text:
    ELMER SNIDER v. STATE.
    No. A-9719.
    Dec. 18, 1940.
    (108 P. 2d 552.)

      Ryan Kerr, of Oklahoma City, Carroll Moody, of Pauls Valley, and Raymond Barry, of Hollis, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam Lattimore, Asst. Atty. Gen., and Weldon Ferris, Co. Atty., of Altus, for defendant in error.
   JONES, J.

The defendant, Elmer Snider, was charged in the district court of Jackson county with the offense of forgery in the second degree, was tried, convicted by a jury, and the punishment left to the court. The court thereupon sentenced the defendant to' serve a term of five years’ imprisonment in the State Penitentiary, and the defendant has appealed to this court.

The information against the defendant reads as follows :

“I, Weldon Ferris, County Attorney of the County of Jackson and State of Oklahoma, duly authorized and empowered by law to inform of offenses committed and triable within said County and State, come now here and give the Court to understand and be informed, that at and within said County and State, on or about the 10th day of January, 1938, and anterior to- the filing of this information, Elmer Snider, then and there being, did then and there willfully, unlawfully, wrongfully, fraudulently and feloniously, sell, exchange and deliver to one Grady Blackstone, the owner and operator of the Blackstone Plumbing and Supply Store of Altus, Oklahoma, for the consideration of $18.65, a certain forged, fictitious and counterfeited check in words and figures as follows, to wit:
“Altus, Okla. 1-10-1938 No.............
“The Altus National Bank — Pay to
—J, H. Ready or Order $18.65
Eighteen and 65/100 Dollars.
“R. H. Reid, Spl.
“Endorsed: J. H. Ready
“Elmer Snider” “and that the said Elmer Snider then and there well knowing the said check, an engagement for the payment of money absolute, to be false and forged, to wit: that the said check which purported to hear the endorsement thereon of J. H. Ready and said endorsement to be the act and deed of one J. H. Ready, was false, forged and fictitious and the endorsement signature of the said J. H. Ready upon said check was not the true and genuine signature of the said J. H. Ready, but was false and forged as the said Elmer Snider then and there well knew, but the said Elmer Snider then and there knowingly, willfully, unlawfully, fraudulently and feloniously made such sale, exchange and delivery with the unlawful, fraudulent, and felonious intent, then and there on the part of him, the said Elmer Snider, to have said check uttered and passed and to' cheat and defraud the said Grady Blackstone and R. H. Redd, contrary to the form of the statute in such cases made and provided against the peace and dignity of the State of Oklahoma.”

The first proposition presented by the defendant is that the court erred in overruling the motion presented by the defendant for a directed verdict at the close of the state’s case. The defendant offered no evidence in his own behalf.

The facts as shown by the evidence introduced by the state, establish that the defendant, Elmer .Snider, was a resident of Hollis, in Harmon county, Okla.; that in 1936, he was appointed highway maintenance superintendent by the State Highway Commission, and that he continued to serve as such superintendent until his discharge in March of 1938; that as part of his duties as State Highway maintenance superintendent, he had charge of the division which included the state highways in Jackson, Harmon, and parts of Kiowa, Tillman, and Greer counties; that the office of the defendant during said time was at Altus, in Jackson county, where all of the records and files of the Highway Department for the district were located.

The manner of paying the employees of the said Highway Department in this said district, at that time, consisted of time cards being made out by the foremen of the various road crews or by Elmer Snider, which said time cards were brought into the district office; that at the end of the month, the clerk in the office made out a pay roll sheet from these said time cards whereon was reflected the name of each individual who was supposed to' have worked for the month, the number of hours he worked, the rate of pay he was to receive, and then the total. On the extreme right side of said pay roll was a space to be signed by each claimant or workman. On the bottom of each sheet of the pay roll a blank was provided whereby Elmer Snider, as maintenance superintendent, signed and certified under oath that he personally knew that each of the above claimants had worked, and should be paid the amount as designated, and also a place where, as a notary public, the said Elmer Snider certified that each of the above claimants had signed said pay roll and had subscribed to same in his presence, and he signed and attached his seal thereto. These pay rolls were then forwarded by the maintenance superintendent to the highway divisional office at Clinton, Okla., and from there they went to' the State Highway Department in Oklahoma City, then to the State Auditor and State Treasurer for payment by state warrants. There wa.s usually some 30 to 60 days’ delay from the time the pay rolls were made up until the state warrants thereon were issued and delivered to the workmen. That these state warrants would come back the same route the pay roll traveled by being sent to the divisional highway office, at Clinton, Okla., and then they were either delivered to the state maintenance superintendent, Elmer Snider, in person, when he was in Clinton, or would be mailed or forwarded to him to his office at Altus, Okla., that the superintendent then distributed the warrants to his workmen.

Many of the highway employees, wlu> disliked to wait the 30 or 60 days before securing their warrants, had adopted the practice, which was common over the state, of borrowing money on their work time during the current month that they had worked. That one R. H. Reid of Altus had a business of lending money to state highway employees by accepting assignments of their work time and discounting their claims 5 per cent. The employee in such case would issue an assignment in favor of the said R. H. Reid in the amount of his wages due and authorize the highway maintenance department to' deliver his check to the said R. H. Reid, and authorize Reid to endorse his warrant in the borrower’s name and cash the same. Reid kept a full set of books on these transactions. He would advance money based upon lists of employees’ names, which would either be signed by the defendant or by the clerk in the highway maintenance office, certifying that said person had actually worked and had money coming to him from the Highway Department. Reid would then issue his personal check, drawn on the Altus National Bank, on his special account therein, payable to the individual employee affected in the respective amount which he had borrowed from Reid on his work time. The defendant was acquainted with this condition, and on several occasions took these applications for loans to Reid’s office, and would get Reid’s personal check therefor:. At the end of the month, the state warrants of the borrowers would then be delivered to Reid, that he might be paid for the money which he advanced, plus the five per cent interest charge he made.

The basis for the particular charge out of which this information was filed was that R. H. Reid had made a check payable to one J. H. Ready, who was purportedly an employee of the Highway Department for the defendant’s district. The proof discloses that J. H. Ready worked under the defendant on the state highways from November of 1936 until July of 1937. That Ready had not worked for the Highway Department from the time of his discharge in July, 1937, to the time of the trial, and was not working in January of 1938, at which time the check was issued by R. H. Reid upon the representation that Ready had work time coming to him for that month.

Ready testified that he did not sign the January pay roll; did not work at that time under Elmer ¡Snider; did not know his name was on the pay roll for that said month until it was called to his attention later by an investigator. That he did not know that R. H. Reid’s check, payable to him, was issued, and did not endorse the same or receive any of the money therefrom.

Reid testified that he issued the check in question to J. H. Ready upon the representation that Ready was actually working for the State Highway Department in January of 1938, and that he had work time and money coming to him from the state; that he did not remember just who came to his office with a list of the employees to get the check.

The proof further shows that the defendant, Elmer Snider, had this particular check in his possession and delivered it to* the Blackstone Plumbing Company, of which Grady Blackstone was the owner, paid his account to that place and received some money which represented the difference between the Ready check and the account owed by Snider in the plumbing company. The check was paid by the Altus bank upon presentment by Blackstone.

The state introduced the testimony of a handwriting expert, who testified that he had made a comparison of the admitted handwriting of the defendant with the forged endorsement on the check in question and with the forged endorsement on the state highway pay roll for the month of January, 1938, and that in his opinion the defendant had written said forgeries.

Other evidence was introduced by the state, which proved that certain other persons had their names carried on the pay roll at times when they did not work; and that defendant had forged and signed their names to said pay roll.

It is the defendant’s contention in connection with his first assignment of error that it was not necessary for the county attorney to allege in his information any particular person who was cheated and defrauded by the defendant; 'but that when he had so alleged that a particular person or persons are cheated and defrauded, such statement in the information becomes a material allegation and must be proved by the state. If it is not proved, it constitutes a fatal variance between the allegations of the information and the proof. Attention is called to the testimony of Mrs. G-rady Blackstone and B. H. Reid, in which they stated that they had not lost anything in the transaction in connection with the J. H. Ready check.

The prosecution was based upon section 2125, O. S. 1931, 21 Okla. St. Ann. § 1577, which reads as follows:

“Every person who sells, exchanges or delivers for any consideration any forged or counterfeited promissory note, check, bill, draft, or other evidence of debt, or engagement for the payment of money absolutely, or upon any contingency, knowing the same to be forged or counterfeited, with intent to have the same uttered or passed, or whoi offers any such note or other instrument for sale, exchange or delivery for any consideration, with the like knowledge and intent, or who receives any such note or other instrument upon a sale, exchange or delivery for any consideration with the like knowledge and intent, is guilty of forgery in the second degree.”

A variance in a criminal case is an essential difference between the accusation and the proof; and a variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the same offense. Woods v. State, 22 Okla. Cr. 865, 211 P. 519; Brashears v. State, 38 Okla. Cr. 175, 259 P. 665; Tiger v. State, 54 Okla. Cr. 202, 16 P. 2d 889; Garner v. State, 51 Okla. Cr. 368, 1 P. 2d 787; Wells v. Territory, 1 Okla. Cr. 469, 98 P. 483.

This contention of the defendant is highly technical; and in the face of the proof which so conclusively establishes his guilt, it cannot be sustained.

