OPINION
Appellant, Harold Gene Williams, hereinafter referred to as the defendant, was convicted in District Court of Tulsa County, Case No. CRF-69-1069, of Manslaughter in the First Degree and sentenced to a term of imprisonment of not less than twenty-five (25) years nor more than seventy-five (75) years. Judgment and sentence was imposed on November 4, 1969, and this appeal perfected therefrom.
On appeal the single issue urged is that the trial court erred in admitting into evidence over objection a tape recording which defendant contends violates Title 3 of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. The defendant contends that under this Federal Act “electronic eavesdropping is no longer permitted” and that the tape recording in question was unlawfully obtained and therefore inadmissible.
The defendant was convicted of shooting Clarence Jimmy Brian, Jr., with a pistol on July 11, 1969, as a result of which Brian died. Relevant to our inquiry the evidence establishes that Martin Bean, Manager of the Holiday Motel, Sand Springs, Tulsa County, Oklahoma, was working in the motel office on July 10, 1969. Room 5 of the motel was rented to Clarence Jimmy Brian, Jr., the deceased, between the hours of noon and 4:00 P.M. Although several people entered the room from time to time, the only person registered was Brian. There had been some commotion involving Room 5 and its occupants during the day. At approximately 11:30 P.M. a blue car returned to the motel with three men who entered Room 5. After their arrival, the motel office telephone switchboard buzzer and light indicated a telephone call to the office from Room 5. Mr. Bean answered the telephone with the inquiry “Can I help you ?”, but received no response.
However, the telephone in Room 5 was open to the switchboard with the receiver off the hook and Mr. Bean could hear a “very loud disturbance” in the room including “cussing and fighting and calling each other names.” Mr. Bean could not get anyone to answer the telephone, but the connection remained open. Mr. Bean then made a tape recording at the telephone switchboard of the conversations and sounds from the room as they were received over the telephone from Room 5. It is this tape recording which the defendant contends was an unlawful electronic surveillance which is inadmissible under the Federal Act. 18 U.S.C. § 2510 et seq.
The Fourth Amendment prohibition against unreasonable search and seizure prohibits the use of evidence obtained from a defendant through an unlawful search. Mapp v. Ohio,
(1) the communication was unlawfully intercepted . . .”.
However, in the instant case we find that defendant’s contention of inadmissibility fails because the defendant has not sustained his burden to show there was an unlawful intercept as such.
Under the Federal Act any aggrieved person may move to suppress the contents of an intercepted wire or oral communication if it was intercepted unlawfully. 18 U.S.C. § 2518(10)(a). The Act further provides that “ ‘intercept’ means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4).
Under the facts in the instant case the defendant has not shown that the tape recording in question was the result of an “intercept”. In the instant case there was no tap on the line or interference with the normal telephone lines. When the switchboard indicated the telephone call from Room 5, the telephone was answered. That end of the conversation was then recorded. The motel manager, Mr. Bean, merely recorded that which he, as the proper party to the telephone line, could hear.
In Rogers v. United States,
“The recording of a telephone conversation made by placing an induction coil on a previously placed and regularly used extension telephone, all of which is done with the knowledge, consent and permission of the party using the other extension does not violate the Fourth or Fifth Amendments, nor is it prohibited by the Federal Communications Act. Other courts basing their conclusion on Rathbun v. United States,355 U.S. 107 ,78 S.Ct. 161 ,2 L.Ed.2d 134 , have reached the same conclusion. Lindsey v. United States, 9 Cir.,332 F.2d 688 ; Hall v. United States, 5 Cir.,308 F.2d 266 ; Broadus v. United States, 5 Cir.,317 F.2d 212 ; Mach v. United States, 5 Cir.,352 F.2d 85 .
* * * ⅜ * * “The induction coil is placed against the side of the telephone instrument and there is no physical connection with, or interruption of, the telephone electrical circuit. There is no distinction between holding out the handset and permitting an outsider to hear through the use of an induction coil, Carbo v. United States, 9 Cr.,314 F.2d 718 ...”369 F.2d at 946, 947 .
The Federal Act, specifically 18 U.S.C. § 2510(4), was interpreted in State v. Vizzini,
We therefore conclude, as have other courts, that where there was no mechanical interference with the telephone line, and no violation of the physical integrity of the line, there was nothing illegal or improper in the party to one end of the telephone conversation recording the conversation.
We therefore find defendant’s contention that the tape recording was inadmissible as a violation of the Federal Act prohibiting the interception of telephone calls to be without merit. Finding the single contention of the defendant to be without merit we conclude the judgment of conviction should be affirmed.
However, in the second phase of the trial after a finding of guilt, the trial court advised the jury of prison “good time” credits and other statutory deductions allowed inmates of the penitentiary under 57 O.S.1971, § 138. Such an instruction is error requiring modification of the sentence. Williams v. State, Okl.Cr.,