown in the record to have been made by the trial judge at the time the motion for new trial was overruled. This statement was as follows:

“Cases of this kind are always doubtful and difficult to decide. This is a very weak case and I do not know about it. I am not thoroughly satisfied as to his guilt. I am unable to say as to the guilt or innocence of this defendant, but since the jury has passed upon the testimony and found him guilty, I will not disturb their verdict.”

The record does not show any exception to the above statement. What the court probably meant by this statement was that cases of this character were as Lord Hale said: “It must be remembered that this is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though ever so innocent.” But the jury having passed upon the facts, heard the witnesses testify, and seen their demeanor upon the witness stand, he was unwilling to disturb their verdict. The statement that “I am not thoroughly satisfied as to his guilt,” if taken literally, might have been sufficient for him to sustain the motion for a new trial, but from all the facts in this case, we can hardly realize that he would have been justified in so doing. Under the circumstances, we are of the opinion that justice will be best served by reducing the sentence of this defendant in this case to 15 years in the penitentiary, the minimum punishment allowed under the statute for statutory rape of a person under 14 years of age. Oklahoma Statutes, 1931, sec. 2518, Oklahoma Statutes Annotated, title 21, § 1114.

It is within the power of the Governor of the state to at any time lower this sentence if he deems it advisable, by the exercise of the right of parole or pardon.

It is, therefore, ordered that the judgment of the district court of Pontotoc county be modified to a term of 15 years, and as so modified is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    H. W. O’NEAL v. STATE.
    No. A-9462.
    March 3, 1939.
    (87 P. 2d 1108.)

      J. Q. A. Harrod and Laynie W. Harrod, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The defendant was jointly informed against in Oklahoma county with T. E. Gratten, charged with having possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $50 and be confined in the county jail for 30 days, and has appealed.

Before the case was called for trial, the defendant filed a motion to suppress the evidence secured by the officers, for the reason that the evidence that would be offered by the state was secured by an unlawful search of his car. Second, that no service of the search warrant was had upon him.

On the motion to suppress, testimony was taken and disclosed the fact that the defendant drove up to a parking place on the rear of a grocery store, in Oklahoma City, and got out and went into the grocery store. The officers saw him park his car and went to the car, looked in it and claimed they found some whisky, and took the car to a garage. When the defendant came out, his car was gone, and he later learned what had become of it.

The testimony showed a very peculiar state of facts. The search warrant was introduced in evidence on the motion to suppress, and shows that it was dated July 7, 1937, and signed by Jack Cecil Wheeler. The officers, when they took the defendant’s car, failed to leave a copy of their search warrant in the car, or to serve the defendant with a copy. Upon an examination of the search warrant, under which the officers claimed they searched the defendant’s car, it shows that the search warrant was dated July 7, 1937, and the ear was not searched under this search warrant until July 12, 1937, more than five days after the search warrant was issued.

When the testimony was being taken, a deputy sheriff, by the name of Dan Kean, testified and stated that the search warrant bore the signature of the justice of the peace and his signature. “Q. Imprinted through on the copy? A. Yes, sir. We went and got several warrants that day.”

From the testimony of this deputy, it is difficult to believe that when the affidavit for the search warrant was made on the 7th day of July, 1937, the officers intended to search the defendant’s car at that time. It looks more like an afterthought, and that the officers were armed with some blank search warrants, and when they found a car they filled in the license number of the car and then proceeded to use the search warrant and search it.

The first error assigned by the defendant is: “That the trial court erred in refusing to sustain the motion of the defendant to suppress the evidence herein.”

Section 2635, St. 1931, 37 Okla. St. Ann. § 84, provides in part as follows:

“And to make return of said warrant within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized, of the person or persons in whose possession the same were found, if any, and if no person be found in the possession of said property and things, his return shall so state. A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

In Reynolds v. State, 48 Okla. Cr. 131, 289 P. 782, the court said:

“Where service of a search warrant is not made within the time provided by section 7009, C. O. S. 1921 [section 2635, St. 1931, 37 Okla. St. Ann. § 84] the service is void, and evidence secured thereunder is inadmissible.”

