One 1949 Model Oldsmobile 66 Club Coupe v. State ex rel. Adams

276 P.2d 245 | Okla. | 1954

CORN, Justice.

The state, on relation of the county attorney, brought this action to forfeit a certain described automobile. It was alleged such vehicle had been seized by law enforcement officers while being used to conceal and transport whiskey in violation of the prohibitory liquor laws of this state; that search and seizure of the vehicle was by virtue of a search warrant issued out of the Court of Common Pleas of Tulsa 'County, Oklahoma; that the owner, defendant herein, had been charged with the crime of unlawful transportation of intoxicating liquor, and the vehicle so seized should be ordered forfeited and sold.

After various • preliminary motions had been disposed of the case was set for a jury trial. Defendant’s objections to the introduction of .any evidence were overruled and the state introduced the testimony of three deputy sheriffs who had apprehended, defendant. The evidence disclosed these officers had observed defendant driving this car'upon Denver street, in the city of Tulsa; he turned off this street and drove approximately a half block down an alley, at which point he was stopped by the officers, who then served the search warrant upon defendant. Search- of the automobile revealed a considerable quantity of tax paid, whiskey. Defendant was charged with the criminal offense, tried by a jury, and convicted.’ His appeal from such! conviction had not been adjudicated at the time of this trial, but was determined subsequent to rendition of judgment herein. See Bryson v. State, Okl.Cr., 248 P.2d 253.

At the Close of the state’s evidence defendant demurred thereto upon the grounds: (1) fáilüré of the evidence to show transportation.'of'the whiskey from one certain point tb - anotliér; (2) since defendant’s appeal from his conviction upon the criminal-charge had'hot been adjudicated no forfeiture could-be'had; (3) that-the search warrant was invalid because not based’upon positive evidence, and thus violative of the statutes and Constitution of Oklahoma.

-The'trial court overruled the first ground and -ordered-that the petition be amended to conform to the proof, showing defendant, was traveling in Tulsa county. Both remaining grounds were overruled upon the theory -this, was,,an independent action for the jury’s determination and not dependent upon fjnal conviction in the criminal case.. The trjal., pqurt then sustained the state’s motion-..for.,,a directed verdict, and a verdict -of forfeiture was .entered upon which the judgment appealed frpm was rendered..

Two. contentions are advanced a-s grounds for, reversal- of: the judgment decreeing, forfeiture of 'the automobile. --.Defendant first contends -the petition was insufficient' to-state,a cause of dction. The suit for'forfeiture was.lbrbught under 37 O.S.il951. § 111,, which ¡-provides: - ... .,

“Vehicles and animals used in trans-porting liquor forfeited. — All vehicles, including automobiles, and all animals used in hauling or transporting any liquor the sale of which is prohibited by the laws of this State, from one place to another in this state in violation of the laws thereof, shall be forfeited to the state by order of the court issuing the process by virtue of which such vehicles and animals were seized, or before which the persons violating the law, or the vehicles or animals are taken by the officer or officers making the seizure.”

The defendant argues that the petition failed to allege “from one place to another”, as set forth in the statute; and, further, that there was- a lack of evidence of transporta-" tion' from one 'place to another within the; state, so that it was error to overrule d¿-fendant’s demurrer to- the evidence and sustain the state’s motion for directed verdict.

It is unnecessary to deal at length with the argument directed toward the failure to allege the exact words of the statute. The petition did allege this vehicle was being used to “conceal and transport” liquor in violation of the statutes. At the close of the evidence the trial court' ordered the petition amended to conform to such proof. This evidence having established that the vehicle was in motion when discovered, and that it so continued until the defendant was forced to stop by reason of the officers’ commands, it necessarily follows that it had traveled from one place tp another within the state.

Defendant’s second contention is that the search and seizure of the vehicle was illegal and void, and in violation of the guarantees'of the Constitution, Art. 2, Sec. 30, -against unreasonable searches and sei-' zures. During the trial defendant attempted! to show, by cross-examination, that the arresting officers had received an anonymous’ telephone message, disclosing the-likelihood of defendant’s appearance in .th’e - vicinity with this liquor laden vehicle. Objection was sustained to such cross-examination, and defendant then made an offer of proof to the effect that this search warrant was based upon information received from an anonymous telephone “tip”. The offer of proof was denied.

We are of the opinion the complete answer to such argument is to be found in the expression of the Criminal Court of Appeals in Bryson v. State, supra. In passing upon this defendant’s appeal from his conviction upon the criminal charge, the appellate court expressly determined that the search warrant in question was sufficient under the law in this jurisdiction, and in syllabus 2 stated:

“Where the affidavit to procure a search warrant is.in positive terms, one will not be permitted to go behind the affidavit and show that the officer did not have sufficient knowledge of the charges alleged in the affidavit.” Judgment affirmed.

HALLEY, C. J., JOHNSON, V. C. J., and O’NEAL, WILLIAMS and BLACKBIRD, JJ., concur.