The check, itself, was set forth at length in the information. The proof establishes that the defendant had actually uttered and passed the check, and forged the name of J. H. Ready thereon. It is true, as stated by the attorneys for the defendant, there was no necessity to set forth in the information the names of any particular persons alleged to have been cheated and defrauded. In this particular instance, the allegation of the names of R. H. Reid and Grady Blackstone is surplusage.

The statute under which this prosecution is based has been discussed at length in the recent cases of Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779, and L. Jones v. State, 69 Okla. Cr. 244, 101 P. 2d 860.

As was stated in the Boyer Case, supra:

“Where there is a present intent to defraud, the crime of forgery is complete, whether the expected advantage is to accrue from it to the defendant personally, or to another, or whether that purpose is successfully attained or not. * * * '
“An uttering of a forged instrument is the knowingly passing as true, or attempt to' pass as true, a forged instrument with intent to cheat and defraud.”

In the instant case, it was not necessary to prove that any particular person was defrauded. If the state’s proof is sufficient to show that the defendant uttered and passed a written instrument, knowing the same to be forged, with intent to defraud, the charge is proved, even though no' person is actually defrauded.

In the defendant’s brief in support of this proposition, he cites only one Oklahoma case, that of Bradley v. State, 63 Okla. Cr. 203, 74 P. 2d 126. This case will not sustain the contention made by the defendant herein. In the Bradley Case, the defendant admitted signing and negotiating the forged instrument, but interposed as a defense that he had lawful authority from the person whose name was forged tO' sign her name to the check. This court properly held that where such defense was interposed, the court should submit to the jury an instruction applicable to' the defense based upon the hypothesis that it is true. In that case, the finding of specific intent to cheat and defraud Nellie Bradley, the mother, of the defendant, was an essential element in the case.

But here, the defendant did not testify and offered no defense, and such special finding of intent to cheat and defraud a particular person is not necessary herein.

To be guilty under the statute involved herein, it is not necessary for the state to prove that anyone was defrauded. If the state proves passing of a forged instrument, the intent to- defraud in many instances may be inferred from the act of uttering such instrument. There may be instances when the forgery will be discovered and the defendant caught before the actual defrauding occurs.

Here the information alleges that the defendant intended to cheat and defraud Reid and Blackstone; and' the proof shows that they would have been actually defrauded if the investigator for the state had discovered the pay roll forgery before the warrant was cashed, as in that instance the payment on the warrant would have been stopped. •

The presumption of the intent to cheat and defraud Reid and Blackstone may arise from the fact of passing the instrument which the defendant had forged to- Blackstone. The defendant was evidently desirous of obtaining a pecuniary benefit to himself and did not care whether the State of Oklahoma, R. H. Reid, Grady Blackstone, J. H. Ready or all of them were ultimately the victims of his nefarious scheme.

As was stated in Underhill’s Criminal Evidence (4th Ed.) page 683, § 683, (Forgery) Fraudulent Intent and Guilty Knowledge:

“* * * It is not necessary to' show that it was the intention of the defendant to defraud any particular person. It is enough that a general intent to defraud is shown. The intent is always a question for the jury. It may be inferred by them from what the accused does and says and from all the facts and circumstances involved in the transaction.” See, also, 23 Am. Jur., Forgery, §§ 43, 44.

The defendant next contends that the court erred in the giving of instructions Nos. 3 and 4 over the objection and exception of the defendant. These instructions correctly state the law. The contention of the defendant relates back to the same proposition as contained in his first assignment of error, that is, that the court should have set forth in these two instructions that it was necessary that the state prove that the defendant defrauded Grady Blackstone or R. H. Reid. The statements which we have heretofore made in connection with the first proposition, likewise, dispose of the contention made in respect to the second assignment of error.

The defendant next contends that the court erred in admitting evidence which represents transactions of other alleged forgeries.

These exhibits show forgeries of names on pay rolls and state warrants made by the defendant at various times during the period the defendant was maintenance superintendent.

In Boyer v. State and L. Jones v. State, supra, a similar contention was made by the defendant therein. In those cases it was stated:

“As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that defendant is guilty of the particular offense charged. To this rule, however, there are well-settled exceptions. Those applicable to the question presented on the record in this case are as follows:
“(a) * * *
“(b) * * *
“(c) * * *
“(d) Evidence of other offenses is competent to prove the specific offense charged when it tends to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged.”

We hold that the court did not err in admitting this evidence for the purpose of showing the intent, scheme, and plan of the defendant in connection with the commission of the offense charged.

The defendant next contends that the court erred in giving instruction No. 6%. The record shows the following :

“The Court: I will give you this further instruction, Gentlemen: ‘If you find the defendant guilty of forgery in the second degree, beyond a reasonable doubt, as herein charged, and are unable to agree on the punishment therefor, then simply say by your verdict that you find the defendant guilty of forgery in the second degree, if such be the case, and that you leave the punishment to be fixed by the court.’
“The Court: I will also give you a form of verdict to meet that instruction.”
“Thereupon, the jury retired to further consider its verdict.”
“By the Court: Show that after the jury had spent some hours of deliberation they stated to the court that they had reached a verdict but were unable to' agree on the punishment and asked the court if they could return a verdict and leave the punishment to be fixed by the court.
“To- which the defendant objected and demanded that the punishment in the case be left to the jury, and that they be required to- fix the punishment, which was by the court refused, and to which the defendant excepted.
“Thereupon, the court gave the jury instruction No. 6%. To which the defendant objected and the objection was thereupon overruled. And to which action of the court in overruling the objection the defendant excepts.”

Section 3107, O. S. 1931, 22 Okla. St. Ann. § 926, provides as follows:

“In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

Section 3108, O. S. 1931, 22 Okla. St. Ann. § 927, further provides:

“Where the jury find a verdict of guilty, and fail to agree on the punishment to he inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.”

Instruction No. 5 instructed the jury that it was their duty to assess the punishment of the defendant, if they found him guilty, within the limits as set out in instruction No. 2. This instruction sufficiently complies with section 3107, O. S. 1931, 22 Okla. St. Ann. § 926. When the jury asked for an additional instruction upon the matter, the court correctly gave them instruction No. 6%, supra.

In the case of Dunn v. State, 60 Okla. Cr. 201, 63 P. 2d 772, this court upheld the sufficiency of an instruction, in substance, very similar to the one in the case at bar.

Finally, the defendant contends that the judgment and sentence of the court is excessive. As has been heretofore set forth, the jury did not fix the punishment, but left the same to the court. The district court heard the testimony of the witnesses, and is familiar with the situation involved in this case and the attitude of the county attorney towards further prosecution on the other alleged forgeries. We are quite certain the court took all of these factors into consideration in pronouncing the judgment and sentence against the defendant. Under these circumstances, we do not feel that the trial court abused his discretion. The facts would have justified the maximum punishment, provided, of course, that the county attorney does not contemplate continuing a prosecution on each of the other alleged forgeries. We do not feel that the defendant should have five years for each forgery by him committed, as the total number of years of imprisonment then assessed against the defendant probably would be excessive, even though the amount of money involved amounts to> a considerable sum. The uncontradicted proof is sufficient to sustain the punishment imposed herein.

From a careful consideration of the whole record, we are of the opinion that the defendant has had that fair and impartial trial which has been guaranteed by the statutes and Constitution of the State of Oklahoma, and that there are no errors in the record of sufficient importance to justify a reversal of this case.

For that reason, the judgment of the district court of Jackson county is hereby affirmed.

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


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    ELMER YOUNG v. STATE.
    No. A-9745.
    Jan. 7, 1941.
    (108 P. 2d 1028.)
    Glen O. Morris, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., and Phil E. Daugherty, Asst. Co. Atty., Oklahoma County, of Oklahoma City, for the State.
   BAREFOOT, J.

Defendant Elmer Young was charged in the court of common pleas of Oklahoma county with the crime of illegally transporting intoxicating liquor. A jury was waived, and the defendant was tried before the court, found guilty, and his punishment assessed at a fine of $50 and confinement in the county jail for a period of 30 days, and he has appealed.

For reversal of this judgment it is contended that the court erred in failing to sustain a motion of defendant to suppress the evidence offered for the reason that no search warrant was had by the officer arresting the defendant. It is contended by the state that under the evidence it was not necessary for the officer to have a search warrant for the reason that a crime was committed in his presence, and that the arrest was justifiable without the necessity of having a search warrant.

The evidence revealed the defendant was arrested on East Twenty-Third street in Oklahoma City on the 8th day of April, 1938. On that date a snowstorm was raging, and there were heavy drifts of snow on Twenty-Third street. A truck had stuck in a snowbank, and many cars had been stopped, among them the automobile of the defendant. He, with a number of other persons, got out of his car and went up to where the truck was stuck and assisted them in pushing, it through the snowbank. A short distance behind the defendant’s car was the automobile of the sheriff of Oklahoma county and several of his deputies who also got out of their car and started to where the truck Avas stuck. They passed the car of defendant, and through the window of the car saw a number of packages of whisky Avrapped in brown paper lying on the front seat of the automobile, and the back seat was piled almost tO‘ the top of the car. The cushion had been removed. When defendant returned to the car he was arrested and the whisky was taken possession of by the officers. Defendant told them be bad sold tbe liquor to a Mr. Morgan and was delivering tbe same.

