text:
    CANDY RENFRO v. STATE.
    No. A-5419.
    Opinion Filed March 20, 1926.
    (245 Pac. 1115.)
    Mathers & Coakley and Thomas Norman, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

No briefs have been filed in support of this appeal. The petition in error contains but one assignment of error worthy of notice. The conviction rests chiefly upon the testimony of two accomplices, who employed the defendant to change the engine numbers for the purpose of concealing the fact that the car was a stolen car. These accomplices were corroborated by a disinterested witness, who testified that the defendant was in the rear of the garage, where this ear was, as late as 12:30 the night the numbers were said to have been changed. This, along with other attending circumstances, was sufficient under the state of facts shown in this case. The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: BESSEY, P. J.

license: Public Domain

text:
    MARSHALL WOOLDRIDGE v. STATE.
    No. A-5425.
    Opinion Filed March 20, 1926.
    (245 Pac. 1116.)
    Pryor, Stokes & Carver, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

From a judgment imposing sentence of a fine of $250 and 60 days in jail, rendered upon defendant’s plea of guilty to a charge of illegal possession of whisky, this appeal was taken. The sole •question involved in this appeal is whether the court erred in overruling defendant’s motion to dismiss the prosecution, on the ground that the defendant had given testimony concerning the issues involved before a court of inquiry, and that he was induced to do so by promises of immunity from prosecution. The court heard the testimony of the defendant in support of this motion, and upon consideration thereof properly. overruled the motion, whereupon the defendant entered his plea of guilty, and the court rendered judgment thereon, as above stated. The information is sufficient, and defendant’s plea of guilty thereto justified the sentence. The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    MRS. CARL MISSEL v. STATE.
    No. A-5345.
    Opinion Filed March 20, 1926.
    (244 Pac. 462.)
    Wieck & Armstrong, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county upon a charge of driving an automobile at a rate of speed of more than 15 miles per hour at a street intersection, where the view was obstructed for more than 150 feet, and sentenced to pay a fine of $25. The prosecution is under section 2 of chapter 16, Session Laws of Oklahoma 1923, the charging part of which is as follows:

“One Mrs. Carl Missel did then and there unlawfully and wrongfully, drive and propel one certain Dodge roadster automobile, * * * on East Bridge street at the intersection of said East Bridge street and D street, which said intersection aforesaid was obstructed from the view of the said Mrs. Carl Missel for more than 150 feet before the approach of said intersection aforesaid, in the city of Blackwell, at a greater rate of speed that 15 miles per hour. * * *”

Section 2 of said chapter 16, Session Laws 1923, is as follows:

“Any person or persons operating or driving, or propelling any vehicle as set out and designated in section 1, of this act, upon said highways shall operate, drive or propel same in a careful and prudent manner, and at a rate- of speed not greater than is reasonable under the existing circumstances, and having due regard to the traffic and use of the highway, and having due regard for the safety of pedestrians or property, and drivers or operators of other vehicles, whether such vehicles are propelled by muscular power, electricity, gas, gasoline or steam; no person or persons shall operate, propel, or drive a motor vehicle as defined in section 1, of this act, on any highway at such rate of speed as to endanger the life or limb of any other person or persons, or the safety of any property, and it shall be unlawful to operate, propel or drive such motor vehicle as defined in section 1, of this act, upon any highway within the state of Oklahoma at a rate of speed in excess .of thirty-five miles an hour; provided, further, no person or persons shall operate, propel or drive any motor vehicle as provided for in section 1, of this act, in any city, town or village or at the intersection of the street, alley, highway or in approaching any electric or steam railway crossing at grade, or in approaching or going around corners or curves in said street, alley or highway, where the operator, driver or propellor of said motor vehicle has not an unobstructed view of at least one hundred and fifty feet before the approach of such street, alley or highway, curve or corner, at a greater rate of speed than fifteen miles per hour; provided, further that any person or persons violating any provision of section 2, of this act, shall be guilty of a misdemeanor for the first offense and shall be fined not less than $25.00, nor more than $100.00, or imprisoned in the county jail for not less than ten nor more than thirty days, or by both such fine and imprisonment, and for the second offense shall be fined not less than $100.00, nor more than $1,000.00, or shall be imprisoned in the county jail for a period of not less than thirty days, nor more than six months, or by both such fine and imprisonment.”

The contention is made that that part of the section just quoted, making it an offense to approach an intersection where the operator, driver, or propellor of a motor vehicle has not an unobstructed view, is too indefinite to be intelligible. It will be observed that the statute does not set out at what point of approach the view shall be unobstructed, whether at or immediately before, or at any distance before arriving at the intersection. It cannot be determined whether the view referred to shall be straight ahead on the street traveled or applies to a view along the intersecting street. It does not designate the nature of the obstruction that shall interfere with the view — whether it shall be a permanent obstruction as buildings or casual obstruction as vehicles.

It is within the exclusive province of the Legislature to declare what shall constitute a crime, and it is a fundamental rule of construction that the legislative intent is to govern in determining the true meaning of a statute. In defining a crime, however, the Legislature may not use language so broad and indefinite that a citizen charged with a violation of such statute would not know what he must prepare to defend against. That is to say, penal statutes ought not to be expressed in language so uncertain and indefinite as to mislead or deceive the common mind, but should be expressed in language that may be understood by a person of ordinary understanding. Buckles v. State, 5 Okla. Cr. 109, 113 P. 244; Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 P. 179; State v. Lawrence, 9 Okla. Cr. 16, 130 P. 508. See, also, Connally v. General Construction Co., 46 S. Ct. 126, 70 L. Ed. —, which holds the Oklahoma Current Wage Law (section 7257, Comp. 1921), void for uncertainty.

We think that part of section 2, supra, attempting to create and define an offense of operating, driving, or propelling a vehicle approaching a street intersection where the view is not unobstructed for a distance of 150 feet, does not meet this requirement. Under its terms, a person of ordinary understanding is not able to determine when he has committed a crime. No ordinary human being, under its language, can tell exactly what was the legislative intent. This part of the statute is too indefinite and uncertain and unintelligible to define a criminal offense, and no conviction can be had under it.

The case is reversed and remanded, with instructions to dismiss.

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


author: PER CURIAM.

text:
    G. H. PHELPS v. STATE.
    No. A-5434.
    Opinion Filed March 20, 1926.
    (244 Pac. 453.)
    Ben Smith, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

G. H. Phelps, plaintiff in error, defendant in the trial court, was found guilty of the illegal sale of a pint of whisky, with his punishment fixed by the jury at confinement in jail for four months and to pay a fine of $400.

This conviction rests entirely upon the testimony of B. E. Slagle, a deputy sheriff, who claims he purchased the whisky in question from the defendant. Other witnesses there present, as well as the defendant, say that no such transaction took place. Without going into details, we hold that the evidence as a whole is insufficient to support the verdict.

The cause is reversed, with instructions to dismiss.


text:
    G. H. PHELPS v. STATE.
    No. A.-5250.
    Opinion Filed March 20, 1926.
    (244 Pac. 452.)

      John V. Roberts, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, G. H. Phelps, here referred to as the defendant, was found guilty of having illegal possession of whisky, with his punishment fixed at a fine of $500 and 90 days in jail.

The evidence shows that the defendant was the owner of a garage, filling station, and general merchandise store in Longdale, Blaine county; that he was personally in charge of the filling station and store, but that the garage portion of the premises had been leased to another; that the sheriff and a deputy went to these premises, and made a search, under authority of a search warrant; that they found nothing at the filling station; that in the store proper they, found two jugs and one small bottle, each containing about one teaspoonful of what the officers identified as whisky; that a search of the garage disclosed nothing, but, leading from this garage to the adjoining premises, the officers found a well-beaten path, at the end of which was a shed, where they found seven or eight gallons of whisky. 1 ' ; ¡ &"j

No briefs have been filed in this case from which we may conclude that there is no vital or fundamental error in the record. An examination of the record discloses that the information was sufficient; that the instructions were fair; and that the evidence as a whole supports the verdict.

The defendant objected to the introduction of the whisky seized on the adjoining premises and the testimony relative thereto, for the reason that the place where it was found hidden was not in the description of the place to be searched, as recited in the search warrant. The court sustained this objection. This ruling was erroneous, but was favorable to the defendant.

The right to immunity from an unauthorized search and seizure, and its consequences, is a personal right, extending only to the home or place of business and its curtilage. The defendant had no right to object to a search and seizure made on adjoining and vacant premises belonging to another. If such search and seizure was illegal, the right to object could bé claimed only by the one whose premises had been invaded.

The finding of this large quantity of whisky on premises adjoining the defendant’s, the path leading thereto, the containers with their residue of whisky found in the defendant’s possession, the bad reputation of the place, as testified to by a number of witnesses, and the statements of the defendant himself, made on cross-examination — all lead to the conclusion that the verdict was justified.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: DO|YLE, J.

text:
    MARVIN BRYANT v. STATE.
    No. A-5458.
    Opinion Filed March 20, 1926.
    (244 Pac. 453.)
    J. W. Miller, for plaintiff in error.
    George F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   DO|YLE, J.

The information in this case charges that in Delaware county, July 25, 1924, Marvin Bryant did take, steal, and carry away a Studebaker chummy roadster, 1920 model automobile, the personal property of Harve Fender. On the trial, the jury returned a verdict finding the defendant guilty, but were “unable to agree upon the penalty.” October 15, 1924, the court denied a motion for a new trial and sentenced 'defendant to imprisonment in the state reformatory at Granite for the term of 10 years. From the, judgment he appeals.

