Darks v. State

• Decision Date: 02 June 1954
• Docket Number: No. A-11980,A-11980
• Citation: 273 P.2d 880
• Parties: DARKS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 880

273 P.2d 880

DARKS v. STATE.

No. A-11980.

Criminal Court of Appeals of Oklahoma.

June 2, 1954.

On Rehearing Sept. 8, 1954.

SYLLABUS BY THE COURT.

1. Where A on arriving at a slaughterhouse and slaughter pens of which he had the care, observed an automobile parked on such private premises between the slaughterhouse and barn, and observed a man in the car who appeared to be either asleep or intoxicated, and he thereupon summoned a deputy sheriff B and when A and B approached the automobile to investigate they observed blood on one of the arms of the occupant C, and observed a hypodermic needle in the seat, a piece of kleenex paper on the floor of the car and noticed what appeared to be and proved to be narcotics in plain view on the seat of the car; Held, that the officer being in a place where he had a right to be and having discovered contraband in plain view that an offense was being committed in his presence and his immediate arrest of C was legal and that a warrant for arrest was not required. Tit. 22 O.S.1951 § 196.

2. Alleged improper argument of prosecutor will be considered in connection with the entire record and unless this court can find that such argument was prejudicial to the accused, the same will not be considered as reversible error.

H. B. Parris, Eufaula, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., for defendant in error.

POWELL, Presiding Judge.

The plaintiff in error, Charles D. Darks, was charged by information filed in the district court of McIntosh County with the crime of illegal possession of narcotic drugs, was tried before a jury, convicted; and his punishment fixed at a fine of $350 and two years in the State Penitentiary.

For reversal two propositions are urged:

(1) 'All of the evidence with reference to the finding of narcotics was obtained by reason of an unlawful search and therefore in violation of the constitutional rights of the defendant.'

(2) 'Misconduct on the part of the county attorney by commenting on, or calling attention to, the fact that defendant did not testify in his own behalf.'

George Waters, testifying for the State, said that he was in charge of a slaughter pen located north of Checotah, and that on June 3, 1951 accompanied by his nephew, Horace Wallace, he went down to the pens to put some hogs in the slaughterhouse, and while on the property he observed a car parked between the slaughterhouse and the barn on the premises. That he was charged with looking after the premises, and he and his nephew saw a man in the parked car who appeared to be either drunk or asleep. They decided to telephone Fred Bass, a deputy sheriff of McIntosh County, to come out and investigate the matter. The officer soon arrived.

Deputy Bass testified that he looked in the car and observed the defendant; that defendant had blood on one arm and he saw a hypodermic needle on the car seat along with morphine and demerol tablets. Said he: 'When I walked up to the car I could see this all lying in the seat.' He further testified: 'Q. After you noticed that, what did you do then? A. I opened the car door and tried to get him out and he put up a fight, just threw a wall-eyed fit, and Mr. Wallace helped me get the handcuffs on him.'

The evidence disclosed that after the arrest was made deputy Bass searched the car and took in possession the hypodermic needle, the narcotics and also a piece of kleenex tissue found in the car along with the other items named.

William H. Schaller, a United States chemist from Kansas City, Missouri, testified that the drugs found in the car were narcotics and a derivative of opium and morphine. He identified State's exhibit A as demerol, a narcotic, a derivative of opium; and State's exhibit B to be seven one-quarter grains of morphine-sulphate, also a derivative of opium.

H. B. Westover, Federal Narcotic Agent, testified to obtaining State's exhibits A and B and sending them by registered mail to Mr. Schaller at Kansas City for analysis. He also talked with the defendant on June 5, 1951 at the jail in Eufaula, and testified that defendant admitted ownership of the drugs, stating that he had stolen some narcotics previous to this in Eufaula from a doctor's bag, and that the demerol came from a doctor in Tulsa.

The defendant did not testify and offered no evidence.

The contention that the search was illegal cannot be sustained. The officer came on the slaughterhouse property at the urgent request of Mr. Waters, the person in charge, to investigate a trespassing car with a visible occupant who appeared to be either drunk or asleep. He could have been dead. The officer observed blood on one of the occupant's arms, saw a hypodermic needle and what appeared to be, and was proven to be, narcotics all in plain view. Defendant's arrest followed and then the car was searched.

Section 196 of Title 22 O.S.1951 provides:

'A peace officer may, without a warrant, arrest a person:

'1. For a public offense, committed or attempted in his presence.

'2. When the person arrested has committed a felony, although not in his presence.

'3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

'4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.'

This statute has been construed by this court in innumerable cases. In the recent case of Armstrong v. State, Okl.Cr., 266 P.2d 488, 489, we said:

'An offense is committed or attempted in the 'presence of an officer' where officer is apprised by any of his senses prior to the arrest that an offense is being committed by the person arrested.'

Other cases illustrating the principle are: Golden v. State, 75 Okl.Cr. 121, 129 P.2d 202; Newton v. State, 61 Okl.Cr. 237, 71 P.2d 122; Vincent v. State, 75 Okl.Cr. 128, 129 P.2d 214; Goodwin v. State, 68 Okl.Cr. 381, 99 P.2d 181; Tacker v. State, 72 Okl.Cr. 72, 113 P.2d 394.

It is next contended that the case should be reversed on account of the misconduct of the county attorney. It is said that he commented on the fact that the defendant did not testify.

We have searched the record carefully, but do not find that either the argument of counsel for the State or for the defendant was transcribed by the reporter. The only thing in the record bearing on the issue raised seems to have arisen as an afterthought. That is, after both the State and the defendant had rested, the defendant interposed a demurrer, which was argued out of the presence of the jury. The court then permitted the case to be reopened to allow the State to formally introduce in evidence its Exhibits A, B, C, and E. The defendant then renewed all motions and demurrers theretofore made. The following then took place:

'Court: Very well. Same ruling, same exceptions. Is that sufficient, gentlemen?

'Mr. Parris: I think so.

'Mr. White: Except the remark the county attorney made to the jury in his argument when he said that the defendant made no defense.

'Court: All right, the objection is overruled.

'Mr. White: Except.

'Mr. Lackey: Your Honor, I insist that the defendant brings no defense.

'Court: Well, whatever the record shows, the jury will remember. Whereupon the court instructs the jury * * *.'

From the state of the record, it is not clear when the alleged remarks were made, but the county attorney did say to the court out of the presence of the jury, according to the record: 'Your Honor, I insist that the defendant brings no defense.' So that at all events this would indicate that such a remark was made in the presence of the jury. Was such remark sufficient to cause a reversal of the case? Section 701, Title 22 O.S.1951, provides:

'In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.'

This court has reversed many cases where the prosecuting attorney commented on the fact that the defendant did not testify, but we have uniformly held that the statute forbidding comment on failure of accused to testify in his own behalf must not be construed to prevent fair argument of testimony. Riley v. State, 57 Okl.Cr. 313, 49 P.2d 813. And we have said that alleged improper argument of the...