On tbe motion to suppress tbe evidence, tbe defendant testified, but did not take the witness stand in tbe trial of tbe case before tbe court. Tbe officers testified to tbe facts as above stated.

In many recent decisions of this court we have held, under similar circumstances that an officer was justified in searching tbe automobile of a defendant without tbe necessity of a search warrant where be could observe tbe liquor from tbe windows of tbe car. The officers were upon the public highway where they bad a right to be. They saw the car of tbe defendant with tbe packages of whisky therein. Their experience as officers was such as. caused them to know it was whisky.

It was revealed that there was in tbe car nine quarts, 96 half-pints, and 276 pints of assorted liquor. Tbe evidence was certain that it was being illegally conveyed by tbe defendant. Tbe punishment assessed by tbe court was tbe minimum provided by law. He has no. cause to. complain, and tbe court did not err in overruling bis motion to suppress. Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Arnold v. State, 70 Okla. Cr. 203, 105 P. 2d 556; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Skinner v. State, 65 Okla. Cr. 371, 87 P. 2d 341.

Tbe judgment of tbe court of common pleas of Oklahoma county is therefore affirmed.

DOYLE, P. J., and JONES, J., concur.


author: JONES, J.

text:
    JACK FRANKLIN v. STATE.
    No. A-9744.
    Jan. 7, 1941.
    (109 P. 2d 239.)
    Glen 0. Morris; of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jack Franklin, was by information charged on February 24, 1939, with the offense of unlawful possession of 15 pints of liquors and wines, was tried without a jury, convicted and sentenced to' serve a term of 30 days in the county jail and pay a fine of $50 and costs, from which judgment and sentence defendant has appealed.

The information charges the defendant with unlawful possession of intoxicating liquor on February 18, 1939. The liquor introduced and identified by the state’s witnesses was marked as haying been received and stored on February 17, 1939. This liquor was received in evidence without objection by defendant. Such question raised for the first time on appeal cannot be considered by this court.

It was held in Ballew v. State, 55 Okla. Cr. 247, 28 P. 2d 993:

“Only those questions which were raised in the trial court and an adverse ruling thereon, exceptions taken, and then incorporated in a motion for new trial, and assigned as error in the petition in error, will be considered on ap•peal, except that jurisdictional questions may be raised at any step of the case.”'

In Beaubein v. State, 13 Okla. Cr. 440, 165 P. 213, this court stated:

“Where the record does not show that counsel for appellant objected or excepted to the admission of the evidence complained of, his assignment of error thereon is not reviewable, because not properly preserved.”

The only assignments of error that require the consideration of this court are the questions as to' whether the evidence of the state was legally obtained; and if so, is the evidence sufficient to support the judgment and sentence?

The testimony of Officer Kolb for the state is, in substance, that he went up to a car parked on the driveway of a filling station. One door of the car was standing open, and he could see through the open door several bottles of whisky, which were in a compartment behind the seat. The bottles were in a package that had been opened. He asked to whom the whisky belonged. The defendant answered that it was his whisky. The officer did not have a search warrant.

The defendant testified that the package of whisky had been opened, but that the remaining bottles had been rewrapped in the package. The bottles were not visible, and the package could not be seen from the outside of the car. The officer stuck his head in the car, asked whose whisky it was, and then unwrapped the package containing the whisky.

Under the testimony of Officer Kolb, the evidence of the whisky seized is admissible.

This court stated in Sands v. State, 36 Okla. Cr. 55, 252 P. 72:

“The mere looking into an automobile and there seeing intoxicating liquor, which is not concealed, and which requires no search to discover, is not an illegal search within the meaning of the law and Constitution making illegal a search without a valid search warrant.”

It was held in Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544, 545:

“The constitutional provision against unreasonable searches and seizures does not preclude the making of a seizure without a warrant previously procured, of intoxicating liquor, where there is no' need of a search for the liquor because the liquor is fully disclosed to' the eye.”

See, also, Matthews v. State, 67 Okla. Cr. 208, 93 P. 2d 549.

Since there is a direct conflict in the testimony, it was the province óf the trial court to decide the question of fact.

In the recent case of Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185, 186, it was held:

“Where a jury is waived and a case tried to the court, his finding as to the guilt of the defendant will not be reversed where there is any competent evidence in the record, together with the reasonable inferences and deductions to be drawn therefrom, supporting the court’s finding.”

Finding no> error in the record, the case is accordingly affirmed.

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


text:
    BUDDIE BARNETT v. STATE.
    No. A-9742.
    Jan. 7, 1941.
    (109 P. 2d 243.)
    James W. Flinn, of Oklahoma City, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Buddie Barnett, was by information charged on April 15, 1938, in the common pleas court of Oklahoma county with the offense of unlawful possession of intoxicating liquor, tried, convicted, and sentenced to serve a term of 30 days in the county jail and pay a fine of f 50 and costs, from which judgment and sentence he has appealed to- this court.

The defendant assigns as error the court’s refusal to sustain his motion to suppress the evidence as having been illegally obtained.

Officer Kolb testified that he saw the defendant twice the night of his arrest, once on Ninth street and later at the police station. The officer searched, without a search warrant, a car which defendant had rented and seized a quantity of whisky.

Defendant stated that he had the whisky locked in the turtleback of the car.

“I was Avalking down the street and a couple of detectives stopped me doAvn there and started talking to' me and took me to the police station. They got me down to the police station, and they took all the keys and everything away from me and put me on up in the investigation cell, and after a Avhile Mr. Kolb came up there and called me out and said he had found my whisky up there, and he shoAved me the keys. I wouldn’t claim it, and he showed me the keys, and then I told them, yes, that was mine.”

Defendant Avas never served with a warrant.

In the case of McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006, the officers were searching certain property under a valid warrant when the defendant drove upon the premises in an automobile. The officers unlawfully searched the defendant and found nothing incriminating; however, the defendant confessed that he had a load of liquor. The court held that the statement of the defendant, under the circumstances, was sufficient to constitute the commission of a misdemeanor in the presence of the officers and to justify an arrest and search.

In Gragg v. State, 66 Okla. Cr. 163, 90 P. 2d 454, 455, the defendant upon entering a public building, was detained on suspicion by officers without a warrant. He admitted having a pint of whisky, which he turned over to them. This court held that error was committed by the trial court in refusing to sustain defendant’s motion to suppress the evidence and discharge the defendant. It was stated:

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

In Leary v. State, 61 Okla. Cr. 298, 67 P. 2d 972, 973, this court held:

“It has been repeatedly held by this court that, where the offense is not a felony, an officer cannot arrest without a warrant unless the offense was committed or attempted in his presence, and that, where the officer does not know of the act constituting the offense, it is not committed in his presence.” Wallace v. State, 49 Okla. Cr. 281, 294 P. 198; Coffey v. State, 38 Okla. Cr. 91, 258 P. 923; Whitford v. State, 35 Okla. Cr. 22, 247 P. 424; Graham v. State, 31 Okla. Cr. 125, 237 P. 462.

It is the settled doctrine of this state that, in order to make an arrest and seizure without a warrant under section 2640, O. S. 1931, 37 Okla. St. Ann. § 89, there must be a violation of the prohibitory liquor laws committed in the presence of the arresting officer, and a conviction must be reversed where evidence procured by an officer of the court by means of an unauthorized search and seizure is admitted over the objections of the defendant. Childress v. State, 31 Okla. Cr. 208, 238 P. 218; Leary v. State, supra.

This court said in Keith v. State, 30 Okla. Cr. 168, 235 P. 631, 632:

“It cannot be said, that the criminal offense is committed in the presence of an officer, unless the acts constituting the offense become known to him at the time they are committed, through his sense of sight or through other senses; although a person may actually be committing a criminal offense, it is not committed in the presence of an officer within the meaning of the statute, if the officer does not know it. And where the officer could not observe and become cognizant of the act constituting the offense by the use of his senses, it could not be committed in his presence so as to authorize an arrest without a warrant.”

As the offense of possession of intoxicating liquor charged against the defendant is punishable only by a fine and imprisonment in the county jail and, therefore, not a felony under our statute, section 2627, O. S. 1931, 37 Okla. St. Ann. § 31, the officers could not lawfully arrest him therefor without a warrant, since the offense was not committed or attempted in their presence so as to authorize an arrest without a warrant.

It was stated in Wallace v. State, 49 Okla. Cr. 281, 294 P. 198:

“In a case of a lawful arrest, the arresting officer may search the person and immediate surroundings of the person arrested and may seize anything found upon his person or in his control which is unlawful for him to have, and anything so taken may be used as evidence against him at the trial. But, where the arrest is unlawful, the incidental search in connection therewith is likewise unlawful, and evidence secured by virtue of such unlawful arrest is not admissible.”

Evidence procured by an illegal search and seizure, where timely objection is made, should be excluded. Parker v. State, 85 Okla, Cr. 196, 249 P. 432; Poster v. State, 25 Okla. Cr. 36, 218 P. 898.

This court held in Crossman v. State, 28 Okla. Cr. 198, 230 P. 291, 292:

“An officer has no more right to- search the person of one suspected of the commission of a misdemeanor without a search warrant than he has to- search his house.” Klein v. State, 26 Okla. Cr. 173, 223 P. 201; Gore v. State, 24 Okla. Cr. 394, 218 P. 545.

In Dean v. State, 37 Okla. Cr. 396, 258 P. 812, 813, this court declared:

“A search which is unlawful when it begins is not made lawful by the discovery that an offense has been committed.”

