Abbott v. State
| Decision Date | 15 April 1925 |
| Docket Number | A-5006. |
| Citation | 235 P. 550,30 Okla.Crim. 98 |
| Parties | ABBOTT v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
When a peace officer observes a person in acts that reasonably lead him to suspect the commission of a misdemeanor and, without violating any constitutional right of the suspected person makes an investigation and detects such person in the commission of a misdemeanor, his arrest and search of the person is not unlawful.
In order that the ruling of the court on an application for a continuance may be reviewed in this court, it is necessary that said application be preserved in the record, with the ruling of the court thereon, with exception properly saved.
Appeal from County Court, Bryan County; S.W. Maytubby, Judge.
Carl Abbott was convicted of transporting intoxicating liquor, and appeals. Affirmed.
George F. Deck and McPherren & Hannah, all of Durant, for plaintiff in error.
George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen for the State.
The plaintiff in error was convicted in the county court of Bryan county on a charge of transporting intoxicating liquors, and upon conviction by a jury punishment was fixed at imprisonment in the county jail for a period of 30 days and a fine of $200, and upon the judgment and sentence based thereon prosecutes this appeal.
Only two assignments of error are argued in the brief of the plaintiff in error as follows: First, that the evidence obtained by an unlawful search was used against plaintiff in error over his objection. Second, that the court erred in refusing to grant a continuance on the ground that one of the attorneys for the plaintiff in error was a member of the Legislature, then in session. These assignments will be considered in the order presented.
The evidence is brief, and is to the following effect: That on the date of the offense charged, Jim Kiersey, chief of police at Durant, saw the defendant walking on North First street near Linn's store, carrying a grip; saw him go into the store. The officer then turned back and saw plaintiff in error leaving the store without the grip. The officer then went into the store, made inquiry, and found the grip which had been left on the porch at the rear of the store, and after picking the grip up he shook it and decided that it had whisky in it. The officer went around the store and saw the plaintiff in error attempting to go through the fence in the rear and saw something sticking up under his coat, which he took to be a gun, and upon making an examination he discovered that instead of a gun it was a bottle containing some whisky, and then discovered that the plaintiff in error seemed to be under the influence of whisky. Whereupon the officer arrested the plaintiff in error and took him, with the grip, in a car to the county attorney's office, and on the request or demand of the officers, plaintiff in error unlocked the grip and in it was three half-gallon fruit jars of whisky. The officer did not have a warrant for arrest or a search warrant during any of the time in question. The plaintiff in error, in his own behalf, testified that he had the grip, but did not know what it contained; that he put it on the back porch of the store; that he had had a drink of whisky that morning and that the bottle in his pocket was comparatively empty; that he unlocked the grip at the county attorney's office, but did so because the officers had threatened to tear or cut it open.
That is all the material evidence in the case, and the question for consideration is: Was the arrest of the plaintiff in error and the search unreasonable within the meaning of section 30 of the Bill of Rights of our State Constitution, which provides that the right of the people to be secure in their person, house, papers, and effects against unreasonable searches or seizures shall not be violated. This clause of the Constitution does not forbid all searches or seizures but forbids only those that are "unreasonable." Under this provision it is not permissible to whittle away the substantial guaranties of this section, and, on the other hand, it is not to be so strictly construed that proper and reasonable efforts of the constituted authorities to detect and punish crime shall be prevented.
This court, in the recent case of Berg v. State, 233...
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