text:
    ELMER CURTIS FUGATE v. STATE.
    No. A-10405.
    April 18, 1945.
    (158 P. 2d 177.)

      John W. Tillman and Fred A. Tillman, both of Paw-huska, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and J. D. Plunkett, Co. Atty., of Bartlesville, for defendant in error.
   BAREFOOT, P. J.

Defendant, Elmer Curtis Fu-gate, was charged in the district court of Washington county with the crime of grand larceny, was tried before the court without the intervention of a jury, found guilty, and his punishment assessed at six months in the State Penitentiary, and he has appealed.

Defendant was charged by information with the larceny, on May 2, 1942, of “one car wheel, one (1) 6:00-16 automobile tire, and one inner tube, all of the approximate value of $25, all the personal property of Harold O’Daniel.”

The error complained of presents a novel question, and one that has never been before this court. Defendant made no defense as to his guilt, the only contention being that the value of the property stolen was less than $20, and that he should, therefore, be convicted of petit larceny, and not of grand larceny. His contention was that the ceiling price placed upon the property by the United States Government prior to May 2, 1942, the date of the larceny, should be and was the standard set to establish the value of the property stolen.

It is admitted that if this contention is true, the value of the property would be under $20, and the defendant should only be convicted of petit larceny, and not grand larceny.

The state in seeking to establish the value of the property, introduced two witnesses.

Harold O’Daniel, the owner of the property, testified, giving a full description of the wheel, tire and tube that had been stolen from his 1940 Pontiac car. He testified that the tire and tube were in first class condition, and that in his opinion the wheel, tire, tube, lug bolts and hub cap stolen were of the value of between $25 and $30.

Guy Belt, an automobile dealer of Bartlesville, who had been in business a little more than 20 years, was the other witness for the state. He testified that he had examined the property alleged to have been taken from Mr. O’Daniel’s car, and that in his opinion the value of the wheel, tire, tube, lug bolts and hub cap was between $28 and $30. On cross-examination he stated that his opinion was based upon the fair market value of the property. He placed a specific value on the tire of “between $14 and $17 with good tread;” a value of $4 on the inner tube,-$1.30 on the hub cap, and 25 cents on each lug bolt, and $10.50 on the wheel. He did not know the value of the wheel, as he had not bought or sold any secondhand wheels.

With the testimony of these two witnesses, the state closed its case, and the defendant offered the evidence of three witnesses, two from the city of Tulsa, and one from Bartlesville. These witnesses were experienced automobile dealers, and experienced in the handling of used parts of automobiles. He also introduced in evidence schedules set up by the United States Government which fixed the ceiling prices on used tires and tubes effective on March 22, 1942. These witnesses testified fully as to these schedules, and without quoting that evidence, it was established that the price of a second-hand tire such as here involved would be a maximum of $8.10 and the tube $1.50.

The above statement is a fair presentation of the facts. The question is, what should be the rule now in determining the value of the property under the statutes of this state, 21 O. S. 1941 § 1704, which provides:

“Grand larceny is larceny committed in either of the following cases:
“1. When the property taken is of value exceeding $20.
■W
“2. When such property, although not of value exceeding $20 in value, is taken from the person of another.
“Larceny in other cases is petit larceny.”

The trial court, in passing sentence on the defendant, stated:

“If you take the Government’s price list on that and the proven price on the things that are not in the Government’s list, then there isn’t more than $20 worth of goods that were taken. I am not disposed to take that list. I just don’t believe that could be the law.
“The Government’s listing of prices at which tubes and tires will be sold, the maximum, is not for the purpose of ascertaining or determining or stating the value of those things, not by any means, but the purpose is to keep the prices from going up. It is a price control proposition. So far as being in a combative mood as to the Government’s purpose and its means of carrying out that purpose, I have no such disposition. I think it is wise, sound and prudent. I am for it. But the thing my mind combats, Mr. Tillman, is our law in this state is such you have to take those prices as set out by the Government as the value of things in the case here. My mind still combats that. I just can’t think that is the criterion.”

The statute above quoted has been in force and effect in this state for many years, and has been under consideration by this court many times. The rules and regulations of the Price Administration have only been in force during the war, and have never been under consideration by this court. In the statement of the Price Administrator, as of March 16, 1942 (the charge here being May 2, 1942), which was introduced in evidence in this case, it is said:

“In the judgment of the Price Administrator the prices of used tires and tubes have risen and are threatening further to rise to an extent and in a manner inconsistent with the purposes of the Emergency Price Control Act of 1942 [50 U.S.C.A. Appendix § 901 et seq.] The Price Administrator has ascertained and given due consideration to the prices of used tires and tubes prevailing between October 1 and October 15, 1941, and has made adjustments for such relevant factors as he has determined and deems to be of general applicability. So far as practicable, the Price Administration has advised and consulted with the representative members of the industry which will be affected by this regulation.
“In the judgment of the Price Administrator, the maximum prices established by this Regulation are and will be generally fair and equitable and will effectuate the purpose of said Act. A statement of the consider-, ations involved in the issuance of this Regulation has been prepared and is issued simultaneously herewith.
“Therefore, under the authority vested in the Price Administrator by the Emergency Price Control Act of 1942, and in accordance with Procedural Regulation No. l, issued by the Office of Price Administration, • Maximum Price Regulation No. 107 is hereby issued.
“§ 1315.1351 Maximum prices for used tires and tubes. On and after March 16, 1942, regardless of any contract, agreement, lease, or other obligation, no person shall sell or deliver and no person in the business of buying or selling used tires or tubes shall buy or receive any used tire or tube, at prices higher than the maximum price set forth in Appendices A and B hereof, incorporated herein as §§ 1315.1360 and 1315.1361; and no person shall agree, offer, solicit or attempt to do any of the foregoing. The provisions of this section shall not be applicable to sales or deliveries of used tires or tubes to a purchaser if prior to March 16, 1942 such used tires or tubes had been received by a carrier, other than a carrier owned or controlled by a seller, for shipment to such purchaser.”

We think the above statement justifies the conclusion which the trial court reached when he said:

“The Government’s listing of prices at which tubes and tires will be sold, the maximum, is not for the purpose of ascertaining or determining or stating the value of those things, not by any means, but the purpose is to keep the prices from going up. It is a price control proposition.”

As above stated, the statute of this state above quoted was enacted long prior to the enactment of the rules and regulations of the Price Administration, and with no reference thereto.

The evidence in this case clearly demonstrates that the fair market value of this property is beyond the ceiling price set by the Price Administrator, and we do not think that the ceiling price as set by the Price Administrator should be controlling in construing the statute with reference to whether the value of the property is such as to constitute grand or petit larceny. This ceiling price was fixed only for the purpose of preventing inflation during the period of time in which this country is at war. By the issuing of this order, no consideration was given as to the real value of property, but it was solely for the purpose of preventing its sale beyond a maximum price to prevent inflation. And it does not seem reasonable to us that this maximum price should be applied to statutes such as above quoted, dealing with the larceny of property in this state. It rather occurs to us that the established principles with reference to value which have been in force and effect in this state for many years should continue to be the standards by which it may be determined whether the value of the property is such as to constitute grand or petit larceny.

This court in the case of Hoffman v. State, 24 Okla. Cr. 236, 218 P. 176, 177, in construing the above statute, quoted with approval from the case of Filson v. Territory, decided by the Territorial Supreme Court, where it was said :

“ ‘The reasonable market value * * * is the true criterion for determining the grade of larceny.’ It has been held in other jurisdictions that the word ‘value,’ when used in a statute relating to larceny, is equivalent to the term ‘market value.’ It follows, then, that the expression ‘market value’ relates to buying and selling, so that another equivalent expression might be said to be ‘reasonable selling price.’ Yol. 3 Words & Phrases, Series, pp. 300-302; Yol. 4 Words & Phrases, Second Series, ‘Yalue’; 17 R.C.L. ‘Larceny,’ 3.”

The above cases are cited with approval in the case of Carson v. State, 30 Okla. Cr. 438, 236 P. 627.

This ceiling price as now indicated, in the above order of the Price Administrator, will only be in force during the National emergency, and it is subject to change at any time. We think it would not be proper to establish a rule of value as to stolen property that might be changed at different times. It would give one desiring to commit larceny an opportunity to steal property, the value of which would be far in excess of the ceiling price set by the Price Administrator, yet would fall below the value of $20, the dividing line set by the statute of this state between grand and petit larceny. It would place a changeable value upon property so that when stolen today, it might come within the value constituting grand larceny; if stolen tomorrow, it would come within the value constituting petit larceny.

We are of the opinion that the reasonable market value of the property as decided by the cases from this court in construing the above statute should be the guiding principle in determining the value of the property under the larceny statute above quoted.

Having reached this conclusion, the question of the reasonable market value of the property was a question of fact for the jury. The evidence of the state placed the value beyond $20. The witnesses of the defendant did not attempt to testify as to the reasonable market value of the property. Their testimony as to the value of the property was based only upon the ceiling price established by the rules prescribed by the Price Administrator. The court was right in coming to the conclusion that the defendant was guilty of grand larceny, and not petit larceny.

For the reasons above stated, the judgment and sentence of the district court of Washington .county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.

       The statement of considerations has been filed with the Division of Federal Register.”

       7 V.R. 871.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    W. P. GULLATT v. STATE.
    No. A-10331.
    April 26, 1945.
    (158 P. 2d 353.)

      W. V. Stanfield, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and A. C. Kidd, Asst. Co. Atty., of Wewoka, for defendant in error.
   JONES, J.

