Passmore v. State

• Decision Date: 06 October 1948
• Docket Number: A-10900.
• Parties: PASSMORE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

198 P.2d 439

87 Okla.Crim. 391

PASSMORE v. STATE.

No. A-10900.

Court of Criminal Appeals of Oklahoma

Oct. 6, 1948

Appeal from County Court, Rogers County; W. M. Hall, Judge.

Dick Passmore was convicted of the offense of having unlawful possession of intoxicating liquor, and sentenced to pay a fine of $500 and serve thirty days in the county jail, and he appeals. Modified and affirmed.

Syllabus by the Court.

1. A case will not be reversed by reason of overruling of motion to suppress the evidence where the casemade does not contain the affidavit, the search warrant, or the evidence taken at the hearing on the motion to suppress.

2. Where an officer of the law enters a public place of business and there in his presence sees the commission of a misdemeanor, it is the duty of the officer having power to serve criminal process, without warrant to arrest the offender and to search his immediate presence and surroundings.

3. The question of sustaining or overruling a motion to disqualify all of the jurors is one usually addressed to the sound discretion of the trial court, and unless there has been an abuse of this discretion, the same will not be set aside.

4. The procedure for the disqualification of a trial judge is prescribed by Tit. 22 O.S.1941 § 575. A strict compliance with this statute is required before the trial judge will be disqualified.

5. Ordinarily error can not be predicated upon mere unexplained excerpts from remarks of counsel to the jury. Enough must appear of record to advise the appellate court of what preceded the alleged objectionable remarks and their meaning to be deducted from the context, and whether or not they were invited or provoked by remarks made by opposing counsel.

6. Remarks of counsel stated in the record examined and found not to be comment upon the failure of the defendant to testify as a witness in his own behalf. Tit. 22 O.S.1941 § 701.

7. County court is without authority to suspend only the jail sentence upon a conviction for violation of the liquor law where a fine and jail sentence are imposed.

8. A recommendation in the verdict of the jury that the jail sentence be suspended is in no way binding upon the court and may be disregarded.

9. The power to modify a judgment and sentence has been many times recognized by the Criminal Court of Appeals. Record examined and the judgment and sentence modified from a fine of $500 and 30 days in jail, to a fine of $250 and 30 days in jail.

H. Tom Kight, Jr., of Claremore, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen and H. P. Daugherty, County Atty., Rogers County, of Claremore, for defendant in error.

BAREFOOT Presiding Judge.

Defendant, Dick Passmore, was charged in the county court of Rogers County with the offense of having unlawful possession of intoxicating liquor, to-wit: nine pints of whisky; was tried, convicted and sentenced to pay a fine of $500 and to serve thirty days in the county jail, and has appealed.

The assignments of error will be considered in their order.

The facts revealed by the record are that defendant was operating a place known as the Veterans' Club, located about one and three-quarters mile south of Claremore, on U. S. Highway 66. On October 21, 1946, Roy Carver, the sheriff of Rogers County procured a search warrant for the purpose of searching said premises. He was accompanied by his jailor, Lot Langley; and J. C. Busby and Ralph Thompson who were members of the State Highway Patrol.

The evidence of sheriff Carver was that on the date in question he entered the Veterans' Club, which was a public place. A large number of people were present. There was a bar and the sheriff observed the defendant behind the bar. A number of people were dancing, others were sitting at tables with 'high ball' glasses. The sheriff smelled the glasses, and detected the odor of whisky. He testified:

'Q. In his place of business, where did you find the nine pints of whisky? A. Dick had one in his hand and he was mixing a highball for a boy at the bar. Another pint was sitting on the counter they had for chopped ice and stuff, and the rest of the whisky was in a carton down by the back bar of the place. * * *

'Q. Where did you find the nine pints of whisky you say you found? A. Dick (the defendant) had one in his hand when I went in. A couple on the bar, and the rest in a cupboard behind the bar.'

Joe C. Busby and Ralph Thompson, members of the State Highway Patrol, who were present with sheriff Carver, both testified and corroborated the evidence of sheriff Carver.

No evidence was offered by the defendant.

The first contention of defendant is that certain information obtained by the sheriff was hearsay; that the facts stated in the search warrant, and the affidavit therefor, were based upon information and belief, and that the court erred in refusing to sustain the motion of defendant to suppress the evidence.

The casemade does not contain a copy of the search warrant, or a copy of the affidavit upon which it was based. Neither does it contain the evidence, if any was offered, at the time the motion to suppress was presented. The motion to suppress was not filed until February 17, 1947, and was presented on February 18, the day before the trial of the case. A copy of the motion was not served on the county attorney until the beginning of the trial of the case. From the above statement, it was not error for the court to overrule the motion to suppress.

However, under the evidence presented in this case, it was not necessary for the sheriff to have a search warrant to lawfully search defendant's place of business. When he entered the Club, which was open to the public and which the sheriff and other officers had the right to enter the same as any other citizen, he saw violations of the law being committed in his presence by the defendant.

37 O.S.1941 § 89 provides:

'When a violation of any provision of this Chapter, shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, * * *.'

In construing this section of the statute, it has often been held by this court that where a misdemeanor is committed in the presence of an officer, he has the right to arrest without a warrant, and after the arrest, to search the defendant and his immediate surroundings. Overturf v. State, 69 Okl.Cr. 303, 102 P.2d 623; Brown v. State, 74 Okl.Cr. 246, 125 P.2d 234; Mullins v. State, 75 Okl.Cr. 417, 133 P.2d 239; Glasby v. State, 78 Okl.Cr. 45, 143 P.2d 430.

It is contended that the court erred in refusing to sustain a motion to disqualify all of the jurors in this case for the reason that they were in the court room and heard the evidence taken on the motion to suppress. This hearing was on February 18, 1947, and the motion to disqualify the jury was made on the following morning, February 19, when the case was called for trial. No evidence was taken, and there is nothing in the record to sustain this contention.

Counsel for defendant then offered a motion to disqualify the county judge. It is unnecessary to state the contents of this motion. The contention of defendant has been passed upon in a case where the facts are almost identical with those here presented, the case of Young v. State, 74 Okl.Cr. 64, 123 P.2d 294. In that case the facts are fully discussed and the law applicable thereto stated. In the case now before us, no attempt was made to comply with 22 O.S.1941 § 575, which sets forth the procedure to be followed where an attempt is made to disqualify the judge of a court of record of this State.

It is next contended that the judgment and sentence is excessive under all the facts in this case, and that the argument of the county attorney before the jury was prejudicial to the defendant and in conflict with the statute which provides that when the defendant does not take the witness stand, no comment shall be made thereon. This is 22 O.S.1941 § 701, and is as follows:

'In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or...