Hutson v. State

• Decision Date: 22 July 1932
• Docket Number: A-8322.
• Parties: HUTSON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

13 P.2d 216

53 Okla.Crim. 451

HUTSON v. STATE.

No. A-8322.

Court of Criminal Appeals of Oklahoma

July 22, 1932

Syllabus by the Court.

Where a felony has been committed, a peace officer in a fresh pursuit may make lawful arrest of the perpetrator outside the boundary of his county.

Appeal from County Court, Grant County; Mearle E. Prout, Judge.

Joe Hutson was convicted of having the unlawful possession of intoxicating liquor, and he appeals.

Affirmed.

Ridings & Drennan, of Medford, for plaintiff in error.

J Berry King, Atty. Gen., and C. N. Ernest, Co. Atty., of Medford, for the State.

EDWARDS J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Grant county on a charge of having the unlawful possession of intoxicating liquor and was sentenced to pay a fine of $250 and to serve 30 days in the county jail.

At the time charged, defendant while driving an automobile on the highway of Garfield county had a collision with another car. He left the scene. The sheriff and a deputy were called and appeared on the scene in about thirty minutes and followed defendant into Grant county and arrested him at the home of one McCart. They then searched the automobile which he had been driving and in which they found ten gallons of whisky and some empty containers. The officers were able to follow the car by reason of the fact that in the collision it had blown out a tire and left a mark on the pavement.

The only contention made is that the officers of Garfield county were without authority in Grant county and in arresting defendant were acting only in the capacity of private persons; that the arrest was unlawful and the subsequent search therefore unlawful and the evidence inadmissible. The question presented goes only to the admissibility of the evidence and not to the jurisdiction of the court over the person of defendant. The legality of the arrest to give the court jurisdiction of the person of defendant appears not to have been raised, but the validity of the arrest as a basis for the admissibility of the evidence procured by search after arrest is questioned. The legality of the arrest was not a matter for the consideration of the jury, but a question for the court to pass on when an objection to the evidence was raised by a motion to suppress. As stated, the court heard testimony on that point and must have arrived at the conclusion that the arrest was legal and the evidence admissible. The presumption being that a public officer does his duty, it was incumbent on defendant to show the arrest was illegal and the subsequent search illegal. There is no direct statutory authority for the arrest. Defendant objected to the introduction of the state's testimony of the finding of the whisky in his car. In the hearing on the motion to suppress, the deputy sheriff testified he was called and informed of the wreck by one of the parties in the other car. The sheriff testified he arrested defendant for a felony, driving a car while drunk, and that he searched the car after having made the arrest. Defendant did not take the stand and offered no testimony. There is a surprising dearth of authority on the question raised. Some of the books lay down a rule which is hardly borne out by the cases cited. 2 R. C. L. 470, n. 1. Some of the cases touching the question are cases in which civil liability only is involved. This is so of the case of McCaslin v. McCord, 116 Tenn. 693 94 S.W. 79, 83, 8 Ann. Cas. 245. The statute there is the same as ours. The court said:

"* * * It will be observed that an officer, in addition to the right conferred upon a private citizen, is given the right to arrest without a warrant, 'on a charge made, upon a reasonable cause, of the commission of a felony by the person arrested.' Section 6997, subsec. 4. In respect of private persons, the language is, 'when the person arrested has committed a felony' (section 7002 [2]) and, 'when a felony has been committed' (section 7002 [709 (3)]). The difference in phraseology is significant. A private person making an arrest for an offense not committed in his presence, in order to justify must be able to show by a preponderance of the evidence that a felony has been committed; on proving this, he may complete his justification, by showing that he had reasonable cause to believe that the person arrested committed it. Section 7002 (3). On the other hand, an officer may justify by showing that a charge had been made of the commission of a felony, and that he had reasonable cause to believe that such felony had been committed and that the person arrested had committed it. * * *

We deem it proper to say that we do not...