text:
    H. L. WILSON v. STATE.
    No. 5636.
    Opinion Filed Feb. 5, 1927.
    (252 Pac. 1106.)

      S. M. Smith and C. B. Leedy, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the state.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woodward county upon a charge of abortion and sentenced to serve a term of 30 days in the county jail.

From the record we gather that in the month of June, 1924, Thelma May Carter, an unmarried woman, was pregnant; that Ted Luthi was the father of the unborn child. She resided in Colorado and. came to Oklahoma in June, 1924, in search of Luthi, and was met by two of his brothers, who sought to have an abortion performed in order to protect Ted Luthi. After an unsuccessful effort with another physician they approached defendant, a practicing physician at the town of Woodward; had a conversation with him about the girl’s condition and the charge against their brother. Defendant told them to bring the young woman to his office; that he would keep her an indefinite time and would charge them $100. They took her to his office on June 15 and paid him $100. He took charge of her and placed her with one Mrs. Halleen directing that she be brought to his office that evening. She was brought there about 7 or 7:3'0 p. m. by Mrs. Halleen, who prepared and placed her on the operating table. Defendant put on rubber gloves, made an examination, and according to the evidence of the state performed some act to bring about an abortion. The young woman then went to the home of Mrs. Halleen where she was to stay. On the following day defendant received information from the Luthis that officers of Ellis county were after them and a young woman and that they Were arrested for kidnapping. Defendant received this communication about 2:30 or 3 p. m., and went at once to Mrs. Halleen, and took the Carter woman to Ellis county, but could not locate the Luthis, and returned to Woodward about 12:30 on the morning of June 17. 'John Luthi was there waiting for him, and defendant then returned to him $71 of the $100 paid, stating that he had done nothing to the girl. The young woman remained at the home of defendant until about 3 p. m., during which time she and the Luthis and defendant concocted a story to tell the officers of Ellis county. Later in the day one of the Luthis took her to Shattuck, and after some roundabout trips she met the county attorney at Gage and from there went to Arnett, the county seat. There she became ill and delivered the fetus.

Defendant denies that he performed any operation and claims that he made an examination only. H'e is corroborated by Mrs. Halleen.

Contentions of error are argued as follows: First, that the female in an abortion is an accomplice and there is not sufficient corroboration of her testimony; second, erroneous instructions of the court; third, misconduct of the jury; fourth, newly discovered evidence.

Under the first assignment it is argued that, since the witnesses James and John Luthi were accomplices, their evidence should be given little weight; that the evidence of defendant and Mrs. Halleen establishes that defendant did not commit abortion. James and John Luthi were accomplices, and the rule that a conviction cannot be had upon the testimony of an accomplice applies. Proper instructions upon this point were given by the court. Under the record, however, the witness Mrs. Halleen is also an accomplice, although the jury were not so instructed.

Defendant requested that the court instruct that Thelma May Carter, the woman upon whom the abortion was performed, was an accomplice, which request was denied by the court. This court has not passed directly upon that question. The statute under which defendant was prosecuted (section 1859, Comp. Stat. 1921) reads:

“Any person who administers to any pregnant woman, or who prescribes for any such woman, or advises or procures any such woman to take any medicine, drug or substance, * * * or uses or employs any instrument, or other means whatever, with intent thereby to procure the miscarriage of such Woman, unless the same is necessary to preserve her life, is punishable by imprisonment in the penitentiary not exceeding three years, or in a county jail not exceeding one year.”

Section 1860 provides:

“Any woman who solicits of any person any medicine, drug, or substance whatever, and takes the same, or who submits to any operation, or to the use of any means whatever, with intent thereby to procure a miscarriage, unless the same is necessary to preserve her life, is punishable by imprisonment in the county jail not exceeding one year or by fine not exceeding one thousand dollars, or by both.”

Under this latter section a female in an abortion case may be prosecuted. This latter section does not define the same offense as in section 1859. The offense defined is the submitting to or soliciting an abortion upon herself and provides for a different punishment. It is generally held that the woman upon whom, an abortion is performed is not an accomplice, but rather is a victim. In 1 R. C. L. pp. 87, 88, § 25, upon the subject, “Abortion,” it is said:

“In the absence of any statutory provision to the contrary the accused may be convicted on the uncorroborated testimony of the woman. And even though the testimony that the woman gave before the magistrate on the preliminary examination of the accused was false, a conviction on her uncorroborated testimony may be upheld. Though conviction on the uncorroborated testimony of an accomplice is prohibited, still where, under the statute against procuring a miscarriage, the woman on whom it is procured is not liable to indictment, she does not, by consenting to the unlawful operation, become an accomplice in the crime, and this is true even though the woman performs the operation upon herself at the instigation of the accused. The reason for this is that to render one an accomplice he must be punishable for the offense involved, and she is regarded as the victim of the crime rather than a participant in it. Though as a first impression it may seem to be an unsound rule that one who solicits the commission of an offense, and willingly submits to its commission upon her own person, should not be deemed an accomplice, while those whom she has thus solicited should be deemed principal criminals in the transaction, still in cases of this kind the public welfare demands the strict application of the general rule as to who are accomplices. * * *”

1 C. J. p. 331, § 111 (2), states the rule thus:

“While a woman on whom an abortion has been performed is not an accomplice so as to require corroboration of her testimony, within the rule requiring evidence in corroboration of an accomplice’s testimony in order to convict, some statutes provide that a conviction shall not be had on the uncorroborated testimony of the woman. * * *”

Numerous authorities are cited in support of the text. See, also, Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661, 4 A. L. R. 347.

The second assignment challenges the instructions of the court No. 11 for the reason that it does not include the witness Thelma May Carter as an accomplice. This contention has been disposed of by what has just been said. It further challenges the court’s supplemental instruction No. 15. The information alleges that the abortion was committed with an instrument; a particular description of which being to the county attorney unknown. The defendant testified that in his examination he had a speculum in his hand, but that the examination was made with his finger. The young woman, of course, was unable to see just what acts were done by defendant, but testified that she saw him pick up an instrument, and that she suffered pain, and then heard him lay the instrument down, but could not testify whether the pain was caused by the instrument or otherwise, or by defendant’s finger. After deliberating for some time the jury came into court and inquired if the finger was an instrument. The court thereupon gave in writing the supplemental instruction. It states in substance that the finger inserted into the private parts of the womb of a female with the willful, unlawful, and felonious intent to produce an abortion is an instrument within the meaning of the law. It is earnestly contended that the word “instrument” as used in the statute (section 1859, supra) means some scientific or surgical implement or tool. The statute enumerates two general means by which an abortion is committed: First, internal force as by the administering of drugs, medicines, or substance taken internally; second, external force by which any instrument or means of any kind is applied externally. No authorities upon the precise point raised are cited in the briefs of either party. The medical practitioner who performs abortions, unless under the conditions named in the statute, is a menace to society, and the statute should not be construed too narrowly, but should be considered in the light of its purpose, which is to prevent practitioners of medicine from performing abortions by administering or prescribing drugs or other substances, or by applying any external force to the womb or generative organs to destroy or cause an expulsion of the fetus.

Extreme nicety of pleading is not required, and it will not be held a variance if the allegation of use of an instrument be not proven with strictness, particularly where the information, as in this case, charges the instrument to be unknown. Proof of the use of the finger in applying force is sufficient proof of the use of an instrument.

Complaint is next made that the court overruled the motion for a new trial on the ground of misconduct of the jury. The motion upon this point is supported by the affidavit of three jurors that their verdict was a compromise, and they did not know that the verdict of conviction would revoke defendant’s license to practice medicine, and they believed the court could suspend sentence, and they were not convinced of the guilt of the defendant beyond a reasonable doubt.

It is fundamental that jurors may not impeach their verdict by an affidavit upon any'matter inhering in the verdict itself. They will not be permitted to stultify themselves by affidavit that they misunderstood the evidence or the instructions, or were not convinced, or any other matter resting alone in the juror’s breast. Vanderburg v. State, 6 Okla. Cr. 485, 120 P. 301.

They may, of course, show any matter occurring during the trial which does not essentially inhere in the verdict, as that they were improperly approached by any one, or that there Was misconduct of the bailiffs, or that evidence out of court came to them in such matters. The court here properly rejected the affidavits and the assignment is without merit. Keith v. State, 7 Okla. Cr. 156, 123 P. 172; Overton v. State, 7 Okla. Cr. 204, 114 P. 1132, 123 P. 175; Spencer v. State, 5 Okla. Cr. 7, 113 P. 224.

There is also some argument that there should have been a new trial on the ground of newly discovered evidence. In the motion for a new trial it is asserted that since the trial defendant has learned that Thelma May Carter stated to one of the witnesses for the state that on or about the 11th or 12th of June, prior to the date of the offense alleged, she went to a physician and surgeon in Pueblo, Colo., who performed an operation upon her for the purpose of producing an abortion. It is contended that, if this could be shown, it would establish that the abortion that took place was the result of this operation. This evidence, if it exists, is impeaching, and it is not an abuse of discretion to overrule an application on the ground of newly discovered evidence otherwise sufficient for the purpose of procuring impeaching testimony. The motion, however, is wholly insufficient. It does not allege the name of the person to whom the witness made the alleged statement, nor the name of the alleged physician, nor set out the language of the alleged disclosure, but rests on the general statement that since the trial defendant has learned that prosecutrix made the general statement to some undisclosed person. This is not sufficient upon which to predicate a motion for a new trial on the ground of newly discovered evidence, and there was no error in overruling the motion. Wampler v. State, 34 Okla. Cr. 141, 245 P. 69; McKenzie v. State, 34 Okla. Cr. 233, 245 P. 1005.

