author: PER CURIAM.

text:
    BYFORD et al. v. STATE.
    No. A-11040.
    Dec. 7, 1949.
    (212 P. 2d 476.)

      ft. O. Swimmer and Earl E. James, Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The defendants, Harold Eugene Byford and George A. McCully, were jointly charged with the possession of intoxicating liquors by information filed in the court of common pleas of Oklahoma county. A motion to suppress was filed on behalf of each defendant, but 20 days after filing withdrawn as to Byford. A bearing was bad on tbe motion for McCully, tbe said defendant testified, and both sides introduced evidence, and tbe motion to suppress was by tbe court overruled, and exceptions allowed.

Thereafter, and on December 15, 1947, the case came on for trial, and tbe defendants were tried and separate verdicts were returned, each defendant being found guilty and sentenced to pay a fine of $500 and each to serve six months in jail.

Tbe defendants have perfected their appeals to this court. Tbe petition in error contains some 20 assignments of error, but in brief said assignments are argued under seven propositions, as follows:

“(1) Tbe trial court erred in upholding tbe search and seizure as no search warrant was ever issued.
“(2) Tbe trial court erred in overruling defense objection to the introduction of evidence.
“(3) Tbe trial court erred in upholding tbe search and seizure which was not incidental to or ‘related to’ tbe arrest which bad been made for a different and wholly foreign crime, carrying a pistol.
“(4) Tbe arrest for carrying a pistol, being but a subterfuge for tbe illegal search, tbe unlawful and unreasonable search should not have been upheld.
“(5) The trial court erred in failing to declare a mistrial upon making of prejudicial statements by county attorney.
“(6) County attorney committed reversible error in argument to jury.
“(7) The evidence is insufficient to show commission of crime by defendant Harold Byford.”

Counsel argue the first four propositions together, the fifth and sixth together, and the seventh alone. We have had the benefit of a supplemental brief filed by both defendants, and also a separate reply brief filed for the defendant Harold Eugene Byford. We shall, however, first consider the action of the trial court in overruling the motion to suppress filed by the defendant McCully. By reason of this unusual fact situation and there being some difference in the evidence at the hearing on the motion and at the trial, our treatment will require some repetition of pertinent evidentiary matters.

On motion to suppress, the defendant McCully testified, but first used Dwight E. Brown, chief of detectives, Oklahoma Police Department. Mr. Brown testified in substance that his department received a call shortly after midnight, and on September 5, 1947, from Officer Muse that he and Officer Voegle had located a truckload of liquor and that they had a flat tire on their car and wanted assistance; that he immediately got up and drove to the Shaver’s Tourist Courts; across from the Taylor School (further described on cross-examination as being outside the city limits located on U. S. Highway 62 northeast of Oklahoma City, and on the road otherwise known as Northeast Twenty-third Street Boad) where he had been directed to come, and when he arrived he found one deputy sheriff out in front, and back in the tourist courts, in a public place, he found Officers Grady Muse, George Yoegle, and Noah Richmond, found defendant McCully in custody, and that the defendant had a cab-over-engine Ford truck parked there with a seal on the back end; that McCully accompanied by Officer Muse drove the truck to the sheriff’s office in Oklahoma county; that the defendant Harold Byford drove up at the east end of the alley at the sheriff’s office and asked McCully if he had the key to the back end of the truck, and that McCully answered in the affirmative and stated that By-ford said: “Let me have it”, and McCully gave Byford the key, and Byford went to the rear of the truck, unlocked it and after some difficulty with the seal, opened the doors and said: “There it is”. Mr. Brown further testified that Officers Turner, Borden, Taylor, and others were present; that the liquor was then removed from the truck to the basement of the sheriff’s office for storage.

Defendant McCully admitted on hearing that his truck was loaded with approximately 4,032 pints of whisky and 128 pints of ale. He testified that he drove up to the tourist court, locked his truck and went to the office to get a room and to telephone a “fellow” whom he later identified to the defendant Harold Eugene By-ford, whom he was supposed to meet there, and that he was waiting for him when the officers came up; that his truck was water-tight and the cargo could not be seen or identified without opening the back truck doors; that both the truck and the liquor belonged to him; that he was 31 years of age and that his occupation was cook, waiter and truck driver, and that at the time of hearing he was working as a waiter at a cafe on North Broadway, Oklahoma City; that on September 5, 1947, he had owned the truck in which he was then hauling whisky for about three months; that he got the load of whisky about 20 miles southeast out of Oklahoma City from wholesalers; that defendant Harold Byford was purchasing the whisky but had not paid him for it, and was not to pay until he received the whisky. Defendant admitted that he did not have enough money to pay for the load, but stated that some unnamed person loaned him part.

Concerning his arrest defendant McCully stated that, “Well, I stepped out the back door. I had been talking to Mr. Byford, using the telephone, and the officers drove up. I stepped out the back door and they arrested me.” McCully testified that no search warrant was served on him. He stated that the officers called him over to them, among them being Officers Muse and Borden. He further stated that he was armed with a .38 calibre pistol, that he did not have on a coat, and that the pistol was stuck in his right-hand pants pocket with the handle sticking out; that the officers took his pistol and searched him and told him to get in his truck and drive it to town and Officer Muse accompanied him. He denied telling Muse on the way to town that he was working for Byford, but stated that he told him that he worked for him once in a while; that he had done a job or two for Byford. He admitted that Byford broke the seal to the cargo after he and Officer Muse were at destination in the alley at the sheriffs office on the north side of the Oklahoma county courthouse.

The state offered the evidence of Officers Muse, Borden, and Richmond. Officer Muse testified that he and Officer Borden saw the truck (McCully’s) as it was driven into the Shaver Tourist Courts and that as soon as the county officers, Richmond and Voegle, arrived, they went to the truck and flashed their lights on it, and about that time defendant McCully stepped out of the office at the courts and the officers could observe that he had a pistol in his right-hand pants pocket, the handle sticking out; that they had information that he would be armed; that one of the sheriffs deputies arrested Mc-Cully for carrying a pistol; that he, Muse, was asked to ride to the sheriff’s office with McCully; that on the way, in conversation, McCully told him that he was working for defendant Byford; that it could be readily seen that the truck was heavily loaded by reason of the difficulty in stopping and starting in the city traffic. That McCully stated that he was carrying a pistol to protect his load from hi-j ackers. They parked the truck in the alley on the north side of the courthouse; that defendant Byford came up. “He said, ‘I suppose you want this opened,’ and went around to the back and he was unable to break the seal with his bare hands, and so he went to the cab of the truck and either got a pair of pliers or screw-driver from the back of the seat, and went to the back of the truck and broke the seal with this object and threw the seal under the car.” Byford was not in custody and his action was voluntary. He obtained the key from McCully and his remarks were made in McCully’s presence, and without protest from him.

Officer Borden’s testimony concerning the arrest was substantially the same as that of Officer Muse. He stated that there was no attempt to stop the truck on the highway or to search the truck or take charge of it, and that McCully was not arrested until the county officers observed that he was armed. Deputy Sheriff Richmond testified that Deputy Voegle arrested McCully and that he saw Voegle take a pistol out of McCully’s waist band.

In considering McCully’s motion to suppress, we are bound by the rule that where there is any evidence tending to reasonably support the findings, of the court, the action of the court will be sustained. See Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99.

Two questions are involved: Was the arrest of Mc-Cully in accordance with law, and, in the absence of a search warrant, was the search of defendant’s truck legal? The answer to both questions is yes, based on the facts recited. Section 1272 of Title 21, O. S. A. 1941, provides:

“It shall be unlawful for any person in the State of Oklahoma to carry upon or about his person any pistol, revolver, * * * or any other offensive or defensive weapon, except as in this article provided.”

This statute has been construed in the case of Pierce v. State, 42 Okla. Cr. 272, 275 P. 393, and conclusively answers the first question.

