author: DAVENPORT, J.

text:
    CHAUNCEY BROADDUS v. STATE.
    No. A-9553.
    May 5, 1939.
    (90 P. 2d 457.)
    Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

By information the defendant was charged in the district court of Kiowa county, Okla., with assault upon Miss Rhoda Lee Walker, and did attempt to have sexual intercourse with and carnal knowledge of the said Rhoda Lee Walker by means of force and violence, was convicted and sentenced to serve one year in the county jail. The record was properly reserved, and the defendant appeals.

Rhoda Lee Walker, testifying on behalf of the state, in substance, stated:

“I live at 109 North Randlett street (Hobart, Okla.). I am the daughter of Mr. and Mrs. R. M. Walker; have lived in Hobart about eight years. Prior to that time I went to Teachers’ College at Weatherford. I went to work at the Dixie March 1, 1930. I know the defendant, Chauncey Broaddus. I have known him practically ever since I have been here. His wife used to work at the store, and I knew him through that; and he came in the store quite a lot. His wife’s people live just across the alley from us. On January 20, 1938, I quit work at the store about 6 o’clock in the evening, and went over to Dodds, the chiropractors. I had an appointment with Mrs. Dodd at 6 o’clock. After I got through there, I went down the street with them to Boothe’s, and I turned north and went to Bradfield’s, and turned the comer right there. That is the way I usually go home and come to work mornings. As I turned the corner, I saw the defendant, Chauncey Broaddus. He was in his car. He opened the door and asked me if I would like to ride up his way; he was going home, and, of course, I got in his car and started with him, as he was going out towards my home. I would often ride back and forth with other gentlemen who were going up towards my home. When I got in the car, I asked him if he had just got off from work and he said, ‘Yes, Mrs. Bradfield will make you work all night if you’ll let her.’ He said he had to go through town, and we went through Main street, and came back around by Boothe’s corner and stopped — and then he turned north and up Main street, and then on North Boundary. I live the second door oif North Boundary. He asked me if I had had supper when we got up near Wimpy’s, and I told him, ‘No.’ He asked me if I would like to have a sandwich; and I said, ‘No,’ if he wanted to eat I would get out and go on. He said, ‘No,’ he would take me home first. And when we got to the corner, instead of turning west, he turned east, and I told him I wanted to go home, and he said, ‘We will go for a little ride,’ and I told him I did not care to go riding with him ; I only wanted to go home. He did not pay any attention to me, and I opened the door, and started to get out. He pulled me back in and speeded the car up. He liked to have run into a big bus or truck or something, and he yanked the car back right quickly. He drove on to Lincoln street and turned south. I kept talking to him, and told him he had a wife and child, and that I could not afford to go out with a married man, and I had my family to think about. He paid no attention to me. He drove on a little ways, and I told him I would get out at the corner and walk on home, and he would not let me. He tried to put his hand on my knee, and I knocked it off, and told him he had the wrong person, I wasn’t going out with him; and he refused to stop the car. He went so fast I could not jump out. He went straight south in the last block on Lincoln street. When we got almost there, he said, ‘We will stop right down here, and we will talk this over.’ And I said, ‘That suits me fine,’ and I told him I would get out then, and when he stopped the car, he reached over and grabbed me from the back, and started choking me. I had my hand on the door knob of the car, and I opened it, and started to get out. He grabbed me by the neck and choked me from the back. I pulled him almost out of the car. As I went by the knob of the door I tore the front out of my dress trying to pull him out, and finally got his hands loose. He choked me until my eyes stuck out. I tried to reason with him, and he would not pay any attention to me, and I was screaming for help. He pushed me, and I pushed him out, and we were all over the car in the front seat. He got me down in the front seat. When he hit me on the jaw he knocked me clear back in there, and pushed me back. I was laying down, and he had his hand holding it down with one knee and was holding my hair, holding my head back. He was over on top of me. He did not have my clothing pulled up. He was trying to, and I was fighting, and he could not. He did not pull my clothing back enough to expose my person. He choked me again after he threw me down in the seat, and then he hit me. A man passed the car, and I yelled to the man, and he hit me again. Earlier when I first started to get out of the car, I saw a truck pass. I was yelling all the time for help. When I saw the man pass, I hollered, ‘Mister, will you help me, please?’. I did not see him. I guess I was down in the car when he went back. He hit me at least three times or more. He hit me in the nose and my mouth. My nose was bleeding, and it ran down in my mouth and strangled me. I was spitting the blood out. I told him Dad would take him to the law for what he was doing, and he said he would kill me first, and he gave me another blow in the eye, and my eye swelled up until I couldn’t see out of only one eye. Mr. Calhoun and Mr. Herrol came back, and I could see them coming through the back glass. By that time I had pushed him back up again. I was yelling, and they came down there, and then Mr. Herrol spoke to him, and pulled him back. I asked Mr. Herrol to take me, and Chauncey spoke up, and said, ‘He is as bad as I am, you had as well let me take you on home.’ I said I would not, I would walk, and I turned around and asked Mr. Calhoun if he would, and said, ‘Mister, will you take me up the street?’. I did not know either of the men. Mr. Calhoun said, ‘Lady, Í sure will,’ and he walked up to Evans with me. I washed and cleaned up there at the Evans place. I could see out of only one eye. The blood was running out of my mouth and nose, and, of course, it was all over my face. The next day that eye was blackened and one of my ears was swollen quite a bit. That was swelled, and this was black. The doctor took an X-ray. He thought sure my jaw was broken. At the time Mr. Calhoun and Mr. Herrol came up to the car, the defendant had got off and away from me. His clothes were undone and hanging down, that is, his trousers. He pulled them up when these men came up.”

On cross-examination the testimony of the prosecuting witness was in substance the same as her direct examination.

Dr. J. P. Braun, testifying for the state, stated he was a physician and surgeon. His qualifications were admitted by both sides.

Dr. Braun stated:

“I am acquainted with Rhoda Lee Walker. I had occasion to see her on the night of January 20, 1938, on Thursday evening. I first saw her at the home of her friend Madie Evans. That is down in the south part of town on Lincoln street. She was very nervous, and her face was pretty badly bruised, especially the left eye had begun to swell shut, and pretty black and blue, and she complained of a little soreness in her neck. The side of her head and jaw was swollen and pretty sore. I examined her also the next day. Her condition looked worse. Her jaw had swollen considerably, and her left eye was swollen shut, and was black and blue. The right eye was blackened. She complained of not being able to open her mouth over a quarter of an inch. I had an X-ray made of her jaw, and found that her jaw was not broken. Her neck was reddened. She complained most of soreness. There was no bleeding when I saw her, excepting a little scratched place on her face. She had already cleaned up before I saw her. She complained of her neck being sore, and it was sore to the touch. As I recall there was a little scratched place over her left cheek.”

Mr. Calhoun testified for the state that he lived in Hobart:

“Mr. Herrol lives on the 900 block, and I live on the 800 block, and Mr. Hulsey is just across the street from me, directly opposite from Mr. Herrol, and Mr. Herrol is just across the street directly opposite me. Those two houses are the only houses on the block, excepting on the west side there is a house which is over across the block on Jefferson street. The first thing of this alleged offense, I heard a scream. It sounded like a man or a woman. I did not pay much attention to it. I did not know but what it was some child down at the lower house on down at the highway. I had gone to the door when I first heard it and stepped back in the house and stayed a few seconds and stepped back out and heard it again. I went down there. I did not hear the scream any more after I started. The defendant’s car was standing there on the west side of the road, and I started to pass. I went on the east side of the car. When I got right in front of the car, a lady hollered and said, ‘Mister, will you help me,’ and I turned and went back to Mr. Herrol’s and got him. I did not know what was going on at the time. I got Mr. Herrol, and we walked up to the car. Mr. Chauncey had his hand upon her shoulder. She asked us to make him turn her loose. And when Mr. Herrol told him to turn her loose, he did so. It seemed like his pants were a little unbuttoned in front. I never paid much attention to his shift. We stood there a short while, and the girl said if she could find her purse she would go home. She got the purse, and asked one of us to walk back a piece of the way with her, and I told her I would. Mr. Broaddus told her if she wanted to go home, to get in the car and he would take her home, and she said, ‘no.’ I walked up to Evans with her, and Herrol stayed with Broaddus.”

Mr. Calhoun’s testimony on cross-examination was in substance a restatement of what he testified to on his direct examination.

Mr. Newlin Herrol, called on behalf of the state, testified in substance to the same facts as Mr. Calhoun, as to what took place after they got up to the car, and until the young lady was escorted by Mr. Calhoun up to the Evans’ home.

Eddie Greer, testifying for the state, stated:

“I live on South Monroe street in Hobart, Okla. Monroe street is one block west of Lincoln. On January 20, 1938, I lived one block north and one block west of where the defendant’s car was parked. I was outside, almost to the alley of my place, and I heard a woman scream real loud. When I heard her holler, ‘Help,’ I ran down there just as soon as I could. I did not go clear down to the car. I got to about 65 or 70 feet northwest of the car and just kinda’ hunkered down trying to see what it was. I could see the bulks of two people scuffling on the west side of the car with the door open. I could hear her scream, ‘Help,’ several times. I could hear her screaming, and I could not hear the man saying anything. Except I heard the man say, ‘Get down in this car,’ or, ‘Get in this car.’ I could not tell which. It sounded like a man was sitting in the back seat of the car. It sounded like two fellows there, and I did not go on up. I went to the first house west to get some help, and the boys were all gone. There was an old man there, and he did not care much about going down there. The next thing I did was to call the chief of police, Doss Kutch. I could still hear screaming up until I got to the house where I put in the call for the chief of police. All I heard her say was ‘Help,5 several times. The last thing I heard her say was, ‘Oh, My God,5 and she was being strangled. I could tell from her voice that she was being choked."