We find no error which requires a reversal.

The case is affirmed.

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


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    MANDY TOWNSEND v. STATE.
    No. A-5813.
    Opinion Filed Feb. 12, 1927.
    (253 Pac. 108.)

      Morgan, Osmond & Morgan, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The appellant was convicted on a charge that she did sell intoxicating liquors, to wit, one-half gallon of wine, to J. Stanton, Gus Bare, and L. L. Brumley, and in accordance with the verdict of the jury sentenced to pay a fine of $50 and to be confined in the county jail for 30 days. She has appealed from the judgment.

The only question presented by the record is the sufficiency of the evidence to sustain the verdict.

Two witnesses for the state testify that they purchased from appellant a gallon of wine, paying her for the same $6, and in drinking the same became very much intoxicated.

As a witness on her own behalf appellant denied the sale and stated that the parties named came to her place and tried to buy whisky from her. Her testimony was corroborated by that of her mother, who resided with her.

It is a well-settled rule of law that the degree of credibility that shall be accorded to a witness or to all the witnesses is for the determination of the jury. The jury by its verdict cleiarly indicated to which witness it gave credence, and there is nothing to indicate that the verdict was in any way, influenced by passion or prejudice.

Finding no prejudicial error in the record, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    JOE HEWETT v. STATE.
    No. A-5489.
    Opinion Filed Feb. 12, 1927.
    (252 Pac. 1109.)

      Amil H. Japp, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county on a charge of making ia false entry in a report with the intent to deceive the state bank commissioner, and his punishment fixed at a fine of $1, and imprisonment in the state penitentiary for a term of five years.

The information was in three counts. The first count charged the making of a false entry in official report in certifying that C. R. Forster, assistant cashier of said bank, on September 14, 1923, was not indebted to said bank, setting out that the report was made on October 10. The second count in substance alleges that Joe Hewett did on or about October 10, 1923, * * * make a false entry in the official report of the condition of the Mustang State Bank, * * * with the unlawful and felonious intent * * * to deceive the bank commissioner * * * by duly certifying that on said date the unsecured overdrafts in said bank totaled $804.37, when in truth and in fact the total amount of overdrafts in said bank on said date was $1,304.37, the said Joe Hewett then and there being an active officer and director of said bank, to wit, cashier. * * * The third count charges that defendant made a false entry in said bank by setting out that Joe Hewett, the cashier of said bank, w|as not indebted to said bank on September 14, it being alleged that said report was made on October 10.

The second count upon which the trial was had did not directly allege that the report made on October 10, 1923, was as to the condition on September 14, 1923, but throughout the trial and in the instructions of the court the second count was treated as if it had alleged the date of the condition of the bank on September 14, the same as in counts 1 and 3, and it was so stated in the opening statement of counsel for the state, to which no exceptions were taken, nor were any exceptions taken to the instructions of the court, fixing the time at September 14. Generally the allegation of time, where time is not of the essence of the offense, need not be strictly proven as alleged. Section 2559, Comp. S't. 1921. The report offered in evidence purports to have been made on October 10, showing the condition of the bank in the particulai's alleged as of September 14.

The first contention is that the information is insufficient. Defendant insists that it must be alleged that the bank commissioner had issued a call for a report of the condition of the bank, and that the report in which the alleged false statement was made was in answer to such call. He further insists that in case the false entry was taken from the record of the bank, such fact must also be alleged, citing section 4130, Comp. Stat. 1921; Fletcher v. State, 2 Okla. Cr. 300, 101 P. 599, 23 L. R. A. (N. S.) 581; Porter v. State, 4 Okla. Cr. 654, 111 P. 1023; United States v. Potter (C. C.) 56 F. 97; Cochran et al. v. United States, 157 U. S. 288, 15 S. Ct. 628, 39 L. Ed. 704.

Various sections of our statutes set out the requisites of an indictment or information. The sufficiency of indictments or informations under the provision of the various statutes alluded to has been crystallized into a general rule, in substance, that an indictment or information is sufficient if it alleges the essential elements of the crime sought to be charged and informs the accused of the offense with such particularity as will enable him to prepare for his trial, and so identifies the offense that if convicted or acquitted he will be able to defend himself, in ease he be indicted or informed against again for the same crime, by pleading the record of such former conviction or acquittal, and with such degree of certainty that the court may pronounce judgment upon conviction according to the right of the case, and that neither presumptions of law nor matters of which general judicial notice is taken need be stated, and that no case shall be reversed on appeal on account of error in any matter of pleading unless it appears that such error has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, although the crime sought to be charged is not stated in the exact language of the statute, nor contain all the phraseology and technical language ordinarily used in criminal pleading, and might have been more certain and definite. The decisions of this court upon this point are numerous.

In Anderson v. State, 21 Okla. Cr. 193, 207 P. 977, the sufficiency of an information drawn under section 4126, Comp Stat. 1921, was considered. That section is similar to section 4181, under which the prosecution in this case was had; the material difference being that section 4126 makes it unlawful for an officer of a bank to willfully and knowingly make a false report or false statement or entry in the books of the bank with intention to deceive any person, while section 4181 makes it unlawful for such officer to make a false entry in a report with intent to deceive the bank commissioner. The information here is very similar to the information in that case. The court in the Anderson Case said:

“It is the opinion of this court that the information in this case is not only sufficient to withstand an objection to the introduction of testimony thereunder, but is good as against a demurrer should one have been lodged upon the ground of insufficient facts.”

We believe the information here sufficiently meets the requirements of the law, and that the demurrer was properly overruled.

It is next argued that the section of the law under which defendant is prosecuted is unconstitutional as in violation of article 5, § 57. The banking act, creating a banking board, was enacted by chapter 6 of Laws 1907-08, and defines several crimes against the banking law. This act was carried forward in the Laws of 1910. In 1913, the Legislature enacted a law, chapter 22, under the title:

“An act amending sections 1, 2 and 3, of chapter 31 of the Session Laws of Oklahoma, 1911, and section 3 of article 2 of the Session Laws of Oklahoma, 1907-OS; providing penalties for the violation of the banking laws of this state, and providing punishment therefor; and declaring an emergency.”

Under this title are several new sections defining crimes committed by officers and employees of .banks, among them the section under which this prosecution is had. It is contended that the foregoing title does not express any subject relating to defining crimes or the punishment therefor, but refers merely to amending certain sections of the Law of 1911, and the Law of 1907-08.

It will be noted- here that said title is divided by a semicolon into two parts; the first part relating to the amendment of certain designated sections of the 1907-08 and 1911 banking laws of this state, and -the latter portion providing penalties for the violation of the banking laws of this state and fixing the punishment therefor. It was this latter portion of said title which authorized the passage of section 15 of said chapter and to which said section was cognate. Chap-22 of the Laws of 1913 was carried forward into the Compiled Statutes of 1921, and was amended in some particulars by chapter 135, Laws 1923. It is true that section 4126, Compiled Oklahoma Statutes 1921, relating to the making of a false report of said bank, was not directly repealed or referred to in said chapter 22; hence said section is still in force and effect except where the provisions thereof are repealed by necessary implication by chapter 135, Session Laws 1923. It may be that some portions of said section 15 were superseded by chapter 135, Session Laws 1923, but certainly there is a distinction between making a false report with intent to deceive any person and making a false entry in a report with intent to deceive the bank commissioner. The first section is far more inclusive in its nature than said second section, and hence could not be repealed by implication in its entirety. Said section 15 was incorporated as section 4181 in the Compiled Oklahoma Statutes of 1921, and was ¡amended in 1923 by chapter 135; the title to said chapter referring directly to said section and amending the same. Hence, as section 3 of said chapter 135, amended section 4181, supra, which amendment was duly ¡authorized by and was cognate to the title of said chapter 135, and as said section 15 of the 1913 Laws, to wit, section 4181, supra, was authorized by and was cognate to the second portion of the title of chapter 22, supra, of the 1913 Laws, said section is not unconstitutional. Ex parte Powell, 6 Okla. Cr. 495, 120 P. 1022; Ex parte Ambler, 11 Okla. Cr. 449, 148 P. 1061; Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066.

. It is next argued that the evidence is insufficient to sustain the verdict. The evidence is somewhat voluminous, involving considerable testimony and numerous exhibits from the books, papers, and records of the bank. We do not deem it necessary to recite any part of this in detail, but find that it is sufficient.

Lastly, it is contended that the court erred in refusing defendant’s requested instruction No. 1, relating to intent. No exception was taken to the court’s failure to give this instruction. The court, however, did properly charge that it was necessary for the state to prove intent to deceive the bank commissioner. Of course, this could be proven Only by circumstances. Defendant also requested the court to give an instruction relating to the testimony of ian accomplice. The request seems to be correct as a proposition of law, and is predicated on defendant’s theory that the witr. ness Forster, who was assistant cashier of the bank, was an accomplice. We do not find that the evidence sustains this contention. So far as the record shows, Forster, who compiled the records from which the report purports to have been taken, did so correctly, while the general ledger, which was in the sole charge. of defendant, contained false entries and from these false entries the report was made. The court correctly held that an instruction upon accomplice was not applicable to the facts proven.

Upon a consideration of the whole record we are of the opinion that the defendant was fairly tried, the issues fairly submitted, and no error requiring a reversal is shown.

The case is affirmed.