It clearly appears from the evidence of the officers in this case that no copy of the search warrant was left in the car, or served on the defendant, and that section 7009, C. O. S. 1921, now section 2635, St. 1931, 37 Okla. St. Ann. § 84, was not complied with.

In Borchers v. State, 59 Okla. Cr. 116, 56 P. 2d 922, it is held:

“In prosecution for illegal possession of intoxicating liquor, where service of search warrant is not made by serving a copy of the warrant in the manner provided by statute, section 2635 (St. 1931, 37 Okla. St. Ann. § 84), any evidence secured thereunder is inadmissible against the defendant.”

If the correct date is shown in the search warrant the officers claimed to have acted under, the search warrant was issued five days before it was served on the defendant.

The service of the search warrant after the expiration of three days as provided by the statute was void, and any evidence secured thereunder is inadmissible.

For the reasons stated, the court erred in overruling the motion to suppress, and the case is therefore reversed and remanded.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    Ex parte TOY SMITH.
    No. A-9602.
    March 3, 1939.
    (87 P. 2d 1106.)

      Toy Smith, in person, for petitioner.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and J. A. Minton, Pardon and Parole Atty., of Sayre, for respondent.
   DOYLE, P. J.

The petitioner, Toy Smith, on February 13, 1939, filed in this court an application for a writ of habeas corpus, wherein he avers that he is unlawfully restrained of his liberty by Jess F. Dunn, warden of the state penitentiary, at McAlester.

It is further averred in said petition:

“That your Petitioner, Toy Smith, was on February 16, 1936, received at the Oklahoma state penitentiary, as Number 33620, after having been adjudged and found guilty of the crime of larceny of domestic animals, to serve a term of 10 years. * * * That on April 15, 1937, E. W. Marland, then Governor of Oklahoma, issued to this petitioner a parole for the sentence that he was then, and is now serving; that said parole was then and is now still in existence, the same not having been revoked as by law provided; that said parole was delivered by mail to the warden of the state penitentiary, or one of his deputies, Mr. R. A. West, on April 16, 1937; that said deputy warden, failed, refused and neglected to deliver said parole to this petitioner, and allow him to accept the same and be released, that petitioner has never been allowed to accept said parole, although he has been at all times desirous and willing to accept the conditions thereof, in order that he may be released from the state penitentiary, that he has at all times requested and demanded of the warden that he be allowed to accept said parole and be released therefrom. * * *”

It is further averred:

“That said parole has never been revoked; that petitioner has not violated the terms of said parole; that he has not been discharged from the penitentiary thereon. ❖ ❖ ❖
“That said deputy warden did not at that time or has he since that time delivered the parole to this petitioner, but either kept it, or returned it to the office of the Pardon and Parole Attorney.
“That said parole has never been revoked; that petitioner has never violated the terms of said parole. * * *
“That said parole is still in effect, and the terms and stipulations are valid so far as your petitioner is concerned; that no time has elapsed since the parole was issued by the Governor that this petitioner was not ready and willing at all times to sign and accept the term of the same; that he has never refused to accept such parole.”

The prayer of the petition is:

“That if your honors do not see fit and deem it just and proper to issue the writ of habeas corpus immediately, that it do issue an order of ‘Rule to Show Cause/ directed to the said Jess F. Dunn, warden of the Oklahoma state penitentiary, to come into court and show cause why the writ should not be awarded as prayed for.” Which petition was duly verified by said petitioner.

Answering the rule to show cause, respondent, the warden of the state penitentiary, in obedience thereto, avers that said petitioner’s confinement and imprisonment in the state penitentiary is in all things lawful and in accordance with the laws of the state of Oklahoma. And avers that said parole has been revoked.

