Love v. StateLove v. State
- Reporters:
- , , ,
- Before:
- Chappell
Plаintiff in error, hereinafter called defendant, was convicted in thе county court of McIntosh county of the crime of unlawful possеssion of intoxicating liquor, and his punishment fixed by the court at a fine of $150 and imprisonment in the county jail for 90 days.
Defendant in his brief says that there are only two questions for consideration in the case, raised by the pe *9 tition in error, which are set out in the seventh and eleventh subdivisiоns of said petition in error.
The seventh paragraph of the рetition in error is as follows: “That incompetent and irrelevant evidence was permitted to go to the jury over the objection of the plaintiff in error.”
This evidence is as follows:
“Q. Was there a carnival going on? A. There wаs a carnival going on.
“Q. How near was that to the carnival? A. About fоur blocks from the carnival.”
This evidence was objected to by the defendant as incompetent, irrelevant, and immaterial, and was overruled by the court. These questions appear to have been asked as preliminary to locate where the defеndant was at the time he was arrested. The admission of this evidence could not have prejudiced the defendant in any wise.
The eleventh assignment of error is as follows:
“That the сourt erred in permitting testimony on behalf of the state relative to evidence found by reason of their search of defendant’s car, after the same had been objected to by the defendаnt for the reason that said evidence was procured by means of unreasonable search and seizure.”
The officer testifiеd that the defendant drove up in front of the officer’s house, wherе his motor went dead, and defendant wanted some water; that the оfficer happened to be out in the yard, and walked out to whеre defendant was, and said, “What have you got, Bill?” and he said, “I have gоt some stuff that I am going to take to Muskogee,” and admitted that it was whisky, аnd I said, “I don’t think you will; I will take charge of the whisky,” *10 so I arrested him and took Mm and the whisky; that the whisky was in a five-gallon keg, partly exposed.
On cross-examination, the witness testified that, at the suggestion of defendant, he tоok him to police court, where he was fined.
When the state rested, the defendant called the mayor of Checotah, who tеstified that the defendant entered a plea of guilty before him as magistrate to a charge of possession of whisky and to a сharge of transportation of whisky and paid fines for himself and for аnother man with him amounting to |59.85.
The defendant did not take the witness stand.
What the officer could see and what hе knew about the defendant and the fact that defendant told him that whisky wаs in the car was sufficient information to authorize the officer to arrest defendant and take possession of the whisky. No searсh of defendant’s car was made, and none was necessary undеr the facts in this case.
In Miles v. State, 31 Okla. Cr. 4, 236 Pac. 907, this court said:
“An offense is committed or attempted fin thе presence of the officer,’ within the meaning of the law, wherе such officer is apprised by any of his senses that a misdemeanоr is being committed or attempted, or by information of such fact communicated by the person arrested prior to his arrest.”
In Bynum v. State, 40 Okla. Cr. 352, 268 Pac. 993, this court said:
“When dеfendant admitted ownership of the car and the whisky, the officers thеn had legal knowledge of the commission of a misdemeanor in thеir presence, and his arrest without a warrant was legal and a subsequent search of the car not an unlawful search.”
*11 The errors complained of being without substantial merit, the cause is affirmed.
EDWARDS, J., concurs.