On cross-examination the witness reiterated in substance all his testimony on direct examination.

The foregoing is in substance the testimony of the state.

The defendant, Chauncey Broaddus, testifying in his own behalf, stated:

“I live in Hobart, Okla. I will be 32 July 22nd. I have known Miss Walker, the prosecuting witness, for some time; for to know who she was, possibly, three or four years. I am a married man; I have a wife and one boy. On the night of January 20, 1938, I saw her going north of Bradfield’s. I was parked at the curb there by Brad-field’s. She got in my car at that time. I asked her if she wanted to ride home. She was by herself. This was about 7:20 or 7:25 in the evening, a little after dark. I heard her state as to the way I drove. That is correct. I had had a few drinks that evening. I would say I was fairly well liquored up. When we came around as we approached Wimpy’s, I asked her if she would have a sandwich, and she said she did not believe she would. I slowed up, and she said she wanted to go on home. We kept going north. I then proceeded right on north, on Main street. It wasn’t very late, and after I turned, why, she says, T have to go home,’ and I said, ‘Well, let’s just ride around a little while, make a circle of the block or two, and we will go on up to the house, and I will take you home.’ And then I proceeded on east to Lincoln street and drove south. At the time I turned south, I did not have any particular route laid out, just driving around, that was all I had in mind, just driving around and circling around and going on back up home. I did not attempt to rape Miss Walker— I did not touch her — I did not touch her until we got down on South Lincoln. I guess it was in the 800 block of South Lincoln. She said she wanted to go home, and I said, ‘We will drive down the street and make the circle down here and go back up Main street.’ She said, ‘I have got to go home.’ So I said all right. I was pretty well— like, I say — I had had a few drinks — a bad fault; and another bad fault of mine is when I am drinking, why, I am inclined to show a little affection towards a girl or lady at that time. I have done it before, out in a crowd, with my wife present. And she has warned me several times. It is my failing that when I get a little liquored up, and am out, even in a crowd, and some of the girls, or some of the men’s wives, get around, and that I kinda’ want to pat them or give them a little caress or something. I have done that in the presence of my wife, and she has warned me about it. I never had any intention whatsoever to harm this lady in any way. I just wanted to be a little affectionate to her, and I started to say, in the 800 block— in the 800 block, I put my arm around her and she objected. She not only objected, but she stuck me with a pin, and made me mad, and as I say, I had had a drink and was, I suppose, got angry a little more readily than I would if I had been sober. And I said, ‘Right here is where we are going to settle this. You are going to get out of this car.’ And when I said that, I opened the door on my side of the car and walked around and opened the car door. Miss Walker, I imagine, was pretty well excited. She knew that I was drinking at that time. And not knowing me well, she was bound to have been excited more or less. I opened the door and reached in to grab her, and when I did, she naturally fought back, and threw her hand up in my face. She scratched me on my forehead. When I reached in the car to grab her, she did not pick me at that time, because I had my hands holding on her arms. Then immediately when she got loose she began to stick me again and pretty hard. It just flew all over me, and before I thought I just stuck both my hands, and especially my right arm, right in her face, and harder than I really intended to because I was mad. I did not hit her with my fist; I just put my hand — just stiff armed her right in the face, and she had her arms up there scratching me, and fighting with this pin. And before I thought I hit her, and hit her too hard, I know. Quick as I realized it, I was sorry for it, and she was screaming all right, and I was trying to quiet her down and keep her from fighting me, and trying to keep her from screaming at the same time. When I went to get her out of the car, I did not tell her where she could go, but I knew her stepbrother’s house was close there. I reached in to get her, and pull her out of the car, and she would not get out, and she sat there and fought back at me. I did not know what she thought at all. I told her to get out of the car and reached in and tried to pull her out. At no time did I try to pull up her clothes, because it was nothing connected with that at all. We were scuffling and pulling and tugging, and when she was screaming, she had this pin at the beginning, and I was trying to keep her from sticking me with the pin with one hand, and with the other trying to get her to be still, because I knew we were close to people’s houses, and did not want to cause any disturbance. In fact, I was trying to get my hand over her mouth to make her be still. The first remembrance I have of Mr. Calhoun being present is when she said, ‘Will you help me?’ and I looked up and saw Mr. Calhoun. I did not know who he was. I was still trying to get the lady to be quiet. I did not know Mr. Herrol by the name of Herrol, but by the name of Hammer, that is his nick-name. Nothing but my shirt of my clothing was disarranged. After Mr. Calhoun was there and left, and I realized that we had an audience, and I was trying to get Miss Walker to be still so that we could get things settled and go on home. When Mr. Calhoun and Mr. Herrol came back, we were outside of the car, and I had my hand on Miss Walker’s shoulder and was telling her, ‘Now, let’s settle this thing the best way we can, and be still, and I will take you on home.’ I was trying to avoid any disturbance. I had seen that we had attracted attention down there and wanted to quiet everything down. She said she would walk on home. Why my trousers were unbuttoned, when Mr. Calhoun and Mr. Herrol came back down and were not quite up with the car, when I noticed them, I noticed my shirt being out at that time, and when Mr. Calhoun left, and before they got back I straightened up. I was standing on the ground all the time by the car. She quieted down some after Mr. Calhoun passed, before he and Mr. Herrol returned to the car. All the side of my shirt was out, and it had evidently been pulled out in the scuffle. And to arrange the shirt I unbuckled my belt and stuffed my shirt back in my trousers. I never did ask her to have intercourse with me or anything of that sort.”

On cross-examination, the defendant admitted that he told Mr. Kutch, the officer, that he did not know anything about what had taken place out there. But the defendant stated, that he knew all the time what he had done, notwithstanding that he had told the officer that he did not know what had taken place.

The defendant called Vernon McCraig, who testified as to his car being in the driveway, and the defendant coming home and driving his car in behind the McCraig car, and Mr. McCraig had to back the car out in order that he might get his car out.

The foregoing is all the testimony offered on behalf of the defendant.

The officers were called in rebuttal to show what statements defendant made to the officer the night of the trouble.

Defendant in his petition in error assigns ten errors, alleged to have been committed by the court in the trial of his case.

The first assignment goes to the action of the court in overruling the defendant’s demurrer to the information in which the defendant alleges the information is duplicitous and attempted to charge more than one offense. Section 2886, O. S. 1931, 0. S. A., title 22, section 404, in part is as follows:

“The indictment or information must charge but one offense, but where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense, and the court or jury trying the cause may find all or either of the persons guilty of either of the offenses charged, and the same offense may be set forth in different forms or degrees under different counts. * * *”

The defendant urges that the information is bad for duplicity and charged more than one offense in the same count of the information.

We admit the information in this case is not a model and could have been drawn to have more clearly expressed the charge against the defendant. This court has repeatedly held that:

“An information is sufficient which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution. * * *” McGhee v. State, 49 Okla. Cr. 387, 294 P. 649.

If a reasonable person can understand what is intended by the language of the indictment or information, that is sufficient. Price v. State, 9 Okla. Cr. 359, 131 P. 1102.

The information in this case advised the defendant of the charge he was supposed to meet, and stated facts sufficient to warrant the court in overruling the demurrer of the defendant.

The contention of the defendant that the court erred in overruling his demurrer is without merit.

The next assignment argued by the defendant is his eighth assignment, and that is the defendant contends that the court was in error in the admission of incompetent and prejudicial evidence which was brought out on cross-examination of the defendant over the objections and exceptions of the defendant.

The evidence complained of by the defendant is in substance that the state on cross-examination asked the defendant if he had not mauled several of the women around town prior to this time, to which the defendant answered, “No”; and the defendant was asked if he remembered an occasion when he had Miss Evans out, and she had to run off from him. The defendant stated that she did not run off from him; she came home. “I had her in the car, and I took her home.”

The defendant denied that he ever annoyed or troubled Mae Zinn or a lady who lived in an apartment whose name is not given.

It will be seen from the record that the testimony complained of by the defendant was brought out in the defendant’s cross-examination, and that he was being cross-examined on a statement made by him in his direct examination, in which the defendant stated:

“And I was pretty well — like I say, I had had a few drinks — a bad fault; and another bad fault of mine is when I am drinking, why, I am inclined to show maybe a little affection towards a girl or lady at that time. I have done it before, out in a crowd, with my wife present. And she has warned me several times.”

The defendant replied to the following question asked by his attorney:

“Q. Well, let me ask you this, Chauncey, it is your feeling that when you get a little liquored up, and are out, even in a crowd, and some of the girls or some of the men’s wives get around, that you kinda’ want to pat them or give them a little caress or something? A. I have done it. Yes, sir.”

When the defendant takes the stand he occupies the same position as any other witness, and the state has the right to cross-examine him on any matters material to the issue, and on any evidence given or statement made by him while on the witness stand.

We have carefully read the record in this case, and the brief of the defendant on the question of the cross-examination of the defendant as to his previous conduct with other women. And we hold that the action of the court in permitting the cross-examination by the state of the defendant as to his former conduct with other ladies is not such an error as would warrant this court in reversing the case.

The defendant argues, with a great deal of force, that the admission of the testimony brought out in the defendant’s cross-examination, complained of, was an error, and cites Brockman v. State, 60 Okla. Cr. 75, 61 P. 2d 273. An examination of that case, and the authorities cited therein, clearly shows that the facts are far different from the facts in the case at bar, and therefore is not applicable to the questions discussed in this case.