In Crossman v. State, supra, this court stated:

“The grave effects of promiscuous arrests and seizures on suspicion in misdemeanor cases would be productive of more evil than could be offset by the go-o-d flowing, from the occasional apprehension of a law violator by such methods-. If this were permitted, innocent persons would be subject to- arbitrary arrest, search and seizure at any time and place-; a condition not calculated to- enhance the general welfare of the community.
“In this connection it should be remembered that a peace officer may arrest one on a well-founded suspicion for the commission of a felony, where a felony has in fact been committed, and the person has reasonable grounds to believe that the person arrested was the perpetrator. Officers should not lose sight of this distinction between the right to- make arrests, in felony and misdemeanor cases without a warrant.”

The writer of this opinion is not at all in sympathy with the defendant in this case. Under his own testimony, he is a violator of the law, and as such should be punished. However, the writers of both the State and United States Constitutions have inserted therein strict provisions against unlawful searches and seizures. The decisions of this court and the decisions of the federal courts have been unanimous in holding searches made under circumstances such as have been revealed in this case to be unlawful. No court, without violating his oath of office, could write an opinion holding other than that the search was unlawful in this case, in view of these constitutional provisions. This has been the holding of this court since statehood; and the peace officers of Oklahoma should be thoroughly familiar with this law. It would have been a simple matter for the officers herein to have procured a search warrant for the automobile which the defendant was using in this unlawful trade. When officers deliberately ignore the law and decisions of this court and make no effort to obtain a search warrant to make a search of property where they believe whisky is stored, it appears to this court that they are more interested in securing the whisky than in trying to punish the violator.

For the reasons hereinabove set forth, it is evident that the trial court committed error in not sustaining the defendant’s motion to suppress the evidence.

This cause is accordingly reversed, and the defendant discharged.

DOYLE, P. J., and BABEFOOT, J., concur.


author: PER CURIAM.

text:
    Ex parte JOE CEPHUS GRAY.
    No. A-9987.
    Jan. 15, 1941.
    (109 P. 2d 513.)
   PER CURIAM.

The petitioner, now confined in the state penitentiary, mailed to the clerk of this court his verified petition alleging that he is unlawfully imprisoned and restrained of his liberty by the warden, Jess F. Dunn. The Attorney General has filed a demurrer to the petition on the ground that it does not state facts sufficient to entitle petitioner to the relief prayed for.

It appears that the petition was filed on January 9, 1941, and merely alleges:

“The said Joe Cephus Gray has been illegally and unlawfully tried, and has been denied and deprived of his constitutional and lawful rights, given him by the laws and the Constitution of the State of Oklahoma, to wit:
“The said Joe Cephus Gray was tried in open district court by a jury without an attorney to defend him, and the court in which he was being held did refuse to appoint an attorney to defend him.”

The petition is silent as to1 the court wherein petitioner was tried or the crime of which he was convicted.

Where the facts stated in a petition for a writ of habeas corpus will not warrant petitioner’s discharge, the writ will be denied.

Demurrer to the petition sustained, and cause dismissed.


text:
    EARL KILPATRICK v. STATE.
    No. A-9758.
    Jan. 15, 1941.
    (109 P. 2d 514.)
    A. W. Billings, of Woodward, and Mauntel & Spell-man, of Alva, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Plaintiff in error, Earl Kilpatrick, was convicted in tbe district court of Woodward county, Okla., of tbe crime of rape, and in accordance with tbe verdict of tbe jury was sentenced to serve a term of 15 years in tbe State Penitentiary.

From tbe judgment rendered April 13, 1939, an appeal was perfected by filing in this court on October 14, 1939, a petition in error with case-made.

Tbe Attorney General bas filed a motion to dismiss tbe appeal, wbicb reads as follows:

“Comes- now tbe defendant in error and shows to this Honorable Court that on the 13th day of April, 1939, this plaintiff in error was, by the district court and the judge thereof of Woodward county, Okla.., sentenced to serve a term of 15 years in the penitentiary at McAlester, Okla. That thereafter, and while out on bond, this defendant left the jurisdiction of this state and went to Hutchinson county, Tex., and was there charged with and arrested for the crime of rape committed upon one Jean Hinds, and the same was committed on the 12th day of June, 1939, and that the said Earl Kilpatrick was in the State of Texas at the time without leave of this Court and in violation of the terms of the appeal bond. These facts are shown by affidavit of the ¡Sheriff and County Attorney of Hutchinson County, Texas, which are hereto' attached, marked ‘Exhibit A’ and made a part hereof. See the case of Evinger v. State, 35 Okla. Cr. 12, 247 P. 416, and Terrell v. State, 24 Okla. Cr. 301, 217 P. 900.
“Wherefore, premises considered, defendant in error moves that said appeal herein pending in this court be dismissed.”'

The affidavit attached to- the state’s motion to' dismiss the appeal is as follows:

“Before me, the undersigned authority on this day personally appeared Vern Underhill, sheriff of Hutchinson county, Tex., and K. H. Dally, county attorney of Hutchinson county, Tex., each to1 me personally known who' being by me first duly sworn each on oath deposes and says:
“That in their respective capacities as officers of Hutchinson county, Tex., they as such officers arrested the said Earl Kilpatrick, on or about the 12th day of June, 1939, upon a charge of rape; that the said Earl Kilpatrick is at the present time under indictment upon said charge of rape alleged to have been committed upon one Jean Hinds, on or about the said 12th day of June, 1939; that in our investigation of the offense and the character of the defendant we learned that he was under sentence for the crime of rape committed in Woodward county, Okla., on or about the 13th day of March, 1939, said sentence having been pronounced, in Oklahoma on or about the 15th day of April, 1939, prior to his commission of the offense for which he is under indictment in our County.
“(Signed) Vern Underhill “H. H. Dally
“Subscribed and sworn to before me on this the 19th day of October, 1940.
“(Signed) S. M. Watson “Notary Public,
“Hutchinson County, Texas.”

Upon the hearing of the above motion, the attorneys for the defendant concede the truthfulness of the facts set forth therein, but ask this court as a matter within its discretion to deny the motion to dismiss and'to determine the ease on its merits:

In Ravenscraft v. State, 12 Okla. Cr. 283, 155 P. 198, this court held:

“When a, person is convicted of crime and perfects an appeal to this court, he is not entitled to give a super-sedeas bond and leave the jurisdiction without proper orders permitting him to do so.”

Under section 3196, O. S. 1931; Laws 1935, p. 20, section 1, 22 Okla. St. Ann. § 1058, it is a condition of defendant’s right to appeal that a bond be given as provided in said section, and that the judgment of conviction shall not be superseded except upon the conditions named therein. Therefore, where a supersedeas bond is given, it is strictly upon the condition that the plaintiff in error shall fully observe the conditions named in said bond, and where it is shown, as in this case, that the defendant, after perfecting his appeal, without permission or proper order of the court first obtained, left the jurisdiction of the court, thus voluntarily violating one of the conditions of his supersedeas bond, he thereby waived the right that was given him to have the judgment of conviction superseded, and it then became discretionary with this court to proceed to a determination of the cause on its merits or to dismiss said appeal for that reason. Bryce v. State, 14 Okla. Cr. 456, 172 P. 976; Kincaid v. State, 30 Okla. Cr. 290, 237 P. 131.

In Bryce v. State, supra [14 Okla. Cr. 456, 172 P. 977], this court said:

“Persons convicted of crime in courts of record within this state have a right to' appeal to' this court, but such appeals must be taken in the manner and under the conditions provided by law. The right to' supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to' roam at large pending such appeal * * Evinger v. State, 35 Okla. Cr. 12, 247 P. 416.

While there is no' express provision of the statute authorizing the dismissal of the appeal on the grounds stated, yet, in the absence of a statute to the contrary, it has been held to' be a matter within the discretion of the court whether, under the facts and circumstances admitted, we will consider and determine the appeal. When the defendant left the state he was in the attitude of a fugitive from justice, and thereby waived the right to- have his conviction reviewed. We do not think it would sub-serve the ends of justice to- permit a person convicted of crime, enlarged on bond pending the determination of his appeal, to' violate the conditions of his bond with impunity. Augusta Earl Herring, alias Earl Herron, alias George Wilson v. State, 71 Okla. Cr. 69, 108 P. 2d 193; Taylor v. State, 27 Okla. Cr. 356, 227 P. 905; Burden v. State, 24 Okla. Cr. 60, 215 P. 1076; Webster v. State, 18 Okla. Cr. 183, 193 P. 431; Bryce v. State, 14 Okla. Cr. 456, 172 P. 976.

Upon the proof supporting the motion to' dismiss, we are of the opinion that defendant has waived the right to have his, appeal in this case considered and determined. The appeal herein is therefore dismissed.

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


text:
    CHARLES KILPATRICK v. STATE.
    No. A-9847.
    Jan. 15, 1941.
    (109 P. 2d 516.)

      A. W. Billings, of Woodward, and Mauntel & Spell-man, of Alva, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

On March 27,1939, the defendant, Charles Kilpatrick, was charged in the district court of Woodward county with the crime of rape upon Glenna Endsley on March 13, 1939, was tried, convicted, and sentenced to serve a term of 15 years in the State Penitentiary, from which judgment and sentence he appeals to this court.