Tbe defendant, W. P. Gullatt, was . charged in the district court of Seminole county with the crime of rape in the first degree; was tried to a jury who returned a verdict of guilty with a recommendation • that a sentence of 15 years imprisonment in the State Penitentiary be suspended; sentence was pronounced in conformity with the verdict of the jury, and the defendant has appealed.

For a reversal of this case, the following assignments of error are presented: (1) The evidence is insufficient to sustain the verdict of guilty. (2) The court erred in admitting incompetent and prejudicial testimony and in permitting counsel for the state to continually ask leading and suggestive questions. (3) The trial court erred in not declaring a mistrial when it was shown by the evidence that the present county attorney had a contract with the mother of the complaining witness to bring a civil suit against defendant, as a result of the alleged crime,' which disqualified the present county attorney from prosecuting the case, and because of this disqualification, his assistant, who had active charge of the prosecution, was likewise disqualified to represent the State of Oklahoma. (4) That the court erred in not granting a new trial on account of newly discovered evidence.

For the purpose of disposing of this appeal, the first tAVO assignments of error will be considered together. The defendant was an attorney in the city of Wewoka. The prosecuting witness, Grace Marie McGirt, was an Indian girl, who lived near the city of Wewoka. The defendant, in December, 1941, had discussed with the prosecutrix and her mother certain litigation involving the allotment of Dick McGirt, the father of the prosecutrix. Later, in January, 1942, one Charlie Cosar, a cousin of the prose-cutrix, was arrested and incarcerated in the county jail at Wewoka, for allegedly committing a criminal offense. The prosecutrix and her mother went to the defendant to secure his assistance, if possible, in making an appearance bond for the said Cosar. The defendant made an appointment to meet the prosecutrix and her mother late in the afternoon of January 14, 1942. The prosecutrix at that time lacked two months of being 17 years of age and weighed about 122 pounds. She was attending high school.

The prosecutrix testified that the defendant and Nora Cully, an Indian woman, came to where she and her mother were living about 8 p.m. That she got in the automobile with the defendant and Nora Cully, and they drove to Willie Holotka’s house and talked to his wife. They then drove to Louisa Holtulka’s and stayed there about 30 minutes, talking to her about making Charlie Cosar’s bond. That they then drove to a store at the five-mile corner, where the defendant drank a glass of beer. That they then drove to Willie Palmer’s place near Sasakwa, but didn’t find anybody at home. That they then drove south of Sasakwa to the home of Nora Cully and left her there for the night. It was then about 10:30 p.m. That on the road returning home, between Sasakwa and Wewoka, the defendant turned off on a side road and stopped about a quarter of a mile from the highway, put his arms around the prosecutrix, and that she pushed him away. That defendant tried to get on. top of her. That he kissed her. That they were stopped there about five or ten minutes before defendant turned her loose. That the defendant tl|m said he would take her home. That he drove almost to her home and then turned towards Bunnie'.Harjo’s place. That when they got within about a half a mile of Bunnie Harjo’s place, defendant stopped the car again and wrestled with her, tearing two buttons off her dress. That they stayed there about 30 minutes. That they then drove back towards where prosecutrix lived and stopped about three-quarters of a mile from her home. That the defendant again tried to get on top of her, but she slapped his face. That the defendant then drove her back down toward Nora Cully’s house, but when he started to turn in toward the house the prosecutrix grabbed the steering wheel and stepped on the gas because she did not want to go into the house. That she then asked to be taken to her cousin Bruner’s home. That when they arrived at the Bruner home, there were no lights on at the place, so she did not get out. That they then drove to Seminole, and stopped first at a filling station and then at a tourist camp. That the defendant rented a cabin and drove his car into the garage adjoining the cabin. That the defendant said he would sleep in the car and she could sleep in the bed in the cabin. That the defendant came into the cabin and while he was in the cabin, she took off the cowboy boots that she was wearing and anklets and got into the bed, and took off her dress while she was under the cover. That the defendant turned out the light and left the cabin. That she was tired and immediately went to sleep. That, later, she was awakened by the defendant getting in bed with her. That he was undressed. That he put his arms around her and tried to kiss her, but she moved her head back and forth. That the defendant then had sexual intercourse with her. The following leading questions were then asked the prosecutrix, to all of which the defendant objected, but his objections were overruled and exceptions allowed:

“Q. Did you struggle with him? A. Yes, sir. Q. Did you try to keep him from doing that? A. Yes, sir. Q. What did you do to try to keep him from doing that? A. I tried to get him off of me. Q. As hard as you could? (Not answered.) Q. Well, did you do everything within your power to keep him from having sexual intercourse with you, Grace Marie? A. Yes, sir.”

The prosecutrix then testified that as it was beginning to get dawn she and defendant left the cabin and went to the bus station. That defendant offered her a dollar to buy a ticket home, but she refused, and went across the street to the highway and caught a ride to Wewoka. That when she got to Wewoka, she went to the county jail to see her cousin. That she did not tell him about anything that had occurred. That after visiting with her cousin in jail, she went back down on the street and ate her breakfast at a cafe about two blocks from the jail. That afterwards, she again returned to the jail and spent about an hour and a half visiting her cousin. While she. was at the county jail, at the request of her cousin, she called the defendant about making Cosar’s bond and inquired whether defendant could go to Mitchell Palmer’s and get him to sign the bond. That after finishing with her visit, she was coming down from the jail and met her mother, who was talking with another Indian woman. That when her mother saw the prosecutrix, she did not say anything, but walked up to her and struck her, knocking her senseless and making her nose bleed. That she was taken upstairs to the jail and first-aid administered and her nose doctored. That her mother then took her to the defendant’s office to see why defendant kept her out all night, but the defendant was not there. That her mother then took her to the police station, to report on the defendant’s keeping her out all night. That the prosecutrix then, at the police station, told one of the policemen about the defendant’s having sexual intercourse with her. That he was the first person she had told. That the policeman took her to the county attorney’s office and she repeated her story to the assistant county attorney and showed him her breasts where they had been bruised by defendant. That the county attorney then sent her to a doctor over the bank for examination. That she then went with her mother to see Bill Biggers, an attorney, and her mother hired him to sue the defendant for damages. That Mr. Biggers sent her to Dr. Grimes for another examination.

On cross-examination, the prosecutrix testified that while she was out with the defendant that night they passed several cars. That she did not scream during any of the time because she was afraid of the defendant. That she did not say anything to the filling station man where the defendant stopped because she did not think of that then. That she did not say anything to the man at the tourist camp because she knew that if she did, the defendant would have lied out of it. That she made no effort to get out of the car at the filling station and go into the ladies’ rest room and hide or to avoid the defendant in any way. That the tourist camp operator went into the cabin first and lit the fire, and that she did not speak to him at all. That when defendant left the cabin the first time, she made no effort to lock the door so that he could not return. That when the defendant committed the act with her, she had on a girdle, a slip, ¡and a pair of pants, and that none of these articles were removed. Prosecutrix further testified that she slept a part of the time when the defendant was driving between Konawa and Seminole. That the two doctors who examined her at the request of the assistant county attorney and Mr. Biggers were Dr. Williams and Dr. Grimes.

In addition to the testimony of the prosecutrix, the following witnesses testified for the state in its case in chief:

Nora Cully testified concerning the trip which she made with the defendant and the prosecutrix to the,various places mentioned by the prosecutrix in her testimony. That the witness was taken home between 10 and 11 o’clock. She further testified that the prosecutrix said she wanted to be in Sasakwa the following morning in order to get Willie Palmer to sign the Cosar bond.

Alice McGirt, mother of prosecutrix, testified that she and prosecutrix were living on Josie Steven’s place north of Wewoka. That in December, she had been talking with defendant about a lawsuit involving her husband’s allotment. That on January 14th, she was in defendant’s office talking about the lawsuit and also about making a bond for Charlie Cosar. That defendant agreed to come to her place that evening and see what he could do. That at defendant’s request, she let her daughter, Grace Marie, go with him to see Bunnie liar jo. That her daughter did not return home that night. That the next morning she-went into Wewoka and reported to the police force that her daughter did not come home. That, later, she was at the courthouse and saw her daughter, and when she did, she walked up to her, and struck her on the face and knocked her. to the floor. That she only struck her the one blow. That she, with others, then carried the girl upstairs to the jail where she washed her face and let her rest a little while before they left. That when they left the courthouse, she went to the defendant’s office to find out where he had been the night before with her girl. That she took Grace Marie along. That she asked her daughter where she had been the night before and all she said was, “with Bill.” That she knew she meant the defendant. That she took the prosecutrix to the police station and the prosecutrix there told the policeman what had transpired the night before. That the policeman then took her and Grace Marie to the county attorney’s office, and, later, to Dr. Williams’ office for examination. That after they left the doctor’s office, she took the prosecutrix home. That the prosecutrix was sick.

On cross-examination, she testified that after she had struck her daughter in the courthouse and knocked her out, she asked her why she did not come back during the night, to which the prosecutrix replied, “Mama, I don’t know why he didn’t bring me back.” That after she had gone to the county attorney’s office with the prosecutrix, she went to Mr. Bill Biggers’ office and employed him to bring a suit against defendant for damages. She admitted that she sent her uncle, Jacob King, and an Indian preacher by the name of Stanley Smith to- see defendant about dismissing the prosecution. That she wrote on a note the amount of money that it would take to settle the case, and signed the note. That she offered to settle the case and dismiss the prosecution for a total of $6,850, of which $1,850 was to go to buy her a home and the other $5,000 to her daughter for damages. It was brought out on cross-examination that the defendant called the witness after talking to the two Indians about the proposed settlement, and that the defendant’s stenographer listened to the conversation and made a transcript of it. Counsel for defendant read from this transcript of the conversatipn between Alice McGirt and the defendant, and Mrs. McGirt admitted that the following statements, among others, were made by her and the defendant in that conversation:

“Q. (By Defendant) : Is that the amount? A. Yes. Q. Well, won’t you just withdraw the charges without any money. You know I’m not guilty. A. No, not without the money. We’ll just see you in the morning. Q. And if you get the money, you will dismiss the case? A. Yes. Q. Do you really want to see me go to the Penitentiary? A. I guess not, if you don’t pay us— Q. But, if I pay, I won’t have to go? A. Yes. Q. That money is the smallest amount you would take? A. Yes. Q. Did you see Mr. Biggers? A. Yes, he called me a while ago.”