This case is unusual for the reason that we find a married man living in the same city with the prosecutrix, offering his services to drive her home when she is returning from her day’s labor, and the prosecutrix accepted his kind offer, got in his car, and, as she thought, they had started home, but instead of going home, notwithstanding that the prosecutrix insisted she must go home, the defendant drove from place to place around the city, and finally started south on Lincoln street. The prosecuting witness wanted to get out and go home, and the defendant admits that on several occasions she begged him to take her home, and he declined to do so. He admits that he finally started down south on Lincoln street, and tried to put his arm around the prosecutrix’s waist, and she resisted, and that he drove on down to what is near the end of Lincoln street, and where there are only two or three houses within a block or two of that street, and then stopped his car, and there it was where he said “We are going to discuss the matter and settle it.” The prosecuting witness stated that the defendant grabbed her from the back and began to pull her down, and choked her, and she began to scream, and they scuffled, and finally she pricked the defendant with a pin of some kind, and the defendant kept holding her, and that defendant choked and finally struck her in the face two or more times, and the prosecutrix continued to holler until she attracted the attention of two men living in the block a short distance from where the car was parked, and one living across the block on another street.

According to the statement of Miss Walker, the prose-cutrix, the defendant tried to pull up her clothes, but she fought him until he could not do so, and that he had his trousers undone.

The defendant admits stopping the car where Miss Walker says he did; he admits pulling her around, but says he tried to make her get out of the car; he admits that he struck her harder than he expected to strike her, and that when she pricked him with the pin, it made him mad, and he then struck her in the face. The prosecuting witness said the defendant threw her down in the seat of the car with his trousers undone and was on top of her, and finally in the fight she managed to get loose from him and got out by the side of the car. During the greater part of this time the prosecutrix was hollering for help, and the defendant persisted in the struggle and scuffle with her. The defendant, when Mr. Calhoun and Mr. Her-rol, two witnesses, came to the car in response to the prosecutrix’s screams and appeal for help, still had his arm on her shoulder and was detaining her there in scuffling, and both these men testified in the case that they made defendant turn the prosecutrix loose, and Mr. Calhoun walked with her up to the house of Madie Evans, a friend of the girl.

The defendant admits every statement made by the prosecutrix, except that he claims that he did not try to raise her clothes. He admits that his trousers were loose, and claims that when he discovered his shirt was out of his trousers he unbuckled his belt and put his shirt-tail in his britches, and pulled his trousers up.

The defendant also admits, using this expression, “I was liquored up that night,” and that when he was drinking he had an affectionate desire to caress or pat ladies. He says he did not attempt to have sexual intercourse with the prosecutrix, but he does not explain why he drove down to the end of Lincoln street to have it out and settle the trouble, and even admits that after they got out of the car he tried to get the prosecutrix to hush, and tried to settle the matter and go on home. He admits that he tried to put his hand over the prosecutrix’s mouth to keep her from screaming and attracting attention to what was going on at the car.

There is an old adage, and there is a great truth in it, that actions speak louder than words. No one could read this record, including the defendant’s own testimony, without reaching the conclusion that it was willful upon the part of the defendant to take this poor girl out by herself in a quiet, sparsely settled part of the city, and to have intercourse with her, even though he had to resort to force, and it is, indeed, fortunate for the poor girl while she was being assaulted and beaten up in the car by the defendant that Mr. Calhoun and others heard her screams, and went to her rescue; otherwise, it is the opinion of this court that had they not gone to her rescue, the defendant would not be here for assault with intent to commit rape, but would have been tried for rape.

We hold that the testimony in this case clearly shows that the defendant, when he got the prosecutrix in the car with him, immediately decided to drive her to some quiet and sparsely settled part of the city, and there assault and have sexual intercourse with her.

There is practically no conflict in the testimony. The court’s instructions were as fair to the defendant as they were to the state, and correctly advised the jury as to the law applicable to the facts.

There is no error in the record prejudicial to the rights of the defendant. He had a fair trial, and the jury by its verdict said he was guilty and imposed a sentence of one year in the county jail for his crime, alleged and proven.

The judgment is affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    CECIL GRAGG v. STATE.
    No. A-9533.
    May 5, 1939.
    (90 P. 2d 454.)
    Tant & Flinn, of Oklahoma City, for plaintiif in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The defendant Cecil Gragg was by information charged with the unlawful transportation of one pint of whisky from a point unknown to a point commonly known and designated as the Hales Building, Oklahoma City, Okla., was tried by the court, found guilty and sentenced to pay a fine of $50 and be imprisoned in the county jail for a period of 30 days, and appeals.

Before the case was called for trial, the defendant moved to suppress the state’s evidence for the reason that the officers searching the defendant had no warrant to search his person or property and had no warrant for his arrest; and the defendant was not violating any law in the presence of the officers that could be seen by them.

The motion to suppress was overruled, and the defendant duly excepted. It was agreed by both the defendant and the state that the evidence taken on the motion to suppress be used in the trial of the case, and the court passed upon that testimony and found the defendant guilty.

The only question that it is deemed necessary to consider in this case is the question of the search of the defendant.

The defendant in his petition in error assigns the following errors:

“1. The arrest of this defendant by the deputy sheriff was without just cause or provocation, that said deputy sheriff at the time of making said arrest did not have a search warrant, and that the evidence procured by said arrest was not given with consent of this defendant.

“2. The said search and seizure was unlawful and without authority of law.

“3. The said defendant at the time of said arrest was not violating the law, and the evidence so obtained was not apparent.

“4. That the judgment is not sustained by the evidence and by the law.”

It is only deemed necessary to consider the second assignment of error, and that is that the said search and seizure was unlawful and without authority of law.

The defendant testifying on his motion to suppress states that at the time of his arrest he had started to enter the Hales Building on Robinson street in the city of Oklahoma City.

“I was not disturbing the peace, fighting any one or doing anything except starting to enter the building. Mr. Kean, a deputy sheriff, was near the building, and he stopped me and asked me to come and go with him, and Deputy Kean took me across the street to where Mr. Agee was sitting in a car. They did not have a search warrant, nor did they have any warrant for my arrest. I did not discuss with Mr. Kean as to whether or not I was still working for Mr. Sanford. Mr. Agee told me to come and go with him, and he brought me down here, and he filed a charge.”

Dan Kean, a deputy sheriff, stated he saw the defendant at the Hales Building:

“The defendant had a conversation with me and, also,' with Mr. Agee. I said, ‘Hello, Cecil,’ when I saw him going in the building. As he started in the building I asked him where he was going, and he told me he was going up in the Hales Building to deliver a pint of whisky. I asked him if he was still working for Sanford, and he said he was, and I said, ‘Let’s go over and talk with Agee.’ So we walked on down the street and got in the car and talked to Agee. I asked him if he had the whisky, and he gave it to me after we got in the car. I did not stop him before he told me he was delivering a pint of whisky. I did not know whether he was delivering whisky or not. At the time I first spoke to him, he was not doing anything out of the way so far as I know. I did not have a warrant for his arrest, nor did I have a search warrant to search his person. I talked to him and told him to come and go along with me, and said, ‘Let’s go over and talk to Agee.’ Agee is also a deputy sheriff.”

The motion of the defendant to suppress the evidence was by the court overruled, and the defendant duly excepted.

The only question deemed necessary to consider in this case is the question of the arrest and search of the defendant.

The deputy sheriff, who claims that he stopped the defendant as he was about to enter the Hales Building, admitted that he had no warrant for his arrest or to search his person, and tries to avoid his unlawful act of arresting the defendant, and taking him over to Agee by saying that the defendant told him he was going to deliver a pint of whisky.

In this case the defendant at the time he entered the Hales Building was not violating any law in the presence of the officer that could be seen by the officer. He was peaceably, according to his testimony, on his way going into the Hales Building. Mr. Kean, the deputy sheriff, stopped the defendant, and engaged, as he says, in a conversation with reference as to for whom he was working, and then took the defendant into custody, and they went over to the car where another deputy, Mr. Agee, was sitting. It is true the officer undertook to say that he suggested to the defendant that they go over there. The facts show that Mr. Kean, the deputy sheriff, stopped the defendant without any authority of law, and took him across the street to Agee before they compelled him to deliver any whisky to them, if he had any whisky on his person.

The defendant said he had no such conversation as stated by the Deputy Kean; but if he had had the conversation, that conversation would not warrant the officer in taking him into custody and taking him over to the car where Deputy Agee was, and there forcing him to hand over the pint of whisky that he had somewhere on his person.

This question has been before this court on many occasions, and it is, indeed, surprising that the officers of the law will ignore the law and make an unlawful arrest, and searched the defendant in this case. Of course, he would not resist the officers and be placed in the attitude of resisting an officer. When he was taken into custody, he naturally submitted and went with Deputy Kean to where Deputy Agee was, and there they took the pint of whisky off of his person or compelled him to deliver it to them.

Section 2780, O. S. 1931, O. S. A., title 22, § 196, in part reads as follows:

“A peace officer may, without a warrant, arrest a person:

“1. For a public offense, committed or attempted in his presence.”

The information in this case is a misdemeanor and punishable only by a fine and/or imprisonment in the county jail, and is therefore not a felony under our statutes. The officers would have no lawful right to arrest the defendant without a warrant unless the offense was committed or attempted in their presence.

In Keith v. State, 30 Okla. Cr. 168, 235 P. 631, this court stated:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.”

In this case it is admitted by all parties that they had no search warrant to search the defendant, and no warrant for his arrest. The arrest of the defendant was by the officers in this case made without any lawful authority.

