Morris v. State , 66 Okla. Crim. 358 ( 1939 )

The petition of the defendant for rehearing is sustained, and the law and facts reconsidered.

The record in this case discloses that it was filed in this court on May 31, 1938; that the case was submitted on the record September 25, 1938; the case was considered by this court; and it was found that no briefs had been filed in support of the plaintiff in error's assignments.

Where no briefs are filed in support of assignments of error of the plaintiff in error on appeal, the court assumes that the appeal has been abandoned or the counsel representing the plaintiff in error has reached the conclusion that there are no errors in the record sufficient to warrant a reversal.

After the opinion was filed, counsel for the defendant H. P. Morris filed a petition for rehearing, and a brief in support of the same.

The facts in this case are very brief:

On the 5th day of November, 1937, the defendant was in the city of Norman.

H. L. Sanderson, in substance, testified that on the date mentioned someone gave him information that there was a whisky peddler in town; that he started out to see if he could find him, and finally saw a man go into a place of business with a bundle under his arm; that he later contacted another city officer by the name of Joe Starzer, and told him what he had heard. They started out to find the whisky peddler.

Sanderson further states that he was walking up the street, and that he saw a man sitting in a car at the curb, reading a paper. He went and beckoned to Starzer, and called him out, and said, "There is a man sitting up there in that car." They walked up to the car. Sanderson, going to the part nearest the driver's seat, looked in the car, but could not see anything until he opened the door and pulled an overcoat to one side, which afterwards developed that it was spread over some whisky in the car. He did not see this until after he had gone to the car, and talked to the man sitting in the car; and further states that he did not see any whisky or anything but the overcoat in the car, until he moved the overcoat.

The testimony shows that this was a Tudor Chevrolet car. The testimony further shows that the whisky was on the floor of the car in the rear of the front seat.

Starzer says that when he stepped off the sidewalk and started toward the car, he saw the neck of a bottle of whisky sticking out, which was on the floor of the car in the rear of the front seat.

Neither of the officers had a search warrant for the defendant; nor had either of them a warrant for his arrest.

When they started out to look for the man supposed to have whisky, they did not know whom they were searching for. When they saw the defendant sitting in his car reading a newspaper, he was not disturbing the peace or any one in the city of Norman, but quietly sitting there in the car.

The foregoing is the substance of all the testimony it is deemed necessary to recite.

Seven errors have been assigned by the defendant.

The first and second assignments raise the question as to whether or not the court erred in admitting the state's testimony over the objections of the defendant, and refused to suppress the evidence of the state, secured without a search warrant to search the car of the defendant, or without a warrant for his arrest.

The testimony discloses the car in which the defendant was sitting at the time his car was searched was a Tudor Chevrolet car. To see anything from the front of the car in the rear of the front seat, it is necessary to open the door of the car and look over the back of the front seat. It is not probable that any one on the outside of the car could look in and see a small package of any kind on the floor of the car in the rear of the front seat. The officers had no authority to put the defendant under arrest, or to search his car at this time, and no offense, as shown by the testimony in this case, was being committed by the defendant in the presence of the officers.

He was quietly sitting in his car on the street; and they went out for the purpose of finding somebody that was thought to be a whisky peddler, without any description of the man or without any warrant of arrest or justification.

In Whitford v. State, 35 Okla. Cr. 22, 247 P. 424, the court in the first paragraph of the syllabus stated:

"Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence."

In the second paragraph of the syllabus the court stated:

"Where the officer does not know of the act constituting the offense, it is not committed in his 'presence.' " Wallace v. State, 49 Okla. Cr. 281, 294 P. 198, and authorities therein cited.

The Attorney General has presented an argument insisting that the petition filed for rehearing in this case should be denied, and cites in support of his argument Boardwine v. State,64 Okla. Cr. 49, 76 P.2d 1081. We have examined the authority and find that it is good law, but that it does not fit the facts in the case being considered.

Bayne v. State, 42 Okla. Cr. 152, 274 P. 1095, cited by the Attorney General, is also a case in which this court properly held the search valid for the reason the facts showed that in entering the premises the officers could smell the mash cooking, and from their sense of smell could tell it was whisky mash.

The authorities cited by the state in support of the conviction of the defendant have been carefully read and studied. We hold that they are not germane to the issue in this case, and that the search in this case was an unlawful search and seizure. There being no evidence, other than that procured by the unlawful search by the officers without a search warrant to search the defendant's car, and without a warrant for his arrest, his arrest and the search of his car was unlawful.

The motion to suppress was properly taken and should have been sustained. There being no competent testimony to sustain the conviction, the judgment of the trial court is reversed, with directions to dismiss the case, unless the county attorney has other competent evidence to present to the court.

DOYLE, P. J., concurs. BAREFOOT, J., dissents.