text:
    BUD GLASS v. STATE.
    No. A-5807.
    Opinion Filed March 12, 1927.
    (253 Pac. 1037.)

      Phillips & Phillips, and J. B. O’Bryan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Marshall county, on the 6th day of June, 1925, Bud Glass did “transport, carry, and convey a quantity of whisky, contained in a glass bottle, from some point in Marshall county unknown, to the residence of the said Bud Glass, at the town of Aylesworth,” appellant was tried and convicted and in pursuance of the verdict was sentenced to imprisonment in the county jail for 90 days and to pay a fine of $150. To reverse the judgment he appeals.

The following brief statement of the facts will be sufficient to make clear the contentions made.

Appellant, a single man, lived with his mother and married brother, James Glass, in the northeastern part of the town of Aylesworth; this was “the residence of the said Bud Glass,” as recited in the information. Officers Ed. Long and W. B. Dickinson, the only witnesses for the state, were on Main street, in Aylesworth, when they saw appellant on horseback, riding towards his home; he was then about 200 yards from them; they got into their car and started towards his home; he arrived there ahead of the officers, dismounted in the rear of his house; he entered the back door, then came out with a small bottle in his hand and broke it on the wheel of a car parked about eight feet from the door; they each testified that judging from the odor the bottle contained whisky.

No proof was made or attempted to be made that appellant carried the whisky on his ride to his home.

Appellant testified in his own behalf that he saw the officers coming and knew if they got to the house and found some liquor that was there they would file charges against him; that he did not have any whisky on his person that day; that he had about half a pint of whisky in the house; that he left his horse and entered the back door, picked the bottle from the shelf, went out, and broke it on the rear wheel of a car that was parked near the door.

The court instructed the jury, in part, as follows:

“If you find from the evidence beyond a reasonable doubt that the defendant, Bud Glass, in the county of Marshall and state of Oklahoma, on or about the 6th day of June, 1925, conveyed or carried any whisky from some point within the house or residence where he was then living to some point out into the yard surrounding said house or residence, then such carrying or conveying of said whisky would be a transportation thereof, and the defendant would be guilty of transporting, and you should so say by your verdict and fix his punishment therefor as the punishment for such offense is herein stated to you.”
“Excepted to by defendant, because such instruction and the alleged proof upon which the same is based is contrary to the charging part of the information and at fatal variance therewith.”

The record shows that the defendant requested and the court refused to give an instruction based on the allegations of the information.

It will be observed that the information charges the defendant with the conveyance of a bottle of whisky from a place unknown to his residence, and the court so stated the charge in the first instruction given, and in that respect there was a fatal variance with the facts charged as constituting the offense and the facts stated in the instruction excepted to.

This prosecution was under that subdivision of the Enforcement Act (section 7002, Comp. St. 1921), which provides that it shall be unlawful—

“to ship or in any way convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized.”

In Wilder v. State, 34 Okla. Cr. 291, 246 Pac. 660, we said:

“The gist of the offense charged is the conveyance from one place to another ‘place.’ The word ‘place’ has a variable meaning. As used in the statutes it means region or locality.”

In Brown v. State, 18 Okla. Cr. 509, 196 P. 967, it was held:

“Where an information for conveying intoxicating liquor from one place within the state to another place therein, alleges a removal from one particular place to another particular place, it is essential to sustain a conviction that the state prove the conveyance as alleged.”

On the undisputed facts in this case we are of opinion that the evidence wholly fails to show a conveyance or transportation of the whisky in question as alleged in the information.

No timely objection having been made to the competency of the evidence obtained by an unlawful invasion of the defendant’s home without a search warrant or a warrant for his arrest, the question is not presented by the record.

For the reasons stated the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    JAMES GUEST v. STATE.
    No. A-5702.
    Opinion Filed March 14, 1927.
    (253 Pac. 1031.)
    Mounts & Chamberlain and W. H. Hussey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, James Guest, was tried in the county court of Tillman county upon an information charging that he did have the possession of one-half gallon of whisky with the unlawful intent of selling the same. On the trial he was found guilty as charged, and his punishment fixed at a fine of $100 and imprisonment in the county jail for 60 days. From the judgment rendered in pursuance of the verdict he appeals.

The refusal of the trial court to sustain appellant’s motion, made at the close of the state’s case, to advise the jury to return a verdict of not guilty on the ground that the evidence was insufficient to support the verdict thereon, is assigned as error.

Ula Trull testified:

“I lived a little ways from Tipton. I knew the defendant, James Guest; he came to my house in a car, a Maxwell, I believe; he got out and carried a jar of whisky and set it down by a post in the orchard. I started to get it, and the little four year old boy got it; we carried it into the yard, and Mr. Trull came along and took it away from us.”

P. Trull testified:

“I had a conversation with the defendant, Mr. Guest, down in town and asked him if he had some whisky, and he told me he had a half gallon and wanted to get ‘shut’ of it, I told him I would like to have it, I saw it, but did not see him leave it; when I went home it was there.”

The defendant did not testify.-

We see no reason to doubt that this conviction was warranted by the evidence.

Several assignments relate to rulings of the court in refusing requested instructions.

We deem it sufficient to say that, taken as a whole, the instructions given fairly presented the entire law of the case.

Finding the evidence sufficient, and no prejudicial error of law occurring at the trial, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WM. F. COOK v. STATE.
    No. A-5892.
    Opinion Filed March 14, 1927.
    (253 Pac. 1029.)

      Chester H. Lowry, Brown Moore, and R. J. Shive, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charged that Wm. F. Cook, on the 16th day of May, 1925, did sell to John Wheat, for the sum of $2, one pint of corn whisky. The trial resulted in a verdict of guilty as charged. A motion for new trial was duly filed and denied, whereupon judgment was pronounced and he was sentenced to be confined in the county jail for 60 days and to pay a fine of $250.

In support of the contention of counsel for appellant that the judgment should be reversed, a number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is misconduct of the prosecuting attorney.

The state relied for this conviction upon the testimony of the complaining witness, John Wheat, who testified:

“I bought a pint of whisky from the defendant and paid him $2. I told him I wanted a little roasting ear wine; he said he didn’t have any. I said I would like to get some. He went away and got a bottle.”

Witness identified the bottle and said it contained corn whisky; that defendant told him he got the whisky from another person.

On cross-examination, he testified that he had been a policeman; that he was now working for Payne county, out of Mr. Suman's office; that he expects to get paid for this case; that Mr. Suman said he would get paid; that after he got this whisky he. kept it in his possession from the 16th of May until the 6th of June, when he swore to the complaint in this case; that he had difficulty in making the purchase, went to the defendant’s place two different times, defendant was not there the first time; that he had been a detective quite a while, on the whisky business about a year in western Oklahoma.

For the defense, T. J. Hoyt, former sheriff for four years of Payne county, John Brown, Peter Harris, M. E. Fletcher, M. J. Bradley, and Gerd Flesner, business men of the city of Stillwater, each testified that they knew, the defendant's reputation in that community for being a peaceable, law-abiding citizen, and that reputation was good.

As a witness in his own behalf the defendant, a colored man, testified that he had lived in Stillwater eight or nine years and was never before arrested; that he did not sell the complaining witness any whisky on the date alleged, or at any other time; that he never came to his home at any time.

His cross-examination, over the defendant’s objections, was as follows:

“Q. Bill, while John Wheat was down there, at the time you sold him this liquor, you sold another quart to three boys, for $4. A. No, sir.
“Q. You sold John Wheat a pint, and three boys a quart, you got $2 for this, and $4 for that?
“The Court: Objection overruled. As to the time and place, make him tell whom he sold it to. Exception allowed.
“Q. Up until you sold that liquor you were not doing anything else but selling liquor? A. I didn’t sell any.
“Q. Automobiles were stopping there at all times of the night, and you were selling liquor to the people that were coming there. A. Not at my place.
“Q. Where were you selling the liquor? A. I wasn’t selling any.”

Carrie Cook, wife of the defendant, testified that the witness, John Wheat, never came to her home; that her husband did not deal in liquor.

One of the grounds of the motion for new trial is that the defendant did not have a fair and impartial trial on account of the misconduct of the county attorney in cross-examining defendant, and on account of misconduct of the county attorney in his argument to the jury, wherein he stated:

“If you stand for the enforcement of the liquor law, you will go out and convict the defendant; but if you don’t stand for the enforcement of the liquor law, you will go out and turn him loose.”

And further stated:

“Gentlemen of the jury, there is always some lawyer that is ready to come into court and frame witnesses to testify as to the good reputation of a bootlegger like this, but if you let them get by with it, it will destroy the jury system of this country and our. country will go to ruin.”

Which statements were improper and prejudicial to defendant and tended only to arouse the passion and prejudice of said jury.

Counsel for defendant, so far as the record discloses, did not object to the foregoing statements of the county attorney at the time they were made, and they are only shown by the motion for a new trial.

It is the well-established practice in this state, that where error is assigned on the ground of alleged misconduct of the county attorney in his argument to the jury, the attention of the court should be called to the language used by proper objection, and a ruling had thereon by the court, and exception thereto reserved, and the question will then be reviewed; or if the court settles and signs a bill of exceptions, showing the alleged misconduct, the question will be reviewed; but where the objection made and exception taken is not shown in the record or by bill of exceptions settled and signed, the question is not properly presented for review. Reed v. State, 14 Okla. Cr. 651, 174 P. 800; Collins v. State, 15 Okla. Cr. 96, 175 P. 124; Browder v. State, 16 Okla. Cr. 43, 180 P. 571.