It cannot be said that the criminal offense is committed in the presence of an officer unless the actions constituting the offense became known to him at the time they are committed through the sense of sight or the senses. Although a defendant may actually be committing a criminal offense, it is not committed in the presence of an officer where the officer did not know it, and where the officer did not observe and have cognizance of the acts constituting the offense by the use of his senses, it cannot be committed in his presence, so as to authorize arrest without a warrant.

This question is ably discussed and decided adversely to the officer making the search and arrest in State v. Pluth, 157 Minn. 145, 195 N. W. 789; Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639.

In State v. Pluth, supra, the court in part said [157 Minn. 145, 195 N. W. 792] :

“The fact that defendant was transporting liquor not being discoverable without a search, the offense of transporting it was not committed in the presence of the officers, and they had no authority to arrest him therefor without a warrant, and the search was unlawful because made without a warrant and not as an incident to a lawful arrest.” 2 R.C.L. 467, par. 25.

In Basset v. State, 34 Okla. Cr. 370, 246 P. 654, in the syllabus this court said:

“In a prosecution for unlawfully transporting intoxicating liquor, defendant cannot be convicted upon evidence obtained by an unlawful search of his person without a warrant for his arrest, and neither the liquor so seized nor the evidence of the possession thereof so acquired is admissible against him.”

In Whitford v. State, 35 Okla. Cr. 22, 247 P. 424, this court stated in the first syllabus:

“Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.”

In the second paragraph of the syllabus the court stated:

“Where the officer does not know of the act constituting the offense, it is not committed in his ‘presence.’ ”

The undisputed facts in this case show that the officer took the defendant into custody as he was entering the Hales Building in the city of Oklahoma City, Okla., without having any authority under the law to do so. After he had taken the defendant into custody, he took him across the street where another deputy sheriff was, and they put him in the car, asked him about the whisky, and took a pint of whisky from off his person. The stopping of the defendant as he was starting to enter the building, and the taking him into custody, and taking him across the street, and having him surrender a pint of whisky that he had concealed somewhere about his person, was an unlawful arrest, and the pint of whisky seized was an unlawful seizure.

The motion of the defendant in this case to suppress the evidence, and his objection to the introduction of it against him, was well taken, and should have been sustained.

There was no competent evidence introduced against the defendant. All the evidence procured by the arrest and search of the defendant was unlawfully procured.

And the court erred in refusing to sustain his motion to suppress the evidence.

There being no competent evidence to sustain the conviction in this case, the judgment of the court is reversed, with directions to discharge the defendant.

DOYLE, P. J., and BAREFOOT, J., concur.


author: DOYLE, P. J.

text:
    JAMES ARTHUR CAMP v. STATE.
    No. A-9481.
    May 5, 1939.
    (90 P. 2d 453.)

      David Tant and Clyde L. Andrews, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

In the information in this case, filed in the district court of Lincoln county April 10, 1937, James Arthur Camp, Eugene Clark, and Lillie Mae Womack were charged with acting together, on the 9th day of October, 1933, in making an assault upon Clarence Hall, cashier of the Farmers & Merchants Bank of Try on, Bill Vassar and Arthur McConnell, with a revolver and an automatic pistol by pointing said firearms at said Clarence Hall, Bill Vassar, and Arthur McConnell, and threatening to shoot them, and did then and there by the use of force and putting in fear, by means of the use of said firearms as aforesaid, unlawfully and feloniously and against the will of Clarence Hall and the Farmers & Merchants Bank of Tryon, take, steal, and carry away from the person and immediate presence of said Clarence Hall in said bank $658.54, good and lawful money of the United States, the personal property of the said bank.

Upon his separate trial the jury returned a verdict finding the defendant, James Arthur Camp, “guilty as charged in the information, of robbery with firearms, and assess his punishment at imprisonment in the penitentiary for 25 years.”

A motion for new trial was duly filed and overruled.

From the judgment rendered in accordance with the verdict, October 6, 1937, the defendant appealed by filing in this court April 4, 1938, a petition in error with case-made attached.

The errors assigned question the sufficiency of the evidence to support the verdict and judgment of conviction, and alleged errors in the rulings of the court in the admission and rejection of testimony.

The facts, as shown by the testimony of seven witnesses for the state, are that on the morning of October 9, 1933, the Bank of Tryon was robbed. Clarence Hall, cashier, was on duty that morning; Bill Vassar, attorney at law, with office in the rear of the bank, and Arthur McConnell, a customer of the bank, were present when the defendants Camp and Clark, with pistols in their hands, entered the bank and by force and fear took six hundred and some odd dollars from the bank, and forced Hall, Vassar, and McConnell to march out of the bank to their car, parked nearby, with a woman sitting at the wheel. They placed Hall in the front seat, Vassar in the rear seat, and required McConnell to stand on the running board, then drove south from the town. Out in the country they stopped and released Mr. Vassar, now county attorney; at the next stop they told McConnell to return and not look back, and they released Hall before they reached the town of Warwick.

This defendant was positively identified by these three men as one of the men who participated in the robbery.

The defense interposed was that of an alibi.

In felony cases, where the defendant appeals from a judgment of conviction, and no briefs are filed and no appearance for oral argument made when the case is set for submission, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in its rulings in the admission or rejection of evidence. However, this court will examine the record for jurisdictional or fundamental errors, and to ascertain if the evidence reasonably supports the verdict and judgment, and if no prejudicial error is apparent, and the evidence is sufficient, the judgment of conviction will be affirmed.

We have given careful examination to the record in this case. It discloses that the trial was in all respects fair, and we are unable to find anything in the record to create a doubt as to the correctness of the result, or warrant us in interfering with the judgment.

The judgment herein against the defendant, James Arthur Camp, is accordingly affirmed.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    Ex parte ED LEATHERS.
    No. A-9510.
    May 5, 1939.
    (90 P. 2d 450.)

      J. F. Boettcher, of Oklahoma City, for petitioner.
    Lewis R. Morris, Co. Atty., of Oklahoma City, for respondent.
   DOYLE, P. J.

Petitioner, Ed Leathers, filed in this court on May 9, 1938, his petition for writ of habeas corpus, alleging that he is unlawfully held and illegally restrained of his liberty by the sheriff of Oklahoma county, upon an order of commitment to the common jail of Oklahoma county, issued March 3, 1938, by Carl Traub, a justice of the peace in and for Oklahoma City district, under the provisions of article 6, ch. 17, section 2707 et seq., Procedure Criminal, entitled, “Security to Keep the Peace.” 22 Okla. St. Ann. § 41 et seq.

It appears from the petition that upon February 17, 1938, application for peace bond, charging Ed Leathers with threatening to kill and do great bodily harm to Annabelle Leathers, was filed in said justice court of Carl Traub; that thereafter and on March 3, 1938, petitioner having been apprehended, was arraigned, entered his plea of not guilty and bond was set at $200, petitioner was committed to jail in lieu of bond. On March 11, 1938, petitioner was tried in said justice court, found guilty and placed under a peace bond in the sum of $500, which he failed to make. On May 3, 1938, petitioner filed in this cause application for writ of habeas corpus in the district court of Oklahoma county, alleging that he was being unlawfully restrained of his liberty; a hearing was had on this application and on May 9, 1938, the application for writ of habeas corpus was denied.

Section 2711 of said article 6, 22 Okla. St. Ann. § 45, provides:

“If, however, there be just reason to fear the commission of the offense the person complained of may be required to enter into an undertaking in such sum, not exceeding one thousand dollars, as the magistrate may direct, with one or more sufficient sureties, to abide the order of the next district court of the county, and in the meantime to keep the peace toward the people of this state, and particularly toward the complainant.”

Section 2712, 22 Okla. St. Ann. § 46, provides:

“If the undertaking required by the last section be given the party complained of must be discharged. If he do not give it the magistrate must commit him to prison, specifying in the warrant the requirement to give security, the amount thereof, and the omission to give the same.”

Section 2714, 22 Okla. St. Ann. § 48, provides:

“The undertaking must be transmitted by the magistrate to the next district court of the county.”

Section 2716, 22 Okla. St. Ann. § 50, provides:

“A person who has entered into an undertaking to keep the peace must appear on the first day of the next term of the district court of the county. If he do not, the court may forfeit his undertaking, and order it to be prosecuted unless his default be excused.”

Petitioner further alleges that the sections of the Code as above and aforesaid quoted:

“Do not provide, or state, just what penalty, if any, shall be imposed, or say, state or intend to convey, any certain intent of the minds and intentions of the Legislature in making, creating, and placing such statute upon and within the legal code procedure of the criminal statutes in this, to wit: That it fails to define any distinction between a felony and misdemeanor, but does confer jurisdiction upon the peace justice court. Inasmuch as in this particular case said justice court assumed jurisdiction in imposing said sentence and order, confining your petitioner in the said jail for an undetermined length of time, which now consists of about 65 days, petitioner therefor contends that said justice of the peace has no power, authority or jurisdiction to commit or remand this petitioner to jail for any period or duration of time longer than 30 days, for the reason that in misdemeanor cases the jurisdiction of peace justice court is well defined by constitutional and statutory law, which has been upheld, interpreted and construed by the great weight of many authorities, to mean that 30 days is the absolute limit of time which a judgment of a peace justice court allows such court to confine, commit and incarcerate any person to jail; and your petitioner deems it unnecessary to cite such authorities for the reason that such jurisdiction is so generally well-known as to almost create common knowledge.”
“And that the aforesaid peace bond statutes provide that the transcript be sent to the district court and that he have a trial in the district court on the first day of the first term of said district court, but owing to the fact there are only two terms of the district court of Oklahoma county, a person may be committed to jail on the 2nd day of January and held for trial until the 1st day of July, which, of course, would not be allowing a defendant a fair and speedy trial, as provided for by the Constitution.
“Wherefore, premises considered, petitioner prays the court to grant him this writ, that he be discharged and released from the custody of said sheriff, and will so ever pray.”

