text:
    STATE v. E. L. LUMLEY.
    No. A-10662.
    March 5, 1947.
    (178 P. 2d 629.)

      Mac Q. Williamson, Atty. Gen., Dixie Gilmer, County Atty., and Prank Hickman, both of Tulsa, for the State.
    John Connolly, Jr., and Wheeler & Wheeler, all of Tulsa, for defendant in error.
   BRETT, J.

This is an appeal on a reserved question of law from a judgment of the district court of Tulsa county, Okla., S. J. Clendinning, judge, sustaining the motions of the defendant in error to suppress the evidence.

Two criminal cases, No. 11831 and No. 11832, were consolidated since motions to suppress applied with equal force in both cases, and since the facts in each were identical. In both the cases, the defendant, Mrs. Lumley, was charged with grand larceny. In the first case, she was charged with having committed on September 16, 1944, the offense of grand larceny of one kimono at the value of $75 and one string of pearls of the value of $50, or the total value of $125, the same being the property of Mrs. Paul Pearman. In the second case, she was charged with grand larceny of one Leica camera of the value of $200; said theft is alleged to have occurred on or about February 1, 1944, the same being the property of Major Vincent F. Mulford Jr.

After a preliminary trial she was bound over to answer in the district court. Informations were filed and demurrers thereto overruled and pleas of not guilty entered to the same. The defendant filed a motion to suppress the evidence in each case, alleging an illegal search of the defendant’s baggage because the officer was without a search warrant so to do and for the further reason that the defendant was not engaged in the commission of a crime in the presence of the officer.

The motions to suppress came on for hearing on March 27, 1945. The trial court sustained the motions to suppress the evidence and from that judgment this appeal is taken on the reserved questions of law. Therefore, the real question herein involved is, “Is the evidence sufficient to uphold the trial court in sustaining the motions to suppress.”

In order to ascertain the true state of facts in this case, it is necessary to consider the evidence in its chronological order. It appears from the record that Mrs. Lumley, the defendant, lived at the home of Major Mulford where she was employed by Major and Mrs. Vincent F. Mulford Jr., of Tulsa, as governess and housekeeper. Great confidence was reposed in Mrs. Lumley for she was given a cheeking account at the bank in order to make purchases in connection with running the household. It appears further that the home of the Mulfords was undergoing some remodeling and redecoration and that for a period of three or four weeks, Mrs. Lumley had moved over to the house of the Pearmans, where she likewise had full charge of the Pearmans’ home. During the first two or three days that Mrs. Lumley was a resident of the Pearmans’ home, Mrs. Pearman testified that she commenced missing things; that Mrs. Pearman asked Mrs. Lumley about the things that she had missed and Mrs. Lumley turned the blame on other help in the house. An objection was interposed to this testimony and the same was sustained, to which an exception was raised and an explanation was made that the purpose in offering this evidence was to show the facts that the officer had and upon which he subsequently acted. This evidence was clearly admissible. Thereafter, the Mulford family and Mrs. Lumley moved from the Pearman home back to the Mulford premises and on the next day, the defendant left for Mineral Wells, Tex., on a vacation. Mrs. Lumley testified that Mrs. Mulford suggested the vacation and that J. Garfield Buell, the father of Mrs. Mulford, assisted her in making reservations and purchased a round-trip ticket for her. Mr. Buell told her to go and since she was going only for the baths, she would not need much baggage, but when she left, she took two bags and a wardrobe trunk, which aroused his suspicions.

When the Mulfords moved from the Pearmans’ home, into their own home, five corrugated boxes containing personal property of the defendant were packed and moved to the new address. The record discloses that these boxes were labeled, “Personal Property of Mrs. Lumley.” A few small boxes remained in the Pearman home. Mrs. Pearman opened one of these small boxes labeled, “Personal Property of Mrs. Lumley.” The record discloses a state of facts, in relation thereto as testified to by Mr. Buell, as follows, to wit:

(Cross-examination of Mr. Buell by Mr. Gallaher) Mr. Buell:
“Mrs. Lumley left Sunday night. Monday morning Mrs. Pearman called me up and said, ‘Mr. Buell, I hate to bother you but I wish you would come out here’, and I went out — and she said, ‘this matter is very, very, serious’,— and I went out there at the Pearmans’ house and Mrs. Pearman handed me a list of the stuff as long as your arm, and she said, ‘all this stuff is gone’. ” Q. I see. A. And she said nobody could have taken it except Mrs. Lumley. Q. Except Mrs. Lumley. A. And she said, ‘all of her things except three or four little containers have been taken over to Mrs. Mulford’s house’. Q. Yes. A. And she said, ‘I opened one of these little boxes and found my things in here, and here is another one of them’, and I said, — she said, ‘probably I had no right to, but it was tied up with a robe taken to Mrs. Lumley’s room at 1792 East 27th street, and I opened that’, and let’s see, I can give you the list of the stuff that came out of there— Q. I don’t care about the list. You have answered quite fully, Mr. Buell. * * * (Redirect examination by Mr. Hickman) * * * Q. What was that stuff that you found prior to her arrest, before the search warrant was issued? A. Well, this one box that was opened, a brown velvet hat, white silk hat, eyelett hat trimmed with silk violets, velvet coat hangers, and a pink satin gown, and five yards yellow suede and four yards red suede, a rhinestone bag — that came out of that box. Q. Now, that was whose stuff? A. That was Mrs. Pearman’s stuff in her own house that had been wrapped up and marked by Mrs. Lumley, the ‘Property of Mrs. E. L. Lumley’, to be taken to 1792 East 27th street.’ Q. In whose handwriting was that written? A. In Mrs. Lumley’s handwriting. Q. Now was that the only box you went through as that time? A. That was the only box I went through at any time. There was one red wool coat there I think that had given them the first idea. Q. That was in whose house? A. That was in the Pearmans’ house, that is, in the house where the Pearmans live, 1344 East 26th Street. Q. It had not yet been moved over? A. It had not been moved over yet. He had not gotten around to it.”

