Rambo v. State
| Decision Date | 05 March 1927 |
| Docket Number | A-5645. |
| Citation | 259 P. 602,38 Okla.Crim. 192 |
| Parties | RAMBO v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Oct. 8, 1927.
Syllabus by the Court.
In a prosecution for maintaining a public nuisance by operating a place where intoxicating liquor is kept and sold, and where persons congregate to buy, drink, and receive liquor, a plea of former jeopardy by reason of having been tried in the federal court under the federal statute for a conspiracy to violate the National Prohibition Act (U. S. Comp. St. § 10138 1/4 et seq.), is properly excluded, as such charge in the federal court is not for the identical offense charged under the state statute.
When any person is lawfully arrested by an officer without a warrant for an offense committed or attempted in his presence, the officer may take from the person and immediate presence of the arrested person the tools, implements papers, and instrumentalities which have been or manifestly may be used to commit the crime for which such person is arrested, and the seizure of such instrumentalities in such case is not in violation of the Bill of Rights against unreasonable searches and seizures.
Where "choc beer," in bottles, is seized as being kept bartered, and sold in violation of the prohibitory liquor law, and is analyzed at some time within six days after it is seized, where it is shown by the analysis that it contains 7 1/10 per cent. of alcohol, measured by volume, and there is no proof that it is undergoing fermentation or that there is any material change in the alcoholic content during such time, and there is further proof that such liquor is intoxicating at the time seized, such evidence is sufficient proof, that at the time it was seized it contained as much as one-half of 1 per cent. of alcohol, measured by volume.
Appeal from County Court, Oklahoma County; C. C. Christison, Judge.
Roy Rambo was convicted of maintaining a liquor nuisance, and he appeals. Affirmed.
Wright Gill & Ramsdale, of Oklahoma City, for plaintiff in error.
Edwin Dabney, Atty. Gen., for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a liquor nuisance, and was sentenced to pay a fine of $500 and to be confined in the county jail for a term of six months.
The record discloses that in 1924 defendant had a filling station about nine miles southwest of Oklahoma City. On the date charged, certain federal officers with police officers from Oklahoma City went beyond this place some 250 yards and observed a boy named Herman Cluck deliver bottles of liquid to some persons in a car. The officers thereupon approached took charge of the occupants of the car, and the Cluck boy ran to the place operated by Rambo. The officers followed, and the purchasers then pointed out the boy who delivered them the beer, and the defendant, Rambo, as the person who had sold them a certain card or ticket which was redeemable in "choc beer." From the evidence we gather that defendant had a system of selling these tickets to purchasers, and the purchasers thereupon delivered the tickets to the agent or employee of Rambo for the "choc beer." The officers then arrested Cluck and Rambo and seized a number of similar tickets and a quantity of beer in bottles. Thereafter defendant and others were indicted in the federal court, charged with a conspiracy to violate the National Prohibition Act (U. S. Comp. St. § 10138 1/4 et seq.), and were tried and acquitted.
Before proceeding to trial in this case, defendant moved to suppress the evidence, and thereafter entered a plea of former jeopardy on the theory that the indictment and trial in the federal court was for the same offense here charged. The issue of former jeopardy was not submitted to...
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