King v. State

• Decision Date: 01 November 1950
• Docket Number: No. A-11291,A-11291
• Citation: 92 Okla.Crim. 389,223 P.2d 773
• Parties: KING v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 773

223 P.2d 773

92 Okla.Crim. 389

KING v. STATE.

No. A-11291.

Criminal Court of Appeals of Oklahoma.

Nov. 1, 1950.

Rehearing Denied Jan. 17, 1951.

Syllabus by the Court.

1. Whether search and seizure from an automobile, parked on a public street, without a warrant, is or is not unreasonable within the meaning of the Constitutional provision (Okla.Const. art. 2 § 30), forbidding unreasonable searches and seizures, is a judicial question to be determined in each case in view of all the facts and circumstances under which the search and seizure is made.

2. Where officer sees a person violating the intoxicating liquor law at a place where the officer has a legal right to be, the officer may without a warrant arrest the person and search his person and immediate possessions for intoxicating liquor.

3. The Criminal Court of Appeals will not reverse a trial court upon a finding of fact in connection with a motion to suppress the evidence where there is competent evidence reasonably tending to support the findings of the court.

4. Court properly admitted in evidence the certificate from the Collector of Internal Revenue showing payment by the defendant of the special tax required of liquor dealers by the United States government.

5. Counsel in making his argument to the jury is permitted to make reasonable deductions from the evidence, and unless on appeal this court can say from examination of the record that the argument complained of aroused the passion and prejudice of the jury to such an extent that they would be swayed from arriving at a just verdict the judgment will not be disturbed.

R. O. Swimmer, Oklahoma City, for plaintiff in error.

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

JONES, Presiding Judge.

The defendant, Grady King, was charged by an information filed in the Court of Common Pleas of Oklahoma County with the crime of transporting intoxicating liquor, to wit: 1152 pints of whiskey; was tried; convicted; and pursuant to the verdict of the jury was sentenced to serve six months in the county jail and pay a fine of five hundred dollars and costs; and has appealed.

It is first contended that the court erred in overruling the motion to suppress evidence. The evidence introduced at the hearing on the motion to suppress evidence showed that defendant on February 9, 1949 was driving a Chevrolet panel truck, with windows on the sides and in the rear. The truck was loaded with 48 cases of whiskey. While traveling east toward Oklahoma City near what is known as the Guthrie cut-off, the defendant saw officers Don Stone, and Glenn Roberts in a patrol car and turned his automobile around and started in the other direction. The officers became suspicious of his actions and started following him. Part of the time the officers were up close to the truck and part of the time they were as far as a quarter of a mile to the rear. Officer Stone testified that they got close enough to the panel truck to see the cases of whiskey inside the truck. While the officers were following the defendant he drove his car into a dead-end street and was forced to stop. The officers drove up behind defendant, asked him how much whiskey he had and the defendant told them, and further stated that it belonged to him. The officers had no search warrant, nor warrant for the arrest of the accused. The defendant testified at the hearing on the motion to suppress evidence but did not testify at the trial. On the motion to suppress evidence he swore: 'Well, I came in sight of them coming down the road, and I turned around and started back the other way, and I drove approximately a mile and a half or two miles, and I seen that they were going to stop me, and I stopped, and Mr. Stone or Mr. Roberts one asked me--when they walked up to the truck they could see the whiskey in there in the truck, after they stopped me, and they asked me if it was mine and I told them it was.'

Defendant further testified that if any one approached close enough they could look through the two windows in the back of the panel truck and see the whiskey, but swore that the officers never did approach the automobile close enough to see the whiskey until after he had stopped. On cross-examination he testified:

'Q. Full enough so that you could stand flat-footed and look through the glass in the doors and see the whiskey in the truck? A. Sure, you could walk to any glass around the truck, as high as a person would be, and see anything; see the floor in it.

'Q. And you could also see--if you stood up in front near the steering wheel and looked back in the back, you could see the whiskey from that point, too, couldn't you? A. That is right.'

This case is similar in many aspects to the case of Griffin v. State, 210 P.2d 671, 673, not yet reported in Criminal Reports, decided December 7, 1949. It was there stated:

'This court is further bound by the rule announced in numerous cases that whether a search of or seizure from an automobile, parked on a public street, without a warrant, is or is not unreasonable within the meaning of the constitutional provision (Okla.Const. art. 2, § 30) forbidding unreasonable searches and seizures, is a judicial question to be determined in each case in view of all the facts and circumstances under which the search or seizure is made. See Sue Hoppes v. State, 70 Okl.Cr. 179, 105 P.2d 433; Blair v. State, 75 Okl.Cr. 265, 130 P.2d 545.

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'The officers were patrolling the streets of Tulsa in the performance of their duty. It also was a part of their official duty to keep under surveillance the acts of any known criminals or suspicious characters. Both the defendant, Griffin, and Dale Wolfe, were known bootleggers. However, even though they were known bootleggers, the officers would not have a right to search their automobile without a warrant, unless a crime was committed in their presence which would authorize a search of the car.

'The question presented to this Court is whether the fact that the officers saw two known whiskey dealers passing a sealed carton from one to the other with the distillery name together with the word 'whiskey' stamped thereon, was a violation of the prohibitory liquor laws in the presence of the officers, so as to justify the arrest of the defendant, and the search of his automobile, and seizure of the whiskey in question.

'In Farmer v. State, Okl.Cr.App., 192 P.2d 716, 717, it is held: 'Where officer sees a person violating the intoxicating liquor law at a place where the officer has a legal right to be, the officer may without a warrant arrest the person and search his person and immediate possessions for intoxicating liquor.'

'Our Constitution, Article 2, Section 30, prohibits only 'unreasonable searches or seizures'.

'In Davenport v. State, 71 Okl.Cr. 91, 108 P.2d 549, the defendant drove his automobile into a public parking place. He left the car and went across the street to a restaurant. Certain policemen who had seen him drive into the parking lot, went to the automobile, looked through a glass window into the car and saw several packages wrapped in brown paper. No whiskey was visible, but on each of the packages were written the initials of the kind of liquor each contained,...