Miller v. State
| Decision Date | 04 May 1949 |
| Docket Number | A-10979. |
| Citation | 206 P.2d 245,89 Okla.Crim. 200 |
| Parties | MILLER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from Court of Common Pleas, Tulsa County; Leslie W. Lisle Judge.
Harry Miller was convicted of the offense of unlawful possession of intoxicating liquor, and sentenced to pay a fine of $250 and to serve 90 days in the county jail, and he appeals.
Affirmed.
Syllabus by the Court.
1. A search warrant following description in affidavit, describing property to be searched as 'a certain black Ford sedan automobile, bearing Oklahoma license No. 2-3755, said automobile is being used in the transporting, secreting and storing of intoxicating liquor' sufficiently described the property to be searched. Tit. 37 O.S.1941 § 1.
2. The search of automobile is proper under the statute relating to search warrants, where proper affidavit has been presented.
3. Where no exception was reserved to giving of instructions instruction might not be considered on appeal unless it contained fundamental error.
4. Evidence sustained conviction of unlawful possession of intoxicating liquor.
John L Ward, Jr., of Tulsa, for plaintiff in error.
Mac Q Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Elmer Adams, County, Atty., Tulsa County, of Tulsa, for defendant in error.
Defendant, Harry Miller, was charged in the court of common pleas of Tulsa County with the offense of unlawful possession of intoxicating liquor, to-wit: 54 pints and 49 4/5ths quarts of assorted whiskey; was tried, convicted and sentenced to pay a fine of $250, and to serve ninety days in the county jail, and has appealed.
Two deputies from the sheriff's office of Tulsa County procured a search warrant for the purpose of searching 'a certain black Ford sedan automobile, bearing Oklahoma license No. 2-3755.' There is no question as to the proper description of the automobile. It was located by the officers at the Tulsa Auto Hotel. When found the car was locked. One of the officers remained with the car, and the other went to the manager of the auto hotel, and he telephoned the defendant, the owner of the car. The defendant came to the auto hotel immediately, produced the keys and opened the car, and the whiskey above described was found therein. Defendant was arrested and the charges, as above stated, were filed against him.
The defendant filed a motion to suppress the evidence, in which it was claimed that the search was illegal and void for the reason that the defendant was asked by one of the deputies to open the car, and that the officers did not see the whiskey in the car prior to searching the same, and that they did not know that the car contained whiskey prior to the search. Evidence was presented on the motion to suppress, and we have carefully examined the same, together with the case of Bohannon v. State, 66 Okl. Cr. 190, 90 P.2d 675, the case relied upon by the defendant in his brief.
A careful reading of the Bohannon case reveals that the facts in that case are in no way comparable to the facts in the instant case. That was a case where the defendant was charged with the unlawful transportation of intoxicating liquor. Here the defendant is charged with the unlawful possession. The facts are entirely different.
If the defendant in the case at bar had been arrested and search conducted without the said of a search warrant, the question raised by defendant would present a more serious question. But the search warrant was for the purpose of searching the Ford automobile. The officers had the right to search the car under the warrant, and if necessary, had the right under the law to have forcibly entered the car for the purpose of making the search. The officers no doubt did not desire to injure or damage the car, and the defendant probably unlocked it in order to keep the officers from damaging the same. The evidence sustains...
To continue reading
Request your trial
-
Perez v. State
...in this case. We find the search of the automobiles to have been valid, as they were sufficiently identified. Miller v. State, 89 Okl.Cr. 200, 206 P.2d 245 (1949), reversed on other grounds, 90 Okl.Cr. 14, 209 P.2d 890 (1949); Prater v. Commonwealth, 216 Ky. 451, 287 S.W. 951 (1926); Hines ......
-
Edwards v. State
... ... instruction to be reversible error, but in all of the cases ... an objection was interposed and an exception saved to the ... giving of the said instruction. We find that no objection and ... exception was saved to the giving of the instruction in the ... case at bar. In Miller v. State, Okl.Cr.App., 206 ... P.2d 245, at page 246, (not yet reported in state reports), ... this court said: 'We have carefully examined the record ... in this case, and do not find that any exception was taken by ... defendant to the giving of any of the instructions, and no ... requested ... ...
-
Miller v. State
...liquor in the Court of Common Pleas of Tulsa County, Leslie W. Lisle, J., and he appealed. The judgment was affirmed on appeal, 206 P.2d 245. Criminal Court of Appeals, Brett, J., on petition for rehearing reversed the judgment, holding that the giving of an instruction respecting possessio......
- Madden v. State