Turnage v. State

• Decision Date: 26 May 1928
• Docket Number: A-6156.
• Parties: TURNAGE v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

267 P. 1038

40 Okla.Crim. 180

TURNAGE v. STATE.

No. A-6156.

Court of Criminal Appeals of Oklahoma

May 26, 1928

Syllabus by the Court.

The precise time at which an offense was committed need not be stated in the indictment or information, but it should be alleged to have been committed anterior to the filing of the information.

In a prosecution where one is accused of transporting intoxicating liquor, in order that the defendant may intelligently exercise his right to challenge jurors peremptorily, he should be accorded the privilege of ascertaining which of them, if any, are members of the Ku Klux Klan.

In a prosecution for unlawfully transporting intoxicating liquor from one place to another, an attempted search of defendant's car by an officer without warrant of arrest or search warrant is unlawful, and any evidence obtained by reason of such acts on the part of the officer is inadmissible in the trial of the case against the defendant.

Appeal from County Court, Woodward County; H. B. King, Judge.

Ed Turnage was convicted of transporting intoxicating liquor and he appeals. Reversed and remanded.

Clyde H. Wyand, of Woodward, for plaintiff in error.

Edwin Dabney, Atty. Gen., for the State.

DAVENPORT J.

The plaintiff in error, hereinafter referred to as the defendant was tried by a jury and found guilty of transporting intoxicating liquor, and his punishment fixed at a fine of $100 and 60 days' imprisonment in the county jail. Motion for new trial was filed and overruled, exceptions saved, and an appeal to this court perfected.

Defendant demurred to the information on the ground that the information shows that the offense charged against the defendant is alleged to have occurred on March 27, 1925; the information was filed on the same date, and fails to allege that the offense occurred anterior to the filing of the information--which demurrer was overruled and defendant duly excepted.

John W Bayless, a witness for the state, in substance testified as follows:

That he was an undersheriff and knew the defendant: that he had started to dinner on March 27, 1925, and saw defendant drive his car by the Quick Lunch and get out; saw him put a bottle in his pocket, and noticed he kept holding it; he came up the street to his car, which was parked west of the Woodward Hospital; Mr. Turnage, Mr. Richards, and Mr Turnage's little boy were in the car. "I asked Turnage to give me the whisky, and he said he did not have any, and stepped on the gas. I lit on the running board, and was holding on with my right hand, and ordered him to stop. He tried to push me off the running board. I pulled my gun and he found the brakes; stepped off about three feet from the car and said, 'Now, give me the whisky.' While I was on the car, Mr. Richards tried to get him not to resist an officer. He reached back in the car and got a bottle and threw it on the ground, and said, 'There it is.' Exhibit 1 is remnants of the bottle Ed Turnage had in his possession on the 27th day of March, 1925. I investigated, and the contents of the bottle was whisky."

On cross-examination the undersheriff testified that he did not have a warrant for the arrest of the defendant, nor to search his automobile. The defendant then moved to strike from the record, and the consideration of the jury, all of the testimony of the witness Bayless concerning the bottle, and any testimony in connection with that, which motion was overruled, and defendant duly excepted. Further on witness stated:

That he had seen a package, but that he had not seen the bottle. "The package looked like it contained a bottle. The bottle was wrapped in newspapers, and I could not have sworn what was in it; that is why I wanted to see it. I could not see the bottle through the paper."

Witness Lesley F. Carrithers testified that he came to town with the defendant that morning, and on the road they picked up a bottle that had a little watery substance in it; it looked like muddy water; that he spoke to defendant about getting the cork out of the bottle, which was pushed down in the bottle a bit; any one would have been foolish to have tasted or tried to drink it, but I think the defendant put the bottle in his car. The defendant admitted picking up the bottle out there, as testified to by witness Carrithers,...