Upon the presentation of the petition, and after an examination of the record, it was the conclusion of the court that the petition does not state facts sufficient to show that petitioner is entitled to the relief prayed for. The demurrer thereto was sustained, and it was adjudged and ordered that the writ be denied.

It will be noted that petitioner sets up two grounds upon which he seeks to be discharged by this court. The first is that the judgment and commitment issued thereon by the committing magistrate is void, for the reason that the duration of imprisonment is indefinite and uncertain; and, second, that in the proceeding had petitioner was denied his constitutional and statutory right to a speedy trial.

The first ground is without merit. Under the statute he must be tried not later than the first day of the next term of the district court, but it is his privilege to ask for an earlier hearing.

Our Code of Criminal Procedure, sec. 3869, 39 Okla. St. Ann. § 581, provides, generally, that from any final judgment of a justice of the peace, the defendant may appeal to the district, superior or county court upon filing within ten days a good and sufficient bond, conditioned that appellant will appear before the appellate court on the first day of the regular term thereof.

“Provided, that if the defendant desires to appeal without giving bond as herein provided, he must be confined in jail until the appeal is disposed of.”

It is the policy of the law that persons charged with crime shall have a speedy as well as a fair and impartial trial. To that end it is provided in the Bill of Rights that: “Right and justice shall be administered without sale, denial, delay, or prejudice.” Const. art. 2, sec. 6, Okla. St. Ann.

And further that:

“In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” Const. art. 2, sec. 20, Okla. St. Ann.

Our Code of Criminal Procedure provides:

“If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.” Sec. 2872, 22 Okla. St. Ann. § 812.

The provision of the Code of Criminal Procedure above quoted is intended as a legislative declaration of what is and of what is not a reasonable and proper delay in bringing an accused person to trial in respect to his constitutional rights aforesaid.

The authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right to a speedy trial, and that they constitute a legislative construction or definition of the constitutional provision. Eubanks v. Cole, 4 Okla. Cr. 25, 109 P. 736.

In Ex parte Munger, 29 Okla. Cr. 407, 234 P. 219, this court held:

“A ‘speedy trial’ within the meaning of the constitutional provision (article 2, § 20, Okla. St. Ann. Const.), means a trial before the end of the second term of court after indictment found or information filed, unless the delay shall happen on defendant’s application. (Sts. 1931, § 2872, 22 Okla. St. Ann. § 812). Any delay caused by the operation of rules of law does not work prejudice to the constitutional right of the accused in that regard.”

The statute is for the purpose of carrying into effect the constitutional guaranty of a speedy trial.

Upon the record before us, no sufficient cause was shown for issuing of the writ. It was therefore denied.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    WALTER YODER v. STATE.
    No. A-9490.
    May 12, 1939.
    (90 P. 2d 669.)

      Reily & Reily, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case, filed in the district court of Seminole county, July 8, 1937, charged the larceny of a red cow, belonging to Ray Bowlen, alleged to have been committed in said county on or about the 23rd day of September, 1935. Upon his trial the jury found the defendant guilty of larceny of a domestic animal, but were unable to agree as to the punishment. Motions for new trial and in arrest of judgment were duly filed and on November 10, 1937, overruled. The judgment and sentence of the court was that the defendant serve a term of 2 years imprisonment in the state penitentiary.

Among the various assignments of error is one, the consideration of which must result in a reversal of the judgment, to wit: “Error of the court in admitting incompetent and prejudicial testimony in behalf of the state.”

As a witness for the state, H. E. Bowlen, father of Ray Bowlen, owner of the cow alleged to have been stolen, was permitted to testify over the objections of the defendant that W. W. Yoder, father of the defendant, attempted to induce him by the payment of money to persuade his son to compromise the case and have it dismissed.

The record discloses the following, being a part of the testimony of the witness, H. E. Bowlen:

“Q. Do you know W. W. Yoder? A. Yes, sir. Q. Did you see him a few days after this alleged cow being stolen? A. Yes, sir, the next day. Q. Where did you see him? A. In the cane field. Q. What were you doing with your cane? A. Cutting it. Q. What time of the day was it? A. I would judge it was about eight or eight thirty. In the morning. Q. I will ask you if Mr. W. W. Yoder didn’t ask you how much it would take to have your boy dismiss this case? A. Yes, sir. By Mr. Reily: Just a minute, Mr. Witness. We object to that as incompetent, irrelevant and immaterial and not binding on the defendant, highly prejudicial, something had in his absence and no showing that this man was his agent. By the Court: I am admitting it for impeachment purposes only and it is not binding on the defendant. It might affect the credibility of the witness W. W. Yoder, that is all it is admissible for. By Mr. Crump: We ask the court to instruct the jury for what purpose it is admitted. By the Court: I imagine the jury heard what I said. I said, Gentlemen, I am admitting this testimony purely and only as to the credibility of the witness W. W. Yoder. By Mr. Reily: Note our exception. Q. And I will ask you if you didn’t tell him that he couldn’t buy you at all? By Mr. Reily: Now, we object to that— By the Court: Sustained. By Mr. Reily: We ask the court to direct the jury not to consider that question. It wouldn’t be binding on the defendant. By the Court: I have stated that it is not binding on the defendant, but is just for the purpose of impeachment. By Mr. Reily: We ask the court to admonish the jury not to consider the question. By the Court: Overruled. By Mr. Reily: Exception.”

This witness, W. W. Yoder, denied making any such offer to the state’s witness, H. E. Bowlen.

On cross-examination of W. W. Yoder, the following questions were asked, and statements made in the presence of the jury by Mr. Crump, special prosecutor:

“Q. Didn’t he tell you, while your boy was pitching ball, running around stealing cattle — (interrupted) By Mr. Reily: Objected to and ask that the jury be instructed not to consider it— it is not an impeaching question. By the Court: Sustained. By Mr. Crump: I want to show he offered him money and asked him how much he would take to get his boy to dismiss this case and that Mr. Bowlen told him he was a poor man, and said, ‘You know damn well your boy stole that cow’; ‘Well,’ he says, ‘he is my boy and I want to get him out of it if I can,’ and he says ‘While your boy was out pitching ball, going around stealing cattle, my boy was working to get money to pay the mortgage off.’ By Mr. Reily: To which we object on the ground it is incompetent, irrelevant and immaterial. By the Court: Sustained, it is not binding on the defendant at all, and prejudicial. By Mr. Reily: I move the court to admonish the jury not to consider that question and answer, on the ground it is incompetent, irrelevant and immaterial and not binding on the defendant and hearsay so far as the defendant is concerned. By the Court: Overruled. By Mr. Reily: Exception.”

We have carefully examined the record and fail to find any evidence to connect the defendant with the negotiations of the father, if any were had. We think this testimony was incompetent and prejudicial to the rights of the defendant. There can be no doubt that its admission was prejudicial error.

In the case of Williams v. State, 10 Okla. Cr. 348, 136 P. 778, 779, wherein the defendant was charged with the theft of a heifer, the witness for the state was permitted to testify that the defendant’s father offered to pay him $50 to testify in favor of the defendant. There was no proof tending to show such offer to pay the witness was made by the authority, consent or knowledge of the defendant. The court, overruling the motion to strike out this testimony, said:

“This man being the father of the defendant, I will let it stay in.
“Held, that the evidence was incompetent and inadmissible and was calculated to prejudice the defendant, and that the erroneous rulings of the court constitute reversible error.”

In the case of Cecil v. Territory, 16 Okla. 197, 82 P. 654, 8 Ann. Cas. 457, the Supreme Court of Oklahoma Territory held:

“In a case for rape, evidence of negotiations for a settlement of the crime, by way of offers by the defendant to pay money to the prosecutrix or her parents are always relevant against the defendant; and where such negotiations are carried on by the father of the defendant, or by others, in order to make such evidence admissible against the defendant, the territory must show that the father of the defendant, or the other parties acting, were acting for the defendant and by his direction and authority/’

In the opinion it is said:

“The old man seems to have been prompted by that parental affection which causes the parent at all hazards to save the wayward son even from just and merited punishment. When viewed as the act of an affectionate old father, under such circumstances, it touches a cord of human sympathy. But when you come to view his acts as prompted by the son, it at once becomes incriminating circumstance of much weight, pointing to the guilt of the defendant.”

In the case of Stuart v. State, 35 Okla. Cr. 103, 249 P. 159, this court held:

“Evidence of an overture by some person other than defendant to procure a witness to testify falsely in defendant’s behalf is incompetent, unless there is some proof of authority, consent, or knowledge of the defendant of such attempt.” Bruner v. U. S., 1 Okla. Cr. 205, 96 P. 597; Satterfield v. State, 31 Okla. Cr. 309, 238 P. 868.

In the case of Freeman v. State, 20 Okla. Cr. 443, 203 P. 1052, this court held:

“Damaging and clearly incompetent statements of fact, to the effect that the son of the defendant, who had not been called as a witness, had confessed that his father was guilty, should not be permitted in the presence of the jury.”

In the opinion it is said:

“This deduction is almost irresistible, and such damaging statements should not be offered by either party under the guise of making proof of some collateral issue of doubtful competency, or by any other method. This method of conveying incompetent and prejudicial facts to a jury is sometimes appropriately termed ‘badgering in’ testimony. In our opinion, this part of the proceedings amounted to prejudicial error.”

It follows from what has been said that the defendant did not have that fair and impartial trial to which he was entitled.