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


text:
    A. BERNO v. STATE.
    No. A-5827.
    Opinion Filed Feb. 12, 1927.
    (252 Pac. 1111.)
    D. E. Ashmore and A. W. Anderson, for plaintiff in error.
    George F. Sliort, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, A. Berno, was convicted on a charge that he did have the possession of certain intoxicating liquors, to. wit, 1 pint of whisky and 17 gallons of Choctaw beer, with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $500 and be confined for 6 months in the county jail.

Of the various errors assigned, we deem it only necessary to consider two, that the court erred in overruling appellant’s motion to suppress the evidence, and that the evidence is insufficient to support the verdict.

The proof on the part of the state shows that the complaining witness, G. W. Boots, deputy sheriff, accompanied by two other officers, visited the home of defendant between Spelter City and Dewar, and by virtue of a search warrant searched the place and found a keg of what they termed to be Choctaw beer in the cellar, and found about a half pint of whisky in a cabinet in the house.

There was no competent evidence tending to show that the so-called Choctaw beer contained more than one-half of 1 per cent, of alcohol, or that the same was intoxicating.

Appellant and his wife both testified that the whisky was in the medicine cabinet seized by the officers and was used in caring for a sick baby..

When the case was called for trial, appellant filed a motion to suppress the evidence on the ground that the affidavit on which the search warrant was based “is sworn to on information and belief, and that the same was therefore illegally issued and void.”

The affidavit upon which the search warrant issued recites:

“Before me, H. C. Thomas, a justice of the peace in and for said county, personally appeared W. R. Ingle, who, being duly sworn, states that he has probable cause for believing and does believe that certain quantities of intoxicating liquors are being kept for the purpose of sale, barter, giving away, and otherwise furnishing by A. Berno.”

It is the well-settled doctrine in this state that issuance of a search warrant to search premises for intoxicating liquor is unauthorized when based on an affidavit made on information and belief, and evidence obtained by a search of the defendant’s premises under such illegal search warrant is inadmissible against him, and that the same rule applies to objections made to oral testimony of officers relating to such illegal search and seizure. Committi v. State, 28 Okla. Cr. 380, 231 P. 316; Lewis v. State, 32 Okla. Cr. 431, 241 P. 835.

It follows that the court erred in overruling the motion to suppress the evidence obtained under illegal search warrant.

Assuming that the evidence for the state was competent, we think it wholly fails to make a case, because there was no material .testimony tending to show that the liquid contained more than one-half of 1 per cent, of alcohol measured by volume, or other proof to show that it was intoxicating liquor.

The judgment appealed from is reversed and cause remanded, with direction to dismiss.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CLAUDE YOUNGBLOOD v. STATE.
    No. A-5808.
    Opinion Filed Feb. 12, 1927.
    (252 Pac. 1112.)
    Sigler & Jackson, for plaintiff in error.

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

On information charging that in Carter county, November 13, 1924, defendant, Claude Youngblood, did willfully, unlawfully, and feloniously drive an automobile along upon the public streets in the city of Ardmore, while intoxicated, he was tried and convicted, and his punishment fixed at confinement in the state penitentiary at McAlester for the term of nine months. From the judgment an appeal was duly taken, but no brief has been filed and no appearance made in behalf of plaintiff in error in this court.

The proof shows or tends to show that the defendant, while intoxicated, drove an automobile through the streets of Ardmore and collided with two or three other automobiles. The officers who arrested the defendant and other persons in one of the automobiles which were struck testified to the intoxicated condition of the defendant.

As a witness in his own behalf he testified that before he got into his car he took a drink from a friend; that as he started off he felt drowsy and sleepy, and in turning off of Main street a car with big headlights flashed up and blinded him and in making the turn he hit a car, and that is the last he remembers until after he woke up at the police station.

An examination of the record shows beyond a doubt that the defendant is guilty of the crime charged against him, and that he richly deserves the sentence imposed.

The judgment of the lower court is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    EARNIE SMITH v. STATE.
    No. A-5826.
    Opinion Filed Feb. 12, 1927.
    (252 Pac. 1113.)
    D. E. Ashmore and A. W. Anderson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Appellant, Earnie Smith, was convicted on a charge that he did have possession of 11% gallons of corn whisky, with the unlawful intent to sell the same, and, in accordance with the verdict of the jury, was sentenced .to pay a fine, of $500 and confinement for 6 months in the county jail. From the judgment an appeal was perfected, but no brief has been filed and no appearance made in behalf of appellant in this court.

The evidence shows that the officers found on the defendant’s premises 22 gallons of corn whisky in half-gallon fruit jars, and they each testified that the search was made by the permission of the defendant in connection with the investigation of the accidental death of a man at appellant’s place in making whisky.

Appellant testified that he asked the Officer Boots if he had a search warrant, and he answered that he did not have one; that he told him there was the door to the cellar; that Officer Gordon asked him if it was all right, and he said it was all right for him to go with Boots; that he did not invite the search nor waive his right to a search warrant.

An examination of the record convinces us that appellant was accorded a fair trial. The judgment appealed from is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ED PALMER v. STATE.
    No. A-5851.
    Opinion Filed Feb. 12, 1927.
    (252 Pac. 1114.)
    Morgan, Osmond & Morgan, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Appellant, Ed Palmer, was convicted on a charge that in Grady county, April S', 1525, he did have possession- of 30 gallons of whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury he wias sentenced to pay a fine of $50 and be confined in the county jail for 30 days. From the judgment he appeals.

The only question presented by the record is the sufficiency of the evidence to sustain the verdict. The evidence shows that four deputy sheriffs in executing a search warrant visited the home of the defendant two or three miles east of Chickasha, and there found 30 gallons of whisky buried in a flower garden in the yard; there was a ten-gallon keg, two five-gallon kegs, and two five-gallon jars all full of whisky. As a witness in his own behalf, defendant testified that he had lived on the place between seven and eight years; that in December, 1924, he went to California, and did not return until some time in February, 1925; that he did not know that the whisky was there until the officers found it. His wife land daughter in substance testified to the same effect. Three character witnesses qualified and testified that appellant’s reputation in that community as to being a law-abiding citizen was good. In rebuttal, Officer Dryden testified that the shrubbery and rose bushes planted above these containers had just been set out. After a careful examination of the evidence in the case, we are not prepared to say that the jury were not warranted in finding the verdict returned by them.

The credibility of the witnesses and the weight and value to be given their testimony was a question solely for the jury’s determination, and to reverse a judgment on the ground that the verdict is contrary to the law and the evidence, this court must find as a matter of law that the evidence is insufficient to warrant the conviction.

We find nothing in the record indicating improper motive, passion, or prejudice on the part of the jury, and the instructions, to which no objection was made, or exception taken, fairly presented the law of the case.

There being no prejudicial error shown by the record, the judgment appealed from will be affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    CHARLES GOLDSBERRY v. STATE.
    No. A-5655.
    Opinion Filed Feb. 12, 1927.
    (252 Pac. 1115.)
    Titus & Talbot, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Mat-son, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Charles Goldsberry, was convicted in the county court of Alfalfa county, on the 10th day of March, 1925, the same being a day of the regular January term of said court, upon a charge of transporting and carrying certain spirituous liquors from one point in the state of Oklahoma to another, and his punishment fixed at confinement in the county jail of Alfalfa county for a period of 80 days, and that he pay a fine of $100 and costs of the prosecution. The appeal was lodged in this court June 25, 1925. No brief has been filed on behalf of the plaintiff in error, and no application made for oral argument when the case was assigned for argument before this court.

The information charges that the plaintiff in error had unlawfully, willfully, knowingly, and wrongfully conveyed, transported, and carried certain spirituous, vinous, fermented, malt, and intoxicating liquor, to wit, from some point or place unknown to ¡a point and place in Alfalfa county, State of Oklahoma, to wit, to a point or place in the public highway at the northeast corner of section 9, township 28 north, range 9 west of the Indian meridian, Alfalfa county, Okla.

The proof on behalf of the state tends to establish thiat Goldsberry was driving along the highway at the point where it is designated that he transported the liquor to, and that Dare Goss, the sheriff, and Earl Gold, his deputy, were in the grass near this point and saw a car stop and put something out in the grass; that they went up and searched the place and found a fruit jar with about a pint and a half of whisky in the jar; that they left it where they found it, or near there, and waited, and in about 25 or 30 minutes the defendant, Goldsberry, in company with Jesse Cox, came to the point where they had seen the car stop, and searched for a time, and finally backed the car to where the light revealed what they were looking for, and just as they were picking up the. whisky the sheriff and deputy came upon them; defendant, Goldsberry, started to run and spilled or carried the whisky with him, but was caught by the sheriff. The car that came to the place where they had seen the party get out and leave the whisky carried the same license number that the car defendant and Jesse Cox returned into the place to get the whisky.

The defendant denied that he had anything to do with the whisky, admitted that he drove by the point where the whisky was found on his way to a house where a dance was being given, and claimed that he had started from the dance down the road to a house to see a Mr. Frank Golf, to see something about him paying for an injury to his car which occurred some days before. Cox also testified that he was going with the defendant down to see this man, but that he did not know anything about the whisky.

The plaintiff in error assigned five errors alleged to have been committed by the trial court in this case. The court has carefully examined the assignment of errors and the testimony contained in the record. The record fails to disclose any fundamental error prejudicial to the rights of the plaintiff in error; in fact, the record clearly shows that he had a fair and impartial trial, and that he was duly and legally convicted.

The judgment of the trial court is affirmed.

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


text:
    BOB SKELLY v. STATE.
    No. A-5676.
    Opinion Filed Feb. 16, 1927.
    (253 Pac. 110.)