The witness further stated that she saw her daughter about 9 a.m., and talked to her a long time, but that she didn’t know what had happened until she heard her daughter tell it at the police station.

Elmer Alloway testified that he operated the Hallo-way Courts, on the west edge of Seminole. That on the night of January 14, 1942, he rented a cabin to defendant. That be only saw two people in tbe car. That the defendant droye up to his office in the car and tooted his horn, and asked for a cabin. That he rented them cabin No. 56. That he went in the cabin, lighted the fire, defendant paid him, and he went back to his office. That the young lady with the defendant walked into the cabin first and defendant followed. That he did not see the defendant or the lady again.

On cross-examination, he testified that all of his cabins were occupied that night. That the cabins were in two rows and those in each row were joined to each other. They are not composed of any sound-deadening material. The garage which is adjacent to each cabin does not have a door, bnt is open. Each cabin is fastened by a latch on the inside. The witness did not notice any disarrangement about the clothing of the young lady who was with the defendant, or of anything unusual or uncommon about the appearance of either of them. Witness did not notice whether the woman with defendant was an Indian woman or white woman.

Willene Harrison testified that she was employed as a stenographer in the county attorney’s office. That she examined the breasts of Grace Marie McGirt when she came to the county attorney’s office on January 15th. That she saw a discolored place above each breast.

Price Azlin testified that he was a policeman in the city of Wewoka. That he talked with Grace Marie Me-Girt, the prosecutrix, and her mother around 10:30 or 11 a.m. on January 15th. That the mother had called about 7 o’clock that morning and reported that the daughter had been gone from home overnight. That after he talked to the girl, he took her to the county attorney’s office. That he saw some “blood-shotten” places on her breasts.' That he took the girl to Dr. Williams for an examination.

Dr. J. Riley Williams and Dr. J. P. Grimes testified on behalf of the defendant. These two doctors were the men who examined the prosecutrix within a few hours after the alleged assault occurred. After they made their reports to the county attorney’s office, they were not called as witnesses by the prosecution, but were placed on the witness stand by the defendant. The testimony of these two doctors were substantially the same. Part of the testimony of Dr. Williams is as follows:

“Q. What did you do, Doctor, in making your ex: amination? A. First, I had her to undress and take off her underclothes. Q. What did she have on? A. Step-ins and outer clothes. And I then proceeded to examine her with a speculum by inserting it into the vagina and made my examination. Q. In order that we might understand, you say you examined her with a speculum, what is that instrument? A. It is an instrument that has two prongs that you can open up and they will hold the parts open: so that you can examine the person better. Q. How did you use that instrument? A. I inserted it into the vagina and opened it up. However I had a headgear that I used and that makes a good light. Q. What size instrument is this speculum? A. They come in three sizes— large, medium and small. Q. Which size did you use? A. That was one of the large size. Q. Did you have any difficulty in inserting that instrument, Doctor? A. None whatever. Q. It went in easily? A. Yes, sir. Q. You inserted it its full length into her vagina, did you? A. Yes, sir. Q. Was there any complaint made by the young lady upon the insertion of that instrument? A. None whatever. Q. There was no pain or discomfort while you were inserting it? A. That is correct. Q. Could you insert such an instrument into the vagina of a chaste 16 or 17 year old girl, one of that size, without causing pain and discomfort to her? A. No, sir, I don’t think so. Q. How did you find the size of the vagina of this girl in comparison with a mature married woman who had been having sexual intercourse for several years? A. Well, it was a very large vagina for a girl of her age. * * * Q. Do you or not, frdm your examination, think that she had committed the act 'of sexual intercourse or had committed masturbation a great number of times? A. I am inclined to think that she had. Q. Did you find anything, from your examination to indicate that she had been raped or ravished? A. From my examination I didn’t find anything that would indicate that. Q. What condition did you find her vagina in with reference to being dry or wet —what condition was it in? A. It was quite dry — there was no secretion. Q. Assuming, Doctor, that she contended that at about the hour of six o’clock or between the hours of 5 and 6 of that morning that she had been raped and had had sexual intercourse and that she had done nothing to her vagina in the way of doing something to cleanse it, assuming that to be trué, would you have expected to find something in her vagina to indicate that that had happened — that that experience had been realized? A. I would have expected to have found something, yes. Q. Did you observe or. examine that girl’s breasts? A. No, I didn’t examine her breasts. Q. How long did you keep that speculum in her vagina, Doctor? A. I presume five or seven or eight minutes. Q. During all of that time was there any complaint made to you by her that she was suffering any pain or discomfort? A. None. Q. Did she make any statement to you about having been ravished or raped by anyone? A. She didn’t talk very much, in fact, there was very little conversation between us. Q. Now, Doctor, how did the vagina which you examined on that little girl compare with the vagina of an ordinary girl of her age who had not had sexual intercourse or who had not committed the act of masturbation? A. It was much too large for a virgin. Q. Do you think that you could have inserted that instrument into her vagina if she had been a virgin without pain? A. No, sir.

The doctor further testified that the hymen had completely disappeared, which indicated in his opinion that she had had frequent acts of sexual intercourse or masturbation. That he could not find anything in his examination to indicate that the girl had had sexual intercourse-in the last 12 hours. That unless the prosecutrix had taken a douche, there would have been some secretion present in her vagina for some 24 to 36 hours after an act of sexual intercourse had been completed.

Dr. Grimes’s testimony was substantially the same as Dr. Williams’, except he testified that she had a bruise over each breast. He also made a careful examination and was unable to detect any spermatozoa present in the vagina of the prosecutrix which would indicate a recent act of sexual intercourse. The bruised places on the breasts of the prosecutrix were about two or three inches above the breast. The doctor further testified that the lips of the outside walls of the vagina will develop with repeated acts of sexual intercourse. That, in his opinion, she was developed as much as a normal married woman is after she has been married for ten years without child-birth.

He further testified:

“Q. What had become of the ring of hymen which you ordinarily expect to find in a maiden? A. It had disappeared entirely — there was no semblance of it at all. Q. What will cause it to disappear? A. Sexual intercourse or repeated masturbation — of course, masturbation is quite a bit slower than intercourse — it would depend altogether upon the instrument used in the masturbation.”

He further testified that the prosecutrix had on the girdle and pants which she said she had on at the time of the alleged attack, and in this connection, the testimony is as follows:

“Q. Did she have them on when she came to your office? A. Yes, sir, she had them on in reverse, however, she had the girdle beneath the pants. Q. Did you have her to remove them so that you could make your examination? A. Yes, sir. Q. Now please tell us whether with the pants being worn on the outside of the girdle or on the inside of the girdle, would it be physically possible for a man to have intercourse with a woman so clothed? A. I think you could have sexual intercourse with her but you would have to have her consent.”

The doctor further testified that Mr. Diggers came to his office and made arrangements for him to make the examination about 5 p.m., on January 15th.

The defense was in the nature of an alibi. The defendant testified and introduced proof by other witnesses to show that, on the night in question, after he had left Nora Cully at her house, he picked up Susie Cully, another Indian woman, and Tom Bennett, a white man, whom the defendant was representing in some paving bond foreclosures. That they had to go to Oklahoma City to get some paving bond ledgers belonging to Bennett. That the prosecutrix wanted to go to Seminole and stay with her uncle. That when they got to Seminole, they could not find her uncle’s house, and defendant rented her a cabin. That after he rented her the cabin, he, Susie Cully, and Tom Bennett drove over to Oklahoma City, secured the bond ledgers, and returned to Wewoka, arriving early in the morning. The defendant specifically denied the alleged acts of assault related by prosecutrix.

Susie Cully testified in corroboration of the story related by defendant, but her credibility was weakened by a showing on cross-examination that she had made a statement in writing to the county attorney the day after the alleged offense occurred, which varied in some material particulars from her testimony.

The state, on rebuttal, also, showed by witnesses from a hotel in Wewoka that Susie Cully was at the hotel during a part of the time that it was claimed by the defendant that she was with him, and, also, that Tom Bennett was in Wewoka during the greater part of the night in question.

Other witnesses testified on behalf of the defendant, but their testimony is immaterial to the - disposition of this case. As we view the matter, the question of the sufficiency of the evidence can be determined by a consideration of the testimony of the prosecutrix, her mother, and the two doctors who examined her shortly after the alleged crime was committed.

This prosecution is instituted under the provisions of 21 O. S. 1941 § 1114, wherein it is provided that rape committed by a male over 18 years of age, accomplished with any female by means of force overcoming her resistance, is rape in the first degree. Unless the proof of the state shows that the defendant accomplished the act by means of force overcoming her resistance, then the evidence is insufficient to sustain a conviction under the information herein filed.