A number of errors are assigned and argued. In order to better understand the questions thus presented, the following brief statement of the facts, which the undisputed evidence for the state tended to prove, is made:

It appears that Harve Fender, living at Bartlesville, owned a 1920 model Studebaker roadster, with one of the oval glasses broken and one back fender tom off. He had this car at a fishing camp near the Armstrong Ferry on Grand river, Delaware county. The defendant, Bryant, 16 years of age, and certain of his relatives, with him in a Ford car, stopped at this fishing camp and stayed that night. The next day Fender, in company with G. E. Baker, who rode with him from Bartlesville, went fishing, leaving the Studebaker car in the camp. Late in the evening they returned to the camp and found that Mr. Fender’s car was gone. He learned that defendant, Bryant, had taken the car, and traced his ear to Cleora, and from there with deputy sheriffs followed the car towards Vinita. The next day they traced the car west from Vinita, and at Vera they learned that the defendant had gone north on the Safita Fe that morning, which was the second morning after the car was stolen. Mr. Fender had the chief of police at. Collinsville wiré the officers at Chanute, Kan., and the defendant was there taken from the train and brought back to Delaware county.

Harve Fender testified that the car was taken without his consent; that a few days later Mr. Monroe, the undersheriff at Jay, called him up on the phone and told him where to find his car.

C. C. Monroe, undersheriff at the time of the theft, testified that he went to Chanute after the defendant, and on the way back the defendant attempted to escape by running away from the officers at Parsons; that while in jail at Jay he pried open a window and crawled out and was again recaptured; that after his arrest the defendant told witness where to find the car, near the first or second town south of Nowata, the name of the town being Watova; that he telephoned the owner where to find the car; that the defendant had stated in his presence that he would plead guilty if he could get the right number of years.

Against the defendant's objections, the transcript of the testimony of Mrs. Lee Blanchard, given upon defendant’s preliminary examination, ,was read to the jury, which, in substance, was to the effect that she was at the fishing camp at Armstrong’s Ferry,- on Girand river, at the time the car was taken by tbe defendant, who came there with his relatives in a Ford roadster; that she saw the defendant leave the fishing camp in the big car while Mr. Fender was up the river fishing, and when he returned he began looking for the car and inquiring about its whereabouts; that the thing that first attracted her attention to the car was the running of the engine; that she was about the width of a street from the car when the defendant drove it out.

The defendant did not testify.

The first assignment is: Error of law, which goes to the jurisdiction of the court. Under this assignment counsel contend that the evidence is insufficient to prove the offense of stealing an automobile, and that the evidence only tends to prove a commission of the offense defined by section 2264, C. S. 1921, which makes it a misdemeanor to drive or attempt to drive an automobile for joy riding, or for any other purpose.

We are of opinion that, under the circumstances of taking the car, the undisputed fact that it was only abandoned by the defendant when the officers were in close pursuit upon him, his intention to permanently deprive the owner of said car was clearly established.

The next assignment is that the court erred in admitting the transcript of the evidence of Mrs. Lee Blanchard; she not being present to testify. As a predicate for this testimony it appears that Monroe, undersheriff, testified that he received a subpoena for Mrs. Blanchard, and went to the place where she lived on Grand river and inquired for her and she was not there; that he went to Cleora and asked the postmaster about her whereabouts, and learned that she had not been getting her mail there for some time; that he also went to Picher, where her testimony shows was her permanent home, and there failed to locate her or her family. Other witnesses testified that they had made diligent search and were unable to locate the absent witness.

It is the well-established doctrine in this state that, where the testimony of the witness was given at a preliminary examination, and taken down by the reporter in the presence of the defendant and his counsel, who cross-examined him, and such testimony was filed with the clerk, the transcript is admissible, where the witness is not present and cannot be found in the jurisdiction. Fitzimmons v. State, 14 Okla. Cr. 80, 166 P. 453; Jeffries v. State, 13 Okla. Cr. 146, 162 P. 1137; Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L. R. A. (N. S.) 113; Edwards v. State, 9 Okla. Cr. 306, 131 P. 956, 44 L. R. A. (N. S.) 701; Valentine v. State, 16 Okla. Cr. 76, 194 P. 254; Clark v. State, 28 Okla. Cr. 31, 228 P. 791.

In this case, sufficient proof of predicate for the introduction of the transcript of the testimony of the absent witness having been made, the objection thereto was properly overruled.

Finally it is urged that, in view of defendant’s age, 16 years, and that by reason of his poverty the court appointed counsel to represent him on his trial, he should be given another chance, and that, in the event that this court reaches the conclusion that he had a fair and legal trial, it should consider the question whether the punishment imposed is excessive and too severe, and so finding it should be reduced by this court.

An examination of the record leaves no question in our minds as to the sufficiency of the evidence to sustain the verdict. However, we do not think it called for the severe sentence given by the court.

In view of the reasons stated we are of the opinion that the penalty should be modified to confinement in the state reformatory at Granite for a term of 5 years. With this modification, the judgment of the trial court is affirmed.

BESSEY, P. J., and EDWARDS, J., coneur.


author: DOYLE, J.

text:
    L. J. STEPHENS v. STATE.
    No. A-5294.
    Opinion Filed March 6, 1926.
    (243 Pac. 980.)

      S. E. Dunn and W. S. Meyer, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information charged that L. J. Stephens, defendant, did have in his possession four one gallon containers and 19 pints of corn whisky with the unlawful intent to sell the same. The jury returned a verdict finding .him guilty and fixing his penalty at a fine of $300 and confinement in the county jail for four months. From the judgment rendered on the verdict he appeals.

The assigned grounds for reversal are that the evidence does not support the verdict.

The evidence shows that Mayfield, Atkins, and Whitenack, deputy sheriffs, went to the neighborhood where the defendant resides.

Mayfield testified that he was on a high bank where Coal creek made a little bend about 40 steps from the defendant’s place and saw the defendant feeling with his feet in the creek, and while he was watching him, the defendant took out five or six tow sacks and laid them on the bank; that he was within ten or twelve feet of him and he saw another fellow coming up there and ran towards the defendant, who crossed the creek and entered a cornfield; then he searched the other man and did not find any whisky; that he found four gallon cartons filled with corn whisky, and 19 pints of corn whisky in the sacks.

Atkins testified that he saw a man run across the creek as Mayfield hollered at him; that he rushed down and found Mayfield searching another man.

At the close of the evidence for the state a directed verdict of not guilty was asked on the ground that the evidence was insufficient to connect the defendant with the offense charged. The motion was overruled, and exception taken.

As a witness in his own behalf the defendant, Stephens, testified that he was not taking any whisky out of the creek, but that he appeared the first time going out of his driveway when Mr. Mayfield accosted him and directed him to stop, at which time he searched him; that he did not have any whisky; that he saw the other man whom the officers testified about east of his place down towards the creek; that it was just about dusky dark.

It is urged that the witness Mayfield did not sufficiently identify the defendant as the guilty person, and that since the defendant denied under oath that he was down to the creek, and the other witnesses for the state could not identify the defendant, Stephens, as the guilty person, the conviction should not be permitted to stand.

We are of opinion that the evidence is sufficient to connect the defendant with the commission of the offense. Generally speaking, the testimony of one witness, if relevant and accepted by the jury, may sustain a conviction, even though the defendant positively denies under oath that he committed the offense.

Finding no error in the record, the judgment is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    RAYMOND GABLER v. STATE.
    No. A-5408.
    Opinion Filed March 6, 1926.
    (243 Pac. 983.)
    Meaeham & Meacham, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information charged that in Custer county, on February 9, 1924, Raymond Gabler transported whisky from a point on the Postal highway 200 leet east of the Washita river bridge to a point 30 feet east of the intersection of Choctaw and First streets in the city of Clinton. The jury returned a verdict finding the defendant guilty as charged, but were unable to agree on the punishment. The court sentenced the defendant to pay a fine of $50, and to be confined in the county jail for 30 days. From the judgment entered on the verdict, he appeals, and assigns as error that the evidence is insufficient to sustain the verdict.

The undisputed facts are that E. H,. Myers, sheriff, saw the defendant smash a fruit jar, the broken parts of which contained whisky. Three or four other witnesses testified that they examined the broken jar and that it contained whisky. The defendant testified that the jar did not contain whisky and only contained lemon extract.

We think the evidence is ample to sustain the verdict and judgment, and finding no error, the judgment is affirmed.

BESSEY, P. J., and EDWAEDS, J., concur.


author: EDWAEDS, J.

text:
    ADDIE BARNETT v. STATE.
    No. A-5321.
    Opinion Filed March 6, 1928.
    (243 Pac. 985.)
    L. C. McLean, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWAEDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of selling a pint of spirituous liquor, sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $50,

The conviction rests on the evidence of one B. E. Slagel, who testified that he had been employed to procure evidence against persons suspected of violating the liquor law. Under the evidence, he is discredited and would appear to be hardly worthy of belief. But since the credibility of the witnesses and the weight and value to be given their testimony are peculiarly in the province of the jury, this court, in the absence of unusual circumstances, will not disturb the verdict where the evidence, if believed, is sufficient. It has been frequently held, however, that, where a paid informer is employed, a defendant has the right, for the purpose of testing the credibility of the witness and his interest or bias, to inquire fully as to his employment and conduct in procuring evidence of the alleged violation of the law. (Clark v. State, 31 Okla. Cr. 378, 239 Pac. 274.) In the trial of this case, this right of cross-examination was unduly limited and the defendant was not permitted to show fully the interest of the witness. It would serve no particular purpose to set out the questions along this line which were excluded by the court. For the reason assigned, the case is reversed and remanded.