It is an abuse of judicial discretion to allow questions to a witness which are manifestly calculated to create prejudice in the minds of the jury against the witness, and, if he be the defendant, influence them to find against him because of such prejudice.

In the case of Jelts v. State, 7 Okla. Cr. 734, 123 P. 1130, it is said:

“This court has always been exceedingly liberal with the prosecuting attorneys of this state, and endeavors always to uphold every proper conviction brought here on appeal. But a prosecuting attorney should not permit his high office to be prostituted in the interest of malice or oppression. He should not be guilty of indulging in the character of examination disclosed by this record. It does not make any difference how guilty a man is, he ought to be tried in a fair and impartial manner, and according to law. Prosecuting attorneys are not charged with the duty of securing convictions by improper methods. They should see that substantial justice is meted out in the manner provided by law, and no conviction should be sought or demanded unless it can be had by compliance with the safeguards and rules established to prevent oppression.”

In Hager v. State, 10 Okla. Cr. 9, 133 P. 263, it is said:

“It is true that great latitude should be allowed attorneys in cross-examining witnesses, but their questions should not contain insulting insinuations and intimations that a defendant is guilty of some other crime.”

A prosecuting attorney, in his zeal to enforce the law, must not forget that he also occupies a semi-judicial position, and that his duty requires him to resort to no questionable and improper means to secure a conviction. Trial courts should confine the cross-examination of witnesses to legitimate subjects of inquiry, and should not permit a witness to be browbeaten or asked insulting questions.

Our examination of the evidence leaves grave doubt in our mind as to deféndant’s guilt. The only evidence against defendant was the uncorroborated testimony of an informer, who styles himself a private detective; and the questions quoted, and others of like kind, must have been prejudicial to defendant. Where a defendant in a criminal case offers himself as a witness on his own behalf, he is subject to the same rules of cross-examination as other witnesses, and it is the duty of the court to keep the cross-examination within the law.

There are other errors in the record which need not be noticed. For the reasons stated, the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JIM GORDON v. STATE.
    No. A-5805.
    Opinion Filed March 14, 1927.
    (253 Pac. 1036.)

      J. G. Ralls, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Atoka county, on the 25th day of March, 1925, Jim Gordon did “have in his possession certain intoxicating liquor, to wit, 2% gallons of Choctaw beer,” with the unlawful intent to sell the same, he was convicted, the jury leaving to the court the punishment to be assessed. In due course a motion for new trial was interposed in his behalf and denied, whereupon judgment was pronounced and he was sentenced to 60 days in jail and to pay a fine of $50.

Appellant’s chief contention is that the verdict is not sustained by the evidence.

Tom Kilmer, city marshal of Atoka, testified that he found a drunken Indian, Adams Lawrence, in the south part of town and asked him where he got his drink, and over appellant’s objections answered, “At Jim Gordon’s;”, that he came back and found Jim Gordon in the bed of the creek; that Tom Pemberton was with him; that neither one of them had a search warrant; that he found the Choc beer 40 or 50 feet from Jim Gordon, and something like 100 yards from Jim Gordon’s house. Over the defendant’s objections he testified that the reputation of the place about the house as being a place where intoxicating liquors were being sold was bad.

On cross-examination he stated that the beer was not in the same creek that the defendant was lying in, that it was in a little branch, and to get from where he found the defendant to where the beer was you had to cross and go under a fence; that the beer was not on the premises of the defendant; that there were five houses around there close together, three of the houses occupied by colored people.

Tom Pemberton testified that they found the defend'ant in a ravine, about 100 yards from his house, and they found the Choctaw beer about 50 feet away from him; that the reputation of the place as being a place where intoxicating liquors were sold was bad; that he never saw the defendant in possession of any of the beer; that the defendant stated that the beer was not his.

O. P. Ray, Jr., sheriff, testified that he was acquáinted with the reputation of the place where the defendant lived as being a place where intoxicating liquors were sold, and that reputation was bad, but that there was one other place there that had a bad reputation.

At the close of the evidence for the state, the defendant moved the court to direct the jury to return a verdict of not guilty, which was overruled and exception saved.

As a witness in his own behalf the defendant testified that he had been up all the previous night, at the K. P. Hall; that there is a baby at the house; that every time he got to sleep she would jump on him and wake him up, so he went down to the creek bed and laid down; that he did not have any beer that day; that he saw the beer that was found, and it was not his beer; that he had never seen the beer before; that he did not see Lawrence, the drunken Indian referred to by the witness Kilmer, that day; that he did not own the place where the beer was found, and that it was not on his premises.

The insufficiency of the evidence to support the verdict is apparent. There is no evidence tending to prove possession by the defendant of the Choctaw beer in question, and the evidence is wholly insufficient to show that the same was intoxicating liquor or liquid containing more than one-half of 1 per cent, of alcohol, measured by volume. This conclusion renders it unnecessary to consider the other questions in the case.

Because there was no competent evidence tending to show that the offense charged had been committed, the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    RUSSELL BROWN v. STATE.
    No. A-5696.
    Opinion Filed March 18, 1927.
    (254 Pac. 113.)

      See, also, 27 Okla. Cr. 206, 226 P. 1118.
    T. H. Davidson and Claude Garrett, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Russell Brown, was tried in the court below on an information for the murder of Monroe Brown. The jury by their verdict found him guilty of manslaughter in the first degree, and assessed his punishment at confinement in the penitentiary for a term of 25 years. He has appealed from the judgment rendered upon such conviction.

The following brief statement of the facts and the evidence will be sufficient to make clear the contentions made:

The killing occurred at a dance near Boynton, December 11, 1920. The deceased, Monroe Brown, at the time he was shot, was leaving the dance in an automobile, belonging to, and driven by, Napoleon Lockridge, who testified:

“I have known Russell Brown about ten years, he is generally known by the name of ‘Rabbit’ Brown. I saw him at the dance at Spi Hawkins’ place. When leaving there, as I started the car, Monroe Brown was sitting by my side. As the crowd came out of the house Rábbit Brown hollered, ‘Stop.’ a couple of times. Then three or four shots were fired. I saw the flash of the first shot. It was fired by Rabbit Brown, and Monroe Brown fell out of the car, and was lying under the fender. Rabbit Brown came up. He had a gun in his hand, a .45, and he emptied the cartridges out of the pistol.”

Cecil McCauley testified:

“I was at the dance at Spi Hawkins Saturday night. I saw Napoleon Lockridge when he started to leave the place that night in a touring car. I was standing off 8 or 10 feet from the car. I heard the shooting, and saw Monroe Brown crawling out from under the car like. He got up and said to Bussell Brown: ‘Babbit, you shot me,’ and Babbit said, ‘No, boy, I haven’t shot you.’ They commenced looking for the place he was shot, and Babbit said, ‘Boy, if I haven’t shot you, I will.’ Babbit took the empty cartridges out of his pistol, and threw them on the ground.”

Dr. O. H. Penny testified that he treated Monroe Brown after he was shot, and found that the bullet entered the shoulder and ranged down into the plueral cavity; that it was about a month from the time he was shot until the day he died, that the gunshot wound was the primary cause of his death, and tromatic pneumonia was the secondary cause.

Bert C. Hughes, deputy sheriff, testified that in June, 1923, he apprehended the defendant in Seminole county.

John Benton, deputy sheriff, testified that he went with L. A. Epperson, justice of the peace, now deceased, to the home of Monroe Brown the afternoon before he died the next day, and Monroe Brown said he was about to die, and that Babbit Brown shot him.

As a witness in his own behalf appellant testified:

“Babbit Brown is my nickname. I went to that dance at Spi Hawkins. I heard several shots out in the yard, but I did not shoot any that night while the party was going on. After the party broke up I walked out of the house and fired three shots in the ground. I did not shoot at or shoot Monroe Brown that night. I saw the crowd gather at the car. I walked up and pulled the cartridges out of my gun to show them the kind of a gun I was shooting. Monroe Brown said I had shot him, and I said, ‘No, I did not.’ I did not change my name when I went to Seminole county. I have been in jail now nearly 18 months.”

On cross-examination he stated that he had served two terms in the penitentiary at McAlester, each for assault with intent to kill.'

The defendant, the man he killed, and all of the witnesses who testified, except the two officers, were negroes..

It is contended that the court erred in overruling the defendant’s motion to quash the information. The record shows that upon arraignment the defendant filed a motion to quash the information for reason in substance as follows: That said defendant never had a legal preliminary examination before a legal magistrate, nor did he waive a preliminary examination herein; that the justice of the peace before whom said defendant had a preliminary examination was without jurisdiction to act, and his purported order holding said defendant to answer to this court was and is illegal and void, and insufficient to confer jurisdiction upon this court.

The motion was not verified. It does not allege that the defendant is acting in good faith, and no proof 'was offered in support thereof. On the day it was filed the motion was overruled. The question argued is not presented by the record. The presumption is that a preliminary examination was duly had. It follows that the motion to quash was properly overruled.

It may be well for us to say here that it appears from the record that, after judgment was rendered, his counsel filed a motion to discharge the defendant on the same grounds set forth in the motion to quash and the additional ground that the court was without jurisdiction to pronounce judgment upon the verdict, for the reason that said verdict was for the crime of manslaughter in the first degree, and the prosecution herein was not commenced for more than three years after said crime was committed.