In the case of Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 530, 538, the following language is used:

“While it is the law of this state, as in most others, where not modified by statute, that a conviction for rape may be sustained upon the uncorroborated evidence of the outraged female, it is nevertheless equally well settled that the appellate court will closely scrutinize the testimony upon which the conviction was obtained, and, if it appears incredible and too unsubstantial to make it the basis of a judgment, will reverse the judgment.”.

In the case of MacLaurin v. State, 34 Okla. Cr. 324, 246 P. 669, 671, it is stated:

“It is true that convictions for rape must rest largely upon the testimony of the prosecutrix, and direct corroborating testimony is well nigh impossible to procure. However, where the charge is true, there will almost always be some corroborating evidence, such as injury to the person or clothing of the prosecutrix, or the fact that she made complaint as soon as practicable, and without unreasonable delay, and it is always legitimate to consider whether the subsequent conduct of the prosecutrix is the usual and natural conduct of an outraged woman as bearing upon the credibility of her direct testimony.”

In Wines v. State, 7 Okla. Cr. 450, 124 P. 466, 470, we said:

“It is the natural impulse of every honest and virtuous -female to flee from threatened outrage, and if assaulted to make complaint at the first opportunity, and where this is not done, and no reasonable explanation is made, it is a strong, but not a conclusive, presumption against the truth of the accusation.”

In Witt v. State, 29 Okla. Cr. 357, 233 P. 788, 789, in reversing a conviction for rape, it is stated:

“The charge is one that arouses the passions and prejudices of jurors,- and for that reason it is the duty of the court to closely scrutinize the evidence, and where the evidence of the state is unreasonable, inconsistent, and contradictory, and there is inherent evidence of improbability or indications that the prosecution is maliciously inspired, the court should not permit a conviction to stand.”

In the case of Johnson v. State, 52 Okla. Cr. 397, 5 P. 2d 772, the, facts in support of the prosecution are. much stronger than those presented herein. The case was reversed, and in the body of the opinion, it is stated:

“It is settled by many decisions of this court that a defendant may be convicted of rape upon the uncorroborated testimony of the woman. In a prosecution for rape by force overcoming resistance upon a woman above the age of consent, where the corroboration of the use of force is extremely slight and the testimony of the prose-cutrix somewhat inconsistent and unsubstantial, this court will scrutinize the record with care. The age, surroundings, circumstances, situation, and conduct of the parties will be considered. Where no threats nor use of force are made to intimidate the female, where she is in easy call of others, if an outcry is made, and none is made, and no complaint is made for several hours, it appears improbable that any rape occurred, but rather that the intercourse was voluntary. MacLaurin v. State, 34 Okla. Cr. 324, 246 P. 669; State v. Hogg, 64 Or. 57, 129 P. 115; State v. Goodale, 210 Mo. 275, 109 S. W. 9.”

When this prosecution is measured in the light of the above authorities, it is apparent that the conviction should not standi It may be that the defendant committed an act of sexual intercourse with the prosecutrix. However, if the testimony of the doctors who examined her shortly after the act is alleged to have been committed is to be believed, no such act was completed. The conduct of the prosecutrix refutes any theory that force was used upon her to accomplish the act. We are not unmindful of the fact that' some buttons were torn from the dress of the prosecutrix, and that there was a bruise above each breast, but, even under the story of the prosecutrix, the buttons were torn from her dress early in the evening, five or six hours before the alleged act of sexual intercourse was committed. Thereafter, the prosecutrix could have left the company of the defendant on many occasions or told some of the parties she said they saw of the defendant’s conduct toward her. In this connection, we must also consider the proposition that the prosecuting attorney continually elicited answers by asking leading and suggestive questions and that 'during the testimony of the prosecutrix, at all points where material matters arose, the prosecuting attorney suggested the answer which he desired by the asking of leading questions. We have here-inabove set forth some of the leading questions asked of the prosecutrix, concerning the actions of the defendant at the time the alleged act was committed, which is the basis of the prosecution. In addition to those leading questions,, the record discloses the following questions, among others, which were asked and answered in most instances over the objection and exceptions of counsel for defendant; most of the answers were “yes” or “no:”

“Q. Did you turn off- of the highway any place or anywhere between Sasakwa and Wewoka? * * * Q. Did Mr. Gullatt stop the car after you had turned off onto that road and had gone about a quarter of a mile? * * * Q. What else did he do — what did he do with his hands? * * * Q. Did he take hold of your person anywhere? * * * Q. How did you try to fight him off? A. I tried to push him away. Q. With, your hands? A. Yes, sir. Q. Did you say anything to him, Grace Marie? * * * Q. Did' he continue to do the same things— * * * q. Tell us whether he got out from under the steering wheel or not? * * * Q. Hid Mr. Gullatt do anything about unfastening or disarranging any of your clothing? * * * Q. Did he kiss you while you were in the car? * * * Q. Did you try to keep him from doing that? * * * Q. Did you use all of the force you could to try to get him to quit? * * * Q. Well, did Mr. Gullatt tell you what he was going to do if you would get back in the car — where he would go? * * * Q. Hid he have hold of you? * * * Q. Hid he tell you anything about a divorce? * * * Q. Hid he put his hands on you? * * * Q. Hid you do anything about it when he was doing that? * * * Q. Can you tell the jury whether he unbottoned his clothes or not? * * * Q. Hid he get on top of you? * * * Q. Is that what you wanted him to do? * * * Q. Hid he tell you why he hadn’t taken you hack to your mother’s? * * * ‘Q. Now, did he help you to get in the cabin, Grace Marie, have hold of you? * * * Q. Hid you have on a coat? * * * Q. Hid Mr. Gnllatt come in the cabin or not? * * * Q. Did he go back out then? * * * Q. Did you ever get out of that car except the one time that you told about? * * * Q. Did you ever try to get out any more? * * * Q. He wouldn’t let you? * * * Q. Will you tell the jury whether or not you had scuffled and fought and wrestled with that man practically all the time from the time you left Nora Ear-jo’s place until you finally made all of those rounds you told about and finally got up there to that cabin at Seminole? * * * Q. Tell the jury whether or not you were tired? * * * Q. Did you go to sleep immediately? * * * Q,. After you got in bed did Bill Gfullatt come back in there? * * * Q. Had he woke you up? * * * Q. Did he put his arms around you? * * * Q. Did he do anything to you about your breasts? * * * Q. Did you struggle with him? * * * Q. Did you try to keep him from doing that? * * Q. Well, did you do everything within your power to keep him from having sexual intercourse with you, Grace Marie? * * * Q. Tell the jury whether or not you had done’ everything that you could do all during that night to keep Bill Gullat from raping you? * * * Q. Did you tell Mr. Biggers what had happened? * * * Q. Did you tell him the same story and the same things that you had told Mr. Azlin and your mother? * * * Q. Did you eat anything during that time? * * * Q. Do you know whether or not the wrestling and scuffling and fighting him off that you had done with Bill Gullatt all night long that night before had made you sick and was that why you had to go to bed?”

It will be readily seen from an examination of the above that on the pivotal issue as to whether force was used at the time the act was committed, the testifying was done by the examiner and not by the witness. The trial court himself took cognizance of the fact that leading questions were asked in many instances. Undoubtedly, he realized that the conduct of the prosecution in the instant case in this regard exceeded the bounds of correct procedure, as we find the trial judge stating in his ruling upon the motion for a new trial:

“Of course, in this case, I have got to look at it from all of the circumstances and things and of course there were a lot of the questions that were leading but I have had that trouble a lot, I don’t know why hut when a man gets to representing the state he seems to think he has a right to lead his witnesses — every one of them do it. I notice that is the biggest trouble that a county attorney has after he gets out of office. I can go off some-’ where and start in trying a case and will know within a few minutes if any of the lawyers trying the case has ever been county attorney by the way he leads the witnesses. Sometimes the courts have reversed cases on that ground and sometimes they don’t.”

It is a settled rule of law that leading questions should not be asked a witness by the party placing him upon the stand. Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532; Ostendorff v. State, 8 Okla. Cr. 360, 362, 128 P. 143; Campbell v. State, 23 Okla. Cr. 250, 214 P. 738.

The exception to this rule of law is where a witness proves hostile to the party putting him upon the stand and friendly to his adversary, or where the witness is trying to evade the questions asked. Then, the trial court in its discretion may relax the general rule of law and permit leading questions to be asked. Gardner v. State, 5 Okla. Cr. 531, 115 P. 607; Morris v. State, 35 Okla. Cr. 5, 247 P. 418.

We are not here confronted with a case where the witness is hostile, evasive, illiterate, or unfriendly to the prosecution. She was a high school girl, and there is nothing in the record to show or indicate that she is below the average girl of her age in mentality.

The testimony of Dr. Williams and Dr. Grimes, in whom the police officer and the county attorney's office, bad sufficient confidence to ask that they examine the prosecutrix, is entitled to the deepest consideration in. determining the truthfulness of the story related by the prosecutrix. When the testimony of these two doctors is considered, together with the fact that on all pivotal issues leading questions were asked by the prosecuting attorney, together with the admitted fact that the prose-cutrix and her mother offered to dismiss the prosecution upon payment of a sum of money, together with the further fact that the prosecutrix did not make an outcry, that she had on under-garments which she admitted were never removed, that she talked to the defendant over the telephone the next morning and asked him to take her to see Willie Palmer to see him about signing her cousin’s bond; that she did not tell her mother that she had been raped until after her mother took her to the police station, and there in the presence of her mother, they began to question her as to where she had spent the night. All of these factors indicate that if there was an act committed it was voluntary and not through force.

