Clark v. State

• Decision Date: 14 June 1944
• Docket Number: A-10294.
• Citation: 149 P.2d 994,78 Okla.Crim. 423
• Parties: CLARK v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

149 P.2d 994

78 Okla.Crim. 423

CLARK v. STATE.

No. A-10294.

Court of Criminal Appeals of Oklahoma

June 14, 1944

Syllabus by the Court.

1. For the purpose of preserving the peace and to prevent crime, a peace officer or a private citizen may make reasonable inquiry of persons coming under his observation or brought to his knowledge under circumstances which reasonably suggest that a crime has been or is about to be committed.

2. The right to search one's premises may be waived, and where one voluntarily waives his right for the procuring of a search warrant, he may not thereafter complain that a search warrant was not secured.

3. Where one is placed under arrest for the commission of a felony, officers have the right to search his person and immediate presence without the necessity of securing a search warrant.

4. Defendant was convicted of the larceny of an automobile. Record examined and found that the evidence justified the verdict of the jury finding the defendant guilty. The instructions as a whole fairly presented the issues involved.

Appeal from District Court, Kay County; R. O. Wilson, Judge.

E. H Clark was convicted of the crime of larceny of an automobile and he appeals.

Affirmed.

Raymond A. Trapp, of Blackwell, Tom L. Irby, of Ponca City, and Bruce B. Potter, of Blackwell, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Fred Hansen, Asst. Atty. Gen., and Roy E. Grantham, Co. Atty., of Newkirk, for defendant in error.

BAREFOOT Judge.

Defendant E. H. Clark, was charged in the District Court of Kay County with the crime of larceny of an automobile, was tried, convicted and sentenced to serve a term of six years in the State Penitentiary, and has appealed.

In his brief defendant presents two propositions for reversal of this case:

"First Proposition. All evidence obtained by unlawful and unreasonable search and seizure is inadmissible in the trial of an accused.

Second proposition. The taking of an automobile for the purpose of taking tires and accessories therefrom, but without intent to permanently deprive the owner of the automobile, does not constitute the crime of larceny of an automobile."

Consideration of the first proposition necessitates a short statement of the facts.

Defendant was charged with the larceny of an automobile from the possession of R. A. Parker, in Ponca City, Kay County, on the night of July 15, 1941, the same being the property of Laura M. Parker, the mother of R. A. Parker. On the night of July 16, or early morning of the seventeenth, this car was found on the side road about sixty miles from Ponca City, stripped of wheels, tires, heater, radio, seat covers and other accessories. On the night of July 16 four farmers in Pawnee County were returning to their homes and saw two automobiles that had left the main highway, and were stopped about a mile and a quarter from the road. These cars attracted their attention. Without giving unnecessary details, their testimony was that they observed that one of the cars was being stripped, and the lights of the other were being used in this work. They saw a man and a woman at the cars. The farmers drove on past the cars, and two of them secreted themselves near a bridge, and when the man and woman left the scene, secured the number of the car they were driving, which was 8-3766. They then notified Sheriff Ray Owens of Pawnee County, who immediately went to the scene, located and inspected the stripped car, then went to Ponca City for the purpose of making an investigation. There he found that the car had been stolen from the streets of Ponca City on the night of July 15; and that the tag, No. 8-3766 on the car that was seen leaving the scene, had been issued to E. H. Clark, 500 McFadden Drive, Ponca City. Sheriff Owens, in company with Captain Joe Donahoe and another police officer of Ponca City, went to the above address on the night of July 17 for the purpose of investigation. With reference to this, the evidence of Captain Donahoe, Sheriff Owens and the policeman was that Captain Donahoe knocked at the door and the wife of the defendant answered. He asked to see Mr. Clark, and he came to the door. Captain Donahoe asked him what kind of a car he had, and he told him a '39 Ford. He then asked him what the license number was. Defendant hesitated, and when asked the second time, he told him it was 8-3766, the same number as that of the car seen to leave the scene where the car had been stripped. Captain Donahoe then said to the defendant, "I would like to see the car." Reed Wittmer, the police officer who accompanied Sheriff Owens and Captain Donahoe, testified: "He told him he would like to see the car. He asked him if it was there, and he said it was in the garage. He told him he would like to see it. He hesitated a little bit like--and then he said, 'All right', but he said he didn't have the keys, he started to take him around the house to the garage, and he said he would have to go through the house and unlock it from the inside." The officers went direct to the front of the garage, and the defendant went back into the house, and opened the garage doors from the inside. They immediately saw two wheels and tires on the left side of the garage, one at the right and two against the wall, and Officer Donahoe asked the defendant twice where he got them. He made no reply. Officer Wittmer testified: "Well, he asked him where he got the tires and he didn't answer, didn't say anything he just stood there blank, and he said, 'We will have to take you' and he still didn't say anything, he never replied, we went ahead and looked in the car."