In view of the foregoing circumstances, Mrs. Pear-man contacted Don Martindale, 'a sergeant of the Tulsa police force, and explained the situation fully to him; that thereafter, Martindale made application to H. E. Chambers, judge of the municipal court of the city of Tulsa, and obtained the issuance of a search warrant to search the room set apart for and occupied by Mrs. Lumley at 1792 East 27th street, the. Mulford home. The search warrant was issued by the said judge to make a search for two pairs of goldhandled scissors, needlepoint chair set, one lady’s brown straw hat, string of pearls, lingeries, beaded bag with oriental design, two wool scarfs, one green and one red. Thereafter, and on or about September 27, 1944, the search warrant was executed in the room set apart for Mrs. Lumley at the Mulford home and certain articles were identified at said time by Mrs. Paul Pearman as being property which belonged to Mrs. Pearman and which had been packed in cartons and labeled by Mrs. Lumley as, “Personal Property of Mrs. Lumley”, and removed to the Mulford home, said property being as follows, to wit:

Brown straw hat, felt hat, black lace hat, green hat, navy blue hat, brown silk hat, green plush hat, white straw hat, brown straw hat, dinner dress belt and buttons in rhinestone, wool scarf, veils, bag of lace, two beanies, red sweater, blue jacket, white bag, two slips, lace collar, crochet cotton, panties, and cape. The record shows enough property was recovered to fill a steamer trunk. On the next day, while Mrs. Lumley was in Texas, the question of whether or not charges would be filed against her was discussed. However, the record discloses that Sergeant Martindale worked on the case from September 27 to October 9, 1944, endeavoring to get additional evidence. The Court refused to let him testifiy in relation to any additional circumstances upon which he based his belief that a felony had been committed. Neither was Martindale permitted to testify why he believed a felony had been committed nor detail the facts upon which such a belief could be predicated. Not to permit him to do so was certainly error. That went to the very crux of the matter of reasonable and probable cause for his belief. The record further discloses’ that subsequent to October 9,1944, a lot of the things that had been stolen were returned to the Pearmans from the East and particularly, Princeton, N. J.

Other than the work that Martindale was not permitted to testify about, nothing was done until on the morning of October 9, 1944.

On said date, Mrs. Lumley was to return from Mineral Wells, Tex., by train. The record discloses that Sergeant Martindale testified that he had reason to believe that a felony had been committed by Mrs. Lumley. His belief, he said, was based upon the fact that upon executing the search warrant on September 27, 1944, he found a great many things that belonged to Mrs. Pearman; that in company with Mr. Buell he went to the railway station and there, together, they met Mrs. Lumley. When the train arrived and Mrs. Lumley got off, Mr. Buell asked her for her baggage checks; that she gave him the baggage checks and then he said to her, “Now we are going to the Mayo Hotel and you are in charge of Sergeant Martindale”, and Martindale said, “Yes, you go with me”, and at that time she was placed under arrest. While at the depot, Mrs. Lumley said something about some of the merchandise that was gone. They left the depot and went by automobile to the hotel, and on the trip Martindale explained to Mrs. Lumley that some of the things were missing out of the Pear-man home. Upon arriving at the hotel, they went to room No. 1008 where the defendant contended repeatedly she hadn’t done anything. Martindale and Mrs. Lumley waited in the room for about 45 minutes until the baggage arrived. Mr. Buell came in and suggested that the trunk probably contained other stolen goods and he told Mrs. Lumley that he would get a search warrant to search the trunk, but Mrs. Lumley said it wouldn’t be necessary. Thereafter, Mr. and Mrs. Pearman came in and Mrs. Lumley opened the trunk herself, with the aid of Sergeant Martindale, and then Mrs. Lumley said, “There they are, if there is anything in there that belongs to you”, and something to the effect’that, “I have nothing to hide.” Thereupon, Mr. and Mrs. Pearman identified a quantity of property in Mrs. Lumley’s trunk as being their property, such as the Mmono, the heads, and a Swiss watch, as well as the Leica Camera, as being the property of Major Mulford, the italicized property being the basis for the said charges herein involved. Moreover, the hat Mrs. Lumley was then wearing, the evidence disclosed, was stolen from Mrs. Pear-man. The record discloses that Mrs. Lumley told Mr. Buell, while at the hotel, that she wanted an attorney, to which he replied that she would “* * * get a lawyer in due course of time.”

The record is conflicting as to the time spent at the hotel, but the police records, as made by the booking officer, show that Mrs. Lumley was taken to the police station and booked in at 11:55 a.m.

Sergeant Martindale made the arrest at the railway station without a warrant and said that he did not obtain a warrant for making the arrest because he believed a felony had been committed and that no warrant was necessary. Charges were not formally preferred against Mrs. Lumley and a warrant was not issued for her arrest until the morning of October 10, 1944. The foregoing state of facts was sworn to by Don Martindale, Mrs. Paul Pear-man, and J. Garfield Buell.

Mrs. Lumley testified that the reason for her arrest and detention was not to obtain stolen goods but that it was to obtain certain letters that belonged to J. Garfield Buell’s daughter. The record does show that she had at one time had in her possession letters belonging to Buell’s daughter and which the daughter had apparently gotten from Sister Ursula. Mrs. Lumley did not deny that when her trunk was searched they found the kimono, some beads, the camera and other things. She contended, however, that they were gifts from the Mulford and the Pearman families to her. In this testimony, Mrs. Lumley is not corroborated save and except in that she did have in her possession these articles, alleged in the information to have been stolen.

It appears from the record, largely through conversation between Mr. Hickman, for the state, and Judge Clendinning, that Mrs. Lumley had already been prosecuted for the theft of some of this property and had been acquitted. One might think from only a casual examination of the record that Judge Clendinning had heard the evidence in cause No. 11831 and No. 11832. In the record it appears that Judge Clendinning said, “I have heard all the evidence in this case; I have heard all the evidence, I tried the whole case.” Notwithstanding the fact that the court was advised that the evidence was obtained from an entirely different source, he persisted in statements to the effect that he had heard the evidence in the two cases at bar. The court may have wanted it to appear that he had heard and passed upon the question herein involved in another and different prosecution. A careful examination of the record discloses that the case that Judge Clendinning tried was not the case of the property that was alleged to have beqn stolen and that was found under the search warrant of the 27th day of September, 1944, but that the case that Judge Clendinning tried was based upon property scattered in the boxes and was altogether different property from that which was obtained under the search of September 27, 1944 and upon which Martindale based his belief for the arrest and search made and conducted on October 9, 1944-As proof of this fact, there is the court’s admission as follows :

“Mr. Hickman: This is what I am trying to inform the court. The case you tried with the jury here was not the case of the property that was alleged to have been stolen that was found under the search warrant on the 27th day of September. The Court: That’s right. Mr. Hickman: That was property found scattered in those boxes. The Court: I know where it was. I know exactly what it was.”

