Miles v. State

• Decision Date: 06 June 1925
• Docket Number: A-4779.
• Citation: 236 P. 907,31 Okla.Crim. 4
• Parties: MILES v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

236 P. 907

31 Okla.Crim. 4

MILES v. STATE.

No. A-4779.

Court of Criminal Appeals of Oklahoma

June 6, 1925

Syllabus by the Court.

An officer may arrest for a misdemeanor, without a warrant, only for an offense committed or attempted in his presence.

An offense is committed or attempted "in the presence of an officer," within the meaning of the law, where such officer is apprised by any of his senses that a misdemeanor is being committed or attempted, or by information of such fact communicated by the person arrested prior to his arrest.

Additional Syllabus by Editorial Staff.

In prosecution for possession of intoxicating liquor with intent to sell, where police officers called accused by telephone and arranged with him to bring liquor to certain place, and on bringing it, he was arrested without warrant, and liquor found on his person without search warrant, such arrest was lawful, and search of accused's person did not violate Bill of Rights, art. 2,§ 30, and evidence so obtained was admissible.

Appeal from Municipal Criminal Court of City of Tulsa; G. E. Warren Judge.

H. T Miles was convicted of unlawful possession of intoxicating liquor, and appeals.Affirmed.

Moss & Owen, of Tulsa, for plaintiff in error.

EDWARDS J.

The plaintiff in error will be referred to as defendant.The defendant was convicted in the municipal criminal court of the city of Tulsa on a charge of having possession of intoxicating liquor with intent to sell, and his punishment fixed at a fine of $500 and six months in the county jail.

The evidence is very brief, and is to the effect that on the date charged certain police officers called up the defendant by telephone and arranged with him to bring a quart of whisky to a room in a bank building and that in a few minutes the defendant appeared there and at first went to the wrong room and inquired of some person there, and in the hearing of one of the officers, if they had called him.As he left this room, he was arrested and a quart of whisky taken from him.The police officer had no warrant of arrest nor search warrant.

The contention on which defendant seeks to reverse this case is that the search of his person was in violation of article 2, section 30, of the Bill of Rights, it being contended that, under this provision of the Constitution and the statute enacted in aid of it, the search was done upon a mere suspicion, and was unreasonable and unlawful; that any evidence obtained by means of such search could not be used in evidence against the defendant.

If, under the facts disclosed by the record in this case, the arrest was in violation of the constitutional rights of defendant, the case must be reversed.If, on the other hand, the officers in making the search lawfully arrested and searched the defendant the conviction should be affirmed.As there was in this case no search warrant, the question of the validity of a search warrant is not involved, but, if the arrest of the defendant was lawful, the arresting officer might lawfully search his person.Berg v. State(Okl. Cr. App.)233 P. 497, Davis v. State(Okl. Cr. App.)234 P. 787, and authorities therein cited.

The offense charged against the defendant is a misdemeanor and a peace officer may arrest for a misdemeanor without a warrant only for a public offense committed or attempted in his presence.Section 2471, Com. Laws 1921.It is held under similar provisions of law that it is not sufficient if, after the arrest, the search of the person discloses that the person arrested was committing an offense.To hold otherwise would be to license the arrest of any person on mere suspicion.The commission of the offense must be known to the arresting officer.However, the term "in his presence" does not...