Tripp v. State
| Decision Date | 15 October 1937 |
| Docket Number | A-9284. |
| Citation | 72 P.2d 529,63 Okla.Crim. 41 |
| Parties | TRIPP v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Section 805, O.S.1931 (38 Okl.St.Ann. § 10), which disqualifies sheriffs from performing jury service, applies as well to deputy sheriffs as to principle sheriffs, and such an officer when challenged for said cause is not eligible to sit on a jury in a criminal case.
2. The challenge of the defendant to jurors Johnson, Fowler, and Layton, on the ground they were disqualified by reason of the fact that Johnson and Fowler were deputy sheriffs, and Layton a police officer, was well taken, and the court erred in not sustaining the same.
Appeal from Court of Common Pleas, Oklahoma County; Chas. W. Conner Judge.
C. G Tripp was convicted of the illegal possession of intoxicating liquor, and he appeals.
Reversed.
Joe Adwon, and James L. Gowdy, both of Oklahoma City, for plaintiff in error.
Mac Q Williamson, Atty. Gen., for the State.
The plaintiff in error, hereinafter referred to as the defendant was by information charged jointly with R. O. Snapp with the crime of illegal possession of intoxicating liquor; was tried separately, convicted and sentenced to pay a fine of $500 and to be confined in the county jail for 90 days.
When the case was called for trial, the defendant filed his motion to suppress the evidence, first, on the ground that the application for the search and seizure is based on information and belief, and not on positive facts. Second, the description of the property is ambiguous, wrong, indefinite, and uncertain, and cannot be ascertained without violating the constitution and statutes of the State of Oklahoma. The defendant's motion to suppress the evidence was by the court overruled, and the defendant reserved an exception.
When the case was called for trial, and after the defendant had exhausted all his peremptory challenges, there remained among the jurors called three jurors, J. V. Johnson, Joe Layton, and W. F. Fowler, who on their voir dire was asked the following questions and gave the following answers:
"Q. Mr. Johnson, is that your name? A. Yes, sir.
Q. You told the court at this time you hold a deputy sheriff's commission or reserve commission? A. Reserve.
Q. Issued by the sheriff of this county? A. The sheriff's office.
Q. The sheriff's office; and you are a reserve deputy at this time under the sheriff of the county, are you not? A. Yes, sir.
Q. It has not been revoked by the sheriff of the county, has it? A. Not that I know of.
Q. And you are the same Mr. Johnson that was questioned by me a few minutes ago on the jury? A. Yes, sir.
Q. And you are a member of this regular panel, are you not? A. Yes, sir."
Joe Layton was examined and stated as follows:
"Q. Now Mr. Layton, you are at this time an officer, are you not? A. I carry a commission, I don't work at it.
Q. You carry a commission? A. Yes, sir.
Q. What kind of a commission do you carry, Mr. Layton? A. Well, I got a city commission.
Q. Are you at this time a reserve commissioned officer? A. Yes sir.
Q. How long Mr. Layton? A. About twenty years.
Q. And after that length of time you retire on a pension? A. No sir.
Q. But you are still subject to be called out on service at any time? A. Yes, they could call me but they never have."
W. L. Fowler being examined on his voir dire, stated:
"Q. At this time you hold what we call a deputy sheriff's commission, or reserve commission, do you? A. Yes sir.
Q. Has it been revoked? A. Not that I know of.
Q. It is still in existence? A. So far as I know."
On cross-examination Mr. Daugherty asked for an exhibit to be marked Exhibit 1, and asked Mr. Johnson if it was the same form of commission issued to him, and Mr. Johnson stated, He then asked Mr. Fowler if it was the same form issued to him and he said it was.
He then asked Mr. Layton if his commission was that of a police officer; he said he also had a commission like the exhibit two or three years ago, and, when asked, "You don't have it any more," replied, "I don't think I have got any."
The form of the commission issued is as follows:
"No. B B 25 Commission Reserve Deputy Sheriff.
Know all men by these presents:
That I, Stanley Rogers, Sheriff of Oklahoma County, State of Oklahoma, reposing special confidence in the worth, ability and integrity of ------, do, by virtue of my office, appoint him as Reserve Deputy Sheriff, without compensation, to be and act as such in a manner provided by law. This commission expires December 31, 1936, unless otherwise revoked.
In Testimony Whereof, I have hereunto set my hand this ------ day of ------ 193-.
The court then asked the jurors as to what authority they understood they had under this reserve commission, and the defendant interposed objections to the remarks of the court asking the jurors who had been called who held commissions as reserve deputies as to what they thought their authority was, which objections were by the court overruled, and the defendant reserved an exception.
The trial proceeded with the three jurors challenged by the defendant on the ground they were officers and not legal jurors. Evidence was introduced showing that acting upon a search warrant to search a one-story frame building known as the Italian Garden, located at 5301 Lincoln boulevard, adjacent to Oklahoma City, Okl., in said county and state, that Sheriff Rogers was one of the main witnesses against the defendant, and testified to seeing the defendant at the Italian Garden, and afterwards arresting him and forcing him to deliver his key to his home, which was a short distance from the place known as the Italian Garden, at which place the officers claim they found a quantity of whisky.
After a careful examination of this record, it is not deemed necessary to set out the evidence in full. The defendant has assigned nine errors alleged to have been committed by the trial court. Several of them possess merit, but the only one this court deems necessary to discuss is assignment 8, which is as follows: "That the court erred in overruling plaintiff in errors motion to dismiss certain jurors disqualified by the statutes to serve in that capacity."
The record discloses that a search of the defendant's home was made without any authority, the State attempting to justify their act on the ground that in the Italian Garden the officers claim to have found in the sink a broken bottle which contained whisky. The defendant was in the garden at the time and was placed under arrest for having ale, but it appears from the record that no charge was filed against him for the ale claimed to have been found in the Italian Garden.
R. O. Snapp, testifying for the defendant, stated that the defendant was in the Italian Garden when the officers came in. Witness stated he was manager for Mr. Sleeper, and that the defendant was not working in the Italian Garden, and was not employed there.
Because of the fact that the defendant was in the Italian Garden, in order to justify the action in searching the defendant's home which was a short distance from the Italian Garden, they claim they put the defendant under arrest and made him deliver the keys to his home to the officers, and, when they went to his home and searched it, they found the whisky. The search warrant only authorized the search of the Italian Garden and not for any out buildings, cabins, or residence. The search warrant did not authorize the officers to search the home of the defendant, and the view we take of this record it is not necessary to discuss the question of the search of the defendant's home, except to say it was an unlawful search.
Section 805, O.S.1931 (38 Okl.St.Ann. § 10) in part is as follows "All male citizens, residing in this State, having the...
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Carr v. State
...sheriff, which fact was not known to the defendant or his attorneys until after the return of the verdict." In the recent case of Tripp v. State, 72 P.2d 529, court held: "The statute disqualifying sheriffs from performing jury service applies to deputy sheriffs as well, and a deputy sherif......
- Houston v. State