Concerning the search, it will be noted that no effort was made to search the cargo truck of the defendant following his arrest. The truck was parked and locked and some 50 feet from the office of the tourist courts, the keys were not obtained nor was McCully asked anything about the cargo, but he was directed to drive to the sheriff’s office at Oklahoma City, and Officer Muse was asked by one of the deputies to accompany him. The voluntary statement by McCully to this officer that he was carrying the pistol to protect his “load”, without disclosing the nature of the load, was not sufficient to justify search. It is true that on trial Officer Muse testified that McCully stated that he was hauling a load of whisky, which voluntary statement in itself would have justified a search, McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006; Miles v. State, 31 Okla. Cr. 4, 236 P. 907; Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273, yet on motion to suppress that was not brought out, so that on arrival at the sheriff’s office, under the facts disclosed, the officers had no right nor authority to search the truck. This statement is supported in principle by the following cases: Taylor v. State, 118 Okla. 262, 247 P. 377; Edwards v. State, 83 Okla. Cr. 340, 177 P. 2d 143; Wallace v. State, 42 Okla. Cr. 143, 275 P. 354; Crim v. State, 78 Okla. Cr. 153, 145 P. 2d 444, and Dean v. State, 37 Okla. Cr. 396, 258 P. 812.

And as stated in the Crim case, above:

“Whether a search of or seizure from an automobile, parked on a public street, without a warrant, is or is not unreasonable within the meaning of the constitutional provision forbidding unreasonable searches and seizures, is a judicial question to be determined in each case in view of all the facts and circumstances under which the search or seizure is made.”

But before McCully had gotten out of his truck, after arrival at the sheriff’s office, something happened, that in connection with the prior statements of McCully, amounted to a waiver by McCully of his constitutional rights guaranteed him under art. 2, § 30, of the Bill of Rights (See Camp v. State, 70 Okla. Cr. 68, 104 P. 2d 572, holding that such rights may be waived). The man whom he stated he was to have met at the Shaver Tourist Courts, and with whom he was engaged in conversation by telephone when the officers arrived at the courts, drove up, was recognized by at least several of the officers, and he approached McCully, who was still seated in the cab of the truck. Byford stood shaking his head and looking up at McCully. And prior to any effort or demonstration by the officers with reference to the truck and its cargo, Byford, as has been recited, and who was not under arrest, in the presence of the officers and McCully, said: “I suppose you want this opened,” and he asked McCully for the key, and then proceeded to open up the cargo of whisky to the view of the officers, and said: “There it is.” His action was strictly voluntary, and did not draw protest from McCully, who Officer Muse had testified had previously told him, on the drive to the sheriff’s office, that he was still working for Byford. McCully impliedly acquiesced in Byford’s statement and action. See 1 Words and Phrases, Perm. Ed., page 633, where it is said: “Acquiescence is a consent inferred from silence; a tacit encouragement.”

McCully bad denied that he stated to Muse that he was working for Byford, but this court must give full weight to all evidence supporting the action of the court in overruling the motion to quash. Mitchell v. State, supra. These facts taken in connection with the prior statement-s of McCully to Muse justified, and in fact made imperative, the search. See sections 1 and 82, Title 37 O. S. A. 1941, section 196, Title 22 O. S. A. 1941, and Clark v. State, 78 Okla. Cr. 423, 149 P. 2d 994; Tripp v. State, supra; McAfee v. State, supra, and Miles v. State, supra.

Thereafter, on trial, neither of the defendants testified. Officers Muse, Turner, Borden, Brown and Richmond again testified. Additionally, Deputy Sheriff George Voegle testified on behalf of the state. The defendants used but one witness, Y. Y. Burks, Oklahoma county jailer. The testimony of the witnesses who testified on motion to suppress on the whole was substantially the same, except that Officer Muse further testified on the trial that in his conversation with defendant McCully, on the way from the tourist courts to the courthouse, Mc-Cully told him that he had a load of whisky. Also, the defendant Byford, when he was voluntarily unlocking the rear doors of the truck driven by McCully, stated that there were four cases of ale in the truck, which was for his own personal use and that he wanted the officers to leave it in the truck, that it was not unlawful to possess ale. The ale or beer was taken to the storage room, then Byford went down and soon the beer was brought back out, but Deputy McGrew ordered it taken back, and did not permit Byford to keep it. The state on trial failed to show that the ale, which was labelled “Black Label Beer,” contained more than 3.2 per cent alcohol by weight, and under such facts, so far as the beer is concerned, its possession was not unlawful, and the defendant By-ford was entitled to the same. State v. Manard, 85 Okla. Cr. 105, 185 P. 2d 483.

Officer Brown testified that after Byford opened the truck and it was being unloaded, he said: “It is pretty hard to lose that kind of stuff”, and “I wonder if those fellows know they are carrying better than half a hundred on their shoulders eyery time they go by here.”

Y. Y. Burks, county jailer, was called as a witness by defendants, and testified that on September 5, 1947, at 3:20 a. m., G. A. McCully “was booked with ‘Carrying Concealed Weapons’ ”; that at 2:50 a. m. he was charged with possession of liquor. He further testified that his records disclosed that the defendant Byford was not charged or arrested at that time. He was arraigned on September 8, 1947.

It is apparent that in the beginning Officers Muse and Borden had no authority or legal cause to arrest Mc-Cully or search the truck being driven by him. The case of Brinegar v. United States, 338 U. S. 160, 69 S. Ct. 1302, 93 L. Ed. —, cited by the Attorney General, concerns the Congressional Prohibitory Act of 1936 [see 18 U. S. C. A. § 1262], is contrary to the uniform holdings of this court, because of the distinction between Federal and state laws pertaining to search and seizure. The dissenting opinion by Mr. Justice Jackson, concurred in by Justices Frankfurter and Murphy, considered in principle, is more in line with the view of this court with reference to search and seizure. But the officers did not attempt to search the truck or to stop it, but they determined to keep it in view, and ’phoned the county officers when the truck was observed to enter the Shaver Tourist Courts. Later, the officers flashed their lights on the truck in question but could not observe tbe liquor they thought was being hauled. Still, without a warrant they could not search. They could not even arrest McCully, except that when he came out of the tourist court’s office, it was observed that he was armed with a pistol; and as we have seen, by reason of section 1272, of Title 21, O. S. A. 1941, it was the duty of the officers to arrest McCully, a misdemeanor being committed in their presence. This they did, but made no effort even then to search the truck.

We would emphasize that in this case there is not involved the question of whether or not the whisky was discovered incidental to a lawful arrest, because no search was ever attempted using the arrest as a basis for search.

By reason of the facts stated, we conclude that there was sufficient evidence before the jury to support the charge of possession as to the defendant Harold Eugene Byford. He convicted himself, as did McCully. He demonstrated complete knowledge as to the contents of the truck. And while the defendant McCully had the cargo of liquor in actual possession and control prior to the appearance of By ford, yet the jury could consider the circumstances that he readily gave Byford the key to the cargo, that Byford took possession of the beer to take home, was prevented by the officers from doing so, but so far as McCully was concerned, he was acquiescing in the activities of Byford and recognized his authority in connection with the cargo, and Byford appeared to do all the talking after he arrived. It is therefore the view of the court that the facts proven beyond a reasonable doubt are such as to exclude every reasonable hypothesis inconsistent with the guilt of the defendants, and thus meets the test announced in Starr v. State, 63 Okla. Cr. 302, 74 P. 2d 1174, and in Courtwright v. State, 79 Okla. Cr. 270, 154 P. 2d 588, and cases cited.

Defendants complain of statements of the county attorney in his argument to the jury. He read the court’s instructions to the jury and then attempted to illustrate the meaning, and was corrected by the court in one instance. We have read the record and do not find reversible error.

By reason of the foregoing, the verdict of the jury and the judgment of the court based thereon finding the defendants guilty as charged, is affirmed.


source: Caselaw Access Project

author: POWELL, J.

license: Public Domain

text:
    FOSTER v. STATE.
    No. A-11016.
    Dec. 14, 1949.
    (213 P. 2d 290.)
    Robt. H. Warren, Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Virgil Foster, was charged in the county court of Choctaw county with the unlawful possession of intoxicating liquor; was tried, convicted and sentenced to serve 30 days in the county jail, and pay a fine of $50 and costs, and has appealed.