Repeatedly, the court stated that Martindale had no right under the law to arrest Mrs. Lumley; that Martin-dale did not have a right to arrest this woman on a charge of grand larceny; that Martindale did not believe that she had committed a felony; that he did not believe he had a right to arrest her, and that he would be ashamed of himself if he believed such testimony; that he.would not believe the whole police court records. That if an affidavit was filed and a number was assigned to it, the judge issued the warrant and the warrant was served (the one on of September 27, 1944, which is supported by the court return on the back of the search warrant and he had filed it with the clerk of the court; if all of these things were brought before him he would not believe any part of it. And, when pressed as to his sincerity in not believing the records, he said, “not one would I believe.” The court told counsel for the state repeatedly that if he brought the affidavit, the search warrant, the return and inventory, all the police records concerning the search of September 27, 1944 into evidence, he wouldn’t believe them, even if they were in black and white. They were, however, brought in and are a part of the record and appear regular in every particular.

In one place, the record shows in relation to the search of September 27, 1944 which as supported by the court records and the sworn testimony, the court’s attitude as follows:

“Mr. Hickman: You don’t believe they found this stuff out there, your honor? The Court: I don’t believe a word of it. I don’t mean they didn’t find, I just don’t believe it. You want to hurry up with this case because I am getting in a hurry with this case. Is there anything else of this witness?”

A considerable part of the record is devoted to many such expressions of the court. In fact, a most studied effort on the part of the court is disclosed to discourage the state from making a record. Only through the stolid persistence of the state’s counsel was the record finally completed. Once the prosecutor almost weakened when he said “* * * if the court won’t believe these records, there is no use in bringing them into court.” But he didn’t weaken and we find them highly corroborative. Finally, however, after much effort, the special prosecutor put this proposition to the court:

“You know that she was placed under arrest, therefore, it becomes a question, ‘did he have a lawful right to arrest her?’ to which the court replied, ‘that’s right.’ ”

It is apparent that the court was laboring under some preconceived conclusion as to the innocence of the defendant upon which we do not attempt to pass in this opinion. It is evident that the court had his mind made up when the first witness took the stand. Thereafter, the court closed his eyes and his ears and opened the door of his prejudice. Under these conditions, the state’s case was doomed from the beginning. But the court’s admission last referred to brings us to the decisive question in the case— “Was there probable cause to believe a felony had been committed, upon which to base the arrest of Mrs. Lumley without a warrant?” All other questions are incidental, under the statutes of the State of Oklahoma.

The state contends that under the circumstances herein involved, the arrest was lawful since it was made upon the basis that there was reasonable and probable grounds to believe that a felony had been; committed and that no search warrant was necessary to search the property of the defendant. The statutes of the state support this contention, Title 22 O. S. 1941 § 196, which provides:

“A peace officer may, without a warrant, arrest a person subsection 3, “When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it”.

The foregoing section of the statute has been construed in Welch v. State, 30 Okla. Cr. 330, 236 P. 68, 70, wherein the court held:

“If a * * * peace officer arrest a person without a warrant, he is not bound to show in bis justification a felony actually committed, to render the arrest lawful; but if he suspects one on his own knowledge of facts; or upon facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest if not unlawful.”

In so holding, the court cited and quoted, with approval, a case decided by the Supreme Court of the United States, Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, as follows:

“In an opinion written by Chief Justice Taft, this statement occurs: ‘If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient. * * * If a constable or other peace officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful; but if he suspects one on his own knowledge of facts; or upon facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is not unlawful.
“ ‘But, as we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts * * * which in the judgment of the court would make his faith reasonable.’ ”

We believe the rule is clearly therein stated. See Luker v. State, 60 Okla. Cr. 151, 62 P. 2d 255; also, Sallee v. State, 54 Okla. Cr. 217, 17 P. 2d 520, wherein the court said:

“Where the officers have information that a felony has been committed, and where they have reasonable ground to believe that defendant has committed this felony, they may legally arrest him, and evidence obtained in a search of his premises after his arrest is admissible.”

See Tate v. State, 45 Okla. Cr. 96, 281 P. 820, 822, wherein the court said, in quoting from Ex parte Finney, 21 Okla. Cr. 103, 205 P. 197:

“Where officers or others have authority to make arrests upon suspicion that a felony has been committed, to claim protection under the law there must be reasonable and probable grounds for that suspicion. Suspicion without cause can never be an excuse for such action. The two must both exist and be reasonably well founded.”

Also McDaniels v. State, 36 Okla. Cr. 313, 253 P. 1041, wherein the court said:

“Where a felony has in fact been committed, and there is reasonable cause for believing the person about to be arrested committed it, a public officer may arrest such person without a warrant.”

Where an officer makes a lawful arrest, he may take from the person so arrested fruits of the crime, as was said in Washington v. State, 37 Okla. Cr. 415, at page 418, 259 P. 150, at page 151:

“We deem it sufficient to say that only unreasonable searches and seizures are prohibited. The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, or which may be of use as evidence at the trial, is not to be doubted.”

McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006, wherein the court held:

“* * * that one legally arrested may.be searched for property connected with the offense that may be used as evidence against him.”

In Newton v. State, 61 Okla. Cr. 237, 71 P. 2d 122, 123, held:

“Arresting officer may take from person lawfully arrested any instrument of crime or anything reasonably deemed necessary to his own or public safety and admission of such thing or instrument in evidence against person arrested is not objectionable as obtained by unlawful search and seizure.” Griffin v. State, 57 Okla. Cr. 176, 46 P. 2d 382.

In Gaines v. State, 28 Okla. Cr. 353, 230 P. 946, 947, the court .«aid:

“One legally arrested may be searched for property connected with the offense which may be used as evidence against him, or for weapons or things that might facilitate his escape. This would apply to a search for a package of narcotic drugs thrown away by the person at the time of his arrest. State v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 A. L. R. 1398, and notes.”

With the foregoing principles in mind, let us examine the record.

