Combest v. State

• Decision Date: 17 October 1925
• Docket Number: A-5107.
• Citation: 239 P. 936,32 Okla.Crim. 47
• Parties: COMBEST et al. v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

239 P. 936

32 Okla.Crim. 47

COMBEST et al. v. STATE.

No. A-5107.

Court of Criminal Appeals of Oklahoma

October 17, 1925

Syllabus by the Court.

Where the conviction is based solely on evidence obtained by an unreasonable and unauthorized search and seizure, admitted over timely objection and exception, the judgment will be reversed.

All unlawful searches and seizures are "unreasonable" within the meaning of the constitutional provision forbidding unreasonable searches and seizures.

Where the offense is not a felony, an officer cannot arrest without a warrant unless the felony was committed or attempted in his presence.

In a prosecution for transportation of intoxicating liquor evidence obtained by a search of the defendant's automobile without a search warrant held inadmissible, in view of Const. art. 2, § 30.

Appeal from County Court, Oklahoma County; Jas. C. Cheek, Judge.

Cromwell Combest and W. H. Combest were convicted of transporting intoxicating liguor, and they appeal. Reversed.

Wright & Gill, of Oklahoma City, for plaintiffs in error.

George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen for the State.

DOYLE J.

The plaintiffs in error were tried and convicted on an information charging that in Oklahoma county, August 13 1923, Cromwell Combest and W. H. Combest "did then and there unlawfully transport intoxicating liquor, to wit, whisky, from a point to your informant unknown in said county and state to a point commonly known and designated as 423 West Reno street in Oklahoma City, said county and state."

In accordance with the verdicts of the jury they were each sentenced to pay a fine of $500 and to be confined in the county jail for 6 months. To reverse the judgments they appeal, and assign as error the insufficiency of the evidence to support the verdicts, and that the court erred in the admission of evidence obtained by an illegal search and seizure.

Tom Cavenar, sheriff, testified that he was in the dwelling located at 423 West Reno street, and saw the defendants drive their car from the rear end of the premises to the rear of the house, a distance of probably 50 feet; that he did not remember which one was driving; and he walked up to the car and found it contained two 5-gallon bottles covered by an old top or probably a canvas; that one got out on one side and one on the other, and he told them to get back in the car, that he was going to take them to jail; that when he arrived at the jail he found that the bottles contained whisky; that it was placed in the vault, and in checking it up he found that it had been poured out the day they poured out other whisky.

Jake Higgibotham testified that he went to the rear of 423 West Reno and found the sheriff had both of the defendants under arrest.

Prior to the commencement of the trial the defendant filed a motion to suppress the introduction of any evidence of the whisky so seized on the ground that the same was obtained by an illegal search and seizure.

At the close of the state's evidence the defendants moved to exclude the evidence with reference to the search and seizure on the same ground, which motion was overruled. The defendant and each of them moved for a directed verdict of acquittal in the form of a demurrer to the evidence, which demurrer and motion were...