Scott v. State

• Decision Date: 30 April 1947
• Docket Number: A-10697.
• Parties: SCOTT v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

180 P.2d 196

84 Okla.Crim. 171

SCOTT v. STATE.

No. A-10697.

Court of Criminal Appeals of Oklahoma

April 30, 1947

Appeal from Common Pleas Court, Oklahoma County; Glenn O. Morris Judge.

Joe Price Scott was convicted of illegal possession of intoxicating liquor, and he appeals.

Affirmed.

Syllabus by the Court.

1. Whether search and seizure from an automobile is reasonable is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made.

2. The question of suppressing evidence being a judicial one, this court will not reverse the trial court upon a question of fact where there is a conflict of evidence and there is competent evidence reasonably tending to support the finding of the trial court.

3. Where a defendant is lawfully arrested, and his automobile searched, the search made incident to such lawful arrest is not an invasion of the defendant's constitutional rights.

4. The action of the court in refusing to give a requested, special instruction must always be considered and determined by the facts in each case in which they arise.

5. It is not error for the court to refuse to give a requested instruction in the absence of any substantial evidence to support the giving of the same.

Wm. C Ijams and Charles W. Moss, both of Oklahoma City, for plaintiff in error.

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

BRETT Judge.

The defendant, Joe Price Scott, was charged in the Common Pleas Court of Oklahoma County, Oklahoma, with the offense of unlawful possession of 12 X 4/5 tax paid gin, 12 X 4/5 tax paid whiskey and one pint of tax paid whiskey; tried, convicted, and sentenced to serve 30 days in the Oklahoma County jail and pay a fine of $500.

To this charge, on the trial, the defendant interposed a motion to suppress the evidence, based on the contention that his automobile was unlawfully searched without a warrant and the evidence thus obtained, incompetent to sustain a conviction, and that the court erred in not sustaining the motion to suppress.

On the motion to suppress, the proof on the part of the State established to the trial court's satisfaction the defendant was arrested for reckless driving in the 3000 block of North Western street, Oklahoma City, and that incident to this arrest, a search of his automobile was made. This evidence established that the defendant was driving east on 30th street, came to a stop on the south side of the street with his automobile headed south-east, as though he intended to make a right-hand entrance into Western Avenue. He was in the right lane to make such a turn and his automobile was headed in the right direction. While he was thus situated, the arresting officers drove by and he saw them and they saw him. He suddenly pulled his car to the left and proceeded at a very rapid rate, as the officers testified, in excess of the speed limit, eastward on 30th street. After some pursuit, the defendant was apprehended in the driveway of a stranger to him at 619 North West 31st street. He was arrested and charged, in the Police Court, with reckless driving. To this charge he made no defense but forfeited his bond in the Police Court. The trial court found that incident to this arrest, his car was searched, and the liquor discovered. The defendant, alone, testified in his own behalf on the motion to suppress, and admitted that he was engaged in the 'liquor and insurance business.' The trial court overruled the motion to suppress. In this, he was supported by the evidence. We find no error in this feature of the record. The act of reckless driving was committed in the officers' presence and the arrest, being lawful therefore, the officers had a right to search the defendant's person, and his property in his immediate presence. In Odell v. State, Okl.Cr., 158 P.2d 180, 182, not yet reported in Okla.Cr.Reports, this court quoted from Blair v. State, 75 Okl.Cr. 265, 130 P.2d 545, wherein it was said:

'Whether search of, and seizure from, an automobile upon a public highway, without a search warrant, is reasonable, is, in its final analysis, to be determined as a judicial question, in view of all the circumstances under which it is made.

'Where a misdemeanor is committed in the presence of an officer he has the right to arrest the offender without the necessity of having a search warrant. If the arrest is not a subterfuge, and is in good faith, the officer has the right to search defendant and his immediate surroundings, without the necessity of a search warrant.

'Where an arrest is made under the above circumstances, it is the

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