The state introduced testimony that the defendant through threats and force overcame the resistance of the prosecutrix and twice had sexual intercourse with her against her will during the same evening. The prose-cutrix testified that these two acts were committed while the defendant, his brother, Earl Kilpatrick, the prosecu-trix, another girl whom Earl Kilpatrick is alleged to have raped, and three other younger people were out riding in a coupe belonging to the Kilpatrick brothers. The acts of intercourse are claimed to1 have happened on two' occasions when the car stopped and the parties took a walk away from the car. The state refused to elect, and was not required to elect by the trial court, which of the two offenses it would rely upon for a conviction in this case.

The testimony of the defendant was that he propositioned the prosecutrix and that she refused to grant his request unless he would use a contraceptive. He denies that they lay together at that time. However, later that same evening he again expressed his desire to her, and she acceded so readily as to take off her pants herself so that he could “do it right.”

The defendant contends that the trial court committed reversible error in refusing to' require the state to1 elect upon which of the two' alleged offenses it would rely for conviction, and in refusing to give certain instructions to the jury.

This court held in Smith v. State, 20 Okla. Cr. 124, 201 P. 663:

“Rape is not a continuous offense. On the evidence in this case every act of sexual intercourse testified to by the prosecutrix constituted a distinct crime, and the trial court should either require the prosecution to elect upon which of such acts it would rely for a conviction, or else the court would have treated the act of which the state first introduced evidence to- tend in any degree to prove the offense as an election and should have given a specific instruction limiting the jury to a consideration of this particular act as a basis for a conviction.” Timmons v. State, 44 Okla. Cr. 200, 280 P. 314.

In Cooper v. State, 31 Okla. Cr. 217, 238 P. 503, 504, this court stated :

“The holdings of this court * * * may be summarized by saying that a person may be tried for and convicted for only one offense at a time; that rape is not a continuous offense, and while in a. trial upon a charge for rape proof of other acts of intercourse may be proven for the purpose of corroboration, and as showing the intimate relation between the parties, a conviction must be based on one act. Here, the defendant was not tried with reference to any particular act, the prosecution was not required to elect any particular act, and the court did not treat the first act proven as an election. * * * The error is reversible.” Moorehead v. State, 38 Okla. Cr. 328, 261 P. 231.

This court said in Williams v. State, 40 Okla. Cr. 303, 268 P. 329:

“It is not essential that such election be made until the close of the evidence, and, if not made by the prosecution, the court should by instruction limit the jury to' a consideration of one particular act as a. basis for a conviction and should limit proof of other acts as corroboration, or as showing the relation of the parties.”

In the companion case of Earl Kilpatrick v. State, 71 Okla. Cr. 125, 109 P. 2d 514, this day decided, the trial court sustained the motion of the defendant to require the prosecution to elect upon which of several acts of sexual intercourse indulged in the same night they were relying for conviction. That case was heard before the instant case; but in the trial of the case at bar, which was heard by a different trial judge, the judge refused to require the state to elect upon which offense it was relying for conviction. Even though both of the offenses testified to in this case were committed the same night, they were separate and distinct offenses; and the jury in considering this case and returning their verdict might have been divided in their opinion as to when the offense occurred. Some of them might have thought the rape was committed the first time the proposition was made, as testified by the prosecutrix, and that all acts of intercourse had subsequent to that time were not rape for the reason that the prosecutrix consented to the subsequent acts. And some of them might have believed the statement of the defendant ■that no intercourse was had at the time of the alleged first offense, but that rape was committed thereafter. The trial court was evidently of the opinion that all of the things that transpired constituted but one offense because the various acts were all committed the same night and within a comparatively short space of time, the total elapsed time according to the testimony of the witnesses being about four hours from the time of the meeting of the defendant and his brother with the prosecutrix and her companion to the time the girls were returned to their homes.

The defendant asked for an instruction submitting the issue of the included offense of assault and battery, which was refused and exception allowed; and the instructions given by the court did not submit the issue of the included offense of assault with intent to commit a felony as defined by section 1869, C. S. 1931, 21 Okla. St. Ann. § 681.

Our Code of Criminal Procedure provides that the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense. Section 3097, O. S. 1931, 22 Okla. St. Ann. § 916.

The defendant was charged with the offense of rape in the first degree; and the information alleges that the defendant through threats and by force that overcame the resistance of the prosecutrix did have sexual intercourse with her. Under the statute, the trial court should submit the case to the jury for consideration upon every degree of assault which the evidence in any reasonable view of it suggests, and the instructions given must be applicable to the testimony introduced on the trial. The court’s instructions were proper in view of the evidence introduced by the state, but did not take into consideration the theory of the defense completely enough to assure the defendant a fair trial.

In Tayrien v. State, 33 Okla. Cr. 231, 242 P. 1061, 1063, this court held:

“The rule is well settled that where there is evidence tending to prove the commission of an offense which is necessarily included in the offense charged, it is error for the trial court to refuse to instruct the jury of their right to convict of the lesser offense.” Clark v. State, 6 Okla. Cr. 100, 116 P. 200; Stiles v. State, 53 Okla. Cr. 187, 9 P. 2d 58.

Under the testimony of the defendant, he did not have intercourse with the prosecutrix at the first stop because they thought somebody was coming, and they all got scared! and ran back to the car. However, he admits soliciting the prosecutrix to have intercourse at that time, and the jury might reasonably have concluded from his evidence that he assaulted the prosecutrix, but stopped short of rape.

Upon the record and consideration of all the evidence, we are of the opinion that the court erred in refusing to submit the issue of assault and battery and in restricting the verdict to that of guilty or not guilty of the crime of rape.

In view of another trial, we are of the opinion that under the evidence in this, case, the court should submit the offense of assault and battery and, also-, the offense of assault with intent to- commit rape.

The judgment of the district court of Woodward county is reversed, and the cause remanded for further proceedings in accordance with this opinion.

The warden of the State Penitentiary will surrender the defendant, Charles Kilpatrick, to the sheriff of Woodward county to be returned to said county and held in custody until he shall be discharged or as otherwise ordered according to law.

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


text:
    Ex parte ROBERT CINDLE.
    No. A-9913.
    Jan. 15, 1941.
    (109 P. 2d 519.)
    W. S. Agent, of Sallisaw, for petitioner.
    Mac Q. Williamson, Atty. Gen., and. Sam H. Latt-i-more, Asst. Atty. Gen., for the State.
   PER CURIAM.

Upon petition filed in behalf of Robert Cindle for writ of habeas corpus, the writ issued, directed to Jess F. Dunn, warden of the State Penitentiary, returnable on the 15th day of November, 1940, at which time a hearing was had and the cause submitted. Counsel for petitioner was given thirty days in which to file a brief in support of his application.

It appears from the application and the answer thereto that an information was filed in the district court of Okmulgee county on May 14, 193'5. Petitioner was taken before the court where he was then and there duly arraigned upon the information charging the crime of robbery with firearms. He thereupon entered a plea of guilty to the information and was by the court sentenced to be confined to the State Reformatory at Granite, Okla., to serve a term of 25 years, for the crime charged in the information, and was received at said state prison on May 16, 1935, and was transferred and received by the said Oklahoma State Prison at McAlester on April 26, 1936.

It has now been called to the attention of the court that petitioner on December 16,1940, was granted a parole by the Governor of the state, which has been duly accepted by him.

It is our opinion that when the pardoning power extends clemency and the same is accepted, pending the determination of an application for a writ of habeas corpus, to be directed to the warden of the State Penitentiary, that petitioner by accepting the same has thereby abandoned his application for a writ of habeas corpus and waives the right to have it determined, and where a parole is granted and accepted by the petitioner, pending the determination of his application, the cause will be dismissed.

It is therefore adjudged and ordered that petitioner’s application for a writ of habeas corpus be, and the same is, hereby dismissed.


author: BAREFOOT, P. J.

text:
    KENNETH F. SLEEPER v. STATE.
    No. A-9763.
    Jan. 15, 1941.
    (109 P. 2d 520.)

      Adams & Barnes, of Guthrie, for defendant.
    Mac Q. Williamson, Atty. Gen., and Hugh J. Adams, Co. Atty., of Guthrie, for the State.
   BAREFOOT, P. J.

Defendant was charged in the county court of Logan county with the crime of unlawfully transporting “certain intoxicating liquor, to wit: four hundred and twenty-six (426) pints of whisky,” was tried, convicted and sentenced by the court to pay a fine of $250 and serve 90 days in the county jail, and has appealed.

For reversal of this case it is contended:

(1) That the court erred in overruling the motion of the defendant to suppress the evidence.

(2) That the court erred in overruling the demurrer of the defendant to the evidence, and his motion for a directed verdict of acquittal.

(3) That the court erred in admitting certain evidence over the objection of the defendant.

(4) That there Avas a fatal variance between proof and the allegations of the information.

(5) That the court erred in giving instruction No. 5.

(6) That the court erred in overruling defendant’s motion for new trial.

The first, second, third and sixth assignments of error may he considered together.

