text:
    E. F. MEAD v. STATE.
    No. A-9412.
    Oct. 7, 1938.
    (83 P. 2d 404.)

      Gaylor R. Wilcox, of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that E. F. Mead did in Okmulgee county, on or about the 25th day of March, 1936, commit the crime of murder. The charging words are: “did unlawfully, willfully and feloniously, without authority of law and with a premeditated design to effect death of one Addison Snell, strike, beat and knock the body of him, the said Addison Snell into a ditch or excavation then and thereby inflicting upon the body of him, the said Addison Snell, one mortal wound of which he, the said Addison Snell, thereafter on the 5th day of April, 1936, did die; that the said E. F. Mead in the manner and form aforesaid, did kill and murder the said Addison Snell, contrary to,” etc.

Upon the trial the jury returned their verdict finding the defendant guilty of manslaughter in the second degree, but were unable to agree upon the punishment. A motion for a new trial was made and denied, and the court sentenced the defendant to serve a term of two years’ imprisonment in the state penitentiary. From the judgment rendered June 12, 1937, he appeals.

In this court it is contended that the evidence is insufficient to support the verdict and that the judgment is contrary to the law and to the evidence; that the court erred in its instructions on the law of manslaughter in the second degree, and erred in overruling the motion for a new trial.

It appears that the defendant, Mead, and the deceased, Snell, were both employed with a number of other men digging a ditch and laying tile for a sewer in the city of Okmulgee. It was a WPA project. The ditch was from the intersection of Kern and Second streets, north, between the east side curb and the center of Kern street. The ditch was four or five feet wide and seven or eight feet deep; the tile being two and three feet in diameter, was strung along the bank, three or four feet east of the ditch.

The day before the date alleged Jolly, the time-keeper, informed the defendant that he was discharged from that project. The next day, the defendant passing by stopped and talked with Jolly. McDonald, assistant foreman, was present. Jolly said, “Here is the card showing why you were discharged.” The defendant said, “Read it.” Jolly said he could not read it, that Mr. Foote wrote it, then called Foote and asked him to read it. Foote took the card. It read: “Discharged because he was overbearing to the time-keeper.” Foote said he was discharged because he bawled out the time-keeper. While they were talking Mr. Snell came up, pointed his left hand at the defendant’s face and said something. The defendant turned and struck or pushed him with his left hand and he fell into the ditch. Eleven days later Mr. Snell died; an autopsy showed that a blood clot or embolism in the left pulmonary artery caused his death.

Dr. W. C. Vernon testified that Addison Snell was brought to the Okmulgee Clinic March 25th, and was there under treatment until he died, April 5, 1936. That, assisted by Dr. Raines, he made a post-mortem examination, that they found that he had an embolism or blood clot in the left pulmonary artery, which was the cause of his death.

On cross-examination he was asked:

“Q. That blood clot could have been caused by a dozen different things? A. Yes, sir. Q. Bad teeth could cause it? A. Well, anything could cause a blood clot.”

Dr. H. L. Rains testified that he was present and assisted Dr. Vernon in making the post-mortem examination, which disclosed an embolism or blood clot in the left pulmonary artery, and they found a fractured spine; that in his opinion the blood clot caused death; that he did not know what caused the blood clot.

W. A. Jolly testified that he was time-keeper on the sewer project; that about 4 o’clock, afternoon of March 25th, he was sitting there on a tile with Billy McDonald. The defendant came up and said he was trying to run down information on his discharge ticket. He said, “Mead, I have got these tickets,” and handed a ticket to him, a 403 is what they call it. That he could not read it and called Mr. Foote, the foreman, he came up and read it, the defendant said, “Foote, I blame you for this for listening to a lots of damn lies.” About that time Mr. Snell rushed up and said, “Yes, you did, yes, you did.” Mead wheeled and struck Snell and he went in the ditch. Mead hit him with his left hand; that Foote was about two steps south of Mead and he turned and struck Foote several blows and got him down on the tile.

P. J. Foote testified that he was foreman on the project; that he gave Mead a 403, because the time-keeper complained about him being insulting to him; that when a man gets one of these 403 he is discharged; that he was about 20 feet away when the defendant and Mr. Jolly engaged in a conversation, called him up; Billy McDonald was present. The defendant asked him what this meant; he told him he had been causing trouble and Mr. Jolly was complaining about him being insulting to him. Mead wanted to know what he had done; about that time Mr. Snell rushed up and said, “Yes, you did, Yes, you did.” Mead turned, took a side swipe at him with his left hand and he went in the ditch. He told Mead that he was going to call the police and Mead said, “Damn you, you are going to take it up,” and Mead knocked him down over the tile.

Bob Borland testified that he was working on the project, and was probably 40 feet from the difficulty; that he looked up just as Mr. Snell came along and made a gesture with his left hand, and Mr. Mead hit him on the right side of the face with his left hand, then the bunch ran up, Mead turned and started on Foote, and they fell on some tile; that he took hold of Mr. Mead’s left arm and told him to quit, that he could not have trouble on the job.

Billy McDonald testified that he was assistant foreman on the project and witnessed the difficulty between the defendant and Mr. Snell. That he was sitting on a pipe talking to Mr. Jolly when Mr. Mead came up and said he had a 403 turned in on him. He handed the slip to Mr. Jolly and asked him to read it, Jolly said he could not read it and called Mr. Foote. While they were talking Mr. Snell came up and stuck out his left hand at Mead and said something, and Mead struck him on the right side of the face, left handed, and the blow knocked him in the ditch.

John Ward testified that he was safety foreman and saw Mr. Jolly, time-keeper, and Mr. McDonald, assistant foreman, sitting on a tile when Mr. Mead came by and talked to them, someone called Mr. Foote, the foreman, he came up, and while they were talking Mr. Snell came up there, and there were some words between Mead and Snell, and Mead hit him and he fell down in the ditch; that the party had been talking there about 10 minutes before Mr. Snell went down there.

On the part of the defendant, Otis Lewis testified that he was working on the south end of the ditch; Mr. Mead came up from the south, Mr. Jolly, time-keeper, was sitting on the tile on the east side of the ditch, facing west; Mr. Foote was standing west of and facing him; Mr. Mead was standing north of and talking to both of them; Mr. Snell was north of where they were near the tool rack, and he walked pretty fast down to where they were. He came up behind Mead, a little to his right side, and had his hammer in his hand and shook a finger of his left hand at Mead, and said, “Listen here, you.” Mead turned around and slapped him, hit him open handed, after he went in the ditch, Mead started towards the ditch, Foote started that way and struck at him, and Mead tied into him.

Clyde Pinkston testified that he was working at the south end of the ditch. Mead came by and talked to him about five minutes, then went on north to where Mr. Jolly was sitting on some tile, and while they were talking Mr. Foote came up from the north, Mr. Snell was at the north end of the ditch; that he saw Snell come up behind Mead, he shook his finger at him and said something. Mead turned and with his left hand slapped him.

Jim Ewing testified that he was working on the project and a short time before the difficulty saw Mr. Mead at the south end talking to some boys, then he came on up the ditch to where Mr. Jolly was sitting on a tile; that he was shoveling about 10 feet south of them; that after Jolly and Mead talked a few minutes Jolly called Mr. Foote, and he came down where they were. Jolly had a card and handed it to Mead, then Jolly gave the slip to Foote; they were talking about this card. Mr. Snell was north of them about 50 feet, he came stepping down, Mead was standing in front of Jolly and north of Foote when he came up, and they were talking; Mead was standing with his back towards Mr. Snell when he came up on his right hand side, and said, “You did, you did,” and he came up with his hand, Mead struck him with his open hand, and he staggered and fell in the ditch, they were all between the tile and the ditch, then Mr. Foote and Mead went to fighting, and they were separated.

On cross-examination he stated Mead used his open left hand; Mr. Snell staggered around and fell in the ditch; that he did not think Mead knocked Mr. Snell in the ditch.

Dows Petree testified that he was working on the south end of the ditch when Mr. Mead came by and talked to some of the boys, then walked on north; that there was tile piled back about 4 feet from the ditch; that after Mr. Jolly and Mead started talking, witness went to get a drink, and in coming back walked between them and the ditch, stopped to roll a cigarette. Jolly told Mead he had a 403 for him; Mead asked him to read it, then Jolly called Mr. Foote. Mead asked him if that was his 403. He said, “Yes.” Mead said, “Read it”; Foote put on his glasses and read it. Mead said he was at the office and they didn’t have any record of it there. Mr. Snell came down there and had a claw hammer in his right hand. Mead had his back to him, Mr. Snell came from the north and walked in front of him and pointed his finger in his face and said, “You are a dirty liar.” Mead turned and slapped him and he went off in the ditch.

Edward Carl testified that he was working on the project, saw Mr. Mead stop and talk to somebody and went on to where Mr. Jolly was, then started on. Jolly called him back and had a paper in his hand, then Jolly called Mr. Foote, and he came down there, that he heard some one ask, “What is on that card?” Four or five minutes later Mr. Snell came down there, Mead was talking to Foote, Mr. Snell shook his finger in his face, but he could not understand what was said, and Mead struck him with his hand on the face, and Mr. Snell fell into the ditch, there was a little hole right back of Mr. Snell and it looked like he stepped into it and got overbalanced; at that time he went to look after Mr. Snell.