Another assignment is that the court erred in overruling the defendant’s verified motion to dismiss the case, on the ground that said defendant was charged in the superior court of Seminole county with the larceny of the same cow that he is charged with in this action, which action in the superior court was dismissed for insufficiency of evidence by the county attorney with the approval of the judge of the said superior court, upon the payment of the court costs by the said defendant.

The question involved is whether this case should be remanded for a new trial or with direction to dismiss.

In the motion to dismiss, or plea of former jeopardy, it is alleged:

“That on the 3rd day of January, 1936, Tom Huser, the then county attorney of Seminole county, Okla., filed in the superior court of said county in cause No. 395, an information charging the defendant with the larceny of the same red cow that he was now informed against in the district court.
“That thereafter the defendant was tried in the said superior court and the jury was unable to agree on the guilt or innocence of the defendant. That on the 15th of April, 1936, the said Tom Huser, by and through his assistant, R. E. Criswell, at the suggestion and with the approval of the judge of the superior court, agreed with the defendant that if he would pay the cost of the prosecution in the superior court, that the said prosecution would be dismissed. That in pursuance to said agreement, the said defendant, on about the 15th day of April, 1936, complied with his portion of the agreement and paid the accrued costs in the case, and that on the same day Tom Huser, the then county attorney of said county, by and through his assistant, R. E. Criswell, with the approval of the superior judge, duly filed a written dismissal in the office of the court clerk of the said county.
“That thereafter, and on the 23rd day of February 1937, a complaint was filed before the justice of peace in Seminole county by Hubert Hargrave, county attorney of Seminole county, charging said defendant with stealing the same red cow belonging to Ray Bowlen. That the act complained of and the cow that was the subject of such alleged larceny was the same cow that he was charged with stealing in the superior court in cause No. 595.
“That the said defendant was bound over to the district court on the said complaint. That the agreement made between the county attorney and the defendant with the approval of the superior judge of Seminole county, Okla., to dismiss the case upon the payment of cost was made in good faith and that the state is now estopped to maintain the prosecution for stealing the identical cow. That the district court of Seminole county, Okla., should not permit the state to prosecute the defendant in violation of the agreement as aforesaid.”

At the hearing on the motion upon the issue of former conviction or jeopardy, J. J. Hill, deputy court clerk of Seminole county, testified that in said case No. 395, following the discharge of the jury, Judge Cutlip, judge of the superior court, directed the then county attorney, R. E. Criswell, to dismiss the prosecution, if the defendant would pay the costs, and that the court cost was paid on April 15, 1936, and the dismissal filed on the same date.

It was stipulated by and between the attorneys for the defendant and the state, that the animal with which the defendant was charged in the superior court with stealing, case No. 395, was the identical animal with which he was now charged with stealing in the district court.

At the close of the hearing, the court overruled the motion or plea in bar. Exceptions allowed.

One of the grounds of the motion for new trial was error in overruling the plea of former jeopardy. The question was again presented in the motion in arrest of judgment, with exceptions reserved.

The record affirmatively shows that the judgment or order of said superior court was not reconsidered, set aside dr modified at any time during the term at which it was rendered, and more than a year had elapsed before the information in this case was filed in the district court.

The question presented has been fully considered and answered by this court in the case of Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 714, 45 L.R.A., N.S., 60. The language of that opinion is as follows:

“The general power of a court to reconsider its judgment and sentence and reverse, vacate, or modify it at any time during the term in which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put into operation, is undeniable. Bish. New Crim. Proc. § 1288, and cases cited. This power is inherent in all courts of record. However, it would seem there must, in the nature of the power thus exercised by the court, be in criminal cases some limit to it. It is clear that a court cannot pass two sentences for the same offense, to be enforced at the same time. And the validity of a second judgment and sentence must be because the first j udgment and sentence is legally annulled or revoked and made void.
“That no person shall be twice put in jeopardy for the same offense is a universally accepted principle of the common law, and this principle has been embodied in the federal Constitution and in all state Constitutions, and it is incorporated in the Constitution of the state of Oklahoma by express provision, as follows:
“ ‘Nor shall any person be twice put in jeopardy of life or liberty for the same offense.’ Section 21, Bill of Rights.
“Jeopardy, in its constitutional or common-law sense, has a strict application to criminal prosections only. The word ‘jeopardy,’ as used in the Constitution, signifies the danger of conviction and punishment which the defendant in a criminal prosecution incurs when put upon trial before a court of competent jurisdiction under a valid indictment, information, or complaint, and in this use it is applied only to strictly criminal prosecutions. Stout v. State, 36 Okla. 744, 130 P. 553 [45 L.R.A., N.S., 884, Ann. Cas. 1916E, 858].
“‘A person is not in legal jeopardy until put upon trial before a court of competent jurisdiction under an information or indictment sufficient in form and substance to sustain a conviction.’ Cooley, Const. Lim. (7th Ed.) 467, and cases cited.
“We think this provision of the Bill of Rights, and the principle therein declared, is broad enough to mean that no person can be twice lawfully punished for the same offense. The one follows from the other, and this constitutional provision is designed and intended to protect the accused from a double punishment as much as to protect him from two trials. For this reason we think that where a judgment and sentence has been executed and satisfied that ends the prosecution, exhausts the power of the court, and terminates its jurisdiction, and the court is without power or jurisdiction to render another judgment and sentence in the case.
“The leading case upon this question is Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. In that case the defendant was convicted of appropriating mail bags, of the value of less than $25, the punishment for which offense, as provided by statute, was imprisonment for not more than one year or a fine of not less than $10 or more than $200. The sentence was one year’s imprisonment and $200 fine. The defendant was committed in pursuance of the sentence and paid the fine the day after his commitment. On the second day after his commitment he was brought by habeas corpus before the same judge who sentenced him, who vacated the former judgment and sentenced the defendant anew to one year’s imprisonment. The case came before the Supreme Court of the United States on habeas corpus, and the defendant was discharged, on the ground that, where a statute imposes as a punishment a fine or imprisonment, and the court has both fined and imprisoned the defendant, who thereupon pays the fine, the court has no power, even during the same term, to modify the judgment by imposing imprisonment instead of the former sentence. One of the alternative requirements of the statute having been satisfied, the power of the court as to the offense was at an end.”

And see Ex parte Strader, 37 Okla. Cr. 285, 257 P. 1112.

In the case of Loyd v. State, 6 Okla. Cr. 76, 116 P. 959, 961, it is said:

“A few authorities do hold that a verdict of acquittal or conviction must have been rendered before a former trial can be pleaded in bar of a second prosecution for the same offense. But the Constitution of this state in mandatory terms deprives us of the power to adopt the reasoning of these cases. The latter clause of section 21, of article 2, of our Constitution puts this question at rest as follows: ‘Nor shall any person be twice put in jeopardy of life or liberty for the same offense.’ It does not say that no person shall be tried twice for the same offense, but the language is unequivocal to the effect that no person shall twice be put in jeopardy for the same offense. The word ‘jeopardy’ has a clearly defined and fixed legal meaning, and that meaning is that when a person has been put in danger of a conviction, that this is jeopardy, and that it attaches whenever a defendant is placed upon a trial in a court of competent jurisdiction, upon a valid indictment or information, and a jury.has been duly impaneled and sworn. This matter is so well settled and the authorities above stated are so conclusive that it would be a useless consumption of time for us to discuss the question further. It is enough for us to know that in such cases our Constitution forbids a second prosecution for the same offense, where jeopardy has attached upon the first prosecution.”

Under the provisions of Procedure Criminal (sec. 3166, 28 Okla. St. Ann. § 101) “all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted.” And the payment of such fine and costs shall be enforced by imprisonment until the same shall be satisfied, at a rate of $1 per day of such fees and costs.

In Ex parte Autry, 58 Okla. Cr. 88, 50 P. 2d 239, 240, held that:

“Under section 3166, St. 1931, the payment of costs of the prosecution is made a part of the punishment, and that payment shall be enforced by imprisonment in the county jail until the same shall be satisfied.”

In the case of Ex parte Wagner, 58 Okla. Cr. 161-168, 50 P. 2d 1135, 1139, we say:

“The power of the court to order a defendant adjudged to pay a fine and costs is not confined to cases where a fine only is imposed, but also extends to cases where both confinement and a fine are imposed as a punishment and includes the power to add to such fine the costs of prosecution.”

It follows from the foregoing review of the record, the authorities quoted, and the laws, that after the defendant had complied with the agreement to dismiss the prosecution by paying into court all costs in the prosecution of the case, and satisfied the order and judgment, the superior court was without jurisdiction to render a second judgment and sentence upon the same charge, or to reconsider its order or judgment after the costs had been paid, as in this respect the power of the court must be exercised when the original judgment is rendered.

It goes without saying that the district court, exercising a co-ordinate jurisdiction in said county, was without jurisdiction to try an information for the same offense, subsequent to the order and judgment of the superior court having been satisfied.

For the reasons stated, the judgment of the district court of Seminole county herein must be reversed and the case remanded with direction to dismiss. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    JOHN BOHANNON v. STATE.
    No. A-9479.
    May 12, 1939.
    (90 P. 2d 675.)

      E. H. Gipson, of Sayre, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Neville Gillum, Co. Atty., of Sayre, for the State.
   DAVENPORT, J.

The defendant John Bohannon was by information charged in the county court of Beckham county, Okla., with the crime of transporting intoxicating liquors, was tried, convicted, and sentenced to pay a fine of $70 and be imprisoned in the county jail for 40 days. From the judgment and sentence, the defendant appeals.