      J. G. Ralls, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Plaintiff in error, Bob Skelly, was tried and convicted on an information charging that •in Atoka county, December 7, 1924, he did then and there willfully and unlawfully make and manufacture certain intoxicating liquor, to wit, whisky. In accordance with the verdict of the jury he was sentenced to pay a fine of $50 and to be confined in the county jail for 90 days. The only question presented for reversal is that the verdict is not sustained by the evidence.

The state relied for this conviction upon the testimony of three witnesses, Lacy Vaughan and his two sons, Howard and Ray Vaughan. All three of these witnesses testified in substance: That on Saturday night, December 6th, they were out possum hunting together and saw ¡a light down in the hollow. The elder Vaughan was carrying a light, but he put it down and went to where they saw the light. That when they rode up a man came out of the gulch with a lantern from where he was and asked who they were. The elder Vaughan told him who he was and asked the man if he had any luck. The man with the lantern set it down and ran away. The three men then proceeded down in the gulch and found a still, some mash, and about half a gallon of whisky run off. The elder Vaughan testified:

“When I rode up this man here, Mr. Skelly, came out with a lantern. He asked me who I was, and before I told him I asked him if he had any luck, pretending like I thought he was out hunting so I could look things over. I saw some one behind the brush with a gun, and I got off my horse. When I told Mr. Skelly who I was he turned, put the lantern down, said something to the fellow that was back of him, and they both ran away. We found a still and the whisky, which was still warm. I did not recognize the other man.”

The other two witnesses positively identified the man with the lantern as being the defendant, Bob Skelly.

On his own behalf the defendant’s brother, Dan Skelly, and J. L. McCutcheon, a visitor at Skelly’s home, each testified that they were at the defendant’s home that night, land that they all slept in the same room; that the defendant was sick and was up taking medicine frequently during the night, but did not leave the room between sundown and sunrise.

Verman Tate testified that he met the elder Vaughan Sunday morning just before daylight and asked him whose still it was, and Mr. Vaughan stated that he found the still, but did not know who it belonged to.

In rebuttal, the elder Vaughan testified that as he passed witness Tate’s home that morning Tate called to him and he stopped, and Tate asked him who the still belonged to, and he told Tate it was Bob Skelly’s; “that the other person nan off”; that he did not say to Tate that he did not know who the still belonged to.

In support of the supplemental motion for a new trial the affidavit of several witnesses who made experiment was to the effect that it would be a physical impossibility to identify a person under the circumstances related by the state’s witnesses. It is insisted that the identification of the defendant by the state’s witnesses was in direct contravention of physical laws; that where the circumstances related by the witnesses are such that their testimony relating thereto is wholly improbable, the same should be disregarded. Counsel in his brief says:

“Viewing this testimony in the face of the positive testimony of the two witnesses for the defendant, and the defendant himself, it falls far short of being sufficient to establish the guilt of the defendant; that no effort was made to show that the defendant had purchased any of the necessary ingredients for making whisky, and no evidence was offered tending to connect the defend-; ant with the operation of the still.”

The credibility of the testimony of the defendant and the witnesses testifying in his behalf is the exclusive province of the jury to determine. The jury had the right to consider all the circumstances as well as the facts proven in the case, and it was their province to say which set of witnesses they would believe, or as to which set was corroborated by the circumstances in the case.

It is the settled rule in cases of this character that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence, unless it clearly appears that the verdict is so palpably against the weight of the evidence as to induce the belief that it was reached as the result of passion or prejudice on the part of. the jury returning the verdict.

In the record before us there is nothing to indicate that the verdict of the jury.was reached as the result of passion, prejudice or . partiality. Wherefore the judgment herein is affirmed. .

' EDWARDS and DAVENPORT, JJ., concur.


text:
    CHARLEY DIBRELL v. STATE.
    No. A-5681.
    Opinion Filed Feb. 16, 1927.
    (253 Pac. 108.)
    Bond & Bond, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that the defendant, Dibrell, on August. 30, 1924, did unlawfully convey intoxicating liquor from a place unknown to his home on Willow street, between Eighth and Ninth streets in Duncan, Stephens county, he was tried and convicted and in accordance with the verdict of the jury was sentenced to pay a fine of $250 and to be confined in the county jail for 90 days.

To reverse the judgment (appellant assigns as error the insufficiency of the affidavit upon which the search warrant was issued, and the invalidity of the search warrant under which all the evidence offered by the state was obtained by an illegal search and seizure.

The evidence shows thiat C. M. Cokér, a deputy sheriff, S. G. Moore, a constable, and J. A. Jennings, night watch, visited the defendant’s home in Duncan and by virtue of a search warrant searched the premises. Not finding the defendant at home, a copy of the warrant was posted on the front door. They found nothing, but before they left defendant drove up to his garage, and the officers searched his car.

Jennings, night watch, testified that he told the defendant they had a search warrant and directed him to unlock and open the turtle back end of the car; this the defendant did, and the officers found and took therefrom two 2-gallon jugs containing whisky.

All of the testimony was admitted against the defendant’s objection on the ground that it was obtained through an illegal search warrant issued on an affidavit made on information and belief, that did not describe the residence of the defendant or that the same was a place of public resort.

The affidavit on which the search warrant was issued, omitting caption and jurat, reads as follows:

“I. B. Gossett, being duly sworn, says: That he has probable cause to believe, and does believe, that intoxicating liquors are being sold, bartered, given away or otherwise furnished, or are being kept for purposes of selling, bartering, giving away or otherwise furnishing, in violation of law, in a certain building in Stephens county, state of Oklahoma, at 806 Walnut avenue, now used and occupied by Charles Dibrell.
“I. B. Gossett.”

That affidavit does not set forth the facts on which the affiant, Gossett, bases his belief, nor facts sufficient to produce in the mind of the justice of the peace by whom the warrant was issued probable cause to believe that the defendant had intoxicating liquors in his possession, ¡and does not describe the home of the defendant on Willow street as alleged in the information herein.

It is the well-settled doctrine in this state that a search and seizure, forcibly made, under color of a void search warrant, is an “unreasonable search and seizure,” within the meaning of section 30 of our Bill of Rights, which provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no 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.”

See Gore v. State, 24 Okla. Cr. 394, 218 P. 545.

The statute provides:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.” Section 7013, C. S. 1921.

These provisions safeguard the citizen in his person, his home, and his property agiainst unlawful and unreasonable search or seizure. Foreman v. State, 8 Okla. Cr. 480, 128 P. 1101; Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Russell v. State, 25 Okla. Cr. 423, 221 P. 113; McClure v. State, 31 Okla. Cr. 60, 237 P. 145; Combest v. State, 32 Okla. Cr. 47, 239 P. 936.

Manifestly, the affidavit upon which the search warrant issued does not meet the requirements of the constitutional provision and the statute above quoted;

It has been repeatedly decided by this court that evidence obtained by a search of the defendant’s home, under a search warrant issued without authority of law, and for the sole purpose of obtaining evidence against him, in violation of section 30 of the Bill of Rights, is inadmissible against him. Said section of the Bill of Rights is a pledge of the faith of the state government that the people of the state, all alike, shall be secure in their persons, houses, papers, and effects against unreasonable search and seizure. This.' security has vanished and the pledge is violated by the state that guarantees it when officers, acting under color of state-given authority, search and seize unlawfully.

The defendant’s conviction, having no sufficient foundation to support it without the use of evidence which had been unlawfully obtained, must be reversed.

The judgment appealed from is reversed and cause remanded, with direction to discharge the defendant.

EDWARDS ¡and DAVENPORT, JJ„ concur.


text:
    W. B. JONES v. STATE.
    No. A-5678.
    Opinion Filed Feb. 16, 1927.
    (253 Pac. 310.)

      J. Hugh Nolen, J. V|. Crawford, and O. A.'Shaw, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, W. B. Jones, was convicted on a charge of unlawful possession of intoxicating liquor, and, in accordance with the verdict of the jury, was sentenced to confinement in the county jail for 30 days, and to pay a fine of $50. He prosecutes this appeal for a reversal of the judgment on the ground that the court erred in admitting evidence that was illegally obtained by an unlawful search of his home.

The evidence on the part of the state showed that appellant, with his wife and three children, occupied a box tent as his home on the east of Okemah, and that this was his only residence.

It appears that the complaining witness, W. L. Payne, verified an affidavit before a justice of the peace at Okemah for. a search warrant, and the same was issued to him. He testified that, as chief of police, under authority of the search warrant, in company with Sheriff Parsons and Policeman Swan, he visited the defendant’s premises, passed through the fence, slipped up to the tent, and looked through a crack; that he recognized Iindley, who had a fruit jar in his hand; then he opened the door and snatched the fruit jar from Mr. Lindley; then he picked up another fruit jar containing whisky.

On cross-examination he was asked:

“Q. What authority were you going on when you passed through the fence and got on his premises? A. Authority of a search warrant.”

Sheriff Parsons testified that, when he stepped in, "appellant said, ‘Help yourself,’ that was all we could find.”

Witness Payne, recalled, identified the affidavit made by him upon which the search warrant was based, also the search warrant and the return thereon made by him, as follows:

' "Received this writ this 10th day of February, 1925, and served the same by seeing parties inside with whisky in their possession, and found some whisky in tent and by searching said premises herein described. Found a quantity of intoxicating liquor on this 10th day of February, 1925. W. L. Payne, Chief of Police.”

The affidavit was made on information and belief against John Doe and Sally Doe, and the search warrant was so addressed.