The facts are that Mrs. Pearman had been missing things from her home; that Mrs. Lumley attempted to lay the missing articles upon some of the other help around the house; that when Mrs. Lumley made the trip to Mineral Wells, she took with her a wardrobe trunk and two bags; that when the Mulfords moved into their home, Mrs. Lumley had five (5) corrugated boxes containing what she had labeled “Personal Property of Mrs. Lumley”; that Mrs. Pearman opened one of the boxes that had not been moved from her house to the Mulford home; she found some of her property therein; that she called Mr. Buell and presented him with a long list of stuff that was gone; that thereupon they contacted Sergeant Martindale in relation to these matters; that they thereafter obtained a search warrant from the municipal court to search Mrs. Lumley’s room and effects in the Mulford home; that this search disclosed some of the missing articles as well as some of the articles named in the search warrant. That the property obtained by the search warrant filled a steamer trunk; that Martin-dale continued to work on the case but the court prohibited him from testifying what additional evidence he had as a basis for his belief that a felony had been committed; that certain letters which Mrs. Lumley had taken had been returned to them by Sister Ursula; that Sister Ursula also turned over to the police a kimono which had been sent to her from Mineral Wells, Tex., by Mrs. Lumley; that pursuant to this state of facts, the arrest was made on October 9, 1944, when Mrs. Lumley returned by train from Mineral Wells, Tex.; that upon a search being made of her wardrobe trunk and bags, the kimono, the beads, a Swiss watch and the Leica camera were found among Mrs. Lumley’s effects.

Under this chain of circumstances, we are forced to conclude that the officer had reasonable cause to believe that a felony had been committed. What better reason can be ascribed for his belief than the positive confirmation of the belief as disclosed by the search — the finding of the kimono, the beads, the watch and the Leica camera? This confirmation is proof that Martindale had reasonable grounds to believe that & felony had been committed; that his belief was not merely based upon suspicion of guilt but that his belief was well founded. Had the court permitted the officer to testify to the facts and circumstances within his knowledge and upon which he based his belief, this case might hot now be on appeal here, but as hereinbefore set forth, the court studiously refused such proof when offered. Under these condition's, we are of the opinion that the officer’s belief rose to a higher level than a mere suspicion of guilt and reached that of reasonable grounds for such belief and therefore he had ample reason to believe that a felony had been committed and his arrest of thé defendant was clearly within the statutory provision and the interpretative cases hereinbefore set forth.

The arrest being lawful, the officer had authority under the law and was clearly within his rights as an officer to make the search of Mrs. Lumley’s effects in her custody without a warrant and to thereby disclose the fruits of the crime with which she is charged. We, therefore, are of the opinion, in view of the foregoing authorities and numerous other cases we have reviewed, that the search was lawful and the property thus obtained presented evidence upon which these charges could be predicated against the defendant. Jay v. State, 37 Okla. Cr. 425, 258 P. 1060; wherein the court said:

“A person, lawfully arrested, may as an incident thereto be searched, and incriminating articles found in his possession may be seized.”

See, also, Brannon v. State, 39 Okla. Cr. 207, 264 P. 835, 836, wherein this court said :

“When a person has been legally arrested, either by an officer or a private person, as an incident of such arrest he may be searched and articles found in his possession which may be used in the commission of crime or connected with the offense, or which may be used as evidence against him * * * may be seized.”

See, also, Woods v. State, 37 Okla. Cr. 377, 258 P. 816. In Hammonds v. State, 73 Okla. Cr. 287, at page 290, 120 P. 2d 376, Judge Jones cited Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465, which held as follows [73 Okla. Cr. 287,120 P. 2d 377]:

“As an incident to such legal arrest the person and automobile of the offender may without a warrant be searched for contraband goods.”

In Skinner v. State, 65 Okla. Cr. 371, 87 P. 2d 341, 343, Judge Barefoot said:

“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 light of the foregoing facts and authorities, we are therefore of the opinion that the arrest without a warrant was lawful and the search incident thereto was lawful.

The question has been raised that the officers had ample time in which to get a warrant for Mrs. Lumley’s arrest and a search warrant with which to search her effects on October 9, 1944. The record supports this contention, but we know of no rule of law that, where an officer acting on an honest belief that there is reasonable and probable grounds to believe a felony has been committed, is required to obtain a search warrant, particularly where that belief is well founded, as we believe it is in this case. We are therefore unwilling to censure the officer for not obtaining a warrant for the arrest and search of Mrs. Lumley and her baggage. The officer, of course, is allowed some latitude of discretion and judgment in such matters. The reason he gave for not so doing was a good one. He said they wanted to avoid extradition proceedings — this appears to us to be logical. In many cases where the arrest is made upon belief a felony has been committed, the course herein pursued, as to the arrest, would be not only wise but in keeping with the demands of justice. We cannot escape the fact that when the belief that a felony had been committed was established in the officer’s mind, Mrs. Lumley was then in Texas. If a warrant for her arrest had been procured, she might never have returned to Oklahoma. The law doesn’t require the officer to get a warrant for an arrest where he has reasonable grounds to believe that a felony has been committed. We believe the record clearly supports that conclusion in this case.

We are confronted, however, with quite a different proposition as to the disposition made of Mrs. Lumley after she had been arrested. We do not sanction the conduct of Officer Martindale nor Mr. Buell in taking Mrs. Lumley to the hotel to conduct the search, even if, as the record discloses, they thought it would be less embarrassing for Mrs. Lumley. Certainly, this conduct on the part of the officer and Mr. Buell partakes of the nature of an “inquisitorial examination”, which is modernly known as the “sweat-box”. Lyons v. State, 77 Okla. Cr. 197, 138 P. 2d 142, 140 ,P. 2d 248, affirmed, 322 U. S. 596, 64 S. Ct. 1208, 88 L. Ed. 1481, rehearing denied, 323 U. S. 809, 65 S. Ct. 26, 89 L. Ed. 645. We do not condone Officer Martindale nor Mr. Buell in denying her the aid of counsel when she requested it. She was entitled to that as well as the right to be taken before a magistrate without unnecessary delay, 22 O. S. 1941 § 181, for which the officer may be held to answer in his own proper person for willfully delaying to take such person before a magistrate, 21 O. S. 1941 § 534. When an officer takes a person into custody whom he has reasonable grounds to believe has committed a felony, he should not be taken to a hotel room and there subjected to an examination. The proper place for such examination is at the public prison or jail where such things can be conducted as by law provided, and this court does not sanction the procedure that has been pursued in this case and certainly does not recommend it as a pattern. However, we cannot say from this record that the defendant was injured or could be injured as to the result of the trial that might come from these charges, solely by the fact that she was taken to the Mayo Hotel. It may have been less embarrassing to her. In this connection, People v. Chrfrikas, 295 Ill. 222, 129 N. E. 73, 75, wherein the Illinois court said:

“Of course, the argument of counsel for plaintiff in error that Chrfrikas should not have been taken to the Hearst building by the police officer for examination by Delaney in the officer’s presence is entirely sound. When a person accused of a crime is taken into custody by the public officials he should not be taken to a newspaper office or any other private building, but to a public building where persons charged with crime are usually confined, such as a police station or jail. The taking of an arrested person to a newspaper office for. the purpose of making inquiries of him as to alleged offense is entirely contrary to law and should not be sanctioned, directly or indirectly, by public authorities, but we cannot say from this record that plaintiff in error was in any way injured as to the result of the trial by the fact that he was taken to the Hearst building.”

