Moran v. State, A-11491

• Decision Date: 14 November 1951
• Docket Number: No. A-11491,A-11491
• Citation: 95 Okla.Crim. 6,237 P.2d 920
• Parties: MORAN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 920

237 P.2d 920

95 Okla.Crim. 6

MORAN v. STATE.

No. A-11491.

Criminal Court of Appeals of Oklahoma.

Nov. 14, 1951.

Syllabus by the Court.

1. Where Chief of Police of municipality testifies that he at time of the arrest of an accused outside the limits of the municipality, also held a commission as deputy sheriff and counsel fails to object, assigning that the commission is the best evidence, and thereafter defendant produces the sheriff to show that said police officer did not hold a current commission as deputy, and the sheriff after some uncertainty concerning the question examines the card held by said police officer and then states that said officer does hold a current commission as deputy sheriff, but still said card is not introduced into evidence, held that such proof is binding on this court in the absence of the purported commission being placed in the record that it might be examined on appeal.

2. Where police officer finds an accused outside the city limits of municipality on a public highway and in a drunken condition, even though said officer held no commission as a county or state officer, still, by provision of Tit. 22 O.S.1941 § 202, he had a right and it was his duty to arrest said person, and he had the further right to take possession of intoxicating liquor observed in the front part of accused's ditched automobile.

3. Where at trial counsel fails to object to the introduction of evidence on the ground of unreasonable search and seizure, and the question is not raised in any other manner before or during trial, a suppression of such evidence not being sought, the question cannot be raised for the first time on appeal to this court.

4. Where liquor is obtained from defendant's car at the time of his lawful arrest and is pertinent to the question of his alleged intoxication at said time, the same is admissible in evidence on trial involving said question.

5. The proof of the fact of intoxication or sobriety does not require special knowledge, and need not be made by expert testimony. The witness by whom the proof is sought to be made may describe the facts and circumstances which led to his conclusion, or he may simply state the fact of intoxication or sobriety.

James P. Devine, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., J. P. Garrett, Asst. Atty. Gen., for defendant in error.

POWELL, Judge.

The appellant, Joe Moran, was charged, tried and convicted in the county court of Okmulgee County of the offense of driving an automobile while under the influence of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve ten days in the county jail. Appeal has been duly perfected to this court.

The evidence on behalf of the State shows that on July 26, 1949, a Mrs. Jewell Wallace telephoned the office of the chief of police of Henryetta and reported an accident with another car, and that the chief of police, Chester Baird, tried to contact a deputy sheriff, but not being able to do so, he got in the patrol car and proceeded to the scene, which was outside the city limits of Henryetta. Officer Baird testified that when he got to the scene he found Joe Moran, who will hereinafter be referred to as defendant, standing and holding up to the side of his car, which was in a ditch on the left side of the road; that he considered the defendant drunk because he smelled liquor on his breath, that he mumbled when he talked; that he could not stand up and when they put him in the patrol car he could not get in on his own power; that he did not appear to be injured in any way by reason of ditching his car. Witness stated that he examined the roadway and tracks thereon of defendant's car and from such examination he considered that 'For about a quarter of a mile the car went from one side of the road to the other, and in two or three places ran off the shoulder of the road before it stopped.' Witness further stated that the right side of defendant's car was somewhat damaged where it hit the ditch, one fender being mashed down on the front wheel so it could not be driven. Officer Baird stated that he arrested the defendant because of drunkenness, brought him to town and had his car towed in to the garage. Witness further testified that he looked in the car and saw a partially filled 'fifth' of whiskey in the front. He estimated eighty per cent of the liquid had been removed. The bottle was identified and introduced in evidence. Witness stated that he made the arrest in the afternoon, possibly 2:30 or 3:30, one-half a mile out of Henryetta. Witness further stated that he held a special deputy sheriff commission.

Don Stormont, deputy sheriff, and Ray Ashley, policeman, testified to facts...