Miles v. State

• Decision Date: 11 May 1925
• Docket Number: A-4914.
• Citation: 236 P. 57,30 Okla.Crim. 302,44 A.L.R. 129
• Parties: MILES v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

236 P. 57

30 Okla.Crim. 302, 44 A.L.R. 129

MILES v. STATE.

No. A-4914.

Court of Criminal Appeals of Oklahoma

May 11, 1925

Syllabus by the Court.

A person lawfully arrested may, as an incident thereto, be searched, and incriminating articles found in his possession may be seized.

Where the offense is not a felony, the officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.

No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest or shall be lawfully arrested without a warrant as authorized by law.

The Legislature, in creating an offense, may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces or is reasonably calculated to produce a certain defined or described result.

The word "peace," in the phrase "breach of the peace," means the tranquility enjoyed by the citizens of a municipality or community where good order reigns among its members; that invisible sense of security which every man feels necessary to his comfort, and for which all governments are instituted.

"Breach of the peace," in view of the generally accepted definition and of constitutional provision (article 7, § 19) that, "All indictments, informations, and complaints shall conclude, 'Against the peace and dignity of the State,"' includes any violation of any law enacted to preserve peace and good order.

It is not necessary that an act have in itself any element of violence in order to constitute a breach of the peace.

Appeal from County Court, Tulsa County; John P. Boyd, Judge.

Harry Miles was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

R. M Dick, of Tulsa, for plaintiff in error.

George F. Short, Atty. Gen., and N.W. Gore, Asst. Atty. Gen., for the State.

DOYLE J.

Plaintiff in error, Harry Miles, was convicted of having in his possession 4 pints of corn whisky with intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in jail for 6 months, and to pay a fine of $500. To reverse the judgment he appeals.

The evidence shows that one Wiggins had been a guest at the Ketchum Hotel in the city of Tulsa for two or three weeks and had for several days occupied his room in an intoxicated condition. During this time Mr. Gibson, manager of the hotel observed the defendant leaving the hotel two or three times, and on the morning of the day of his arrest saw the defendant coming out of the room occupied by Wiggins. He did not know the defendant's name, so he went to the sheriff's office and requested a deputy sheriff to come with him to the hotel. A few minutes after they arrived at the hotel the defendant came in and approached the elevator. Mr. Gibson pointed to the defendant and told the officer that he was the man he saw going in and out. The deputy sheriff arrested the defendant and searched him, finding 4 bottles of whisky on his person.

J. H. Quast, deputy sheriff, testified that on request of Mr. Gibson, manager, he went to the Ketchum Hotel with him, and a few minutes afterwards the defendant came in and approached the elevator; Mr. Gibson said, "There is the man"; and he arrested the defendant and searched him, finding 4 pints of whisky on his person; two in his hip pockets, and two in his coat pockets; that as he approached the defendant he saw a bottle in his left-hand coat pocket. The prosecution admitted that the search was made without a search warrant, and without a warrant for the arrest of the defendant.

At the close of the state's evidence, the defendant made a motion to strike all the testimony on the ground and for the reason that the arrest was made without a warrant, and that the testimony shows that no crime was committed in the presence of the officer at the time he made the arrest. The motion was denied. He then moved for a directed verdict in the form of a demurrer to the evidence, on the ground and for the reason that the evidence was insufficient to warrant a conviction. This was also denied.

The defendant contends that the search of and the seizure of the liquor found on his person was in violation of rights secured to him by the Constitution, and that the evidence obtained by such unlawful search was not admissible against him.

In the case of Keith v. State, 235 P, 631, opinion filed April 25, 1925, we held that no search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.

Consequently, in this case, the principal question presented is: Was the arrest of the defendant without a warrant illegal? The statute provides a peace officer may without a warrant arrest a person for a public offense committed or attempted in his presence. Section 2471, C. S. 1921. An offense is committed in the presence of an officer, within the meaning of the statute authorizing an arrest without a warrant, only when he sees it with his own eyes or sees one or more of a series of acts constituting the offense, and is aided by his other senses. An offense is likewise deemed committed in the presence of the officer where the offense is continuing, or has not been fully consummated at the time the arrest is made.

The present case is very different in its facts from the case of Keith v. State, supra. Here complaint had been made by the manager of the defendant's conduct in the hotel, and the officer called to prevent the defendant from furnishing intoxicating liquor to a guest of the hotel. Upon the undisputed facts the defendant was a trespasser, and was committing a breach of the peace at the time of his arrest. It has been held that the...