We likewise so find in the case at bar, and, therefore, are of the opinion that the court, committed reversible error in sustaining the motion to suppress the evidence and this cause is hereby reversed and remanded, with instructions to overrule the motions to suppress evidence and proceed with the trial of defendant.

BABEFOOT, P. J., and JONES, J., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    DICK CAHILL v. STATE.
    No. A-10420.
    March 12, 1947.
    (178 P. 2d 657.)

      Johnson & Jones, of Bristow, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Everett S. Collins, Co. Atty., of Sapulpa, for defendant in error.
   BAREFOOT, P. J.

Defendant, Dick Cahill, was charged jointly with Dr. J. W. Stockton in the superior court of Creek county, Bristow division, with the crime of procuring an abortion upon one Lillian Rheuark; was granted a severance, tried, convicted and sentenced to serve a term of two years in the State Penitentiary, and has appealed.

For a reversal of this case, it is first contended:

“The testimony of the prosecutrix, Lillian Rheuark, was that of an uncorroborated principal (accomplice) upon which a conviction cannot be sustained under the law as prescribed in O. S. A. 1941, 22:742.”

The section of the statute referred to is as follows:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

The statute under which defendant was charged is Tit. 21 O. S. 1941 § 861, and is as follows:

“Every person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, or uses or employs, any instrument, or other means whatever, with intent thereby to procure the miscarriage of such woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not exceeding three years, or in a county jail not exceeding one year.”

And section 862 of the same Title provides:

“Every woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both.”

It is contended that by reason of section 862, above quoted, one who solicits and permits an operation to be performed is an accomplice of the one who performs the act, or who aids and abets therein, and that the one charged may not be convicted upon her uncorroborated testimony. It is admitted in the brief of the state that if this is true, the evidence in this case is insufficient to sustain the conviction against this defendant.

Counsel for defendant in their brief state that this question has been decided by this court contrary to their contention in the case of Wilson v. State, 36 Okla. Cr. 148, 252 P. 1106, 1107, but that the decision in that case is erroneous and not in accord with the later decisions of this court. That case was decided on February 2, 1927, and the exact question has not been before this court since that time. In that case the court, speaking through Judge Edwards, said: ,

“Defendant requested that the court instruct that Thelma May Carter; the woman upon whom the abortion was performed, was' an accomplice, which request was denied by the court. This court has not passed directly upon that question.”

And after quoting the. sections of the statute herein-before referred to, said further:

“Under this latter section a female in an abortion case may be prosecuted. This latter section does not define the same offense as in section 1859 [Tit. 21 O. S. 1941 § 861]. The offense defined is the submitting to or soliciting an abortion upon herself and provides for a different punishment. It is generally held that the woman upon whom an abortion is performed is not an accomplice, but rather is a victim. In 1 R. C. L. pp. 87, 88, § 25, upon the subject ‘Abortion/ it is said:
“ ‘In the absence of any statutory provision to the contrary the accused may be convicted on the uncorroborated testimony of the woman. And even though the testimony that the woman gave before the magistrate on the preliminary examination of the accused was false, a conviction on her uncorroborated testimony may be upheld. Though conviction on the uncorroborated testimony of an accomplice is prohibited, still where under the statute against procuring a miscarriage, the woman on whom it is procured is not liable to indictment, she does not, by consenting to the unlawful operation, become an accomplice in the crime, and this is true even though the woman performs the operation upon herself at the instigation of the accused. The reason for this is that to render one an accomplice he must be punishable for the offense involved, and she is regarded as the victim of the crime, rather than a participant in it. Though as a first impression it may seem to be an unsound rule that one who solicits the commission of an offense, and willingly submits to its commission upon her own person, should not be deemed an accomplice, while those whom she has thus solicited should be deemed principal criminals in the transaction, still in cases of this kind the public welfare demands the- strict application of the general rule as to who are accomplices. * #
“1. C. J. p. 331, § 111 (2), states the rule thus:
“ ‘While a woman on whom an abortion has been performed is not an accomplice so as to require corroboration of her testimony, within the rule requiring evidence in corroboration of an accomplice’s testimony in order to convict, some statutes provide that a conviction shall not be had on the uncorroborated testimony of the woman. * * *’
“Numerous authorities are cited in support of the text. See, also, Hammett v. State, 84 Tex. Cr. 635, 209 S. W. 661, 4 A. L. R. 347.
“The second assignment challenges the instructions of the court No. 11 for the reason that it does not include the witness Thelma May Carter as an accomplice. This contention has been disposed of by what has just been said.”

The Oklahoma cases decided by this court since the Wilson case and cited by defendant are bribery cases, known as the “Oklahoma School Board” cases, and are Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263; and Capshaw v. State, 69 Okla. Cr. 440, 104 P. 2d 282, 289.

We have carefully examined the above cases, and are of the opinion that the law announced therein does not overrule, nor is it in conflict with, the case of Wilson v. State, supra. The decisions in those cases are based principally upon the evidence produced showing that a conspiracy existed between the parties to receive bribes for the doing of the unlawful acts. The evidence sustained this proposition, and it was pointed out in those decisions that there existed ample testimony outside of the principals to corroborate the testimony of those convicted. Here there was no testimony of a conspiracy between the defendant and his codefendant, J. W. Stockton.

We do not think the principles announced in the Wilson case should be overruled by this court. We have examined many cases which sustain the view as expressed in that opinion, and they are cases dealing directly with abortion cases.