Appellant took the stand, and testified that he was an employee of the O. K. Gin Company; that Ed Lindley came to his home about an hour before the officers, and brought some whisky with him, and had the fruit jar in his hand when the officers walked in; that he did not give the officers permission to search his home; that he had never before been arrested.

The record shows that the testimony of the witnesses for the state was admitted over the defendant’s objections, and, at the close of the evidence, there was a motion by the defendant for a directed verdict in his favor on the ground that all the evidence offered in the case w;as • obtained by means of an illegal search warrant.

The trial court ruled: “I think the search warrant issued in this case under that affidavit was absolutely void, and I so hold,” but overruled the motion for a directed verdict.

The court instructed the jury in part as follows:

“You are instructed that the search warrant which was used by the officers in searching the premises of the defendant in this case is void and illegal.”

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

These sections are guarantees of American liberty and justice, which come to us from the same source as did those equally, but not more greatly, prized, whereby we are guaranteed religious liberty, trial by jury, the right to peaceably assemble, free speech, liberty of the press, and other constitutional safeguards. If the security of the person and the home are not protected by the Constitution, if unreasonable searches and seizures are to be permitted, trial by jury may be denied. If officers may upon suspicion search the persons and the homes of the citizens of our state, the right of the people to peaceably assemble, to freely speak, write, and publish are in danger.

It was the boast of Lord Chatham that, though the wind and rain might enter the cottage of the English peasant, the king could not enter.

In Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, we said:

“The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for • centuries been protected by every court in the English speaking world, from Magna Charta down to. the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.
“The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.”

It is the well-settled doctrine in this state that a defendant does not waive his constitutional right by freely and voluntarily consenting to a search made under authority of a search warrant. Smith v. State, 34 Okla. Cr. 434, 246 P. 1109; Whitford v. State, 35 Okla. Cr. 187, 249 P. 430; Shockley v. State, 35 Okla. Cr. 437, 251 P. 514.

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

EDWARDS and DAVENPORT, JJ., concur.


text:
    J. S. BLOODSWORTH v. STATE.
    No. A-5673.
    Opinion Filed Feb. 18, 1927.
    (253 Pac. 107.)

      Bond & Bond, for plaintiff in error.
    . Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant was convicted on a charge of unlawfully manufacturing intoxicating liquor, to wit, whisky, and his punishment submitted to the. court. Motion for new trial was filed, overruled, and appellant was sentenced to confinement in the county jail for 30 days and to pay fine of $50.

Appellant’s chief contention is that the verdict is not justified by the evidence. E. K. Young, sheriff, testified that with C. N. Coker, he visited appellant’s premises, under authority of a search warrant and made a search. We quote from his testimony:

“We found a little whisky, about a quart and a half, in the cow lot; we found a barrel that had been used, in the hog lot, where they had been making some whisky. There was a pit or hole where they had been cooking it off, and a little northwest of there was a little still. When we started away, appellant said he might as well plead guilty.”

C. N. Coker testified:

“We found where they had cooked off some whisky ■down at the hog pen.
“Mr. Bloodsworth took us out in the com patch, where we found a part of a worm and a still.”

Appellant took the stand, and testified. that Sheriff Young and Mr. Coker came into the yard; stated they had a search warrant;.that he told them to go ahead and search, and told them that there was a still in the hog pasture, and he took them to it, telling them that he did not know who it belonged to; that he wanted it taken away from his place; that a man came there and left the outfit in the pasture the day before, saying that he would take it away Monday morning; that the man gave him something like half a gallon of whisky; that was found by the officers out in the cow lot; that he left it there, because his wife would not let him take it into the house; that he never did manufacture whisky, and had never before been arrested.

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

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

The record presents no error. The judgment is therefore affirmed.

EDWARDS and DAVENPORT, J'J., concur.


text:
    J. T. REEVES v. STATE.
    No. A-5844.
    Opinion Filed Feb. 19, 1927.
    (253 Pac. 510.)

      Brett & Brett, Matson & Mathers, and H. A. Hicks, for plaintiff in error.
    Geo. F. Short, Atty. Gen., Leverett Edwards, Asst. Atty. Gen., and Sigler & Jackson, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of practicing medicine without a license and was sentenced to pay a fine of $250.

The information is drawn under section 12, c. 59, Session Laws 1923, the charging part of which reads?

“That he, the said John T. Reeves, defendant, on the day and the year last aforesaid, in the county and state aforesaid being then and there not in the lawful possession of an unrevoked license or certificate, issued and executed to him by the board of medical examiners of the state of Oklahoma, authorizing him, the said John T. Reeves, to practice medicine and surgery within the state of Oklahoma, did knowingly, willfully, wrongfully, and unlawfully practice medicine; by knowingly, unlawfully and wrongfully appending to his name the letters ‘Dr.,’ ‘•M. D.,’ ‘Specialist,’ ‘Combanathic,’ thereby holding himself out and representing himself to the public as a physician. * * *” ' ■

The evidence, while brief, substantially sustains the charge. We deem it unnecessary to set out the substance of the evidence further than to say that it shows defendant, at the time charged, upon a sign over the door of his place of business, appended to his name the letters, “Dr.,” as an abbreviation for “Doctor,” and followed, it by the words, “Specialist in Chronic Diseases,” thereby representing himself to be a physician, not having at the time a license authorizing him to practice medicine. Defendant contends that the entire act is unconstitutional and void. Further, that if the act should be upheld, that section 12 is invalid as based on á conclusive or an unreasonable presumption not within the power of the Legislature to enact.

Under his first assignment, defendant asserts that said chapter 59 violates section 55, art. 5, of the Constitution, which forbids the expenditure of any money of the state except in pursuance of an appropriation made within 2¥2 years of the passage of the appropriation act. That said chapter 59 is similar to and falls squarely within the inhibition announced by this court in the case of Ex parte Pope, 33 Okla. Cr. 5, 242 P. 290. That by the terms of said act the medical board may expend funds belonging to the state without any valid appropriation therefor and without the checks and balances required by the Constitution.

In reference to the Medical Practice Act, generally, it is well settled that, by virtue of the wide authority of the police power inherent in. the state, the Legislature, may enact reasonable regulations for the conservation and protection of the public health. 30 Cyc. pp. 1547, 1548; 21 R. C. L. 368; Parks v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190; State v. Vandersluis, 42 Minn. 129, 43 N. W. 786, 6 L. R. A. 119; State v. Edmunds, 127 Iowa, 333, 101 N. W. 431; Smith v. People, 51 Colo. 270, 117 P. 612, 36 L. R. A. (N. S.) 158; Little v. State, 60 Neb. 749, 84 N. W. 248, 51 L. R. A. 717; Dent v. State of W. Va., 129 U. S. 114, 9 S. Ct. 231, 32 L. Ed. 623; State v. Corwin, 151 Iowa, 420, 131 N. W. 659.

The following eases from this court treat the Medical Practice Act as valid; Coulson v. State, 8 Okla. Cr. 403, 127 P. 1090; Wilson v. State, 8 Okla. Cr. 493, 129 P. 82; Gobin v. State, 9 Okla. Cr. 201, 131 P. 546, 44 L. R. A. (N. S.) 1089; Ex parte Ambler, 11 Okla. Cr. 449, 148 P. 1061.

In testing the constitutionality of an act of the Legislature, every presumption in favor of the constitutionality must be indulged by the court, and an act will be upheld unless its conflict with the Constitution is clear and certain. Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 P. 179; Stout v. State ex rel., 36 Okla. 744, 130 P. 553, 45 L. R. A. (N. S.) 884, Ann. Cas. 1916 E, 858; Dickinson v. Perry, 75 Okla. 25, 181 P. 504; Leach v. State, 17 Okla. Cr. 322, 188 P. 118.

This rule is particularly applicable and the presumption is especially strong where there has been a long acquiescence and the provisions challenged have been treated as valid, or where great injury would re-, suit from declaring a statute void. 12 C. J. pp. 798, 799, § 223. The Medical Practice Act in some form was in force in Oklahoma Territory prior to statehood and at all times since statehood. Certainly, great injury would follow if this act should be held invalid. However, a comparison of the real estate act held unconstitutional in the Pope Case and the Medical Practice Act shows a very wide difference. The real estate act did not provide for any checks and balances by the state treasurer or auditor. The real estate board had its own depository, other than the state treasurer. It was its own collector, manager, purchaser, auditor, and disburser, limited only by the amount of money it could get. Section 2, c. 205, Session Laws 1923. Under section 31 of this act, the funds collected are paid to the state treasurer. The act is broad, and the wisdom of managing this fund and disbursing it in the manner provided may be criticized as bad policy or poor business methods; the act does not fall squarely within the rule announced in the Pope Case. That case lays down the rule as extreme as this court is prepared to go. We do not deem it necessary to pass on the constitutionality of section 31, for even if the manner of disbursing these funds should be held in violation of the Constitution, the other parts of the act would not ipso facto be unconstitutional. Section 34 contains the usual partial invalidity clause, which provides that, in the event any of the provisions of the act should be held unconstitutional, it shall not affect the enforcement of the other provisions thereof.

It is a well-recognized principle of statutory construction that a statute may, for constitutional or other reasons, be in part valid and in part invalid, and, if the invalid portion can be eliminated without disturbing or impairing the valid portion, the valid portion will be upheld and the invalid portion stricken. Missel v. State, 33 Okla. Cr. 376, 244 P. 463; Postelwait v. State, 28 Okla. Cr. 17, 228 P. 789; Dies v. Bank, etc., 100 Okla. 205, 229 Pac. 474; In re Commissioners, etc., 22 Okla. 435, 98 P. 557; Pioneer Tel. & Teleg. Co. v. State, 40 Okla. 417, 138 P. 1033; Parwal et al. v. State, 71 Okla. 121, 175 P. 514.