Defendant perfected his appeal to this court, and thereafter filed a brief and supplemental brief. The Attorney General has orally expressed to the court his intention not to file a brief herein, because of the strength of the defendant’s position from a legal standpoint.

We have carefully read the record and defendant’s briefs. At the trial of the case, the state offered but one witness, the sheriff of the county, and in his direct examination we find the following:

“Mr. Jenner [The County Attorney] : We offer the search warrant in evidence. By the Court: It may be admitted. By Mr. Warren [Attorney for Defendant] : We object to the introduction of the search warrant in evidence in this cause. By the Court: Overruled.”

This error was raised in the motion for new trial, the petition in error, and in the briefs of defendant.

In the case of Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476, 477, this court held:

“The recitations in the search warrant and the return thereon tended to establish facts very materially against the defendant. The intent to barter, sell or otherwise dispose of intoxicating liquor contrary to law is a material element of the offense of unlawful possession of intoxicating liquor. The defendant did not take the witness stand; his character had not been placed in issue. The admission of the warrant placed the character of the defendant in issue which was highly prejudicial.
“So far as we are advised, this court has in every instance where such question has been raised,-reversed the conviction of the accused and held the admission of a search warrant as independent evidence of defendant’s guilt was prejudicial error.” Citing a long list of cases.

With the conclusion established that the court committed error in permitting the state to introduce the search warrant over the objection of the defendant, it is unnecessary to discuss the other propositions presented in plaintiff’s brief.

The judgment of the county court of Choctaw county is reversed.

JONES, P. J., and BRETT, J., concur.


author: JONES, P. J.

text:
    STATE ex rel. VAHLBERG et al. v. CRISMORE, Judge.
    No. A-11334.
    Dec. 14, 1949.
    (213 P. 2d 293.)

      Cantrell, Carey & McCloud, LeRoy Powers, John Eberle, and Fred L. Hoyt, Oklahoma City, for petitioners.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., Granville Scanland, County Atty., and Russell Holloway, Asst. County Atty., Oklahoma City, for respondent.
   JONES, P. J.

This is an original proceeding for a writ of mandamus to compel Evert Crismore, judge of the court of common pleas of Oklahoma county, to certify his disqualification in two cases now pending before him.

The duly verified petition, briefly summarized, seeks disqualification of the respondent upon two grounds, namely: First, that the respondent has frequently discussed with the county attorney of Oklahoma county, in the absence of defendants and their counsel, the merits of certain objections to jurisdiction, pleas in abatement, and motions to quash informations which have been filed in certain cases before the respondent affecting the petitioners, and has discussed the merits of said cases to such an extent that said judge has become personally prejudiced against the defendants; secondly, that commencing in July, 1949, the Daily Oklahoman and Oklahoma City Times, published in Oklahoma City, commenced a campaign to convict the petitioners of certain alleged criminal offenses involving the purchase of property at tax sales held in Oklahoma county, and since July, 1949, the said papers have been openly and continuously hostile to the petitioners, and have published statements that the defendants were guilty of the offense charged; that the said respondent judge is closely connected and associated with the reporters for said newspapers because of his connection with the Oklahoma Press Association Annual Gridiron Dinner, and that said judge feels indebted to the said Publishing Company for his appointment to the judicial office which he now occupies, and for that reason the said judge is legally prejudiced to such an extent that he is disqualified to act fairly in the cases pending before him affecting the rights of the petitioners.

A verified response was duly filed in which respondent specifically denied that he had discussed the merits of the cases affecting the petitioners with the county attorney, or members of his staff, or with newspaper reporters, or any other individuals; and he specifically denied that he was prejudiced against the accused or that he was of such a mind that would prevent him from serving as an impartial judge.

The cause was set for hearing and evidence introduced. The petitioners wholly failed to introduce any evidence to support their allegation that the respondent had conferred with the county attorney, or members of his staff concerning the merits of the case pending before him.

On the other hand, the evidence affirmatively showed that such had not been done.

The petitioners showed that commencing on or about July 25, 1949, and continuing to the date of the hearing, the daily newspapers published in Oklahoma City had carried on a newspaper campaign in which they had given publicity to alleged facts and circumstances surrounding the selling and purchasing of real property in Oklahoma county, at tax sales conducted by one of the petitioners when he was acting as county treasurer of Oklahoma county. In many of these articles, the petitioners were mentioned by name, and many statements were published purportedly relating activities of the three petitioners in connection with certain tax sale proceedings. The proof further showed that the respondent had assisted in preparation of the musical program presented by the Oklahoma Press Association in connection with their annual Gridiron dinner, and in that connection that he was on friendly terms with news reporters; that in addition, two of the reporters for the Daily- Oklahoman, along with many other citizens of Oklahoma county, had made recommendations to the Governor for the appointment of the respondent to his present position as judge when a vacancy arose in said office early in 1949.

It is the duty of the Criminal Court of Appeals to consider a petition for a writ of mandamus when a duly verified petition is filed seeking to disqualify a judge from trying a criminal case. State ex rel. Nowakowski v. Lockridge, County Judge, 6 Okla. Cr. 216, 118 P. 152, 45 L. R. A., N. S., 525, Ann. Cas. 1913C, 251; Ingles v. McMillan, Judge, 5 Okla. Cr. 130, 131, 113 P. 998, 45 L. R. A., N. S., 511; Dowell v. Hall, 85 Okla. Cr. 92, 185 P. 2d 232.

Every person accused of crime is entitled to nothing less than the cold neutrality of an impartial judge, and where the circumstances are of such a nature as to cause doubts as to the impartiality of a judge, the error, if any, should be made in favor of the disqualification rather than against it, for the reason that the state has an interest in the standing, integrity, and reputation of its courts. Such prohibitions are plainly intended for the general interest of society, by preserving the purity and impartiality of the courts and fostering the respect and confidence of the people for their decisions. State ex rel. Bennett v. Childers, District Judge, 188 Okla. 14, 105 P. 2d 762; Dennison v. Christopher, 19 Okla. Cr. 467, 200 P. 783.

Captious and unwarranted accusations of bias should be discouraged. The determination of the judge who will preside at the trial of one accused of crime should not depend upon the whim or trivial accusation of the accused.

It is unnecessary to make further comment on the evidence adduced to support the allegations of the petition. It is sufficient to note that such evidence was wholly insufficient to afford a substantial basis for this court ordering the disqualification of the respondent.

It is therefore ordered that the petition to disqualify the Honorable Evert Crismore, judge of the court of common pleas of Oklahoma county, division number two, be and the same is hereby denied.

BRETT and POWELL, JJ., concur.


author: BRETT, J.

text:
    EDWARDS v. STATE.
    No. A-11184.
    Dec. 14, 1949.
    (213 P. 2d 296.)

      John L. Ward, Jr., Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Jack Edwards, was charged in the court of common pleas of Tulsa county, Qkla., with the offense of driving an automobile without a driver’s license as provided by law, was tried, convicted and sentenced to serve a term of 30 days in the county jail, and has appealed. Petition in error with case-made attached was filed on December 16, 1948. The defendant had 30 days from the date of filing his petition in error to prepare, serve and file in this court his brief. Prom the time of the filing of the appeal herein no brief has been filed, and no one appeared for the defendant. Under Rule No. 6 and Rule No. 9 of this court this case is summarily submitted on the record. Rule No. 6 provides in part as follows:

“* * * In misdemeanor cases where no brief is filed by plaintiff in error within 30 days after filing his petition in error, and no extension of time to file brief is granted, the court may summarily submit the cause without notice to the counsel for plaintiff in error for decision, under Rule 9.”

Rule No. 9 of this court provides as follows:

“9. When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.