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


text:
    ANNA CANARD v. STATE.
    No. A-5405.
    Opinion Filed March 6, 1926.
    (243 Pac. 987.)

      Coffey & Church, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was convicted on a charge that she did have in her possession seven quarts of whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $300 and to confinement in the county jail for 60 days. From the judgment she appeals.

The errors assigned question the sufficiency of the evidence to sustain the verdict and judgment.

The undisputed facts are that four deputy sheriffs visited the home of the defendant and searched her premises under a search warrant, finding in the house seven quarts of whisky, and also certain parts of a still and six barrels of mash. Three quarts of the whisky were found in the defendant’s bedroom, one of which appears to have been medicated.

The defendant did not testify, and there was no evidence offered on the part of the defendant.

Our examination of the evidence leaves no doubt in our minds as to the defendant’s guilt.

Finding no material error, the judgment appealed from is affirmed.

BESSEY, P. J., and EDWARDS, 'J., concur.


author: DOiYLE, J.

text:
    J. C. TEAGARDEN v. STATE.
    No. A-5942.
    Opinion Filed March 8, 1926.
    (244 Pac. 63.)
    A. J. Carlton, for plaintiff in error.
    George F. Short, Atty. Gen., and Houston B. Teeheer Asst. Atty. Gen., for the State.
   DOiYLE, J.

This is an appeal from a judgment of the superior court of Pottawatomie county rendered on the verdict of a jury finding appellant guilty of assault with intent to rape, and fixing his punishment at imprisonment in the penitentiary for a term of three years.

The errors assigned and relied upon for a reversal are as follows: That the verdict is contrary to the law and contrary to the evidence, and is not sustained by either law or the evidence, and that the court erred in refusing to give instruction requested by defendant.

The information charges that in said county July 22, 1925, J. C. Teagarden made an assault upon the person of Katherine Sheekler with the felonious intent then and there to have and accomplish an act of sexual intercourse and to carnally know her, she being a female person of the age of 10 years, and not the wife of him the said Teagarden.

The facts which the evidence tend to show are: That the child, 10 years old, went with a Sunday school party to what is known as the Ozark swimming pool in the city of Shawnee. That she was accompained by her little 6 year old brother. That some distance north of the swimming pool she met defendant, a man aged 42 years, who at that time was with a carnival located a little south of the swimming pool. About |the noon hour prosecutrix was accosted by defendant with the salutation “Hello, pretty girl.” In the conversation following she said to defendant, “I wish I had some money,” and he invited her to come to his tent at the carnfval ground where he would give her a dime, and explained to her where to come. Defendant went on to his tent. Prosecutrix, as directed, went to defendant’s tent with her little brother. That defendant was sitting on a box, and asked her to come over to where he was, which she did. Defendant asked her to let him feel of her. That he took hold of her, and put his hand under her dress upon her private parts, and held her for about half an hour. Then he gave her a dime, saying: “Well, you better be going,” and told her to take her brother home and slip back, and he would give her a quarter. The children went home, and prosecutrix told her mother of defendant’s conduct. The mother told her husband, and he went to the carnival grounds, taking prosecutrix with him, where she pointed out defendant to her father, who assaulted defendant with a pair of pliers, and committed a battery upon him.

As a witness in his own behalf, defendant testified that he did not take the liberties with the person of prosecutrix as testified to by her; that he was the manager of a branch of the carnival wherein was exhibited a South Sea Island wild woman, who in the course of her act ate wild food, such as chickens and pigeons, and' it was a part of his duty to supply that live food; that on the date alleged he was in quest of pigeons, and met several children, whom he asked to furnish him with pigeons, offering to pay therefor 10 to 25 cents for each pigeon, and in returning to the carnival grounds met prosecutrix and her brother; that he offered to purchase pigeons from her, and she indicated that she could secure them; that he directed that she bring them to his tent, and they went to the tent, with him, but did not go inside of the tent; that he talked with her about buying pigeons from her, and gave her a dime as earnest money, that, placing his hand on her head, he remarked, “You are a cute little girl, and you remind me of my own little girl”; that in addition to this payment he promised to give prosecutrix and her mother passes to the show; that he did not see her again until that evening, when he asked her if she had brought the pigeons, and at that time her father assaulted and beat him.

The court refused to give the following instruction requested by counsel for defendant, and allowed exception :

“Before you can convict the defendant of the offense charged in the information, you must find from the evidence, beyond a reasonable doubt, not only that the defendant placed his hands upon the person of the prosecuting witness, Kathryne Sheckler, and took indecent liberties with her person, but you must further find from the evidence, beyond a reasonable doubt, that the defendant, when he committed the said acts, if you find he did so commit them, intended to have sexual intercourse with the said Katherine Sheckler at that time, and not at some future time, and, if you find from the evidence, or have a reasonable doubt thereof, that the defendant at the time he placed his hands upon her, the said Katherine Sheckler, if you find that he did so place his hands upon her, did not intend at that time to have sexual intercourse with her, although he may have intended at some future time to have sexual intercourse with her, you will find the defendant not guilty of assault with intent to commit rape. If you should, under the evidence and these instructions, find the defendant not guilty of an assault with intent to commit rape, it will then be your duty to find whether he is guilty of the included offense of assault and battery, and in this connection the court instructs you that, if you find from the evidence, beyond a reasonable doubt, that the defendant did place his hands upon the said Katherine Sheckler, and did take indecent liberties with her person, such acts constitute an assault and battery, and if you so find, it will be your duty to find the defendant guilty of assault and battery, and so say by your verdict.”

It is undoubtedly the law in this state that one who lays his hands upon a female under the age of consent, with the intent and for the purpose then and there to accomplish an act of sexual intercourse with her, is by so doing guilty of an assault with intent to commit rape, even though he does not use or intend in any event to use any force or violence, and the female in . fact offers no resistance whatever, or even expressly consents to all that he does. The offense is complete when he has thus laid his hands upon her with the in-tentidh of then and there accomplishing such purpose, and it is entirely immaterial that he subsequently voluntarily desists without accomplishing his purpose. Lee v. State, 7 Okla. Cr. 141, 122 P. 1111.

While it is not necessary in such cases that force should be used or resistance made, and that it is of. no consequence that the female consents, the existence of a specific intent in the mind of defendant then and there to have carnal connection with the female is an essential element of the crime of assault with intent to commit rape.

As said in People v. Dowell, 99 N. W. 23, 136 Mich. 306:

“The intent -is the gist of the offense, and every laying on of hands upon a female under the age of consent, even though improper, does not necessarily imply an intent to have sexual intercourse. Indecent liberties may be taken with a child without any such intent.”

In such cases laying of hands upon the female and the intent to have intercourse with her must concur as to tftne. 33 Cyc. p. 1435.

In the case of Patrick v. People, 24 N. E. 620, 132 Ill. 534, it is said:

“To constitute an attempt to commit rape upon a female under the age of consent, the intention to know the girl carnally must have existed in the mind of the accused at the very time when he did the overt act or acts, for there can be no attempt to commit a crime unless the ihtent to commit it exists at the time when the attempt is made.”

And see, I Wharton, Crim. Law (11th Ed.) par. 215.

It will be observed that the instruction requested also submits the issue of the included offense of assault and battery, which issue the court failed to submit to the jury in the instructions given. It fs the well-settled rule in this state that, where there is evidence tending to prove the commission of an offense, which is necessarily included in the offense charged, ft is error for the trial court to refuse to instruct the jury of their right to convict of the lesser offense. Clark v. State, 6 Okla. Cr. 100, 116 P. 200.

In Tayrien v. State, 33 Okla. Cr. 231, 242 P. 1061, the defendant was charged and convicted of the crime of assault with intent to rape. We held that under the evidence ih that case it was reversible error to refuse to submit the issue of assault and battery.

Assuming the facts to be as shown by the testimony of the prosecutrix that defendant fondled her, put his hands under her dress, and, without unbuttoning her drawers, placed his hand upon her private parts, and that in connection with his lascivious and lustful conduct nothing was said by him except that he would give her a quarter if she would come back and visit him, we are of opinion that the refusal of the trial court to give the instruction requested constitutes reversible error.

This is sufficient to determine this appeal, but, in view of the fact that judgment was rendered September 10, 1925, and defendant was committed to the penitentiary pending the determination of his appeal, and has served six months of the sentence, and considering the weakness of the evidence tending to show the essential specific intent, the judgment of conviction will be reversed, with direction to dismiss, and the warden of the penitentiary is directed to discharge defendant, J. C. Teagarden, upon receipt of a certified copy of the mandate of this court from the trial court.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    GARRETT KEENAN et al. v. STATE.
    No. A-5344.
    Oinion Filed March 8, 1926.
    (243 Pac. 1001.)
    A. A. Brown, for plaintiffs in error.

      The Attorney General, for the State.
   BESSEY, P. J.

The plaintiffs in error, here referred to as the defendants, were jointly tried and convicted of having in their possession a quantity of mash fit for distillation of intoxicating liquor. The punishment of defendant Garrett Keenan, the father, was fixed by the court at a fine of $200 and confinement in the county jail for a period of 60 days; that of Lloyd Keenan, the son, at a fine of $100 and confinement in jail for 45 days; and that each defendant pay one-half of the costs of the prosecution.