Before the case was called for trial, the defendant filed a motion to suppress the-evidence obtained against him by the officers on the grounds:

(1) That the evidence sought to be introduced in said cause was procured and obtained by means of an illegal search and seizure.

(2) That the affidavit for the search warrant, made the basis for the issuance of said search warrant, does not state sufficient facts for the issuance of said search warrant by the magistrate issuing same.

(3) That said affidavit was made on information and belief, and not on a positive statement of facts showing probable cause.

(4) That there is a material variance between the description of the property in the affidavit and the search warrant.

In all, the defendant assigned 16 grounds in his motion to suppress the evidence. The 4 grounds herein set out are all of the grounds that it is deemed necessary to consider, as they raise the questions as to the validity of the search warrant, the sufficiency of the affidavit, and the variance between the statements in the affidavit and the search warrant.

Testimony was taken on the motion to suppress.

The sheriff of Beckham county, Mr. Ed West, was called as a witness for the defendant on his motion to suppress, and was handed defendant’s Exhibits 1 and 2, 1 being the application for the search warrant, and 2 being the search warrant. He was asked if he was familiar with these two exhibits, and he answered that he was. The witness further stated that the application for the search warrant was signed by him, and that a search warrant was issued by the magistrate upon the affidavit made by him for a search warrant; that after he secured the search warrant, in company with a Mr. Phillips, one of his deputies, he went out on Highway 66 to serve the search warrant.

The affidavit for the search warrant is as follows:

“Defendant’s Exhibit 1
“Affidavit for Search Warrant
“State of Oklahoma, Beckham County — ss.:
“In the Justice Court in and for Sayre District Beckham County, Oklahoma
“Count 1.
“Comes now Ed West who being duly sworn upon his oath says that Elvia Parks or parties unknown to affiant has secreted in her possession, with intent to violate the Prohibitory Law of the State of Oklahoma, certain alcoholic liquors and substances, the particular name and.kind of alcoholic substances being unknown to affiant.
sfc ifc ifr
“Count 3.
“That Elvia Parks or persons unknown to affiant has in her or their possession and is now using a certain 1936 Tudor Chevrolet Automobile Oklahoma Tag #347 — 039 to unlawfully transport alcoholic liquors from some place in the State of Oklahoma to another place therein; and in support of statements set out in counts, one and three herein, affiant says: that for a period of two weeks he has watched this automobile coming and going to and from certain houses or buildings where it is known to your affiant that wine, whisky and beer are being sold, given away or otherwise disposed of; that your affiant has seen what appears to be bottles or cases being taken from above mentioned automobile and left in these houses or buildings.
“Wherefore, affiant asks for search warrant to issue for the discovery and seizure of said alcoholic liquors and substances and all fixtures and property connected therewith for the arrest of the said Elvia Parks or persons unknown to affiant to be brought before the court to be dealt with according to law.
“Ed West
“Subscribed and sworn to before me this 22nd day of January 1937.
“M. L. Inman Justice of the Peace.
“I, the undersigned magistrate, do find, upon the evidence set out above, that probable cause exists for believing that Elvia Parks or persons unknown to affiant is violating the Prohibitory Law of the State of Oklahoma as set out in counts one and three above, and I hereby order that a search warrant issue for the discovery and seizure of alcoholic substances and fixtures as set out in counts one and three above and for the arrest of the said Elvia Parks or persons unknown to affiant.
“This 22nd day of January 1937
“M. L. Inman, Justice of the Peace”

together with the endorsement of M. L. Inman, Justice of the Peace, upon the jurat to Mr. West’s signature on the affidavit for the search warrant.

It will be seen from the record that paragraph 2 in the affidavit is erased out and not considered by the magistrate in issuing the search warrant.

On the affidavit, supra, the search warrant, which is designated defendant’s Exhibit 2, was issued, which search warrant, omitting the caption, in part reads as follows:

“In the Name of the State of Oklahoma
“To the Sheriff, Constable, or any other Peace Officer of Beckham County, Greeting:
“Proof by affidavit having been made this day before me by Ed West showing that there is probable cause to believe that on the 22nd day of January, 1937, in Beckham County, State of Oklahoma at- in the - of - in a certain automobile described as follows: 1936 Tudor Chevrolet, with Oklahoma Tag #347 — 039 certain intoxicating liquors, Viz. Wine, Whisky or Beer were then and there, given away and otherwise furnished, and were then and there and are now being kept for the purpose of being transported, sold, bartered, given away, and otherwise furnished by Elvia Parks, or persons unknown to the affiant or a person unknown, in the violation of the law, contrary to the form of Statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma. * * *”

Section 2638, O.S. 1931, 37 Okla. St. Ann. § 87, is as follows:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

In this case the affidavit upon which the warrant is predicated charges Elvia Parks or parties unknow to affiant with having possession of alcoholic liquors and substances, the particular name and kind of alcoholic substances being unknown to the affiant, but fails to state that the liquors, alleged to be in possession of Elvia Parks or parties unknown to the affiant, are capable of being used as a beverage.

In the third count of the affidavit, it charges that Elvia Parks, or persons unknown to the affiant, have in their possession and are using a 1936 Tudor Chevrolet automobile, tag number 347 — 039, to unlawfully transport alcoholic liquors from some place in the state of Oklahoma to another place therein.

The search warrant issued by the magistrate recites, in part, that there is probable cause to believe that on the 22nd day of January, 1937, in Beckham county, state of Oklahoma at-, in the- of-in a certain automobile described as follows: 1936 Tudor Chevrolet, with Oklahoma Tag No. 347 — 039, containing intoxicating liquors, namely, wine, whisky, or beer, was then and there, and is now being transported, sold, bartered, given away, and otherwise furnished by Elvia Parks, or persons unknown to the affiant, in violation of the law.

It is urged by the defendant in his motion to suppress that the affidavit is insufficient to warrant the justice of the peace in issuing a search warrant, as the affidavit is uncertain, indefinite, and does not state any fact sufficient to warrant the issuing of a search warrant.

In Emmons v. State, 33 Okla. Cr. 40, 241 P. 1107, in passing upon the question, this court in the first paragraph of the syllabus stated:

“No warrant for search shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched. A warrant for search in describing the place to be searched shall conform substantially to the description of the place described in the affidavit.”

You may search in vain, and you will not find any description in the affidavit as to what point in the state of Oklahoma it is alleged Elvia Parks or persons unknown to affiant started from to transport the whisky, or to what point it was transported. There is not a word in the affidavit that says the whisky was transported from one place in the county of Beckham in the state of Oklahoma to another designated and named point in the state.

Notwithstanding the fact that the affidavit upon which the magistrate issued the search warrant fails to state the liquors described in the first count of the information were capable of being used as a beverage, and in the third count of the affidavit, it fails to state where the party named in the affidavit or the unknown party, unknown to the affiant, started from when they transported the alleged liquors, that is, they did not say that a certain point in Beckham county, Okla., Elvia Parks or the unknown party left that designated point and transported intoxicating liquors from that point to another point in the county of Beckham, when you consider the statement in the affidavit that they transported the liquors from one point in the state to another point in the state without designating any point from which they started or where they stopped with the liquor, it is absolutely meaningless, indefinite, uncertain, and not sufficient upon which to predicate a search warrant.

The justice of the peace in Beckham county would have no jurisdiction or authority to issue a search warrant outside of Beckham county. His jurisdiction runs coextensive with the county, but in order to secure a search warrant it is absolutely necessary that the affidavit state facts sufficient to show to the magistrate that the law has been violated by transporting liquors from one point, giving the name of the point, to another point in Beckham county.

The search warrant in this case does not conform to the affidavit, and states facts in the warrant that are not contained in the affidavit. The statements in the warrant are at variance with the statements in the affidavit.

In Miller et al. v. State, 34 Okla. Cr. 103, 245 P. 68, this court in the syllabus stated:

“Before a search warrant is issued there must be a showing of probable cause, supported by oath or affirmation, describing as particularly as may be the place to be searched. A search warrant is limited to the premises described in the affidavit, and may not include additional or different places to be searched than those described therein.”

In Hamner v. State, 44 Okla. Cr. 209, 280 P. 475, in the first paragraph of the syllabus this court stated:

“Where a conviction is based solely upon evidence obtained by an unreasonable search and seizure, admitted over timely objections and exceptions, the judgment will be reversed.”

It is not deemed necessary to cite authorities to show that it has been, not only the holding of this court, but of other courts, that in order to justify the issuance of a search warrant the affidavit filed upon which the warrant is predicated must particularly describe the place to be searched and with such particularity that the officer executing the search warrant will be able to find the place without some one to point it out to him.

In this case, for some reason, there is no definite statement as to where Elvia Parks or the unknown party started from to transport the whisky or to what point it was transported.

Evidently from the record in this case, Elvia Parks must have owned the car described in the search warrant and in the affidavit. Defendant must be the unknown party mentioned in the affidavit.

We hold that the affidavit was insufficient to warrant the magistrate in issuing the search warrant, and that the variance in the affidavit with the allegations in the search warrant is fatal and the warrant was void, and any action of the officers serving the warrant and any evidence procured by reason of the service of the void warrant, was inadmissible.

The Attorney General has discussed the question that the officers pursued the defendant from 66 Highway in Beckham county over into Roger Mills county before they could stop him and search his car, and the circumstances were such that they had a right to search his car even though the warrant was insufficient. The county attorney, in his brief, in discussing the question of the jurisdiction of the officers in Beckham county, takes the correct position that the effort to search the defendant and his car started in Beckham county and continued on until he was overtaken and stopped in Roger Mills county.

