text:
    DWIGHT WELCH v. STATE.
    No. A-6494.
    Opinion Filed Oct. 19, 1928.
    (271 Pac. 172.)

      H. T. Church, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Tulsa county, on an information charging that in Tulsa county, on or about the 6th day of February, 1926, he did then and there knowingly, intentionally, and unlawfully, carry, convey, and. transport certain intoxicating liquor from one point in the state unknown to the informant to another point in the state, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for a period of 30 days. Motion for new trial was filed and overruled, and defendant excepted. From this judgment and sentence, defendant brought his appeal to this court.

The record in this case presents a very peculiar state of facts. The defendant was charged with conveying intoxicating liquor, yet throughout the record thé state went into and presented facts not germane to the charge in this case, but wholly foreign to the charge. In order to properly pass upon the question presented, it is deemed necessary to set forth an abstract of the testimony.

When the case was called for trial the defendant filed a motion to suppress and exclude evidence of W. S. May-field, W. E. Pinion, Fred Lawrence, and R. D. Sanford, and other testimony, all offered and introduced in this case, for the reason that all of the evidence and testimony of the state witnesses to be offered and introduced in the trial of the case was obtained and procured against this defendant by reason of an illegal and unreasonable search of the private property of the defendant, said property being one certain Dodge automobile in the possession and custody of the defendant, and that said witnesses searched said automobile and secured the evidence to be introduced in this case by reason of said search; said search being made without a search warrant for said automobile and without a warrant for the arrest of the defendant. Testimony was taken upon the motion to suppress, at the conclusion of which the court overruled the motion, and defendant excepted. The court ordered a jury impaneled and the trial to proceed, which was done.

The county attorney, Mr. Coffey, in his opening statement to the jury, among other statements, made the following statement:

“The evidence on the part of the state, gentlemen of the jury, will show that on the 4th day of February, 1926, E. D'. Sanford, the sheriff of Tulsa county, together with two of his deputies, W. S. Mayfield and Mr. Fred ^Wallace, went to the home of the defendant for the purpose of executing a search warrapt.
“Mr. Church': Now, if the court please, the defendant objects to the statement of thé county attorney as to the purpose for which they had gone to the home of this defendant, as being incompetent, irrelevant, and immaterial, and not tending in any way to prove the guilt or' innocence of this defendant, and as being highly prejudicial to this defendant.
“The Court: Overruled.
“Mr. Church: Exceptions.
“Mr. Coffey: That they went into the house and searched the place, and i,haf the defendant was not at home at that time.”

The record further discloses that, at the conclusion of the statement of the county attorney on behalf of the state, the defendant made the following motion:

“The defendant at this time moves and requests the court to instruct the jury to disregard the statements of the county attorney as to the search of the premises of the defendant. It not having been stated or not having been shown that they had any search warrant for liquors, and it not having stated that the search warrant was to search this defendant’s automobile, and the specific purpose of the search warrant not having been stated.
“Mr. Coffey: We would be glad to state it.”

W. S. Mayfield, as a witness for the state, was called, and stated that he was a deputy sheriff, and that he knew where the defendant resided on the 4th of February, 1926, and that he saw him on that date.

“Mr. Church: At this time the defendant objects to any further testimony in this case, especially of this witness W. S. Mayfield, for the reason that all of the evidence obtained against this defendant was obtained in violation of his constitutional rights against illegal searches and seizures, and by reason of the search of defendant’s automobile ; said search having been made in the nighttime, and without a search warrant for the automobile, and without a warrant of arrest for this defendant.”

Which objection was by the court overruled,.and defendant duly excepted. Witness, in substance, then testified: We went there that night about 11 or 11:30 with a property search warrant.

Defendant objected to this statement of the witness on the ground that it did not tend to prove the guilt or innocence of this defendant on the specific charge of transporting liquor, and defendant further objected that a search warrant itself was the best evidence. The court overruled his objection, and defendant excepted. Witness further stated that he had a search warrant for some automobile cases, stolen property. Defendant then moved the court to instruct the jury to disregard the answer of the witness, for the reason that it was prejudicial to the rights of the defendant and in no way tends to prove his guilt or innocence of the charge for which he is on trial, and being highly prejudicial; which objection was overruled by the court, and defendant saved an exception.