The information was in two counts, as follows:

(1) That they, the sai'd Garrett Keenan and Lloyd Keenan, did then and there unlawfully, wrongfully, and intentionally have in their possession, set up, and cause to be fermented mash and wort fit for the distillation and manufacture of intoxicating liquor.

(2) They, the said Garrett Keenan and Lloyd Keenan, did then and there unlawfully, wrongfully, and intentionally have the possession of and knowingly permit a certain still, used in the manufacture of intoxicating liquor, to be upon their premises, the said premises being under their control, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the state.

This information was attacked by a demurrer, on the grounds of duplicity and that neither of the counts sufficiently stated an offense against the laws of the state of Oklahoma. The demurrer was by the court overruled. The objections incorporated in the demurrer were again urged by objections to the introduction of testimony, and further objection to the introduction of certain evidence was made for the reason that the same had been procured by an unauthorized search and seizure. These objections were likewise overruled. At the close of the testimony, the county attorney elected to stand upon the first count of the. information. The defendants then moved that all the testimony relative to the still and the incidents and conversations connected with it be excluded. This motion was also denied.

Section 1 of the act under which this prosecution was brought, chapter 42, Session Laws of 1923-24, makes it unlawful for any person to manufacture, ferment, or possess any compound, mixture, mash, wort, or wash fit for distillation, for the purpose of illegally distilling alcoholic liquor. Section 2 of the act makes it unlawful for any person to keep or have in his possession any still worm, or still, capable of being used for the illegal manufacture of whisky. The provisions of these sections define two separate and distinct offenses.

Section 2558, Comp. Stat. 1921, provides that an mdictment or information must charge but one offense; but that where the same act may constitute different offenses, * * * the different offenses may be set out in different counts in the same information, and the accused may be convicted of either offense.

But the facts alleged and proved in this case do not bring it within the exception named in section 2558, supra, because the acts constituting the making and fermenting of mash are not the same acts constituting the erection and possession of a still. The demurrer should have been sustained, and the election of the county attorney to stand upon the first count, without the exclusion of the evidence relating to the second count, did not cure this error.

With reference to the search and seizure, which were accomplished without a search warrant, it has been held by this court that no search warrant is necessary to authorize a search and seizure of a still or mash in pastures, woods, canyons, thickets, and places remote from the home and habitation of the owner. Francis v. State, 26 Okla. Cr. 82, 221 P. 785; Barton v. State, 26 Okla. Cr. 89, 222 P. 272. That portion of the evidence procured at the house and within its curtilage was illegally procured by an unauthorized search and seizure, and should have been excluded. Gore v. State, 24 Okla. Cr. 394, 218 P. 545.

This record indicates that these defendants were guilty of erecting, maintaining, and operating a still. The only extenuating circumstance shown in the evidence is that it was a modern copper still, and that the product therefrom was to be kept in oaken kegs, charred on the inside. The court regrets that the conviction cannot be sustained, but for the reasons stated above we are compelled to adjudge a reversal.

The cause is accordingly reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    VERNE DEVORE v. STATE.
    No. A-5115.
    Opinion Filed March 8, 1926.
    (243 Pac. 999.)

      Ernest F. Smith, for plaintiif in error.
    Geo. F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiif in error, hereinafter ealled defendant, was convicted in the district court of Grant county on a charge of grand larceny and sentenced to serve a term of one year in the penitentiary.

The record discloses that on the 8th day of March, there was stolen from the home of Ray Lakey, near Renfrow, in Grant county, certain personal property consisting of clothing, a Winchester shotgun, and a violin. It appears, incidentally, that property was stolen from other parties at the same time, which was also found later with the property stolen from Lakey. On the same day the defendant and his codefendant, Farnsworth, were seen in a Ford car in the neighborhood where the larceny was committed. The following morning part of the property was shipped by Farnsworth from Tonkawa, 50 miles from the place of the larceny, to Gage; the defendant being with his codefendant, Farnsworth, at the time. On the 10th they were apprehended together, a portion of the stolen property was in the car in whi'ch they were traveling. There was testimony that defendant claimed a part of the property. The defendant testified that he was not with his codefendant until the morning of the 9th at Tonkawa, at which time a stranger appeared and sold the property in question to Farnsworth, and that defendant then loaned Farnsworth $20 to help pay for it; that he procured the box in which a portion of it was shipped to G-age by Farnsworth; that he bought a leather jacket from Farnsworth, which was stolen, and which he had on at the time of his arrest.

The assignments of error are argued as follows: First, insufficiency of the evidence; second, error of the court in overruling supplemental motion for a new trial; third, errors of law occurring at the trial.

Under the first assignment, it is contended that there is no proof that the property alleged to have been stolen was taken without the owner’s consent. The want of consent was not proven by any direct question and answer, but there is proof that the property stolen was taken from the residence of the prosecuting witness in the absence of himself and family, and on his return he discovered the loss, and at once took steps to find and recover the property, and appeared as a prosecuting witness. This is as conclusive proof of the want of consent as the direct statement of the witness would have been. It is the better practice to prove by direct and positive evidence the formal ingredients in a larceny case, such as venue, ownership, want of consent and value, but it is not essential, and proof of such matters may be circumstantially made. In Jackson v. State, 10 Okla. Cr. 525, 139 P. 324, this court said:

“The want of consent of the owner to the taking of his property alleged to have been stolen is an essential ingredient of the crime of larceny of domestic animals. The fact of non-consent to the taking may be proven by facts and circumstances which sulhciently show that the property was feloniously taken.”

See, also, George v. U. S., 1 Okla. Cr. 307, 97 P. 1052, 100 P. 46.

It is also argued that upon the entire record there are not sufficient circumstances to satisfy the law as to quantum of proof; that the circumstances connecting defendant with the transaction are sufficiently explained and are consistent with his innocence.

Where circumstantial evidence is relied on to prove a crime, it is not required that the circumstances proven shall exclude a possibility of innocence, but only that they shall be inconsistent with any reasonable hypothesis than that of guilt. It is possible that the disinterested witnesses who testified that the defendant was in the neighborhood at the time the larceny was committed were mistaken, and that the testimony of the defendant that he was at Ponca City on that day and not in the neighborhood was true. It is possible that the defendant did not join his codefendant, Farnsworth, until he met him at Tonkawa on the morning of the 9th, and that some mysterious stranger appeared there and sold the stolen property to Farnsworth. It is possible that the witnesses were mistaken in testifying that certain, items of stolen property in a suit case in the car at the time of the' arrest of the defendant were claimed by defendant, but these are questions for the' jury to determine. The evidence is ample to sustain the verdict.

Finally, it is argued that the court erred in overruling the supplemental motion for a new trial on the ground of newly discovered evidence. The evidence set out is that of one William King, who would testify that he saw defendant near Ponca City on the date of the larceny. It appears, however, that this witness was not subpoenaed at the trial, and was in the courtroom at the time, but left and was not called. Also upon the evidence of one Bert Waldron, who would testify that he was with the defendant on the 8th day of March, and rode with him from Ponca City to Tonkawa. Although the trial was more than four months after the date of the larceny, no subpoena was issued to procure the attendance of this witness. In order to entitle an accused to a new trial on the ground of newly discovered evidence, diligence must be exercised in order to discover the evidence and procure the attendance of the witnesses. Where a defendant knew of the witnesses and what their evidence would be, he may not fail to make an effort to procure such evidence and after his conviction be granted a new trial on account of the absence of their evidence. Brooks v. State, 30 Okla. Cr. 216, 235 P. 560; Carr v. State, 22 Okla. Cr. 371, 211 P. 424; Luppy v. State, 14 Okla. Cr. 386, 171 P. 347; Bevel v. State, 30 Okla. Cr. 73, 234 P. 653.

Upon an examination of the entire record, it is apparent that the defendant had a fair trial, the issues fairly submitted, the evidence sufficient, and no reason for reversal appears.

The case is affirmed.

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


text:
    Ex parte J. A. LUCAS.
    No. A-5962.
    Opinion Filed March 8, 1926.
    (243 Pac. 990.)

      Mathers & Renegar, for petitioner.
    The Attorney General and Leon S’. Hirsh, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The petition states that J. A. Lucas is being confined in the common jail of Washita county, upon a warrant issued by H. C. Hubbard, county judge, charging the petitioner with murder, upon a showing made that the petitioner sold a gallon of whisky in Elk City, Beckham county, to one Claud Mathews; that a half gallon jug of the whisky so sold was by said Mathews and his two companions taken into Washita county and there hidden by the roadside; that one Lowell Owens and two others, together with the three who had procured the whisky in Beckham county, went to the place where the whisky had been hidden and there and near there indulged in a drinking orgy; that Lowell Owens drank a greater portion of the whisky than the others with him, from the effects of which he died of alcoholic poisoning.

The statute under which, this prosecution was brought and under which the petitioner is being held to answer a charge of murder (chapter 2, Sess. Laws of 1923) reads as follows:

“Any person who sells, gives away, or otherwise furnishes any liquor, preparation, or compound, for beverage purposes, and which results in death, shall be guilty of murder.” Section 1.

The petitioner says this statute is unconstitutional, assigning seven major reasons for such contention, as follows: (1) Because our Constitution makes the violation of the prohibitory liquor laws a misdemeanor, with' a minimum punishment fixed as for such. (2) Because it provides for cruel and unusual punishment. (3) Because under its provisions one actuated by an innocent intent might be guilty of a capital offense. (4) Because it creates a major offense, irrespective of any criminal intent. (5) Because the statute does not provide in terms that the liquor must be poisonous or contain some deleterious substance. (6) That the statute is so vague and ambiguous as not to be susceptible of enforcement. (7) That the statute is in fact a police regulation, the object and terms of which are beyond the police power of the state.

