Davis v. State

• Citation: 377 P.2d 226
• Decision Date: 12 December 1962
• Docket Number: No. A-13181,A-13181
• Parties: Jessie Joe DAVIS, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 226

377 P.2d 226

Jessie Joe DAVIS, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13181.

Court of Criminal Appeals of Oklahoma.

Dec. 12, 1962.

Syllabus by the Court.

1. Question of suppressing evidence is judicial one, and Court of Criminal Appeals will not reverse trial court upon question of fact thereon where there is conflict of evidence and there is competent evidence reasonably tending to support finding.

2. An officer may arrest in the nighttime, without a warrant, any person whom he has reasonable cause for believing to have committed a felony, and is justified in making arrest, though it afterwards appear that felony had not been committed. 22 O.S.1961 §§ 196, 198.

3. The use of the term 'probable cause' or 'reasonable cause' with respect to belief that a person has committed a felony itself imports that there may not be absolute, irrefutable cause, and if facts are such that reasonably prudent man would have believed accused guilty and would have acted upon that belief, a police officer is justified in making arrest without warrant, where statute authorizes arrest without warrant when officer has reasonable ground to believe that person arrested committed felony, though not in his presence. 22 O.S.1961 §§ 196, 198.

4. Where a person is lawfully arrested, and his automobile searched, the search made incident to such arrest is not an invasion of the arrested person's constitutional rights.

5. Statute prohibiting convicted felons from owning or possessing firearms capable of being concealed on person does not arbitrarily deny ex-convicts right and privileges which others possess and does not violate equal protection of laws guarantees of state and federal constitutions, and the classification is not capricious or irrelevant to legislative purpose. 21 O.S.1961 § 1283.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Jessie Joe Davis, Jr., was convicted of the crime of possession of a deadly weapon, after former conviction of felony. Affirmed.

Ed Morrison, Tulsa, for plaintiff in error.

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

BRETT, Judge.

Jessie Joe Davis, Jr., was charged in the district court of Tulsa County with carrying on or about his person a deadly weapon, after having been previously convicted of a felony.

The accused was prosecuted under the provisions of Title 21 O.S.1961 § 1283, which reads:

'It shall be unlawful for any person having previously been convicted of any felony in any court of a state or the United States to carry on his person, or in any vehicle which he is operating, or in which he is riding as a passenger, any pistol, imitation or homemade pistol, machine gun, sawed-off shotgun or rifle, or any other dangerous or deadly firearm which could be as easily concealed on the person, in personal effects or in an automobile, as a sawed-off shotgun.'

Accused was tried by a jury, found guilty and his punishment fixed at three years in the state penitentiary. Appeal has been perfected to this court.

The plaintiff in error, defendant below, filed a motion to suppress any and all evidence obtained by virtue of a search of his automobile. Evidence was heard on this motion, the defendant offering as witnesses the officer making the arrest, and the officer making the search of the automobile. The court overruled the motion, and the case proceeded to trial on the merits.

In his brief the defendant argues two assignments of error:

'I. Error of the court in failing to sustain the defendant's motion to suppress as evidence the firearm admitted in evidence upon the ground that such evidence was seized as an incident to an unlawful search and seizure.

'II. Error in that the statute upon which the charge is laid is unconstitutional in that it is discrimatory, arbitrary and capricious and thus deprives the defendant of due process of law and denies to him the equal protection of the laws, in violation of the constitutions of the United States and the State of Oklahoma.'

Frank Sawyer, a police officer of the city of Tulsa, testified that he was alone in his car, patrolling, about 5 o'clock in the afternoon of July 22, 1961, and received a call from his dispatcher, directing him to go to a certain address, where the defendant, Jessie Joe Davis, Jr., had threatened a man with a sawed-off shotgun. He was given a description of the car the suspect was driving, and located it between 7 and 8 o'clock. He called in to his dispatcher that he was following the car, and asked for assistance. This defendant drove the car into an alley, and officer Sawyer followed and arrested him, charging him with operating his truck without taillights. The officer asked the accused to get out of his car, which he did, and accused was standing near the police car when officer Charles M. Goddard came up. Assisting officer Frank Sawyer, officer Goddard searched the truck, and found the gun under the seat. In the meantime, several other officers had arrived, in answer to Officer Sawyer's call for assistance. Defendant was taken to the police station, and charges were filed the next day.

Wayne Edmunds, police corporal assigned to the detective division of the city of Tulsa, testified that he saw the defendant the next morning after his arrest. Alvin Jones, detective, was with witness, and they talked with the defendant about the shotgun. He told them that he had had the gun in his possession, and had been carrying it in his car for approximately one month. He stated that the gun had been given to him by Bill Strickland, and when they indicated they would contact Strickland, accused told them he had moved to Kansas. Accused refused to give a signed statement. Detective Alvin Jones corroborated the testimony of officer Edmunds.

The county attorney in his opening statement described the gun as a 12 gauge shotgun with the handle and the barrel sawed off, until it was only 12 to 15 inches long overall including the stock and barrel. The gun was introduced in evidence, and with the permission of the court, was handed to the jury for examination, thus giving them an opportunity to see that both the handle and barrel had been sawed off. A live 12 gauge shotgun shell, found in the gun at the time it was recovered, was also introduced in evidence.

Proper proof was made of two prior convictions of the defendant in Tulsa County, wherein he was charged with burglary, second degree, and in which he entered pleas of guilty and was sentenced in each case to two and one-half years in the penitentiary,...