Phillips v. State

Court of Criminal Appeals of Oklahoma

Phillips v. State

1952 OK CR 36, 245 P.2d 129, 95 Okla. Crim. 336, 1952 Okla. Crim. App. LEXIS 264

CourtCourt of Criminal Appeals of Oklahoma

DecidedMarch 12, 1952

DocketA-11510

StatusPublished

Cited by4 cases

This text of 1952 OK CR 36 (Phillips v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Phillips v. State, 1952 OK CR 36, 245 P.2d 129, 95 Okla. Crim. 336, 1952 Okla. Crim. App. LEXIS 264 (Okla. Ct. App. 1952).

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Opinions

BRETT, P. J.

The defendant, Velta Eloyd Phillips, was charged by information in the court of common pleas of Tulsa county, Oklahoma, with the offense of unlawful possession of intoxicating liquor. Title 37, § 31, O. S. 1951. The information alleged possession of a quantity of liquor in excess of 1,000 bottles consisting of half pints, pints and one-fifth gallons of assorted brands of whiskey. A jury was waived and defendant was tried by the court. He was found guilty and thereafter sentenced to 60 days in the county jail and to pay a fine of $100 and costs, from which judgment and sentence this appeal has been perfected.

In the trial court, a motion to suppress the evidence was filed, hearing had thereon, and denied by the trial court. The evidence in support of the ruling on the motion to suppress was, in substance, that the defendant was arrested by Roy Rains, deputy sheriff, after he was informed that the defendant had fired his pistol from the shelter of his home on the outskirts of Tulsa at one Buddy Avers, a Tulsa policeman, who was in. the vicinity of the defendant’s home. Six shots were fired in all. Deputy Sheriff Roy Rains arrested the defendant on the belief that he had committed a felony. A search was made for the pistol, during which the large quantity of liquor was discovered in the defendant’s garage adjacent to his house where the shooting occurred. The record supports the finding of the trial court. The question in suppressing the evidence being a judicial one, this court will not reverse a case even where the evidence reasonably tending to support the trial court’s finding. Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99; Scott v. State, 84 Okla. Cr. 171, 180 P. 2d 196.

It has been repeatedly held that in a case of lawful arrest the arresting officer may search the person and immediate surroundings of the person arrested, and may seize anything found on his person or in his control which is unlawful for him to have and anything so taken may be used as evidence against him at the trial. Kirk v. State, 92 Okla. Cr. 360, 223 P. 2d 558, citing Scott v. State, supra; State v. Lumley, 83 Okla. Cr. 430, 178 P. 2d 629; Jones v. State, 83 Okla. Cr. 358, [337]*337177 P. 2d 148; O’Dell v. State, 80 Okla. Cr. 194, 158 P. 2d 180; Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366. The foregoing principles are so clearly established in the law citation of further authorities is a needless waste of time. The record herein supports the trial court’s order in overruling the motion to suppress.

Thereafter the case was submitted on its merits on the evidence offered in support of the motion to suppress, and on the basis of a stipulation, that the quantity of contraband liquor alleged in the information was at least as much whiskey as was seized on the defendant’s premises and the whiskey so seized was the whiskey involved in this action. The judgment and sentence of the trial court is amply supported by the record. The defendant is fortunate to have escaped with so light a sentence under the conditions herewith presented. For all' the . above and foregoing reasons the judgment and sentence herein imposed is accordingly affirmed. _

JONES and POWELL, JJ., concur.

On Rehearing

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BRETT, P. J.

The defendant, Velta Eloyd Phillips, was charged by information in the court of common pleas of Tulsa county, Oklahoma, with the offense of unlawful possession of intoxicating liquor. Title 37, § 31, O. S. 1951. The information alleged possession of a quantity of liquor in excess of 1,000 bottles consisting of half pints, pints and one-fifth gallons of assorted brands of whiskey. A jury was waived and defendant was tried by the court. He was found guilty and thereafter sentenced to 60 days in the county jail and to pay a fine of $100 and costs, from which judgment and sentence this appeal has been perfected.

In the trial court, a motion to suppress the evidence was filed, hearing had thereon, and denied by the trial court. The evidence in support of the ruling on the motion to suppress was, in substance, that the defendant was arrested by Roy Rains, deputy sheriff, after he was informed that the defendant had fired his pistol from the shelter of his home on the outskirts of Tulsa at one Buddy Avers, a Tulsa policeman, who was in. the vicinity of the defendant’s home. Six shots were fired in all. Deputy Sheriff Roy Rains arrested the defendant on the belief that he had committed a felony. A search was made for the pistol, during which the large quantity of liquor was discovered in the defendant’s garage adjacent to his house where the shooting occurred. The record supports the finding of the trial court. The question in suppressing the evidence being a judicial one, this court will not reverse a case even where the evidence reasonably tending to support the trial court’s finding. Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99; Scott v. State, 84 Okla. Cr. 171, 180 P. 2d 196.

It has been repeatedly held that in a case of lawful arrest the arresting officer may search the person and immediate surroundings of the person arrested, and may seize anything found on his person or in his control which is unlawful for him to have and anything so taken may be used as evidence against him at the trial. Kirk v. State, 92 Okla. Cr. 360, 223 P. 2d 558, citing Scott v. State, supra; State v. Lumley, 83 Okla. Cr. 430, 178 P. 2d 629; Jones v. State, 83 Okla. Cr. 358, [337]*337177 P. 2d 148; O’Dell v. State, 80 Okla. Cr. 194, 158 P. 2d 180; Tripp v. State, 73 Okla. Cr. 69, 118 P. 2d 273; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366. The foregoing principles are so clearly established in the law citation of further authorities is a needless waste of time. The record herein supports the trial court’s order in overruling the motion to suppress.

Thereafter the case was submitted on its merits on the evidence offered in support of the motion to suppress, and on the basis of a stipulation, that the quantity of contraband liquor alleged in the information was at least as much whiskey as was seized on the defendant’s premises and the whiskey so seized was the whiskey involved in this action. The judgment and sentence of the trial court is amply supported by the record. The defendant is fortunate to have escaped with so light a sentence under the conditions herewith presented. For all' the . above and foregoing reasons the judgment and sentence herein imposed is accordingly affirmed. _

JONES and POWELL, JJ., concur.

On Rehearing

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1952 OK CR 36, 245 P.2d 129, 95 Okla. Crim. 336, 1952 Okla. Crim. App. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-state-oklacrimapp-1952.

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