Armstrong v. State, A-11873

• Decision Date: 06 January 1954
• Docket Number: No. A-11873,A-11873
• Citation: 266 P.2d 488
• Parties: 1954 OK CR 2 ARMSTRONG v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 488

266 P.2d 488

1954 OK CR 2

ARMSTRONG v. STATE.

No. A-11873.

Criminal Court of Appeals of Oklahoma.

Jan. 6, 1954.

Rehearing Denied Feb. 10, 1954.

Syllabus by the Court.

1. The finding of trial court at a hearing on motion to suppress evidence will be sustained where there is competent evidence in the record reasonably tending to support their finding.

2. A peace officer may, without a warrant, arrest a person: (1) For a public offense, committed or attempted in his presence. (2) When the person arrested has committed a felony, although not in his presence. (3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. (4) On a charge, made upon reasonable cause, of the commission of a felony by the party arrested. 22 O.S.1951 § 196.

3. An offense is committed or attempted in the 'presence of an officer' where officer is apprised by any of his senses prior to the arrest that an offense is being committed by the person arrested.

4. Alleged improper argument of prosecutor will be considered in connection with the entire record and unless this court can find that such argument was prejudicial to the accused, the same will not be considered as reversible error.

Ira Monroe, Clinton, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

JONES, Judge.

The defendant Grant Armstrong was charged by an information filed in the County Court of Custer County with the illegal possession of intoxicating liquor; was tried, convicted, and sentenced to serve 30 days in the county jail and to pay a fine of $50 and costs, and has appealed.

Two assignments of error are presented: One, the court erred in overruling the motion to suppress evidence; two, the county attorney was guilty of misconduct in his argument to the jury.

The trial court had a separate hearing on the motion to suppress evidence before the commencement of the trial. At this hearing, eight witnesses testified, but the defendant did not testify. This evidence showed that on the night of September 17, 1953, the defendant was at a tavern in the City of Clinton, known as Stack's Bar, in an intoxicated condition. Two policemen of the City of Clinton saw the defendant at the tavern but did not arrest him for the reason, as testified by the policemen, that they 'decided to give him a break,' and that defendant promised if they did not take him to the police station he would take a taxicab home immediately. The officers left the tavern and about 25 minutes later received a call over their car radio from the police captain to go back to Stack's Bar and arrest defendant because he was still raising a disturbance and had hit a girl. Just as the officers arrived at the bar they observed the defendant and one Dodson leaving the place in the automobile of the defendant with Dodson driving. They stopped the automobile, placed the defendant under arrest and later at the police station observed 6 1/2 pints of whiskey on the floor of the car, some of it under the back seat.

Defendant contends that arrest was unlawful and the subsequent search was illegal for these reasons: First, the officers had no search warrant nor warrant of arrest for the accused. Second, no crime was committed in the presence of the officers which justified his arrest. Third, no felony had been committed which would have authorized the arrest of the accused upon reasonable...