Sherman Sowers testified that he was working on the ditch and saw the difficulty. Mr. Jolly and Mr. Mead were standing there talking. Jolly called Mr. Foote and Mr. Snell came up, and he saw him shaking his finger in Mead’s face, Mead pushed him back out of the way, and he stumbled and fell in the ditch; that he could not understand what was said, but heard Mr. Snell tell Mead he was a liar and kept shaking his finger in his face.

As a witness in his own behalf, the defendant, Mead, testified that he lived at Okmulgee with his family, wife and two daughters at home; was employed as a laborer on the project; went to the WP^ office that morning to find out why he had been discharged, and the lady said his card was not in; that after dinner he went to Ball Brothers Glass Factory, trying to get some work, and came back by the project; talked to some of the boys working at the south end and started home, passed by Mr. Jolly and Billy McDonald, spoke to them and went on, Jolly called him, and he walked back. Jolly said, “I have got a card showing why you were fired.” That he asked him to read it, Jolly said Mr. Foote wrote it, and he called him. Foote came up from the north and Jolly asked him to read the card, Mr. Foote read, “overbearing to the timekeeper,” and he said he was not overbearing with him. In a few minutes Mr. Snell came up on his right side and shoved his hand up in his face and said, “You did, you are a liar,” and shook his left hand in his face; that he struck his hand and shoved it out of his face, but could not say whether or not his hand hit Mr. Snell on the face; that he did not intend to hurt Mr. Snell. Then Foote said, “Get him boys,” and struck at him, then they grabbed one another, he pushed Foote over on the tile and asked somebody to hold Foote until he could get away from him.

The defendant called a number of witnesses to show that his general reputation as a peaceable, quiet, law-abiding citizen was good. The testimony of these witnesses covered a period from 5 to 17 years, while a resident of Okmulgee county. The state put in no evidence to rebut that of the defendant as to previous good character.

The transcript of the testimony covers over 250 pages, but the foregoing is in substance the material testimony in the case.

The record shows that when the state rested, counsel for the defendant asked the court to direct a verdict for the defendant. Overruled. Exception. Again at the close of all the evidence, counsel for the defendant demurred to the same upon the ground that the facts proved did not support the allegations of the information, and asked the court to direct the jury to return a verdict of not guilty. Overruled. Exception.

Upon a careful examination of the case-made we do not think we would be warranted in sanctioning the verdict and judgment in this case.

Manslaughter in the first degree is defined by St. 1931, § 2223, 21 Okla. St. Ann. § 711, of the Penal Code, as follows:

“Homicide is manslaughter in the first degree in the following cases:
“1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

Section 2228, 21 Okla. St. Ann. § 716, defines manslaughter in the second degree as follows:

“Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”

St. 1931, § 2235, 21 Okla. St. Ann. § 731, of the Penal Code provides that homicide is excusable:

“2. When committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat provided that no undue advantage is taken, nor any dangerous weapon used, and that the killing is not done in a cruel or unusual manner.”

Another provision of the Penal Code, St. 1931, § 1867, 21 Okla. St. Ann. § 643, provides among others, that: “To use or attempt to offer to use force or violence upon or toward the person of another is not unlawful,” when committed by the party about to be injured, in preventing or attempting to prevent an offense against his person; provided the force or violence used is not more than sufficient to prevent such offense.

The charge of the court submitted the issues of murder, manslaughter in both degrees, justifiable homicide in self-defense, and excusable homicide.

The jury are bound to take the law from the court. It is for the court to determine what degree or degrees of homicide the evidence tends to establish, and it is the duty of the court to confine its charge to such degrees. The evidence on the part of the state eliminates the theory of murder, and was wholly insufficient to show that the included crime of manslaughter in the first degree was committed, and those issues should not have been submitted to the jury.

The jury has the right to find the defendant guilty of any offense the commission of which is necessarily included in that with which the defendant is charged (St. 1931, § 3097, 22 Okla. St. Ann. § 916), and the jury has the right to determine the degree of the crime committed in a homicide case, yet its determination must be based upon evidence.

The charge of the court should not extend beyond a plain statement of the law applicable to the case. Under the law and the evidence in this case the issues to be determined by the jury were manslaughter in the' second degree, or whether the alleged homicide was excusable under the provisions of St. 1931, § 2235, 21 Okla. St. Ann. § 731, supra, and where the evidence justifies it, as in this case, the court should have instructed the jury on the issue of assault and battery.

It is contended that the court committed prejudicial error in giving the following instruction:

“Instruction No. 26. If you find the defendant guilty of manslaughter in the second degree, you may assess his punishment, which shall be by imprisonment in the state penitentiary for a period of not less than 2 years and not more than 4 years.”

The giving of this instruction was not excepted to. It was assigned, however, as one of the grounds of the motion for a new trial.

Section 2234, St. 1931, 21 Okla. St. Ann. § 722, of the Penal Code, provides that:

“Every person guilty of manslaughter in the second degree is punishable by imprisonment in the penitentiary not more than 4 years and not less than 2 years, or by imprisonment in a county jail not exceeding 1 year, or by a fine not exceeding $1,000 or by both fine and imprisonment.”

It is a well settled general rule that where the record shows no objection made or exception taken to the instructions given by the trial court, this court looks no further than to see if fundamental error has occurred.

In the case of Colbert v. State, 4 Okla. Cr. 487, 113 P. 561, it is said:

“Where an instruction given only states the maximum term of imprisonment and omits to state the minimum or alternative punishment that may be imposed, held, that the judgment and conviction must be reversed.”

In Wells v. State, 5 Okla. Cr. 22, 113 P. 210, it is said:

“Many errors committed by a trial court may be cured by the consent of the defendant, evidenced by the fact that no objection was made or exception thereto saved at the proper time. But we do not believe that even with the consent of the defendant a verdict should stand where the court has substituted a great and a different punishment in the instruction than that provided by law.”

Upon an examination of the instructions we are satisfied that, taken together, the instructions do not correctly state the law of the case, and the giving of instruction No. 26, above quoted, was prejudicial to the substantial rights of the defendant, and constitutes fundamental error.

It is contended that the evidence is not sufficient to support the verdict and the judgment rendered thereon.

It will be observed that the evidence, both on behalf of the state and that of the defendant, shows that the defendant was at a place where he had a right to be; that the deceased was the aggressor, used abusive language, and made an assault upon the defendant, and the testimony of all the witnesses shows, or tends to show, that the alleged homicide was committed by accident and misfortune, in the heat of passion, upon sudden provocation, and that no undue advantage was taken, nor any dangerous weapon used, and without any unlawful intent. The testimony on the part of the defendant was that the blow struck by the defendant was for the purpose of preventing the deceased continuing in his assault upon the defendant.

In construing this section, this court has said: The word “misfortune,” as used in section 2235, defining excusable homicide, is analogous to the word “misadventure,” which, when applied to homicide, means the act of a man who in doing any lawful act and without any unlawful intent unfortunately kills another person. Gaunce v. State, 22 Okla. Cr. 361, 211 P. 517.

That every man has the right to defend himself against any assault is elementary. No man is bound to measure the extent of an injury about to be done before he would be justified in defending himself.

Accidental death, to be wholly excusable, must have resulted from the doing of some lawful act. Johnson v. State, 59 Okla. Cr. 288, 58 P. 2d 156; Tucker v. State, 41 Okla. Cr. 169, 272 P. 483.

Ruling Case Law, vol. 13, p. 863, sec. 166, reads in part as follows:

“When the death of a human being is the result of accident or misadventure, in the true meaning of the term, no criminal responsibility attaches to the act of the slayer. When it appears that a killing was unintentional, that the perpetrator acted with no wrongful purpose in doing the homicidal act, that it was done while he was engaged in a lawful enterprise, and that it was not the result of negligence — the homicide will be excused on the score of accident.”

When we recall the presumption that the law always indulges as to the innocence of the defendant, and the necessity of establishing his guilt beyond a reasonable doubt, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the defendant on the ground that the evidence was insufficient to warrant a conviction.

For the reasons stated, the judgment of conviction is reversed, and the cause remanded to the district court of Okmulgee county for further proceedings not inconsistent with the views herein expressed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    DOSS GRIMES v. STATE.
    Oct. 7, 1938.
    (83 P. 2d 410.)

      Glen Morris and Joe Adwon, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the State.
   BAREFOOT, J.

The defendant was convicted in the court of common pleas of Oklahoma county of the crime of unlawful possession of intoxicating liquor and sentenced to pay a fine of $50, and serve 30 days in jail. From this judgment and sentence, he has appealed.

The record in this case reveals that the defendant, Doss Grimes, was arrested by police officers of Oklahoma City on the 30th day of October, 1937, and charged in police court of said city, with the unlawful possession of 20 pints of assorted brands of tax paid liquor. Bond was given by defendant in the sum of $20, which, when said case was called for trial, was forfeited. No further action was taken by the police court of Oklahoma City, except that the municipal judge of said city prepared a statement of said case, together with the names of the witnesses thereon endorsed, and transmitted them to the county attorney of Oklahoma county, who, on January 19, 1938, filed an information against the defendant in Oklahoma county. This case was originally filed in the county court of Oklahoma county, but was afterwards transferred to the court of common pleas of said county, where defendant was tried and convicted as above stated.

The first proposition presented in the brief of defendant is:

“That said information was filed by the county attorney without using his discretion in determining whether or not an offense had been committed as alleged in the information.”

At the beginning of the trial the assistant county attorney in charge of the trial said:

“* * * and our office takes the position that in view of the direct wording of these statutes that whenever there has been a conviction in the municipal court, whether the evidence is sufficient to gain a conviction in the county court, that we are bound to file that action in the county court of this county.”