This law manifestly is ambiguous, but the constitutionality of an ambiguous law may be sustained, if from its title, terms, and general import the legislative purpose and the intent of the act can be definitely stated and defined by judicial construction. 25 R. C. L. “Statutes,” §§ 213, 214, 216; Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 P. 179. Without violence to its manifest purpose and intent, this ambiguous statute may be judicially paraphrased thus:

“Any person who sells, gives away or otherwise furnishes to another any liquor, preparation or compound for beverage purposes, knowing it to contain alcohol, poison or other deleterious substance, and which results in the death of such other, shall be guilty of murder.”

So to paraphrase this statute approaches and may in fact amount to judicial legislation. The meaning of the statute must be as above paraphrased, or else it is utterly meaningless and void. In this state penal statutes are liberally construed to reach or destroy the ends at- which they are aimed. Section 3563, Comp. Stat. 1921; Parker v. State, 7 Okla. Cr. 238, 122 P. 1116, 124 P. 80; Cheeves v. State, 5 Okla. Cr. 361, 114 P. 1125.

As the statute now reads, if it were strictly construed, one who sold to another sweet cider might be guilty of murder. One might suffer death from drinking too much coffee, Coca-Cola, or buttermilk. It would be a cruel incongruity and injustice to adjudge one guilty of murder who, without any wrongful motive or intent, sold or gave to another an innocent beverage, the imbibing of which caused the death of such other. The court, then, must either read into the law what the Legislature intended, or declare it unconstitutional and void.

A decision upon that point is unnecessary in this case, because of another point decisive of the petitioner’s right to be freed on habeas corpus. But, in order to obviate diverse interpretations, this act should be clarified and made more specific by legislative amendment.

The record before us shows that the whisky sold and delivered by the petitioner was so sold and delivered in Elk City, Beckham county, to three strange -boys whom he had never seen before; that this whisky was carried by these three boys from Beckham into Washita county, where they hid the greater portion of it by the roadside; that the purchasers of the whisky then found three other companions, who joined them and went with them to the place where one-half gallon of thisl whisky had been hidden. In the course of two hours following the recovery of the whisky from its hiding place they drank most of this whisky, from the effects of which one of the newly found companions died. A portion of the whisky was saved and analyzed by a chemist. It was found to contain approximately 32 per cent, of alcohol by volume but no appreciable amount of fusel oil or other poison.

The young man who died did not procure the whisky from the petitioner. It was given to him by his companions in another county. Now, if one of the young men to whom the liquor was sold had suffered death in an adjoining county, the petitioner might be amenable to prosecution in either county, under the terms of section 2429, Comp. Stat. 1921, which reads as follows:

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.”

But the penal provisions of a statute cannot be enlarged by implication. The petitioner neither saw nor knew the young man who died from the effects of the whisky. It was not furnished the deceased by the petitioner, within the meaning of the statute. On the contrary, it was given to the deceased by his companions in Washita county, after the criminal act was completed by a sale to others in Beckham county, and does not come within the rule announced in People v. Botkin, 98 P. 861, 9 Cal. App. 244, nor in State v. James, 114 A. 553, 96 N. J. Law, 132, 16 A. L. R. 1141, but is more analogous to the rule stated in Rogers v. State, 14 Okla. Cr. 235, 170 P. 269, L. R. A. 1918E, 742.

Except where a change of venue is granted, the accused has a constitutional right to a trial by a jury in the county in which the crime was committed. Section 20, Bill of Rights.

The writ of habeas corpus is allowed, and the petitioner discharged.

DOYLE and EDWARDS, J'J., concur.


text:
    MARY GREEN et al. v. STATE.
    No. A-5035.
    Opinion Filed March 13, 1926.
    (244 Pac. 209.)
    For former opinion, see 33 Okla. Cr. 268; 243 P. 533.
    Morgan & Osmond, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

On rehearing. Since the opinion was rendered in this case, petition for rehearing has been filed by the plaintiff in error Mary Green contending that the evidence as to her is insufficient to sustain the verdict, and that it is not made to appear that she had any connection with the case other than being the wife of the defendant Sam Green and residing at the home. A further examination of the record convinces us that the judgment as to Mary Green is not sustained by sufficient evidence, and as to her the case is reversed and remanded, with instructions to dismiss.

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


text:
    SAM GREEN v. STATE.
    No. A-5978.
    Opinion Filed March 13, 1926.
    (244 Pac. 210.)
    Ben Goff, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The Attorney General moves the court to dismiss the appeal of plaintiff in error for the reason that this appeal is from a judgment of conviction in a misdemeanor case, and the same was not filed in this court until 119 days after the same was rendered, and there was no order of the trial court extending the time within which the appeal should have been filed here beyond the 60 days allowed by section 2808, Comp. Stat. 1921.

The record sustains the claims of the Attorney General. The appeal is therefore dismissed, with directions to the trial court to order the execution of the judgment below as if no appeal had been taken.


text:
    Ex parte M. Y. BAKER.
    No. A-6080.
    Opinion Filed March 20, 1926.
    (244 Pac. 459.)

      Huston, Smith & Huffman, and L. E. Smith, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is an application for a writ of ha-beas corpus, filed on behalf of petitioner, M. Y. Baker, who had been arrested by J. A. Doyle, sheriff of Seminole county, and held under a warrant issued by the Governor for his return to the state of Kansas, upon a requisition from the Governor of that state, alleging that he is a fugitive from justice. Accompanying the requisition was a certified copy of a complaint, duly verified by petitioner’s wife and filed in the city court of Wichita, Sedgwich county, Kan., by the county attorney, wherein petitioner is charged with the crime of wife desertion and child abandonment; that petitioner made application before George C. Crump, judge of the district court within and for Seminole county, for a writ of habeas corpus; and that upon a hearing thereof said writ was denied, and petitioner was remanded to the custody of respondent and Frank Crowe, agent for the state of Kansas, with directions to hold said petitioner for a period of 48 hours, to enable petitioner to file an application for a writ of habeas corpus in this court.

In behalf of petitioner it is urged that the complaint filed in the city court is not properly or sufficiently authenticated, but there is no ground for such contention. All of the papers attached to the requisition, the complaint included, are duly certified to and authenticated by the Governor of the state of Kansas in full compliance with the ■federal statute (U. S. Comp. St. § 10126).

We understand the rule to be that, under the statute requiring that the Governor certify the authenticity of the ■complaint on which he demands extradition, without specifying how the Governor is to be satisfied that the complaint on which he asks is authentic, the question of the authenticity of the complaint is for his own determination, and his certificate to the fact alone is required. In re Gundy, 30 Okla. Cr. 390, 236 P. 440.

It is also contended that petitioner, having established Ms bona fide residence in Oklahoma, with his wife and child, before the date of the alleged abandonment, is not a fugitive from justice from the state of Kansas. On the hearing the evidence showed that previous to 1925,' petitioner, with his wife and child, lived in Wichita for several years; then he went to Blackwell, Oklahoma; that a month or two later he sent for his family, and they came to Blackwell; that after living together there for two or three months he took his wife and child to Arkansas City, Kan., and there bought tickets for them to Wichita, and he returned to Oklahoma; that he has not since returned to Kansas.

It is well settled that the presence of the accused in another state is sufficient, if unexplained and uncontra-dicted, to warrant his return to the demanding state upon formal and regular requisition, and it is incumbent upon the petitioner for habeas corpus, seeking to defeat extradition, to establish that he is not a fugitive from justice.

To be a fugitive from justice, within the meaning of the federal law, it is sufficient that such person, legally charged in the demanding state with the commission of a crime within said state, when sought to be subjected to its criminal process for such offense, has left its jurisdiction and is found within the jurisdiction of another state, upon whose executive requisition is made. It is well settled that a person may be a fugitive, within the meaning of the provisions of the federal Constitution and laws concerning extradition, even though at the time he left the demanding state he had no belief that he had violated its criminal laws, and though he did not consciously flee from justice in order to avoid prosecution for the crime with which he is charged. In re Gundy, supra, and cases cited.

Upon careful consideration of the evidence, our conclusion is that under the undisputed facts petitioner is a fugitive from justice from the demanding state, and his arrest and detention is not in any way illegal. The writ of habeas corpus is accordingly denied, and the respondent, J. A. Doyle, sheriff of Seminole county, is directed to surrender petitioner, M. Y. Baker, into the custody of Frank Crowe, agent of the state of Kansas, for the purposes aforesaid.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    BUD LANDRUM v. STATE.
    No. A-5352.
    Opinion Filed March 20, 1926.
    (244 Pac. 208.)
    M. D. Hartsell, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of grand larceny, and sentenced to serve a term of one year in the state penitentiary.

The record, discloses that in the month of August, 1923, there was stolen from an oil lease in the possession of George Wilson some cable and other items of oil field equipment of a value of about $150. On or about the same date the defendant sold to one .Sam Ginsburg, who ran a junk yard at Muskogee, a load of junk consisting of scrap iron, some cable, and certain items of property claimed by Wilson, which a few. days later were discovered, identified, and recovered. The defendant admits selling the load of junk, and admits there was some cable in the load and other property from an oil lease, but denies that the cable was the property of Wilson but some old cable found at another place, and that the other items were junk from his home or that had been given him.