We have examined the information filed herein and the same alleges that the defendant did unlawfully, willingly, knowingly and wrongfully drive and operate a motor vehicle, to wit, a 1948 Cadillac sedan, bearing Oklahoma license No. 2-36186, over and upon the public highways of this state at the intersection of 15th and Peoria streets in the city of Tulsa, Okla., without first obtaining a driver’s license therefor. It furthers appears in the information and the evidence that the defendant as a prior offender was convicted on the 1st day of December, 1947, of driving without a driver’s license in the municipal court of Tulsa county, Okla., and was fined $50 therefor, and on the 25th of July, 1948, he was likewise convicted of driving without a driver’s license in the court of common pleas of Tulsa county, Okla., and was sentenced to serve 25 days in the county jail. We find the information to sufficiently charge the offense alleged, and is supported by the evidence. We have likewise examined the instructions of the court and find that no exceptions ivere taken thereto and that they contain no errors lire judicial to the substantial rights of the defendant. So also we have found no error in the judgment and sentence. Therefore, finding no prejudicial error in the record, the judgment of the court of common pleas of Tulsa county, Okla., herein rendered is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.


text:
    ROTHROCK v. STATE.
    No. A-11048.
    Dec. 21, 1949.
    (213 P. 2d 291.)
    Raymond A. Trapp, Blackwell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Andrew Rothrock, was charged by information filed in the district court of Kay county, with the crime of petit larceny after a former conviction of a felony, was tried, found guilty by the jury who left the punishment to be fixed by the court; the trial court thereupon sentenced the defendant to serve two years in the State Penitentiary, and he has appealed.

The single proposition presented by the appeal is whether the evidence is sufficient to sustain the conviction.

Lawrence Stewart testified for the state that he and the defendant were together most of the day on July 12, 1947; that they drank beer together that day; that a little after dark, he and the defendant went to the Kasl Drug Store to secure some dice; that the witness went up to the man at the cash register and asked for a particular type of dice, and was informed that they did not have that kind of dice; that as the witness started to leave the store, he saw defendant standing by a table in the center of the store; that he saw defendant pick up a clock and place it under his shirt; that when they got on the outside of the store, defendant said, “this is worth four of five dollars to me”; that they were riding in defendant’s car, and when they arrived at the car, defendant took the clock out of his shirt and threw it into the back seat of the car; that they then went to the Bradshaws and stayed until about midnight; that when he went home that night, he took the clock for the purpose of returning it to the drugstore, but did not do so; that he- was arrested two days later for the theft of a fan, and told the police about the clock, and the police recovered it from the home of Stewart’s parents where Stewart lived.

Archie McAlester testified that he was in the Kasl Drug Store the night of July 12, 1947; that he saw Lawrence Stewart and the defendant in the store; that he was not personally acquainted with defendant, but knew him by sight; that he knew Stewart personally; that he was watching Stewart, and as Stewart started to leave the store, saw him turn to speak to some one, and at that moment saw the defendant pick up a clock on the table and take it with him.

A clock which had been previously identified by the witness Stewart was shown to McAlester and he testified that the clock that he saw defendant take from the table in the drugstore was similar to that clock; although he did not pay particular attention to it. He testified the clock was not wrapped, that no clerks were near defendant when he took the clock, and he did not see defendant pass any money to anybody or have any conversation with anyone; that defendant was dressed in khaki; that later that evening he reported to the manager of the drugstore what he had observed.

Harold R. Hutton, manager of the Kasl Drug Store, testified that the store had a clock similar to the one introduced in evidence which was recovered from Lawrence Stewart, on display in their store on July 12, 1947; that they only had one clock of this type which was a Sessions electric clock, and that its loss was discovered about 10 p. m., July 12, 1947, after Archie McAlester related the incident to them.

W. R. Withrow, chief of police, testified to the recovery of the clock at the home of Lawrence Stewart’s parents in Blackwell; that Stewart did not tell him anything about the clock until after the clock had been recovered, at which time he related the story to which he testified.

The defendant did not testify, but two witnesses testified in his behalf that they were present at the Bradshaws on the evening in question and saw the defendant; that he was dressed in a light shirt with dark trousers. This evidence was introduced for the purpose of refuting the testimony of the witness McAlester that the defendant was dressed in khaki clothes the night the clock was taken.

Although, Lawrence Stewart denied any complicity in the theft of the clock, there was ample evidence from which the jury could conclude that he was an accomplice, and in passing on the sufficiency of the evidence, we assume that the witness was an accomplice under the evidence, and' that his testimony must be corroborated in accordance with the law by independent evidence which tends to connect the accused with the commission of the offense before a conviction may be sustained. Tit. 21 O. S. 1941 § 172.

It cannot be said that the state made a strong case against the defendant. The clock was found in possession of the witness Stewart. However, the evidence of the witness Archie McAlester positively connected the accused with the commission of the crime. The fact that two witnesses for the defense testified that defendant was dressed differently the night in question to the way Mc-Alester said he was dressed, went to the weight of Mc-Alester’s testimony. Although we might have reached a contrary verdict if we had been on the jury than that which was arrived at by the jury, still this court should not invade the province of the jury where there is sufficient evidence, if believed by a jury, to support the conviction.

In Pooler v. State, 70 Okla. Cr. 199, 104 P. 2d 733, 105 P. 2d 553, this court stated:

“Where the evidence is conflicting, the weight of the evidence and the credibility of the witnesses is for the jury. This court will not substitute its judgment for that of the jury and the trial judge, where there is evidence reasonably tending to support the conclusions arrived at by the jury.”

The jury was unable to agree upon the punishment and the trial court sentenced the defendant to two years’ imprisonment in the penitentiary. After a full consideration of the all the facts and circumstances as disclosed by the record, it is our opinion that the judgment and sentence is excessive and should be modified to one year.

It is therefore ordered that the judgment and sentence of the district court of Kay county be modified from two years imprisonment in the State Penitentiary to a term of one year imprisonment in the State Penitentiary, and the judgment and. sentence as thusi modified is affirmed.

BRETT and POWELL, JJ., concur.


text:
    Ex parte AYERS.
    No. A-11260.
    Dec. 21, 1949.
    (213 P. 2d 297.)
    Guy L. Andrews and George L. Hill, McAlester, for petitioner.

      Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   BRETT, J.

The petitioner Clinton Albert Ayers filed this original proceeding in habeas corpus to secure his release from confinement in the Pittsburg county jail.

The Attorney General made response alleging that petitioner had been arrested pursuant to warrant of arrest from the State of California, and further alleging the Governor of the State of Oklahoma, acting upon requisition of the State of California, had issued an extradition warrant for the said petitioner and directing Bill Alexander, sheriff of Pittsburg county, Okla., to deliver the petitioner to one Albert Gustave Kirchner, the agent of the State of California, for transportation back to California. The documents upon which the extradition warrant was based were attached to Governor Roy J. Turner’s Warrant on Foreign Requisition. These papers, among other documents, include the California Governor’s certification as to the authenticity of the attached complaint, information, judgment and commitment by the Adult Authority fixing the sentence, the subsequent granting of parole by the said Adult Authority, and its action in suspending the parole of the petitioner, all authenticated and certified as by law provided.

At the hearing the following undisputed facts were developed: The petitioner was convicted in Stanislaus county, Calif., on September 17, 1943, for the crimes of issuing fictitious bank checks with intent to defraud on five counts, for which petitioner was sentenced to the State Prison at San Quentin for a term of eight years on each of said counts, to run concurrently. It was further made to appear that the petitioner was released on parole on January 30, 1946, with approximately 2y2 years remaining to be served under conditions of the said parole, which said parole was suspended and revoked on September 6, 1946. Under the terms and conditions of said parole, among other things, the said Clinton Albert Ayers was not to leave the city of Escondido, Calif., without the oral or written permission of his parole officer, and he was further required to report to his parole officer his whereabout and to make monthly reports in relation thereto. It appears that petitioner left the State of California without oral or written permission of his parole officer so to do, and that he further failed to submit his July, 1946, monthly report due on or before August 5, 1946. That in leaving the State of California, as herein-before set forth, he violated the provisions of section 3059 of the Penal Code of said state. As evidence of the fact that he left the said State of California, it appears that he was committed to the Oklahoma State Penitentiary at McAlester, Okla., on November 26, 1946, to serve a term of five years for the crime of forgery from McIntosh county, Okla. That pursuant to the revocation of his parole and the issuance of warrant for his arrest by the authorities of the State of California, upon his release from the Oklahoma State Penitentiary at McAlester, Okla., on May 3, 1949, he was taken in custody by the sheriff of Pittsburg county, Okla., and since that date has been held pending this proceeding in extradition. Moreover, it appears that the suspension and revocation of his parole was within the parole period or limits of the sentence imposed, by the State of California.