The section referred to is section 2633, Okla. Stats. 1931, 37 Okla. St. Ann. § 93, which reads as follows:

“Where a conviction has been had in the police court of any city, town, or village of this state, for the violation of any provision of this act, it shall be the duty of the police judge of such city, or the justice of the peace of any town or village, to immediately file the name of such person so convicted, together with a list of the witnesses used or subpoenaed, with the county attorney of such county, and it shall be the duty of such county attorney to file an information in the county court of such county charging said party so convicted with the offense of which he was so convicted and any county attorney failing or refusing to enforce the provisions of this act shall be removed from office.”

We are called upon in this case to decide whether, under the terms of this statute, it becomes the mandatory duty of the county attorney to file an information against a defendant whose name is certified to him by the police judge, or the justice of the peace of any town or village, as having been convicted in that court; or whether or not the county attorney is vested with the power, under his office as county attorney, to investigate the facts in each case, and file an information when in his judgment and discretion it is proper so to do. This is the first instance in which this court has been called upon to interpret and construe this statute, and it is important to the county attorneys of this state, and especially in the counties where are located large cities, and cities with commission forms of government. We have examined the statutes of many states having stringent laws with reference to the sale or possession of intoxicating liquors, but have been unable to find one with this same provision, or very similar thereto. From the many cases which we have read two early decisions, one by Judge Williams of the Supreme Court of this state (Evans v. Willis, 22 Okla. 310, 97 P. 1047, 19 L.R.A. [N. S.] 1050, 18 Ann. Cas. 258), and one by Judge Doyle (In re McNaught, 1 Okla. Cr. 528, 99 P. 241), give a full and complete review of the authorities and history of prosecutions by indictment and information under the English law, and under the procedure of early times, and under the practice adopted in this state by the enactment of the Constitution. It is provided by the terms of our Constitution, section 17, article 2, Okla. St. Ann. Const, art. 2, § 17, that:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

This provision of the Constitution was held self-executing in the case of In re McNaught, supra, and section 2828, Okla. Stats. 1931, 22 Okla. St. Ann. § 301, provides :

“Every felony must be prosecuted by indictment or information in the district or superior court. Misdemeanors must be prosecuted by information, except as otherwise provided by law: Provided, however, that the district court or the judge thereof, may, by order made, direct that any particular misdemeanor be presented to the grand jury, and when so ordered it may be prosecuted by indictment.”

Under the common law informations were filed by the Attorney or Solicitor General as a rule for offenses more immediately against the king, or the public safety, but he also had the power and discretion to file informations in misdemeanor cases for an offense against an individual. But in cases of individual offenses they were generally filed by the Masters of the Crown Office. These statutes with reference to the filing of informations were amended from time to time, and as stated by Clark on Criminal Procedure, page 128:

“In our states the criminal information should be deemed to be such, and such only, as in England is presented by the attorney or solicitor general. This part of the common law has plainly become common law with us.”

Following the rules of the common law, it thus became the rule in this country that prosecutions which in England were exercised by the Attorney or Solicitor General, became the duties of district and county attorneys under our practice. And, as stated in the case of Evans v. Willis, supra, 97 P. 1050:

“In this state it is made the duty of the county attorney, and not the Attorney General, to appear in the district courts of their respective counties and defend on behalf of the state or his county, all actions or proceedings, civil or criminal, in which the state is interested or a party; and, whenever the venue is changed in any criminal case, or in any civil action or proceeding in which his county or the state is interested or a party, it is the duty of the county attorney of the county where such indictment is found, or the county interested in such civil action or proceeding, to appear and prosecute such indictment, and to prosecute or defend such civil action or proceeding in the county to which the same may be changed. Wilson’s Eev. & Ann. St. Okla. 1903, § 1289, 19 Okla. St. Ann. § 183. And whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, the district court may, if it deems it necessary, appoint by an order entered on the minutes of the court some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose. Id. § 1293, 19 Okla. St. Ann. § 187. Section 17, art. 2, Const. (Bunn’s Ed. § 26), supra, providing that ‘no person shall be prosecuted criminally in courts of record for felony or misdemeanor, otherwise than by presentment or indictment or by information,’ enabling a felony to be prosecuted by information, which under the common law could only be prosecuted by indictment, did not extend the rule so that a person could be put on trial in a court of record for a felony on information verified and exhibited only by a private prosecutor. To hold that in courts of record such prosecutions for misdemeanor could be maintained by such an information would establish two rules of practice in such courts for exhibiting in-formations, one for misdemeanors and another for felonies. When the same officer prosecutes for the state in all such cases, such practice is not presumed to have been intended by the framers of the Constitution.”

In the above case, the question before the court was whether an individual other than the duly elected and qualified county attorney had the right, in this state, to prosecute a case where the information was not filed by the county attorney, and Judge Williams held that under the Constitution and laws the court was without jurisdiction to hear or determine the case, where the information was presented by a private person. The facts in this case reveal that the county attorney refused to file an information or to O.K. a complaint against the defendant, giving as his reason that the relator was “a good friend of his, and a good man to keep him posted on whisky cases.” The court further says:

“Hence, since the adoption of our state Constitution, no person can be prosecuted criminally in any court of record in this state for felony or misdemeanor other than by presentment of an indictment by a grand jury, or by information exhibited by the county attorney or other officer authorized by law. The information filed in this case by the private prosecutor, who was neither the county attorney nor any officer authorized by law, was void.”

It will thus be noted that under our Constitution and statutes, and the early interpretations thereof, that it has been the intention to place the responsibility for determination when the citizens of this- state should be informed against in the hands of a regular duly organized grand jury, or in the county attorney. State v. Snelson, 13 Okla. Cr. 88, 162 P. 444; Viers v. State, 10 Okla. Cr. 28, 134 P. 80; Ex parte Kelly, 45 Okla. 577, 146 P. 444; Watts v. Gerking, 111 Ore. 641, 222 P. 318, 228 P. 135, 34 A.L.R. 1489. In certain misdemeanor cases private individuals may post a bond and secure prosecution by the filing of a complaint. Section 3362, Okla. Stats. 1931, 39 Okla. St. Ann. § 528, Newton v. State, 14 Okla. Cr. 226, 170 P. 270. But this cannot be done where an information is to be filed. Ex parte Long, 26 Okla. Cr. 259, 223 P. 710; Whittemore v. State, 26 Okla. Cr. 338, 223 P. 890.

Under the statute for the enforcement of the prohibition laws of this state it is provided (section 2630, Okla. Stats. 1931, 37 Okla. St. Ann. § 15) :

“Wherever the words ‘this act’ appear in any of the laws of this state enacted for the suppression of the liquor traffic, commonly called prohibition laws, they shall be construed to mean and include all such prohibition laws of this state.”

Section 2651, Okla. Stats. 1931, 37 Okla. St. Ann. § 92, provides that it is the duty of the county attorney to “diligently * * * attend all inquisitions held under the provisions of this chapter, and diligently to prosecute all violations” of which they may obtain knowledge and to bring suits, etc., and further provides for removal from office for failing to perform any duty required by the provisions of this act.

Section 2654, Okla. Stats. 1931, 37 Okla. St. Ann. § 94, provides that it shall be the duty of all officers, including the county attorney to “diligently enforce all the provisions of this chapter” and provides for the removal from office of any officer failing to perform his duty, and authorizes the procedure thereof.

Section 2655, Okla. Stats. 1931, 37 Okla. St. Ann. § 95, makes it the duty of all officers “having notice or knowledge of the violation of this chapter, to notify the county attorney of the fact of any such violation, and to furnish him with the names of persons within their knowledge by whom such violation can be proven.”

Section 2633, Okla. Stats. 1931, 37 Okla. St. Ann. § 93, is the section heretofore quoted and is in question herein.

Section 2602, Okla. Stats. 1931, 37 Okla. St. Ann. § 8, declares it to be a crime to drink intoxicating liquor in any public place, and other places mentioned in the statute, and provides for a punishment by a fine of not less than $10, nor more than $100, or by imprisonment for not less than 5 days, nor more than 30 days, or by both such fine and imprisonment.

From a reading of all the above sections of the statute it will be noted, that it was the intention of the Legislature through the different provisions thereof, to place in the hands of the county attorney the information with reference to the violation of the provisions thereof, and that the institution of proceedings thereunder should be left to his discretion. This is in harmony with the other criminal statutes of this state. Oklahoma Statutes 1931, §§ 2829, 7619, 19 Okla. St. Ann. § 185; 22 Okla. St. Ann. § 303; McGarrah v. State, 10 Okla. Cr. 21, 133 P. 260; State v. Snelson, 13 Okla. Cr. 88, 162 P. 444.

They provide that all classes of crime shall be laid before him, and if, after a fair and complete investigation it is his best judgment that a crime has been committed, he O. K.’s a complaint, or files an information, as in his judgment is deemed advisable. One of the most cardinal rules in construing constitutional or statutory provisions is, to discover the intention of those who made them. Another cardinal rule is that constitutional or statutory provisions should be so construed that effect may be given all of its provisions. We do not believe that it was the intention of the Legislature when they enacted section 2633, Okla. Stats. 1931, 37 Okla. St. Ann. § 93, to provide that a mandatory duty should be placed upon the county attorney to file an information in the county court, without an investigation of the facts surrounding the case. To place such a construction upon this statute would be in conflict with the full terms and provisions of said act, and in conflict with the whole criminal procedure of this state. It would be to say that the county attorney, who has full and complete power to say when an information shall be filed in a felony case, has not that power when a violation of the liquor laws are involved. We do not think the Legislature so intended.