To sustain the motion the defendant introduced transcripts of two committing magistrates, showing that said defendant in fact had two preliminary examinations, the first one before the judge of the municipal court of the city of Muskogee, and the second before a justice of the peace of Porter township, Muskogee county.

The question could not be raised in that manner or at that stage of the proceedings, however. In the case of Milam v. State, 24 Okla. Cr. 247, 218 P. 170, this court held that the municipal court of the city of Muskogee had jurisdiction to hold preliminary examination in felony cases.

The act creating the municipal court of the city of Muskogee did not disqualify the regularly elected and qualified justices of the peace of said county of their jurisdiction to sit as examining magistrates in felony cases.

The record shows that this action was commenced by the filing of a preliminary complaint before the judge of the municipal court of the city of Muskogee and the issuance of a warrant thereon in good faith, and this was done on the 20th day of June, 1923, and within three years after the death of deceased from a gunshot wound in January, 1921.

It follows from what has been said that there is no merit in the contention that this defendant was never accorded a preliminary examination. Assuming, but not deciding, that the three-year limitation applies in this case, there is no merit in the contention that the prosecution was not commenced within the three-year period. State v. Fulkerson, 16 Okla. Cr. 250, 182 P. 725; Davenport v. State, 20 Okla. Cr. 253, 202 P. 18.

A number of exceptions were taken to the rulings of the court in giving and refusing instructions. After a careful examination, we reach the conclusion that, taken as a whole, the law of the case is fully and fairly presented in the instructions given.

We see no reason to doubt that this conviction was justified by the evidence, and that the verdict was as favorable to the defendant as the law and the testimony warranted.

We have examined the entire record with care, and, finding no error prejudicial to the defendant in it, the judgment of the lower court is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CLINT WELCH v. STATE.
    No. A-5694.
    Opinion Filed March, 18, 1927.
    (254 Pac. 503.)

      Thos. J. Huff, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Appellant was convicted on a charge that he did sell two pints of corn whisky to one C. O. Ruth, and, in pursuance of the verdict of the jury, was sentenced to imprisonment in jail for 90 days, and to pay a fine of $375. To reverse the judgment he appeals.

On April 21, 1925, the case was called for trial. A motion for continuance was filed.

In his affidavit for continuance the defendant states that Harry Hays and the clerk of the Tulsa Rooming House at Healdton, if present, would testify that affiant was in the town of Healdton on the 4th day and night of April, 1925; that he caused a subpoena to issue for Harry Hays, which was duly served, as shown by the return thereon; that he is at this time sick in bed at his home near Temple, and that affiant will furnish this court a doctor’s certificate of his said illness, if given an opportunity; that said evidence cannot be furnished by other witnesses; that his application is not made for delay, but that substantial justice be done; that affiant hired Hon. Hays Dillard to represent him in this case, and expected him to take care of the subpoenas for witnesses, but his attorney’s wife is ill, and for that reason he is not present to-day.

No counter affidavit was filed, and no denial was made of the truth of the facts as set forth in the affidavit. The motion was promptly overruled. The granting or refusing of applications for continuance rests largely in the discretion of the trial court, and the doctrine established in this state is that only for an abuse of such discretion will a reversal be had. However, on the undisputed facts we are inclined to think that the court abused its discretion in refusing the continuance asked for.

A brief statement of the facts is necessary to a proper understanding of the next assignment.

C. O. Ruth testified:

“I went to the defendant’s home at 8 o’clock at night on the 4th of April, called him out, and bought a quart of whisky from him. It was in two pint bottles. I paid him $5 for it.”

On cross-examination he stated that he had been helping the officers in this work for some time; that with Mr. Cook the plan was arranged to get the defendant.

Jack Stapp testified that he went with Ruth to get the whisky, and they got a quart from this defendant.

On cross-examination he stated:

“When we got there Clint Welch came out of the house. We told him we wanted some whisky. He first said that he did not have any, but we insisted, and he said he had a quart, and would split with us. We bought it, and came back to the road. Mr. Cook was there, and took the whisky from us.”

S. E. Cook, undersheriff, testified that he arrested C.O. Ruth and Jack Stapp on the road, and took two pints of whisky from Mr. Ruth.

On cross-examination he stated that he arrested the defendant at his home a mile east of Temple, and searched the place at that time, but did not find anything; that he arranged that evening for the boys to go that night and buy this whisky.

The defendant testified in his own behalf that he left his home Saturday afternoon at 3 o’clock April 4, 1926, in a car, and drove to Helton; that Harry Hays was with him; that he did not return to his home until Saturday evening; that he did not sell any whisky to C. O. Ruth or Jack Stapp.

The next error assigned is the action of the court in overruling the defendant’s challenge to the special venire of jurors summoned and returned for jury service by S. E. Cook, .undersheriff, who was then and there a material witness for the state, and whose name as such witness was indorsed on the information. The objection was overruled and exception allowed.

It appears from the record that the regular panel drawn from the jury box was exhausted before the regular number of jurors had qualified on their voir dire, whereupon the court issued an order directed to S. E. Cook, under sheriff, to summon additional jurors, from which four jurors were selected.

A person accused of crime has, by the Constitution and laws of Oklahoma, a right to a trial by an impartial jury.

Our Criminal Code provides:

“When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground to challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.” Sec. 2665, C. S. 1921.

In Lyde v. State, 21 Okla. Cr. 426, 209 P. 226, it is said:

“This statute is well calculated to guard against hand-picked juries by officers who might be inclined to select individuals whose inclinations and prejudices would cause them to favor a conviction. This court has recently held, in the case of Liddell v. State (18 Okla. Cr. 87), 193 P. 52, 16 A. L. R. 405, in a well written opinion by Judge Matson, that it is essential to the fair and impartial administration of justice that an open or special venire of jurors should be summoned by an officer who is not disqualified by reason of interest, bias, or prejudice, and that where the sheriff who serves the open or special venire of jurors is a material witness for the state, and a challenge to the panel of such open venire is interposed, it is prejudicial and reversible error for the trial court to overrule such challenge, citing Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689. This principle has also been stated and upheld in Shepherd v. State, 35 Okla. Cr. 405, 192 P. 235; Hisaw v. State, 13 Okla. Cr. 484, 165 P. 636; Harjo v. United States, 1 Okla. Cr. 590, 98 P. 1021, 20 L. R. A. (N. S.) 1013.”

See, also, Roof v. State, 34 Okla. Cr. 145, 245 P. 666.

On the authority of this decision and cases cited, unquestionably it was prejudicial error to overrule the defendant’s challenge to the special venire of jurors served by the undersheriff, and for this reason the judgment must be, and is, reversed, and a new trial awarded.

EDWARDS and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    WILLIE AUSTIN v. STATE.
    No. A-6505.
    Opinion Filed March 18, 1927.
    (253 Pac. 1117.)
    Howe & Howe, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

In this case the information charged that in Choctaw county, January 8, 1927, “Willie Austin did then and there sell and furnish one soda pop bottle full of whisky to one Harry Morris.” His punishment was fixed at a fine of $200 and 60 days' imprisonment in jail. From the judgment entered in pursuance of the verdict on January 20, 1927, an appeal was perfected by filing in this court on February 18, 1927, a petition in error with case-made. The trial judge, the county attorney, the Attorney General, and counsel for the defendant have filed a stipulation and request that the cause be advanced and submitted, and asking this court to modify the judgment and sentence to a fine of $100 and 30 days in jail, and counsel for the defendant agree that, if such modification is made, the fine will be paid. Whereupon the cause was submitted upon the record and stipulation of counsel. Having the power to modify the judgment, we have examined the whole record, and find there is sufficient evidence to sustain a verdict of guilty, but we do not think it called for the severe penalty assessed by the -jury, and, taking into consideration the reasons set forth in the stipulation for the modification of the judgment, we are of opinion that, in furtherance of justice, the sentence imposed should be modified, in accordance with the stipulation, to imprisonment in the county jail for 30 days and a fine of $100. As so modified, the judgment is affirmed.


author: DO'YLE, P. J.

text:
    J. W. RODEN v. STATE.
    No. A-5706.
    Opinion Filed March 18, 1927.
    (253 Pac. 1033.)
    Wm. A. Tidwell and McLendon & McLendon, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DO'YLE, P. J.

This is an appeal from a judgment of conviction, rendered by the verdict of a jury, finding the defendant, J. W. Roden, guilty on a charge that he did have in his possession about twelve gallons of whisky, with the unlawful intent to violate the prohibitory laws, and fixing his punishment at imprisonment in the county jail for 90 days and a fine of $500.

It is contended in this court that the verdict is not sustained by sufficient evidence, and that the punishment imposed is excessive.

The evidence on the part of the state is to the effect that S. R. Bryant, deputy sheriff, together with three other men, visited the home of the defendant near Red Lake, and with the defendant’s permission searched the premises, finding a ten-gallon keg of whisky and six or seven grape juice bottles containing whisky in the smokehouse.

The defendant did not testify.

It is obvious that the case was one for the consideration of the jury, and we are unable after a careful examination to find anything in the record to create a doubt as to the correctness of the result, or to warrant us in interfering with the verdict. It appearing that the defendant had a fair and impartial trial, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WISE STIMPSON v. STATE.
    No. A-5701.
    Opinion Filed March 18, 1927.
    (253 Pac. 1032.)
    Mounts & Chamberlain and W. H. Hussey, for plaintiff in error.
    Edwin Dabney, Atty.- Gen., for the State.
   DOYLE, P. J.