It is the contention of the petitioner that as the time fixed by the judgment and by the parole has long since passed, he is not a fugitive from justice, and therefore is entitled to be released on habeas corpus.

This contention is wholly without merit. In Ex parte Patrick 86 Okla. Cr. 61, 189 P. 2d 420, 421, it is said:

“To be a ‘fugitive from justice’ within meaning of federal law dealing with extradition, it is sufficient that person legally charged in demanding state with commission of crime within such state when sought to be subjected to its criminal process for the offense, has left its jurisdiction and is found within the jurisdiction of asylum state upon whose executive requisition is made. 18 U.S.C.A. § 662 [revised § 3182].”

In Ex parte Burnett, 78 Okla. Cr. 93, 144 P. 2d 126, it is said:

“When a prosecution is initiated and pursued to judgment of conviction, accused before expiration of his sentence is still ‘charged’ within the meaning of the provisions of the United States Constitution and laws relating to extradition.”

The record herein conclusively shows that the petitioner was duly and lawfully charged by information by the State of California, a lawful and valid judgment and sentence pronounced against him, that he was placed upon parole the terms and conditions of which said parole he violated, all of which facts are set forth by documentary evidence attached to Governor Warren’s certificate for requisition, and all of which are duly verified and authenticated as by law provided. It appears that by reason of his failure to make his reports, and by leaving the State of California and coming to Oklahoma without permission, the Adult Authority of that state adjudged him to be a parole violator within the time of his parole period and before the maximum time for service of his sentence had expired, and placed a valid hold order against him with the Oklahoma authorities. It is therefore clear that he was not only a law violator and a fugitive under the original conviction, judgment and sentence which stood unsatisfied at the time of the parole revocation, but he was a violator because of his failure to make his reports, and for leaving the state without permission he became a fugitive from justice. It is therefore clear that under the undisputed facts in the case, the statutes of the State of California, the mandatory provisions of his parole, the law in relation to extradition and the adjudicated cases, that the petitioner is a fugitive from justice and therefore subject to extradition. The burden under this contention is upon the petitioner to show that he is not a fugitive from justice. Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37, 38, which burden he has not met.

Finally, the petitioner urges the requisition for extradition is inadequate since it is predicated upon an instrument purported to be a minute of the Adult Authority of the State of California, made and executed by the Executive Secretary thereof, who certifies it as a true and correct minute of said authority, and that the same does not meet the requirements of law for extradition, in that it should be established that said Adult Authority had power to revoke the parole. This contention goes to the proposition of the validity of the revocation of the parole. In Ex parte Burnett, supra, this court said:

“The validity of a parole, and later revocation by the Board of Prison Terms and Paroles of California, is a question for the courts of California, for they alone have a right to construe the Constitution and laws of that state.”

See, also, Ex parte Foster, supra; Ex parte Williams, 10 Okla. Cr. 344, 136 P. 597, 51 L.R.A., N.S., 668; Ex parte Hamilton, 41 Okla. Cr. 322, 273 P. 286. It is, therefore, clear that the validity and effect of the parole herein, and its later revocation by the Adult Authority of California, involves matters properly to be left to the courts of the State of California for adjudication. For all of the above and foregoing reasons, the writ of habeas corpus is accordingly denied.

JONES, P. J., and POWELL, J., concur.


text:
    LAYMAN v. STATE.
    No. A-11013.
    Dec. 21, 1949.
    (213 P. 2d 300.)
    R. O. Green and White & Parris, Eufaula, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

Defendant, Alonzo Layman, was charged in the county court of McIntosh county with the unlawful possession of intoxicating liquor, to-wit: One gallon of whisky. He was tried, convicted, sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

The only question presented is as to the validity of the search warrant, and the failure to suppress the evidence secured by reason thereof. No written motion was filed prior to the trial, and no hearing had or evidence offered thereon, as is the usual procedure followed. The question was first raised when the sheriff of McIntosh county was placed upon the witness stand and began to testify as to the search of defendant’s premises. The objection was overruled, and counsel for defendant at the close of the trial made an oral motion to suppress the evidence, and a motion for a directed verdict, which the court overruled, after excusing the jury and considering the motion as a question of law.

The evidence revealed that the sheriff of McIntosh _ county, Clarence F. Douglas, procured a search warrant for the purpose of searching the premises of defendant for intoxicating liquor. These premises were described in the search warrant, which was introduced in evidence without objection and with the consent of the defendant, as follows:

“* * * in said county and state, to wit: At and on the Ei/2 NE% & 8W% NE*4 & S% NW% & N% SE% & N% SW14 of section 34, township 9 north, range 14 E. same being the residence, home and place of abode of the said Alonzo Layman, together with the barns, smokehouse, crib, grainery, garage, and other buildings and houses thereon * *

The evidence revealed that the defendant’s home and improvements were located on 40 acres of the above-described land, to wit: the southwest quarter of the northeast quarter of said section. That all of the land described in the search warrant was owned by the defendant. There were four sets of improvements on the land. Mrs. Brandon, the mother-in-law of defendant, lived in one of the houses on an 80-acre tract, Fred Farbolt lived on a portion of the acreage, and a man by the name of Billy Matthews lived on a portion. All of the land was contiguous, and no section lines were open. The 40 acres occupied by defendant was separately fenced. The sheriff and one of his deputies, after securing the search warrant, went directly to the premises of defendant, whom they had known for a number of years. In the absence of defendant, the search warrant was served on his wife, and a search of the premises, including the barns and outhouses, was begun. Sheriff Douglas soon found one gallon of “moonshine, non-taxed” whisky, buried about 10 feet from defendant’s house. Deputy Sheriff W. P. Franklin also saw this whisky as it was dug up. Both officers testified it was whisky. Defendant was later arrested sand charged with the unlawful possession of same.

Defendant ivas placed on the witness stand, but was only questioned with reference to a description of the premises, the four sets of improvements thereon, and the occupation by the three different parties. He did not deny the possession of the whisky, or say that he had it for his own personal use.

Counsel for defendant, for reversal of this case, contend that at the trial the undisputed evidence showed there were other families living on and having control of portions of the acreage described in the search warrant; that defendant occupied only 40 acres of the 360, and that therefore the search warrant was what is known as a blanket search warrant; and that it did not meet the requirements of the law with reference to a proper description of the premises searched.

The defendant cites but two cases: Aldridge v. State, 72 Okla. Cr. 298, 115 P. 2d 275, and Herrion v. State, 79 Okla. Cr. 48, 150 P. 2d 865.

In the Aldridge case [72 Okla. Cr. 298, 115 P. 2d 276], the premises involved were described as:

“Chas. Aldridge and upon the following described premises, located as follows: Claremore Rooms East 2nd St., City of Wewoka in Seminole county, Oklahoma. * * -*??

The evidence showed that the Claremore rooms was a four-family apartment house, two up and two downstairs. Defendant lived in one apartment downstairs. He did not own the building, only had control of one apartment. This court, opinion by Jones, J., reversed that case, holding that the warrant was intended to operate, and did operate, as a blanket search warrant, covering the private place of abode of several people, and was therefore void, citing United States v. Inelli, D. C., 286 F. 731, which has been cited with approval by this court many times.

In the Herrion case, the search warrant described 80 acres of land, being: “Lots 1 and 2, in section 5, 1 south, 3 east, known as Alta Vista Cabins, occupied by Elbert Herrion.”

The evidence disclosed that in addition to the cabins allegedly under the control of the defendant, there were four other farm houses located on this tract. This court held the warrant to be a blanket search warrant, and reversed the case.

