*1 v. STATE. BARNETT Aug. 1,
No. A-11376. Sept. 12, Barnett, City, for
James Atty. Q. Williamson, Gen., Watts, Owen J. charged by J. The Paul an information filed in the intoxicating liquor; jury waived; tried; of guilty $500; found days county jail pay and sentenced to serve 45 fine appealed. and only assignment рresented of error in the brief of defendant is the *2 suppress pre- error the motion to prior sented to the commencement of the trial. substantially The evidence on the motion to еvidence was as follows: City Paul Barnett testified that he lived in Oklahoma and was enroute from Illinois, Cairo, City Dodge, a one and one-half ton traveling Highway Stillwater; west on 51 about 15 or 16 miles east of rоad; little traffic on the he noticed a car him for about miles, per hour; six or seven the truck 35 or 40 miles highway patrol car; they car went around him and he that it saw was a drove stopped; ahead of him about one-half mile and the defendant drove his' truck past patrol up on car and then drove their car behind the warning light stopped defendant; flashed their and which grain completely had a bed on it which was a covered with tarpaulin. whiskey grain involved in the was concealed in the bed tarpaulin completely both the enclosed sides of the and bed stopрed highway patrolmen covered it. After defendant was one of the going to him at The other and the cab asked if he didn’t think he was a little too fast. patrolman up top climbed on of the truсk and asked defendant replied what he had in there and defendant had a load he of rock salt. trooper tarpaulin whiskey. then This raised the and discovered the The de- placed Pаyne county fendant was jail. and taken to and handcuffed Stillwater in the whiskey belonged Defendant said the and to him. Hall, highway patrol, night T. E. a member of the testified that on the 12, 1948, patrol Highway December he was car on State 51 in him; patrol duty; Gay, patrolman, on routine Eual another was with patrolmen trying holiday proclamation by the safety were to enforce a Christmas limiting speed hour; рroclamation commissioner to 50 only during holidays; was not that the law and was effective noticed the truck driven defendant and a car ahead of the truck were both hour; they passed аbout 55 the truck and followed the car for through slowing a about mile up, they noticed the rear view mirror the truck was they pulled truck; roadway so off on the side of waited for the pursue law, violating the ear in front because he was not violating going the truck was the state law in that he was excess law; miles an hour state after the truck had drove speeding; they said, carrying him and arrested him fоr asked what he was he “Salt”; Trooper Gay stepped up to the car and hand side of the asked many you got”, said, hundred “How cases have Barnett “About one twenty-one”; just grain type tarрaulin the truck was a standard bed with a grain bed; any- top patrolman said, “I further couldn’t see over the thing; my partner not, I I didn’t see don’t know whether searched the truck or him”. Gay highway patrolman along Trooper Eual testified that he was the testimony night Hall who defendant on the December 1948. His arrested substantially Trooper Hall, is, the defendant was the same that of 45 mile hour what was a arrested Gay through limit. After defendant had been arrested Patrolman looked pasteboard whiskey hole in one of the boards and saw a box which said on it. whiskey driver, many you have”, After he saw the he “How cases do said, “Oh, twenty-one”. and he about one hundred On cross-examination very light he testified that the traffic was 51. He admitted that tarpaulin the truck had a over it which was nailed down. After he discovеred placed the handcuffs on the driver and took him to the court- house. It was the contention of the committed misdemeanor of the officers which them in demeanor, him such he was entitled tо search his truck. stating were in error to the trial a 45 mile limit because there was law the time of the arrest limit of motor vehicles as was pro- defendant. We have a did vides : “Any person driving a vehicle on a shall drive the same at prudent greater careful than nor less than is reasonable and and proper, regard having traffic, due to the surface and width of the existing, person other conditions then and no shall drive upon speed greater permit bring stop than will him to to a within the assured clear distance ahead.” 