The facts in this case were, that defendant was apprehended by Glen Farquharson, the sheriff of Logan county, Andrew Jelsma, undersheriff, and W. T. Smith, field deputy, on the night of May 26, 1939, in the possession of an automobile loaded with whisky. There were two bottles of liquor in the front seat and three exposed quarts of liquor on top of the packages of liquor near the back seat, and 426 pints of tax-paid liquor between the front and back seat of the car. At the time of the arrest of the defendant, the sheriff and his deputies were traveling down U. ¡S. Highway 77 a mile south of Guthrie. They observed a car with lights burning driving toward the highway. The lights on the car were suddenly extinguished. The sheriff drove his car directly in front of the car of the defendant, which was in a driveway a few feet off the public highway. The undersheriff and deputy both walked to the car of the defendant, wlm had turned on his lights. A part of the evidence of field deputy Smith was as follows :

“Q. The other car stopped and turned its lights on? A. Yes. Q. What did you do at that time? A. Got out of the sheriff’s car and went over to this other car. * * Q. What did you do at that time, or say? A. Well, I walked up to the window and saw the liquor in there. Q. Did you know who was sitting in the car yet? A. No. Q. Just walked up to the window and saw the liquor in there? A. Yes. * * * Q. Returning to the liquor you saw in the front seat, that was put up in the usual packages of six bottles was it? A. Yes. Q. I understand you to say that part of the wrapping on that package was .torn, exposing two bottles of it? A. Yes. Q. What could you see then? A. Saw the necks of two' bottles and the seals. Q. And what did you see in the back seat? A. Well there was packages back there and three quart bottles that wasn’t in a package laying loose on top. Q. What brand were those three quarts? A. Hiram Walker. Q. Put up in quarts? A. Yes. Q. Now, I understand your testimony to be that you saw three quart bottles of liquor lying there in the back seat and not in packages, then you saw the necks of two bottles and their seals in this torn package in the front seat? A. Yes. Q. Had you said anything to the defendant? A. No: Q. What did you do at that time? A. Opened the door and got in with him and told him we would have to go to town. Q. Now, in addition to the liquor which you plainly saw, did he also have liquor in packages? A. Yes. Q. Where was that placed? A. Most of it was in between the two seats from the floor on up. Q. How high were the packag.es stacked in the back between the seats? A. About level with the top. Q. Any whisky in the back seat? A. Not on the cushion. Q. The three quarts of Hiram Walker you saw were placed on top of the packages that were stacked on the floor in the back between the front and back seats? A. Yes. Q. Was there any one in the car other than Kenneth Sleeper? A. No. Q. There was light enough that you could plainly see the whisky bottles in both the front and back of the car? A. Yes. Q. Did the other officers approach the car at the same time? A. Just about. Q. Did they say anything to the defendant, or tell him he was under arrest before you got there? A. No: Q. You were the first one to get into the automobile? A. I believe so.”

The undersheriff, Mr. Jelsma, testified to the same facts of the field deputy, and he further testified:

“Q. Did you see any whisky? A. I did. Q. What did you see? A. I saw whisky on the right-hand side in the seat and some whisky between the front seat and the back on the floor. Q. Are you familiar with the appearance of whisky? A. Yes. Q. Can you testify positively that you saw whisky when you approached that car? A. Yes, I can. Q. What kind did you see? A. Some loose quart bottles. Q. Where were those loose quart bottles? A. Protruding up between the front and the back seat. Q. Was that covered by anything? A. It had a cover laying up on top but it wasn’t spread out. Q. Were these three quarts under the cover or were they plain to be seen? A. Plain to be seen. Q. See them as you approached the car? A. Yes. Q. See any other whisky? A. Saw a package open on the front seat, all I could see of that was the neck and caps of a couple of bottles. Q. Were you familiar with the appearance of those wrappers on the packages? A. Yes. Q. You knew that to< be such as the wrappers around package whisky bottles. A. Yes. Q. You also' saw those packages as you approached the car? A. I did. Q. Before that they had informed the defendant he was under arrest? A. No. Bill was talking to him, I didn’t say anything. Just as I approached the car he turned the lights on, I heard Fuzz mention my name. Q. You are referring to the defendant Kenneth F. Sleeper? A. Yes. Q. He mentioned your name? A. Yes. Q. Do you know whether he had any lights on the inside of the car? A. Dash light Avas on. Q. You testified that it was light enough you could plainly see three quart whisky bottles which were not covered? A. Yes. Q. Did you merely suspicion that there was whisky in the car or did you actually see the whisky? A. I actually saw the whisky.”

This court has recently held in a number of cases that under circumstances similar to these the officer had the right to search an automobile without the necessity of having a search warrant. Elmer Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Arnold v. State, 70 Okla. Cr. 203, 105 P. 2d 556 ; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Skinner v. State, 65 Okla. Cr. 371, 87 P. 2d 341.

It is strongly urged in the brief filed by defendant that the proof in this case shows that the automobile of defendant was located in a “private driveway,” and for this reason a search of same could not be made by the officers without a search warrant. The defendant did not take the witness stand in this case. There was not a line of evidence that defendant himself lived on the premises where he was driving from to the highway, nor that he was in any way interested in the driveway. The evidence revealed that there was a “garage apartment” there. From the evidence-the jury was justified and probably did draw the conclusion that this “garage apartment” was being used by defendant as a place of storage of intoxicating liquor, and that was where defendant had secured the liquor which was in his car. The fact that the defendant was in his car between 12 and 1 o’clock at night, and turned off the lights upon seeing the approach of the cars by the officers, and while approaching the highway, and other circumstances were snch that justified the officers in the discharge of their duty to examine the car of the defendant, and upon such examination finding exposed bottles of intoxicating liquor upon the front seat of the car and upon the floor boards and 426 pints of liquor piled high between the front and back seat of the car certainly justified the officer in arresting defendant and searching the car.

In the recent case of Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366, we had occasion to quote from the case of People v. Case, 220 Mich. 379, 190 N. W. 289, 292, 27 A. L. R. 686, which has in plain language described the use of the modern automobile in assisting criminals to evade the law. It is not necessary for us to again quote the words of this decision. There is no1 reason for the courts of the country, in order to protect the rights of innocent persons in this day and age, to so technically construe the law that it will protect those who use their property for the absolute violation of the law. We are called upon in this case to place a technical construction upon the evidence; not only this, but to disregard the evidence of the officers and find that it was impossible for them to see the bottles, of liquor upon the front seat and on the floor board of the car, for the reason that the search was made in the nighttime. The officers testified positively that they did see it. The defendant did not take the witness stand, and produced no evidence. Why should the positive evidence of the officers be disregarded and not considered under such circumstances as appear here? We see no good reason therefor.

Counsel in their brief refer to the cases of Black v. State, 63 Okla. Cr. 317, 74 P. 2d 1172, and Bowdry v. State, 64 Okla. Cr. 86, 77 P. 2d 753. In the case of Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366, 370, supra, we had occasion to refer to the Black Case, and said:

“We desire to refer to three decisions of this court, viz., Black v. State, 63 Okla. Cr. 317, 74 P. 2d 1172; Morris v. State, 66 Okla. Cr. 384, 92 P. 2d 609; Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603. With reference to the Black Case, we are not holding that the facts in that case justified the officer in making the search for the reason that the defendant was not in a public place at the time the search was made, but the language used in that opinion when it states: ‘They did not have a warrant for the arrest of the defendant or to search his car, and when they left the road where they were driving, and drove out toward the defendant’s car, they began to and were committing, so- far as the defendant was concerned, an unlawful search and seizure’ is not approved. In the other two cases a dissenting opinion was given by the writer of this opinion. I am still of the opinion that the facts in those cases justified the search without the necessity of a search warrant.”

There were some extenuating circumstances in the Bawdry Case, hut it is doubtful if this case would be affirmed by the members of this court as now constituted. We are certain that it is not the law that an officer has not the right in the discharge of his duty to arrest one for a violation of the law in his presence upon the public highway, and he has the right to go upon the public highway and use his senses of sight and smell in making said arrests.

With reference to the fourth assignment of error, it is contended the evidence did not reveal that the car of defendant had moved, but was standing still at the time of the search, and therefore the proof did not show there was a transportation of the liquor as alleged in the information. This contention is contrary to the evidence. The sheriff of Logan county testified that he saw the car moving; that the lights were on at the time and that as he approached the car the lights were extinguished, and when the officers went toward the automobile of defendant, he again turned on the lights. The other officers testified to the same effect, both testifying that they saw the car moving toward the highway. The fact that the liquor was being conveyed as alleged in the information was sufficient under the law. See Thomas v. State, 27 Okla. Cr. 264, 226 P. 600, and Shirley v. State, 31 Okla. Cr. 174, 237 P. 627. These cases fully discuss what constitutes an illegal conveyance of intoxicating liquor. This court has held that the taking of liquor from one room to' another room in the same building, or the taking of the liquor from one hand to the other, is not sufficient to convict under an allegation of conveyance, but that any actual conveyance within the terms and meaning of the law was sufficient to show that a conveyance was being made. De Graff v. State, 2 Okla. Cr. 519, 103 P. 538; and England v. State, 53 Okla. Cr. 142, 8 P. 2d 690.

It is next contended that the court erred in giving instruction No. 5, which was as follows:

“You are further instructed that if you find from the evidence in this case that the defendant did on or about the 26th day of May, 1939, or at any time within three years prior to the filing of the information in this case, which was on the 27th day of May, 1939, that the defendant Kenneth F. Sleeper, then and there being, did then and there willfully, unlawfully and wrongfully ship, convey and transport a certain quantity of intoxicating liquor, to wit: 426 pints of whisky or any portion thereof from a point unknown to the county attorney, to another point in Logan county, Oklahoma, to' wit: approximately a half mile south of the city of Guthrie in Logan county, Oklahoma, on U. S. Highway 77, then you will find the defendant guilty of transporting intoxicating liquor and so show by your verdict. But, on the other hand, if youi find from a preponderance of the evidence that the state has failed to prove to your satisfaction beyond a reasonable doubt that the defendant did commit such crime, then you will resolve the doubt in favor of the defendant and acquit him.”

