Bagwell v. State

• Decision Date: 05 March 1958
• Docket Number: No. A-12561,A-12561
• Citation: 327 P.2d 479
• Parties: Johnny W. BAGWELL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 479

327 P.2d 479

Johnny W. BAGWELL, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12561.

Criminal Court of Appeals of Oklahoma.

March 5, 1958.

Rehearing Denied June 11, 1958.

Rehearing Opinions as Modified June 25, 1958.

Syllabus by the Court.

1. Whether search and seizure from an automobile upon a public highway, without a search warrant, is reasonable is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made.

2. Where a misdemeanor is committed in the presence of an officer, he has the right to arrest the offender without a warrant. If the arrest is not a subterfuge, and is in good faith, the defendant and his immediate possessions may be searched.

3. The question of suppressing evidence being a judicial one, this court will not reverse the trial court upon a question of fact where there is conflict of evidence, and there is competent evidence reasonably tending to support the finding of the court.

4. Where defendant was lawfully arrested for a traffic infraction, and in his attempt to evade the officers he had caused a number of bottles of whiskey in his cargo to become broken, and in making the arrest for the traffic violation the officers could smell strong alcoholic odors emanating from the automobile and could see packages either covered or partially covered by a blanket in the rear portion of the vehicle, he was justified in searching the automobile.

On Petition for Rehearing.

5. Error cannot be predicated upon a ruling excluding testimony, where the testimony desired is not shown in the record nor any statement made as to what the proposed testimony would be.

6. When a reversal is sought on account of exclusion of evidence, the record must show an offer of such evidence so that this Court may determine whether or not it was material and proper, and whether or not the defendant was injured by its exclusion.

Appeal from the County Court of Ottawa County; George G. Russell, Judge.

Johnny W. Bagwell was convicted of the offense of transporting intoxicating liquor, and appeals. Affirmed.

Elmore A. Page, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

Johnny W. Bagwell, plaintiff in error, hereinafter referred to as defendant, was charged by information in the county court of Ottawa County with the offense of unlawful transportation of intoxicating liquor, specified as 846 bottles of assorted brands. A jury was waived.

The record reflects that prior to the trial, the defendant filed a motion to suppress evidence on the ground of an illegal search and seizure. This motion was overruled after hearing, and by stipulation of the parties, the evidence introduced at the hearing on the motion to suppress was considered by the court as evidence in the trial of the case.

The court thereupon rendered judgment finding the defendant guilty as charged, and assessed punishment at thirty days confinement in the county jail, and a fine of $250 and costs of prosecution.

For reversal but one question is presented, and being whether the trial court committed error in overruling defendant's motion to suppress evidence on the asserted ground of an unlawful search and seizure.

Counsel for defendant argues that: 'The evidence clearly and conclusively reflects and shows that the pursuit and arrest of defendant by officers Peck and Lawson * * * was for the sole purpose of checking defendant's vehicle for intoxicating liquors, and that such arrest was a subterfuge, and that the charge of speeding was a subterfuge used by said officers, in attempting to legalize their pursuit, arrest, and search of the defendant and his vehicle.'

Of course, even if the officers had probable cause to believe that defendant's automobile was loaded with whiskey, still, in a misdemeanor case, a search without a warrant cannot be legally justified. Wallace v. State, 49 Okl.Cr. 281, 294 P. 198; Brinegar v. State, 97 Okl.Cr. 299, 262 P.2d 464; State v. Simpson, 91 Okl.Cr. 418, 219 P.2d 639; Edwards v. State, 83 Okl.Cr. 340, 177 P.2d 143.

We see, then, that if the defendant did not as a matter of fact commit an offense in the presence of the officers, in the absence of a warrant they would not be entitled to arrest and search his car. The offense must be real, and not some triviality, excuse or subterfuge to enable the officers to make a search. For cases with varying fact situations where we have so held, see Hoppes v. State, 70 Okl.Cr. 179, 105 P.2d 433; Leach v. State, 94 Okl.Cr. 334, 235 P.2d 968; Saltsman v. State, 95 Okl.Cr. 228, 243 P.2d 737; McCormick v. State, Okl.Cr., 277 P.2d 219; Barnett v. State, 94 Okl.Cr. 293, 235 P.2d 555. See also Byford v. State, 90 Okl.Cr. 230, 212 P.2d 476 where the arrest of a truck driver did not entitle the officers to search the truck, but where the owner of the truck thereafter unlocked the truck (probably thinking they would break in anyway) and invited the officers to search, thus waiving his rights.