The Attorney General, while admitting that the two cases cited by defendant sustain his position, cites a number of cases as not being in harmony with the said two above cases, and being: Reutlinger v. State, 29 Okla. Cr. 290, 234 P. 224; Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297; Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109: Peters v. State, 71 Okla. Cr. 175, 110 P. 2d 300; Staley v. State, 73 Okla. Cr. 355, 121 P. 2d 324.

We shall not lengthen this opinion by taking up each of these cases, but shall consider here the two cases of the list quoted from by the Attorney General and said not to be in harmony with the Aldridge and Herrion cases, and being Reutlinger v. State, supra, and Staley v. State, supra.

In the Reutlinger case [29 Okla. Cr. 290, 234 P. 226], the court said:

“It is claimed further that the affidavit and warrant cover too much territory — 2,160 acres. It has been held that, when there is probable cause to believe that a person owning and in possession of several different premises, covering which a search warrant is sought, is in possession of contraband goods, the several premises in his possession may all be included in one search warrant. That being true, it would seem that the ‘place to be searched/ within the meaning of the Constitution and the statutes, might include all of a ranch, however large. * *

We do not find any conflict as contended, for the reason that there is no dispute but that Reutlinger owned and had exclusive possession of the' entire 2,160 acres. It may be that he had hired hands and servants. The record is silent as to that. The important thing is that he had exclusive possession, whether in person exclusively or in person and by others.

In the Staley case [73 Okla. Cr. 355, 121 P. 2d 325], the affidavit stated that liquors were being kept in violation of the law by defendant on “Lots 12 to 19, in Block A of the Dewaides Addition in the City of Elk City, Beckham County, State of Oklahoma.” It was further alleged that the premises described were not the private residence of the defendant or any other person. It developed on trial that defendant did not occupy or have control of lot 12, but that it was a vacant lot belonging to another, and not within the curtilage of any residence. There was no other building or improvements of any kind on any of the property described in the search warrant other than the building leased by the defendant, and consisted of a filling station, dance hall and restaurant in the same building. There could be no misunderstanding from the description in the search warrant as to the property to be searched, because, as stated, there was no other improved property described, and defendant had control of all improvements, so that it was held that the search warrant was not a blanket warrant.

In the late case of Wallace v. State, 89 Okla. Cr. 365, 208 P. 2d 190, in an opinion by Brett, J., this court held :

“Where a search warrant describes premises upon which are located more than one house in which persons reside other than the accused, the same is what the law denominates a blanket warrant, and is ordinarily insufficient in law to sustain a search.”

In the above case the search warrant described the premises as a “frame building occupied by Ernest Wallace, used as such and also as a storage for liquor; also barns, caves, garages, and all outbuildings located on * * * Lot 1-2-3-4 in Block 85 in that part of the City of Hugo known as Original Townsite, Choctaw County, Oklahoma * * *.”

It developed from the evidence that Block 85 had been intersected by “A” Street, and that Lots 1 and 2 were located on the west side of “A” Street and Lots 3 and 4 were located on the east side of “A” Street, and that on each side of the street there was located a frame building, the defendant owning the building on the west side of the street, and being a grocery store, and the building on the east side of the street being owned by another person and used by the Hugo Candy Company. There was no language in the search warrant to distinguish between the buildings. It is pointed out in the opinion that:

“This court has held that the test of the sufficiency of a search warrant is, whether an officer unfamiliar with the location of the defendant’s premises would have had difficulty in locating it from the descriptive averments contained in the warrant, without seeking aid from any other source than that set forth in the warrant.”

It is true that many of the cases that have had the attention of this court have been close cases, and in order to understand the rules of law announced, it is necessary to give careful study to the facts in the respective cases. The within cases should be distinguished from the cases where there may have been minor errors in the legal description in search warrant, where the description may have been by metes and bounds, and question of meaning raised, misspelling of street name, or question as to correctness of street number, and questions of fact raised.

In the within case, the defendant owned the 360 acres described, it is true, but he only had exclusive possession of 40 acres. As a basis for a search warrant, an affidavit has to be filed setting out facts, and the person having knowledge of facts sufficient to justify the issuance of a search warrant would certainly be able to particularly describe the place to be searched. In the present case, the sheriff obtained from the county clerk’s office, a description of the entire farm, and apparently had knowledge that only 40 acres were under control of the defendant. It would have been an easy matter from the plat of the entire tract to have isolated the tract that he knew to be fenced off, occupied and under the control of the defendant, and to have described that. It would have required very little more trouble, and thereby he would not have included homes, though merely occupied by other persons as lessees, that nevertheless were just as much entitled to protection from unlawful search due to alleged law violation of the landlord or lessor, as would be the home of the citizen with fee-simple title. As it was, the sheriff from the description given could not have determined what particular house on the 360 acres was occupied by the defendant and the sheriff was not limited in his search. The fact that he did not search the other homes makes no difference. This sheriff appears to have been a reasonable and conservative person, but that fact does not guarantee that other officers at other times would be.

Here it came to pass that one gallon of whisky was found buried in the defendant’s yard, and the law would presume that having such quantity of liquor, defendant had it for sale. But it is too easy for the prosecution, and sometimes the courts, in order to convict a person of some particular infraction of the law where the guilt is beyond doubt, to overlook basic rules that stand in the way, and by so doing whittle away that freedom guaranteed by our Constitution, and that forms the basis of true democracy. It might be profitable for more of our citizens to review the struggles of our ancestors and the price they paid in blood and tears to give us the freedom we now enjoy and to give us a country the oppressed peoples look to with supplication and yearning. The last 30 years have demonstrated with startling and dramatic force the price a people may pay by giving way to the exigencies of the moment, —liberties they may never regain. It. is the duty of the courts to stand firm in the protection of such rights. See Bill of Rights, § 30; Tit. 22 O.S.A. § 1226; Tit. 37 O.S.A. § 184.

The language used in United States v. Inelli et al., 1923, supra, is most appropriate and illustrative of what we have in mind. The court, by per curiam opinion, said:

“This motion concerns the law of arrests, searches, and seizures. They have been made time out of mind. The power to make them is an absolutely necessary power. Experience, however, has taught us that the power is one open to abuse. The most notable historical instance of it is that of lettres de cachet. Our Constitution was framed during the seethings of the French Revolution. The thought was to make lettres de cachet impossible with us. Protective guards have in consequence been thrown around us, to lessen the harrassments and violations of individual rights to which we might otherwise be subjected. Such laws are seldom intentionally violated. What usually happens is that, in the zeal to perform one duty, the other is disregarded or remains unknown. This innocence of motive, however, is no justification. The law, and all laws, must be regarded. This is expected of all good citizens. To the judges it is a special command. Let it not be forgotten that there were prohibitions in the Constitution before the Eighteenth Amendment. Among them are the Fourth and Fifth. If they afford protection to the guilty, this is the price to be paid for the general good. One prohibition is that no one shall be compelled to give evidence against himself. If anything in the possession of the accused is taken from him by unlawful force, to be used in evidence against him, it cannot be so used in violation of his rights.
“The present motion is based on this proposition. The evidence here was secured by a search warrant. The question, then, is: Did this search warrant issue in accordance with law? The rights and privileges saved to individuals by the Constitution cannot be lessened. Congress may accord as much, more protection as is thought to be well. It is to be noted that by the Constitution arrests, searches, and seizures are not forbidden. It is only unreasonable ones which are prohibited. Search warrants are not condemned, but the issuance of them is regulated.”

For the reasons hereinbefore mentioned, the judgment and sentence herein involved should be and the same is hereby reversed, and the defendant ordered discharged.

JONES, P. J., and BRETT, J., concur.


text:
    PADGETT v. STATE.
    No. A-11038.
    Jan. 4, 1950.
    (213 P. 2d 580.)

      John A. Cochran, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Tommie Padgett, was charged by information in the court of common pleas of Tulsa county, Okla., with the commission of a misdemeanor, of being in unlawful possession of 16 pints and 3 fifths of tax-paid whisky in Tulsa county, Okla., on the 24th day of October, 1947. A jury was waived and the case was tried to the court, the defendant found guilty and sentenced to 60 days in jail and to pay a fine of flOO, and judgment entered accordingly.