The prosecutrix testified that she had never had sexual intercourse with any other person than defendant, but this testimony is wholly in variance and inconsistent with the findings of the doctors made the day the act is alleged to have occurred. It appears that during the trial of the case, after Drs. Williams and Grimes had testified, the state had two doctors examine the prosecu-trix and they testified that in their opinion the prose-cutrix was normal for a girl of her age. Both of these doctors, however, refused to express an opinion as to whether the prosecutrix had been committing acts of sexual intercourse.

Attached to the defendant’s supplemental motion for a new trial on the grounds of newly discovered evidence were affidavits of several witnesses, which, if true, would have refuted some of the material parts of the testimony of the-state. Two of these witnesses testified at the hearing on the motion for a new trial. It is unnecessary for us to discuss the merits of. this proposition, because we are of the opinion that the testimony of the prosecutrix, when considered with the other admitted physical facts, is wholly insufficient to show that the sexual act was accomplished by the use of force.

The state based their case solely upon their contention that the defendant used force which overcame the resistance of the prosecutrix and accomplished the act against her will. The evidence is wholly insufficient to support this theory of the case.

At the time the charges in this case were filed, Tom Biggers was county attorney of Seminole county. His brother, Bill, was engaged in the private practice of lawr. Shortly after this prosecution was instituted, Tom Biggers joined the United States Armed Forces, and Bill Biggers was appointed county attorney. Before his appointment as county attorney, Bill Biggers consulted with Mrs. Mc-Girt and Grace Marie McGirt concerning a possible lawsuit against the defendant for damages. Following his appointment as county attorney, Bill Biggers did not further represent the prosecutrix or her mother in any civil litigation involving this case, so far as the record discloses, and he did not participate in the prosecution. There is nothing at all to indicate anything improper in the conduct of Bill Biggers or any other of the counsel involved in this prosecution. They were each apparently convinced of the defendant’s guilt and did their best to secure a conviction. It is unnecessary for us to decide the legal question presented as to whether A. C. Kidd, assistant county attorney of Seminole county, was disqualified to prosecute defendant because of the fact that his superior officer, Bill Biggers, considered himself disqualified and refused to appear in the case.

For the reasons hereinabove stated, the judgment and sentence of the district court of Seminole county is reversed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.


author: LOONEY, Special Judge. JONES, J.

text:
    STATE v. TOM C. WALDREP.
    No. A-10258.
    April 25, 1945.
    (158 P. 2d 368.)

      Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Otis Blankenship, Co. Atty., of Norman, for plaintiff in error.
    Al G. Nichols, of Wewoka, for defendant in error.
   LOONEY, Special Judge.

This case comes to this court on appeal by the state on a reversed question of law under the provisions of the applicable statute, subdivision 3, 22 O. S. 1941 § 1053, which reads:

“Appeals to the Criminal Court of Appeals may be taken by the State in the following cases and no other:
“1. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“2. Upon an order of the court arresting the judgment.
“3. Upon a question reserved by the State.”

The facts out of which the prosecution arose and which are necessary to a consideration of the “question reserved” by the State, are as follows:

Defendant in error, Tom C. Waldrep, hereinafter referred to as “defendant”, was duly appointed guardian of Una and Dora Hembree. He acted as such guardian until the 29th day of May, 1939, at which time he was removed as guardian by the county court of Cleveland county. On June T, 1939, A. W. Hembree was appointed and qualified as defendant’s successor. Thereafter, the defendant’s account was surcharged by the county court of Cleveland county in the sum 'of $66,557.40. On appeal, the district court lowered the amount to $64,238.35, which order became final.

Defendant was arrested oh complaint on July 11, 1941. He was charged with embezzlement alleged to have occurred on the 29th day of May, 1939, the date on which he was removed as guardian. Preliminary hearing was had and the defendant bound over to the district court of Cleveland county.

' On January 20, 1942, the county attorney filed information in the district court of Cleveland county. Defendant filed a motion to quash and set aside the information. The district court thereafter entered its order quashing the information and ordered the defendant released and his bond discharged. The county attorney thereupon gave notice of appeal as follows:

“Notice is hereby given that the above styled canse will be appealed to the Criminal Court of Appeals on a reserved question of law as provided by the statutes. Dated the 16th day of April, 1942, Otis Blankenship, County Attorney.”

The chief issue presented for determination on this appeal is: Was prosecution barred by the statute of limitations? The Attorney General, in his argument to this court, presented for the first time a question as to whether or not. this case could be remanded to the trial court for further proceedings.

The state contends that the offense was not barred by the statute of limitations.

In the case of Glenn v. State, 72 Okla. Cr. 165, 114 P. 2d 192, 200, this court construed the applicable statute, 58 Okla. St. Ann. § 776, which provides that every guardian appointed in this state accepts his appointment subject to the statutory provisions requiring the guardian to render account, and at the expiration of his trust, to settle his accounts.

21- Okla. St. Ann. § 1454, reads:

“If any person being a trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator or collector, or being otherwise entrusted with or having in his control property for the use of any other person, or for any # public or benevolent jmrpose,- fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, he is guilty of embezzlement. B. L. 1910, § 2673.”

The following language from the opinion of Glenn v. State, supra, is equally applicable to the state of facts shown by this record:

“It is apparent that under the provisions of § 1436, supra [58 O. S. 1941 § 776], the defendant in the lawful execution of his trust became obligated to pay to his successor as guardian the sum acknoAvledged by the defendant in his final account to be due to said ward, and any other sum actually owing to said minor, and his failure upon demand so to do constitutes an act of embezzlement.”

Defendant was charged by complaint filed with the magistrate on July 11, 1941, which charged that the offense occurred on May 29, 1939. Evidence introduced at the preliminary hearing relating to specific offenses on other dates, was introduced for the purpose of establishing the liability of the defendant to account. The charge the state relied upon was the failure of the defendant to account at the time of his removal on May 29, 3939.

We are of the opinion, and so hold, that the limitation commenced to run at the time of the removal of the guardian and the appointment of the outgoing guardianes successor, which was June 7, 1939, and prosecution of the alleged offense would not be barred by 22 O. S. 1941 § 152, until the expiration of three years from said date. Glenn v. State, supra.

A criminal prosecution is “commenced” when complaint is filed with magistrate and warrant issued. Hicks v. State, 54 Okla. Cr. 431, 23 P. 2d 219.

The question raised by the Attorney General for the . first time in the argument on this appeal, that the case should be remanded to the district court of Cleveland county for further proceedings, is not well taken. The county attorney of Cleveland county appealed this case solely on a reserved question of law.

“An appeal upon a question reserved by the state does not bring up any part of the trial or proceedings of tbe case, -except the question reserved and the judgment of acquittal, and, if such question reserved is decided in favor of the state, it simply settles that question of law,- and does not affect a verdict of acquittal.” State v. Pollock, 5 Okla. Cr. 26, 113 P. 207, 209.

The pertinent part of the trial court’s order is as follows:

“* * * and that the bond heretofore posted by the defendant be discharged and that said defendant be released.”

In Ray v. Stevenson, 71 Okla. Cr. 339, 111 P. 2d 824, 829, we reviewed the statutes providing the procedure for the dismissal of indictments or information:

“We do have certain statutes providing the procedure for the dismissal of indictments or informations where a demurrer or a motion to quash is sustained to an indictment or information upon the arraignment of a defendant in the district court in connection with a felony charge.”

We cited the various statutes, including 22 Okla. St. Ann. § 508.

22 Okla. St. Ann. § 499, relating to a motion to set aside an indictment or information, provides:

“If the motion be granted the court must order that the defendant, if in custody, be discharged therefrom, or if admitted to bail, that his bail be exonerated, or if he have deposited money instead of bail, that the money be refunded to him unless it direct that the case be resubmitted to the same or another grand jury.”

These statutes are clear and unambiguous and their plain provisions have been followed in many prior cases. In the case of State v. Sowards, 64 Okla. Cr. 430, 439, 82 P. 2d. 324, 328, the court, in an opinion by Judge Thomas H. Doyle, stated:

“This case comes to this court under Procedure Criminal, Sec. 3191, O. S. 1931, 22 Okla. St. Ann. § 1053, providing that:
“ ‘Appeals to the Criminal Court of Appeals may be taken by the State in the following cases and no other:
“ ‘1. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“ ‘2. Upon an order of the court arresting the judgment.
“ ‘3. Upon a question reserved by the State.’
• “Under this section the state has the right to appeal from an order sustaining a demurrer to an indictment or information, and upon reserved questions, such an appeal reserves for decision only a question of law, where the indictment or information is dismissed and the defendant discharged without direction or permission of the trial court to amend the information, or that the indictment be submitted to that of another grand jury.”

In the case of State v. Dennis, 28 Okla. Cr. 312, 230 P. 935, this court said:

“Where the judgment quashing or setting aside the information contains an order discharging the defendant, the appeal from the judgment is upon a question reserved by the state, for the reason that the defendant has been discharged and cannot be compelled to respond to any further orders in the proceeding, when so discharged the case as to him is at an end. The appeal then is on a naked question of law.”

In the case of State v. Robertson, 28 Okla. Cr. 234, 230 P. 932, 934, this court said:

“That such an appeal only reserves for decision a question of law where the indictment or information is dismissed and the defendant discharged, without direction or permission by the trial court to amend the information, or that the indictment be submitted to that or, another grand jury, has also been heretofore held.”

