Phinney v. State

• Decision Date: 14 September 1949
• Docket Number: A-11049.
• Parties: PHINNEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

210 P.2d 205

90 Okla.Crim. 21

PHINNEY v. STATE.

No. A-11049.

Court of Criminal Appeals of Oklahoma

September 14, 1949

Lloyd Phinney was convicted of unlawful possession of intoxicating liquor, and from a judgment and sentence of the County Court of Rogers County, W. M. Hall, J., on the jury's verdict assessing punishment of 30 days in the county jail and $200 fine, defendant appealed.

The Criminal Court of Appeals, Powell, J., reversed the judgment holding that no warrant was necessary to search defendant's premises, that a prior inconsistent statute was impliedly repealed, and that the evidence was insufficient to support conviction.

Syllabus by the Court.

1. Where officers preparing to enter a public place of business saw through open door empty whiskey cases and one case half full of bottles of liquor, all in plain view, the officers under such facts needed no search warrant to lawfully search such place of business.

2. The burden of proof is upon the person who alleges the invalidity of a search to introduce evidence to sustain his motion. Where the record is silent, the proceedings are presumed to be regular and in conformity to the law.

3. Under Title 74, § 149, O.S.1941, the officers and members of the State Highway Patrol and such other officers and investigators as the Commissioner of Public Safety shall designate shall have authority of other peace officers, including the right and power of search and seizure, but excluding the service of civil process.

4. Title 47 O.S.1941 (Sec. 16, Ch. 50, Art. 4 p. 330, S.L.1937) examined in connection with Title 74, par. 149, O.S.1941 (Ch 24, Art. 6, p. 77, S.L.1939) and found to conflict, the latter Act not containing regeneral clause repealing all acts or parts of acts in conflict therewith.

5. Where the Legislature takes up a whole subject anew, and covers the entire ground of the subject matter of a former statute, and evidently intend it as a substitute for it, the prior act will be repealed thereby although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.

6. In construing two statutes relating to same subject, later statute purporting to revise entire subject matter and containing additional provisions for carrying into effect same objects, will be construed to repeal by implication the former statute although no reference is made thereto.

7. One charged with crime is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt. Evidence examined and found insufficient to overcome the legal presumption.

H. Tom Kight, Jr., Claremore, for plaintiff in error.

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

POWELL, Judge.

The defendant Lloyd Phinney was charged by an information filed in the county court of Rogers County for the crime of unlawful possession of intoxicating liquor, which offense was alleged to have been committed in said county on the 14th day of November, 1947, by unlawfully having in his possession 83 pints and 42 fifths of whiskey. The case was tried to a jury and the defendant was convicted and punishment assessed by the jury at a fine of Two hundred dollars and thirty days in jail. Thereafter judgment and sentence was by the court rendered accordingly.

The defendant on appeal sets out eleven assignments of error, which are involved in argument of two principal propositions. On trial before a jury the state produced two witnesses, Glen Pike and O. K. Bevins, who were investigators with the Department of Public Safety. The defendant Lloyd Phinney did not take the witness stand, and did not put on any testimony, but relied solely upon a demurrer to the evidence.

The evidence brought out that on the night of November 13, 1947, the two arresting officers went to 'The 66 Club', located southwest of Claremore on U.S. Highway 66, for the purpose of making an investigation relating to the sale or possession of liquor. They testified that when they drove up to the northwest corner of the building, the door was standing about half open and their car lights shown on five or six empty cases. One case was on the floor and had been opened, and was half full of whiskey, which was in plain view of the officers. They further testified that they went around to the main entrance and went inside and obtained a mixed drink from a fellow by the name of Handley. They testified that they saw displayed in the building a Federal liquor license in the name of Lloyd Phinney, but they did not state what address was on the license, and the license was not offered in evidence. The proof showed that the defendant was not present at 'The 66 Club' at the time the officers were there. They seized the whiskey in question and placed Handley under arrest, and delivered the whiskey to the Sheriff of Rogers County. The only evidence introduced to connect Phinney as being the operator of 'The 66 Club' or the owner of the whiskey was the Federal license, not introduced in evidence, and the testimony of one officer that he had been in this place on another occasion and had talked to Mr. Phinney about gambling. How long prior to the raid in question was not stated. There was no testimony that Phinney had admitted being the operator of the Club. An attempt was made to prove by one of the officers that Handley, the bar tender, had said to the officers that the whiskey found belonged to the defendant Phinney, but this evidence was properly ruled out as being hearsay. No employee of the Club was called as a witness to show who was operating the business, and there was no evidence as to whom the personal property was assessed, who was paying the sales tax, personal tax, or in whose name other licenses, if any, might have been. It was shown by the evidence that the officers did not have a search warrant for the place.

The 66 Club was a public place, the officers had a right to be there, and a search warrant under the evidence, was unnecessary. See: Glance v. State, Okl.Cr.App., 204 P.2d 296, and particularly the cases therein cited; also Passmore v. State, Okl.Cr.App., 198 P.2d 439.

Counsel for defendant argues as his main proposition 'that the search, seizure and arrest as set forth in the complaint in the above entitled cause, and as testified to, was unlawful and the testimony of the witnesses was wholly inadmissible for the reason that it covered acts beyond the duties, authority and power of the Highway Patrol of the State of Oklahoma, which are set forth in Title 47 O.S.A. § 366.' Counsel then quotes the entire statute. It became effective April 20, 1937.

The defendant first argues that the court erred in overruling the motion to suppress evidence. There is nothing in the record to show where any evidence was introduced by the defendant in support of the allegations of his motion. The burden rested upon the defendant to prove the allegations of his motion to suppress. This objection is without merit. See: Plumlee et al. v. State, 78 Okl.Cr. 201, 146 P.2d 139.

But defendant further points out that the only evidence of the State, and all the evidence, was that of two investigators of the Department of Public Safety, and it is argued that they exceeded their authority and power in seizing the liquor in question and in arresting the defendant, and for such reason the court erred in refusing to sustain the defendant's motion to suppress the evidence. This proposition has been by this court decided contrary to the contentions of the defendant. See: Mitchell v. State, 74 Okl.Cr. 416, 127 P.2d 211, holding: 'Under Title 74, § 149, O.S.1941, the officers and members of the State Highway Patrol and such other officers and investigators as the Commissioner of Public Safety shall designate shall have the authority of other peace officers, including the right and power of search and seizure, but excluding the service of civil...