Among the assignments, it is contended that the evidence is insufficient to sustain the verdict and judgment. We have examined the record closely on this point, and, without going into details, find that there is sufficient evidence to sustain the verdict.

It is next argued that the court erred in limiting the examination of the witness Ginsburg as to the price paid for the load of junk. This was not sought to be elicited as fixing the value to reduce the offense to petit larceny, but to affect the credibility of the witness Ginsburg, by tending to show he purchased valuable property for a nominal consideration. It will be observed that the question did not go to the value of the property in question, but merely as to what was paid for it. The right of cross-examination is important to a defendant, and, where it is unduly limited upon any material matter, or where it appears that the credibility or the interest or bias or prejudice of the witness is sought to be shown, is prejudicial error. Such, however, does not appear from the record before us.

Lastly, it is argued that there was misconduct of the county attorney. In the course of the cross-examination of the defendant, he was asked if, in the preliminary, he did not get the stuff, referring to the stolen property, from some widow woman, which the defendant denied, and he was then asked if he did not produce the woman, and if she did not testify in his behalf, which he answered in the negative. In the presence of the jury, the county attorney then said:

“Q. I know there was. Did not a woman testify down there in the preliminary hearing in your behalf?”

This assertion of the county attorney was not rebuked by the court, and it appears to us manifestly unfair for an official occupying the position of prosecutor to place his personality in the scales against a defendant. If the testimony of the defendant that he had not called or offered a woman to testify to a different state of facts in the preliminary was testimony subject to impeachment, there was a proper and legal way to do it. It could not be impeached by the unsworn ex parte statement of the county attorney. Pickrell v. State, 5 Okla. Cr. 391, 116 P. 957; Selfridge v. State, 27 Okla. Cr. 22, 224 P. 742.

For the reasons assigned, the case is reversed and remanded.

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


text:
    C. L. SCOTT v. STATE.
    No. A-5417.
    Opinion Filed March 20, 1926.
    (244 Pac. 449.)
    John W. Scott, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This conviction rests wholly upon the testimony of the prosecuting witness, who testified that he saw the defendant, through a window in a stock barn, at a carnival in Comanche, about 9 o’clock at night, sell a half pint of whisky to one Bill Jackson; that this stock barn was dimly lighted on the inside by a lantern.

The defendant, his son, who was there present, and Jackson all denied that there was any such sale. The physical facts shown cast some doubt upon the accuracy of the story told by the prosecuting witness.

We think the evidence as a whole was not indicative of guilt beyond a reasonable doubt — not sufficient to cover the presumption of innocence.

The cause is reversed and remanded.


text:
    WALTER BECKHAM et al. v. STATE.
    No. A-5429.
    Opinion Filed March 20, 1926.
    (244 Pac. 205.)
    John L. Hodge, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, hereinafter called, defendants, were convicted in the county court of Carter county on a charge of manufacturing whisky. The defendants Jack Stumpf, B. Ellege, and Sam Ellege were each sentenced to serve a term of 90 days in jail and to pay a fine of $200. The defendant Walter Beckham was sentenced to serve a term of 90 days in jail and to pay a fine of $100, and the defendant Troy Ellege sentenced to serve a term of 60 days in jail and to. pay a fine of $50.

This case was tried in October, 1924, and the appeal lodged in this court February 9, 1925. No briefs have been filed in behalf of defendants and no oral argument made. We have examined the record and find no jurisdictional error, and have read the evidence and find that it fully supports the verdict and judgment.

The case is affirmed.


text:
    HOWARD SEARCY v. STATE.
    No. A-5444.
    Opinion Filed March 20, 1926.
    (244 Pac. 203.)
    Ben Smith, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Under authority of a search warrant, certain officers forced an entrance into the private residence of the defendant and found in a jar in the kitchen cupboard of defendant less than one-half pint of whis-ky. There was no evidence of a sale or an attempt to sell whisky. No evidence was offered tending to show that this residence was a place of public resort, a. hotel, a. rooming house, or a place of storage. A search of a private residence under such circumstances is an unreasonable search, within the meaning both of the state and federal Constitutions touching upon that point, and contrary to section 7013, Comp. Stat. 1921.

The defendant objected to the introduction of this, evidence by timely motion to exclude. This motion should have been sustained. Furthermore, the evidence was insufficient to establish illegal intent.

The cause is reversed, with instructions to dismiss.


text:
    ARTHUR CHADWICK v. STATE.
    No. A-5394.
    Opinion Filed March 20, 1926.
    (244 Pac. 203.)
    A. W. Turner and Frank Nesbitt, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county on a charge of having possession of intoxicating beverage with intent to sell, and was sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $50.

This case was tried in June, 1924, and the appeal lodged in this court January 14,1925. No briefs have been filed in behalf of defendant, and no oral argument made. We have examined the record and find no jurisdictional error, and have read the evidence, and find that it fully supports the verdict and judgment.

The record discloses that the sheriff, with a search warrant, went to the premises of defendant. Defendant was seated in front of his house, and, when the officer came up, he turned to his wife who ran into the house and seized some fruit jars of choc beer and attempted to pour out the contents, a part of which was seized by the officer, was analyzed the second day following, and found to contain 11 9/10 per cent, of alcohol, measured by volume. The defendant testified that the liquid was choc beer which had been bought by him for his own use, and that there was less than a gallon of it.

The case is affirmed.


text:
    S. B. ELLIOTT v. STATE.
    No. A-5420.
    Opinion Filed March 20, 1926.
    (244 Pac. 204.)
    John L. Hodge, for plaintiff in error.

      Geo. F. ¡Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of intoxicating liquor with intent to sell, and sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $200. Appeal was filed in this court on the 5th day of February, 1925. No briefs have been filed in support of the appeal, and at the time of its submission no oral argument was made. In such case this court does not search the record for errors upon which to reverse, but will examine the record for jurisdictional or fundamental errors, and, if none such appear, and the evidence reasonably supports the verdict, will affirm the case. We have examined the record in this case. No prejudicial error is apparent, the defendant was properly charged, fairly tried, and the evidence fully sustains the verdict and judgment.

The case is affirmed.

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


text:
    J. E. MATLOCK v. STATE.
    No. A-5379.
    Opinion Filed March 20, 1926.
    (244 Pac. 205.)

      J. Z. Werby, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of adultery, and sentenced to pay a fine of $500. The case was tried in January, 1924. The verdict was rendered on the 2d day of February, and the motion for a new trial was overruled, and the defendant sentenced on the 25th day of June. An appeal was filed in this court on December 24, 1924. Extensions of time to file brief were made, but the last extension has long since expired, and no briefs have ever been filed.

Upon a conviction for a felony, where appeal is prosecuted to this court, and no briefs are filed in support of the assignments of error, and no appearance for oral argument made, this court will not search the record to discover error on which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors, and, if none appear and the evidence reasonably supports the verdict, the judgment will be affirmed. We have examined the record in this case, and find no prejudicial errors. We have- further read the evidence, and find that it amply supports the verdict and judgment and the punishment imposed of $500 is light, in view of the evidence adduced. It wóuld serve no purpose to recite any part of it in detail. We think the defendant was fairly tried, the issues fairly submitted, and the appeal is without merit.

The case is affirmed.

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


text:
    CLYDE SPEAKS v. STATE.
    No. A-5396.
    Opinion Filed March 2, 1926.
    Rehearing Denied March 20, 1926.
    (244 Pac. 51.)
    Jno. W. Scott, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that Earnest Witten and Clyde Speaks did on August 15, 1924, unlawfully transport and convey one half gallon of whisky from a place unknown to a place in Stephens county on the roadway about three-quarters of a mile south of the city of Duncan. On his separate trial, defendant Clyde Speaks was convicted, the jury leaving the punishment to the court. Motion for new trial was duly filed and overruled, and the court sentenced him to pay a fine of $100 and to be confined in the county jail for 60 days. From the judgment he appeals.

The only error assigned is that the evidence is insufficient to sustain the verdict and judgment.

E. S. Jones testified that he had a conversation with the defendants while they were sitting in a car near the City National Bank in Duncan. He asked them if they could get him some whisky, and that he was willing to pay $6, and they said they knew they could not get it for less than $7.50, provided if they could get it at all. He told them he would go on down Ninth street. That shortly afterwards as they passed him he called to them and they stopped the car; when he came up to the car, defendant Witten handed him a bottle of whisky, and he gave him the money.

I. B. Gossett, chief of police, testified that he followed the defendants in Speaks’ car, and they drove down below the Magnolia station and turned east, and after going about a mile they turned around in the road and stopped near a buggy; then they passed him; that he went on and found a half gallon of whisky in the buggy.

C. N. Coker, deputy sheriff, testified that he had a conversation with Clyde Speaks, wherein he stated that he carried Witten down there in the car to deliver some whisky; that the whisky did not belong to him.

The defendant, Speaks, testified that Witten was sitting in his car when Jones came up and wanted to know where he could get some whisky, and witness said, “I don’t know anything about where you could get any,” and Witten said probably he could locate some for him; then something was said about the price, and Jones said he would go on down towards home and if Witten got any let him know; that Witten asked him to drive down there, and he drove down to where the road turns east to the Magnolia camp; there Witten got out while witness turned the car around; that a buggy came up behind the car, and Witten walked back to the car carrying a fruit jar in a sack; that he was in the jitney business, and Witten paid him 50 cents for carrying him down there; that as to his conversation with Mr. Coker, he only told him that he carried Witten down there and did not tell that he carried the whisky down there.