Witness then went into detail, stating that, when they came to the home of the defendant, there was no one at home but the defendant’s mother; they searched the premises, a little two-room house, searched around and went down to the barn; the barn was a little bit south of the house, about 50 or 60 steps; “I was looking the barn over and was about to give it up; some of the others or maybe all of them went out to the car; the car was headed into the entrance at the wire gate; I started back to the, car coming from the south.”

Defendant renewed his objection to the testimony of the witness, on the ground that it was not responsive to the question asked, but a detailed statement that is purely voluntary. The objection was overruled, and defendant duly excepted.

Witness stated that a car was coming from the south at a very rapid rate of speed; “I was starting to our car when he runs up opposite to me and slowed down, almost stopped, and then put on speed and run past Mr. Sanford’s car; and I ran to the car; we jumped in the car and followed him; the road had just been paved very recently, and over about a half mile beyond his place was the end of it; we met him coming back; I recognized him; when we come back to the front of the house there was the car; it had run cater-cornered the road, and I jumped out of the car and ran around, and he was gone; the door was open, and there was a bottle laying on the running board; I proceeded to search the car, me and the. rest of the boys; we found seven pints of whisky in the hood of the car all wrapped up separately in newspapers.”

The defendant objected to what was found in the car until it was first shown they had a search warrant authorizing them to search the car. The objection was overruled, and defendant duly excepted. The witness further stated they found two pints in the car wrapped in papers in behind the cushions. County attorney then asked the witness the following question:

“Mr. Mayfield, how many tires, automobile tires, did your search warrant mention?
“Mr. Church: That is objected to for the reason that the search warrant itself is the best evidence.
“The Court: Sustained.
“Mr. Coffey: Well, we will have to get the search warrant. (By Mr. Coffey) Do you know what court the search warrant issued out of? A. My recollection is it is the common pleas. I am not sure, however, because I did not issue it. It was issued.
“The Court: What is the purpose?
“Mr. Coffey: If your honor please, under the law if a felony has been committed the officers know about it; they have the right to arrest with or without a search warrant.”

At this stage of the trial the court excluded the jury from the courtroom, and the question was discussed back and forth between the court, county attorney, and counsel for the defendant; the court advising counsel that he would hold that the search warrant was not necessary, and that the question of the tires and a felony that had been committed there was immaterial, as we are not trying the defendant on a felony charge, the court stating to counsel that he would hold everything was admissible as to what he had there, meaning the defendant." The record discloses the jury was returned into open court, and the trial proceeded. The witness stated that he did not taste the contents of any of the bottles that were found; he smelled of it was all. He stated it contained corn whisky; that they found the defendant’s marriage license in the car.

On cross-examination, the witness stated they brought the marriage license to the city in the car; they did not know whether they were turned over to the defendant or not; that they did not have a search warrant for the marriage license, or to search for liquor; that his search warrant was a property search warrant; he did not know what it covered; he only knew it was a property search warrant and covered the premises of “Easy Welch”; the mother of the defendant was all that was at home when they arrived at the place that night; “we was finishing our raid when we saw the defendant; we did not get anything from that raid of the premises; our car was headed right into the gate in front of defendant’s home; I judge we followed him a half a mile to where he turned around and came back; turned around at the end of the pavement and come right straight back; I could not tell just how far behind we were; his lights apparently was out; I don’t think we pursued the car more than a mile, I think a half mile; yes sir; I knew who he was; we had no warrant for the arrest of the defendant, still we pursued him; we .did not know what the car contained at that time; I did not know what was in the car until we went up to it and looked into it and examined it; there was one bottle on the running board, and then we raised the hood and found seven pints in and around the engine under the hood; I could not'have sworn it was whisky until I smelled of it; I did not taste it, I just smelled of it; I will not say I smelled of the other bottles I found there; I did not taste them; they were destroyed.”

J. F. Lawrence, called on behalf of the state, testified in substance, as to the same facts as the witness W. &. Mayfield, except he did not claim to have smelled the contents of the bottle, and the same objections, in substance, were interposed by the defendant as to his testimony, and the same motions made to exclude it from the jury.

The foregoing is, in substance, the testimony that was introduced by the state. At the conclusion, the following motion was made by the defendant:

“Defendant at this time, at the close of the evidence introduced on behalf of the state, and after the state had rested its case, moves the court to direct the jury to return a verdict of not guilty, for the reason that the evidence is insufficient to warrant the jury in convicting the defendant on this charge. And for the further reason that all the evidence introduced in the trial of this case against the defendant, was obtained illegally and in violation of his constitutional rights against illegal searches and seizures; the evidence obtained by the search of his private automobile without a search warrant to search the automobile, and without a warrant of arrest for this defendant.”