The appellant was tried and convicted on an information charging that in Tillman county, February 14, 1925, he did unlawfully have in his possession “three quarts of whisky, with the unlawful intention then and there on the part of him, the said Wise Stimpson, of conveying and transporting said three quarts of whisky from a point four miles west and two miles south of Chattanooga to a point one mile north of Chattanooga;” the jury leaving the punishment to the court.

In due course a motion for new trial was interposed in his behalf and denied, whereupon judgment was pronounced, and he was sentenced to pay a fine of $50 and be confined in the jail for 30 days. From the judgment he appeals.

The undisputed facts are that appellant lives just north of Chattanooga. He arranged to buy some whisky from Tom Barnes, and on the evening of the date alleged drove from his home into Chattanooga. There he picked up Ray Price and Jack Hargess; then drove four miles west and two miles south, where by previous arrangement he was to meet Barnes. There he talked with Barnes, and Barnes went to a straw stack, and came back with a half-gallon fruit jar and a quart bottle, which, according to Barnes’ testimony, contained corn whisky. Appellant gave Barnes a check for $9, which, the proof shows, was later cashed without protest from appellant.

As a witness in his own -behalf, appellant testified that he arranged to buy the whisky from Tom Barnes, and that night drove to his father’s home. There Barnes delivered a fruit jar and bottle which he said contained three quarts of corn whisky, and for which he gave Barnes a check for $9. Barnes then went to the house, and, before starting back, appellant proposed they sample the whisky. Then he took a drink, and said to the others: “It don't taste like whisky.” That after Price and Hargess sampled it he poured out the contents, and put the containers on the back seat of his car.

Ray Price testified that it did not taste or smell like whisky; that it smelled like carbon.

Jack Hargess testified that he took a drink, and did not know what it was, but that it was not whisky.

A demurrer to the information was filed and overruled, and the first assignment of error is based upon this ruling. The information charges possession of intoxicating liquors, with the unlawful intention of conveying the same. That is sufficient, and the demurrer thereto was properly overruled.

The overruling of the motion for a directed verdict of acquittal, when the state rested, is assigned as error. In support of this assignment it is urged that the only witness for the state, Tom Barnes, was an accomplice, and that his uncorroborated testimony is insufficient to support a conviction. We are unable to agree with this contention of appellant. The motion for a directed verdict was properly overruled.

A number of exceptions are reserved to rulings of the court in giving and refusing instructions. Taken as a whole, the instructions given fairly cover the law applicable to the case.

It is obvious that the case was one for the consideration of the jury, and we are unable, after careful examination, to find anything in the record sufficient to warrant us in interfering with the verdict.

The judgment is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    BOB MARUTZKY v. STATE.
    No. A-5747.
    Opinion Filed March 26, 1927.
    (254 Pac. 114.)
    John B. Ogden, for plaintiff in error.
    The Attorney Gene-ral, for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the district court of Carter county on a charge that he did have in his possession four barrels of mash, wort, and wash, and a certain still, used for the purpose of manufacturing intoxicating liquors, and alleging that the offense charged was a second and subsequent violation of the prohibitory law, in that defendant had been convicted in the county court of Carter county on an information charging the unlawful possession of intoxicating liquors. The jury fixed the punishment at imprisonment in the county jail for 60 days and a fine of $50. A motion for new trial was duly filed and denied. From the judgment rendered in pursuance of the verdict he appeals.

No brief has been filed, and we are not advised what the plaintiff in error relies upon for a reversal.

An examination of the record convinces us that the plaintiff in error was granted a fair trial, that the evidence is sufficient to sustain the verdict and judgment.

In cases of this kind we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. We have examined the information, the instructions of the court, and we have discovered no error which will warrant a reversal. The judgment of the district court of Carter county is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    LEONA MILLETT v. STATE.
    No. A-5707.
    Opinion Filed March 18, 1927.
    (253 Pac. 1039.)

      Hill & Banta, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DO'YLE, P. J.

Appellant, Leona Millett, was convicted on a charge that she did have in her possession one-half gallon of corn whisky, with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $300, and to imprisonment for 90 days in jail. To reverse the judgment she appeals.

A number of errors are assigned and argued, but one of which we deem necessary to notice, and that is based on the rulings of the court admitting incompetent and prejudicial evidence.

The state relied for this conviction upon the testimony of J. R. Robertson, under-sheriff, who testified:

“I have known the defendant, Leona Millett, a couple of years. I had a commitment for her, and on the night of January 28th I went to her mother’s place. When I came in the door Leona ran into the kitchen, and squatted down. I went on through and in where she was. I said, ‘Get up; I have a commitment for you.’ When she got up I found that she was covering a half gallon of whisky with her dress. She said it was her whisky.”

Over appellant’s objections, this witness was then permitted to testify that he knew the reputation of the places where she has lived in the last two years for being places where intoxicating liquors are sold, and that reputation was bad.

He further testified as follows:

“I will ask you if she has ever been charged in the federal court, if you know, for unlawful possession of whisky.
“Mr, Banta: Objects as being incompetent.
“The Court: Overruled. Exception. A. I don’t know whether she was ever charged in the federal court for unlawful possession of whisky, but she has been charged with being drunk.
“Mr. Banta: Moves that the answer be stricken, and the jury instructed not to consider it, the same being incompetent.
“The Court: Overruled. Exception.
“Q. Do you know whether she has paid a fine for unlawful possession of whisky? A. I don’t know.
“Q. During all the time to which you refer, you say that James Millett’s home had a reputation of being a place where intoxicating liquor was bought and sold? Was Leona Millett the wife of James Millett? A. Yes, sir.
“Mr. Banta: We move the answer be stricken.
“The Court: Overruled.”

Appellant testified in her own behalf that Mr. Robertson came into her mother’s home and picked up a jar, opened it, and said, “I believe it is whisky.” He asked her mother how it came there. She said she did not know; that he stood around a little while, and said, “I have got to take somebody,” and witness said, “Take me then.” That just before Mr. Robertson came in a man came to the door and asked if this is where Sam Jefferson lived, and witness said “Yes, but he was not at home,” and the man asked if he might leave the fruit jar there for Sam Jefferson.

The evidence tending to show that appellant had at different times lived in disreputable places was clearly inadmissible. The rule is without exception that evidence tending to prove disgraceful, immoral, or criminal conduct of one accused of crime, which is in no way connected with the offense charged, is inadmissible upon the issue of guilt, because the jury have no right to draw any inference from such general bad character or specific misconduct that the accused committed the offense charged, and any attempt of the prosecuting attorney by suggestive questions to convey such facts to the jury constitutes misconduct.

It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character. Kirk v. State, 11 Okla. Cr. 203, 145 P. 307.

We do not deem it necessary to consider the other assignments of error. On the record before us we are convinced that appellant did not have a fair and impartial trial, and, for the reasons stated, the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte HENRY MARTIN.
    No. A-6529.
    Opinion Filed March 22, 1927.
    (254 Pac. 1118.)
    Bowling & Farmer, Moman Pruiett, and Ben F. Williams, for petitioner.
    Smith C. Matson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner, Henry Martin, in the custody of the sheriff of Garvin county, filed in this court March 17, 1927, a petition for writ of habeas corpus to be admitted to bail. A rule to show cause entered and issued, returnable March 24, 1926. On March 21 counsel of record for petitioner filed in this court a motion to dismiss the cause without prejudice. It is therefore adjudged and ordered that said cause be dismissed.


author: EDWARDS, J.

text:
    JOSIE McDANIELS v. STATE.
    No. A-5687.
    Opinion Filed Feb. 26, 1927.
    Rehearing Denied March 26, 1927.
    (253 Pac. 1041.)
    Freeman E. Miller, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and C. C. Suman, Co. Atty., of Stillwater, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county on a charge of having the unlawful possession of narcotics, and was sentenced to serve a term of one year in the state penitentiary.

The record discloses the following state of facts: At the time charged defendant was suspected of haying possession of narcotics. Before daylight, on the morning of the day the offense is charged to have been committed, certain officers were watching the premises of defendant, and observed Elmer Boudenier, a drug addict, drive near the rear of defendant’s house, get out of the car, and saw defendant meet him and hand him something, and receive something in exchange, and then saw defendant conceal something in the ground. They procured a search warrant for the person of defendant, and returned to the premises and at the place where they had seen defendant apparently conceal something, discovered buried in the ground a jar containing 25 cubes of morphine hydrochloride, weighing 80 grains.

Defendant denied any knowledge or connection with the morphine found, but testified that formerly, upon a plea of guilty, she had been convicted of a violation of the narcotic law. Boudenier denied that he was at the premises or had any transaction with defendant.

The defendant first contends that the information is insufficient, particularly in that it does not negative the exceptions in the statute under which the possession of narcotic drugs is legal. The act under which the prosecution is brought (section 8887, Comp. St. 1921), however, contains the proviso:

“* * * Provided, further, that it shall not be necessary to negative any of the aforesaid exceptions in any complaint, information, or indictment, * * *, and the burden of proof of any such exemption or exception shall be upon the defendant. * * *”

The question was determined adversely to the contention of defendant in the case of Harrison v. State, 12 Okla. Cr. 398, 157 P. 707, and in the case of Stout v. State, 26 Okla. Cr. 390, 224 P. 375, the latter being under the narcotic statute, and it is there held:

“Where a penal statute expressly provides that certain exceptions to or exemptions from its operation shall be matters of defense, such exceptions need not be negatived in the information.”

