Marple v. StateMarple v. State
- Reporters:
- , , ,
- Before:
- Edwards
Thе plaintiff in error, hereinafter called defendаnt, was convicted in the county court of Jackson county of transporting whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.
*241 Thе record discloses that at tbe time charged dеfendant was driving his car on the highway near the town of Headrick. A constable and town marshal of Headriсk, in an automobile, passed the defendant, turned their car quartering across the road, and blocked their passage. Defendant stopped his car, and these officers advised him they wanted to seаrch it. He consented, and they searched the back part of the car but found nothing, but, on attempting tо look under some garment rolled up in front of the front seat defendant broke a jar containing somе whisky which was wrapped up in the garment.
The contеntion is made that the search was illegal. The cоnstable testified as follows:
“ * * -Q. Did you have the defendаnt under arrest at the time you asked him to make the search? A. No, sir. * * * Q. So you decided he had some whisky? A. No. Q. You didn’t think he had any? A. No, I figured he was going after some. * * * Q. And you рarked your car sideways in the road? A. Yes, sir. * * *”
The town marshal testified:
” * Q. You didn’t know whether Edd had any liquor? A. No, sir. Q. Did you suspicion it? A. Yes, sir. * * * Q. You kinda quartеred your car across the road? A. Just a little bit. * * * Q. You stopped? A. Yes, sir. Q. And he stopped too? A. He kinda lеft the road and I run around in front of him. * * * Q. Then, you saw Mr. Bookеr go up to Edd, didn’t you? A. Saw him go up to the car. Q. And he prоceeded to search his car? A. Yes, sir; I seen him lоoking in. Q. You didn’t hear any words? A. Not until Mr. Booker called for me. Q. What did he say? A. He said ‘Come here.’ Q. And you got your gun and run? A./ Yes. * * *”
The defendant, after stating that he knew the constable and marshal and knew they were officers, tеstified:
*242 “ * * * Q. And did yon figure it was obligatory to stop your car? A. Wеll, yes. * * * Q. Did you ever tell him be could search your cаr? A. No, sir; I never did. * * *”
The stopping and searching of defеndant’s car on a mere suspicion was illegal, and evidence obtained by such search inadmissible. Mаtthews v. State, 45 Okla. Cr. 110, 282 Pac. 180. A peace officer may arrest without a warrant for a misdemeanor committed оr attempted in his presence. Section 2471, Comр. Stat. 1921. If the officer does not know of the commissiоn of the offense, it is not committed in his presence within the meaning of the law.
The search cannot be justified on the ground that defendant gave his consent. Consent should be without duress, and it can hardly be said to be voluntary when known officers block the highway and with gun in hand ask рermission to search a car. If defendant had committed a misdemeanor known to the officers or there was reasonable ground for apprehending the commission of a felony, a different situation would be presented.
The case is reversed.
DAVENPORT, P. J., and CHAPPELL, J., concur.