State v. Lumley

• Citation: 178 P.2d 629,83 Okla.Crim. 430
• Decision Date: 05 March 1947
• Docket Number: A-10662.
• Parties: STATE v. LUMLEY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

178 P.2d 629

83 Okla.Crim. 430

STATE v. LUMLEY.

No. A-10662.

Court of Criminal Appeals of Oklahoma

March 5, 1947

Appeal from District Court, Tulsa County; S. J. Clendinning, Judge.

Mrs. E L. Lumley was charged, by information, with grand larceny. Defendant's motion to suppress the evidence was sustained, and the State appeals on reserved questions of law.

Reversed and remanded.

Syllabus by the Court.

1. Where the facts and circumstances within the knowledge of the arresting officer and communicated to him by others are such that thereon he has reasonable ground to believe that a felony has been committed, an arrest based upon such belief without a warrant is not unlawful.

2. Where a person has been placed under a lawful arrest, by either an officer or private person, as an incident to such arrest such person may be searched and incriminating articles found in his possession may be seized as evidence in the case.

3. Search of the baggage of a person lawfully arrested is not invalidated by the subsequent misconduct of the arresting officer.

4. On motion to suppress evidence, arresting officer should be permitted to testify to fact within his personal knowledge or which have been communicated to him, which form the basis for his belief that a felony has been committed.

5. When an officer has placed a person under arrest, he should be taken to the public prison or jail where examination and search can be conducted as by law provided.

6. A person placed under arrest is entitled to the aid of counsel when such aid is requested. This court does not condone delay in granting such request.

7. Record examined-- held, court erred in sustaining motion to suppress evidence.

Mac Q. Williamson, Atty. Gen., Dixie Gilmer, County Atty., and Frank Hickman, both of Tulsa, for the State.

John Connolly Jr. and Wheeler & Wheeler, all of Tulsa, for defendant in error.

BRETT Judge.

This is an appeal on a reserved question of law from a judgment of the District Court of Tulsa County, Oklahoma, S. J. Clendinning, Judge, sustaining the motions of the defendant in error to suppress the evidence.

Two criminal cases, number 11831 and number 11832 were consolidated since motions to suppress applied with equal force in both cases and since the facts in each were identical. In both the cases, the defendant, Mrs. Lumley, was charged with Grand Larceny. In the first case, she was charged with having committed on September 16, 1944, the offense of grand larceny of one kimono at the value of $75.00 and one string of pearls of the value of $50.00, or the total value of $125.00, the same being the property of Mrs. Paul Pearman. In the second case, she was charged with grand larceny of one Leica Camera of the value of $200.00, said theft is alleged to have occurred on or about February 1, 1944, the same being the property of Major Vincent F. Mulford Jr.

After a preliminary trial she was bound over to answer in the district court. Informations were filed and demurrers thereto overruled and pleas of not guilty entered to the same. The defendant filed a motion to suppress the evidence in each case, alleging an illegal search of the defendant's baggage because the officer was without a search warrant so to do and for the further reason that the defendant was not engaged in the commission of a crime in the pressence of the officer.

The motions to suppress came on for hearing on March 27, 1945. The trial court sustained the motions to suppress the evidence and from that judgment this appeal is taken on the reserved questions of law. Therefore, the real question herein involved is, 'Is the evidence sufficient to uphold the trial court in sustaining the motions to suppress.'

In order to ascertain the true state of facts in this case, it is necessary to consider the evidence in its chronological order.

It appears from the record that Mrs. Lumley, the defendant, lived at the home of Major Mulford where she was employed by Major and Mrs. Vincent F. Mulford Jr., of Tulsa, as governess and house keeper. Great confidence was reposed in Mrs. Lumley for she was given a checking account at the bank in order to make purchases in connection with running the household. It appears further that the home of the Mulfords was undergoing some remodeling and redecoration and that for a period of three or four weeks, Mrs. Lumley had moved over to the house of the Pearmans, where she likewise had full charge of the Pearmans' home. During the first two or three days that Mrs. Lumley was a resident of the Pearmans' home, Mrs. Pearman testified that she commenced missing things; that Mrs. Pearman asked Mrs. Lumley about the things that she had missed and Mrs. Lumley turned the blame on other help in the house. An objection was interposed to this testimony and the same was sustained, to which an exception was raised and an explanation was made that the purpose in offering this evidence was to show the facts that the officer had and upon which he subsequently acted. This evidence was clearly admissible. Thereafter, the Mulford family and Mrs. Lumley moved from the Pearman home back to the Mulford premises and on the next day, the defendant left for Mineral Wells, Texas, on a vacation. Mrs. Lumley testified that Mrs. Mulford suggested the vacation and that J. Garfield Buell, the father of Mrs. Mulford, assisted her in making reservations and purchased a round-trip ticket for her. Mr. Buell told her to go and since she was going only for the baths, she would not need much baggage but when she left, she took two bags and a wardrobe trunk, which aroused his suspicions.