It is next argued that the affidavit for a search warrant and the search warrant based thereon are invalid, and the search made thereunder was unreasonable, and in violation of the constitutional rights of defendant. Before entering upon the trial, defendant filed a motion to suppress the evidence. In the course of the trial, however, when the jar containing the narcotics was offered in evidence, defendant’s counsel conceded its admissibility. The following appears:

“By Mr. Suman: We now offer in evidence the jar and its contents as Exhibit A.
“By Mr. Miller: Object to the jar as labeled as being introduced. The jar and the morning (the word ‘morning’ probably should be ‘morphine’) I think are admissible, but—
“By the Court: Well, let the jury consider the jar and the contents, but do not consider the label. Anything on the label won’t be considered as in evidence against the defendant. * * *”

Since counsel for defendant conceded the admissibility of this evidence in the trial court, he will not be heard to complain here that its admission is error. Aside from that, however, the record reasonably discloses that a felony was committed in the presence of the officers, and in such case no warrant for the arrest of defendant and a search of her person was necessary. At the very least it appears that a felony had in fact been committed, and there was reasonable cause for believing the defendant to have committed it. The arrest was legal, and the recovery of the morphine concealed by the defendant without a search warrant was not an unreasonable search. Francis et al. v. State, 26 Okla. Cr. 82, 221 P. 785; Ricketts v. State, 23 Okla. Cr. 267, 215 P. 212; Davis v. State, 30 Okla. Cr. 61, 234 P. 787; Gaines v. State, 28 Okla. Cr. 353, 230 P. 946.

Complaint is next made that the court erred in his instructions to the jury. Under this assignment, several of the court’s instructions are challenged, none of which have any particular merit. Some of the instructions are loosely drawn, but none of the matters complained of are prejudicial to any substantial right of the defendant. The evidence sustains the verdict, and we see no reason to disturb the judgment. The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    MARIE WINER v. STATE.
    No. A-5746.
    Opinion Filed Nov. 27, 1926.
    Rehearing Denied March 26, 1927.
    (253 Pac. 1025.)

      Pruiett & Mathers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of having the illegal possession of narcotics, and was sentenced to pay a fine of $500 and to be imprisoned in the state penientiary for a term of two years.

The defendant was jointly charged with Henry R. Winer, her husband. A severance was had and she was tried separately. A • brief statement of the evidence is: That certain officers engaged in detecting violations of the narcotic law gave a drug addict $10 in marked money and had him procure still another addict, a female, to go to the residence of defendant and her husband and buy morphine, which she did, purchasing $10 worth from the husband in the presence of defendant, who appeared to be assisting and acting as a lookout. After the purchaser left the house, she was intercepted about a block away by the officers who were in waiting, and the narcotics purchased taken from her. The officers immediately went to the residence of defendant, who was seated at a window, and, as they approached it, defendant saw the officers, arose and moved rapidly away. They entered the building, found the defendant and her husband in the bathroom, and heard the flushing of the toilet. They rushed into the bath room where defendant was standing in front of the toilet, pushed her aside, and extracted from the bowl a package containing five cubes of morphine. The marked money was on the person of defendant’s husband.

It is first contended that evidence was obtained by an illegal search, and the sufficiency of the search warrant under which the officers were acting is questioned. The record discloses that the officers acted under the authority of a search warrant and it is not affirmatively made to appear that it was invalid. Viadock v. State, 30 Okla. Cr. 374, 236 P. 56; Ellison v. State, 32 Okla. Cr. 23, 239 P. 678.

Proof of the connection of defendant with the possession of the narcotics is largely, but by no means entirely, circumstantial. It is convincing in character and sufficient to sustain the verdict and judgment.

It is next claimed that, as the offense, if .committed, was in the presence of the husband, she is exonerated by reason of sections 1514-18, Comp. Stat. 1921. Sections 1514 and 1518 are as follows:

“1514. The involuntary subjection to the power of a superior which exonerates a person charged with a criminal act or omission from punishment therefor, arises either from: First: Duress; or, second, coverture.”
1518. The inference of subjection arising from the fact of coverture may be rebutted by any facts showing that in committing the act charged the wife acted freely.”

The evidence appearing in the record rebuts any inference arising from the fact of coverture. It is apparent that defendant was not under any subjection, but acted freely.

Complaint is made of misconduct of the assistant county attorney in his closing argument. No objection appears in the record to the argument as made. This objection is not mentioned in the record, except in the motion for a new trial. This is not sufficient. Irvine v. State, 10 Okla. Cr. 4, 133 P. 259; Tucker v. State, 9 Okla. Cr. 587, 132 P. 825; Browder v. State, 16 Okla. Cr. 43, 180 P. 571; Reed v. State, 14 Okla. Cr. 651, 174 P. 800.

Some other contentions are made, but none of them require special discussion;. all have had consideration.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: DAVENPORT, J.

text:
    M. L. BARDWELL v. STATE.
    No. A-5842.
    Opinion Filed Feb. 21, 1927.
    Rehearing Denied March 26, 1927.
    (253 Pac. 1026.)
    Norman Wright and Wright & Gill, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The information filed in the district court of Oklahoma county, January 7, 1925, charges that M. L. Bardwell in said county, on the 30th day of June, 1924, did willfully unlawfully, wrongfully, and feloniously commit the crime of child abandonment in the form and manner as follows, to-wit:

“That is to say, the said defendant in the county and state aforesaid, and on or about the 30th day of June, 1924, then and there being, did then and there willfully, unlawfully, wrongfully, and feloniously abandon and desert his lawful minor children ünder 15 years of age, to wit: Billy Bardwell, of the age of 4 years, and Dorothy Bardwell of the age of 14 years, in destitute and necessitous circumstances, and willfully fails, refuses, and neglects to maintain and provide for said children, or contribute anything toward their support.”

A trial was had, and defendant found guilty as charged in the information, assessing his punishment at imprisonment in the state penitentiary for one year; motion for a new trial was filed and overruled. In support of the contention of counsel that judgment should be reversed, a number of errors are assigned, but only one is argued, counsel stating that they do not waive or abandon any of the other assignments of error. The assignment argued by counsel for plaintiff in error is as follows: “Is the father of minor children under 15 years of age amenable of the crime of child abandonment.”

In this case the facts in substance are as follows: M. L. Bardwell, the plaintiff in error in this case, had been the husband of Ella T. Bardwell, who was the mother of the two minor children, Billy Bardwell and Dorothy Bardwell, was granted a divorce from Merrell L. Bardwell on the 25th day of March, 1922; the divorce giving Ella T. Bardwell the custody of the minor children, and enjoining the defendant from interfering with either of the said children or with Ella T. Bard-well in her custody of her minor children, and enjoined the plaintiff in error from visiting said children until further order of the court. The decree also required M. L. Bardwell to pay to his divorced wife, Ella T. Bardwell, the sum of $100 per month; later by an order of the court the amount per month was reduced from $100 to $50 per month. The plaintiff in error in this case, who was the defendant in the divorce proceedings, paid the amount up to June, 1924, when he ceased paying, and had not paid from June, 1924, up to January 7, 1925, when this complaint was filed.

The plaintiff in error took the stand in his own behalf, and sought to justify his failure to pay on the ground that he was out of employment part of the time and could not get money to make the payment, and on the further ground that he had tried to get his divorced wife to take $50. It was not denied by plaintiff in error in his testimony that he had failed to pay anything toward the support and maintenance of his two minor children since June, 1924, and, as herein stated, the only excuse he had for not paying was that he did not have the money at certain times, and that he was trying to get his wife to accept $25 per month. The record also discloses that the plaintiff in error, on or about January of 1925, was married again. . His financial cicumstances were not such as to prevent him from getting married; yet the record discloses that he attempted to justify his failure to provide for his minor children because he could not get the money. This is a flimsy excuse. We are at a loss to understand why any father who knows the love of mother could so far forget himself, even though estranged from the mother of his children, to fail to provide for, and to maintain and support them. The paternal love for these minor children, if any existed, must have been swept away in the cyclone of affection for the second wife he married in January.

From the record in this case the court is compelled to answer the question propounded by the attorneys for plaintiff in error in the affirmative, and hold that the father of minor children under 15 years of age is amenable to the law of child abandonment. State ex rel. Mitchell v. Swindall et al., 33 Okla. Cr. 210, 241 P. 456; Brown v. State, 33 Okla. Cr. 217, 242 P. 1065.

We have carefully examined the record, and we have no reason to doubt that the conviction was justified by the evidence in the case.

In our opinion, the defendant had a fair and impartial trial, and the judgment is accordingly affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    C. M. GRIFFITH v. STATE.
    No. A-5656.
    Opinion Filed Feb. 19, 1927.
    Rehearing Denied March 26, 1927.
    (254 Pac. 112.)

      J. P. Evers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county for the crime of robbery with firearms, and was sentenced to serve a term of 25 years in the state penitentiary.

Briefly, the evidence is to the effect that defendant, acting conjointly with others, committed a robbery, in the course of which several shots were fired, one of which struck defendant in the leg. The defense was an alibi. Defendant admits that he was shot in the difficulty that took place at the time of the robbery, but contends that he was passing along the opposite side of the street at the time. The evidence was for the jury, and there is sufficient to support the verdict. This court will not disturb the judgment on the question of the credibility of the witnesses or the weight of the evidence, where there is sufficient competent evidence to sustain it.

