Clardy v. State, A-11433

• Citation: 95 Okla.Crim. 89,240 P.2d 456
• Decision Date: 23 January 1952
• Docket Number: No. A-11433,A-11433
• Parties: CLARDY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 456

240 P.2d 456

95 Okla.Crim. 89

CLARDY v. STATE.

No. A-11433.

Criminal Court of Appeals of Oklahoma.

Jan. 23, 1952.

Syllabus by the Court.

1. A case will not be reversed by reason of overruling of motion to suppress the evidence where the case-made does not contain the affidavit, the search warrant, or the evidence taken at the hearing on the motion to suppress.

2. Resistance to arrest is a fact which may tend to show consciousness of guilt, and is in common practice received in evidence as relevant.

3. Every defendant has a right to be confronted with a definite accusation in writing, charging but one offense; and when placed on trial he cannot be compelled to defend against other offenses having no connection with the offense charged.

4. A conflict in the evidence presents a question for the determination of the jury.

Kight & Brainard, Claremore, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., for defendant in error.

BRETT, Presiding Judge.

Plaintiff in error, J. D. Clardy, defendant below, was charged by information in the county court of Rogers county, Oklahoma, with having committed the offense of unlawful possession of intoxicating liquor on or about April 1, 1949, all within said county. He was tried by a jury, convicted, his punishment fixed at a fine of $400.00 and 30 days in jail, and judgment and sentence was entered accordingly.

It appears from the record that a search warrant was issued and served on the defendant at his place of business, a certain dance hall. The search and seizure revealed the defendant was in possession of a little less than a gallon of moonshine whiskey.

The defendant filed his motion to suppress this evidence on October 27, 1949 prior to trial date. The motion was overruled by the trial court on January 23, 1950. On this ruling the defendant contends the court erred in overruling his motion to suppress. The record does not contain any testimony in relation thereto. It does however show that the search was made on a search warrant which was executed on April 1, 1949. The record does not contain the affidavit or search warrant. There is however a certificate of the court reporter that the case-made is a full, true, correct and complete transcript of the testimony in the proceedings had herein. Moreover there is a stipulation of the attorneys that the case-made is a full, true and correct record, statement and transcript of all pleadings, motions, all the evidence, findings, judgments and proceedings in said cause. If this proceeding on the motion to suppress had been desired as a part of the record counsel should have so requested before signing the stipulation of attorneys. Not having done so, he is now in no position to complain. Passmore v. State, 87 Okl. Cr. 391, 198 P.2d 439: 'A case will not be reversed by reason of overruling of motion to suppress the evidence where the casemade does not contain the affidavit, the search warrant, or the evidence taken at the hearing on the motion to suppress.' This contention is therefore without merit.

Defendant contends the evidence herein is insufficient and that the trial court erred in not sustaining a demurrer thereto. In this connection it must be observed when the defendant's demurrer was interposed there was no other evidence than that of the state before the court. It made a prima facie case, and was good against a demurrer. When the defendant took the stand and testified the whiskey was his but he had the same for his own personal use, such evidence merely created a conflict in the testimony, the determination of which was a question for the jury. Their finding being supported by some evidence, we are not at liberty to disturb the same. As suggested by the state's Attorney General, if the foregoing rule was not binding in such cases all the defendant would have to do would be to take the stand and testify the whiskey was possessed for his own personal use but such evidence only creates a conflict and is not conclusive. Moreover, when the defendant took the witness stand in his own behalf, the jury then had before them the defendant's prior...