The defendant and his wife were both arrested and taken to police headquarters. Defendant made a statement in the presence of the officers admitting taking the car; that he and his wife stripped it as hereinbefore stated; that when the car was stolen on the night of July 15, he took it to his garage and kept it there until the night of July 16, then drove it to the place where it was found; that his wife accompanied him in his car, and that after stripping the car, they returned home in his car.

It is upon this testimony, which is a fair statement of the evidence, that defendant contends the search of his garage was unlawful, for the reason that the officers did not have a search warrant at the time. It is contended by the State that defendant, after the officers arrived at his residence, voluntarily gave his consent for them to examine the garage, and thereby waived any right for the issuance of a search warrant.

Defendant in his brief relies upon the case of Smith v. State, 34 Okl.Cr. 434, 246 P. 1109, and the Federal case of United States v. Rembert, D.C., 284 F. 996, as authority to sustain his contention. A careful reading of these cases will at once reveal that they do not sustain this contention. In the first place, the Smith case was one charging the unlawful possession of one and a half pints of whiskey. The place of business of the defendant was searched, and also her living rooms. No intoxicating liquor was found on the premises, but three pop bottles containing whiskey were found among a stock of pop cases and empty bottles behind the building. The officers at the time had a search warrant to search the premises, but the court found that it was obtained on information and belief, and the state then contended that defendant had waived her right for the necessity of a search warrant by saying, "Go ahead and search. There is no whiskey here." The search warrant was a "John Doe" warrant, and did not contain the name of defendant. Under the circumstances above stated, the court held that defendant had not waived her constitutional right to have a valid search warrant for the purpose of searching her premises. Under facts similar to this, we have often held that the right of defendant was not waived. Herron v. State, 39 Okl.Cr. 346, 265 P. 147; Thomas v. State, 40 Okl.Cr. 98, 267 P. 278; Shockley v. State, 35 Okl.Cr. 437, 251 P. 514; Mullins v. State, 75 Okl.Cr. 417, 133 P.2d 239; Wilkerson v. State, 37 Okl.Cr. 43, 256 P. 63; Denton v. State, 62 Okl.Cr. 8, 70 P.2d 135; Wilson v. State, 38 Okl.Cr. 409, 262 P. 501. In each of these cases it will be noted that the officer informed the defendant of his having a search warrant, and of his intention to search his premises, and that the statement of defendant was held not to be an invitation to search his premises, but rather that he did not intend to resist search when informed that the officer had a warrant, and intended to search. In all of these cases it will also be noted that defendants were charged with a misdemeanor.

The facts in the Smith case are not comparable with the facts in the instant case. There the charge was a misdemeanor, a violation of the prohibition law. Here the defendant was suspected of having committed a felony, and the officers had strong, reasonable circumstances to believe defendant had committed the felony. There the officers had a "John Doe" search warrant, which was illegal. Here the officers did not have a search warrant, but were merely making an investigation of a felony with strong evidence to support it. At the time of going to defendant's premises there was no intent to search the same, and officers only asked the defendant the kind of automobile he owned. Upon answering, he was told by the officer that he would like to see the same, and his reply was, "All right." He voluntarily opened the doors to his garage, and permitted the officers to enter, and upon seeing certain property therein, defendant was immediately placed under arrest. Under this state of facts, can it be said that the search of defendant's garage was illegal and void to the extent that the property found therein could not be introduced in...