Edwards v. State
| Decision Date | 30 November 1949 |
| Docket Number | A-11047. |
| Citation | 212 P.2d 150,90 Okla.Crim. 211 |
| Parties | EDWARDS v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Martin Edwards was convicted of having unlawful possession of intoxicating liquor in the Court of Common Pleas, Tulsa County, Leslie Lisle,, J., sentenced to five months in the county jail and to pay a fine of $350 and costs and he appealed.
The Criminal Court of Appeals, Brett, J., held that where defendant did not put his reputation in issue, admission in evidence of a search warrant issued for the search of the defendant's automobile was prejudicial, and constituted reversible error and held that in such case the state could not prove defendant's reputation in chief against him and reversed the judgment with directions.
Syllabus by the Court.
1. Where the state offers in evidence a search warrant reciting that certain intoxicating liquor is being stored, sold transported or given away, and otherwise furnished and is being kept for the purpose of being sold, stored transported, or given away in a certain 2-door Chevrolet sedan which said motor vehicle is being used in secreting storing and transporting intoxicating liquors in and on the streets and alleys of the city of Tulsa and the highways and roads of Tulsa County, Oklahoma, in violation of law by the defendant, such recitals of the search warrant were with reference to the essence of the offense charged and the admission of the warrant as independent evidence is prejudicial.
2. The character of the defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character.
3. Where a defendant is on trial charged with having possession of intoxicating liquors with intent to sell the same, it is not competent for the state to prove, as evidence in chief against him, that he has the general reputation of being a bootlegger.
4. Where no exception was reserved to giving of instructions, instruction might not be considered on apeal unless it contained fundamental error.
5. Proof of flight is permitted to be shown as circumstance of guilt.
John L. Ward, Jr., Tulsa, for plaintiff in error.
Mac. Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
The defendant Martin Edwards was charged by information in the Court of Common Pleas of Tulsa County, Oklahoma, tried by a jury and convicted of the offense of unlawful possession of intoxicating liquor. He was sentenced by the court to five months in the county jail and to pay a fine of $350 and costs.
Briefly, the evidence upon which the conviction was had was as follows, to wit, that a valid search warrant offered in evidence had been obtained for the search of the defendant's automobile. The defendant was observed driving east from the gates of the Mid-Continent Refinery on 17th Street. When he saw the officers he attempted to outrun them, and they gave chase. The chase continued through heavy traffic. He was overtaken after a shot was fired at his tires and a blow-out precipitated. A search of his car was made and disclosed four cases of whiskey.
The defendant first contends that the court erred in admitting in evidence over his objection, in the state's case in chief, the search warrant issued for the search of the defendant's automobile. This court has repeatedly held that it is error for the court to permit the state to introduce the search warrant as primary evidence where the recitals of such warrant are with reference to the essence of the offense charged. Wallace v. State, Okl.Cr.App., 208 P.2d 190, not yet reported in State reports; Weaver v. State, 78 Okl.Cr. 277, 147 P.2d 800; Lucas v. State, 56 Okl.Cr. 413, 41 P.2d 131; Savalier v. State, 85 Okl.Cr. 87, 185 P.2d 476, 477 (). In the latter case the court said:
In the case at bar the defendant did not take the witness stand and make an issue of his character and reputation. The admission of the search warrant in the instant case was therefore highly prejudicial and constitutes reversible error.
Next the defendant contends that the court erred in permitting over his objection and exception the assistant county attorney to make improper and highly prejudicial remarks and statements to the jury in his opening statement, and to ask highly improper questions during the trial of the case in relation to the defendant's business. In his opening statement the county attorney was permitted to say: 'The evidence will further be that Martin Edwards is a liquor dealer.' 'The evidence will further be, Gentlemen of the Jury, that Martin Edwards is a well known liquor dealer, and so known by the deputies.' 'That he was a liquor dealer, he was known as such from experience, they will relate that to you from the witness stand.' The defendant contends that these statements were incompetent, highly prejudicial and inflammatory, and that the court should have sustained his objection thereto. In the trial of the case this line of attack was followed up when the assistant county attorney asked deputy sheriff Raines 'Do you know what his business is?' to which the officer replied 'Yes, sir.' The court sustained defendant's objection to this question and answer, but there is merit in defendant's contention that by asking it counsel brought to the attention of the jury his remarks made in his opening statement. He further contends that the court added strength to the jury's impression by stating The defendant contends that his business was not an issue in the case. With this contention we must agree. As heretofore observed the defendant did not put his reputation in issue and the state could not prove his reputation in chief against him. In Wilkerson v. State, 9 Okl.Cr. 662, 132 P. 1120, ...
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