Walker v. State
| Decision Date | 30 March 1949 |
| Docket Number | A-10963. |
| Parties | WALKER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appeal from District Court, Oklahoma County; A. P. Van Meter, Judge.
Francis Ray Walker was convicted of the crime of burglary, sentenced to the penitentiary for two years, and he appeals.
Reversed and remanded.
Syllabus by the Court
1. Where defendant, a boy 20 years of age, was arrested by police officers upon a charge of 'loitering and investigation,' and placed in the city jail, and before being taken before a magistrate, he was questioned by city detectives, and a key taken by the officers from his personal effects, and his apartment opened and searched in his absence and without his consent or the securing of a search warrant the search was illegal and the evidence and property secured under such search should have been suppressed by the court.
2. It was error for the court to permit the officer to testify before the jury as to the property secured by reason of an illegal search.
3. Under the federal practice and the provisions of the federal code of criminal procedure, 18 U.S.C.A., a statement or confession made by one under arrest and prior to his having been taken before a magistrate, within a reasonable time, is inadmissible. McNabb v. U. S., 318 U.S. 332, 339, 63 S.Ct. 608, 87 L.Ed. 819, 823; Upshaw v. U.S., App.D.C., 168 F.2d 167; Id., 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100.
4. Under the rule adopted in this State, and many other state courts, the admission of a statement or confession made by one who is under arrest and prior to being taken before a magistrate, presents a question as to whether the statement or confession was made voluntarily or involuntarily. If it was made voluntarily, it is admissible in evidence; if involuntarily made, it is inadmissible.
John Howard Payne and John C. Head, both of Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., and Warren H. Edwards, County Atty., Oklahoma County, of Oklahoma City, for defendant in error.
Defendant, Francis Ray Walker, was charged in the district court of Oklahoma County with the crime of burglary; was tried, convicted by a jury, sentenced to a term of two years in the State Penitentiary by the court, and has appealed.
Three assignments of error are presented:
'(3) The so-called 'confession' was inadmissible as defendant was not advised of his constitutional rights, he had never been taken before a committing magistrate, and same cannot be said to have been voluntary.'
We deem it necessary to give a short statement of the evidence.
Defendant, a boy twenty years of age and a resident of Oklahoma City, was charged with the crime of second degree burglary in the district court of Oklahoma County. He was charged with burglarizing a service station located at Thirteenth and Robinson, Oklahoma City, on the night of October 21, 1946, by breaking a window and entering therein, and stealing $52.25 in money, one Remington electric razor, one bunch of keys, and eighteen Shrine circus tickets, the personal property of Beam and Culbert Service Station.
At 1:30 in the morning of October 26, 1946, two members of the Oklahoma City police force were at a filling station, and saw a boy, the defendant, standing at a street corner at Sixteenth and Drexel. This is about two miles from where the burglary occurred. The officers questioned defendant and he informed them that he had taken the wrong bus, and had transferred to take a bus to his mother's home. The officers drove away, but in a few minutes returned for the reason they were not satisfied with the answers given them. Defendant was still at the bus stop, and was taken into custody without a warrant. He was searched and the officers found in his possession a small pen-type flashlight, a small pair of pliers, and a small screw driver. He was then taken to the city jail, and found to have $12 in money, and some keys. He was placed in jail and charged with loitering and investigation. On the following morning he was turned to city detectives Walker Casady and Gene Wells, who questioned him concerning several recent burglaries in Oklahoma City. Detective Casady, after returning defendant to the city jail, took a key to defendant's apartment from the package or envelope in which his personal property had been placed. He, with another officer, then proceeded to the home of defendant and searched the premises, and found therein a book containing eighteen Shrine circus tickets. No search warrant was procured by the officers before making the search. Detective Casady testified that he went up to the Mosque and learned that the Shrine circus tickets found in defendant's apartment had been issued to Frank Taylor, a member, and by telephone found that Frank Taylor had left these tickets at the Beam and Culbert Service Station, at Thirteenth and Robinson, and that they had been taken therefrom in the burglary on the night of October 21, 1946.
Detective Casady, Mark Bain and George Leech then took the defendant with them and returned to his apartment and conducted a second search, and found the electric razor. Defendant, when confronted with these facts, made a written statement or confession in which he acknowledged committing the burglary of the Beam and Culbert Service Station at Thirteenth and Robinson on the night of October 21, 1946, and taking the property hereinbefore described. He also told them of several other burglaries that he had therefore committed.
At the trial of defendant, the court admitted that part of the statement or confession with reference to the burglary of the Beam and Culbert Service Station on the night of October 21, 1946, but was careful to eliminate reference to all other burglaries which defendant confessed to have committed. A full hearing of the facts surrounding the securing of the written confession from the defendant was had by the court out of the presence of the jury, and all parts thereof pertaining to other acts were deleted therefrom before presenting to the jury that portion pertaining to the burglary on October 21, 1946. It may be stated that defendant's conviction in this case was based upon the confession which was presented and read to the jury.
We shall first discuss the second assignment of error.
Counsel for defendant cites many cases from this Court to sustain the proposition that it was error to permit the introduction of evidence obtained by the search of defendant's apartment in view of the facts presented by the record. The Attorney General in his brief makes no attempt to answer the argument, and does not cite a single case to uphold his contention that the search of defendant's apartment was a valid search under the law. The cases cited by defendant are: Miller v. State, 74 Okl.Cr. 104, 123 P.2d 699; Patty v. State, 74 Okl.Cr. 322, 323, 125 P.2d 784; Crim v. State, 78 Okl.Cr. 153, 145 P.2d 444; Edwards v. State, Okl.Cr., 177 P.2d 143; Graham v. State, Okl.Cr., 184 P.2d 984.
Mr Casady, the police officer testifying for the State, on direct examination testified that when he first talked to defendant, defendant admitted to him the commission of the burglary, and defendant went with him to his apartment and agreed to his entering and searching the same. On cross-examination ...
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