Farnsworth v. State

• Decision Date: 15 April 1959
• Docket Number: No. A-12701,A-12701
• Citation: 343 P.2d 744
• Parties: Howard G. FARNSWORTH, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 744

343 P.2d 744

Howard G. FARNSWORTH, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12701.

Court of Criminal Appeals of Oklahoma.

April 15, 1959.

As Corrected May 20, 1959.

Rehearing Denied June 24, 1959.

As Corrected July 10, 1959.

Second Petition for Rehearing Denied Sept. 9, 1959.

Syllabus by the Court.

1. Where police officer was called to scene to investigate accident in which defendant was involved, and found defendant intoxicated, officer had no authority to arrest defendant at scene of accident for a past misdemeanor not committed in his presence, even though an arrest might have been made for drunkenness in a public place. 22 O.S.1951 § 196; 37 O.S.1951 § 8.

2. Evidence discovered by an officer when he is in a place where he has a legal right to be is admissible to support a charge where such evidence would be involved.

3. Where officer makes an arrest without a warrant for a misdemeanor not committed in his presence and therefore an illegal arrest, illegality of arrest cannot render evidence obtained at time of arrest inadmissible, providing such evidence is otherwise admissible.

4. Where defendant was taken into custody by police officer who was called to scene of defendant's accident to investigate same, evidence of defendant's intoxication procured at scene by officer was admissible, notwithstanding fact that officer had no authority to arrest defendant for drunken driving without a warrant. 22 O.S.1951 § 196.

Appeal from Municipal Criminal Court of Tulsa, Tulsa County; Joe T. Smith, Judge.

Howard G. Farnsworth was convicted of the offense of driving a motor vehicle while under the influence of intoxicating liquor, and appeals. Affirmed.

Cal Hamilton, F. J. Lucas, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., for defendant in error.

POWELL, Presiding Judge.

The plaintiff in error, hereinafter referred to as defendant, was tried before a jury and convicted in the Municipal Criminal Court of the city of Tulsa, of the charge of driving an automobile while under the influence of intoxicating liquor, and the penalty was fixed by the jury at confinement in jail for ten days.

The record developed that the defendant was a responsible business man of Tulsa age 68; that he drove ahead of the prosecuting witness to a street intersection in Tulsa, and stopped at a stop sign, but apparently decided that his vehicle protruded out too far in the cross-street, and suddenly backed his car up with such force as to bend the grill guard and the grill on the car of prosecuting witness, who thereafter telephoned the police. The police officers, on questioning defendant concerning the traffic accident, concluded from alcoholic breath and manner of speech that defendant was intoxicated, placed him under arrest and took him to jail.

The record reflects that on June 28, 1958, an information was filed against defendant charging him, not with the misdemeanor that took place in the presence of the officers, to-wit: Drunkenness in a public place (22 O.S.1951 § 196; 37 O.S.1951 § 8), but with the offense of driving a motor vehicle on a public street while under the influence of intoxicating liquor. 47 O.S.Supp. § 93.

On June 30, 1958, defendant was arraigned, entered a plea of not guilty, demanded jury trial, and appearance bond was filed.

On October 2, 1958, defendant filed a motion to suppress, but prior to the motion being acted on, and on October 7, 1958, the day the case had been set for trial, counsel filed a motion to quash the information. No evidence was heard in support of either of the motions, but it was stipulated that the defendant had an accident at Denver and Marshall Streets, in the city of Tulsa, which was not witnessed by the officers; that the officers did not see it in that they arrived at the scene some minutes after the accident, and that as a result of their investigation charges were filed. The State refused to stipulate that no offense was committed in the presence of the officers, but only that no traffic offense was committed in the presence of the officers. Whereupon, the court stated:

'There is no stipulation that there was no offense committed in the officers' presence.

'Mr. Hamilton [defense counsel]: The stipulation shows he was arrested on a drunk driving charge.

'The Court: Let the court complete his remarks. Then the only thing I can do is to overrule the motion to quash. Consider the motion to quash presented and that no evidence was shown that an offense was not committed in the officers' presence, it being theoretical when officers arrived at the scene there was some offense committed in their presence.'