The defendant assigns numerous grounds for reversal in his petition in error, hut it will only be necessary to consider assignment No. 3, to the effect that the court erred in overruling defendant’s motion to suppress the evidence, the defendant contending it was obtained under an illegal search and seizure. The facts upon which this contention is based are in substance as follows to wit: Defendant had leased a vacant filling station in the city of Tulsa which he later opened and was operating at the time of the trial of this action. On the occasion in question he had driven his automobile onto the driveway thereof and was crawling into a window to inspect the interior of the premises. Officers Rains and Whisenhunt, deputy sheriffs, were driving past the station and saw the defendant’s feet protruding from the window. They testified they suspected that a burglary might be in progress and turned around and came back to the station. The record shows they immediately recognized the defendant’s car by the license tag and associated it with the defendant, and the whisky business. They saw an empty cardboard half carton with the word “whisky” on it up behind the back seat. They did not see any whisky. Nevertheless, they searched the automobile. The officers said they did not know a crime was being committed. They did not talk to the defendant before they searched his automobile, and they made no arrest of him prior to the search, as revealed by the following excerpt from the record:

“Q. You didn’t know — I will ask you this, you suspected that a crime was being committed? A. Well, we thought maybe there might be something wrong there, there was a vacant building. Q. But you didn’t know that a crime was being committed? A. No, that is why we turned around and went back down there, to see what was going on. We saw this man’s feet and legs protruding from this station, crawling in through an open window. Q. Before you ever talked to the defendant, did you search his automobile? A. Yes, we saw a cardboard box up there in the back, could see the word ‘whisky’ on it, so then we proceeded to search, and called the defendant out there while the search was going on. Q. But you didn’t arrest him prior to the search, did you? A. Well, we arrested him immediately after we found the whisky. Q. All right, but I want to ask you just what you saw in the automobile? A. Up in the back there was — this was the best I can remember, what they call a town sedan, and there is a back part up there. There was an empty — later turned out to be an empty carton, whisky carton, but when we saw that, we opened the door and on the floor of the car was a sack, one of these conventional zipper bags.”

It therefore appears, when they recognized the car they suspected it would contain whisky, and that the operator thereof was in possession of whisky. The officers no longer entertained any idea of a burglary being committed. Seeing the half whisky carton (which the record shows the original carton had been sawed in halves) up above the back seat, they opened the car and began to search. The box they found to be empty. Notwithstanding the fact they found no whisky in the half carton or the box, and though fully aware that they could not detect by their five senses any evidence of whisky in the car, they continued to search the automobile without a warrant. Incident to the search so made they found some whisky in a zipper bag wrapped in a raincoat between the front seat and the front end of the car and two boxes containing whisky in the back end of the car. Thereupon they arrested the defendant for unlawful possession of whisky with the resulting charge and conviction herein complained of. To this showing the defendant interposed his motion to suppress the evidence. Clearly, under the law, the motion should have been sustained.

In Reininger v. State, 59 Okla. Cr. 406, 60 P. 2d 629, the officers admitted they went to defendant’s home and drove into his yard and up near his house; they had no warrant for his arrest or to search his premises or his car. (Such are the substantial admitted facts in the case at bar. The defendant was on his leased premises where he had a right to be and his automobile was parked thereon.) In the Reininger case the officers started on their search before anything was said to the defendant about making a search thereof. Such was the situation in the case at bar. Hence, we are not confronted with the question of a waiver of defendant’s right to demand a search warrant. This court in the Reininger case said:

'“Where the officer does not know of the act constituting the offense, it is not committed in his presence.
“The search of the car without a warrant of arrest or search warrant, or knowledge by the officer that it contained whisky, held illegal, and evidence should be excluded upon timely objection.”

In Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433, 434, this court said:

“Where an offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted to be committed in officer’s presence.
“A peace officer may arrest without a warrant in the case of a misdemeanor only where it is committed or attempted in his presence. And where the officer does not know of the act constituting the offense, it is not committed in his presence.
“Whether a search of or seizure from an automobile, * * * without a warrant, is or is not unreasonable within the meaning of the constitutional provision, forbidding unreasonable searches and seizures, is a judicial question to be determined in each case in view of all the facts and circumstances under which the search or seizure is made.”

See, also, Jones v. State, 82 Okla. Cr. 91, 166 P. 2d 443; Crim v. State, 78 Okla. Cr. 153, 145 P. 2d 444; Patty v. State, 74 Okla. Cr. 322, 125 P. 2d 784, 788, wherein this court said:

“This court has held in a great number of cases that the search of an automobile without a search warrant and not as an incident of a legal arrest, but upon a mere suspicion of the commission of a misdemeanor, is a violation of article 2, sec. 30, of the State Constitution, and that the evidence obtained by such unlawful search is inadmissible against the defendant. Whitford v. State, 35 Okla. Cr. 22, 247 P. 424; Bowen v. State, 50 Okla. Cr. 36, 295 P. 623; Mosier v. State, 59 Okla. Cr. 106, 56 P. 2d 908; Lamb v. State, 59 Okla. Cr. 360, 60 P. 2d 219; Bush v. State, 64 Okla. Cr. 161, 77 P. 2d 1184; Ketcham v. State, 63 Okla. Cr. 428, 75 P. 2d 1159; Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433, 434.”

Here, the search was not predicated upon an arrest either lawful or otherwise. It was based on suspicion from the start. It has been repeatedly held that suspicion cannot form the basis for a lawful search and seizure. In Evans v. State, 71 Okla. Cr. 239, 110 P. 2d 621, this court said:

“An automobile is not such an agency that officers may search it at any time or place merely because they have suspicion that liquor is stored therein.
“The search would be illegal unless the officer procures a search warrant for said vehicle or an offense is being committed in the presence of the officer that would justify the arrest of the person in the possession of the automobile.
“As a rule two elements must concur to constitute an offense in the presence of the officer: (1) The facts or elements constituting the offense must be revealed in the presence of the officer. (2) The officer must perceive and have knowledge that such offense is being committed.”

In the case at bar the officers at no time before the search could detect by the aid of their five senses that the automobile contained whisky. They therefore had no knowledge that a misdemeanor was being committed in their presence before the search. This case should not be confused with Griffin v. State, 90 Okla. Cr. 90, 210 P. 2d 671, wherein the search and seizure was predicated and sustained on the proposition that the words “whisky” and “distillery” were seen on a full, unbroken, sealed carton as the same came from the distillery, labeled as provided by law, and seen as the carton was being delivered by a wholesale bootlegger to a retail bootlegger. The situation therein was different from that herein involving a broken, empty half carton. The two cases are clearly distinguishable and should not be confused. The discovery of the whisky herein involved being made as the result of an unwarranted search, based upon mere suspicion, not made incident to a lawful arrest, the evidence thus obtained would not be admissible. The discovery of the whisky would not validate a search unlawful from the beginning. The search must be justified by the steps that precede it, and these steps must be lawful in their entirety. Edwards v. State, 83 Okla. Cr. 340, 177 P. 2d 143. The evidence in this case being secured by an unlawful search and seizure contrary to the provisions of § 30, art. 2 of the Constitution (Bill of Rights) was improperly received in evidence, and timely objection being made thereto in the defendant’s motion to suppress should have been sustained. The evidence herein involved was therefore improperly received in evidence. This case is accordingly reversed and remanded, with directions to dismiss.

JONES, P. J., and POWELL, J., concur.


text:
    KILPATRICK v. STATE.
    No. A-11050.
    Jan. 4, 1950.
    (213 P. 2d 584.)

      W. F. Smith, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, W. E. Kilpatrick, was charged in the county court of Woodward county, with the crime of petit larceny, was tried to a jury, found guilty, and pursuant to the verdict of the jury was sentenced to serve 30 days in the county jail and pay a fine of $100.

