260 P. 782 | Okla. Crim. App. | 1927
The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Woods county on a charge of transporting liquor, and were each sentenced to pay a fine of $50 and to serve a term of 30 days in the county jail.
On the date charged, the defendants, near the town *308
of Waynoka, were in a Ford car, in the back of which was a case or box described as a pop case or a near beer case, having a lid and handholds for carrying it, in which were 12 or 15 bottles of what is described as "stuff," "beer," and "choc beer." The town marshal of Waynoka and another officer searched the car and arrested defendants. They had no search warrant, and timely objection was made to the evidence as having been obtained by an unlawful search. Mr. Wright, town marshal, testified, in substance, that he, with the others, searched the car, though he had no search warrant; that the box was "the kind of a box they carry pop around in"; that he saw the pop case in the back of the car with some one sitting on it. They ordered the person sitting on it to get off, and then they could see bottles through the handhold. He suspected it contained liquor, but did not know it. An officer without a warrant may arrest a person for a misdemeanor committed in his presence, and may search the person and immediate surroundings of such person for instrumentalities used in the commission of crime, but may not arrest on the mere suspicion that a misdemeanor is being committed. In a prosecution for transporting intoxicating liquor, evidence obtained by a search of defendant's automobile without a search warrant, or not as incident to a legal arrest, either with or without a warrant, is inadmissible, as in violation of article 2, § 30, state Constitution. Combest et al. v. State,
Where an officer sees a person in the act of transporting whisky, he may arrest such person and seize the liquor so being transported. Bullington v. State,
The case is reversed and remanded, with instructions to dismiss.
DOYLE, P.J., concurs.
DAVENPORT, J., absent, not participating.