Gilmore v. State

• Decision Date: 01 February 1910
• Citation: Gilmore v. State, 106 P. 801, 3 Okla. Crim. 434, 1910 OK CR 34 (Okla. Crim. App. 1910)
• Parties: GILMORE v. STATE.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

106 P. 801

3 Okla.Crim. 434, 1910 OK CR 34

GILMORE v. STATE.

Court of Criminal Appeals of Oklahoma

February 1, 1910

Syllabus by the Court.

The protection afforded by the Constitution and laws of the United States to shipments into this state of intoxicating liquors, upon the ground that they are interstate shipments of commerce, extends only to persons who are lawfully in possession of the liquor so shipped.

When an officer arrests a defendant without warrant, the admissibility in evidence of any voluntary statement made by the defendant is not affected by the legality or illegality of the arrest.

Appeal from Pontotoc County Court; Joel Terrell, Judge.

Mont Gilmore was convicted of illegally conveying liquor in the state, and appeals. Affirmed.

Crawford & Bolen, for appellant.

Fred S Caldwell, for the State.

FURMAN P.J.

First. Elmer Pool testified that he and the defendant lived at Allen; that in the early part of September, 1908, the defendant hired him to haul a barrel from Francis to Allen that he did not know what was in the barrel, and the defendant did not tell him what its contents were, or whom it belonged to. R. E. Duncan testified that he was a deputy sheriff, and that he arrested the defendant, and took from him a barrel of whisky; that the arrest was made about two miles east of Francis, in Pontotoc county. In answer to the question as to how many pints the barrel contained the witness said, "I did not count them--he told me there was 100." There was a card on the barrel, upon which was written, "Ed Johnson, Francis, Oklahoma." Ed Johnson testified that he had not ordered the whisky, and that he had never authorized the defendant to ship whisky in his name. The witness testified that he had a conversation with the defendant about this matter, after the arrest. He said: "I asked him if he ordered whisky in my name. He said, 'You ordered it.' I said, 'No.' He said I did, and we got miffed, and then walked off." The defendant did not offer any testimony. The defendant's uncontradicted statement was that the whisky had been ordered by Ed Johnson. If this was true, the defendant had no right to take it into his possession without the consent of Johnson, and, his possession being unlawful, he cannot raise the issue that this was an interstate shipment. The United States law as to interstate shipments only protects those who are in lawful possession of the article so shipped. As to this issue the evidence sustains the judgment of the trial court.

Second. The other question raised by the defendant can be best presented by copying from the testimony of the witness R. E Duncan, as follows:

"Q. Do you remember the occasion of your arresting Mont Gilmore? A. Yes, sir. Q. Out east of Francis? A. Yes, sir. Question by the defendant: Q. Did you have a search warrant? A. No, sir. (Defendant objects to any seizure made without a search warrant.) Examination resumed by the state: Q. Did you know what was in the barrel before you arrested him? A. Yes, sir; only by hearsay, though. Q. Did you examine the record of the freight at the depot? A. No, sir. Q. Was this marked? A. Yes, sir; on the barrel marked 'Ed Johnson.' Q. Was there anything on it to show what it contained? A. No, sir.

"Cross-examination by the defendant: Q. It is just a matter of belief that it was a barrel of whisky, isn't it? A. I had been informed twice that day that Mont Gilmore and Elmore Pool were coming there after a barrel of whisky, and I was informed something like three or four weeks before that the barrel of whisky was there, and was informed that it was a barrel of whisky. (Defendant objects for the reason that the witness had no search warrant, and it is in violation of the fourth and fifth amendments of the Constitution of the United States, and that it is incompetent; objection overruled by the court, to which defendant excepts.)

"Examination by the state: Q. What was it? A. It was a barrel of whisky. Q. How many pints? A. I didn't count them; he told me there was 100. Q. Was that barrel billed to Ed Johnson? A. Ed Johnson, Francis, Oklahoma."

The position of counsel for defendant is that the arrest of the defendant and the seizure of the barrel of whisky, being made without warrant, were in violation of the constitutional rights of the defendant, and that therefore the state could not use the evidence that the barrel contained whisky because this was only positively discovered after the arrest, and was obtained by illegal means. In support of this contention counsel cite Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. An examination of this case will show that it does not sustain the contention of counsel for the defendant. This was a proceeding to condemn 35 cases of plate glass, seized by a collector as forfeited to the United States, on account of an attempt to defraud the United States of the lawful duties thereon. The charge was that the goods in question were imported into the United States to the port of New York, subject to the payment of duties, and that the owners or agents of said merchandise, or other person unknown, committed the alleged fraud, which was described in the words of the statute. The plaintiffs in error entered a claim for the goods, and pleaded that they did not become forfeited in manner and form as alleged. On the trial of the cause it became important to show the quantity and value of the glass contained in 29 cases previously imported. To do this the district attorney offered in evidence an order made by the district judge, under section 5 of the act of June 22, 1874, c. 391, 18 Stat. 187 (U. S. Comp. St. 1901, p. 2019), directing notice under seal of the court to be given to the claimants, requiring them to produce the invoice of the 29 cases. The claimants, in obedience to the notice, but objecting to its validity and to the constitutionality of the law, produced the invoice; and, when it was offered in evidence by the district attorney, they objected to its reception on the ground that, in a suit for forfeiture, no evidence can be compelled from the claimants themselves, and also that the statute, so far as it compels production of evidence to be...