Hardin v. State

• Decision Date: 01 March 1935
• Docket Number: A-8774.
• Citation: 41 P.2d 922,56 Okla.Crim. 440
• Parties: HARDIN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

41 P.2d 922

56 Okla.Crim. 440

HARDIN v. STATE.

No. A-8774.

Court of Criminal Appeals of Oklahoma

March 1, 1935

Syllabus by the Court.

1. When the county attorney's name is affixed to the information in print or in typewriting and is then signed by his duly appointed assistant, such subscription of the name of the county attorney is a sufficient compliance with the requirements of the statute. Section 2829, Okl. Stat. 1931.

2. A peace officer, without a warrant, may arrest a person when a felony has been committed and he has reasonable cause for believing the party arrested to have committed it, or on a charge made upon reasonable cause of the commission of a felony by the party arrested. Section 2780, Okl. Stat. 1931.

3. When a lawful arrest is made by a peace officer for a particular crime and a search incident thereto made, in which evidence of the commission of a different crime than that for which the arrest was made is discovered and a prosecution instituted for such other crime, the admission of evidence obtained by such search is competent.

Appeal from Court of Common Pleas, Oklahoma County; L. V. Reid Judge.

Jack Hardin was convicted of illegal possession of intoxicating liquor, and he appeals.

Affirmed.

J. Q A. Harrod and Laynie W. Harrod, both of Oklahoma City, for plaintiff in error.

J Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.

EDWARDS Judge.

Plaintiff in error, hereinafter called defendant, was convicted in the common pleas court of Oklahoma county of unlawful possession of intoxicating liquor, and was sentenced to serve six months in the county jail and to pay a fine of $500.

Complaint is made that the court erred in overruling defendant's demurrer to the information because not signed by the county attorney. The photostatic copy of the information shows the name of the county attorney, by his assistant; the name of the county attorney appearing in typewriting or print. It is not disputed that Draper Grigsby, who subscribed the information, was a duly qualified assistant. Whether in typewriting or print, the subscription of the name of the county attorney was a sufficient compliance with the statute In McMillan v. State, 31 Okl. Cr. 261, 238 P. 510, syllabus 2, this court held: "* * * When the county attorney's name is affixed with authority, though in typewriting, to an information which is signed by his duly appointed assistant, it is a sufficient compliance with the requirement of the statute. Section 2511, Comp. St. 1921."

At the time charged, the sheriff's office was informed of the shooting of one Ed Squires purporting to have been done by defendant at his home near the town of Choctaw. After some investigation, the officers went to defendant's home to arrest him. They made the arrest, and then made a search of his residence for the gun with which the shooting was done. In making this search they found some 20 gallons of whisky. This occurred late in the evening, and the charge for unlawful possession was filed the following day. There is no dispute that defendant had the whisky. He did not take the stand and offered no testimony.

Before the trial, defendant filed a motion to suppress evidence as having been obtained by an unlawful search without a search warrant. After a hearing, the motion was overruled.

The contention is made that the court erred in overruling defendant's motion to suppress evidence, since the search was without search warrant.

After being informed of the shooting, the officers interviewed several persons, including the person shot, and, as a result of the information secured, arrested defendant and as an incident to the arrest made the search. Section 2780, Okl. Stat. 1931, sets out the conditions under which an officer may arrest without a warrant:

"A peace officer may, without a warrant, arrest a person: * * *

Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

Fourth. On a charge, made upon...