It is next argued that section 12 attempts to create a conclusive presumption of guilt of unlawfully practicing medicine for any one without a license, who shall use the prohibited terms in connection with his name, without any proof that such person ever treated or attempted to treat disease. That a statute which undertakes to make evidence of any fact conclusive proof of guilt is invalid, citing Ex parte Wilson, 6 Okla. Cr. 451, 119 P. 596, and Caffee v. State, 11 Okla. Cr. 485, 148 P. 680.

Or if it should be held that the statute creates merely a prima facie presumption, it is arbitrary and unreasonable and not within the power of the Legislature to enact, citing Ex parte Smith, 24 Okla. Cr. 415, 218 P. 708, and Simpkins v. State, 35 Okla. Cr. 143, 249 P. 168.

The section of the statute in question is not unique, but the substance of it is found in the statutes of various states, and the subject-matter has been considered by the courts many times. Our attention has not been called to any clase in which a statute of similar import has been held invalid. This section appears to be an expression of the legislative intent to broaden the definition of the words, “practice of medicine,” and, in addition to the generally accepted meaning, to have it include other acts not generally contained in the meaning of thiat term. It is said that the state has the right to determine and define what constitutes the practice of medicine within the meaning of the legislative act. And so long as the statutory definition mentions acts which in any substantial sense amount to a practice of medicine, the act will be upheld and the assuming to practice by affixing or prefixing signs or appellations in a medical sense to the name is sufficient to constitute the offense. 30 Cyc. 1562, 1563, IV, states the rule thus:

“In many states it is provided that any person‘shall be held as practicing medicine, within the meaning.of a statute prohibiting the practice of medicine without a license, who shall publicly profess to cure or heal, or hold himself out as a physician, and assume the duties', or who shall prefix the title ‘doctor’ or ‘professor,’ or append the letters ‘M. D.,’ to his name. A mere public profession of any ability to heal will not subject one to the penalities of the law. Such profession must be made under circumstances as to indicate that it is made with a view of undertaking to cure the afflicted. But proof of actual treatment is not exacted in all cases. * * *”

In the case of State v. Yegge, 19 S. D. 234, 103 N. W. 17, 69 L. R. A. 504, 9 Ann. Cas. 202, it was said:

“Chapter 176, p. 202, of the Laws of 1903, provides for creating a board of medical examiners, defines their duties, empowers them to grant licenses to qualified applicants, and prescribes penalties for practicing without such a license. Section 21 provides as follows: ‘When a person shall append or prefix the letters, M. B. or M. D. or the title Dr. or Doctor or any other sign or (appellation in a medical sense to his or her name or shall profess publicly to be a physician or surgeon, * * * (he or she) shall be regarded as practicing within the meaning of this act.’ It will be observed that it is provided by the above section that: ‘When a person shall append or prefix the letters M. B. or M. D. or the title Dr. or Doctor or any other sign or appellation in a medical sense to his or her name or shall profess publicly to be a physician or surgeon, * * * (he or she) shall be regarded as practicing within the meaning of this act!’ The evidence seems to be uncontradicted that the plaintiff in error did, upon a sign in front of his office, and in the notice published, prefix to his name the letters ‘Dr.’ and it is quite clear from the evidence that they were used in a medical sense, and we are of the opinion that the jury were fully justified in so regarding them. The Legislature evidently intended, in enacting the law, to prevént persons not properly educated in the science of medicine from assuming to act as a physician, and to protect the public, and it has deemed it proper that every person assuming to act as a physician or surgeon should be properly licensed. In carrying into effect this law, it was competent for the Legislature to define, as it has assumed to do in section 21, what evidence shall be deemed sufficient to constitute a practitioner within the meaning of the act.”

In the case of State v. Crombie, 107 Minn. 171, 119 N. W. 660, the opinion uses this language:

“The contention of the defendant is that the provisions of the statute referred to are unconstitutional, because they make the use of the letters ‘D. D. S.’ conclusive evidence that the person so using them is practicing dentistry in this state, and, further, that they are in conflict with sections 3 and 7 of article 1 of our state Constitution, which guarantee the liberty of speech and press, and thiat no person shall be deprived of life, liberty, or property without due process of law, and also that they violate the Fourteenth Amendment to the Constitution of the United States. The provision of the statute to the effect that a person who does the acts therein specified ‘shall be said to be practicing dentistry’ is in substance the same as one found in Rev. Laws 1905, § 2300, relating to the practice of medicine, which declares that a person shall be regarded as practicing medicine, within the meaning of the act, who shall append to his name the letters ‘M. D.’ This last-named provision was sustained, as a valid exercise of the police power, in State v. Oredson, 96 Minn. 509, 105 N. W. 188, for the reason as stated by Jaggard, J., that ‘it was designed to secure the public in whole land in part from quacks, humbugs, and charlatans masquerading under the venerable and honorable titles of surgeons, physicians, and doctors, and to protect the public in a just reliance upon the one using these titles as a man of proper education and sufficiently trained in the sciences involved.’ * * *”

See, also, 21 R. C. L. p. 368, § 16; Parks v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190, supra; Foo Lun v. State, 84 Ark. 475, 84 S. W. 946; State v. Oredson, 96 Minn. 509, 105 N. W. 188; Territory v. Newman, 13 N. M. 98, 79 P. 706, 813, 68 L. R. A. 783.

We are of the opinion that the act in question is valid as within a reasonable exercise of the police power and is not in conflict with any constitutional provision of the state.

The judgment is affirmed.

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


text:
    ERNIE STOGSDILL v. STATE.
    No. A-5672.
    Opinion Filed Feb. 19, 1927.
    (253 Pac. 309.)
    E. H. Beauchamp, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Ernie Stogsdill, hereinafter called the defendant, was convicted in the county court of Delaware county, state of Oklahoma, on a charge of transporting intoxicating liquor from one place in the state to another, and was sentenced to pay a fine of $50 (and serve a term of 30 days in the jail of Delaware county, Okla.

To reverse the judgment rendered he has appealed to this court and has assigned seven errors committed by the court in the trial of the case. Assignments of errors 1, 4, and 5 are assignments that may be properly considered together, as they, in substance, relate to the same error complained of, to wit:

“(1) Said court erred in overruling the plaintiff in error’s motion for a new trial.
“(4) Said court erred in admitting evidence on part of the defendant in error, which was objected to at the time by plaintiff in error.
“(5) Said court erred in overruling the demurrer to the state’s evidence at the conclusion of the state’s case.”

To reach <a proper conclusion as to whether or not the assignments set out are well taken we deem-it necessary to set out a brief summary of the testimony in this case.

The state called as a witness Matt Francis, who testified that he was city marshal of the town of Grove; that on the 31st day of January, 1924, he, in company with others, was on the highway between Grove and Jay about three miles south of Grove about 9 o’clock in the evening; that they saw the defendant coming along the road, and, when he came up close to them, he asked the defendant what he had in the suitcase he wias carrying, and defendant replied and said, “Old clothes.” And he asked defendant to unlock it for him, and he said he had left the key at home, and he could not get it open, and I told him to wait there and I got out and opened the suitcase, and while looking through the suitcase he dropped a small fruit jar and smashed it on the ground, and I took it up and looked at it, and it was some kind of intoxicating liquor. It smelled fermented just like all whisky.

Henry Francis was called, and he testified he knew Ernie Stogsdiil, and that he was in company with other parties when they stopped the defendant on the highway between Grove and Jay; that Matt Francis asked the defendant what he had in the suitcase, and he said, “Old clothes.”

“When Matt Francis got the suitcase, he unfastened the suitcase and it fell open, and while he was looking through the suitcase they heard a clash of glass, and looking toward the defendant, noticed he had thrown a quart jar down and broken it. Don’t remember that defendant said anything. I believe he said he had better get rid of it while he had a ch'ance. That is all that happened. Yes; I smelled it; I never tasted it. I do not know how' whisky is made. I have had no big experience with whisky. From the odor of it, I thought it was whisky; that was the only sign or indication—was the smell. I did not see Stogsdiil drop the jar.”

C. L. Whitten, called by the state, testified that he was a merchant in Grove in the secondhand business; that Mr. Francis threw a flashlight on the defendant and asked him what he had in the suitcase, and he said, “Old clothes.”

“Mr. Francis stopped him and asked him to let him see what was in it and unstrapped the suitcase and looked through it. While Mr. Francis was looking through the suit case, the boy threw the fruit jar down and broke it. I do not know what was in the fruit jar; it smelled like whisky. We were out there trying to locate Wyley Hanna’s daughter—the one that eloped. I was not an officer. I do not know whether this whisky was obtained by a search warrant or not. I did not see any one searched.”

This is, in substance, all the testimony offered by the state. At the close of the state’s testimony, the defendant interposed a demurrer to the evidence of the state, which demurrer was by the court considered and overruled, to which the defendant duly excepted.

The witness Matt Francis was not even an officer having jurisdiction outside the town of Grove. He had no warrant, and his action, upon mere suspicion that the defendant had whisky in his possession, gave him no right or authority to open defendant’s suitcase and search it or to place defendant under arrest and hold him in custody, and his action in so doing was . unlawful, and the evidence procured under such circumstances was procured without authority of law and is inadmissible against the defendant. Graham et al. v. State, 31 Okla. Cr. 125, 237 P. 462.