It will be noted from the sections above quoted that it is a violation of the law to drink intoxicating liquors in a public place. Municipal courts and justice of the peace courts have jurisdiction “under the act,” and can assess both a fine and imprisonment. Yet if this statute is to be given the construction contended for it would be the duty of the justice of the peace and municipal courts to certify each conviction to the county attorney and it would be his mandatory duty to file an information in the county court, without investigation, even though he might believe that the punishment inflicted in the lower court was sufficient punishment for the crime involved. It has often been held in this state that a prosecution in a municipal court for an offense is no bar to the prosecution for the same offense in the county court. In re Simmons, 4 Okla. Cr. 662, 112 P. 951; Id., 5 Okla. Cr. 399, 115 P. 380.

The same reasoning applies here. Under the law of this state the Legislature has the authority to grant to cities the authority to have a charter form of government. Under that power they have the right and authority to pass ordinances prohibiting the sale or possession of intoxicating liquors within their municipal borders, and they may make the penalty the same as the state laws. Cumpton v. City of Muskogee, 23 Okla. Cr. 412, 225 P. 562. Yet if this was done and a defendant given a fine and jail sentence in the municipal court, it would be the duty of the municipal judge to certify this conviction to the county attorney, and it would be his mandatory duty to file an information in the county court, regardless of the amount of fine and imprisonment given the defendant, and although it was his judgment that the punishment would be sufficient under the law. One more illustration: A defendant is arrested by police officers, or a constable, and his arrest is made by reason of an illegal search of his home, without the officer having secured a search warrant. He is convicted, or forfeits his bond, as in the instant case. This case is certified to the county attorney. From his knowledge of the facts he knows that it will be impossible to secure a conviction. Yet under this statute, if a construction be placed on the same as contended, it would be his duty to file an information in the county court and enmesh the county in costs, when he knew there was no chance to convict the defendant, or the facts which he learned on investigation might lead him to honestly believe that the defendant was not guilty of the crime charged. Yet he would have to file the information and defendant called upon to suffer the humiliation and expense of a useless prosecution.

We just do not believe it was the' intention of the Legislature, when it passed this act, to make it the mandatory duty of the county attorney to file an information when these cases were certified to him, but that it was their intention that his attention should be called to these cases, and that he should make an investigation of them and exercise his discretion as to whether or not an information should be filed. We do not, and it is not our intention to hold, that it is necessary for him to make an independent investigation when these cases are certified to him. It may be, and probably often is, sufficient evidence for him to act upon the information received. If he does so act he is warranted in doing so, and the very fact that an information is filed is a presumption that the county attorney is satisfied that the defendant should be prosecuted. In the instant case the defendant was alleged to have the possession of 20 pints of bonded tax paid whisky. He was not placed on trial but forfeited a $20 bond. If permitted to escape many violators of the law would hasten to the municipal or justice court and enter a plea of guilty, and receive a fine, and plead this as a bar to further prosecution. This cannot be done under the decisions of this court.

The defendant was never tried in municipal court. The evidence which the county attorney had may have been sufficient to cause him to file an information in this case, and by his conviction no doubt was. The mere fact that the assistant county attorney stated that he construed it a mandatory duty to file cases when they had been certified from the municipal court of Oklahoma City, and that he had done so in this case, is no reason for the discharge of this defendant in the present case.

It is next contended:

“2. That the county court exceeded its jurisdiction in making its order transferring said cause to the court of common pleas.
“3. That the court of common pleas was without jurisdiction to hear, try and determine said cause.”

Defendant, in his brief, to sustain this contention, relies upon article 7, section 12, and article 7, section 1, of the Constitution, Okla. St. Ann. Const, art. 7,' §§ 1, 12, and argues:

<<* * * but the jurisdiction conferred upon the courts to do certain things and acts must be préscribed by the Legislature, and nowhere in the statute by act of the Legislature can it be said that the county court could transfer a cause in which it has original jurisdiction to some other court having a concurrent jurisdiction.”
“* * * and that therefore the county court erred in transferring said cause to the court of common pleas over the objection and exception of defendant.”

It is not necessary for the purpose of this opinion to give the complete law creating the court of common pleas in Oklahoma county. It is found in chapter 72, House Bill 11, Session Laws 1933, 20 Okla. St. Ann. §§ 691-708. This law creates the court and defines its jurisdiction, and under its terms it had jurisdiction of the case under consideration. It is provided by the terms of said act, as follows:

“[Sec. 8.] The district court and the county court in this county wherein the court of common pleas is hereby established, may in its discretion, at any time transfer any cause * * * now pending or. hereafter filed in said district or county courts to said court of common pleas in the event that the subject matter and amount involved in said cause be within the jurisdiction of said court of common pleas, as provided for in this act, and that said cause shall thereupon proceed as if originally brought in said court.” 20 Okia. St. Ann. § 698.

The above section of the act gives express authority for the transfer of such cause to the court of common pleas. This case was not appealed from the municipal court to the county court, but was an original proceeding in the county court. The statute says: “* * * transfer any cause, etc.”, and certainly under the terms of this statute the county court had the right to transfer this case to the court of common pleas, and this court was not without jurisdiction to hear and determine the same.

The final propositions urged by defendant for the reversal of this case are:

“4. That the evidence upon which said prosecution was based has heretofore been destroyed by the officers of Oklahoma City, Okia., in violation of law, and defendant was not confronted with the evidence constituting the crime for which he was convicted.
“5. That the court should have sustained the demurrer of the defendant, Doss Grimes, to the evidence.”

The police officer who arrested this defendant testified that he found him in possession of 20 pints of tax paid liquor at Tenth and North Western in Oklahoma City. Defendant told him he had just made a delivery. He was booked in police court with possession of 20 pints; that he posted a bond of $20, and that the bond was forfeited. When asked where the liquor was that had been seized, the officer said: “We tagged one pint to be held for evidence and the rest of it was destroyed at the police station”; that the liquor was turned over to the lieutenant in charge of the vice bureau, and was destroyed on order of the police judge. No order by the police judge was introduced in evidence and no city ordinance was introduced in this case. There is no question of the validity of a search warrant involved in the instant case. From the testimony of the two police officers, the defendant was found in possession of 20 pints of tax paid whisky. He had just made a delivery of same and was arrested. The crime was committed in the presence of the officers and his arrest was lawful and his conviction proper under the testimony.

It is contended by defendant that this case should be reversed for the reason that the liquor was destroyed by the police judge and was not produced at the trial for inspection by the defendant, and that there was no proof that it contained a per cent, of alcohol of more that 3.2 per cent. The record does not show any request on the part of the defendant or his counsel for permission to introduce in evidence any of the whisky taken from the possession of the defendant. It does not show that he even requested to be introduced the pint of whisky which the officer testified had been labeled and marked for evidence. Nor does it show any exception taken to the failure to introduce any of the liquor seized. The proof revealed that defendant was in possession of 20 pints of whisky. This court has often held that it will take judicial notice that alcohol and whisky are intoxicating and that it is unnecessary to prove the alcoholic content of the same. Moss v. State, 4 Okla. Cr. 247, 111 P. 950; Skelton v. State, 31 Okla. Cr. 343, 239 P. 189; Richardson v. State, 21 Okla. Cr. 393, 208 P. 1052.

It is provided by the statutes of this state as follows: Oklahoma Statutes 1931, § 2640, 37 Okla. St. Ann. § 89:

“When a violation of any provision of this chapter, shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging so unlawfully used, and to take the same immediately before the court or judge having jurisdiction in the premises, and there make complaint, under oath, charging the offense so committed, and he shall also make return, setting forth a particular description of the liquor and property seized, and of the place where the same was so seized, whereupon the court or judge shall issue a warrant commanding and directing the officer to hold the property so seized in his possession until discharged by due process of law, and such property shall be held and a hearing and adjudication on said return had in like manner as if the seizure had been made under a warrant therefor.”

Section 2641, Okla. Stats. 1931, 37 Okla. St. Ann. § 90:

“All liquors, property and things seized under the provisions of this act shall, upon being adjudicated forfeited to the state, be forthwith destroyed by the officer in whose custody the same is at the time of adjudication. Provided, however, that the judge or magistrate may, in his discretion, appoint a special officer for the purpose of executing the judgment of forfeiture by destroying said liquors, property and things; provided, further, that if in the opinion of the judge or magistrate, such forfeited property and things, other than liquor/is of value and adapted to any lawful use, such judge or magistrate shall as a part of the order and judgment in the case, direct that such property or things of value be turned over to the board of county commissioners to be by said board of commissioners sold and disposed of for the benefit of the court fund of the county; provided, further, that twenty-five (25 per cent.) per cent, of all the proceeds, including all moneys and cash seized, with the other things of value, shall be paid to the party who prosecuted the search and seizure proceedings.”