In a felony case where the judgment of the trial court sustains a demurrer to an indictment or information, or sustains a motion to quash or set aside an indictment or information and discharges the defendant from custody, exonerates his bail, or if he has deposited money instead of bail, orders the money to be refunded to him, the defendant stands acquitted and cannot be placed upon trial again for the same offense; unless the trial court makes an order contemporaneously with the judgment of acquittal that the case be resubmitted to the same, or another grand jury, or that a new information be filed, or that the defendant be ordered held awaiting the action of the appellate court. State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731; State v. Dennis, supra; Ray v. Stevenson, supra; State v. Robertson, supra; State v. Walton, 30 Okla. Cr. 416, 236 P. 629.

The judgment of, the district court of Cleveland county holding that the prosecution herein was barred by the statute of limitations is reversed as being contrary to law.

The state appealed this case on a reserved question of law. The trial court rendered its judgment of acquittal. Such judgment is final and the defendant may not now be subjected to further prosecution in this case, or to have another prosecution for the same offence.

BAEEFOOT, P. J., concurs.

JONES, J.

(specially concurring). I concur fully in all the statements set forth in this opinion, concerning tbe legal questions as to whether the action herein is barred by the statute of limitations. The case of Glenn v. State, 72 Okla. Cr. 165, 114 P. 2d 192, cited in the opinion, is conclusive of that question.

I agree that the general rule of law pertaining to appeals by the state on a reserved question of law is correctly stated in Syllabus 1. If this were an appeal from the judgment setting aside the information and not upon a reserved question of law arising upon the trial, then a reversal of the judgment of the trial court setting aside the information would reinstate the case for trial in the lower court. State v. Pollock, 5 Okla. Cr. 26, 113 P. 207; State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77.

The county attorney has never indicated that he expects or desires to try the accused if the question of law presented by the appeal is decided in favor of the state. All proceedings in the'lower court indicate the contrary. There was no request by the county attorney nor attempt to have included in the order setting aside the information a further order staying the execution of the judgment or holding the defendant pending the appeal.

As I view the record, I do not think the question as to whether the defendant may be tried upon the remanding of this case is properly before us, and, for that reason, I do not express an opinion as to whether the appeal herein is based upon a reserved question of law or is an appeal from a judgment setting aside an information.

In order to avoid any uncertainty concerning the nature of appeals by the state in the future, I suggest a careful study of the procedure followed by the district court of Oklahoma county in the case of State v. Barnett, supra, which procedure is set forth in the reported case. The wording of the order and all acts done in connection with the judgment quashing the indictment in that case could well serve as a pattern for other courts to follow under similar circumstances. There is a vast distinction in the procedure to be followed where a demurrer to an indictment or information is sustained and where a motion to quash an indictment or information is sustained, and the legal effect of the order in each of such instances is different, as will be shown by a reading of the statutes and the cases cited in the opinion of Judge LOONEY.


author: BAREFOOT, P. J. BAREFOOT, P. J.

text:
    OLIVER WHITWORTH v. STATE.
    No. A-10395.
    April 25, 1945.
    Reversed on Rehearing May 23, 1945.
    (158 P. 2d 364; 159 P. 277.)

      Wall & Green, of Sallisaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. S. Agent, Co. Atty., of Sallisaw (R. O. Ingle, Co. Atty., of Sallisaw, and Randell S. Cobb, Atty. Gen., on rehearing), for defendant in error.
   BAREFOOT, P. J.

Defendant, Oliver Whitworth, was charged in the district court of Sequoyah county with the crime of burglary, second degree; was tried, convicted and sentenced to serve a term of five years in the State Penitentiary, and has appealed.

The only assignment of error is that the court erred in refusing to grant the motion for new trial on the ground of newly discovered evidence.

Defendant was charged jointly with his brother, Leon Whitworth, with burglarizing the home of Henry Howe, in Sallisaw, Sequoyah county, on February 20, 1939, and taking therefrom certain household goods and furniture, which were later sold in the city of Muskogee to Homer Dade, a negro.

At his request, defendant was granted a severance, and had a separate trial. At the trial, defendant was positively identified by Homer Dade as being one of two men who came to his place of business in Muskogee and from Avhom lie purchased the household goods and furniture later identified as the property stolen from Henry Howe’s home.

Homer Dade testified that after purchasing the property for the sum of $35 and having the same taken to his home in Muskogee, he became suspicious, and went in his car to overtake the truck in which the furniture had been delivered. On being accosted, one of the parties in the truck jumped out and ran across a field. The other party, whom Dade positively identified as the defendant, and from whom he purchased the property, returned $30 of the $35 he had paid for the furniture, claiming that they had spent $5, and promised to return and get the furniture. He testified that the next morning this defendant and one Lee Scott came to his place of business, and Lee Scott told the witness he would have to give the money back to defendant, and that: “Lee pulled out some kind of paper showing that he was a deputy sheriff, it was signed by Mr. Hutchins, the sheriff, and he said, ‘There is absolutely nothing wrong with it.’ ” The witness then decided to keep the property, and gave the defendant the $30 returned to witness the night before, and he kept the household property until the sheriff and Henry Howe came to his place and identified it as the property of Mr. Howe.

Defendant testified that he did not know anything about the crime, and that he did not commit it. He also introduced evidence of those with whom he was employed, which tended to prove an alibi. These witnesses testified that he was not away from his work, and could not have made the trip from Sallisaw to Muskogee with the truckload of household goods at the time of the burglary.

Leon Whitworth was a witness for his brother, the defendant. He testified that neither he nor his brother had any knowledge of the crime; that they did not burglarize the Henry Howe home; did not take the furniture to Muskogee in a truck, and did not sell it to Homer Dade. Leon Whitworth was later tried, convicted, and sentenced to serve a term of five years in the State Penitentiary.

The verdict of the jury was returned in this case on June 24, 1941. A motion for new trial was made and overruled on June 28, 1941, and judgment and sentence entered on the same day.

Thereafter, and on October 21, 1941, defendant filed his affidavit for new trial upon the grounds of newly discovered evidence. Because of the shortness of time to perfect an appeal, the court, on November 4, 1941, set aside the judgment and sentence theretofore entered, then overruled the motion for new trial, and again sentenced the defendant. This action is in no way contested in this appeal. t

Attached to the second motion for new trial was an affidavit of Leon Whitworth, the brother of this defendant and his codefendant, who was at that time in the State Penitentiary serving his sentence for burglary of the Henry Howe home.

In this affidavit, Leon Whitworth related a story completely different to his testimony at the trial of the defendant. He admitted the burglary of the Howe home, stealing the household goods, and selling the same to Homer Dade. He stated that the man with him upon that occasion was Rex Lockhart, and not his brother, the defendant; that Rex Lockhart was with him at the time of the burglary, and that Rex Lockhart’s truck was used to convey the furniture and household goods to Muskogee. He stated that they loaded the furniture and household goods in the truck soon after midnight, and drove to the home of Bert Henry, a brother-in-law of Bex Lockhart, in Okmulgee, and had breakfast. That they were advised by Bert Henry that there was no sale for second hand furniture in Okmulgee, and they then went to Muskogee, where the property was sold to Homer Dade, as testified to by him. He denied that his brother, Oliver Whitworth, this defendant, had anything to do with this burglary, or knew anything about it.

Also attached to the motion for new trial was an affidavit of J. Fred Green, W. B. Wall and Tom Douglas (Mr. Green and Mr. Wall are now the attorneys for defendant). In this affidavit they state that in August, 1941, they went to the home of Bert Henry, in Okmulgee. That in conversation with him, he stated that a truckload of furniture, as stated by Leon Whitworth in his affidavit, had been to his home, and that Oliver Whit-worth was not along. That Mr. Henry did not admit that his brother-in-law, Rex Lockhart, was there, but did state that if placed upon the witness stand he would tell -the truth about the matter.

A second affidavit of Tom Douglas attached to the motion was to the effect that he had a conversation with Bex Lockhart in which he admitted to him that he knew all about the burglary, and that it was his truck that hauled the furniture away. That Bex Lockhart told him that he knew of his own knowledge that Oliver Whit-worth had nothing to do with breaking into the home of Henry Howe and taking the furniture therefrom. Rex Lockhart was a nephew of the former wife of Tom Douglas.

There was also attached to the motion, affidavits of two of the jurors who served on the case of defendant, in which they stated that they had read the affidavit of Leon Whitworth, and if this evidence had been produced at the trial, they would have voted for a verdict of not guilty, rather than a verdict of guilty.

Defendant did not attach an affidavit by Bert Henry or Rex Lockhart to his motion for new trial. A transcript of the testimony taken at the preliminary hearing of Rex Lockhart, before the county court, is attached to the motion for new trial. Leon Whitworth, Bert Henry and Tom Douglas testified. At the close of their testimony, the court sustained a demurrer to the evidence, and the case against Rex Lockhart was dismissed.

The testimony of Bert Henry at the preliminary trial of his brother-in-law, Rex Lockhart, was most evasive. He refused to testify that either the defendant or his brother Leon Whitworth was at his home the morning that the truck loaded with the furniture was there. He admitted that Rex Lockhart and one other man arrived at his home early one morning in a truck and had breakfast at his home, but his answers to direct questions as to the identity of the other man were, “I don’t remember.”

The statute with reference to the granting of a new trial by reason of newly discovered evidence (Tit. 22 O. S. 1941 § 952) is as follows:

“A court in which a trial has been had upon an issue of facts has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only: . . .
“Seventh. When new evidence is discovered, material to the defendant, and which he could not with reasonable diligence have discovered before the trial. . . . When a motion for new trial is made on the ground of newly discovered evidence, the defendant must produce at the hearing in support thereof affidavits of witnesses, or he may take testimony in support thereof as provided in Section 5781 [Tit. 22 O. S. § 494] and if time is required by the defendant to procure such affidavits or testimony, the court may postpone the hearing of the motion for such length of time as under all the circumstances of the case may seem reasonable. . . .”