It is a well-settled doctrine in this state that no search of a person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory laws by 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.

Defendant is charged in the information with transporting intoxicating liquor from a place unknown to the place where he was arrested and grip searched. The state offered no testimony other than the testimony of Matt Francis, the town marshal of Grove, Henry Francis, and C. L. Whitten, whose testimony was unlawfully procured. The objection of the defendant to its admission was well taken.

Other assignments of errors are 'argued by the defendant none of which we think necessary to consider. There is no competent evidence to sustain the verdict and judgment.

The case is reversed and remanded.

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


text:
    C. C. McADOO v. STATE.
    No. A-5761.
    Opinion Filed Feb. 19, 1927.
    (253 Pac. 307.)
    Wright, Gill & Ramsdale, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of maintaining a liquor nuisance, and his punishment fixed at imprisonment in the county jail for a term of 90 days and a fine of $250.

The defendant directs his argument principally to the contention that the search warrant under which the officers acted, and by which all material evidence was procured, was invalid because it did not run in the name of the state of Oklahoma. The Attorney General has filed a confession of error, that part applicable to the question before us is:

“The Attorney General has attempted to brief only one point raised by the defendant upon his appeal, and that is his contention ‘that the search warrant by which most of the relevant evidence obtained by the officers against this defendant during the search of his place was improperly styled and fatally defective.’ We are of the opinion that this point is well taken by the defendant. The record shows that the search warrant, under the proposed authority of which the sheriff of Cleveland county made his ■search of the defendant’s premises, in so far as it is necessary to consider the same for the purpose of this case, is as follows:
“ ‘In the County Court.
“ ‘State of Oklahoma, County of Cleveland-^—ss.:
“ ‘Search Warrant.
“ ‘To Frank Boggs, Sheriff of Cleveland County, Oklahoma, or to Any Deputy Therein:
“ ‘Whereas, complaint on oath and in writing, supported by affidavit, has this day been made before me. * * *’
“Section 19 of article 7 of the Constitution of Oklahoma, is as follows:
“ ‘All judges of courts of this state, and justices of the peace, shall, by virtue of -their office, be conservators of the peace throughout the state.’
“ ‘The style of all writs and processes shall be “The State of Oklahoma.” All prosecutions shall be carried on in the name and by the authority of the state of Oklahoma. All indictments, informations, and complaints shall conclude, “against the peace and dignity of the state.” ’
“To exactly the same effect is section 862, Comp. Stat. 1921:
“ ‘The style of all process shall be: “The State of Oklahoma.” It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it is issued.’
“An abundant line of decisions apparently hold that the above section of Constitution is mandatory. Richmond v. Robertson, 50 Okla. 635, 151 P. 203; Latimer v. Giles, 29 Okla. 234, 116 P. 795; Little v. Little, 5 Mo. 227, 32 Am. Dec. 317; Martin v. Hostetter, 59 Okla. 246, 158 P. 1174; Conditt v. McKinley, 94 Okla. 266, 221 P. 1007.
“Section 2876, Compiled Oklahoma Statutes, 1921, is a definition of a search warrant, as follows:
“ ‘A search warrant is an order in writing, in the name of the state, signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate.’
“And in section 2881, Compiled Oklahoma Statutes 1921, a substantial form for a search warrant is provided by our Legislature. Upon an examination of the statutes and decisions of other states, we find that the definition provided by the Oklahoma statutes and the form suggested agrees substantially with the definition and form recognized throughout the Union, England, and Canada.
“There can be no doubt but. that a search warrant is ‘process’ as contemplated by the Oklahoma Constitution and the corresponding sections of our statutes.
“In view of the evidence in this case, which tends conclusively to support the verdict, and in view of our harmless error statute, the omission in the case at bar, at first glance, may seem a trivial or unimportant thing, yet under the decisions of the Oklahoma courts as well as tribunals of other states, we believe said omission is fatal to the validity of the search warrant, and it therefore follows that the evidence obtained thereunder was incompetent and its admission prejudicial error.
“Respectfully submitted. George F. Short, Atty. Gen. Leverett Edwards, Asst. Atty. Gen.”

Since the Constitution, § 19, art. 7, and the statute (section 862, Comp. Stat. 1921) require that process shall run in the name of the state of Oklahoma, if a search warrant is “process” within the meaning of the statute and Constitution, this prosecution must fail, since the search warrant does not run from the state of Oklahoma. The caption, “State of Oklahoma, County of Cleveland,” merely fixes the venue. There is no order or command from the state of Oklahoma to any officer, commanding him to execute the process.

24 R. C. L. p. 701, § 3, is in part as follows:

“A search warrant is an order in writing in the name of the people (or the state, or the commonwealth * * *) signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate. * * * It may be invoked only in furtherance of public prosecutions. * * * It is in the nature of a criminal process, and is intended to aid in detecting and punishing crime, and has no relation to civil process or trials.”

See, also, 35 Cyc. p. 1265, III A, Id., p. 1277, “Search Warrant,” and definitions; 6 Words and Phrases, p. 5643. See, also, Caples v. State, 3 Okla. Cr. 72, 104 P. 493, 26 L. R. A. (N. S.) 1033.

A search warrant is clearly “process” within the meaning of the Constitution afid statute above referred to, and in order to be valid must run in the name of the state. The search warrant under which the evidence introduced in this case was obtained did not run in the name of the state, and was invalid, and upon timely objection, as made, this evidence should have been excluded. The confession of the Attorney General is well taken.

The case is reversed and. remanded.

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


text:
    ROBERT L. YOUNG v. CITY OF ARDMORE.
    No. A-5648.
    Opinion Filed Feb. 21, 1927.
    (253 Pac. 305.)
    Champion, Champion & George, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the municipal court of the city of Ardmore, Okla., on a complaint charging him with a violation of section 474 of the ordinances of the city of Ardmore, from which conviction he appealed to the county court of Carter county, Okla.

Upon a trial in the county court he was convicted and sentenced to pay a fine of $19 and $1 cost, from which judgment and sentence defendant appealed to this court. The charging part of the complaint upon which the defendant was tried and convicted is as follows:

“On or about the 2d day of January, 1925, and prior to the filing of this complaint in the city of Ardmore, Carter county, Okla., one Robert L. Young did then and there unlawfully * * * associating with prostitute, to wit, visiting the home of Mrs. Joe Threlkeld at 611 F. S. E. Ardmore, Okla., she being known to be a prostitute, contrary to section 474 of the ordinance of said city in such cases made and provided, and against the peace and dignity of the said city.”

The defendant has filed seven ¡assignments of errors alleged to have been committed in the trial of the case. The first, second, third, fifth and sixth assignments of errors are as follows:

“First. Said court erred in overruling the motion of plaintiff in error for a new trial.
“Second. Because the verdict of the jury is contrary to law.
“Third. Because the verdict of the jury is contrary to the evidence.
“Fifth. Because the court erred in overruling the demurrer of plaintiff in error to the evidence of the defendant in error, to which action of the court the plaintiff in error duly excepted.
“Sixth. Because the court erred in not instructing the jury to return a verdict in favor of the plaintiff in error, to which action of the court the plaintiff in error at the time duly excepted.”

The assignments herein set out will be considered together, as they are in substance complaining of the same error committed by the court. The defendant contends that the complaint in this case does not charge an offense against the ordinance of the city of Ardmore, and that the verdict of the jury in this case is contrary to the evidence, and that his demurrer to the evidence should have been sustained.

In order to properly consider the errors assigned by the defendant, we deem it necessary to set out in substance the testimony introduced at the trial, and to refer to the complaint in this case to ascertain whether or not it charges an offense under the ordinance of the city; and, if the offense is charged, is the testimony sufficient to sustain a conviction?

First. The ordinance makes it a penalty for any one to loiter around a house, room, or place of prostitution or assignation. Second. To frequent or visit a house, room, or place of prostitution or assignation. Third. To have illicit intercourse with any person at any place within the city of Ardmore.

The charge in this complaint is not for loitering, frequenting, or visiting a house, room, or place of prostitution or assignation, but it is a charge of unlawfully associating with a prostitute by visiting the home of Mrs. Joe Threlkeld; she being known to be a prostitute, contrary to section 474 of the ordinance of the city of Ardmore.

In support of the allegations in the complaint, the city called the following witnesses, who in substance testified as follows:

W. C. Keirsey: “I am a policeman, and was a policeman on the 2nd day of January, 1925, and visited the home at 611 F. S. E. Ardmore, Okla., the place of Joe Threlkeld; time was between 11 and 12 o’clock.” In answer to a direct question: “This place at 611 F. S. E., state who Threlkeld is. State whether he is a prostitute?” answered, “ She is; she has a record as a prostitute.” Robert L. Young was there in the back room. The house is a square bungalow. They had been pulling some parties out there, and I went over to see what was going on this night. I eased up, and waited for about 20 minutes, and decided he was not coming out. He was in the northwest room with Joe, and Joe’s sister I think. I do not know what I told the sergeant. What I told him to write up the record will show for itself. Mr. Musgrave was with me. This place is supposed to be a residence. You can go out to this place any time day or night. We looked in at a window, and the defendant was sitting there gassing with them; talking with Joe. There was another woman in the room. All parties were properly dressed, and I did not see anything wrong while I was there looking in the window. I saw him talking to this girl, and we have her on record as a prostitute. I heard him say he was going to quit his wife and take her. He was talking about one thing and lanother, I did not hear all he said. It was just a line of bull. I did not see her do anything except standing there in the room. I could see her plain from outside. Before I went into the house, I knocked on the door, and Mr. Young come to the door. He made no effort to get away. Mr. Musgrave was with me at the time. We were watching this house at the time, as they had been pulling some wild parties there for some time. Mr. Young was a party to them.

