Jones v. State

• Decision Date: 12 January 1949
• Docket Number: A-10918.
• Citation: 202 P.2d 228,88 Okla.Crim. 243
• Parties: JONES v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

202 P.2d 228

88 Okla.Crim. 243

JONES v. STATE.

No. A-10918.

Court of Criminal Appeals of Oklahoma

Jan. 12, 1949

Appeal from County Court, Kiowa County; Clarence W. Hunter, Judge.

Lee Jones was convicted of possessing liquor and he appeals.

Reversed and defendant ordered discharged.

Syllabus by the Court.

1. The right of a peace officer to arrest without a warrant is defined and limited by Title 22 O.S.A.1941 § 196.

2. In making an arrest without a warrant for a misdemeanor committed in the presence of the officer, the fact that such an offense committed or attempted must exist to authorize the officer to act.

3. Under the provisions of Title 47 O.S.A.1941 § 92, reading in part as follows: 'Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead'. One who so operates his automobile cannot be said to be driving at an excessive speed.

4. An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose.

5. Where an officer does not know of the act constituting the offense, it is not committed in his presence.

6. Though the defendant may be guilty, he is entitled to a fair and impartial trial and to have all incompetent testimony excluded.

7. Whether search of, and seizure from, an automobile upon a public highway, without a search warrant, is reasonable, is in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made.

8. Where a conviction is based solely on evidence obtained by means of an unauthorized search and seizure, and admitted over the defendant's objection, the conviction will be reversed as contrary to law and the evidence.

9. The right of the people to be secure in their persons, houses papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.

Hughes & Hughes, of Hobart, for plaintiff in error.

Mac Q. Williamson, Atty. Gen. and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

This is an appeal from the County Court of Kiowa County by Lee Jones, defendant below, wherein on March 20, 1947 he was charged, tried and convicted for the crime of possession of intoxicating liquor and sentenced to pay a fine of $50.00 and costs and to confinement in the county jail for a period of thirty days. A motion for new trial was filed by the defendant, overruled by the court on April 26, 1947, to which the defendant excepted and from which action of the court this appeal has been perfected.

The defendant makes numerous assignments of error but it will be necessary for us to consider only one of them, to the effect that the 'court erred in not sustaining the defendant's motion to suppress the evidence'. In support of said motion to suppress Sheriff R. T. Hood and Deputy Sheriff E. O. Peters and the defendant testified. Their evidence in substance disclosed, that the sheriff was standing in a filling station and saw the defendant drive by, that as he came out, he saw the defendant on the wide gravelled road going south driving at an excessive rate of speed about a quarter of a mile away. The speed at which the defendant was driving prompted him to follow him. In pursuing the defendant he passed the home of his deputy, E. O. Peters, a quarter of a mile from the south edge of Hobart. He signalled and Mr. Peters, also took up the pursuit. The sheriff testified that though he had a speedometer he did not know exactly how fast he was going but judged it was between 65 and 70 miles per hour. He later said he would not swear to 'anyways near' the speed the defendant was driving. The sheriff testified however that the defendant was driving in such manner as to endanger his life or the lives of other people, that the only way he could judge the rate of speed was by the great amount of dust that was being kicked up by the defendant's automobile. He said that they were driving into a south wind. He testified that he never did see the defendant's car out of control. He said the defendant's vision might have been clear and that he 'was not endangering other people's lives, except the man behind him on account of the dust'. In other words, admittedly the defendant had his car under control and had a clear vision ahead of him. In fact, he says he would not say it was out of control because he did not see it out of control and it was not swerving. He said, that the defendant drove straight and that in his judgment he could have brought the car to a stop within the assured clear distance ahead of him. He said the defendant kicked up so much dust he dropped behind and deputy sheriff Peters passed him, and they continued the pursuit for about 13 1/2 miles until the defendant stopped.

On the motion to suppress deputy sheriff E. O. Peters testified in substance substantially to the same effect as did Sheriff C. T. Hood. In addition thereto said, that he passed the sheriff during the chase and pursued the defendant until he turned west, slowed down some and cross a one-way bridge, at which point he locked his front bumper on to the rear bumper of the defendant's car and the defendant stopped within a space of fifteen feet. At this time he said they were driving between 70 and 75 miles per hour. In so doing it is obvious that he thus endangered the defendant's life as well as his own. He testified his estimate of the speed was but a guess because his speedometer was broken. In this connection it is well to call attention to the fact the scientific tests reveal a car travelling at the rate of 70 miles an hour under favor mechanical operation, best road and weather conditions may be stopped within a distance of 192 feet. This court will take judicial knowledge of the fact that a car being driven 70 to 75 miles an hour could not be stopped within 15 feet under the conditions herein involved. He said that he never saw the defendant's car swerve. After they stopped he placed defendant under arrest for reckless driving, notwithstanding he said, he did not suspect the defendant of having committed a felony at the time he was arrested, in fact he says he 'did not know what he was wanted for or nothing'. He had no warrant for his arrest and no warrant to search his car. Thereafter they took the defendant to the county jail in Hobart, Oklahoma, and there searched his car and found therein approximately one case of whiskey.

The defendant testified his car was mechanically in good shape, and equipped with practically new tires. He further testified that his car was under control at all times and he could have brought it to a stop within the assured clear distance ahead. He testified, he did not know he was being followed. The defendant said that he ordinarily drove 60 to 65 miles per hour, and did not believe he was exceeding that speed in the instant case. In this connection if the cloud of dust was as dense and thick as the officers testified while they were driving south in pursuit of the defendant it is highly speculative if not a foregone conclusion that they could not have brought their cars to a stop within the assured clear distance ahead.

The officers and the defendant testified they did not meet but one car in the 13 1/2 miles travelled, and that they passed no other car on the road.

In the light of the foregoing facts it appears that the evidence is wholly insufficient to support the charge of reckless driving, and that the arrest made therefor and the charge based thereon was purely a pretense and subterfuge for the real purpose of searching the automobile. We are of the opinion that the arrest and search was unlawful and the evidence obtained thereby should have been suppressed. Under the provisions of Title 22 O.S.A.1941 § 196:

'A peace officer may, without a warrant, arrest a person:

1. For a public offense, committed or attempted in his presence. * * *'

This court has held that the right of a peace officer to arrest without a warrant is defined and limited by the aforesaid statute. Marple v. State, 51 Okl.Cr. 240, 1 P.2d 836; Matthews v. State, 45 Okl.Cr. 110, 282 P. 180; Altizer v. State, 21 Okl.Cr. 229, 205 P. 1106; Sunday v. State, 14 Okl.Cr. 620, 174 P. 1095; De Graff v. State, 2 Okl.Cr. 519, 103 P. 538. See page 234 of 21 Okl.Cr., page 1108 of 205 P. of Altizer v. State, supra, wherein this court said:

'It is not the purpose or intention of this court to restrict or impede peace officers who make arrests or attempt to make arrests legally. The statute in plain and unmistakable terms provides the circumstances under which officers can legally make arrests without a warrant.' Moreover, in Collegenia v. State, 9 Okl.Cr. 425, 132 P. 375, 381, this court has said that:

'In making an arrest without a warrant for a misdemeanor committed in the presence of the officer, the fact that...