Section 2642, Okla. Stats. 1931, 22 Okla. St. Ann. § 1261:

“In all cases where wines, whisky, beer or other intoxicating liquors mentioned in the Constitution or laws of this state or any personal property used for the purpose of violating any of the prohibitory liquor laws or gambling laws of this state, shall be seized by any officer or person with or without a search warrant, such officer or person is hereby required within five days to make a written report under oath and file the same with the county clerk of the proper or respective county where the same shall be so seized, which report shall in detail state the name of the officer or person making the seizure, the place where seized and an inventory of the property, articles or intoxicating liquors so taken into possession, and within said five days said person is hereby required to deliver the same to the sheriff of the county and take the sheriff’s receipt therefor, in duplicate and such sheriff shall retain the same and all thereof, until the same shall be destroyed pursuant to the orders of the court. In computing the time, five days, Sundays and holidays shall be excluded and not counted. A duplicate copy of said receipt shall immediately be filed with said county clerk, who shall keep a record of same, provided the sheriff and his deputies shall be required to make the affidavit and issue the receipt and otherwise comply with the provisions of this act. Provided, that all liquors so seized shall be preserved for use as evidence in the trial of any action growing out of such seizure and all officers seizing any such liquors are hereby required to mark the bottles or containers for identification by writing thereon the date of the seizure and the name of the person from whom seized. The sheriff shall be liable on his bond for the safe keeping of all such property so turned over to him under the provisions of this act.”

Under these statutes it is the duty of the officer seizing liquor or property, either with or without a search warrant, to arrest the defendant and to take the liquor or property immediately before the court or judge having jurisdiction in the premises. In the case at bar the officer should have taken the liquor seized before “the court having jurisdiction in the premises”, and made his return as required by the above statutes. The law in this state does not give the police court of Oklahoma City authority to issue search warrants, nor do they have the right under the statutes to receive liquors which have been seized by police officers and confiscate the same, unless the court having jurisdiction in the premises so orders. This can only be done in the manner prescribed by law, and by the courts which the Legislature of this state have given the power so to do. There is nothing in the record in this case to show that the city council of Oklahoma City has ever passed an ordinance with reference to the confiscation of intoxicating liquors. If there is any such ordinance its validity will be passed upon by this court when properly presented. But there is nothing in the state statute which gives the police judge the authority to order the confiscation of liquor which has been seized by police officers, either with or without a search warrant. Under section 2640, Okla. Stats. 1931, 37 Okla. St. Ann. § 89, supra, the court having “jurisdiction in the premises” has the power to make an order “directing the officer to hold the property so seized in his possession until discharged by due process of law”. Under this statute, we see no reason why the court having jurisdiction, if it so desired, could not, in the event that liquor was seized by police officers, order it held by them until final disposition was made by order of the court. The final disposition would be by the court having “jurisdiction in the premises”, and not by the police judge. This would keep the property or liquor in “status quo” until final order of disposition was made by the court.

In the case of Hess v. State, 84 Okla. 73, 202 P. 310, the Oklahoma Supreme Court, in an opinion by Judge Kennamer, who is now Federal Judge of the Northern District of Oklahoma, said [page 315] :

“Section 3617, Revised Laws 1910, supra, 37 Okla. St. Ann. § 89, does not authorize an officer to make a search of premises without a search warrant, but provides, where a violation of the prohibitory laws takes place in the presence of an officer, he may arrest the offender, seize the liquor, bar, furniture, fixtures, etc., and then provides that after such seizure the seizing officer must take the same immediately before the court or judge having jurisdiction in the premises and there make complaint under oath charging the offense so committed. The court should thereupon issue a warrant commanding the officer to hold the property so seized in his possession until discharged by due process of law,”

In that case the court held that the search was illegal. There was no arrest of the owner of the premises for a violation of the law as a result of the search. The only question was as to the rights of property seized by the officer under the warrant. This case, however, fully discusses the question involved in the instant case as to the duty of the officer who seizes liquor or property with or without a search warrant. In the case at bar the defendant committed the crime in the presence of the officers and was properly arrested and the liquor seized. We fail to séé how the defendant could complain of an irregularity in the return made by the officer, or that no return was made. His arrest was proper when he was found in possession of the whisky, and in no way depended upon the validity of the return made by the officer. As was held by this court in the case of Viadock v. State, 30 Okla. Cr. 374, 236 P. 56:

“However, the statute does not make void such warrants as have been executed by failure of the officers to make return thereon. It is the duty of the officer serving the search warrant to make due return when the same is served, but the failure to do this does not invalidate and make void what was legally done under the authority of the search warrant.” Hensley v. State, 53 Okla. Cr. 22, 3 P. 2d 211; Rose v. U. S., 6 Cir., 274 F. 245.

It may be argued that the method provided by the statutes is cumbersome and will deter police officers from searching for liquor. There is no reason for this. The answer is, that the Legislature of this state has so enacted and it is the law of the land. Neither the courts nor the officers can legislate. It is for the courts to interpret the law as it is written. The Legislature of this state has the power and authority to make the municipal court of Oklahoma City a court of record if they so desire. State v. Linn, 49 Okla. 526, 153 P. 826, Ann. Cas. 1918B, 139.

There is no doubt but that it was the intention of the Legislature by the enactment of the above statutes to not .only safe-guard the rights of the citizens of this state in the protection of their property and give them an opportunity to be heard before it was confiscated, but it was also their intention to place a duty and responsibility upon the sworn officers of this state to see that the property which comes into their possession by virtue of the search and seizure laws should be disposed of in the manner provided by law. This principle is clearly illustrated by the facts and the opinion in the case of Hess v. State, supra.

It is further provided by the statutes of this state, as follows: Section 2654, Okla. Stats. 1931, 37 Okla. St. Ann. § 94:

“All sheriffs, constables, marshals and police officers, and all county and city attorneys, shall diligently enforce all the provisions of this chapter. If any such officer shall fail or refuse to do or perform any duty required by the provisions of this chapter, he shall be removed from office as herein provided. For the purpose of such removal a petition may be filed in the district court of the county wherein such officer resides, in the name of the state, on the relation of any citizen thereof upon the recommendation of a grand jury or on the relation of the board of county commissioners, or of any attorney appointed by the Governor under the provisions of this chapter.”

The procedure for removal is prescribed therein.

The Supreme Court of this state, in an early decision, construed this statute, together with other statutes of similar import, in an exhaustive opinion by Judge Hardy, State ex rel. Burns v. Linn, 49 Okla. 526, 153 P. 826, Ann. Cas. 1918B, 139. In this case the city council of the city of Tulsa had enacted an ordinance which dealt with the removal from office of city officials. The officers of that city were indicted by a grand jury under the terms of the statutes above quoted. They sought a writ of prohibition, contending that the state did not have jurisdiction under the statutes, and that the provisions of the ordinance for the removal of officers of the city of Tulsa was exclusive. The Supreme Court held to the contrary, stating [page 829] :

“The general rule, in the absence of special constitutional provision, is that all officers whose duties pertain to the exercise of the police power of the state are in that sense state officers, and under the control of the Legislature, even though they may be officers of a municipality and charged with the enforcement of the local police regulations of such municipality. 28 Cyc. 296. Counsel at the bar in oral argument of this case declined to discuss the question as to whether the enforcement of the prohibition and gambling laws and laws against prostitution were purely municipal, or whether they affected the state at large, taking the position that the sole question for our determination wás one of jurisdiction, being whether the general laws of the state enacted for the removal of delinquent police officers are valid and operate within the territorial limits of the city of Tulsa, or whether the provisions of the charter and ordinances are exclusive. We have already shown that it is within the power of the state to enact laws for the police protection of its citizens, which shall be effective throughout the state and all of its subdivisions, and coextensive in their operation with the territorial limits of the state, and that such laws would be effective in the city of Tulsa, and the provisions of the charter and ordinances of said city could not operate as a repeal thereof. It is true that the city might enact ordinances not inconsistent with the state laws, regulating such matters within its territorial limits, and make suitable provisions for the enforcement thereof, and provide for the removal of officers charged with the duty of enforcing such regulations who should fail in the discharge of that duty. This does not mean, however, that the state has completely abdicated all authority in the premises and delegated full and unrestricted control over such matters to the local officials. If the contention of plaintiff be admitted, it destroys the uniformity and efficiency of the police power of the state, leaves these matters subject to the sole management of the local authorities, and would permit a condition to exist in a city with such charter entirely different from and at variance with the conditions in other parts of the state; and if the officers of a city which has adopted a charter are not in sympathy with the enforcement of such laws, or other laws of like character, were the enforcement of said laws left entirely in their hands, it is easy to see that such laws, or indeed any law, might become a dead letter, and their enforcement a farce, and wholesale violations thereof might occur with the knowledge and consent of the city officials.”

Further in this opinion the court says:

“The state has a sovereign interest in local police regulation, and certainly the enforcement of the laws relating to liquor, gambling, and prostitution are matters within the sovereign power of the state, which it has not seen fit, either by the Constitution or the statutes, to completely surrender into the hands of the city officials, and the power to enforce obedience to its statutes is necessarily an inherent attribute in the power to enact them, for if it be once conceded that the state may not by proper measures enforce its regulations, the regulations themselves become futile and ineffective, except so far as the sentiment of any particular community may demand that the same be enforced, or that the officers thereof may see fit so to do, according to their particular personal views upon the matter. We do not apprehend that any dire consequences will follow a pronouncement upon our part that the state still has the right to compel an enforcement of its wholesome police regulations in each and every part of the state, and that officers may not with impunity neglect the duties imposed upon them by law, at their pleasure.”

With this law in effect, we do not believe any officer, either of the city or state, will hesitate to do his full duty in the enforcement of the law in the manner provided by the statutes.

For the reasons above stated the judgment of the court of common pleas of Oklahoma county is affirmed.

