Smith v. State

OPINION ON REHEARING

BUSSEY, Presiding Judge:

On Rehearing the defendant argues that the search of his premises and his arrest— both done without a warrant — were unlawful as based on a subterfuge. He maintains that the officers anticipated that they would find stolen property at the defendant’s place of business, and that they did not actually go there for the purpose of meeting the defendant’s brother-in-law.

With regard to a plain-view discovery, the question of subterfuge goes to the. issue of whether or not the officer had a right to be where he or she was when the discovery was made. In the instant case all events transpired at the defendant’s place of business — a place open to the public. Clearly the officers had a right to be where they were when the watch was discovered.

The defendant also contends that there was a fatal variance between the evidence presented at the trial and allegations made in the information, and that hence his “demurrer to the evidence” and “motion to dismiss” — both more properly termed a motion for directed verdict— should have been sustained. The test of a fatal variance in an information is whether or not the person accused was misled by the information or could be exposed to the danger of being placed in jeopardy a second time for the same offense. In the instant case we do not believe that either of these alternatives existed. The evidence was all of a similar character and was all seized in the same search. Compare Cooks v. State, Okl.Cr., 560 P.2d 1019 (1977). In addition such evidence is admissible to show absence of mistake or accident. See Roulston v. State, Okl.Cr., 307 P.2d 861 (1957).

Finally the defendant argues that since the wrist watch was found in a public place it could not be proof of the concealment of stolen property. Title 21 O.S.1971, § 1713 provides that every person is guilty of a felony “. . . who conceals, withholds, or aids in concealing or withholding such property from the owner, . .” (Emphasis added). There was sufficient testimony presented at the trial to justify the jury in finding that the defendant was withholding the watch from its owner, even though it was not being kept in a secret place.

The judgment and sentence appealed from is AFFIRMED, and the Clerk of this Court is directed to issue the Mandate Forthwith.

CORNISH and BRETT, JJ., concur.