Mr. A. C. Musgraves, called as a witness by the city, testified that he was with Mr. Keirsey on the night mentioned; he saw the defendant at the house; that in the room was Mrs. Threlkeld, her sister, Mr. Young, and a little boy; that he did not see the woman do anything wrong. There was nothing unbecoming in the conduct of either.

The city also called Mr. Lee Smith, and he stated he was sergeant at the police station, and held that position on January 2, 1925, and as police sergeant he had charge of the records. On direct examination he testified that Mrs. Joe Threlkeld had been convicted for prostitution in the police court. On cross-examination he said he had made a careful examination of the record, and that Joe Threlkeld had been convicted for prostitution in the police court, and stated that his record disclosed that she had been brought before the court twice, once in 1923 'and once in 1924. “I did not search the record any further back than 1923; I wanted more than one case." Further, on cross-examination Mr. Smith testified in substance that she had only been brought before the city court from 1923 on down twice; that he examined the record for 1923-1924, and that the record showed two forfeitures of bonds, and that was the only record he found.

This was in substance the testimony introduced by the city of Ardmore. At the close of the testimony for the city the defendant demurred to the testimony of the city; that the same was insufficient to sustain the allegations contained in the complaint filed herein. The demurrer was overruled, and defendant’s counsel duly excepted.

The defendant on his own behalf called Mrs. Joe Threlkeld, who testified as to where she was living on the 2d day of January, 1925, and also testified that she called the defendant to her home that evenning on a business proposition and to settle with him for money which she had borrowed from him previously; that the defendant had been to her house a short while when the officers came; that her boy was sick that evening; and that she, a lady friend of hers, and Mr. Young were there when the officers called; that the conduct of the defendant during the time he was there was. gentlemanly, and nothing improper was done.

The defendant testified in substance to the same facts as Mrs. Threlkeld, admitting that he was at her house. That he had gone there on a business transaction. That he had been there on three previous occasions, twice in the daytime and once in the evening. That he loaned Mrs. Threlkeld some money, and that she ¡was ready to repay it, and wanted him to return a ring she had pawned as security, and that his mission to her house that evening was for the purpose of receiving his money and delivering the ring. That he had been talking about renting a farm from her previous to this time. That, when the officer came in, he stated to the defendant that he would take him to the station. Defendant asked, “What for?” and, after repeating the question, the officer advised, “For associating with a prostitute.” This was the first time that he had heard Mrs. Threlkeld was a prostitute. That he did not know she had ever been charged with such a crime.

The only error we deem necessary to consider is the fifth assignment, which is as follows:

“Because the court erred in overruling the demurrer of plaintiff in error to the evidence of defendant in error.”

This assignment raises the only question necessary for a decision, as we view the complaint and evidence. The defendant in his brief has discussed the complaint at length and urged that it did not state a crime under the ordinance relied on by the city of Ardmore. We have carefully examined the ordinance, and find there is some merit to the contention of defendant. However, in pleadings in municipal courts the same strictness is not required as in the county, district, or superior courts.

We now come to the assignment of error as to the testimony being sufficient to sustain the verdict and judgment. The city /attempted to prove by its witnesses that Mrs. Joe Threlkeld was a prostitute, some one of the witnesses making a general statement that she was a prostitute without stating the facts upon which he based his statement. The city, not relying on the general statement, attempted to prove by its records that she was a prostitute, and, when the testimony is considered, the only testimony in the record shows that two bonds of Mrs. Threlkeld had been forfeited, one in 1923 and one in 1924, but it does not show the charge against her, or why she was not tried on the charges. Mrs. Threlkeld was called as a witness by the defendant, and told the court the mission that brought the defendant to her house the evening he was arrested. The defendant testified that he had gone there on a business proposition, and that he had never heard of Mrs. Threlkeld being considered a prostitute. The officers all admit that there was no improper conduct, and neither of them attempted to testify positively as to Mrs. Threlkeld being a prostitute, nor does any record they refer to disclose that fact, as the only record referred to mentioned a forfeiture of bonds on some kind of ian alleged offense, not stated.

The complaint in this case charges the defendant in general terms with associating with a prostitute. The offense must be proven by evidence of the particular facts showing it, and it is error to admit evidence of an uncertain character and general rumor. Arnold v. State, 28 Tex. App. 480, 13 S. W. 774.

There is no positive or competent testimony to prove that the defendant associated with a prostitute, or that he had any knowledge that she had ever been a woman of questionable character. The evidence is insufficient to sustain the verdict and judgment.

The judgment is reversed and remanded.

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


text:
    ERNEST THOMAS v. STATE.
    No. A-5689.
    Opinion Filed Feb. 26, 1927.
    (253 Pac. 514.)
    Patton & Adwon and Claude Nowlin, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, wag convicted in the district court of Canadian county on a charge of subornation of perjury and was sentenced to serve a term of five years in the state penitentiary.

The record discloses that prior to February, 1925, Ernest Thomas, the defendant, and others, were charged in the county court of Canadian county with having the unlawful possession of intoxicating liquor. This charge was based on the discovery by certain officers of ia five-gallon jug of whisky buried on the Thomas farm. At the trial of that case in the county court, defendant and his codefendants produced one J. O. Dorsey, who being sworn as a witness, testified that he buried the jug of whisky where it was found. In this prosecution for perjury, it is alleged that this testimony of Dorsey was false and known by him to be false at the time, that Dorsey had not buried the whisky as he so testified, and that he was procured to give such testimony by defendant and his codefendants, knowing said testimony to be false. The information is lengthy, and we deem it unnecessary to set it out. The same rule of pleading as to the materiality of the evidence and the jurisdiction of the court /applies in subornation of perjury as in perjury. 21 R. C. L. p. 276, note 5; 30 Cyc. 1440 (8).

The first contention argued by defendant is that the information is insufficient as lacking an allegation of specific facts showing the testimony of Dorsey to be material. There is, however, the direct averment that his testimony so given was material. Under numerous holdings of this court, this is sufficient. Downard v. State, 26 Okla. Cr. 274, 223 P. 718; Miller v. State, 9 Okla. Cr. 196, 131 P. 181; Cornelson v. State, 38 Okla. Cr. ..., 257 Pac. 1109.

The information is further objected to for the reason that there is no allegation that the county court had jurisdiction of the particular case in which the testimony was given. Perjury in giving testimony in the trial of a case can be committed only in a court having jurisdiction of the particular case. The court, of course, takes judicial notice that the county court has jurisdiction to try misdemeanors involving a violation of the prohibitory liquor law. The mere allegation, however, that a certain case was on trial in the county court is not an allegation that the court had jurisdiction of that particular case. The information should contain an allegation that the court had jurisdiction of the case on trial, or that the officer administering the oath had authority, or facts should be alleged from- which the court will take judicial notice of jurisdiction. 30 Cyc. 1430, 1431; 21 R. C. L. 267; Gray v. State, 4 Okla. Cr. 292, 111 P. 825, 32 L. R. A. (N. S.) 142; Schlumbohm v. State, 5 Okla. Cr. 36, 113 P. 235.

Complaint is next made that the court made a comment in the presence of the jury expressing his opinion of the guilt of defendant. It was the theory of the state that, prior to procuring Dorsey to testify falsely, defendant and his codefendants had arranged with one Elmer Hill to testify that he had placed the whisky where it was found, but just before the trial Hill had refused to so testify and had left the community. In the case at bar, Dorsey testified very reluctantly for the state, in a measure sustaining the state’s theory that his testimony in the county court was false. In the course of this testimony, the state brought out his information concerning the transaction between defendant, his eodefendants, and Elmer Hill, during which this took place:

“Q. Did Sam (referring to Sam Thomas, a codefendant) in substance, say this, that, T didn’t think Elmer Hill would do us that way,’ and did you, in return, say, ‘No; I didn’t either’? * * *”

Mr. Patton, counsel for defendant, here objected for the reason that the evidence sought to be elicited was not in the presence of the defendant, and Sam Thomas, the codefendant, was not on trial. The court said:

“Well; it is not objectionable on that ground, because I think he has sufficiently proven a concerted commission of the offense by these defendants.”

It has been said so often as to amount to a truism that a court should refrain from expressing any opinion in the presence of the jury as to the weight, effect, or credibility of the testimony, or upon any matter of fact which would indicate his opinion of the merits of the case or the guilt of accused. Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; Shepherd v. State, 17 Okla. Cr. 630, 192 P. 238; Cosby v. State, 30 Okla. Cr. 294, 236 P. 61; Viadock v. State, 30 Okla. Cr. 374, 236 P. 56.

The statement of the court, above set out, is clearly a statement that in the opinion of the court a concerted commission of the offense by the defendants had been sufficiently proven. Whether or not the defendant committed the offense was the question at issue. It was a question of fact for the jury to determine, uninfluenced by any opinion or statement of the trial judge. There was no attempt to strike out or withdraw the objectionable statement, even if the error could have been cured by so doing. The statement was prejudicial, requiring a reversal.

Other assignments of error are argued at some length, but, since the case must be reversed, we do not deem it necessary to discuss them, as they probably will not arise upon a subsequent trial.

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

DOYLE, P. J., and BAV|ENPQRT, J., concur.