DOYLE, J., concurs. DAVENPORT, P. J., absent.


author: DOYLE, J.

text:
    JOHN BOHANNON v. STATE.
    No. A-9475.
    Oct. 7, 1938.
    (83 P. 2d 422.)
    E. H. Gipson, of Sayre, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Neville Gillum, Co. Atty., of Sayre, for the State.
   DOYLE, J.

Upon information charging that in Beck-ham county, on or about the 1st day of May, 1987, he did unlawfully have in his possession nine pints of whisky, with the unlawful intent to sell the same, John Bohannon was tried and convicted, and his punishment fixed at a fine of $50 and 30 days’ imprisonment in the county jail.

Motion for a new trial was denied on January 24, 1938; thereupon the court rendered judgment in accordance with the verdict. To reverse the judgment he appeals, assigning numerous errors, and that the verdict rendered is not supported by the evidence and is contrary to law.

It appears that the defendant’s motion to suppress the evidence came on for hearing when the case was called for trial, and the court after hearing the evidence made the following order:

“The court finds that the search warrant should be stricken for the reason that the same was invalid and that the evidence of liquor found under and by virtue of the said warrant within the curtilage or home of said defendant should be suppressed, and the court further finding that the liquor found on defendant’s premises and outside of the curtilage is not subject to attack by motion to suppress the evidence, for the reason that a search warrant was not necessary for defendant’s land outside of the curtilage.”

The evidence on the part of the state showed that Ed West, sheriff, accompanied by officers Albert Little, Clarance Phillips, A. B. Morrison, and John Bell, went to the John Bohannon home and farm. There the sheriff served a search warrant on John Bohannon, and they proceeded to search the residence, barn, all out-buildings and the 160 acre farm.

The first witness, Ed West, sheriff, testified that he found three pints of Paul Jones whisky in a tow sack, along-side the fence, between the field and the pasture on the 80 acres the residence is on, and 300 yards northeast of the house; that he was acting under the search warrant when he found this liquor.

The only other witness for the state, Albert Little, deputy sheriff, testified that in company with Sheriff West, he went out to the Bohannon place and assisted in the search that was made there; that he searched the south 80 of the Bohannon farm, and found two pints of Cream of Kentucky whisky, about 200 yards from the house, and turned them to the sheriff.

As a witness in his own behalf, John Bohannon testified that he was 69 years of age; that he did not accompany the officers in their search of his place, and did not know- except from their testimony where or what they found; that none of the liquor found by the sheriff on the north 80 or the liquor found by deputy Little on the south 80 of his place was his; that he did not authorize or direct anybody to place the liquor out there; that he did not know it was out there.

On cross-examination he stated that he had never been convicted of a violation of the prohibitory liquor law; that he was the owner of the 160-acre farm that was searched.

The foregoing is in substance the testimony of the state and that of the defendant.

At the close of the evidence the defendant moved the court to instruct the jury to return a verdict of not guilty, on the ground that the evidence is wholly insufficient to sustain a conviction, which was overruled. Exception.

To justify or sustain a conviction for unlawful possession of intoxicating liquor, there must be evidence sufficient to prove possession, and also evidence of the criminal intent. Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869.

On the record before us, it appearing that the trial court having held that the search warrant was invalid, although the complaint and search warrant described the 160-acre farm of the defendant, we think the search and seizure in this case was unreasonable within the meaning of section 30, Bill of Rights, Okla. St. Ann. Const. art. 2, § 30, and for this reason all the state’s evidence was improperly admitted in violation of defendant’s constitutional and statutory rights, therefore, the trial court should have sustained the defendant’s motion for a directed verdict of acquittal. Mason v. State, 60 Okla. Cr. 392, 64 P. 2d 1238.

In our opinion, the state’s evidence, if admissible, was hot sufficient to sustain a conviction. It was purely circumstantial and of such a character that it did not eliminate every other hypothesis than guilt of the defendant, and was insufficient to show the alleged possession by the defendant.

Before the jury is authorized to find a defendant guilty, there must be evidence sufficient to show that the offense charged was committed and to identify the defendant with the commission of it as charged in the information.

For the reasons stated, the judgment of the court below is reversed, and the cause remanded with direction to dismiss.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    CECIL SAIED v. STATE.
    No. A-9387.
    Oct. 14, 1938.
    (83 P. 2d 605.)

      Chapman & Chapman, of Shawnee, and Billingsley & Kennerly, of Wewoka, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Hubert Hargrave, Co. Atty., of We-woka, for the State.
   BAREFOOT, J.

The defendant was charged jointly with Clyde Wakefield and Jack Kerry with the crime of arson on the 29th day of January, 1936, in Seminole county. A severance was granted defendant. He was tried, convicted and sentenced to serve a term of one year in the penitentiary, and has appealed.

It is first contended by defendant that the verdict of the jury is contrary to the law and the evidence. From a reading of the record it is revealed that the defendant was the owner of a two-story brick hotel, known as the “Savoy Hotel” in the town of Maud, Seminole county, Okla. This hotel was rented to and being operated by Sam K. Joseph, who had leased the same from the father of defendant, Oscar Saied. The building was insured for about $7,500, and was afterwards sold for $700.

Both Clyde Wakefield and Jack Kerry, codefendants, testified for the state in this case. Their testimony was that Wakefield lived in New York state, and had left there in September, 1934, and went to Palm Beach, Fla., and visited and worked in gambling houses and other places, and had met Jack Kerry at Reno, Nev., and they had worked together and had both come to Oklahoma City in January, 1936. They met Cecil Saied in January, 1936; he had a room at the Windsor Hotel; that defendant told them he had an old vacant hotel at Maud, and that it was not making him any money, and that the best thing to do was to go down there and burn the hotel as it was heavily insured ; that they agreed to burn it, and he was to pay them $200. They discussed with him the proposition of the manner of burning the same on different occasions. They went to Maud about the middle of January and stayed at the hotel two or three days, but did not burn it at that time for the reason that several people were living at the hotel. They got acquainted with Mrs. Haynes who was working at the hotel; that the defendant gave them a key to one of the rooms. They returned to Oklahoma City and talked with the defendant again, and he told them all the people were out of the hotel with the exception of two who were downstairs, and that the gasoline was in one of the rooms. This gasoline was afterwards found in one of the rooms by Mrs. Haynes. Afterwards they went to defendant’s room and Ernest Adwon and Mitchell Andrews came to the room, and that the four of them left in a car for Maud between 9 and 10 p. m., and they left the defendant standing on the corner of Broadway and Second street. They arrived at Maud after midnight, and the car was stopped in a dark place near the Savoy Hotel, and that both Clyde Wakefield and Jack Kerry left the car and in about 30 minutes Jack Kerry returned and told them they were ready to go back to Oklahoma City; that they did, and the codefendant, Clyde Wakefield, remained in Maud, staying in one of the hotel rooms that night and the next day, and on the night of January 28th, or the early morning of January 29th, set fire to the building, which burned two of the rooms and hallway, and which was finally extinguished by the fire department. The codefendant, Wake-field, walked to Seminole and there caught a train for Oklahoma City, and both witnesses were told by the defendant that they would get their money. The’reason the witness Jack Kerry returned to Oklahoma City before the building was burned was that they decided it would be best for one of them to be in their room at Oklahoma City at the time the building was burned. The defendant filed suit on the insurance policies for about $2,500. The policies totaled about $7,500. The record does not reveal whether any insurance was ever paid. Both Wakefield and Kerry left Oklahoma City in about 30 days and were not paid by the defendant. They traveled to the west coast, working in gambling clubs and gambling most of the time. They started back to the east coast and stopped off in Oklahoma City, ostensibly for the purpose of trying to collect the $200 from the defendant. They were arrested and placed in jail and made written statements to the officers confessing their part in the burning of the Savoy Hotel.

Under the above testimony there is no question that under the law they were accomplices, and it was necessary for the state to corroborate their testimony before the defendant could be convicted. It is the contention of the defendant that their testimony was not corroborated, and for this reason was insufficient, and that the demurrer thereto should have been sustained. To corroborate the evidence of the codefendants, Wakefield and Kerry, the state offered the evidence of Ernest Adwon and Mitchell Andrews. They both testified to being employed by the defendant to take the two witnesses to Maud on the night of January 28, 1936; that defendant agreed to pay $25, and Mitchell Andrews was to be paid for the use of his car. It seems that Ernest Adwon made the deal with Mitchell Andrews and that they then both saw the defendant, and defendant explained to them just what they were to do. These two witnesses corroborated in every detail the evidence of Wakefield and Kerry as to the trip to Maud and the return to Oklahoma City. These witnesses were in the room of defendant when they went to get them, and defendant told them that they were to take these parties to Maud and wait 30 minutes, and then return to Oklahoma City. They did not know what they were going there for, and did not know the hotel was to be burned. Adwon testified that after he saw the papers that the hotel was burned, he thought it had been burned by the witnesses. Adwon was a second cousin of the defendant, and Mitchell Andrews was a brother-in-law of Ernest Adwon. Ernest Adwon testified that he had had some trouble with the brother of defendant over the collision of an automobile, and that he did not feel kindly toward the defendant and his brother.

Mrs. J. D. Haynes testified that she was a maid at the Savoy Hotel, and was living there when the fire occurred. She described the fire and the damage done, and also testified that she had seen the witnesses Clyde Wakefield and Jack Kerry when they stopped at the hotel in the middle of January for two or three days. That she had also seen the defendant there some time in January, 1936, a short time before the fire.

J. A. Allred, the fire chief, and Sam K. Joseph testified to the extinguishing of the fire and the amount of damage, and to the leasing of the building.