It is the province of the jury to try the issue joined by a plea of not guilty, and, if the evidence of the state, uncontradicted, will support a conviction, this court will not ordinarily interfere with the verdict against the defendant. '•

There was, we think, sufficient evidence to warrant the submission of the case to the jury.

The judgment appealed from is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur. '


text:
    F. R. WHITE v. STATE.
    No. A-5440.
    Opinion Filed March 23, 1926.
    (244 Pac. 450.)
    Bicking & Wilson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Appellant, F. R. White, was convicted on a charge of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $500, and to be confined in the county jail for 6 months. He has appealed from the judgment, and assigns as error certain rulings of the court in the admission of evidence; that the verdict is not sustained by the evidence; that the punishment imposed is excessive, and appears to have been given under the influence of passion and prejudice.

The evidence for the state shows that under authority of a search warrant officers visited the premises occupied by the defendant in Tulsa, 1525 East Admiral, and searched the house, and found several empty bottles, and in a Ford touring car in front of the house they found 12 pints of whisky. Two or three of the officers testified that appellant admitted ownership of the whisky and of the Ford car in which it was found.

At the close of the state’s evidence the defendant demurred to the same for the reason that such testimony was obtained unlawfully, in that the witnesses admitted they had no search warrant directing them to search the automobile in which the liquor in question was found, and that the evidence is insufficient to sustain a conviction, which was overruled and exceptions taken.

As a witness in his own behalf defendant, White, testified that he was not served with a search warrant ' directing officers to search the automobile parked in the street in front of his residence. He denied ownership of the car, and denied ownership of the whisky found in the car, and denied that he claimed ownership of the whisky or the car in his conversation with the officers; that he merely said to the officers that they need not search the house, as there was no liquor there.

.His cross-examination was as follows:

“Q. You know a man by the name of Harry Morris? A. I have heard of him.
“Q. You were working for him at that time? A. No, sir.
“Q. Do you remember Captain Gritts asking you about the ownership of the car? A. No, sir.”

In rebuttal, Ned Gritts testified as follows:

“Q. Did this man tell you who he was working for at the time you arrested him? A. Yes, sir.
“Q. Who? A. Harry Morris.
“Q. Who is he? (Objected to as incompetent, irrelevant, and immaterial.
“The Court: Overruled. A. A bootlegger that lived on the south side of town.”

It is argued that the search of the Ford car without a warrant was illegal, and cannot be justified. In his objections to the testimony appellant did not specify that the admission of this testimony violated any of his rights under the Constitution, and he disclaimed ownership or possession of the car and the liquor found therein. It seems to be well settled that a person, not being the owner or proprietor of the premises searched by virtue of a search warrant, and not claiming any interest in the property so found, cannot complain upon the trial of the alleged illegal search, nor object to the introduction of evidence thus obtained. Remus v. U. S. (C. C. A. 1921). 291 F. 501. Upon the record before us the question argued is not presented by timely objections and exceptions reserved.

It is urged that the court erred in admitting incompetent and prejudicial testimony in rebuttal, in permitting the witness Gritts to testify that defendant told him he was working for Harry Morris, and that Harry Morris is a bootlegger. While the question was objected to, there was no motion that the answer be stricken. The defendant here was asked on cross-examination if he was working for one Harry Morris at the time of his arrest, and answered that he was not. The state in asking the question was bound by the answer given, and it was improper to call witnesses in rebuttal to disprove the defendant’s answer.

It is the established practice under our statute that a new trial shall not be awarded for an error not prejudicial to the defendant. Prejudice is not presumed from error being made to appear, in the absence of reasonably clear indications that the defendant was thereby prejudiced upon the merits. However, it is urged in this case that the rebuttal testimony was prejudicial to the defendant as indicated by the severe penalty fixed 'by the jury, and for this reason the judgment should be modified.

In our opinion the evidence in the case does not warrant the maximum penalty imposed, and in numerous cases this court has held that the remedy in cases like this is not in a new trial, but by reducing the punishment. The court therefore, in furtherance of justice, will modify the sentence to a fine of $200, and confinement in the county jail for 60 days. As thus modified, the judgment of the lower court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
      JOHN DOLEZAL et al. v. STATE.
    No. A-5393.
    Opinion Filed March 25, 1926.
    (244 Pac. 202.)

      Babcock & Trevathan, for plaintiffs in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The evidence as to the manner of the transportation and the place from which the whis-ky was transported is conflicting, but the fact that it was transported by plaintiffs in error to the place where it was found by the officers is certain. One witness says, in effect, that he saw one of the accused men in'the act of carrying the jug of whisky to the place where it' was broken, and the evidence indicated that the other man was implicated.

The claim made by the accused that the liquor was transported with no evil intent, at the request of the wife of the man who was there drunk, is not sustained by the evidence as to intent.' Their explanation constituted no legal defense. The rule announced in DeGraff v. State, 2 Okla. Cr. 519, 103 Pac. 538, has no application in this case. The removal of the whisky from a spot near the house to another place on the same farm, as here shown, amounted to an illegal transportation. Judgment affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    THOMAS J. SOAPES v. STATE.
    No. A-5456.
    Opinion Filed March 25, 1926.
    (245 Pac. 1115.)
    Womack, Brown & Cund, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant, Thomas J. Soapes, was prosecuted by information in the district court of Stephens county for the crime of obtaining property by false pretenses, alleged to have been committed in said county July 7, 1924, by obtaining by means of a trick and deception, from C. C. Wright, a new Ford car, of the value of $438, and in accordance with the verdict of the jury he was on October 24, 1924, sentenced to pay a fine of $250 and the costs. From the judgment he appealed, by filing in this court, February 27, 1925, a petition in error, with a transcript of the record proper attached, and without a transcipt of the testimony in the case. No brief has been filed and no appearance made on behalf of appellant.in this court. When called for final submission, the Attorney General moved to affirm the judgment or dismiss the appeal for failure to prosecute the same. We have examined the record, and find that the same is not properly authenticated or certified to by the court clerk of said county, and it appears that the appeal herein has been abandoned. The motion to dismiss will be sustained, and it is adjudged and ordered that the cause be remanded to the trial court, with direction to enforce its judgment and sentence.


text:
    R. W. McKINLEY v. STATE.
    No. A-5422.
    Opinion Filed March 25, 1926.
    (244 Pac. 208.)
    Bruce L. Keenan and Sanford Martin, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, here designated the defendant, was prosecuted for lewdly exposing his person in the presence of Mary Schmelzla by taking a bath in her presence. By verdict of a jury he was found guilty, with his punishment fixed at a fine of $25 and the costs of the prosecution. The statutory meaning of the word “lewdly” and the motives of the defendant, as deduced from the facts proved, are practically the only questions involved in this appeal.

In the testimony the defendant is referred to as “the old man”; it was shown that he lived alone in a comfortable cottage on the hillside in Tahlequah; at first there were no other houses near, but some weeks prior to the date named in the information a house was moved and set on a lot adjacent to defendant’s, with a distance of 40 or 50 feet between the two houses. During the hot summer months the defendant slept in his cottage in Adamic simplicity, without garments or covering; each morning he arose and prepared his morning meal, naked and unadorned; after that he repaired to a room adjoining the kitchen, 8 by 16 feet in dimensions, in the end of which there was a window, 24 inches square, overlooking the rear of the house in which the prosecuting witness lived; here, each morning, the defendant shaved himself and took a bath, sometimes with the window shade down and sometimes not.

On the day named in the information the wife of this neighbor, the prosecutrix, and her husband, while eating breakfast in their home, saw the defendant in his bathroom, through the bathroom window, taking his customary bath, to the embarrassment of the prosecutrix. It was shown that vision was somewhat obscured by the wire screens covering the openings in both houses. To confirm what they had seen, Mr. Schmelzla called another neighbor, and the two approached and stood near the bathroom window and watched the defendant.

The statute provides a penalty for several kinds of lewd or lascivious conduct, among which it is provided that any person who wilfully and lewdly exposes his person, or private parts, in any public place, or in a place where others are present who may be offended thereby, is guilty of a misdemeanor. Section 1886, Comp. Stat. 1921. The words “lewd” and “lascivious,” when used in a statute to define an offense, usually have the same meaning, to wit, an unlawful indulgence in lust; eager for sexual indulgence. Vol. 3, Words and Phrases, Second Series, p. 95; Bouvier’s Law Dictionary, Third Revision, pp. 1868, 1869, 1938; 36 Corpus Juris, 1035 et seq.; 8 R. C. L. “Lewdness,” § 780.

The defendant’s conduct and habits, as above outlined, were certainly extremely unconventional and reprehensible and such as would naturally offend ordinary persons who might be compelled to witness the affair. On the other hand, it was not done in a' public place, or in the presence of others with a lewd or lascivious purpose, within the meaning of the statute, which imports more than a negligent disregard of the decent proprieties and consideration due to others.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    THOMAS L. COX v. STATE.
    No. A-5066.
    Opinion Filed March 25, 1926.

      (244 Pac. 206.)

      H. A. Wilkerson, Roscoe Bell, and T. F. Donnell, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woods county on a charge of extortion under color of official right and sentenced to pay a fine of $1.

The facts leading up to the prosecution as disclosed by the record are about as follows: In August, 1925, defendant was authorized or appointed a representative of the state highway department to collect delinquent automobile license taxes, under the provisions of chapter 290, Sess. Laws of Oklahoma 1919, as amended by chapter 102, Session Laws Oklahoma 1921. One David Tucker, a resident of Woods county, was delinquent for license tax for two tractors owned by him. He had made an application for license but not having remitted sufficient money his application was returned.