47 O. S. 1941 testimony in its most favorable treated *3 light, the defendant was not the of The traffic terms this statute. light. driving The defendant was not car a reckless manner. The driving hour, contended that he was to 55 miles an 50 any weaving highway in the absence of across the or would other actions which driving, denote reckless the fact rate that at of on a where there were driving. few other motor would vehicles not constitute reckless State, 180, 448, In the case of Holland v. 93 Oklа. 226 P. Cr. 2d this court similar case laid down the rules of law: “A search of an automobile without a search warrant as an not arrest, any probable incident of a lawful of a and not on cause of the commission felony, suspicion, provision forbidding but on mere violates the constitutional seizures, unreasonable searches or search evidence obtained such a is inadmissible. officer, stopping restraining person, “Where after or be- being comes aware that an offense is committed or is about to be committed presence, may lawfully in the officer’s arrest thе offender without a war- rant, constituting but where the officer becomes aware of the facts the offense making arrest, being after for as cannot be ‘presence’. an offense committed in officer’s the arrest, “The search or of motorist’s automobile without warrant of search warrant, knowledge intoxicating liquor, or after that automobile contained unlawfully arrestеd, within mean- motorist was ing was an ‘unreasonable search’ right giving ‘unreasonable the Constitution the to be secure searches,’ and evidence from motorist should have been excluded obtainеd the liquor. intoxicating for the unlawful transporting in- officers information truck was “Where had certain toxicating liquor parked the several driving their automobile near along nights looking for the truck and whеn truck came immediately thirty per onto the sheriff turned about behind alleged truck, the truck for reckless sounded his siren warrant, will the truck without court treat searched action alleged subterfuge, making the reckless as a officer arrest guilty driving, and an un- fail to show of reckless the facts where lawful violation unlawful immunity to from the defendant’s constitutional search.” were so unfamiliar It is hard for us believe governing reckless driving. guilty from this after It is our conclusion reckless record pursuit in front of of the automobile had the truck warning purpose giving of the automobile truck for driver became, proclamation, suspicions aroused the commissioner’s their about investigate it. and that because of looks of truck determined warrant, They in their had no crime was committed arrest of defеndant without warrant. The the merely the officers to cover determination as a investigate aware of truck. The did not become the contents officers forcibly until the truck discovered it thе stopping contained large cases, more In a number of where the facts were defendant. case, held instant officers than are in the favorable 63, State, Johnson v. Cr. search seizurе unlawful. Okla. 469; Hoppes State, State, 228; 2d v. 2d v. 88 Okla. Cr. 202 P. Jones 753; 433; Bowdry State, 77 P. 2d P. 2d v. 64 Okla. Cr. 70 Okla. Cr. State, v. 82 Okla. Cr. 166 P. Jones county having defendant’s judgment evidence, of such sentence motion dismiss. reversed and remanded with instructions is
On Pеtition rehearing filed- a J. (b) reads: to 47 O. S. 1941 Sub. which our attention is directed attached, trailer, or semi-trailer shall travel “No truck-tractor with upon any public highway, weight when such vehicle or be moved оr vehicle 20,000 less, pounds or a rate of in' excess of at and load weight And when hour. thirty 20,000 pounds speed shall exceed and load net such rate of exceeds (30) miles hour.” Bodge pickup On it is сontended that of a the time his arrest comes under the classification illegal the de- defined above *4 in excess fendant drive such vehicle per hour. original In briefs counsel filed ap- Attorney Tit. Sec. 92 was each contended that O. S. General Although disposition plicable of the case. which controlled statute changing strongly disapproves of the action position which he maintained his in his written, opinion still if this court before was brief which was filed justice, glad opinion, a correction. are make in its in the interests of who The record shows charge speeding time sаid him and that at the case filed a attorney counsel, whereupon appeared with trial prejudice the lack sufficient the case with to dismiss prejudice convict, made. order of dismissal of the accused contend who made the arrest (b), hereinabove Subdivision 47 O. S. Sec. testifying merely quoted, trial court when asserted forty-five opinion it was witnesses court, opinion shown limit. As herеtofore mile an hour forty-five motor limit on mile was no statute accused. time of the arrest vehicle surrounding charge speeding circumstances The dismissal the arrest without doubt convince us illеgal. subsequent suspicion search was defendant was on merely allegation of excessive attempt the record view arrest. unnecessary to decide whether becomes for us hereinabove under a truck as defined the accused was vehicles, affecting governed regulations quoted motor all same 92. Tit. 47 O. S. Rehearing forthwith. to issue is denied. Mandate ordered BRETT, STATE.
MILLER v. July 11, A-11413.
No. Aug. Roe, Frederick, Duncan, plaintiff Whitley, & and Roe
James V. Atty., Gen., Lattimore, Williamson, and Sam H. Q. for defendant error, Coy Miller, charged Oswell P. J. The Oklahoma, rape county, Tillman district degree, have A. 1941. The crime was O. S. second Title