The following specifications of error were presented in the brief of defendant:

“1. The State of Oklahoma failed to prove the venue of the alleged crime by direct or circumstantial evidence.
“2. The State of Oklahoma failed to prove the ‘corpus delicti.’
“3. The trial court erred in refusing to allow testimony impeaching the prosecution witness.
“4. The trial court abused its judicial discretion in refusing defendant a continuance because of the absence of a material witness.”

As to the first assignment of error, the record does not disclose in the evidence presented on behalf of the state any direct proof of venue, and very little circumstantial evidence, if any, from which venue could be inferred. At the close of the evidence of the state, counsel for defendant demurred to the evidence on the ground that the state had failed to prove that a crime had been committed under the laws of the State of Oklahoma, which was overruled. The defendant then testified, and it is conceded that counsel for defendant in his examination proved, that the venue of the prosecution was in Woodward county, by showing the location of the premises involved in the prosecution. At the time judgment and sentence was pronounced, the trial court made a specific finding that the crime was committed in Woodward county.

In the early case of Brunson v. State, 4 Okla. Cr. 467, 111 P. 988, it is stated:

“Only those allegations in an indictment which involve the guilt of a defendant are to be proved beyond a reasonable doubt.' The venue of an offense does not come within this class, but there must be some proof of venue.”

Venue does not have to be proved beyond a reasonable doubt and may be proved by circumstantial evidence. However, venue must in some way be proven. Thompson v. State, 89 Okla. Cr. 383, 208 P. 2d 584; Fannin v. State, 65 Okla. Cr. 444, 88 P. 2d 671.

In Edwards v. State, 25 Okla. Cr. 167, 219 P. 427, it is stated:

“The record shows that the trial and conviction were had in Hughes county, in the county court of said county. This court will take judicial notice that the only place of holding the county court in Hughes county is at Holdenville, and that the judge of this court at the time of the alleged offense and at the time of the trial was Owen H. Bives.
“The testimony shows that the defendant sold one gallon of Choc beer at the Mecca Cafe, and that this Choc beer was an intoxicating liquor, and that the Mecca Cafe was owned and operated by the defendant; that one of the witnesses was taken, immediately after the sale of this intoxicating liquor, to the office of the county judge, and that the county attorney and the sheriff were present; that this witness had been arrested for the same offense by T. H. Whaley, city marshal, who took the witness to the office of the county judge. It was shown that this was at the time that Owen Allen was drunk ‘down here at the cafe’; also that some negroes were there (at the cafe) in a drunken condition; that there was also an immediate investigation at the ‘police court over there.’
“From all of this we conclude that the offense was committed in Holdenville, in Hughes county; that while it would have been better practice to have proved the venue directly, in our opinion the circumstances shown in proof are sufficient to establish the venue. We do not mean to hold that, as to the defendant, there is a presumption that the offense proved was committed within the county where the case was tried, but only that where it is apparent that the court and the jurors have personal knowledge of the places named by the different witnesses, tending to show that the offense was committed within the county, and the defendant desires to challenge the venue, he should do so by a request for an instructed verdict because of insufficient proof of venue, and also as a ground for a new trial, in order that the trial court might determine this issue. No objections to the venue were interposed in this case.”

In the instant case, the prosecuting witness stated that he lived on a particular street, but did not name the city or county. He stated that the slaughterhouse from which the corn was taken was northwest of town just west of the Katy roundhouse, but did not state what town or county.

Dan Potts and Eóy Fields each stated that they were policemen in the city of Woodward, and on March 6,1946, they went to the roundhouse and later to the slaughterhouse of the prosecuting witness, and arrested the defendant at the slaughterhouse, but did not state in what county or city it was located.

R. W. Walker testified that he was jailer of Woodward county on the date in question, and made an investigation of the supposed crime, but did not testify directly that it occurred in Woodward county.

The question of venue does not pertain to the guilt of an accused of the crime of which he stands charged. It is solely a question of the court’s jurisdiction over the particular offense alleged in the information. In the instant case, the question of venue was not specifically raised and counsel for the defendant in the direct examination of the defendant when he testified in his own behalf asked him specifically about the location of the property involved, and defendant stated that it was near the city of Woodward in Woodward county.

Adhering to the rule established in the case of Edwards v. State, supra, it is our conclusion that where “the defendant desires to challenge the venue, he should do so by a request for an instructed verdict because of insufficient proof of venue, and also as a ground for a new trial, in order that the trial court might determine this issue.”

In the instant case, the question of venue was raised in the motion for new trial, and the trial court made a specific finding of. fact that the offense occurred in Woodward county.

We find little merit to the contention that the corpus delicti was not proven.

Ivan Mills, the prosecuting witness, testified that he was engaged in the slaughtering business, and that his slaughterhouse was located west of the roundhouse on the north side of the Katy railroad tracks; that the defendant lived about 200 feet west of the slaughterhouse; that at the slaughterhouse there were other buildings belonging to the prosecuting witness, including a granary, corn shed, hog shed, and hog feeder; that the place was fenced with a hog wire fence with barb wire on top of it; that just prior to March 6, 1946, he had been missing some shelled corn; that finally he started to stay at his place at night trying to see who was taking his corn; that on the third night he had gone out there to watch, he was sitting down behind a knoll when he heard some corn being thrown into a bucket. It was shortly after dark. He saw the defendant and his son inside of the prosecuting witness’ fence. When he first saw defendant, he was scraping corn out of the feeder. He started toward them and stepped on a stick causing it to pop. When the defendant and his son heard the noise, they commenced to run and Mills yelled at them to stop or he would shoot. By that time, the son had crossed the fence, but the defendant was still on the inside of Mills’ fence. There were two buckets nearly full of shelled yellow corn on the inside of the fence, and two empty buckets on the outside of the fence. The buckets would each hold three or four gallons of corn. The corn was worth $1.75 per .bushel. Mills took the two Kilpatricks to the roundhouse, called the officers to come after them.

The prosecuting witness did not specifically state that the corn was being taken without his knowledge or consent, but the circumstances are sufficient to show that a theft was committed. Counsel contend that corpus delicti was not proved because the corn in the buckets was never identified as corn belonging to Mills.

Mills did testify that the corn in his granary which he was feeding was yellow shelled corn. He saw the defendant scraping corn out of his feeder into a bucket, and the buckets which were seized contained shelled yellow corn.

The third assignment of error is directed at the refusal of the court to allow the defendant to show the details of a controversy had with the prosecuting witness over possession of a city dump which was operated by defendant. The defendant was allowed to state that he had a controversy with the prosecuting witness concerning the possession and operation of the city dump, but did not allow him to go into details concerning the controversy.

Ordinarily, a witness may be asked on cross-examination as to any matter which tends to disclose his friendship or bias in favor of either the state or the defendant for the purpose of affecting his credibility as a witness. Turner v. State, 87 Okla. Cr. 153, 195 P. 2d 767.

The defendant was allowed to detail enough to show that there had been some controversy between him and Mills over who would secure the contract from the city for operation of the city dump and that Mills had obtained the contract for 1947, and commencing January 1,1947, had operated that dump.

It is difficult to say just how far a trial court should go in the admission of collateral matters such as this for the purpose of showing the relationship of the parties in so far as it would affect the credibility of the witness. It might have been that the court should have allowed the defendant to have gone into more details concerning the controversy with Mills, but the trial courts are necessarily vested with a large amount of discretion in controlling the issues that are to he tried of the guilt or innocence of the accused, and should not allow the trial to be side-tracked by hearing the merits of a collateral controverted matter between the parties. The court’s ruling in this regard will be sustained.

There was no error under the facts in the court overruling the motion for continuance on account of the absence of the witness Mrs. W. M. Kilpatrick, who was the wife of the son of defendant. Under the testimony of the defendant, she could hardly have known anything about what was alleged in the motion to which she would testify; secondly, if she would have testified to those facts, it would have been cumulative.

It has been held that it is not error to refuse a continuance where the evidence sought to be proved by the absent witness would be merely cumulative. Jackson v. State. 72 Okla. Cr. 226, 114 P. 2d 953.

The judgment and sentence of the county court of Woodward county is affirmed.

BRETT and POWELL, JJ., concur.