Defendant contends that the trial court should have dismissed the prosecution for failure to bring defendant to trial at the next term of court after which the case was triable under the provisions of section .2913, Comp. St. 1921. This court holds that in the absence of the proper record affirmatively showing the contrary, the presumption is that the case was properly continued for a lawful cause, and where a motion to dismiss is filed, the burden is on the defendant to show that the fault in failing to try a defendant was on the state. Where a defendant is on bail, he must demand a trial or resist a continuance; otherwise he is not entitled to a discharge for the failure to prosecute. Francis et al. v. State, 26 Okla. Cr. 82, 221 P. 785. In the case before us, the record shows a docket entry dated December 16, 1924, “Stricken from the trial docket by agreement.” He not only failed to demand a trial as required by the law, but agreed to a continuance. The motion to dismiss was properly overruled.

During the course of the argument, objections were made to certain statements of the county attorney which are here assigned as ejrror. The prosecuting attorney may, of course, discuss the evidence as he understands it from the standpoint of the state, and draw reasonable inferences and deductions from it. Even an erroneous statement of the evidence will not ordinarily be ground for a reversal unless it likely influenced the verdict or was conceived in a spirit of unfairness or fraud. Thacker v. State, 3 Okla. Cr. 486, 106 P. 986; Williams v. State, 4 Okla, Cr. 523, 114 P. 1115; Morgan v. State, 9 Okla. Cr. 22, 130 P. 522; Bouie v. State, 9 Okla. Cr. 345, 131 P. 953.

Some complaint is also made to the remarks of the trial court, but we find nothing in any statement made that is in any wise prejudicial. Upon a view of the entire record, it appears that the defendant was fairly tried, the issues fairly submitted by the court’s instructions, and the verdict is sustained by the evidence.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    ANDREW J. BRADY v. STATE.
    No. A-5801.
    Opinion Filed March 26, 1927.
    (254 Pac. 513.)
    Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against by the county attorney of Oklahoma county, charged with the crime of selling, exchanging, and delivering cocaine to one Charley Taylor. To the information the defendant entered his plea of not guilty. He was tried and convicted of the crime, the jury assessing his punishment at a fine of $500 and imprisonment in the state penitentiary for a term of one year. To reverse this judgment the defendant has appealed to this court, and has assigned twelve errors alleged to have been committed by the court in the trial of the case.

The state furnished in substance the following testimony:

•C. M. Baker testified that he was a narcotic agent, and on November 22, 1924, he had arranged for two rooms on Hudson street, between California and Reno, in the city of Oklahoma City, and that he had placed Charley Taylor in one of the rooms; that he and Lee Mullenix were in the other room; he had a hole cut in the door between the two rooms; that Charley Taylor was instructed to call up parties and get them to come to the room and try to buy narcotics from them. He saw the defendant enter the room where the informer was. He first entered the room Novemer 20, 1924. Blackie Wallace was with him. Blackie Wallace had possession -of the narcotics that were laid down on a table. On the 21st day of November, 1924, along in the afternoon, defendant came to the room again, occupied by the informer, and there he delivered to the informant eleven caps of cocaine, for which the informer gave him $6 in money. The capsules were left lying on the table.

Lee Mullenix testified, in substance, to the same facts as did C. M. Baker.

Dr. C. Clifford was called as a witness on behalf of the state, and he testified that seven capsules claimed to have been delivered to Charley Taylor were cocaine.

At the close of all the state’s testimony, the defendant moved to strike all the testimony of the state for the reason that it was procured by solicitation and was incompetent, irrelevant, and immaterial to support a verdict, which mntinu was overruled hv the court, and defendant duly, excepted.

The defendant called Joe Farrar as a witness, and he testified to the defendant being a married man and to the business defendant was engaged in; that he had never known anything against him; and that his reputation had always been good as a law-abiding citizen.

The defendant also called his wife, Madie Brady, who testified that since their marriage her husband had been engaged in the taxi business on his own account, and that to her knowledge he had never dealt in narcotics.

This in substance was the testimony introduced by the state and defendant. At the close of the testimony the defendant again renewed his motion asking the court to advise the jury to return a verdict of not guilty, which motion was overruled by the court and exceptions duly saved.

The only error we deem necessary to consider in this case is assignment No. 7, which is as follows:

“Because the trial court erred in giving instruction No. 8, which reads as follows: Should you find the defendant guilty of the crime charged against him, it will be your duty to fix the punishment therefor, which should be a fine of not less than $500, nor more than $5,000, and by imprisonment in the state penitentiary for not less than one year nor more than seven.”

The question to be determined in this case is: Did the court err in giving the instruction complained of by the defendant, and defining the punishment to be imposed upon the defendant should he be found guilty?

Section 8888, Comp. St. 1921, provided the penalty to be imposed if the defendant were convicted as follows:

“Any person who violates any of the requirements or provisions of this act shall, upon conviction, be deemed guilty of a felony and be fined not less than five hundred dollars nor more than five thousand dollars and shall be imprisoned not less than one year nor more than seven years, or both.”

Since the trial of this case in the district court, the section of the statute under which the trial court imposed the sentence has been before the court for interpretation.

In Ex parte Clark, 30 Okla. Cr. 259, 236 P. 66, this, court construed the statute to mean that the penalty for the offense for which the defendant was convicted may be a fine, or imprisonment, or both.

This same question is involved in this case as was involved in the case of Bill Baker v. State, 36 Okla. Cr. 328, 254 P. 512. The instruction given by the court was an error prejudicial to the rights of the defendant.

The judgment is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    BILL BAKER v. STATE.
    No. A-5802.
    Opinion Filed March 26, 1927.
    (254 Pac. 512.)
    Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called defendant, was informed against by the county attorney of Oklahoma county, charged with the crime of willfully, unlawfully, wrongfully, and feloniously selling and delivering to one • Charley Taylor approximately seven grains of cocaine and seven grains of morphine. To this information the defendant entered his plea of not guilty. He was tried, and the jury returned a verdict finding th'e defendant guilty and assessing his punishment at a fine of $500 and imprisonment in the state penitentiary for a term of one year. To reverse this judgment the defendant has appealed to this court and has assigned thirteen errors alleged to have been committed by the trial court.

The state called C. M. Baker, and he testified that he was a narcotic agent on November 22, 1924, and knew the defendant, Bill Baker; that he had procured two rooms, between California and Reno, in the east part of the city of Oklahoma City; that the rooms had a partition wall with a door between the rooms; that he had placed Charley Taylor in one room and had him call up different parties to come to the room in order that Charley Taylor might buy narcotics from them; that Bill Baker came to the room and agreed to furnish Charley Taylor narcotics and claimed he would send it up by Pat Carroll; that the witness C. M. Baker was in the adjoining room looking through a hole that had been cut in the door; that he had paid the room rent and expenses, of Charley Taylor; that Charley Taylor had been sent to him from Texas. Defendant Bill Baker left the room, and Pat Carroll brought some narcotics in the room to Charley Taylor.

Lee Mullenix testified to the same facts as did C. M. Baker.

Dr. Clifford testified for the state that he made a chemical analysis of the capsules and found that seven of them contained morphine and seven of them cocaine.

Witness C. M. Baker claimed that Taylor paid Bill Baker $10 before any narcotics were delivered by Pat Carroll.

This was in substance the state’s testimony. Charley Taylor did not testify for the state.

The defendant, Bill Baker, on his own behalf denied that he made any trade with Charley Taylor to sell him any narcotics; denied having any narcotics delivered to him. This, in brief, was the testimony in the case.

The defendant in the case has assigned thirteen errors alleged to have been committed by the court in the trial of this case. In his brief he has grouped the errors together and treated them under two heads; the first subdivision being assignments Nos. 7 and 13'. These assignments relate to the giving by the court of instruction No. 10 over the objection of the defendant, which instruction is as follows:

“10. Should you find the defendant guilty of the crime charged against him, it will be your duty to fix the punishment therefor, which shall be a fine of not less than $500 nor more than $5,000, and by imprisonment in the state penitentiary for not less than seven years.”

And refusal to give special instruction No. 4 requested by the defendant, which is as follows:

“You are instructed that the minimum punishment, if you find the defendant guilty under these instructions, is one year in the penitentiary, or a fine of $500.”

We come now to the assignment of errors contained in the first group, which assignments have been heretofore set out and relate to the instructions of the court as to the law upon the question of punishment to be imposed upon the defendant should the jury return a verdict of guilty.

Section 8888, Comp. Stats. 1921, providing a penalty for the offense of which the defendant was convicted, is as follows:

“Any person who violates any of the requirements or the provisions of this act, shall, upon conviction, be deemed guilty of a felony, and be fined not less than five hundred dollars was mere than five thousand dollars, and shall be imprisoned not less than one year nor more than seven years, or both.”

Did the court err in giving its instruction No. 10 to the jury over the objection of the defendant, and in refusing to give special instruction 4 requested by the defendant as to the punishment to be inflicted upon the defendant, should the jury find him guilty.

