Flanagan v. State

• Decision Date: 18 March 1942
• Docket Number: A--9957.
• Citation: 124 P.2d 270,74 Okla.Crim. 127
• Parties: FLANAGAN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

124 P.2d 270

74 Okla.Crim. 127

FLANAGAN v. STATE.

No. A--9957.

Court of Criminal Appeals of Oklahoma

March 18, 1942

Syllabus by the Court.

1. The constitutional provision guaranteeing one immunity from unlawful search and seizure is personal to the occupant of the premises involved, and hence an accused cannot object that a search is unlawful if he does not contend that he owns or has possession of the premises searched. Okl.St.Ann.Const art. 2, § 30.

2. Instruction, defining offense which substantially follows the language of the statute, is held not to be erroneous.

3. The defendant in every criminal case has a right to have a clear and affirmative instruction given to the jury applicable to his testimony based upon the hypothesis that it is true, when such testimony affects a material issue in the case.

4. Where prosecution does not rely wholly upon circumstantial evidence for a conviction, the accused is not, as a matter of right, entitled to have the jury instructed upon the law of circumstantial evidence.

5. The testimony of a confession is direct evidence and not circumstantial; where there is direct evidence of a confession of an accused that he committed the crime, in addition to circumstantial evidence, an instruction on the law of circumstantial evidence is not necessary.

6. A confession of facts directly admitting the commission of a crime is "direct evidence," but a confession of facts from which an inference of participation in the commission of the crime arises is "circumstantial evidence."

7. Record examined and held: court erred in not giving instruction on circumstantial evidence.

Appeal from County Court, Beckham County; J. R. Cornelison, Judge.

Fred Flanagan was convicted of unlawful possession of intoxicating liquor, and he appeals.

Reversed with instructions.

H. C Ivester, of Sayre, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for defendant in error.

JONES Judge.

The defendant, Fred Flanagan, was charged in the County Court of Beckham County with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve sixty days in the county jail and pay a fine of $200, and has appealed.

A lengthy brief has been filed on behalf of the defendant in which several assignments of error have been presented. It is first contended that the court erred in overruling the motion to suppress the evidence for the reason that the facts disclose that the search and seizure of the liquor involved was unlawful.

Without going into a detailed discussion of the facts on which this motion was based, it is sufficient for us to state that the defendant may not question the legality of the search since he disclaimed any possession or control over the room where the liquor was found, or of the liquor. Freeman v. State, Okl.Cr.App., 113 P.2d 843, not yet reported (in State Report); Tacker v. State, Okl.Cr.App., 113 P.2d 394, not yet reported (in State Report); Rogers v. State, Okl.Cr.App., 113 P.2d 606, not yet reported (in State Report); Chanosky v. State, 52 Okl. 476, 153 P. 131; Hall v. State, 39 Okl.Cr. 254, 264 P. 221, 222.

In Freeman v. State, supra, it is stated: "The constitutional provision guaranteeing one immunity from unlawful search and seizure is personal to the occupant of the premises involved, and hence an accused cannot object that a search is unlawful if he does not contend that he owns or has possession of the premises searched. Okl.St.Ann.Const. art. 2, § 30."

It is further contended that the court erred in giving certain instructions and in refusing to give certain instructions requested by the defendant.

The instructions which were given by the court were in the language of the statute and for the purposes for which they were given were sufficient under the decisions of this court. Anderson v. State, 21 Okl.Cr. 193, 207 P. 977.

The defendant presented a requested instruction based upon what he alleges is his theory of the case. It is true that the defendant in every criminal case has a right to have a clear and affirmative instruction given to the jury applicable to his testimony based upon the hypothesis that it is true, when such testimony affects a material issue in the case. We have examined the requested instruction. It is not in proper form and, if given by the court of its own volition over the objection of the defendant, would have been grounds for a reversal of this case for the reason that it placed an unfair burden upon the defendant to prove that the whiskey found by the officers belonged to Charles McDuffie.

The other instruction requested by the defendant was an instruction on circumstantial evidence and concerned the weight which might be given by the jury to certain statements alleged to have been made by the defendant to the officers after he had been placed in custody. The instruction requested by the defendant was not couched in proper language, but it was sufficient to direct the court's attention to the fact that a proper instruction on circumstantial evidence should be given, if, in the opinion of the court, the facts upon which the state relied for a conviction were wholly circumstantial. For a model instruction on circumstantial evidence see Jones v. State, 69 Okl.Cr. 244, 101 P.2d 860.

It is the contention of the state that although a part of the evidence relied upon by the state was circumstantial in its nature, the defendant made certain admissions of guilt to the officers which constitute direct evidence and that since their case was not based wholly on circumstantial evidence, no instruction on circumstantial evidence should have been given.

This court has repeatedly held that where the prosecution does not rely wholly upon circumstantial evidence for a conviction, the accused is not, as a matter of right, entitled to have the jury instructed upon the law of circumstantial evidence. Hagerty v. State, 22 Okl.Cr. 136, 210 P. 300; Foster v. State, 8 Okl.Cr. 139, 126 P. 835; Parnell v. State, 39 Okl.Cr. 361, 265 P. 660; Meier v. State, 39 Okl.Cr. 104, 263 P. 165.

In this case the defendant was the owner of a two-story hotel, known as the Lee Hotel, in the city of Sayre. This hotel building was a two-story structure with twenty or more rooms. The defendant managed and operated the hotel and occupied two of the rooms on the first floor as his living quarters. The other rooms of the hotel were occupied principally by permanent roomers, but there was some transient trade.

On the date alleged in the information, the officers, armed with a search warrant, searched the various rooms in the...