The order of revocation by Hon. Leon C. Phillips, Governor of the State of Oklahoma, is as follows:

“Executive Department
“Revocation of Parole:
“To all to Whom These Presents Shall Come, Greeting:
“Whereas, Toy Smith, Number 33620, was convicted in the District Court of Kiowa County, Oklahoma, of the crime of larceny of domestic animals, and was sentenced to serve a term of 10 years in the Oklahoma State Penitentiary at McAlester, Oklahoma, where he was committed on February 16, 1936; and
“Whereas, the said Toy Smith, Number 33620, was granted a parole from his said imprisonment on April 13, 1937, by His Excellency, E. W. Marland, the Governor of the State of Oklahoma; and
“Whereas, sufficient cause appearing to revoke said parole;
“Now, Therefore, I, Leon C. Phillips, The Governor of the State of Oklahoma, by virtue of the power and authority vested in me, do hereby revoke, cancel, set aside and annul the parole heretofore granted Toy Smith, Number 33620, and do hereby direct and order all sheriffs and other peace officers in the State of Oklahoma, to apprehend him wherever he may be found, take him into safe custody and convey him to the Oklahoma State Penitentiary at McAlester, Oklahoma, where he will serve out that portion of his sentence unfinished, according to the original sentence and judgment of the Court.
“In Witness Whereof, I have hereunto set my hand and caused to be affixed the Great Seal of the State of Oklahoma, at Oklahoma City, Oklahoma, this Fourteenth day of February, 1939.
“By the Governor of the State of Oklahoma:
“Attest: “Leon C. Phillips.
“C. C. Childers,
“Secretary of State.
“(Seal)»

The power to pardon conferred by the Constitution on the Governor is practically unrestricted, and the exercise of executive clemency is a matter of discretion.

The Constitution, art. 6, sec. 10, Okla. St. Ann., provides :

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as . may be prescribed by law.”

This power is not derived from legislation, and it is quite clear that, under any pretense of regulating its exercise, the supreme executive power could not be deprived of its constitutional authority in relation thereto, but provision may be made by legislation, which shall render the exercise of such a power convenient and efficient. Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L.R.A., N.S., 110.

In Ex parte Horine, 11 Okla. Cr. 517, 148 P. 825, L.R.A. 1915F, 548, this court held:

“The Governor of the state has the power to annex to a pardon or parole any condition precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed.”

In the opinion it said:

“Upon its revocation the legal status of the petitioner must be regarded the same as it was before the parole was granted. It was not such a contract as entitled him to have a judicial determination of forfeiture, in the face of his stipulation that the Governor might revoke it ‘for any other reason by him deemed sufficient’.”

For the reasons stated the writ of habeas corpus will be denied. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    H. W. O’NIEL v. STATE.
    No. A-9468.
    March 10, 1939.
    (88 P. 2d 380.)
    Joe Adwon, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

By information the defendant was charged in the common pleas court of Oklahoma county with possession of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $50 and to be imprisoned in the county jail of Oklahoma county for 30 days, and appeals.

Before the case was called for trial the defendant filed his motion to suppress the evidence for the reason that he claimed it was secured by an unlawful search and seizure.

The facts as disclosed by the record on motion to suppress are in substance as follows:

The officers had two search warrants, one to search a one story garage, located the first building west of 223 North West Second street, Oklahoma City, Oklahoma, and one to search a one story brick building, located at 223 Northwest Second street, Oklahoma City, Okla. These buildings as shown by the record were a shine parlor and a public garage.

The record shows that the officers searched the shine parlor and found no intoxicating liquors. The garage is known as the Pioneer Garage, owned by a Mr. Tower. The officers searched this garage and in two cars stored in the garage belonging to the defendant whisky was found. Several cars were in the garage at the time the search was made, but so far as this record shows the other cars in the garage were not searched.

The only question to be determined upon the motion to suppress the evidence is the question: Did the warrant to search the garage authorize the officers to search the cars of different individuals stored in the garage?

No contention is made by the state that the cars searched in which whisky was found belonged to the proprietor of the garage, or that he had knowledge the cars of the defendant stored in his garage had whisky in them.

It is not contended by the officers that they had any information that the cars contained whisky. They only attempted to justify their action in searching the defendant’s cars on the ground that they had a warrant to search the garage.