Since the trial of this case in the district court, the section of the statute under which the trial court imposed the sentence has been before this court. In Ex parte Clarke, 30 Okla. Cr. 259, 236 P. 66, this court in construing the section of the statute states as follows:

“Subdivision 3. We now pass to the consideration of the language of the statute, providing for a fine and confinement, or both. Does this statute provide for a fine and confinement, in the. conjunctive; or does it mean either the one or the other, or both, in the discretion of the court or jury? Applying a well-known principle of statutory construction, to wit, that, where a statute is susceptible of different constructions, that construction should be adopted which gives effect to every phrase and portion of the act if such construction is rational and in keeping with the' purposes and objects to be attained, to give effect to the phrase ‘or both’ we must construe the conjunctive ‘and’ in this case to mean the disjunctive ‘or.’ 25 R. C. L. Statutes, §§ 246, 247.
“In ambiguous writings the- word ‘or’ is sometimes construed to mean ‘and’; more frequently the word ‘and’ is construed to mean ‘or.’
“The court will adopt the appropriate construction indicated by the context and the purposes of the act. State ex rel. Caldwell v. Hooker, 22 Okla. 713, 98 P. 964; Williams v. U. S., 17 Okla. 28, 87 P. 647; 25 R. C. L. 917; 1 Bouv. Law Dict. 194; extended notes and annotations to Janney v. Sprigg [7 Gill (Md.) 197], 48 Am. Dec. 573; 1 Words and Phrases, First Series, p. 389; 1 Words and Phrases, Second Series, p. 208.
“Giving effect to the phrase ‘or both’ is equivalent to saying that the punishment may be fine, or imprisonment, or both fine and imprisonment, and that the conjunction ‘and’ in this case means ‘or.’ It has been the policy of our Legislature, in providing for punishment of offenders, to fix a maximum and a minimum punishment, so' that the court or jury may exercise a wise, humane discretion to fit each particular case. In doing this the moral responsibility, the age and character of the offender, and other factors, may properly be considered. It is manifest that some persons who have been found guilty of violating the Narcotic Drug Act (Comp. St. 1921, §§ 8886-8888) should be dealt with most severely, while in other cases the punishment should be light. Such construction is in keeping with another rule of statutory construction, to wit. that, where the terms of a penal statute relating to the severity or character of the punishment are ambiguous, such provisions must be construed most favorably to the accused. 21 R. C. L. 209; Ex parte McClure, [6 Okla. Cr. 241, 118 P. 591], supra.
“For these reasons we construe this statute to mean that the penalty for the offense for which the petitioner was convicted may be a fine, or imprisonment, or both.”

It was the duty of the court to correctly instruct the jury as to the punishment to be imposed upon the defendant, should the jury find him guilty. In this case the court erroneously instructed the jury as to the punishment and refused to properly instruct the jury as requested by the defendant as to the punishment, and the giving of instruction 10 over the objection of the defendant and refusal to give special instruction 4 requested by the defendant was a prejudicial error.

Other errors are assigned and argued, but we do not deem it necessary to discuss them.

The judgment is reversed and remanded.

DOYLE, P. J., and EDWARDS J., concur.


text:
    C. L. ROSE v. STATE.
    No. A-5723.
    Opinion Filed March 26, 1927.
    (254 Pac. 509.)
    Mac Q. Williamson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On an information charging that he did have in his possession about 3% gallons of corn whisky, with the unlawful intent to sell the same, C. L. Rose was convicted and his punishment fixed at imprisonment in the county jail for 30 days and a fine of $250. He has appealed from the judgment rendered upon such conviction.

The undisputed facts are that appellant, his wife and children, and his father and mother resided on his farm in the Crossroads community, about 7 miles northwest of Pauls Valley. On the afternoon of the day alleged the sheriff with four deputies visited his home and searched the place in the absence of appellant, and without his knowledge or consent, but in the presence of his wife and aged parents.

E. C. Parks, deputy sheriff, testified: That he stood on the front porch, knocked at the door; an old lady opened the door, and he asked her if the lady of the house was at home. About that time appellant’s wife came to the door, and he told her they wanted to look the place over, and she said, “Come in.” That Deputy Bridges followed, him in, and the other three officers came in at the back door, and they searched the place. That he handed Mrs. Rose a paper which had the words “search warrant” printed on top of it, and of which hé knew nothing further about. All the other deputies testified their complete ignorance of what the paper was, where it came from, or what it contained. The officers found a copper still and the alleged 3% gallons of whisky in the search of the house.

The record shows that while the county attorney was making his opening statement counsel for appellant interposed an objection for the reason that said search, so far as the statement of the county attorney now shows, was illegal and without authority of law, and the same was an invasion of the constitutional and statutory rights of the defendant.' Whereupon the county attorney stated that the evidence would show that Mrs. Rose told them to come in, and further said: “I think I properly predicated the introduction of my evidence by my statement that the officers were invited into his home.”

At the close of the state’s evidence there was a motion by counsel for appellant for a directed verdict of acquittal on the ground that all the evidence offered in the case was obtained by an illegal invasion of the defendant’s constitutional and statutory rights, made in his absence and without his knowledge or consent, which motion was overruled.

In the case of Carignano v. State, 31 Okla. Cr. 228, 238 P. 507, it was held:

“The constitutional rights of a person to be secure against unreasonable searches and seizures and self-crimination were not waived when his wife in his absence failed to object to officers making a search of his premises under authority of an illegal search warrant.”

The admitted acts of the officers show that they acted without authority of law, and that all the state’s evidence was procured by an invasion of rights guaranteed by section 30 of the Bill of Rights, and that the same was admitted over the defendant’s objections, in violation of section 21 of the Bill of Rights.

It is the well-settled doctrine in this state that evidence obtained by officers of the court by an illegal search and seizure is inadmissible.

It appears that the court gave the following instruction:

“4. You are instructed further that the keeping in excess of one quart of any spirituous, vinous, fermented or malt liquor, or any imitation thereof, or substitute therefor, shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquor, and it is not incumbent upon the state to prove by other evidence the intent of the defendant to convey, sell, or otherwise dispose of such liquors.” (Exception allowed. J. D. Cofield, Judge.)

Manifestly, the giving of this instruction against the defendant’s objection was prejudicial error. With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined, upon a consideration of the evidence. In the determination of that question they are required by the statute (section 6999, C. S. 1921 [Laws 1923-24, c. 123]), to consider the keeping of a certain amount of intoxicating liquors as prima facie evidence of an unlawful intent. But that evidence may be rebutted by other evidence in the case, whether shown by evidence oh the part of the defense, or by the state in connection with the évfdence proving the possession. With such evidence, the jury must also take into consideration the presumption of the innocence of the accused until the contrary is proved beyond a reasonable doubt. It does not change the rule in all criminal cases that:

“Before a conviction can be had the jury must be satisfied from the evidence beyond a reasonable doubt of the affirmative of the issue presented in the accusation that the defendant is guilty in the manner and form as charged in the indictment or information.” Caffee v. State, 11 Okla. Cr. 485, 148 P. 680; Whitehead v. State, 28 Okla. Cr. 193, 230 P. 291; Jenkins v. State, 28 Okla. Cr. 249, 230 P. 293; Roberts v. State, 29 Okla. Cr. 147, 232 P. 861; Richardson v. State, 29 Okla. Cr. 286, 233 P. 508.

Obvinnslv. fho nonclndiner clause of this instruction places the burden of proof upon the defendant.

Other errors are assigned and argued, but we find nothing in the record requiring further discussion.

For the reasons stated, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.


author: DOYLE, P. J.,

text:
    JACK BLAGG v. STATE.
    No. A-5719.
    Opinion Filed March 26, 1927.
    (254 Pac. 506.)

      Tillman, Tillman & Pierson, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.,

An indictment was returned by a grand jury in the district court of Osage county, charging John Brannon, Jack Blagg, and Walter O’Neil with the murder of Pomp Middlebrook, alleged to have been committed on the 23d day of September, 1923. A severance was granted. Upon his separate trial the jury returned a verdict finding the defendant Jack Blagg guilty of murder as charged in the indictment and fixing his punishment at imprisonment in the penitentiary for life at hard labor. In due course a motion for new trial was interposed in his behalf and denied. From the judgment duly pronounced in pursuance of the verdict he appeals.

This is a companion case to that of John Brannon v. State, wherein the conviction was affirmed by this court, 33 Okla. Cr. 206, 243 P. 259.

The following brief statement of material facts will be sufficient to make clear the contentions made: Pomp Middlebrook was killed at his filling station in the town of Cooper, some time after dark on the day alleged. The evidence on the part of the state showed that three men drove up to his place of business in a Ford coupe; that two of them got out and one remained in the coupe with the engine running; that as the other two went into the filling station shots were fired and the man in the Ford coupe drove off. A few minutes later two men came out of the filling station, and ran east from the town. The state introduced a witness by the name of Pauline Prescott, who for some time had lived with the defendant Jack Blagg. She testified that Jack Blagg, John Bran-non, and Walter O’Neil on the 23d day of September drove from Hominy to Shidler and there stopped at a place where Jack Blagg’s mother was staying until about dusk that evening; when Blagg, Brannon and O’Neil left in the Ford coupe, saying that they were going to get some cold tire patches. She further testified that in about an hour and a half thereafter Blagg returned to this place in Shidler in the Ford coupe by himself, and about an hour later Brannon and O’Neil showed up there; that each told witness about the shooting of Middlebrook at his filling station in Cooper that evening, and that it was necessary for them to get out of there; that the four together with Blagg’s mother left Shidler that night in the Ford coupe, drove nearly to the town of Hominy, where they stayed by the side of the road until daylight, when they drove into Hominy. This witness then detailed the whereabouts of herself and some of the others in the various parts of Oklahoma and Kansas until she returned to Osage county after hearing that her brother was in trouble and in jail in the city of Pawhuska. It is not necessary to detail the various trips that this witness testifies that these parties took. It is sufficient to state that she is corroborated as to their whereabouts and conduct by the testimony of several disinterested witnesses.