The record bears out this statement, that the officers, when they sighted what they thought was the car described in their search warrant, pursued it on through the town of Erick, and on until a distance in Roger Mills county was reached before the car was stopped, they searched it, and found some whisky in the car.

From the time the officers claim they saw the car cross from Texas into Oklahoma and they started to pursue it, the search began, and it was a continuous search until the car was stopped by the defendant and the officers caught up with him.

In Hamner v. State, 44 Okla. Cr. 209, 280 P. 475, cited by the county attorney in support of his contention that the search started in Beckham county, Okla., the court said, 44 Okla. Cr. page 213 of the opinion:

“When the officer tried to stop the defendant’s car and began firing at it and started in pursuit, they began an effort to search, and continued it up until the time they claim they overtook the defendant where they claim he was breaking some jars.”

It appears from the record that the witness who made the affidavit and asked for the issuance of a search warrant by the magistrate failed to state facts sufficient to warrant the magistrate in issuing the warrant, and it appears further from the record that the magistrate did not follow the allegations in the affidavit as to facts stated for the purpose of securing the search warrant.

In the findings made by the magistrate on the bottom of the affidavit, it is clearly shown that he did not read the affidavit or consider the statements contained therein. This is one of the cases where it seems that the officer making the affidavit to secure a search warrant arid the magistrate wholly failed to state facts sufficient in the affidavit to justify the magistrate in issuing a search warrant, and that the magistrate, in issuing the search warrant, incorporated in the search warrant facts and statements without reference to the descriptions that are contained in the affidavit. The affidavit is insufficient to predicate a search warrant upon. The search warrant is clearly at variance with the statements in the affidavit and was void.

The service of the void search warrant on the defendant, who must be considered as being the unknown party, and the action of the officers when they started to search the defendant in Beckham county and followed him into Roger Mills county before they caught him, was a violation of law, and the void search warrant did not give them any authority to act.

For the reasons herein stated, we hold the search warrant was at variance and stated facts not contained in the affidavit, and the statements contained in the affidavit were insufficient to warrant the magistrate in issuing a search warrant.

The officer had no warrant for the arrest of the defendant and no valid search warrant to search the car he was driving. The evidence secured by reason of the search was unlawfully secured, and was inadmissible against the defendant.

For the reasons herein stated, the case is remanded, with instructions to discharge the defendant.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    CECIL GRAGG v. STATE.
    No. A-9525.
    May 12, 1939.
    (90 P. 2d 680.)
    Tant & Flinn, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

By information the defendant was charged with illegal possession of intoxicating liquor, to wit, 48 pints of tax-paid liquor, was tried, convicted, and was sentenced by the court to pay a fine of $100, and to be confined in the county jail for 60 days. From this judgment and sentence, the defendant appeals.

Before the case proceeded to trial, the defendant filed a motion to suppress the evidence on the ground that the evidence obtained by the deputy sheriff in the above cause was obtained by unlawful seizure and search, and on the ground that the deputy sheriff, at the time of obtaining the evidence by search warrant, obtained it without consent of the defendant, and said defendant at the time of the seizure and search was not violating any of the laws of the city, this state, or this county, and the evidence so obtained was not apparent.

The defendant, in support of his motion to suppress the evidence, called P. L. Borden, and handed the witness a paper and asked him what it was, and the witness answered, “A search warrant,” and also identified the paper which he stated was a copy of the affidavit for the search warrant.

The witness stated:

“We searched the premises described in the search warrant, that was known as the Belmont Hotel. I would say it had 25 or 30 rooms. The search warrant called for the second floor of a two-story brick building, located at 118% North Broadway, Oklahoma City. We found some whisky at this place. In three different places there on the second floor of the two-story building known as the Belmont Hotel. We found one pint in an old plant in a linen closet in the dining room, and found another in a plant in the south hallway in front of the gents’ toilet, and found a pint in a plant in the pay telephone booth, located in the "hallway. There were a number of people in the hotel. We arrested the defendant Cecil Gragg at the time we made the search.”

The motion to suppress was overruled, and the defendant excepted.

When the court ordered the case to trial, the defendant objected to a jury being called, and objected to going to trial for the reason the court is wholly without jurisdiction to try this case.

The objection was overruled, and defendant saved an exception.

The jury was impaneled.

J. G. Muse, the first witness called by the state, testified in substance as follows:

“My name is J. G. Muse. I am on the police force in Oklahoma City. I know the defendant Cecil Gragg; have known him about a year and one-half. I have observed him staying at the Belmont Hotel.
“On the 18th day of September, 1937, I went to the Belmont Hotel, and the defendant Cecil Gragg was there behind the desk. We presented him with a search warrant and told him we wanted to search the place, and he said, 'All right, go right ahead.’ We searched the place, and found forty-eight pints of tax-paid liquor. We asked him if it was his whisky or Mr. Sanford’s whisky, and he said it was his whisky. The defendant said that Mr. Sanford was at the hospital to see his son who had been injured. We took the whisky to the police station and turned it over to the vice bureau.”

On cross-examination the witness stated:

“The whisky was not destroyed at the police station. All the whisky is still there. Lieutenant Reid was in charge of the vice bureau at that time. I have not seen the whisky since. We labeled the boxes in which the whisky was placed. I am unable to recall the name of the whisky we labeled. This hotel is known as the Belmont Hotel, 118% North Broadway. It is an upstairs hotel. It has several rooms, I think probably 25. I have never counted the rooms, and I do not know how many there are.”

P. L. Borden, a witness for the state testified:

“I know the defendant Cecil Gragg; have known him about two years. On the evening of the 18th of September, 1937, the defendant was at 118% North Broadway at the Belmont Hotel which is on the second floor of the building. He was in behind the desk at the time we went into the hotel. We served him with a search warrant to search the premises, and he stated that Mr. and Mrs. Sanford were at the hospital attending their son who had been injured in an accident a short time prior to that day. We found the liquor. We found 48 pints. The defendant said it was his whisky. He said he had it to sell. The defendant at the time we made the search was engaged in the liquor business. The liquor that we seized is in the store room in the police station.”

On cross-examination the witness stated:

“It is at the Belmont Hotel where we found the liquor. It was about 10 or 10:30 in the evening when we went to the hotel. The whisky was found in three or four different places. In getting the search warrant to search this hotel, we had a John Doe search warrant issued. I knew when we got the warrant who operated the hotel. Mr. Sanford is the owner. The defendant Cecil Gragg works there at the hotel. The defendant was behind the desk the night we went there to search the hotel. I knew who operated the hotel at the time I got the John Doe search warrant. At the time we got this John Doe search warrant, we knew who was the owner and operator of the hotel, and I knew it was not John Doe. We knew it wasn’t John Doe. I knew there was some 25 or 30 rooms operated there by Mr. Sanford at that hotel and at that address. The reason we got the John Doe search warrant, I did not know whether Mr. Sanford would be running the place or not. And if Mr. Sanford, the owner of the place and the operator, wasn’t there, we could search anybody else that might be there; and the purpose of the John Doe warrant was that we might search anybody else’s room.”

The motion to strike was overruled, and the defendant reserved exceptions.

“We found one pint in a floor plant. A plant is a secret place built in the floor to store liquor. A number of pints in the south hall directly in front of the gents’ toilet in a floor plant. We also found some in the pay telephone, located in the hallway near the lobby of the hotel. The defendant knew where we found the whisky.”

The whisky alleged to have been seized at the hotel was presented and identified by the witness as being whisky they found at the hotel on September 18, 1937.

On cross-examination the witness stated:

“We have not been in possession of this liquor since it was taken from the hotel. I turned it over to Lieutenant Reid. I got it today from a man named Bergman. I cannot tell you the different kinds of brands of the whisky.”

The whisky, alleged to have been taken from the hotel at the time the defendant was arrested, was introduced in evidence over the objections of the defendant.

The foregoing is in substance the testimony offered on behalf of the state.

At the close of the testimony, the defendant demurred to the evidence offered on the part of the state for the reason there is not sufficient testimony to substantiate the charge in the information and none sufficient to warrant the court in giving the case to the jury, and moved the court for a directed verdict.

The demurrer was overruled, and the defendant was given an exception.

A motion for a directed verdict was made, overruled, and exception saved.

The defendant did not introduce any evidence, but elected to stand on his demurrer to the state’s evidence.

In his petition in error he assigns four errors alleged to have been committed by the trial court.

The brief filed in 66 Okla. Cr. 163, 90 P. 2d 454, was asked to be considered as a brief in this case. The third assignment of error is that said search was unlawful and without authority of law. This assignment is the only one that is deemed necessary to consider in this case for the reason the other assignments relate to facts not apparent in the trial of the case at bar.

On the motion to suppress, the testimony shows that the defendant was at the Belmont Hotel, at 118% North Broadway, which hotel was stated by one of the deputies to have been operated by a man by the name of Sanford. When the officers secured a search warrant and went to search the hotel, they found the defendant behind the desk of the hotel, and he advised them that Mr. and Mrs. Sanford had gone to the hospital where their son was, that had been injured.

A copy of the search warrant was served, and they found at different places, concealed in what the officers designate as a plant, 48 pints of whisky. The officers stated they asked the defendant whose whisky it was, and he told them it was his.

The motion to suppress the evidence was properly overruled by the court for the reason that the officers had a search warrant to search the hotel, and by reason of that warrant in making the search, they found the 48 pints of whisky, testified to by them.

Without further lengthening this opinion, we hold that the testimony was sufficient to sustain the judgment, and that there are no errors in the record prejudicial to the rights of the defendant.

After reading the record, it is apparent that this defendant was engaged in handling whisky for the purpose of selling or disposing of the same to others.

The judgment is affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.