Kirk v. State

• Decision Date: 25 October 1950
• Docket Number: No. A-11194,A-11194
• Citation: 92 Okla.Crim. 360,223 P.2d 558
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: KIRK v. STATE.

Page 558

223 P.2d 558

92 Okla.Crim. 360

KIRK v. STATE.

No. A-11194.

Criminal Court of Appeals of Oklahoma.

Oct. 25, 1950.

Syllabus by the Court

1. Whether search and seizure from an automobile 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.

2. The question of suppressing evidence being a judicial one, this court will not reverse the trial court upon a question of fact where there is a conflict of evidence, and there is competent evidence reasonably tending to support the finding of the trial court.

3. Where a defendant is lawfully arrested, and his automobile searched, the search made incident to such lawful arrest is not an invasion of the defendant's constitutional rights.

4. Where an information charges accused with the offense of transporting intoxicating liquor, it is essential to sustain conviction that the state prove either by direct or circumstantial evidence the transportation of such liquor. The fact that whiskey was found in parked automobile without any other evidence to show a transportation was insufficient to sustain conviction for transportation of intoxicating liquor.

H. R. Helmbrecht, C. L. Armstrong, Ponca City, for plaintiff in error.

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

JONES, Presiding Judge.

The defendant, Marion Kirk, was charged in the county court of Kay County with the illegal transportation of seven cases of whiskey; a jury was waived; the defendant was tried, convicted, and given the maximum sentence.

Two contentions are presented for reversal. First, the court erred in overruling the motion to suppress evidence presented prior to the commencement of the trial. Second, the evidence is insufficient to sustain a conviction for transportation of intoxicating liquor. These assignments of error will be considered together.

Two policemen of Ponca City testified that on the night of December 7, 1948 they saw a 1948 Lincoln sedan turn into the driveway of one Herman Smith in Ponca City. They saw some persons moving about the car from a distance of about five hundred feet. They also saw the driver of the automobile, who was a large, heavy-set man, dressed in khaki clothes, as he passed in front of the headlights of the car. Shortly thereafter the automobile left the Herman Smith premises and the policemen started following in their car. The policemen testified that the driver of the sedan ran a stop line and drove the car at a speed in excess of sixty miles per hour in a zone where the speed limit was twenty-five miles per hour; that before they left the city limits the police car was going eighty miles per hour but that the Lincoln sedan outdistanced them and they lost him about one mile south of the city on highway No. 40. The policemen returned to Ponca City, called the highway patrol headquarters at Pawnee and gave them a description of the automobile. About thirty or thirty-five minutes later the policemen in company with two highway patrolmen were driving south on highway No. 40 in search of the Lincoln sedan, and by flashing their lights in driveways of homes which they passed, they located it sitting in the private driveway of the home of Jimmy Arnold, a known bootlegger. The officers entered the driveway and parked. Shortly thereafter a car driven by Arnold came into the driveway and stopped. Sitting in the car with Arnold was the defendant, Marion Kirk, who was dressed in khaki clothes. One of the officers asked who was driving the Lincoln sedan, and Kirk said that he was. The defendant was arrested but refused to drive his automobile to Ponca City. The officers then looked in the automobile and saw the seven cases of whiskey sitting there in plain sight.

We think the trial court properly overruled the motion to suppress evidence. It was admitted that the officers had no warrant for the arrest of the defendant, but he committed a misdemeanor in their presence by running a stop light and driving his automobile at an excessive rate of speed in violation of the city ordinances. His subsequent arrest was for these violations.

It has been held in a long line of decisions that in case of a lawful arrest the arresting officer may search the person and immediate surroundings of the person arrested, and may sieze anything found upon his person or in his control which is unlawful for him to have; and anything so taken may be used as evidence against him at the trial. Scott v. State, 84 Okl.Cr. 171, 180 P.2d 196; O'Dell v. State, 80 Okl.Cr. 194, 158 P.2d 180; Tripp v. State, 73 Okl.Cr. 69, 118 P.2d 273; Nott v. State, 70 Okl.Cr. 432, 107 P.2d 366.

In Scott v. State, supra, this court held:

'Whether search and seizure from an automobile 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.

'The question of suppressing evidence being a judicial one, this court will not...