A statement of the above evidence is sufficient to show that the witnesses Wakefield and Kerry were properly corroborated. It is contended by the defendant that the evidence shows that the witnesses Ernest Adwon and Mitchell Andrews were accomplices, and under the rule of the court, one accomplice cannot corroborate another, and their evidence should not be considered. We do not think the evidence is such as to make these parties accomplices. No such view was taken by the trial court, and at the time of the trial no request was made by counsel for defendant that they be so considered. The court was not requested to so instruct the jury. We are of the opinion that the evidence of the witnesses Wakefield and Kerry was amply corroborated.

Our court has defined an accomplice as “one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily co-operates or aids or assists in the commission of the crime”. Hendrix v. State, 8 Okla. Cr. 530, 129 P. 78, 43 L.R.A., (N.S.) 546; Buttry v. State, 18 Okla. Cr. 330, 194 P. 286; McKinney v. State, 20 Okla. Cr. 134, 201 P. 673, 674; Sipes v. State, 36 Okla. Cr. 1, 251 P. 511.

Wharton on Criminal Evidence, section 440, defines an “accomplice” as: “One who knowingly, voluntarily and with common intent with the principal offender, unites in the commission of the crime.” We do not think the evidence in this case brings the witnesses Adwon and Andrews within the terms above expressed. There is no testimony that they “knowingly” or “voluntarily” co-operated or assisted in the commission of this offense. On the other hand, the evidence is to the contrary. Knowledge that a crime has been committed and concealment of such knowledge does not make one an accomplice unless he aided or participated in the offense. Wallis v. State, 49 Okla. Cr. 58, 292 P. 1056, and cases cited therein, page 62, 296 P. 1056.

It is next contended by defendant that the court erred in permitting the state to read the transcript of the evidence of Ernest Adwon, which was taken at a former trial of this case. In the first place this testimony was given at a former trial in the district court, and was not the evidence given at a preliminary hearing. The defendant was represented by the same counsel who represented him in this trial, and the witness was subjected to a thorough cross-examination. The showing made by the state as a predicate for the introduction of the testimony was that the witness resided in Oklahoma City, Oklahoma. The fire marshal testified that he went to the home of the witness a day or so before the trial, and also the night of the day before the trial began; that he talked to the wife of the witness, and she informed him that he had gone to Iowa on a visit, and she did not know when he would return. Mitchell Andrews also testified that he went to the home of Ernest Adwon and was informed by his wife he had gone to Iowa and would not return for at least ten days; that the witness was out of the state. A subpoena was issued on the 26th day of February, 1937, and sent to Oklahoma county. This subpoena was returned on the 10th day of March, 1937, and showed that it was served upon his wife at his residence on March 8, 1937. The trial was set for the 11th day of March, 1937.

The brief of defendant cites one case in support of this proposition. Rich v. State, 51 Okla. Cr. 418, 1 P. 2d 805. The brief of the state cites one case, that of Kelley v. State, 51 Okla. Cr. 249, 300 P. 436. In the Rich Case, supra, the evidence simply showed that a deputy sheriff testified that he made a search for the witness “west of Mission City, near the Carr schoolhouse, and that thereafter he went nine miles east of Holdenville and outside of Seminole county searching for her; that he took Dr. Hunter, county health officer, and Norma Ragsdale with him; that they were unable to find the witness.” [page 807] The court said: “The showing of the state was weak, but counsel for defendant saved no exceptions to the order of the court admitting the evidence.” The court affirmed the case, finding that the record showed that attorneys for the defendant were in contact with witness just before the trial, and failed to inform the state of her whereabouts. There was nothing in the case to show that the witness was in another state and out of the jurisdiction of the court, as was shown in the case at bar. The Kelley Case, supra, relied upon by the state, was a case from Tulsa county. The witness resided near the edge of the city of Tulsa, in Osage county. A subpoena was issued for him and an officer who attempted to serve it, and several other witnesses, testified that the witness was out of the state. The contention was made that the evidence that the witness was out of the state was hearsay testimony and therefore inadmissible. Judge Davenport, in the above case, overruled this contention, basing his decision upon the case of Henry et al. v. State, 32 Okla. Cr. 67, 240 P. 128, also giving as a reason therefor that counsel agreed that attorneys representing defendant were given an opportunity to interpose objections to any questions propounded to the witness in the preliminary examination, and secure a ruling upon them before an answer was returned to the jury.

We have made an independent investigation and find that this question has been presented in many different forms to this court. Many of the cases are quite similar, but do not present the same facts as in the instant case. The following cases being among those that have been read and considered: Warren v. State, 6 Okla, Cr. 1, 115 P. 812, 34 L.R.A., N.S., 1121; Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L.R.A., N.S., 113; Jeffries v. State, 13 Okla. Cr. 146, 162 P. 1137; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 P. 453; Kearns v. State, 14 Okla. Cr. 142, 168 P. 242; Baldock v. State, 16 Okla. Cr. 203, 182 P. 265; Davis v. State, 20 Okla. Cr. 203, 201 P. 1001; Golden v. State, 23 Okla. Cr. 243, 214 P. 946; Pierce v. State, 35 Okla. Cr. 67, 248 P. 654; Henry v. State, 32 Okla. Cr. 67, 240 P. 128; Houser v. State, 41 Okla. Cr. 129, 271 P. 857; Scott v. State, 43 Okla. Cr. 232, 278 P. 393; Ritchie v. State, 46 Okla. Cr. 155, 287 P. 1110; Weil v. State, 47 Okla. Cr. 88, 287 P. 752; Turner v. State, 48 Okla. Cr. 74, 289 P. 1111; Tobin v. State, 49 Okla. Cr. 265, 293 P. 575; Kelley v. State, 51 Okla. Cr. 249, 300 P. 436; 79 A.L.R. note 1392; Smith v. State, 147 Ga. 689, 95 S.E. 281, 15 A.L.R. 495; People v. Crandall, 100 Cal. App. 785, 281 P. 81.

From a reading of the above cases it will be observed that this court has been very liberal in permitting the introduction of evidence by transcript to be read to the jury, where the proof shows that the witness is out of the state at the time of the trial. Where the facts show that the witness is a resident of the state and his absence therefrom is only temporary as was shown in this case, we think the trial court should be very careful in exercising his discretion in the permitting of evidence to be read, and especially is this true in a case where the evidence was taken in a preliminary hearing. This question was discussed very fully in the case of Davis v. State, 20 Okla. Cr. 203, 201 P. 1001, when the court said:

“We think that this court in former opinions has followed a rule sufficiently liberal in permitting testimony taken at a former trial or a preliminary hearing to be used in the absence of the witness, and that this court should not, by judicial construction, extend or enlarge upon the rule announced in former decisions. In many instances the prosecuting officer might prefer to have the testimony taken at a former hearing read to the jury rather than to run the risk of having the witness appear upon the witness stand to be subjected to a rigid cross-examination in the presence of the jury. To lay down the rule that a mere showing that a resident witness is in another state and that no effort or diligence to produce the witness in open court need be shown might enable public prosecutors and others, if it appeared to their interest, to cause witnesses to absent themselves from the jurisdiction of the court to escape further cross-examination. To say that no diligence is required to produce the witness in open court, where it is possible to do so, is not in keeping with the spirit or the letter of the constitutional guaranty that a defendant in a criminal action has a right to be confronted face to face with the witnesses against him. Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L.R.A. (N.S.) 1121; Baldock v. State, 16 Okla. Cr. 203, 182 P. 265; Temple v. State, 15 Okla. Cr. 176, 175 P. 733. As to witnesses out of jurisdiction, see notes to 25 L.R.A. (N.S.) 874; Motes v. U.S., 178 U.S. 458, 20 S. Ct. 993, 44 L. Ed. 1150.
“We do not mean to say or intimate that the county attorney or those interested in this prosecution did not desire the presence of the witness Hall. What we do mean to hold is that it would be dangerous to relax the rule that a reasonable effort and diligence to produce the witness should be shown, where he and his place of residence were within reach of the court’s processes after the cause was set for trial, and in our opinion no such showing was made here. The defendant should not be deprived of the right to be confronted by the prosecuting witness at the final trial merely because the witness desired to transact important business in another state.”

In the case at bar many of the propositions urged in the Davis Case have been eliminated. The testimony read was that given at a former trial and not at a preliminary hearing. Defendant was represented by the same counsel, and a searching cross-examination given to the witness before the district judge who well understood the rules as to the admissibility of evidence. The record revealed that a subpoena had been issued to the county where the witness resided and returned showing service upon his wife at his residence. No subpoena had been issued in the Davis Case. There was nothing in this case to show that the state did not desire the presence of the witness Adwon rather than to read his testimony.

In the case of Houser v. State, 41 Okla. Cr. 129, 271 P. 857, this court held that the predicate laid was not sufficient, but that the evidence of the witness was cumulative, and therefore the case would not be reversed. The same is true in this ease. The evidence of the witness Ernest Adwon and Mitchell Andrews was practically the same and no doubt the same results would have been reached, had the testimony of the witness Adwon not been introduced.

If the testimony of Ernest Adwon stood alone as the only evidence corroborating the witnesses Wakefield and Kerry, the plea for a reversal of this case would appeal to us much stronger, but with the evidence of Mitchell Andrews and others corroborating their testimony, and in view of the opinions heretofore expressed by this court, it is our opinion that the judgment of the district court of Seminole county should be affirmed, and it is so ordered.

