Booze v. State
| Citation | 390 P.2d 261 |
| Decision Date | 11 March 1964 |
| Docket Number | No. A-13201,A-13201 |
| Parties | Roy Lee BOOZE, 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 |
Syllabus by the Court
1. A peace officer may, without a warrant, arrest a person when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. 22 O.S.1961 § 196.
2. A trial court on motion to suppress evidence will be sustained where there is any competent evidence in the record to sustain the judgment of the court.
3. If a peace officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed to render the arrest lawful, but if he suspects one on his own knowledge of facts, or upon facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of a felony, the arrest is not unlawful.
4. If the facts are such that a reasonably prudent man would have believed accused guilty, and would have acted upon that belief, a police officer is justified in making an arrest without warrant, although subsequent events prove that no offense had been committed.
5. Where a motion is made to suppress the evidence by reason of an unlawful or unauthorized search, burden is upon the one making such motion to sustain the claim that the search was unlawful.
6. The Court of Criminal Appeals will not reverse a trial court upon a finding of fact in connection with a motion to suppress the evidence where there is any competent evidence in the record reasonably tending to support the findings of the court.
7. A court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant, where the jury has received any evidence out of court, other than that resulting from a view of the premises. 22 O.S.1961 § 952.
8. It is the constitutional and statutory right of every defendant in a criminal prosecution for a felony to be present in open court at all times during the pendency of the trial. This is not only a statutory right, but a constitutional one, and one that cannot be waived. 22 O.S.1961 § 583.
9. After an indictment or information for a felony is found, nothing shall be done in the absence of the prisoner; that is, no determinative step in the proceedings shall be taken in the absence of the defendant.
10. The constitutional provision that accused shall have the right to meet the witnesses face to face means that the evidence in a criminal case must be produced in the presence of the accused. The jury has no right to receive evidence after the cause has been submitted to them, and to permit such to be done amounts to a denial of defendant's right to appear and defend against such evidence and to representation of counsel, contrary to the provisions of the Constitution. Okl.Const. Art. II, § 20.
11. An argument in a criminal case allaying the residents of one city against the residents of another city, as follows: 'Are we going to let the defense attorneys go back to Oklahoma City, slap each other on the back and laugh and say, 'Boy, that Lincoln County was easy?'' and other similar remarks, has been condemned by the Court of Criminal Appeals, and in a close case such argument may result in a reversal.
Appeal from the District Court of Lincoln County; J. Knox Byrum, Judge.
Roy Lee Booze was convicted of the crime of second degree burglary, and appeals. Reversed and remanded with directions.
Claude Hendon, Shawnee, Carroll Samara, Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., Joe Young, Jr., County Atty., Lincoln County, Chandler, for defendant in error.
This is an appeal by Roy Lee Booze, appellant, defendant below, from a conviction, judgment and sentence on a charge of second degree burglary. The defendant was charged by information in the district court of Lincoln County, Oklahoma, with having burglarized the Morgan & Hayes store in Wellston, in the aforesaid county and state, after a former conviction had in McCurtain County, Oklahoma on a charge of second degree burglary, for which he was sentenced to seven years imprisonment. The defendant was tried to a jury on the charge herein, convicted, and his sentence fixed at ten years in the penitentiary. Judgment and sentence was entered in keeping with the verdict of the jury, motion for new trial duly filed and overruled, and appeal to this court was duly perfected.
The defendant has raise three contentions which will be stated and disposed of in order of their presentation.
The defendant first contends that the trial court committed reversible error in overruling the defendant's motion to suppress the State's evidence, obtained under what he contends was an illegal and unauthorized arrest, search and seizure of defendant's person and effects, incident to the said arrest and without the aid of a search warrant or legal process, and being without probable cause to believe that a felony had been committed.
This contention requires a brief review of the facts and circumstances upon which the trial court predicated the order overruling the motion to suppress.
The evidence in support of the arrest, search and seizure is substantially as follows: Between four and four-twenty o'clock in the morning on October 14, 1960 the Wellston night watchman observed a man crouched before the safe which was located in the front end of the Morgan & Hayes store. The watchman drove his car around to the back of the store and stopped. Getting out, he observed the back door of the store was standing open, and he went into the store about a distance of ten feet, when he heard the creash of glass, which proved to be one of the front plate-glass windows. The watchman immediately went back to his car and proceeded around to the front of the store on the main street, where he observed two men in a Buick automobile speeding out of town in an easterly direction. He gave chase, but being completely outdistanced, he returned to Wellston and called the Sheriff of Lincoln County to whom he reported the incident. The sheriff arrived in Wellston, and made a thorough investigation.
The record discloses that there had been two other burglaries in Wellston on this same night. $22 were taken from the Morgan & Hayes store. The Farmers Co-op Elevator, located three doors east of the Morgan & Hayes store was entered and $196.60, two sledge hammers and a tire tool were taken. Herb's Service Station, diagonally across the street from the Morgan & Hayes store, was burglarized and $37.90 in cash, five boxes of spark plugs and two tire tools were taken. The spark plugs were found on a bench in the rear of the Morgan & Hayes store, and the tire tools were found in the front part of the store near the safe.
The sheriff's investigation further disclosed that safe had been battered to pieces, both knobs knocked off and entrance thereto thus made. The fire wall asbestos packing was scattered around over the floor in flakes and granules. Both the defendant and the sheriff testified 'it was all over the place'. Otherwise, the defendant's testimony was a denied of the sheriff's testimony as to the asbestos flecks and chips.
Sheriff Orr and Deputy Herb Kinnear, after their investigation at the store, being informed a third man, on foot, was seen running west from the store, then turning south down an alley towards Highway 66, were prompted to drive out a mile and a half west of Wellston onto Highway 66 to the Plainview Service Station. There they observed Roy Lee Booze leaning up against the front of the station. The sheriff asked him what he was doing there, and was informed Booze was waiting to hitch a ride to Oklahoma City. His sport shirt was snagged in several places, and was damp from what appeared to be perspiration. The front of his shirt and collar were partly unbuttoned, and in the hair on his exposed chest were white and chalky chips like those from the asbestos fire wall of the safe in the Morgan & Hayes store. The sheriff said he then placed Booze under arrest, and took him back to the scene of the Morgan & Hayes burglary. In the back of the store the sheriff said he picked the chalky chips off the defendant's chest and put them in an envelope, properly marked for evidentiary purposes.
On the basis of the sheriff's positive knowledge that a felony had been committed, and being fully aware of the conditions at the scene of the crime, and particularly the asbestos scattered over the premises as the result of the battering administered to the Morgan & Hayes safe, the sheriff had reasonable cause, under the conditions herein before set forth, to believe that the defendant was a participant in the battering administered to the safe, and hence was involved in the burglary, and that his arrest was warranted under the law.
Tit. 22 O.S.1961 § 196 provides:
'A peace officer may, without a warrant, arrest a person:
In Ward v. State, 95 Okl.Cr. 387, 246 P.2d 761, we said:
See also Darks v. State, Okl.Cr. 273 P.2d 880, wherein this Court said:
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