Cofer v. Oklahoma City, A-12039

• Decision Date: 13 October 1954
• Docket Number: No. A-12039,A-12039
• Citation: 277 P.2d 204
• Parties: Russell Gilbert COFER, Plaintiff in Error, v. OKLAHOMA CITY, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 204

277 P.2d 204

Russell Gilbert COFER, Plaintiff in Error, v. OKLAHOMA CITY, Defendant in Error.

No. A-12039.

Criminal Court of Appeals of Oklahoma.

Oct. 13, 1954.

Rehearing Denied Dec. 15, 1954.

Syllabus by the Court

1. Where an offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted to be committed in officer's presence.

2. As a rule, two elements must concur to constitute an offense in the presence of the officer: (1) The facts or elements constituting the offense must be revealed in the presence of the officer. (2) The officer must perceive and have knowledge that such offense is being committed.

3. When a person accused of crime is held under valid process in a court of competent jurisdiction, such detention is not rendered invalid nor the right to try him for said crime defeated because of the illegality of the arrest which made the detention physically possible. However, any evidence obtained by reason of the illegal arrest would not be admissible upon a trial of the accused where timely objection to the admission of such evidence is made.

4. On a review of a municipal court judgment this court will not take judicial notice of an ordinance involved, even though the municipal or other trial court was entitled to do so.

5. In an appeal to this court where a consideration of a municipal ordinance is required, such ordinance must be reflected in the record, either by way of introduction in evidence in the trial court in accordance with and as provided by Tit. 12 O.S.1951 § 493, or set forth verbatim by the municipal court or court trying the case de novo, during trial, or in its findings, in judgment rendered, or the wording must have been agreed to by the parties and stipulation entered in the record during trial.

6. Where in a trial de novo in the Court of Common Pleas on an appeal from a municipal court conviction for violation of an ordinance, the trial court sets forth the ordinance involved verbatim in an instruction to the jury and no objection is interposed to such instruction nor contention made that such instruction does not correctly state the ordinance involved, the Criminal Court of Appeals will hold that this is a sufficient compliance with the law that the ordinance must be reflected in the record before it may be considered on appeal.

Jack L. Spivey, Oklahoma City, for plaintiff in error.

A. L. Jeffrey, Municipal Counselor, Richard D. Hampton, Asst. Municipal Counselor, Oklahoma City, for defendant in error.

JONES, Judge.

On August 29, 1953, the defendant, Russell Gilbert Cofer, was charged in a complaint filed in the Municipal Traffic Court of the City of Oklahoma City with driving an automobile on the streets of Oklahoma City while under the influence of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $20; thereafter an appeal was taken to the Court of Common Pleas of Oklahoma County, a trial de novo was had; defendant was convicted and sentenced to pay a fine of $19 and appealed.

Two assignments of error are presented: First, the court had no jurisdiction to try the accused because he was unlawfully arrested. Second, on review of a municipal court judgment, the Criminal Court of Appeals will not take judicial notice of ordinances involved.

The complaint filed against the accused was based upon a collision which occurred between a Cadillac automobile purportedly being driven by the defendant with an automobile being driven by one Grant O. Lord at the intersection of Northwest 23rd Street and May Avenue in Oklahoma City.

Lord and his wife testified that they had stopped after making a left turn at the intersection to purchase a newspaper and had started their automobile again and were driving about five miles per hour when they were struck on the rear bumper by the automobile being driven by the defendant. Very little damage was done to either car. After a short conversation with the defendant, Mr. and Mrs. Lord observed that he was in an intoxicated condition. Lord told the defendant he was going to the telephone at a nearby service station and call the traffic policemen to report the accident. While Mr. Lord was gone to the telephone, the defendant fled in his automobile. Shortly thereafter Mr. and Mrs. Lord went to the police station and there signed a complaint against the defendant charging him with a misdemeanor. The Lords had obtained the license tag number of defendant's automobile, and his name was discovered when the tag was checked. From a description of the car and the defendant, the police officers knew who was wanted, as the defendant was a notorious police character. See Cofer v. Oklahoma City, Okl.Cr., 251 P.2d 814. Thereafter two traffic policemen, while cruising near Northwest 16th and Pennsylvania Avenue, saw the defendant's automobile being driven south on Pennsylvania Avenue by defendant's female companion. Defendant was sitting in the seat beside her with only the top of his head being seen by the officers. The automobile was stopped and defendant was arrested and taken to the police station with his subsequent trial and conviction as herein noted.

Counsel for the accused filed a motion to quash the complaint and objection to jurisdiction of the court to try the accused for the reason that the arrest was illegal as the defendant was not committing a misdemeanor in the presence of the officers, and they had no warrant for his arrest nor was it contended that a felony had been committed and the officers had reasonable grounds to believe the defendant had committed the felony. A hearing was had upon this motion prior to the trial of the case on its merits. The officers testified that they arrested Mr. Cofer about 10:00 P.M. on August 29, 1953, which was about one and one-half hours after the traffic collision with the Lord automobile. They had no warrant for his arrest but were acting on the basis of an 'all points' radio bulletin broadcast by the police dispatcher directing the arrest of the accused. Although there is contention in the brief of the defendant in error that the defendant was committing a misdemeanor in the presence of the officers that justified his arrest without a warrant, the officers testified that they did not...