In a note appearing in 139 A. L. R. p. 993, this identical question is discussed and all of the cases in which the question has been considered are cited. A number of the cases are identical as to the facts with the Wilson case, and the statutes construed almost identical with the Oklahoma statutes. State v. Tennyson (Minn.) 2 N. W. 2d 833, 139 A. L. R. 987; Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319; Commonwealth v. Boynton, 116 Mass. 343; State v. Carey, 76 Conn. 342, 56 A. 632; Gray v. State, 77 Tex. Crim. R. 221, 178 S. W. 337; Grissman v. State, 93 Tex. Cr. R. 15, 245 S. W. 438; Bristow v. State, 137 Tex. Cr. R. 220, 128 S. W. 2d 818; State v. McCurtain, 52 Utah, 63, 172 P. 481; State v. Smith, 99 Iowa 26, 68 N. W. 428, 429, 61 Am. St. Rep. 219; Smartt v. State, 112 Tenn. 539, 80 S. W. 586.

In the note cited above, at page 994, the author states:

“Majority view. a. In general.
“In a large majority of the cases the view is taken that the woman upon whom an abortion is committed or attempted is not an accomplice to the crime.”

In Oklahoma we have a number of statutes which should be considered in connection with this case: Tit. 21 O. S. 1941 §§ 861 and 862, hereinabove quoted, and Tit. 21 O. S. 1941 §§ 171, 172 and 173, which are as follows:

“§ 171. * * * The parties to crimes are classified as:
“1. Principals, and,
“2. Accessories. * * *
“§ 172. * * * All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals. * * *
“§ 173. * * * All persons who, after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony and with intent that he may avoid or escape from arrest, trial, conviction, or punishment, are accessories.”

And Tit. 22 O. S. 1941 § 742:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

In the case of State v. Tennyson, supra, the court had under consideration the construction of statutes almost identical with Tit. 21, O. S. 1941 §§ 861 and 862, herein-before quoted. The court drew a distinction between the two statutes, one of which charged a person with abortion under a statute similar to section 861 of our statute, and the other similar to section 862, which makes it a crime for a woman to perform or permit an abortion to be performed upon herself. That case holds that these statutes constitute separate and distinct crimes, and that the principals guilty of one crime are not accomplices of those who are guilty of a separate and distinct crime within the rule that the testimony of one cannot be corroborated by that of another. Other cases heretofore cited which are identical in announcing this rule are People v. Vedder, 98 N. Y. 630, State ex rel. Thurston v. Sargent, 71 Minn. 28, 73 N. W. 626.

For the reasons above stated, we are of the opinion that the decision in the Wilson case is sound, and is supported by the great weight of authority, and should not be overruled.

However, this court has often held that while it is not absolutely necessary in rape cases that the prosecutrix should be corroborated in order to sustain a conviction, we have also often announced in these same cases an exception to this rule, that where the evidence of the prose-cutrix is improbable, contradictory, and not of that character which justifies its belief, or where she has been impeached, it will be required that her testimony be corroborated. Reeves v. Territory, 2 Okla. Cr. 351, 101 P. 1039; Morris v. State, 9 Okla. Cr. 241, 131 P. 731; McLaurin v. State, 34 Okla. Cr. 324, 246 P. 669; Williams v. State; 61 Okla. Cr. 396, 68 P. 2d 530; Coppage v. State, 76 Okla. Cr. 428, 137 P. 2d 797; Lancaster v. State, 79 Okla. Cr. 395, 155 P. 2d 548; Gullatt v. State, 80 Okla. Cr. 208, 158 P. 2d 353.

With reference to abortion cases, we see no reason why the same rule should not be applied. Every reason for their application is as strong in abortion cases as in rape cases. Certainly in the instant case there is strong reason for its application.

The Attorney General in his brief says:

“We concede that if the court determines Mrs. Rheu-ark was an accomplice of defendant, and that it was necessary that her testimony be corroborated, the evidence is insufficient to sustain the conviction.”

What, then, are the facts in this case? Defendant was charged jointly in the district court of Creek county with Dr. J. W. Stockton, both of Bristow, Okla., with committing an abortion on one Lillian Rheuark on April 20, 1942. Defendant owned and operated a drugstore in that city, and Dr. Stockton was a chiropractic doctor with offices above the drugstore. The prosecutrix, Lillian Eheuark, was a woman 23 years of age. She had been twice previously married, and was the mother of a child seven years of age. According to the evidence she had previously had an abortion performed by the codefendant, Dr. Stockton, and was acquainted with him when she entered the place of business of defendant on April 17, 1942. She had driven to Bristow from her home in Sapulpa, and was accompanied by her seven-year old son.

The testimony of the prosecutrix was that on the morning of April 17, 1942, she went into the drugstore of the defendant, “and told Cahill that I was pregnant and I wanted to get rid of it, and I told him that I didn’t have any money, that I wanted him to hold my watch until I got the money, and if he would see whether he could get it done like that.” That defendant told her to wait a minute and he would see and he went out in front of the drugstore and called Dr. J. W. Stockton and they talked about five minutes, and defendant returned and told her it would be all right. That she went to the office of Dr. Stockton where “he opened me up as a doctor would a pregnant woman,” using doctor’s instruments that looked like scissors which he inserted in her womb, and that he told her: “If it don’t happen in a week’s time come back and we will open it up again.” That on the next Monday, April 20,1942, she returned to Bristow and went straight to the doctor’s office, where he did as before, and he placed a little piece of wood in her womb. She started to return home and just before leaving Bristow and about a block from the doctor’s office, she had a car Avreck and was taken to the hospital in Bristow, where she had a miscarriage, and was operated on tAvice at the hospital, and the fetus and a block of wood were discharged or removed. She testified that she did not have any financial transactions with Dr. Stockton, but that all her arrangements were with defendant Cahill. That she gave her watch to defendant and told him what she wanted, but never told Dr. Stockton because he knew. On cross-examination she testified that her mother’s name was Perry, and her father was dead. She was married in Florida to a man named Reddick, who was the father of her seven-year old boy. She was divorced four years previous to the trial, and had not remarried until November 15th, and the year of her marriage was not shown. That she had never gone by any name other than that of her mother and her husband, and that of Lillian Bradley and Lillian Rheuark. She testified that on her way to Bristow at the time of her last visit on April 20th, she stopped at a little honky tonk and had them bring her two bottles of beer, which she drank. She talked with the officers after the auto accident and told them her condition and desire to get home. She had never been arrested in connection with the traffic accident, although she did not have a driver’s license, and left the scene of the accident. She admitted that she knew Dr. Stockton prior to coming'to the drugstore “from another time for the same thing.”

