Boyd v. State

• Decision Date: 21 September 1955
• Docket Number: No. A-12191,A-12191
• Citation: 290 P.2d 160
• Parties: Jerry BOYD, 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 160

290 P.2d 160

Jerry BOYD, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12191.

Criminal Court of Appeals of Oklahoma.

Sept. 21, 1955.

Rehearing Denied Nov. 23, 1955.

Syllabus by the Court

1. Action of officers in secreting themselves on the premises of A and listening to a conversation between A and his guests B and C, and becoming suspicious that such persons have violated or are about to violate the narcotics law (Tit. 63 O.S.1951 § 451; 63 O.S.A. § 452 as amended, Laws 1953, p. 316, § 2) and acting without authority of a search warrant or warrant of arrest, break into A's home and arrest him and his guests, detaining B until they could procure a search warrant for B's automobile parked in front of A's home; Held, the search of the car commenced on determination to and detention of B to await search warrant, and the search was illegal.

2. The issuance of a search warrant for the purpose of making valid that which at inception was illegal will afford no protection to officer making such search and seizure, and evidence so obtained should be excluded on timely objection to its introduction.

3. Where accused files a motion to suppress evidence on ground that date in search warrant made it void, accused should introduce warrant and any other evidence to support allegation, or account for failure to produce warrant and offer other competent evidence to show invalidity.

4. Motion to suppress evidence allegedly obtained by an unlawful arrest followed by an unlawful search of one's person, and finally of his automobile, after he was held while warrant to search the automobile was being obtained, should have been detailed in the motion and filed and heard prior to trial of the case on its merits.

5. Alleged error occurring upon the trial of a case must be raised and urged before the trial court and passed on by said court before this court will consider it on appeal, unless the assigned error raised a jurisdictional question.

6. Defendant in a criminal case may waive any right, not inalienable, given him by statute or constitution, which can be relinquished without affecting the rights of others, and without detriment to community at large; and such waiver may be made either by express agreement or by consent, or by failure to insist upon right in seasonable time.

7. Constitutional provisions in that part of our State Constitution commonly called the 'Bill of Rights' were enacted, among other things, not for the purpose of enabling persons guilty of crime to escape conviction and punishment, but to protect the innocent from those acting contrary to law, and from oppression and invasion of privacy. Art. II, Okla.Const.

Appeal from the District Court of Oklahoma County; Clarence Mills, Judge.

Jerry Boyd was convicted of the crime of possession of marihuana, after former conviction of a felony, sentenced to serve six years in the State Penitentiary, and appeals. Affirmed.

John F. Booth, Jr., Homer Thompson, John Connolly, Oklahoma City, for plaintiff in error.

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

POWELL, Judge.

Jerry Boyd, plaintiff in error, hereinafter referred to as defendant, was charged by information filed in the district court of Oklahoma County with the crime of 'Possession of marihuana, after former conviction of a felony'. A jury being waived, the defendant was tried before the court, who found him guilty, and on May 26, 1954 sentenced accused to a term of six years in the State Penitentiary at McAlester. The court was very lenient as to sentence in view of Tit. 63 O.S.A. § 452, as amended, Laws 1953, p. 316, § 2. See also Tit. 63 O.S.1951 § 451.

The record discloses that at trial defendant was represented by counsel of his own choosing, John C. Booth, Jr., who prior to trial filed a motion to suppress certain evidence, and who represented the defendant during the trial. Mr. Homer F. Thompson, public defender, represented defendant at the time of pronouncement of judgment and sentence, and filed a brief in this court on appeal. Also John Connolly, Esq., attorney, appeared in behalf of defendant at time of oral argument in this court, and was by this court permitted to file in co-operation with prior counsel, an additional brief in behalf of defendant.

We have carefully considered the different views of counsel for the defendant as to why the case should be reversed, as well as the views of the Attorney General. Perhaps a summary of the evidence at this time will clearly develop the answer to the issues raised. Such detailing, perhaps, may be justified by reason of the fact that the violation of constitutional rights are at issue. Counsel for defendant had on the day of and prior to trial filed a motion to suppress the evidence, the pertinent portion of which reads:

'(1) That the affidavit for search warrant and the search warrant were improperly executed and issued for the reason that the date shown thereon was not in fact the date of actual execution and issue.