With the above cases for guidance, still, in commencing the examination of the evidence to support defendant's motion to suppress there are some other well developed principles to be kept in mind first, there where a defendant files a motion to suppress, the burden rests on him to offer evidence in proof of the allegations contained in the motion (Edwards v. State, Okl.Cr., 319 P.2d 1021; O'Dell v. State, 80 Okl.Cr. 194, 158 P.2d 180; Wilson v. State, Okl.Cr., 268 P.2d 585); and, second, that whether search and seizure from an automobile is reasonable is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made. Such being so, this court will not reverse the trial court upon a question of fact where there is a conflict of evidence, and there is competent evidence reasonably tending to support the finding of the trial court. Wood v. State, Okl.Cr., 316 P.2d 628; Franklin v. State, Okl.Cr., 281 P.2d 204; Kirk v. State, 92 Okl.Cr. 360, 223 P.2d 558; Scott v. State, 84 Okl.Cr. 171, 180 P.2d 196.

The first witness called to support the motion to suppress was Art Peck, deputy sheriff of Ottawa County, who said that he saw the defendant the night of December 14, 1956 and arrested him. The officer stated that he and his partner, Bill Lawson, drove up to the stop sign from the west and at the junction of highway 60 with 66, and stopped, awaiting traffic to clear. He said that he noticed a light-colored Chrysler car proceeding west come to a complete stop on the opposite side of highway 66, and that it then crossed over and passed them and proceeded on west, and that they noticed defendant's car right behind the Chrysler as it approached highway 66 slow down but that it did not stop. He further testified that as soon as defendant passed them, the back wheels of his car were throwing gravel and that he was going pretty fast so that witness and officer Lawson turned their car around and proceeded to turn on their siren and chased defendant for about a mile. He estimated defendant's speed at ninety miles per hour or better. He said that after defendant had stopped his car witness' car was stopped and witness got out and approached defendant, and told him that he was under arrest for speeding and reckless driving. Witness said that his partner, officer Lawson, after letting him out, drove on in effort to stop the Chrysler car. Witness admitted that he shot his pistol into the air four times in an effort to get defendant to stop, but denied that he shot at defendant or his car. Witness said that when he arrested defendant he observed packages in the back seat of his car; that some of the packages had been broken in the chase and he smelled liquor ¹ and recognized the packages as liquor packages. He proceeded to search the car and found approximately sixty cases of whiskey. He subsequently took defendant to jail and filed charges in the justice of the peace court against defendant for speeding in the day time, and defendant plead guilty to such charge and paid a fine. It was agreed that defendant was not represented by counsel in the justice of the peace court. The within charge was then filed in the county court.

Witness denied that prior to the time of the arrest of defendant he had parked at the intersection of highways 60 and 66, and denied that officer Lawson made such a statement to the defendant. Witness denied that he was looking for any particular car when defendant approached highway 66, or that he was looking for the light-colored Chrysler car and defendant's car. He denied that he had a conversation with Mr. Taylor of Afton (endorsed on the information as a witness) within eight hours prior to the arrest respecting two cars of similar description as the two cars in question, or had any conversation with anyone else connected with the law enforcement in Afton respecting two cars described similar to the ones they chased at the time of defendant's arrest. Witness identified the defendant at the trial as the person he arrested and the arrest as having been made in Ottawa County. Witness reiterated that prior to seeing defendant at the intersection of highways 60 and 66, and arresting him, he had no knowledge or information about defendant's car or the occupant. He said that at the time of the arrest defendant was driving a 1953 Chrysler New Yorker, four-door sedan, blue color.

The defendant next testified and said that his name was John Wayne Bagwell, and denied that he had ever been convicted on any offense except traffic violation. Defendant denied that he failed to stop his car at the intersection of highways 60 and 66, as testified by officer Peck, but on the contrary said that he stopped and thereafter 'took off' in a normal manner, and was driving at a speed of about 25 or 30 miles per hour until he saw the officers turn their car and...