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


author: PER CURIAM.

text:
    JIM THIGPEN v. STATE.
    No. A-9442,
    Oct. 14, 1938.
    (83 P. 2d 585.)
    James M. Hays, Jr., of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Okmulgee county of possession of intoxicating liquor and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50.

A motion has been filed by the Attorney General to dismiss the purported appeal on the ground that no written notice of the intention to appeal was served on the county attorney or the court clerk.

Section 3193, O.S. 1931, 22 Okla. St. Ann. § 1055, is as follows:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

The failure to serve a written notice on the court clerk and county attorney is jurisdictional. Where no notice of intention to appeal is served on the court clerk and county attorney, and where no summons is issued and served on the Attorney General, and no waiver of the issuance and service of summons is shown, this court acquired no jurisdiction of the appeal. Andrews v. State, 5 Okla. Cr. 124, 113 P. 241; Clemmons et al. v. State, 5 Okla. Cr. 119, 113 P. 238; Lutke v. State, 37 Okla. Cr. 18, 255 P. 719; Brown v. State, 55 Okla. Cr. 11, 23 P. 2d 719; Austin v. State, 55 Okla. Cr. 278, 28 P. 2d 1113; Cadwell v. State, 56 Okla. Cr. 369, 40 P. 2d 685; George v. State, 56 Okla. Cr. 370, 40 P. 2d 1117.

It appears from the record that the contention of the Attorney General is well taken, that no written notice was served on the court clerk or county attorney; that no summons was issued and served, and the Attorney General did not waive the issuance and service of a summons; that the motion of the Attorney General should be sustained.

For the reasons stated, the appeal is dismissed.


text:
    DON BAKER v. STATE.
    No. A-9476.
    Oct. 14, 1938.
    (83 P. 2d 586.)

      Walter Hubbell, of Walters, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for manslaughter in the first degree, and sentence of imprisonment in the penitentiary for a term of 45 years.

Plaintiff in error sought an acquittal of the charge against him on the ground that he had no connection with the felonious assault resulting in the death of the decedent.

The first assignment is that: “The court erred in overruling the defendant’s motion for a continuance.”

When the case was called for trial the defendant moved for a continuance, because of the absence of Claud Herron, deputy sheriff.

“That said witness if present would testify that he arrested the defendant at a filling station about 16 miles east of Walters, near a point where the defendant had a collision with and killed a mule with his car, and that at the time of his arrest the defendant was trying to call the sheriff of Cotton county to report said wreck.”

In the motion it is also stated that Dr. Kent G. Lath-am of Oklahoma City had been subpoenaed and was absent, who if present would testify that he helped perform an autopsy on the deceased, Lawrence Rich; that it was impossible to ascertain from said autopsy what caused the death of said deceased, but that in his opinion his death was not caused by the blow received by said deceased on the head, as described by Dr. Baker.

In reviewing the refusal of a continuance on account of absent witnesses, the record will be examined, and the evidence adduced on the trial will be considered by this court for the purpose of determining whether the showing made was such as made it the duty of the court to grant a continuance.

A continuance should be granted only that justice may be done, and not merely for purposes of delay. Ross v. State, 34 Okla. Cr. 363, 246 P. 645.

As a general rule, a continuance will not be granted for the purpose of procuring testimony that is merely cumulative. Petty v. State, 11 Okla. Cr. 438, 147 P. 782.

It has been uniformly held by this court that an application for continuance in a criminal case is addressed to the sound discretion of the trial court, and, unless it clearly appears that there has been an abuse of such discretion, this court will not reverse the judgment for a refusal to grant a continuance.

Upon the record before us, we are of the opinion that it was not error for the court to overrule the motion for a continuance.

Error is assigned on overruling the defendant’s challenge for cause of a juror, and refusing to restore to the defendant an additional peremptory challenge after exhausting all his peremptory challenges by reason of having to challenge said juror.

The record shows that on October 11, 1987, a jury was drawn.

Only the ruling of the court is set forth in the record. It does not contain the voir dire examination of said juror. However, it appears the court allowed the defendant one additional challenge. On the record before us we cannot hold that the court erred.

The third assignment is:

“That the court erred in ordering and directing the special venire of jurors to be summoned by Homer Jones, deputy sheriff, after the regular panel had been exhausted, for the reason the sheriff of Cotton county was a material witness against the defendant.”

None of the proceedings had upon the trial of this challenge are set forth in the record. The record merely shows the following recital of proceedings had October 12th:

“The bailiff was sworn to take charge of the jury. The defendant requests that the special venire be drawn from the regular jury panel. Which request is by the court overruled. Exceptions taken.
“Deputy sheriff Jones was ordered by the court to pick up six talesmen. Defendant now objects to deputy sheriff Homer Jones selecting six additional talesmen as jurors in this case, for the reason that the sheriff of this county is a material witness against the defendant, and is biased and prejudiced against him.
“By the Court: Overruled. Exceptions taken.
“Thereupon both sides announce ready for trial.”

Counsel for plaintiff in error in his brief states:

“This question has been passed upon many times by this court, and it has continuously held: Tt is essential to a fair administration of justice that an open or special venire should be summoned by an officer who is not disqualified by reason of interest, bias or prejudice.’ ” Citing Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Liddell v. State, 18 Okla. Cr. 87, 193 P. 52, 16 A.L.R. 405. Lyde v. State, 21 Okla. Cr. 426, 209 P. 226; Welch v. State, 36 Okla. Cr. 298, 254 P. 503; Hammock v. State, 52 Okla. Cr. 429, 6 P. 2d 16.

When a defendant seeks a reversal in this court on account of error of the trial court, the record must show the proceedings upon which the alleged error is based. Ables v. State, 35 Okla. Cr. 26, 247 P. 423.

In the case at bar the alleged error complained of is not properly presented by the record. While there is a recital that: “Deputy sheriff Jones was ordered by the court to pick up six talesmen,” it does not appear that any talesman was sworn as a juror or served upon the jury.

In the case of Dumas v. State, 19 Okla. Cr. 413, 417, 201 P. 820, it is said [page 823] :

“It has been repeatedly held by this court: ‘On appeal the burden is upon the appellant to establish both error and prejudice resulting therefrom.’ Cardwell v. State [20 Okla. Cr. 177, 201 P. 817].
“As plaintiff in error has not brought before this court the record of the hearing had upon the challenge to the special venire of talesmen, and, further, it not appearing that the sheriff was a material witness against defendant, it cannot be said that the trial court, in the absence of such a showing and proof, committed error prejudicial to the substantial rights of defendant in overruling the challenge to the special venire.”

It is not the policy of the law to permit courts to reverse a conviction for crime upon mere technicalities alone, but to limit them to reversals for errors which are prejudicial to some substantial right of the accused.

The Legislature has specifically provided in section 3206, Procedure Criminal, St. 1931, 22 Okla. St. Ann. § 1068, that no judgment of conviction shall be reversed in any matter of pleading, or procedure, unless, in the opinion of the court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.

One of the grounds for a new trial and assigned as error, and now urged for reversal of the judgment, is that the evidence was insufficient to establish his guilt, and this insistency called for the extendéd statement of the testimony in the case.

It is urged that the evidence was insufficient to show that the injury inflicted on the decedent caused his death.

The rule that one who unlawfully inflicts an injury upon another and thereby accelerates the death of such other is criminally responsible therefor, although death would not have resulted from the injury but for the diseased condition of the person so injured, is one of general application.

The rule upon this subject as stated in Ruling Case Law is:

“One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes mediately or immediately to the death of such other. The fact that other causes contributed to the death does not relieve the actor of responsibility. So the physical condition of the slain man at the time when the act was done, will not excuse or minimize its consequences, if the causal connection between it and the fact of death is made to appear. On the other hand, if an injury is merely a condition which does not contribute to produce death, the law does not hold the actor criminally responsible.” 13 R.C.L. par. 53, p. 748.
“The law declares that one who inflicts an injury on another and thereby accelerates his death shall be held criminally responsible therefor, although death would not have resulted from the injury but for the diseased or wounded condition of the person so injured.” 13 R.C.L. par. 55, p. 750.

The rule is thus stated by Bishop in his work on Criminal Law, vol. 2, sec. 638, subsec. 3:

“Though the person would have died from some other cause already operating, it is enough that the wound hastened the termination of life; as, for example, if he had already been mortally wounded by another. And if the one attacked was enfeebled by disease, and what was done would not have been mortal to a well person, still, whether the assaulting person knew his condition or not, if he did what was mortal to the other, the offense is committed.”

Carefully considering the testimony in the case, we find that the evidence on the part of the state, both direct and circumstantial, if believed by the jury, was sufficient to sustain the conviction.

Upon an examination of the instructions given by the court to which no exception was taken, we find they fully and fairly presented all matters of law to the jury which were pertinent to the case.

Upon consideration of the whole case we are satisfied that the substantial rights of the defendant have not been prejudiced by reason of any error of law appearing in the record.

Another ground of the motion for a new trial is that the punishment assessed by the jury is excessive, and was the result of passion and prejudice.

In the defendant’s motion for a new trial, it is averred that codefendant, Mike Malone, was placed upon trial during the interim between the return of the verdict in this case and the judgment rendered thereon, was convicted of manslaughter in the first degree, and was sentenced to serve a term of five years in the state penitentiary.

Our conclusion is that the punishment assessed by the jury is excessive, and that justice requires a modification of the judgment and sentence of 45 years to a term of 25 years’ imprisonment in the state penitentiary. The judgment of the district court of Cotton county herein is so modified. As thus modified, the judgment is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.