At this time Cox with another went to Tucker and pointed out to him that under the statute the minimum fine for failure to have procured license was $25 and costs, and that 25 per cent, of the fine in case of prosecution would be paid to him, Cox, and informed him that if he would pay this 25 per cent, with the amount which would be due as court costs in case of prosecution, and would make application for license, no prosecution would be instituted. This 25 per cent, of the fine and the cost according to defendant’s computation amounted to $18.50, which sum together with the license fee was paid defendant by Tucker. No prosecution against Tucker was instituted. Later information of this transaction having come to the highway department, it required Cox to refund to Tucker the $18.50 so paid. This was done before prosecution in this case was instituted.

Several assignments of error are presented in the brief of the defendant. It is first urged that the information is insufficient for failure to allege an unlawful intent. The charging part of the information reads:

“* * * That the said defendants, as such officers, did extort and obtain property, towit, money of the amount and value of $18.50 of good and lawful money of the United States of America, from another person, towit: One David Tucker, with the consent of the said David Tucker, which said consent was induced, procured and obtained by them, the said defendants by means and by use and under color of official right, contrary,” etc.

Section 2133, Comp. St. 1921, defines extortion as follows:

“Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right.”

Section 2136, Comp. S't. 1921, provides:

“Any person who commits any extortion under color of official right, in cases for which a different punishment is not prescribed by this chapter, * * * is guilty of a misdemeanor.”

The provision of the statute providing a penalty for failure to pay automobile tax is section 10135, Comp. St. 1921, as follows:

“Any person, * * * failing to comply with the provisions of this act shall be deemed guilty of a misdemeanor and on conviction thereof, shall be subject to a fine of not less than $25, nor more than $100: Provided, that one-fourth of any such fine, when collected, shall go to the enforcement officer discovering and presenting such case, if such enforcement officer be other than a salaried employee of the state highway department, and the balance of such fine, when collected, shall go to the road fund of the township in which the vehicle for which the fine so assessed, is kept. * * *”

It will be observed that an unlawful intent is not made an element of the offense charged, and when not made an element ordinarily an intent need not be alleged. Santino v. State, 29 Okla. Cr. 149, 232 Pac. 859; State v. Kuehnle, 85 N. J. L. 221, 88 Atl. 1085; Block v. U. S., 261 Fed. 321; People v. Walfrom (Cal. App.) 115 Pac. 1088.

It is next argued that the court erred in his instructions to the jury, Nos. 4 and 7, and in refusing requested instructions, in the admission of evidence, and in the argument of counsel. We have examined fully all these contentions and while some errors are manifest they were not prejudicial, and being harmless present no reason for a reversal.

Upon an examination of the entire record it appears to us that the conduct of the defendant could not be justified under any view. His compensation is fixed at 25 per cent, of the fine imposed. Certainly no fine could be imposed except by a judicial officer having jurisdiction of the offense and of the person of an accused, invoked by some appropriate proceeding. The defendant as an enforcement officer had no authority to assess or collect fines. We can conceive of no method more likely to breed corruption than the permitting of petit officers under color of official right to levy tribute. The attempt to designate the moneys collected as a fine and costs where no legal action has been instituted does not better the situation, such practice is not authorized by law, nor good policy.

The state highway department is to be commended in requiring the defendant to promptly return the money extorted by him.

The case is affirmed.

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


text:
    FRED WILLIAMS v. STATE.
    No. A-5375.
    Opinion Filed March 26, 1926.
    (244 Pac. 202.)
    John Adams, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Logan county on a charge of violating the prohibitory liquor law, his punishment fixed at imprisonment in the county jail for a period of 90 days, and a fine of $375.

The charging part of the information upon which defendant was tried is as follows:

“* * * That at and within the county of Logan, state of Oklahoma, on the 27th day of July, 1924, A. D., the said Fred Williams did then and there unlawfully, wilfully, and wrongfully have in his possession a quantity of spirituous liquor, to wit, three gallons of whisky, testing more than oné-half of 1 per cent, alcohol, contrary to and in violation of the statutes in such case made and provided, and against the peace and dignity of the state.”

No demurrer was filed, but, when the first witness was called, the defendant objected to the introduction of any evidence for the reason that the information did not state a crime, in that said information did not state that possession of the whisky in question was with intent to violate the prohibitory liquor laws of the state. It is contended that the information does not charge an offense. The contention is well founded. The mere having possession of whisky, with no intent to violate any of the prohibitory liquor laws, is not a crime. Section 7002, Comp. Stats. 1921, makes it unlawful to have the possession of any liquors defined and described in said section with the intention of violating any of the provisions of the prohibitory liquor laws. This statute continues in force as amended by chapter 70 of the Session Laws of 1911, and by chapter 26 of the Session Laws of 1913, and by chapter 123 of the Session Laws of 1924. The amendments referred to, in so far as they affect the question of possession under which the defendant in this case is sought to be charged, make the possession of specified quantities prima facie evidence of an intention to violate the prohibitory law, but do not make the bare possession without intent a crime. It follows that, since the information charges the bare possession, it does not state an offense, and the objection to the introduction of evidence should have been sustained.

The case is reversed and remanded.

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


text:
    RUDOLPH McCLUSKEY v. STATE.
    No. A-5392.
    Opinion Filed March 27, 1926.
    (244 Pac. 204.)
    Summons & Hughes, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, here designated the defendant, was convicted of the illegal transportation of whisky, with his punishment fixed at a fine of $100 and 30 days in jail.

The defendant claims that the evidence upon which the conviction rests was obtained by means of an illegal search and seizure, and admitted over his protest. The state’s evidence indicates that the act of transportation was in the presence of the officers; that the arrest without a warrant was justified and that the search and seizure following were also justified, as incident to the arrest.

The testimony shows that certain peace officers were driving upon the public highway, followed by a car driven by the defendant and two companions; that the officers suspected that the defendant had whisky in his car, and to ascertain whether their suspicions were well founded they stopped their car on a bridge in such manner as to obstruct passage to the car following. The defendant drove up and stepped out and as the officers approached they apprehended the defendant in the act of throwing a half gallon of whisky away. This jar of whisky was seized by one of the officers before it left the hands of the defendant, whom they immediately placed under arrest. Subsequently the officers searched the ear and found a large number of jars of whisky concealed in a box and in the defendant’s traveling bag.

Without relating all the details, we hold that under the circumstances the arrest without a warrant was authorized, as for a misdemeanor committed in the presence and view of the officers who made the arrest, and that the search and seizure following were justified as incident to a legal arrest.

Judgment affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    HENRY BOAZ v. STATE.
    No. A-5391.
    Opinion Filed March 25, 1926.

      (244 Pac. 206.)
    Rummons & Hughes, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Plaintiff in error, Henry Boaz, here referred to as the defendant, appeals from a judgment rendered against him in the county court of Kiowa county, assessing a punishment of a fine of $50 and 30 days in jail, upon a verdict finding him guilty of having possession of intoxicating liquor, with intent to sell, barter, give away or otherwise furnish the same.

The evidence discloses that the defendant had assembled in a wooden cask some apricots, sugar, hops and yeast, and then filled the cask with water, intending, as he claimed, to make some home brew for his own use. The cask with its contents was set just below a dam which impounded a pond of water, presumably put there to facilitate the process of fermentation. When this decoction was about three or four days old certain officers were making searches for liquor on adjoining and neighboring farms. The defendant heard of this, and to avoid trouble poured the mixture from this cask out onto the ground and rolled the cask into the pond, where it filled with water and sank out of sight. The officers found some of this liquid and mash so poured out in cow track depressions near this pond; they also found and recovered the submerged keg from the pond.

Beyond the statutory presumption arising from the quantity originally in the cask, there was no evidence whatever of the alcoholic content of the mixture, or that it was intoxicating. The information was defective in not designating the particular kind of intoxicating liquor defendant was alleged to have, but this vice was waived by defendant’s failure to challenge the information by demurrer, or otherwise.

At the time of the alleged offense, section 6999, Comp. Stat. 1921, relating to presumptive evidence, was, in effect, providing that possession of more than one cask of malt liquor shall be presumptive evidence of intent to sell. This may have been a cask of malt liquor, within the meaning of the statute; but the possession of only one cask might not raise a presumption of intent to sell. The instructions of the court on this feature incorrectly stated the law. And if there was, in fact, such a presumption, we think the evidence as a whole rebutted such presumption.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    HENRY BLUMHOFF v. STATE.
    No. A-5418.
    Opinion Filed March 27, 1926.
    (244 Pac. 825.)
    John W. Scott, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county on a charge of having possession of intoxicating liquor with intent to sell, and sentenced to serve a term of 90 days in jail, and to pay a fine of $250.

The evidence discloses that certain officers, with a search warrant, upon premises in the possession of defendant, found 140 bottles of choc beer which they testified was intoxicating. This was hidden in a stack some distance from the house, b!ut at the house other bottles of the same kind were found, and a half dozen bottles of beer in the garage at the house, and three sacks of empty bottles were also found hidden in the stack.

The defendant did not take the stand. The case was tried in August, 1924, and appeal was lodged in this court on the 31st day of February, 1925. No briefs have been filed in behalf of the defendant, and no oral argument made. We find no jurisdictional error, and the evidence reasonably supports the verdict and judgment.

The case is affirmed.

BESSEY, P. J., and DOYLE, J„ concur.