'Defendant specifically disclaims any ownership of the evidence, to-wit: 46 1/4 grains of marihuana, but bases his right to attack said search warrant upon the ownership of the premises searched, to-wit: a certain 1950 two-door Studebaker automobile, 1953 license #1-59988.

'Wherefore, defendant prays that the evidence hereinbefore mentioned be suppressed.'

There is nothing in the record to indicate whether or not the motion was ever considered by the court. No contention was made at time of oral argument or in briefs that it was.

The evidence on behalf of the State discloses that around 8 o'clock on the evening of January 14, 1954 deputy sheriffs E. A. Capshaw and Sherman Brown, in company with two Oklahoma City police officers, Cliff Roberts and Timmy Doyle, went to the home of one Ray Bolling, at 5645 Northwest 58th Street, Oklahoma City, hiding in different places on the outside of the house and apparently to await the expected appearance of the defendant Jerry Boyd.

Officer Capshaw testified that he first saw the defendant about 8 o'clock that evening when Boyd drove up to the home of Ray Bolling in a car by himself and got out and went into the house. At that time the witness was just a little to the northwest of the house behind a barbecue pit and fence, about 15 feet from the west door of the house. After Boyd had entered the house, the witness came out from his hiding place and ran to the north window on the west side of the house. While standing there the witness heard a conversation between Bolling and the defendant. Bolling asked the defendant if he had 'brought the stuff', and defendant answered, 'Yes, you can find it under the left hand side front seat of the car'. One Paul Downey was in the house with the defendant and Bolling. Officer Capshaw said he then saw Bolling come out of the house and go to the left-hand door of Boyd's car, open the front door of the car and lean over. He said, 'I couldn't tell where he reached, but he leaned over without getting in the car and immediately turned around and went back in the house.' The car was parked about five feet south of the west door, which was about 15 feet from where the witness was standing. They had the lights on in the house and the lights reflected through the windows onto the car. Shortly after Bolling had gone back into the house, he rolled a cigarette and passed it around and all three of the boys smoked off of just the one cigarette. About an hour and a half later, the three boys left the house in defendant's car and returned about 11:30 P.M. They came back carrying a sack which contained barbecue. The officers crashed the door in and entered the house. The three boys were then sitting on the floor playing poker. They searched the house and found a small snuff can, which was lying on the floor behind the defendant. The can was later shown by chemical analysis to contain marihuana. The witness siad, 'I asked who it belonged to, and neither one of them would claim it.'

At this point the record shows that Mr. Capshaw concluded that he had enough evidence for obtaining a search warrant to search the car, left the boys in custody of the other officers while he went to Bethany to procure such search warrant from Justice of the Peace Mansfield to search Boyd's car. Officer Capshaw further testified:

'Q. (By Mr. Hamil) Then what did you do after acquiring the search warrant? A. When I returned from Bethany Sherman Brown and Timmy Doyle and myself went out to search the car. Well, we found a plastic vial approximately one inch in diameter and about three inches long.

'Q. Did you make service of the search warrant? A. Well, I presented it to Jerry Boyd, personally, which he claimed,----

'Q. Well, what happened next? A. We went out to search the car, and under the left hand side of the front seat, lying loose under there was this plastic vial which looked like marihuana, and I presented it to the state laboratory, and their test later showed what it contained.

'Q. Who did you present it to at the state laboratory? A. I presented it to Taylor Roberts [Rogers], the state chemist.

'Q. Do you know what size container it is? A. Approximately an inch in diameter and three inches long, kind of medicine container, plastic.

'Q. Then what did you do next? A. We took Jerry Boyd and Ray Bolling, brought them to the county jail and booked them for possession of marihuana.'

Cliff Roberts, narcotics officer, Oklahoma City Police Department, testified that he was present at the home of Ray Bolling on the night of January 15, 1954 and assisted the other officers in making the investigation. His testimony was the same in substance as that given by Officer Capshaw, except that the snuff can was found in the dresser drawer by the officers, and not on the floor where the boys were sitting when the officers entered the house.

It was stipulated that the defendant was convicted July 6, 1939 in the...