Carl Brewer testified that he lives in Cooper and heard the shots fired that killed Middlebrook; that he was talking with Ralph Holmes at the time on the street about 200 feet north of the filling station; that shortly before that .he noticed three men sitting in a Ford coupe in front of the Sims restaurant, about 100 feet south of the filling station; that returning 20 or 30 minutes later he saw this Ford coupe with the three men in it about 20 feet north of the filling station; that he heard two shots, looked and saw the Ford coupe starting north, and it passed him with only the driver in it; then two men left the filling station, one went one way around the garage and one went the other, and both went east; that the Ford coupe went north to the first corner and turned east towards Webb City on the main road to Shidler.

From the foregoing summary it is plain that the verdict rendered is supported by substantial evidence.

The defense interposed was that of an alibi. The defendant denied any connection whatever with the commission of the homicide, and testified that for some days prior to the commission of the homicide, and for some days thereafter, he was employed as a cotton picker on the farm of R. W. White, southeast of Hominy. In this the defendant was corroborated by the testimony of White and Mr. and Mrs. Will Duncan, neighbors of White, who claimed to have seen the defendant on White’s place, and to have worked with him from about the 9th or 10th of September, 1923, until about the first week of October. There are many material discrepancies between what each of these witnesses testified as to when the defendant came to White’s place and as to who came with him. The defendant testified that he went from Three Sands to Bob White’s place, and that nobody went with him, and that his mother and brother were there when he got there. R. W. White testified that he sent his father-in-law in a wagon after the defendant and his mother and brother, and that they were all brought there by his father-in-law, from the Boston Pool, at the same time, and were together picking cotton for him. Will Duncan testified that the defendant and his mother came first and about three weeks later the defendant’s brother came.

Mrs. Duncan testified that she did not know when they came to White’s place; that she first saw the defendant; he and his mother were both in the field together. While none of these witnesses agree on just how the defendant, his mother and brother got to White’s place, who brought them, and what kind of conveyance they came in, it appears that all the witnesses do agree that the defendant and his mother and brother all left the place together in a Ford roadster.

We will consider the errors assigned in the order in which they appear in appellant’s brief.

When the case was called for trial, the state filed a motion for continuance on the ground of absence of one Lloyd C. Bolock, who if present would testify that about 8:30 in the evening he went to the garage and filling station where Pomp Middlebrook was employed; that about 10 or 15 minutes after he arrived at the garage he and Middlebrook were sitting in the office when he heard some one say he wanted a can of cold patch; that Middlebrook rose up and asked whether he wanted the dollar or the 50 cents size, and the person said he wanted the 50 cents size; that he looked at the can and said, “I don’t believe we want this,” then said, “Put them up,” and at the same time fired; that two shots were fired, and immediately after two persons left the building; that Middlebrook said “they shot me right through the head,” and told him to go for a doctor and to tell the people on the street what had occurred; that Middlebrook died on the floor of the garage about 15 minutes after the shooting; that witness was not able to identify the man he saw ip the garage, and only saw one man, but heard another man.

When the motion for continuance was presented, counsel for defendant offered in open court to admit that the witness, if present, would testify to the facts stated in the motion. Whereupon the motion for continuance was overruled, and the case was called for trial. In the course of the trial, when the motion for continuance was offered in evidence, counsel for defendant objected to the reading of the motion to the jury, which objection was overruled, the court stating to the jury that the defendant in this case admitted that if this witness was present he would testify as set forth in the motion for continuance. It is urged that the admission as evidence of the motion, notwithstanding the consent thereto by defendant, was in contravention to article 2, § 20, Const., which, inter alia, provides that in all criminal prosecutions the accused shall have the right to “be confronted with the witnesses against him.” In other words, that the defendant was thereby deprived of his right to meet the witness against him face to face, and that this right he could not waive.

Where a constitutional right in a criminal cause is solely for the benefit of the accused, and not jurisdictional, or in the nature of a personal privilege, the law is well settled that the accused may waive such right.

In the case of Starr v. State, 5 Okla. Cr. 440, 115 P. 356, the question now before us was fully considered. In the opinion we said:

“The provision of the Bill of Rights that the accused shall have the right to be confronted with the witnesses against him is merely declaratory of the common-law rule requiring an opportunity of cross-examination. Generally speaking, the constitutional provisions guaranteeing to every accused person in a criminal action certain rights may be separated into two classes: First, those in which the public generally, and as a community, is interested, as well as the accused, and which are jurisdictional as affecting the power of the court to try the cause; second, those more in the nature of privileges which are for the benefit of the accused alone, and do not affect the general public. The former cannot be waived. Jurisdiction to try the cause is conferred by the law. Consent cannot confer jurisdiction, but the accused may waive a constitutional right or privilege designed for his protection, where no question of public policy is involved. The public as well as the accused have an interest in every criminal trial. The life and liberty of the citizen is a matter of supreme importance to the state, and it should not allow him to throw either away by a failure, intentional or otherwise, to take advantage of his constitutional safeguards. It will not do, however, to say that because the state has a peculiar interest in protecting the citizen accused of crime to the extent of his constitutional rights that he shall in no case be allowed to waive them, for in some cases it may be to his interest to waive them, and the denial of the right to do so would defeat the very object in view when the rights were given, and cause them to operate to the injury rather than to the benefit of the accused.”

And see Littrell v. State, 22 Okla. Cr. 1, 209 P. 184.

Manifestly, the right of the accused to be confronted by the witness against him secured by the constitutional provision above referred to, falls within the class personal to the accused. It is a personal right, a personal privilege of which every defendant. in a criminal action may avail himself. It is not jurisdictional, and it is just, that a waiver of the right by the accused of his own free will, without solicitation or persuasion, causing some action to be taken upon the faith of such waiver, that would not otherwise have been taken, should be binding upon him.

It follows from what has been said that the court did not err in admitting in evidence the verified motion for a continuance.

One of the grounds of the motion for new trial and assigned as error is that—

“The court erred in leaving the courtroom during the progress of the trial and losing control of the court.”

To sustain this ground of the motion for new trial, the testimony of the defendant and one other witness tends to show that during the argument of defendant's counsel, the presiding judge left the bench and went into an adjoining room and wasi gone for about half a minute. Whereupon the presiding judge made the following statement:

“The door of my chambers was open. It might be possible that I took a book off my desk, which is some three or four feet from the door. If I did step in that room during the progress of the argument in this case, it would not exceed ten or fifteen seconds of time, and I would not have been more than ten or fifteen feet away from counsel arguing the case and not to exceed three feet from the jury.”

In the case of Allen v. State, 13 Okla. Cr. 533, 165 P. 745, L. R. A. 1917E, 1085, we said :

“In many cases this court has held that it is the .duty of the presiding judge at criminal trials to be present during each and every stage of the proceedings before him, and when: the record affirmatively discloses that he lost control of the proceedings by reason of his absence from the bench during the progress of the trial, a judgment of conviction will be reversed.”

The record in this case does not sustain the contention that the trial judge was absent from the courtroom and had lost control of the proceedings. It does show that at no time did the presiding judge lose control of the proceedings, but was in hearing of anything that occurred and was in a position to rule on any matter that might have arisen at the time he stepped into his chambers. Error will not be presumed, but the record must affirmatively show that the error complained of was of a character sufficient to show that appellant was not given a fair trial.

It is also contended that the trial court erred in permitting the indictment to be amended. We deem it sufficient to say that it nowhere appears in the record that the indictment was ever amended or permitted to be amended. It follows that the burden resting upon the defendant to show by the record that the court erred in this respect has not been met.

It is also contended that the defendant was not served with a copy of the indictment as amended. This question was first raised when the defendant testified in support of his motion for a new trial. There is no other showing that the defendant was not served with a copy of the indictment, or that he ever made a demand for a copy of the same previous to the trial. The record therefore not only fails to support this assignment of error, but shows conclusively that the defendant waived his privilege to have a copy of the indictment furnished to him. Blair v. State, 4 Okla. Cr. 359. 111 P. 1007; Stouse v. State, 6 Okla. Cr. 415; 119 P. 271; Franklin v. State, 9 Okla. Cr. 178, 131 P. 183.

The last assignment urged is that the evidence is not sufficient to sustain the verdict. In cases of this kind the effect which the evidence shall have as tending to establish the guilt of the defendant is for the jury. If they find it insufficient to establish gúilt, there is no power in the court to set aside their verdict, though the trial judge might be convinced that the verdict was against, not only the weight of the evidence, but against all the evidence. On the other hand, if there be evidence which fairly tends to prove the guilt of the defendant, and the jury find him guilty, the trial court cannot properly set aside such verdict, because he may entertain doubts as to its sufficiency to establish such guilt. Ordinarily the decision of the trial judge upon the question of granting a new trial on the ground that the evidence is insufficient to support the verdict is held conclusive upon this court, where the record shows that it is supported by substantial evidence.

In conclusion we simply add that an examination of the record has revealed nothing that gives us the right to say that the interests of justice require a new trial.

The judgment appealed from is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.