A doctor and nurse testified for the state as to the prosecutrix entering the hospital at Bristow and of her miscarriage, and the passing of a foreign substance like bark. Also, to the records of the hospital which were made by another who was not present at the time. This was all of the evidence of the state.

It may be noted that if the codefendant, Stockton, had been on trial and convicted, that the evidence was such that it might be held to corroborate the prosecutrix as to Mm. The defendant did not take the witness stand, but he produced four witnesses in his behalf.

R. W. Williams testified that he was, at the time of the trial, living at Norman, Okla., and was working as a labor superintendent at the Naval Hospital Base there. That he had known the defendant for about 15 years. That he was by occupation an oil field operator and lived at Bristow on April 17, 1942. That he made headquarters at defendant’s drugstore, and that on the above date he was engaged in drafting a map showing the drainage area of some land. That he had been across the street at the hotel where he lived, and when he returned to the drugstore he saw a woman, later identified as the prosecutrix, in the store. That she was drinking a “coke” and then went back to the third booth on the north side of the building, and that witness heard a conversation between her and the defendant. The substance of this conversation is stated in defendant’s brief, and we have carefully examined the record, and find it to be correct. The statement of the testimony as set out in defendant’s brief is as follows:

“She asked Mr. Cahill if he remembered her and said she had been there a year or a year and a half before. She asked him where Dr. Stockton was and asked him to call : him. Mr. Cahill started to the telephone to call Dr. Stockton and the witness had just come across from the hotel and had seen the doctor in an adjacent building to the drugstore watching a baseball board in a pool hall where the boys would come in and wage their money on the major league games. On hearing Mrs. Rheuark ask for Dr. Stockton, the witness himself informed them that the doctor was in the pool hall next door and didn’t say anything further, but Mr. Cahill went to the door and called for the doctor and the doctor and Mrs. Rheuark went back to the third booth where she had been, about twelve feet from where the witness was sitting. They talked about two minutes. Dick Cahill had no conversation at all with this woman, other than to comply with her request to find Dr. Stockton, until after Dr. Stockton left, then she ‘wanted to soak a watch to Dick.’ Dick ran a kind of pawnbroker and money loaning business where witness had seen the boys soak boots and watches, and Mrs. Rheuark wanted to soak the watch to Dick, and Dick wanted to hold her down to $20 on it, and the witness listened to see what kind of a deal they made. ‘She wanted $30 and Dick told her the watch wasn’t worth $30, and he kept trying to get her to take $20, and he drew a check for $35, though the witness didn’t see the check. ‘He drew the check for himself and she signed the check, or wrote on it,’ and Cahill ‘gave her two bills, a twenty and a ten.’ The witness saw the money. When she got the money she went out of the drugstore. Cahill took the watch and the piece of paper and went up to the front of the drugstore and put them in a safe. She insisted that he hold the watch and she said she wouldn’t take a $100 for it and that somebody, either a chauffeur or a truck driver, would be by and pick it up later. At that time the woman appeared to be a little flighty and witness did not know what was said between her and Dr. Stockton, but Dick Cahill on that occasion had no conversation with Dr. Stockton so far as the witness knows. The woman had already talked to Cahill before he went after Dr. Stockton, in that she asked where he was. When Cahill started after Dr. Stockton, the witness told him where Dr. Stockton was and Cahill went to the door and called Dr. Stockton from the front door of the pool room, that is, he stood at his door and hollered in to the adjacent pool room for the doctor and he and the doctor came back together, but did not talk together. Cahill simply told Stockton that there was a lady wanting to see him and that she was back there.”

Dr. J. W. Stockton testified in behalf of defendant. He corroborated the witness Williams as to being called by defendant and of talking to the prosecutrix, of his going to his office, and her soon appearing there. He had no conversation with defendant with reference to performing an abortion on prosecutrix, and the only conversation was that defendant called him and told him a íady was in the drugstore waiting to see him. He testified that she told him she had a bloody discharge, and upon examination he found that she did have, and he gave her the regular treatment for that. That he did not perform an abortion on her. That she stated to him: “I haven’t got any money now, but my sweetie is a truck driver and he will be in in two or three weeks.” He denied using any kind of instrument on her, except, “I took an instrument and put some cotton on it and swabbed the mouth of the uterus and cleaned it out, the way I do in treating cases like that,” and denied placing a piece of wood in her womb.

He further testified to her returning to his office the following Monday, and his examination of her, and discovering that she was going to miscarry, and that he asked her what she had been doing, and she replied: “I have done everything. I have done enough to kill anything.” He told her she had “killed it, and had done a good job of it”; and she said, “I always have to go to a doctor to be cleaned out.”.He testified that he told her: “You just as well not let that bother you because you are going to have to go and the sooner you go the better off you are.” She did not pay him any money. He had no conversation with defendant with reference to treatment of prosecutrix. Defendant at no time intimated or said to the witness that he would pay or stand good for the bill of prosecutrix. The only conversation he had with defendant was that defendant informed him a woman was waiting in the drugstore to see him. This witness further testified that in case of an emergency a chiropractor, under his license, could do anything he felt necessary for the benefit of his patient, the same as a medical doctor, including the use of a knife.

Dr. E. W. King, testifying for defendant, stated that on the night of April 20, 1942, he examined Lillian Rheu-ark at the Bristow General Hospital bnt that he found nothing to indicate to the satisfaction of the mind of the witness that anyone had recently used any surgical instrument, or metallic instrument of any kind on the woman. He found no bruises from any instrument, no cutting or puncturing, or anything of that kind. That the examination was made by the witness, Dr. Schrader and Dr. Reynolds.

On further cross-examination prosecutrix testified to the entering of the drugstore and of the conversation with defendant. She admitted the presence of someone who was working on some maps, fyut said he left the drugstore before the conversation with defendant, and that no one else entered the drugstore or was present during the conversation. She testified to leaving the watch with defendant to hold until she paid him $35. She was asked with reference to signing the check, and she replied:

“A. He wrote the check for $35 and then tore it up. He wouldn’t let me have it.”

At this time she was presented with the check, and admitted it was her signature on the check. She then testified :

“A. He tore one up I am sure. I would swear my heart out on it.”

The check was introduced in evidence and was as follows:

“Community State Bank 86 — 1212
“Bristow, Okla. May 1, 1942 No. — .
“Pay to ................ Cash ................ $35.00 Thirty-five
............Dollars.
“/s/ Lillian Bradley
“910 N. Bryant, Sapulpa, Okla.”