In Bowen v. State, 50 Okla. Cr. 36, 295 P. 623, the syllabus of the court is as follows:

“A search of an automobile without a search warrant and not as an incident of a legal arrest, not upon any probable cause of the commission of a felony, but upon a mere suspicion, is in violation of article 2, § 30, State Const., Okla. St. Ann. and evidence obtained by such a search is inadmissible.”

In Murray v. State, 51 Okla. Cr. 44, 299 P. 506, the court in the body of the opinion states:

“Search of a car without a warrant of arrest, or search warrant, or knowledge by the officers that it contained intoxicating liquor, or without sufficient knowledge to cause an ordinarily prudent person to act, is illegal, and the evidence so obtained should have been excluded upon timely objection. Britton v. State, 34 Okla. Cr. 391, 246 P. 666; Strong v. State [42 Okla. Cr. 114] 274 P. 890.”

It is riot contended by the officers that they had a warrant for the arrest of the defendant, or that they had any suspicion or authority prompting them to search the cars searched, except the search warrant they had to search the garage.

We hold that in order to justify a search of cars stored in a public garage, it is necessary to have a search warrant specifically describing the cars to be searched. If this was not the law, no business man or travelers would store their car or park it in a public garage, as they would not want to be annoyed by having officers coming around and searching their cars without any authority of law.

The search and seizure in this case was made without any authority of law and the evidence secured thereby is inadmissible.

For the reasons stated, the judgment is reversed.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    Ex parte CLYDE RENIFF.
    No. A-9605.
    March 10, 1939.
    (88 P. 2d 382.)
    Ernest W. Thomas, of McAlester, for petitioner.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and J. A. Minton, Pardon and Parole Atty., of Sayre, for the State.
   BAREFOOT, J.

Petitioner alleges that he is unlawfully restrained of his liberty in the penitentiary, for the reason that he has served the length of time to fulfill the prison terms allotted to him. The record, as revealed by the response filed by the Attorney General, shows that petitioner was convicted and sentenced from Muskogee county for a period of one year for forgery. This was his second term, he having theretofore served a sentence. He was received at the penitentiary on September 24, 1930, and was dischargd on February 28, 1931. He was next sentenced from the district court of Comanche county to serve a term of 7 years for the sale of a forged check. He was received at the penitentiary on December 4, 1931. This case was appealed to this court and the sentence was reduced to a term of 2 years. . He was discharged on May 6, 1933, having served on this sentence 67 days in payment of court costs in the amount of $126.90.

On May 6, 1933, petitioner was dressed in to serve a term of 7 years, from Comanche county, for the sale of a forged check. He escaped from prison on July 10, 1933, and was returned to prison on February 8, 1935, and was discharged on August 26, 1938.

On August 26, 1938, he was dressed in to serve his fifth sentence from Pittsburg county, where he was charged with uttering a forged instrument, and sentenced to serve a term of one year. On September 3, 1938, he was found in possession of a knife and was demoted to a third class prisoner, and on December 24, 1938, he was promoted to first class prisoner, and the record before us shows that he will be discharged on April 19, 1939.

It will be seen from the above record that petitioner has been convicted five different times. He has escaped from prison once, and has been found in possession of a knife while serving in the penitentiary. He is contending that he should be given credit for the 67 days served on the sentence from Comanche county for $126.90, on the last charge of which he was convicted from Pittsburg county.

The contention of petitioner is that this court having held that a prisoner can not be imprisoned for costs in a felony case, and that he had served 67 days to satisfy costs in the amount of $126.90, in the case from Comanche county, which had been served and satisfied prior to his conviction in Pittsburg county, that he should be given credit for this time on the conviction in Pittsburg county.