It is the italicized part of the instruction to which objection is made. It is true that an instruction as to the preponderance of evidence has no' place in the instructions of a criminal case. The law requires the state to' prove the guilt of the defendant beyond a reasonable doubt, and certainly not by a preponderance of the evidence, as in civil cases. The expression used in the last part of the instruction is unique. The instruction does not say that the jury shall find the defendant guilty if they find “from a preponderance of the evidence,” but says “that the state has failed to- prove beyond a reasonable doubt.” Under the decisions of this court from the earliest days of its existence, it has uniformly been held that instructions are to be examined in the light of the whole record. In construing Oklahoma Statutes 1931, section 3206, 22 Okla. St. Ann. § 1068, it has been uniformly held that a case will not be reversed by reason of an error in an instruction unless tbe error was such that had “probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right,” and that if, after an examination of the entire record, the guilt of the defendant was established to the extent that a retrial of the case would not change the result, the case would not be reversed. Thompson v. State, 6 Okla. Cr. 50,- 117 P. 216; Hooper v. State, 7 Okla. Cr. 43, 121 P. 1087; West v. State, 13 Okla. Cr. 312, 164 P. 327, L. R. A. 1917E, 1129; Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222; Holmes v. State, 18 Okla. Cr. 415, 195 P. 508; Quick v. State, 51 Okla. Cr. 121, 299 P. 242; Exline v. State, 48 Okla. Cr. 135, 289 P. 783; Cole v. State, 18 Okla. Cr. 430, 195 P. 901; Cowley v. State, 65 Okla. Cr. 479, 88 P. 2d 914; Williams v. State, 62 Okla. Cr. 394, 71 P. 2d 781; Janeway v. State, 62 Okla. Cr. 264, 71 P. 2d 130.

This rule should certainly apply to this case. No. defense was made, and from the amount of liquor in defendant’s possession, no' defense could be made. A retrial of this case could only result in a conviction of defendant, and for this reason we are of the opinion that the error of this court in placing the last clause in instruction No. 5 should not cause a reversal of this case, and that this instruction should be read in the light of all the instructions given by the court, and especially of instruction N.O'. 2, in which the court instructed the jury that the defendant Avas presumed to be innocent, and that this presumption abided with him until overcome by evidence “beyond a reasonable doubt,” and that if the jury, after a consideration of all the evidence and instructions of the court, had “a reasonable doubt,” that they should resolve such doubt in his favor and acquit him. This rule has been so well established in the law of this country and has been so well understood, that this court has many times held that it was not necessary for the trial court to define the term “reasonable doubt” in instructing the jury, for the reason that jurors understood the expression so well that it was unnecessary to so instruct them. Cole v. State, 18 Okla. Cr. 430, 195 P. 901; McCarty v. State, 21 Okla. Cr. 365, 207 P. 1069.

Counsel for defendant, in anticipation of the position to be talien by the state in this case, cites the cases of Brown v. State, 14 Okla. Cr. 115, 167 P. 762; Price v. State, 1 Okla. Cr. 358, 98 P. 447; and Washmood v. United States, 10 Okla. Cr. 254, 136 P. 184, 186. We have given these cases careful consideration, and in our opinion the facts in those cases are not applicable to the facts in the case at bar. We shall not lengthen this opinion by referring to- them, except to' say that, in the Washmood Case, which was written by the writer of this opinion, who was appointed as a Special Judge to this court, there was before the court an instruction somewhat similar to the one here involved, or at least with reference to the question of “reasonable doubt.” It was said in that case:

“It is contended by counsel for the defendant that this instruction was so worded that it deprived defendant of his right to' be acquitted, if there was reasonable doubt in the minds of the jury as to his guilt. There can be no question but that there is some merit in the contention of counsel. This instruction as it is worded has a strong tendency to confuse the question of reasonable doubt, and to tell the jury that they might convict the defendant whether they believed him guilty beyond a reasonable doubt. The reasonable doubt part of the instruction seems to refer only to the jury believing that Ben Collins was murdered beyond a reasonable doubt, and not that the defendant committed the murder, or was present aiding and abetting therein, beyond a reasonable doubt. However, if this was the only error committed in this case, this court would not reverse the case upon that ground, for the reason that in the last part of the instruction the court states that 'the evidence must not be susceptible of any other reasonable conclusion or explanation than that to a moral certainty said defendant, A. Washmood, is guilty as so charged.’ We believe that the jury would have inferred from the last part of the charge that it was necessary to convict the defendant beyond a reasonable doubt; but, while we believe that the instruction is not worded as it should have been, yet this error alone would not be sufficient to reverse this cause.”

Just so in this case we do not believe that the error of the court in giving instruction No. 5 was such that the jury were misled in believing they could find the defendant guilty unless they found from the evidence that he was guilty beyond a reasonable doubt, and as stated in that case, whatever error it was, we are of the opinion that it did not affect the substantial or fundamental rights of the defendant, and did not so influence the jury as to work any prejudice against him under the evidence and circumstances of this case.

However, we have come to the conclusion that in view of the giving of this instruction, justice would be subserved by modifying the judgment and sentence from a fine of '$250 and 90 days in jail to a fine of $250 and 45 days in jail, and as so modified, the judgment and sentence of the county court of Logan county is affirmed.

DOYLE and JONES, JJ., concur.


text:
    REX OWEN FLEETWOOD v. STATE.
    No. A-9832.
    Jan. 17, 1941.
    (109 P. 2d 240.)

      Wall & Creen, of Sallisaw, and Charles Ed Frye, of Muskogee, for defendant.
    Mac Q. Williamson, Atty. Cen., Sam H. Lattimore and Frank Dudley, Asst. Attys. Cen., and Ed. Armstrong, Co. Atty., of Sallisaw, for the State.
   BAREFOOT, J.

Defendant, Rex Owen Fleetwood, was charged with the crime of murder in Sequoyah county; was tried, convicted and sentenced by the court to' serve a term of 15 years in the penitentiary, and has appealed.

It was charged in the information that the defendant committed the crime of murder by killing one Lee Scott at the town of Moffett, in Sequoyah county, on the 8th day of July, 1989, by shooting him with a pistol.

Nine assignments of error were made, some of which have been abandoned, and counsel for defendant in his brief has considered five of the assignments under one head and two under the second. Under the first assignment it is contended, “The evidence produced at the trial of this case is not sufficient on which to- base a conviction and the court should have sustained a demurrer to the evidence.”

It is not necessary for this court to- quote extensively from the record for a correct decision as to the law as applied to the facts. There was a direct conflict in the evidence of the state and the defendant. The evidence of the state’s witnesses, if believed by the jury, was such that a verdict finding the defendant guilty of murder would have been sustained under the law. The evidence of the defendant and some of his witnesses was such that, if the jury believed his theory, he acted in self-defense and should have been acquitted. Under these facts it has been the universal holding of this court that the verdict of the jury will not be set aside on appeal where there is evidence in the record to- sustain the conviction, and that the same will be reversed only when the evidence wholly fails to be sufficient to warrant a conviction of the defendant charged.

In the late case of Drennan v. State, 69 Okla. Cr. 348, 102 P. 2d 952, 954, the rule is announced as follows:

“It is only where there is a total failure of substantial evidence of the elements, or some one element, of an offense that this court on appeal is permitted to- reverse a conviction on the ground that the evidence is insufficient to sustain it. The jury is the exclusive judge of the weight of the evidence and credit to be given to- the witnesses. Where there is a direct conflict in the evidence, or it is such that different inference may be properly drawn from it, the jury’s determination will not be interfered with upon the ground that the evidence is insufficient to sustain a conviction, where there is competent evidence tending to prove each element of the offense charged.”

Briefly, the evidence in this case reveals that the deceased, Lee Scott, was working at the cafe of his brothers in the town of Moffett, Sequoyah county, which is just across the river from Fort Smith, Ark., and on the Oklahoma side. The defendant and four companions had been in an automobile to- certain resorts on the Arkansas side, and between 12 and 1 o’clock at night drove up in front of the 3.2 Cafe in Moffett where the deceased, Lee Scott, was working. The deceased answered the signal and some of the parties were served with beer. After bringing the beer out, he came back with the change and to get the tray that was attached to the car-. There is not much conflict in the material evidence as to- what was said or done by the parties until the deceased came to the car the last time to get the tray. All the witnesses testified that when deceased came to' the car to' serve the order, defendant asked him if he could get the gun which deceased had and which belonged to the defendant. That deceased told him if he would come back on the following afternoon about 2 o’clock he could get the same. That neither of the parties was angry and nothing else was said. Defendant was sitting in the back seat of the automobile which was parked in front of the cafe. When deceased returned to get the tray, he came to the right side of the car, and when told that the tray was on the other side, he went behind the car and came up' to' the front and picked up the tray. He was shot by defendant while holding the tray.