She testified she thought it was about a week before she returned to Bristow and went right to Dr. Stockton’s office. She had two drinks before she got there. The doctor did the same thing to her as he did before. She was all right at that time. When she left the doctor’s office at this time and started home she had the wreck and was taken to the hospital.

It will be noted that there is direct conflict in the testimony of the prosecutrix and the witness R. W. Williams and the codefendant Dr. J. W. Stockton as to the participation of this defendant in this crime, if one was committed. As suggested by Attorney General, there is absolutely no corroboration of the prosecutrix as to the guilt of the defendant. So far as the record is concerned the witness Williams is a disinterested witness. His statement stands un-contradicted except by the testimony of the prosecutrix, and he is corroborated in every detail by the codefendant Stockton. There are two outstanding parts of the testimony of the prosecutrix. One that she first testified that the check signed by her for the $35 was torn up by defendant, and then when confronted with the check and shown her signature, she admitting signing it, but attempted to excuse her former testimony by saying that one check was torn up. The check signed by the prosecutrix was strong corroboration of the evidence given by the witness Williams. The contention of defendant as to the county attorney failing to file charges against the prosecutrix in reference to the traffic accident does not appeal to us. This was a matter to be handled in the discretion of the county attorney and there is nothing in the record to indicate that he did anything but his duty as he saw it.

We are well aware of the rule that has been often announced by this court that where there is a conflict in the evidence and the evidence of the state is sufficient to sustain the judgment and sentence, the case will not be reversed. This rule should of course be considered in connection with the well-established rule heretofore mentioned where in rape or abortion cases it is not absolutely necessary that the prosecutrix be corroborated, but this court as an exception to that general rule will carefully examine the evidence to ascertain if the testimony of the prosecutrix is improbable, contradictory, or not of the charactor which justifies its belief, or that witness has been impeached.

With reference to the testimony of the prosecutrix in this case, it occurs to us from what has heretofore been stated, that her testimony as it pertains to the guilt of this defendant is contradictory and doubtful, in view of the whole evidence as shown by the record in this case.'

There is one other proposition revealed by the record, and that is that the defendant, as hereinabove stated, was charged jointly with Dr. J. W. Stockton. A motion for severance was made and granted, as the law requires in felony cases. Under the law the state then had the right to choose which of the defendants would be tried first. In this instance, the codefendant, Dr. J. W. Stockton, was the principal defendant, as he was the one who allegedly had actually performed the abortion. It would have been but natural to expect that the state would elect to try him first, but instead, the defendant was first tried. It may be that the state had ample reason for its action in first trying defendant, but, while the record here does not disclose the fact, we have been informed by the Attorney General that the case against the codefendant, Dr. J. W. Stockton, has never been called for trial to the present time, but upon numerous occasions has been continued by the state. Defendant was tried many months ago. Several terms of court have passed since that date and the codefendant has not been tried. The trial of one case will not be considered in connection with the trial of a codefendant, nor depend upon the result therein, but it does occur to this court that it would not be exact justice under the evidence in this case to permit this defendant to suffer the penalty of a prison sentence and his codefendant never be tried.

Other questions have been presented by the brief filed in this case, but from what has been heretofore stated, we consider it unnecessary to refer to them.

For the reasons above stated, we are of the opinion that the judgment and sentence of the superior court of Creek county, Bristow division, should be reversed, and the case remanded. It is so ordered.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    Ex parte ROY J. SISTRUNK.
    No. A-10831.
    March 12, 1947.
    (178 P. 2d 627.)

      Homer Cowan, of Norman, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam Lattimore, Asst. Atty. Gen., and James B. Hester, County Atty., of Norman, for defendant in error.
   JONES, J.

This is an original proceeding instituted by the petitioner, Boy J. Sistrunk, for the purpose of be•ing admitted to bail upon a charge of robbery with firearms now pending against him in the district court of Cleveland county.

The verified petition.alleges that the said Boy J. Sis-trunk is deprived of his liberty and restrained in the county jail of Cleveland county by reason of a commitment issued by the county judge of Cleveland county, committing him to the county jail after a preliminary examination had on a complaint wherein the petitioner was charged with having committed the crime of robbery with firearms; that an information was filed in the district court of Cleveland county on January 7, 1947, charging the petitioner with the crime of robbery with firearms allegedly committed upon the person of one Kenneth Butledge on July 19,1946; that the proof is not evident nor the presumption thereof great that petitioner is guilty of a capital offense; that petitioner has made application to be admitted to bail to the district court of Cleveland county, which application was denied.

Attached to the petition and made a part thereof was a transcript of the evidence taken at the hearing before the district court of Cleveland county upon the application for bail. At the hearing before this court, the petitioner testified in his own behalf in support of his application, and other witnesses also testified in behalf of the petitioner in support of his alibi. It was the contention of the petitioner that he was outside the State of Oklahoma and in Rawlins, Wyo., at the time the alleged crime occurred.

Article 2, section 8 of the Oklahoma Constitution provides as follows:

“All persons shall be bailable by sufficient sureties, except for the capital offenses when the proof of guilt is evident, or the presumption thereof is great.”

Title 22, O. S. 1941 § 1102, provides as follows:

“Bail, by sufficient sureties, may be admitted upon all arrests in criminal cases where the punishment may be death, unless the proof is evident or the presumption great; and in such cases it shall be taken only by the Criminal Court of Appeals or a district or superior court, or by a justice or judge thereof, who shall exercise their discretion therein, having regard to the nature and circumstances of the offense, and of the evidence and to the usages of law; but if the case has been tried by jury, and the jury have disagreed on their verdict, then the above presumption is removed, and the defendant shall thereupon be entitled to bail, unless it shall appear to the court or judge thereof, by due proof, that such disagreement was occasioned by the misconduct of the jury.”

Under the above-quoted constitutional and statutory provisions, the right to bail in a capital case is absolute, unless the proof is evident or presumption great that the .defendant is guilty as charged and that in case of conviction he probably would receive a life sentence or death.

Without expressing any opinion upon the weight of the evidence, it is our conclusion that under the evidence petitioner is entitled to bail in a reasonable sum.

It is therefore ordered that the petitioner be admitted to bail in the sum of $15,000, said bond to be conditioned as provided by law, to be approved by the court clerk of Cleveland county; that when said bond is given and approved by the court clerk of said county that petitioner be discharged from custody.

BAREFOOT, P. J., and BRETT, J., concur.