A case involving similar facts to the one at bar has been passed upon by this court in the case of Ex parte Farve, 64 Okla. Cr. 326, 79 P. 2d 1034, 1035. In this case it is said:

“The decisive question as to whether petitioner is at this time being unlawfully restrained primarily depends on whether or not he is chargeable with the four months and one day served on his first sentence for the costs in that case. This sentence was completed on the 28th day of April, 1928. Up to and prior to the 3d day of October, 1935,' the date of the decision in the case of Ex parte Red Autry, 58 Okla. Cr. 88, 50 P. 2d 239, it had been the holding of this court that when a judgment in a criminal action imposes confinement in the state penitentiary, and in addition thereto a fine and costs, that the defendant, at the termination of the confinement specified, may be held in prison until such fine and costs are paid at the rate of a dollar a day. Ex parte McCoy, 45 Okla. Cr. 52, 281 P. 813. Under section 2, Okla. Stats. 1931, Okla. St. Ann. tit. 12, sec. 2, it is provided: ‘The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma.’ Under this section the judicial decisions of this court were the law until the same were overruled and set aside. The law therefore as stated in the case of Ex parte McCoy, supra, was the law in this jurisdiction until the same was overruled and set aside by the decisions of this court in the case of Ex parte Autry, supra, decided on the 3d day of October, 1935. It follows therefore that the sentence of petitioner having been fully served prior to the time of that decision, he would not be entitled to the credit claimed, and to his discharge on the 29th day of December, 1927, but rather on April 29, 1928. The date on which he was accepted on his 15 year term.”

Petitioner admits that the decision in the Farve Case, supra, is contrary to his contention, but states that this decision should be overruled for the reason that the statute quoted, section 2, Okla. Stats. 1931, 12 Okla. St. Ann. § 2, which is as follows: “The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object,” — is a part of the statutes of Civil Procedure in this state and has no application to Criminal Procedure. In other words, it is contended that the common law, as far as criminal cases are concerned, is not in force, and that section 2665, Okla. Stats. 1931, 22 Okla. St. Ann. § 9, which is as follows: “The procedure, practice and pleadings in the courts of record of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law,” only applies as to the procedure, practice and pleadings in criminal cases. In the first place, the statute under Civil Procedure above quoted says: “* * * shall remain in force in aid of the general statutes of Oklahoma”. It is not limited to either civil or criminal cases. The sections of the statute which follow the one above quoted, many of them, have special reference to criminal cases as well as civil cases and this identical statute has been referred to and applied in criminal cases of this state from territorial days on down to the present time. Goodson v. United States, 7 Okla. 117, 54 P. 423; Smith v. Territory, 14 Okla. 518, 79 P. 214; Welty v. United States, 14 Okla. 7, 76 P. 121; Cavett v. Territory, 1 Okla. Cr. 493, 98 P. 890, 102 P. 646.

We cannot be lead to believe that section 2665, Okla. Stats. 1931, 22 Okla. St. Ann. § 9, does not apply in this case. These statutes are very similar. This is a matter of “procedure and practice” that has been followed and recognized by the courts of this state. We do not think this “procedure” or “practice” was imprisonment for the punishment of a crime. Cline v. State, 9 Okla. Cr. 40, 130 P. 510, 45 L.R.A., N.S., 108; Mitchell v. State, 7 Okla. Cr. 563, 124 P. 1112; Hunter v. State, 10 Okla. Cr. 119, 134 P. 1134, L.R.A. 1915A, 564, Ann. Cas. 1916A, 612.

We cannot see how petitioner in the instant case should be credited with time served in a former case, where the time had expired, and especially where the sentence was from a different county and for a different offense. Certainly this is different than if petitioner was here asking for his release for serving the time for costs in the Comanche county case. If petitioner’s contention was true, he could be released from a sentence which was heretofore rendered and for which he had been wrongfully imprisoned although his sentence was many years thereafter. Ogle v. State, 43 Tex. Cr. 219, 63 S.W. 1009, 96 Am. St. Rep. 860; State v. Finch, 75 Kan. 582, 89 P. 922, 20 L.R.A., N.S., 273. That the above sections apply only to procedure and practice we call attention to the case of Ex parte Autry, 58 Okla. Cr. 88, 50 P. 2d 239, 243, where the court says:

“The commitment until the fine and costs are paid or satisfied is no part of the punishment, it is the mode of executing the sentence; that is, of enforcing the payment of the fine and costs of prosecution.”

For the reasons above stated, we are of the opinion that the writ should be denied, and it is so ordered.

DOYLE, P. J., and DAVENPORT, J., concur.