The Criminal Court of Appeals has many times held that the granting of a new trial by reason of newly discovered evidence is within the sound discretion of the trial court, and that unless this discretion is abused, the judgment will not be set aside. Horn v. State, 13 Okla. Cr. 354, 164 P. 683; Peters v. State, 35 Okla. Cr. 367, 250 P. 1032; Newman v. State, 35 Okla. Cr. 296, 250 P. 554; Vice v. State, 54 Okla. Cr. 405, 22 P. 2d 1039; Calloway v. State, 38 Okla. Cr. 418, 262 P. 696.

In some cases the motion has been sustained where the evidence against the defendant was very weak and the court came to the conclusion that the statements made in the affidavits were true and that justice demanded a new trial. Leary v. State, 34 Okla. Cr. 386, 246 P. 662; Cope v. State, 23 Okla. Cr. 161, 213 P. 753.

In the instant case the defendant is positively identified upon several different occasions by the witness Homer Dade, who bought the stolen property. He identified him as the man who sold the property to him, and as the one who returned a part of the money when witness overtook the parties on the road. He identified him as the man who came to his home the following morning with Lee Scott and demanded that he pay the money back and he returned the money to this defendant; and also identified him in the county jail, at the preliminary hearing, and at the trial in the district court.

It is true that the witness Jack Treadway, wbo saw the parties when they first brought the property on the truck to Muskogee, was unable to identify the defendant as one of the men.

The affidavit of Leon Whitworth, the codefendant and brother of this defendant, was made by him after he had testified at the trial of defendant, and had positively sworn that neither he nor the defendant had burglarized the Howe home, or taken the property. It was made after he had been tried and convicted, and was serving a term in the State Penitentiary for the identical ' burglary with which the defendant stands charged. In his testimony at the preliminary hearing of Rex Lock-hart, he stated that he and Lee Scott had used Rex Lock-hart’s truck prior to the burglarizing of the Howe home. No doubt the court came to the conclusion that after his conviction and sentence, he decided to “take the whole rap,” and attempted to free his brother. This practice has never been looked upon with favor by the courts. Wells v. State, 16 Okla. Cr. 461, 184 P. 465; Ryal v. State, 16 Okla. Cr. 266, 182 P. 253 and cases cited.

As has been stated, defendant did not attach an affidavit by Rex Lockhart to the motion for new trial, but attached an affidavit of a party as to a conversation had with him. While we do not question the statements made in this affidavit, the courts have often denied motions for new trials where the affidavits attached were made by others as to conversations had with the witnesses. Armstrong v. State, 61 Okla. Cr. 352, 68 P. 2d 114; Bowlegs v. State, 9 Okla. Cr. 69, 130 P. 824.

In the case of Wells v. State, supra, a very similar case in so far as the motion for new trial is concerned, it is said [16 Okla. Cr. 461, 184 P. 466]:

“The defendant filed a motion for a new trial upon the ground, among other grounds, of newly discovered evidence; the newly discovered evidence being contained in an affidavit made by said A. J. Seimen while in jail after his conviction, in which he fully refuted the evidence given by him on the trial of this case, and asserted that he álone, without the knowledge or assistance of the defendant, committed the larceny charged ivliile at the dance, completely exonerating the defendant from any complicity therein in any manner, and that he (affiant) had not communicated the facts stated in said affidavit to the defendant, or to any .one, until after the trial in this case had been had. The court announced that it did not believe the averments of the said affidavit, overruled the motion for a new trial, and the defendant excepted. . . .
“Seimen on the trial of the case having testified that he had no knowledge of, or connection with the commission of the larceny charged, certainly no evidential weight could be given to the said newly discovered evidence, the averments in his affidavit That he alone committed the crime charged, and did so without the knowledge or assistance of the defendant,’ and the court did not err in overruling the motion for a new trial.”

In the case of Armstrong v. State, supra [61 Okla. Cr. 352, 68 P. 2d 117], the court said:

“We do not think the court abused its discretion in overruling the motion for a new trial in this case. It will be noted that the defendant does not even attach the affidavit of the witness Ernest Tennyson to his motion. He makes the affidavit himself purporting to set out what Tennyson had told him. Prom the time he was arrested to the time of his trial he had been in jail with the witness and had used him as a witness in his defense at the trial. There is nothing to show that due diligence was used by the defendant to find out what the testimony of the witness Tennyson would be. It looks like this witness, after hearing of the verdict against the defendant and the number of years that had been given him, decided it would be best for him to enter his plea of guilty and make such terms as he could with the county attorney, i'he sentence which he received justifies this assumption. The court may have come to the conclusion that the witness Tennyson was seeking to take the blame after he had received his sentence and thereby secure relief for the defendant. ...
“We are of the opinion that the motion for a new trial wholly fails to show due diligence on the part of the defendant as contemplated by the statute of this state. See section 3120, O. S. 1931 (22 Okla. St. Ann. § 952); 16 C. J. pp. 1181, 1183, 1187, §§ 2710, 2713; Lawson v. State, 36 Okla. Cr. 349, 254 P. 110; Ball v. State, 47 Okla. Cr. 145, 286 P. 808; Harper v. State, 7 Okla. Cr. 581, 124 P. 1116; Johnson v. State, 5 Okla. Cr. 1, 112 P. 760; Perry et al. v. People, 38 Colo. 23, 87 P. 796; Hurst v. Territory, 16 Okla. 600, 86 P. 280.”

In the case of People v. Tallmadge, 114 Cal. 427, 46 P. 282, and which is quoted with approval in the case of Ryal v. State, supra [16 Okla. Cr. 266, 182 P. 259], it is said:

“Applications on the ground of newly discovered evidence are addressed to the discretion of the trial court, and its action will not be set aside except for an abuse of such discretion, and the presumption is that the discretion was properly exercised; and it has been repeatedly held by this court that such applications are to be regarded with disfavor. Hayne on New Trial and Appeal, par. 87, and cases there cited; People v. Sutton, 73 Cal. 243, 15 P. 86; People v. Freeman, 92 Cal. 359, 28 P. 261. It cannot be said that, as a matter of law, a new trial should be granted whenever an important witness against the defendant shall make an affidavit that he committed perjury in his testimony; if that were so, justice would be defeated in many grave cases.- Notwithstanding such an affidavit, the appellate court will rest largely upon the discretion of the judge who heard the trial, and will not disturb his ruling except in clear cases of abuse of discretion.”

It is true that no man should suffer for a crime he did not commit. But under the decisions in many of the cases' heretofore cited, this court cannot hold that the trial court abused its discretion in refusing to grant a new trial to this defendant. Nor can we say that the statements made by ■ Leon Whitworth in his affidavit, and at the preliminary hearing. of Bex Lockhart, after his conviction and while serving in the penitentiary, are true. It would be setting a dangerous precedent to permit a defendant to go upon the witness stand and commit perjury by testifying to his innocence, and that of his codefendant, and then when convicted make an affidavit admitting his perjury, especially in a case such as the instant one, where the codefendant is his own brother. He took the chance of having the jury render a verdict of not guilty, and when this failed, changed his story. No further punishment was meted out to him by reason of the change in his testimony. No doubt the trial court who heard all of the evidence came to the conclusion that it was only an attempt on his part to save his brother from going to the penitentiary. The record discloses that subsequent to his conviction in connection with this burglary charge, Leon Whitworth had entered a plea of guilty to stealing an automobile, and received a five-year sentence in that case.

We are of the opinion that.the trial court did not abuse its discretion in overruling the motion for new trial by reason of newly discovered evidence.

The judgment and sentence of the district court of Sequoyah county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.

On Rehearing.

Former opinion set aside and judgment below reversed and cause remanded.

BAREFOOT, P. J.

A petition for rehearing has been filed in this case, and the attention of the court has been called to a letter filed with the clerk of the court, written by the county attorney of Sequoyah county, who tried this case in the district court 'of that county. The writer of this opinion had not examined the letter when the opinion was prepared.

In this letter, the county attorney states:

“Lockhart told us that Oliver had nothing to do with, and didn’t even know about the commission of the crime and in substance told us that the crime was .committed by the persons and in the manner that Leon had testified at his, Lockhart’s, preliminary hearing, adding that his brother, Sam Lockhart, was there and helped some when they first started loading the furniture, but that he ran off when he saw the lights of a car coming in their direction, and that Lee Scott, who is now dead, also helped with the furniture, that they hauled it on his, Lockhart’s truck, south to Stigler, then to Okmulgee and on to Muskogee, where they sold it. We then talked with Sam Lockhart, who is now in the army and was here on leave at that time, and he told us the same things, that is, up to where he left them when they were loading the furniture.”

Since the motion for rehearing has been filed, -the county attorney who prosecuted this defendant has expressed to this court that from his personal examination of the facts, he is now convinced that this defendant did not commit the crime for which he was convicted, and had no part therein.

While this statement in no way binds the court, we are now convinced that there is too much doubt as to whether this defendant was actually present and participated in the commission of this crime, or that he even knew of its commission.

From the record it clearly appears that Rex Lock-hart should have been held for trial in the district court, by the justice of the peace.

The evidence that only two parties came with the truck and furniture to the. home of Bert Henry in Ok-mulgee on the morning of February 20, 1939, and that only two parties were present when the furniture was sold to Homer Dade in Muskogee, and only two persons were present at the time Dade overtook the truck, are circumstances which tend to corroborate the statements made by Leon Whitworth in his affidavit attached to the motion for new trial, and his evidence given at the preliminary hearing of Rex Lockhart.