When the Mulfords moved from the Pearman's home, into their own home, five corrugated boxes containing personal property of the defendant were packed and moved to the new address. The record discloses that these boxes were labeled, 'Personal Property of Mrs. Lumley.' A few small boxes remained in the Pearman home. Mrs. Pearman opened one of these small boxes labeled, 'Personal Property of Mrs. Lumley.' The record discloses a state of facts, in relation thereto as testified to by Mr. Buell, as follows, to wit:

(Cross-examination of Mr. Buell by Mr. Gallaher): Mr. Buell: 'Mrs. Lumley left Sunday night. Monday morning Mrs. Pearman called me up and said, 'Mr. Buell, I hate to bother you but I wish you would come out here', and I went out--and she said, 'this matter is very, very serious',--and I went out there at the Pearmans' house and Mrs. Pearman handed me a list of the stuff as long as your arm, and she said, 'all this stuff is gone'.' Q. I see. A. 'And she said nobody could have taken it except Mrs. Lumley.' Q. Except Mrs. Lumley. A. 'And she said, 'all of her things except three or four little containers have been taken over to Mrs. Mulford's house'.' Q. Yes. A. 'And she said, 'I opened one of these little boxes and found my things in here, and here is another one of them', and I said,--she said, 'probably I had no right to, but it was tied up with a robe taken to Mrs. Lumley's room at 1792 East 27th Street, and I opened that', and let's see, I can give you the list of the stuff that came out of there--' Q. I don't care about the list. You have answered quite fully, Mr. Buell. * * * (Redirect examination by Mr. Hickman) * * * Q. What was that stuff that you found prior to her arrest, before the search warrant was issued? A. 'Well, this one box that was opened, a brown velvet hat, white silk hat, eyelett hat trimmed with silk violets, velvet coat hangers, and a pink satin gown, and five yards yellow suede and four yards red suede, a rhinestone bag--that came out of that box.' Q. Now that was whose stuff? A. 'That was Mrs. Pearman's stuff in her own house that had been wrapped up and marked by Mrs. Lumley, the 'Property of Mrs. E. L. Lumley', to be taken to 1792 East 27th Street.' Q. In whose handwriting was that written? A. 'In Mrs. Lumleys handwriting.' Q. Now was that the only box you went through at that time? A. 'That was the only box I went through at any time. There was one red wool coat there I think that had given them the first idea.' Q. That was in whose house? A. 'That was in the Pearmans' house, that is, in the house where the Pearmans live, 1344 East 26th Street.' Q. It had not yet been moved over? A. 'It had not been moved over yet. He had not gotten around to it.'

In view of the foregoing circumstances, Mrs. Pearman contacted Don Martindale, a Sergeant of the Tulsa Police Force, and explained the situation fully to him; that thereafter, Martindale made application to H. E. Chambers, Judge of the Municipal Court of the City of Tulsa, and obtained the issuance of a search warrant to search the room set apart for and occupied by Mrs. Lumley at 1792 East 27th Street, the Mulford home. The search warrant was issued by the said judge to make a search for two pairs of goldhandled scissors, needlepoint chair set, one lady's brown straw hat, string of pearls, lingeries, beaded bag with oriental design, two wool scarfs, one green and one red. Thereafter and on or about September 27, 1944, the search warrant was executed in the room set apart for Mrs. Lumley at the Mulford home and certain articles were identified at said time by Mrs. Paul Pearman as being property which belonged to Mrs. Pearman and which had been packed in cartons and labeled by Mrs. Lumley as, 'Personal Property of Mrs. Lumley', and removed to the Mulford home, said property being as follows, to wit:

Brown straw hat, felt hat, black lace hat, green hat, navy blue hat, brown silk hat, green plush hat, white straw hat, brown straw hat, dinner dress belt and buttons in rhinestone, wool scarf, veils, bag of lace, two beanies, red sweater, blue jacket, white bag, two slips, lace collar, crochet cotton, panties, and cape. ...