There is a conflict with reference to' whether deceased had a gun at the time of the shooting. Three of the witnesses who were in the car did not see any gun in the possession of the deceased,- and one witness testified that he saw one. Several of the witnesses testified they saw deceased raise his hand as if going toward his shirt. Others did not see this movement. There is a conflict as to' what was said by the parties just before the shooting occurred. One of the state’s witnesses, who- worked at the 3.2 Oafe, testified that he witnessed the shooting, that deceased did not have any gun, and that he immediately ran to a room in the cafe and secured a pistol and a shotgun, and immediately went to the scene of the difficulty, and was the first person to the body of the deceased. That he set the shotgun down on the sidewalk, and when he put his hands around the body of the deceased to raise his head, he laid the pistol down where it was found by parties after the difficulty. These witnesses testified at the trial to the finding of both the pistol and the shotgun. The deceased was in his shirt sleeves and no one saw him with the gun prior to the shooting.

As before stated, the evidence was conflicting and the jury was in a better position to pass upon the question of how the killing occurred than would an appellate court. They saw the witnesses, observed their demeanor upon the witness stand, and their verdict will not be set aside where there is evidence to sustain it and the evidence is conflicting:.

It is next contended “that the court erred in making certain improper remarks in the presence of the jury.” This contention is based upon an incident which happened upon the cross-examination of a witness for defendant, as follows:

“Q. Did you have any trouble with Rex Fleetwood, you and your sister in the place of business at Arkoma? A. I didn’t. I don’t remember whether she did or not. Q. You don’t remember Rex Fleetwood taking a shot — Mr. Wall: I object, if the Court please. The Court: Here is the situation, the defendant enjoys immunity the deceased would not. The law prescribes that. I never did think it was good laAv. It is the law and I have to recognize it. Mr. Wall: We except to the remarks of the Court. The Court: All right. You may have an exception. That don’t amend the law, whatever the court might remark. Mr. Wall: We object to- that as being prejudicial to' the rights of the defendant. The Court: All right. Mr. Armstrong: That is all.”

It will be noted from the above that a question was asked the witness for defendant by the county attorney and which was objected to by counsel for the defendant, and the question was not answered. Another question was asked which was immaterial, but not such as would be cause for reversal. The court then made the statement above quoted. While we do not think the statement should have been made, and there seems to be no reason for making it, yet we do not believe it was such that the jury would be influenced in rendering a verdict against the defendant by reason thereof. The argument that this question by the county attorney Was such as to charge the defendant with the commission of another and different crime is not tenable. The court gave a full, complete, and very fair set of instructions to the jury. The defendant did not except to them. They fully covered the law of self-defense, and the court further instructed the jury that evidence had been offered for the purpose of showing the reputation of the deceased as a violent, quarrelsome, turbulent, and dangerous man, and that they should consider this evidence in connection with all the evidence in ascertaining whether or not the defendant at the time of the difficulty reasonably and in good faith believed that he was in danger of losing his life or receiving great, bodily injury at the hands of the deceased.

The court also1 instructed the jury that evidence had been introduced showing the deceased was guilty of other acts of violence towards other persons prior to the alleged homicide and that defendant had heard of such acts, and that by reason thereof he feared the deceased was about to commit an act of violence upon his person; that such evidence should be considered to determine whether or not the defendant in good faith believed he was in actual danger at the time of the difficulty. These instructions properly presented to' the jury the law as applied to the evidence introduced.

The court was very fair to the defendant, and especially in permitting testimony to be given with reference to former difficulties between the deceased and other persons, and, as stated above, while we do' not think any comment should be made by the court as to his belief that a law is a bad law or a good law, we do not think it was such error as caused the jury to be prejudiced against the defendant. This Avas certainly true in view of all the instructions given by the court in protecting the rights of the defendant. The argument of counsel for defendant that this statement is such that it should be considered as if given by the court in his written instructions is hardly tenable. It is inconceivable to believe that the jury gave such consideration to this statement as if the court had in his written instructions informed them that some law was a “bad law,” but that he was giving it to them.

After a careful examination of the record we are of the opinion that the judgment of the district court of Sequoyah county should be affirmed, and it is so ordered.

DOYLE, P. J., and JONES, J., concur.


text:
    Ex parte ROBERT BLANCETT.
    No. A-9669.
    Jan. 20, 1941.
    (109 P. 2d 840.)
    O. A. Cargill and John Barry, both of Oklahoma City, for petitioner.

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Neville Gillum, Co. Atty., of Sayre, for respondent.
   PER CURIAM.

The petition filed on behalf of Robert Blancett alleges in substance that he is unlawfully restrained of his liberty at .Sayre, by Earl Francis, Sheriff of Beckham county.

It is further averred in substance that the cause of said restraint according to the best of the knowledge and belief of petitioner is that he is charged with introducing intoxicating liquor, to wit: one pint of prescription whisky, from the State of Texas into' the State of Oklahoma without first having procured a permit from the Tax Commission of the state, and that his said restraint is illegal and unauthorized, in that the information charging petitioner of the violation of 37 Okla. Statutes Ann. §§ 41, 42, 43, 44, 45, 46, 47 and 48, is void, invalid and illegal, and contrary to the general laws of the State of Oklahoma and contrary to the Constitution of the State of Oklahoma.

A rule to show cause why the writ should not issue was entered and issued, and answer thereto duly made by the said sheriff, at which time the cause was submitted on the agreed statement of facts, and petitioner was allowed bail on giving an appearance bond conditioned as by law provided in the sum of $500 to be approved by the clerk of this court, which bond was given and approved.

Pending the determination of the cause, Neville Gil-lum, county attorney of Beckham county, September 27, 1939, filed in this court a statement tO' the effect that in the above-entitled and numbered cause, case against the petitioner, Robert Blancett, named in the complaint filed before the justice of the peace, sitting as a committing magistrate, charged with a violation of the importation liquor law’, as passed by the Seventeenth Legislature, was by him dismissed, and inclosing order of dismissal, which reads as follows:

“In the Justice Court, Place 2, Sayre city District, “Beckham County, Oklahoma
“Before M. L. Inmann, Justice of the Peace,
“Sitting as Committing Magistrate
“State of Oklahoma, Plaintiff, No. A-9669.
vs. R. L. Blancett, Defendant.
“Dismissal
¡ “There having been filed on this 23rd day of September, 1939, an application by Neville Gillum, County Attorney, to have the above entitled cause dismissed for lack of sufficient evidence to sustain conviction;
“This matter having come before me upon a complaint, and the defendant in this cause having waived preliminary hearing, but there having been no information filed in this cause, it is the order of this court that the above entitled cause is hereby dismissed.
“H. L. Inman,
“Justice of the Peace.”

For such reason the purpose of the application for the writ is ended and the legal questions involved are moot. It is there adjudged and ordered that the cause be dismissed.


author: DOYLE, J.

text:
    Ex parte TURNER LINAM.
    No. A-9980.
    Jan. 22, 1941.
    (109 P. 2d 838.)

      C. B. Cutler, of Okmulgee, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for respondent.
   DOYLE, J.

On behalf of Turner Linam a duly verified petition for writ of habeas corpus by which petitioner seeks to secure his release by order of this court from the custody of J ess F. Dunn, warden of the State Penitentiary at McAlester, was filed in this court.

When presented to the court the Attorney General appearing for respondent filed a general demurrer to the petition on the ground that it does not state facts sufficient to entitle petitioner to the relief prayed for, and the cause was submitted. Counsel for petitioner was given until January 20, 1941, to file a brief in support of the petition.

It is alleged in the petition that petitioner was informed against, convicted, and committed by the district court of Delaware county, Okla., to the McAlester Penitentiary to serve 20 years for the crime of robbery with firearms on an information filed in said court on November 29, 1937, in which Turner Linam, A. J. Sparkman, and Cliff Beck were jointly charged with the crime of robbery with firearms, alleged to have been committed on the 24th day of October, 1937, in Delaware county.

It is further alleged that said conviction, sentence, and commitment are void because the essential elements of the offense of robbery and the material allegations necessary to plead said offense are not alleged in said information, but that if said information charges any offense, which the petitioner denies, it is that of larceny. Copies of said information and minutes of the plea of not guilty of petitioner and a copy of the judgment and sentence of the court are attached to and made a part of said petition.

Petitioner further alleges “that he is imprisoned contrary to the statutory laAvs governing the offense of robbery and in direct violation of the Constitution of Oklahoma.”

The precise question presented on the pleadings in this case v?as passed upon and determined by this court in the case of his codefendant, Sparkman v. State, 67 Okla. Cr. 245, 93 P. 2d 1095, Avherein the information was held sufficient and the judgment of the district court of Delaware county was affirmed: the court holding:

“An information, charging that defendants willfully, forcibly, wrongfully and feloniously assaulted named persons ‘with a firearm, to wit: a shotgun,’ thereby putting such persons in fear of immediate injury, and took from their possession, Avhile they were under influence of such fear, about $53, against their will with felonious intent to convert same to defendant’s own use and benefit, was sufficient as directly and certainly charging such defendants Avith offense of robbery with firearms. * * *
“The true test of sufficiency of information is not Avhether it might possibly have been made more certain, but Avhether it contains every element of offense intended to' be charged and sufficiently apprises defendant of what he must be prepared to meet.”

In conclusion we simply add that it is apparent from the record that no sufficient cause is shown for the issuance of the writ of habeas corpus. It is therefore denied.

BAEEFOOT, P. J., and JONES, J., concur.