Following the above ruling the State produced as a witness Elmer F. Bohanan, who testified to the accident in question. He said that prior to the accident he noticed defendant's car weaving over the road, and zig-zagging. He said that when he discovered the defendant was going to back his car after stopping at the stop sign, witness sounded his horn to no avail. He said that when the officers arrived they had both witness and defendant get in their car for statements concerning the accident. Witness gave it as his opinion that defendant had been drinking intoxicating liquors of some kind.

Officer Tommy Marrs, of the Tulsa Police Department, said that on June 28, 1958 he investigated an automobile accident at Marshall and Denver at request of police dispatcher, and arrived at the scene three or four minutes after the accident. The defendant's car and the Bohanan car were still in the same position as at time of accident. The major damage was to the Bohanan car. The parties got in the police car. Defendant did not talk plain and staggered to the police car and had the odor of alcohol about his person, and the officers placed him under arrest and took him to the squad room at the police station, where Lt. Haddock gave him some manual tests for intoxication.

Lt. Haddock stated that he talked with defendant for fifteen or twenty minutes; that defendant said he had two drinks of whiskey, but did not state the size. He said defendant tried to walk a straight line 12 to 14 feet long and staggered off the line five times; that he fumbled coins he was asked to pick up, and that witness gave defendant a number of other tests that he described and said defendant failed all the tests. It was the conclusion of witness, based on the tests made, that defendant was under the influence of intoxicating liquor at the time.

This closed the evidence for the State, and defendant renewed his motion to quash, which was overruled.

The defendant testified and said that he had, just prior to the accident, visited his attorney, Mr. Pinson, who lived nearby. Defendant was in the oil business and the call was a business call. Defendant claimed that when he stopped at the stop sign the prosecuting witness ran into the rear of his car. Defendant denied that he backed his car. He admitted that he might have been unsteady on his feet, but said that it was for the reason that both of his ankles had been broken and his right ankle gave him considerable trouble, and he had to wear special supports. He said that he had undergone a number of corrective operations. Defendant admitted that he had two fair-sized drinks of whiskey prior to leaving Mr. Pinson's home. He said that he was there about an hour, and the accident happened at about 5:57. He denied that he was intoxicated. Defendant admitted that on May 17, 1955, he had been convicted of public drunkenness in the municipal criminal court of Tulsa.

Mr. Paul Pinson, semi-retired attorney, testified to the defendant visiting him the day in question, and said that after talking over some business, defendant had a couple of drinks. He said that if he had thought defendant was under the influence of intoxicants he would have driven him home.

The question of whether the defendant was under the influence of intoxicants while driving his automobile was, under proper instructions, submitted to the jury. We have uniformly said that where evidence is conflicting and different inferences may be drawn therefrom, it is the province of the jury to weigh same and determine the facts. Ryan v. State, 97 Okl.Cr. 119, 258 P.2d 1208.

While three State witnesses and one defense witness were permitted to testify as to whether or not in their opinion the defendant was under the influence of intoxicating liquors at near the time of the accident, such opinions were based on observations of the defendant at the time, rather than a stated hypothetical situation, and the witnesses did not have to qualify as experts. An instruction covering expert testimony was not, therefore, called for. No such instruction was requested.

The question determinative of reversible error is whether or not the court erred in overruling the motion to suppress the evidence of the policemen, and whether or not the court erred in overruling the motion to quash.

From our recitation of the happenings in court at the time the two motions in question were overruled, we must conclude that the court did not err. It is true that the officers did not witness the automobile accident, and that they had no right to arrest the defendant without a warrant for a misdemeanor not committed in their presence. Graham v. State, 31 Okl.Cr. 125, 237 P. 462; Keith v. State, 30 Okl.Cr. 168, 235 P. 631; Lyons v. Worley, 152 Okl. 57, 4 P.2d 3. Yet they did have a right to arrest the defendant for any other misdemeanor, or felony as for that, committed in their presence. The court specifically found that in the absence of a stipulation that no misdemeanor was committed in the presence of the officers, thus giving them grounds for an arrest, he would overrule the two motions.

The record is not clear as to what the officers advised the defendant was the cause for his arrest. However, no charge of public drunkenness, an offense shown to have...