The only positive testimony against the defendant is his identification by the witness Homer Dade. There now appear too many circumstances that he could have been mistaken in his identity of the defendant, and that the party with whom he dealt was Leon Whitworth, the brother of the defendant.

This court does not desire that anyone be imprisoned for a crime he did not commit. Our investigation of this case now convinces us that the judgment of the district court of Sequoyah county should be reversed and remanded, and the present county attorney of Sequoyah county should fully investigate the facts and take such action as he deems the facts justify.

The judgment of the district court of Sequoyah county is reversed and remanded.

. JONES, J., concurs. DOYLE. J., not participating.


author: BAREFOOT, P. J.

text:
    BERT LUTHER v. STATE.

      No. A-10388.
    May 2, 1945.
    (158 P. 2d 481.)

      Perry Porter, of Miami, for plaintiff in error.
    Bandell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Charles C. Chesnut, Co. Atty., of Miami, for defendant in error.
   BAREFOOT, P. J.

Defendant Bert Luther, was charged in the county court of Ottawa county with the crime of unlawful possession of intoxicating liquor, -to-wit:

“One 8-ounce bottle of whisky, two 8-ounce bottles of whisky with approximately 10 ounces in the two bottles, one 8-ounce bottle of whisky approximately half full, and one 16-ounce bottle of whisky.”

He was tried, convicted and sentenced to pay a fine of $500, and to serve 90 days in the county jail. From this sentence and judgment he has appealed.

As grounds for reversal defendant sets out ten assignments of error, and discusses them under three propositions. The first proposition is especially directed at the refusal of the trial court to sustain the motion to suppress the evidence obtained by reason of the search warrant issued.

The second proposition is:

“(a) Error of the court in assisting the prosecution of said defendant by questioning the various witnesses for the state, which acts on the part of the trial court were highly prejudicial to the rights of this defendant.
“(b) Error of the trial court in instructing the county attorney in the presence of the jury, to take the state’s witnesses. out of the courtroom and attempt to get said witnesses to identify the liquor in question.”

The third proposition is:

“That the punishment fixed is excessive under the evidence in said cause and on its face shows that the verdict was returned in a prejudicial and biased manner.”

On May 14, 1942, Al Maness, chief of police of the city of Picher, Ottawa county, Oklahoma, procured a search warrant after filing an affidavit therefor in the office of Hattie Weaver, justice of the peace. This search warrant was for the purpose of searching the “Schlitz Bar,” a place of public resort operated by the defendant, Bert Luther, at 323 South Main street, in the city of Picher, the place being minutely described in both the affidavit and search warrant.

It is contended that the search warrant was issued upon an affidavit based upon information and belief, and that it was not based upon facts personally known to the officer who signed the affidavit; it being contended that it falls within the rule announced by this court in the case of Yeargain v. State, 67 Okla. Cr. 262, 93 P. 2d 1104, 1105, appealed from Ottawa county.

The affidavit and search warrant are very lengthy and we do not consider it necessary to quote them. In defendant’s brief it is admitted that the wording in the affidavit in the instant case has been changed from that appearing in the Yeargain case. Counsel states:

“In other words, at the beginning of the search warrant in the Yeargain case (omitting the caption) reads as follows: ‘Boy Denman, of lawful age, being first duly sworn, on his oath, deposes and says: “That he has probable cause to believe and does believe that intoxicating liquors are being unlawfully kept, stored and concealed upon the following described premises, to wit’ and in the instant case the beginning of the search warrant, (omitting the caption) reads as follows: ‘Al Maness, of lawful age, being first duly sworn, on his oath, deposes and says: That intoxicating liquors are being unlawfully kept, and stored and concealed upon the following described premises, to wit:’ ”

It will thus be noted that the statement in the affidavit in the instant case is positive in its terms. That part of the affidavit which stated that it was upon information and belief has been eliminated and the positive statement of the maker of the affidavit, who was the chief of police of the city of Picher, is based upon a positive statement. Immediately following this positive statement six paragraphs are stated in the affidavit, as follows:

“1. That the said premises and buildings thereon is a place of public resort.
“2. That numerous persons frequent said place for the purpose of purchasing intoxicating liquor.
“3. That persons have recently been seen coming from said premises in an intoxicated and drunken condition.
“4. That divers persons who use intoxicating liquors to excess habitually frequent said place.
“5. That said place has a reputation in the community in which it is located as being a place where intoxicating liquors is sold.
“6. That said premises has a'reputation in the community in which it is located as being a place where intoxicating liquor in large quantities is unlawfully kept and stored for the purpose of being bartered, sold, given away and otherwise dispensed to those who frequent said place.”

Paragraph No. 7 following those above quoted is the same as in the Yeargain Case, and the statement is made, “that this affiant has been told by reliable persons” and we held that this statement had reference to the above-quoted sections. This statement was made because of the statement in the affidavit in the Yeargain Case, “that he has probable cause to believe and does believe,” which was before the six statements were made as above quoted.

This case comes within the rule announced in the case of Wagner v. State, 72 Okla. Cr. 393, 117 P. 2d 162, 168, where it is stated:

“If a public officer makes a sworn affidavit that a place which is particularly described and the name of the owner of the place of business or of the residence is a place of public resort and that intoxicating liquor is stored on said premises and that liquor is being sold on said premises in violation of law, and that people congregate at said described place for the purpose of drinking and consuming liquors or purchasing the same in violation of law, and that the premises have the reputation of being such a place as above outlined, and that the named party has the reputation in the community in which he resides as being a person who deals in the unlawful sale of intoxicating liquor, we cannot see why it would be error for the magistrate to issue the search warrant upon the filing of such positive affidavit by the officer. We fail to see how it can be argued that these statements are made upon the information and belief because in the first paragraph of the affidavit it is stated that the party making the same ‘has reason to believe and does believe.’ The very facts which he states in the subsequent paragraph are such that give him the right to so believe. If these statements are-untrue, he may be held accountable in the manner provided by law. In other words, a search warrant based upon a positive affidavit by one who knows the facts and by reason of his position and experience has a right to know the facts should not be set aside and held illegal upon a mere technicality and surmise that he does not know the facts which he states in the affidavit as true. This court has often held that where the statement made in the affidavit for search warrant is positive in its terms one will not be permitted in the trial of the case to contest the truth of its terms. . . .
“We are in perfect harmony with the law and statement that a search warrant based upon an affidavit or complaint made on information and belief and without stating facts showing probable cause is illegal, but each search warrant and the affidavit or complaint upon which it is based is to be judged upon’ its own merits and contents, and where the affidavit or complaint states positive facts and by a person who, by reason of his position or experience, has a right to know that those facts exist, the warrant should not be set aside under these conditions, upon the ground that the facts stated therein were made upon information and belief. In other words, each search warrant and each affidavit or complaint should be judged upon its own merits, and the court should pass upon the merits of the same either before the trial on a motion to suppress- the evidence obtained thereon, which is the best practice, or when the matter is properly raised during the trial of the case. ...”

It will be noted that the affidavit made here was by the chief of police of Picher, and the building to be searched was a public place in "that city. He had a right by reason of his position to have knowledge of the facts as alleged in his affidavit. We find no error in the court refusing to sustain the motion to suppress the evidence offered in this case.

The third and fourth assignments of error may be considered together.

To support the contention of defendant, it is pointed out that the court by asking many questions and instructing the county attorney as to the manner of procedure, that such action was prejudicial to the defendant.

We have carefully read the record, and it is unnecessary to quote fully the many instances in which the court questioned the witnesses and gave instructions as to the procedure to be followed by the county attorney. We have noted his instructions to the county attorney as to the manner and mode of identifying the liquor which was found at the time of the search of defendant’s premises. We are of the opinion that the attitude of the court was such as to cause the jury to inflict a more severe punishment in this case than it would otherwise, and to ' this extent was prejudicial.

From a reading of the record, there can be no question but that the defendant was engaged in selling liquor by the drink at his premises. Some of the liquor was found behind the “bar” in bottles that were partly empty, some in buckets near the bar, and some on the persons of parties who were in the place at the time of the search. From all the facts and circumstances the jury was justified in arriving at the conclusion that whisky was not only being sold by the drink, but by the bottle also. The defendant did not take the witness stand and it was therefore not shoAvn Ayhether he had been previously convicted of a violation of the prohibition law. Counsel in his brief states that he had not. We have often held that the trial court has the right to question witnesses, especially for the purpose of bringing out some material point for the consideration of the jury, but we have stated that it is not the best practice and that the court should be very careful in questioning witnesses. The court should so conduct the trial that the jury would be impressed with his absolute fairness to both sides, and not conclude that the court was interested on the side of either the state or the defendant.

In the recent case of Stacey v. State, 79 Okla. Cr. 417, 155 P. 2d 736, 737, we gave a very full statement with reference to the action of the court in the trial of cases and the asking of questions of witnesses. In the ninth and tenth paragraphs of the syllabus, we said:

“The trial court should be very careful to refrain from saying anything which might convey to the jury the impression that the court had its opinion as to the guilt or innocence of the defendant or as to the credibility of a witness.
“Where it is contended that trial court continually interrupted the examination of witness by counsel for defendant with statements which prejudiced the defendant, the entire record will be considered to determine whether the statements complained of were so grossly improper as to prevent the accused from having a fair trial.”

For the reasons above stated, we are of the opinion that the judgment and sentence should be reduced from a fine of $500 and 90 days in jail, to a fine of $250 and 45 days in jail.

As so modified, the judgment and sentence of the county court of Ottawa county is affirmed.

JONES, J., concurs. DOYLE, J., not participating.