Which motion was by the court overruled, and defendant excepted. The defendant took the stand in his own behalf, and stated that he had driven to the city of Tulsa that evening in company with Dan Baker; that while there he had gone to see his bride to be, and had driven around the city with friends for quite a while before returning home; that he had granted permission to a friend of his to use the car while he was there, and told him where to leave the car; he had already secured his license to get married, and had them with him when he returned home that evening; that his boy friends had been threatening to have fun with him, and when he drove up to the house and saw the car he thought perhaps it was some of the boys that had been threatening to have some fun with him because he was going to get married, and he drove up the road, and, when he saw the car following him, he turned and drove back home again and parked his car, still thinking it was some of the boys, and went off and secreted himself so they could not find him; after the car was gbne and had taken his car with it, he learned from his mother the officers had been there that evening, and that was the first information he had they were officers. Defendant claims that he did not know there was any whisky in his car; his marriage license was never returned to him; that he afterwards got a dulicate of his marriage license from the clerk and was married to the young lady that was with him the evening of this alleged offense. His wife testified as to defendant being out to her home that evening; that she and defendant, together with two other friends, drove around the city for some time, when the defendant left for the purpose of returning to his home.

Dan Baker testified to returning to Dawson, near the defendant’s home, with the defendant, on the evening of the alleged offense. The record shows the defendant was not arrested for several days after the offense, and that he did not show up until he had arranged for his bond. This is, in substance, the testimony on behalf of the defendant.

A number of errors are assigned by the defendant in regard to the admission of certain testimony. Notwithstanding the objection and exceptions of counsel for the defendant, the court permitted W. S. Mayfield and J. F. Lawrence bo testify in reference to the property search warrant which they claimed to have had to search the home and premises of the defendant.

The court further permitted the county attorney to make a statement as to the officers going to the defendant’s home on the night of the alleged offense with a search warrant. The testimony and objections of the defendant cover several pages of the record. It is rather singular that the state should urge, where a man was being charged with a specific offense of transporting intoxicating liquor, the admission of testimony on a claimed search warrant of the defendant’s premises for the property. The state must have known that this was an improper statement for the county attorney to make to the jury, and also must have known that the testimony was incompetent and irrelevant, not being of that character as would in any way whatever throw light upon the facts as to whether or not the defendant was guilty of transporting liquor. No' search warrant was introduced, and the only evidence the court had was the statement of the witnesses, and, if it be true, which this court does not undertake to say whether it is or not, it had reference to a separate and distinct claim, entirely disconnected with the offense with which this defendant was charged. Generally speaking, the evidence of other crimes is competent to prove the specific crime charged, when the evidence tends to establish a common scheme or plan embracing the commission of two or more crimes so' related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the crime charged.

The statement of the county attorney and the evidence objected to does not fall within the general rule. All of the testimony of the state, with reference to the search warrant, was clearly inadmissible against the defendant on the charge for which he was tried, and his objection to the statement of the county attorney and to the admission of the testimony was well taken, and the court should have admonished the jury not to consider it. The statement of the county attorney as to the search warrant, and the statement of the witnesses as to the search warrant, we think prejudiced the rights of the defendant before the jury and deprived him of that fair and impartial trial guaranteed to him under the Constitution and laws of this state. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Call v. State, 39 Okla. Cr. 264, 264 P. 643.

The defendant further urges that the evidence in this case was inadmissible, for the reason that it was unlawfully obtained by the witnesses searching his car without a search warrant to search the car or without a warrant for his arrest. The testimony discloses that the officers were on a public highway near the home of the defendant, where they had a perfect right to be, and that the defendant was driving on the highway, coming up near to his home, and then driving on following the highway for a certain distance, estimated at one-half to a mile. The officers claim that, when the defendant continued to drive along the highway, they jumped in their car and followed him, and when he came back toward the house they turned and pursued him until he got back to the house^ where he got out and left the car standing on the highway. Witnesses claim they rushed up to the car, and that one of the doors of the car was open and a bottle was laying on one of the running boards of the car. The officers admit they did not have a warrant to arrest the defendant and they did not have a search warrant to search his car. It would seem that an effort was made to justify the searching of the car by saying that a bottle was on the running board of the car. This court has no desire to criticize the acts of the officers when in proper discharge of their duty but we feel constrained to suggest that it is most unusual, if the testimony is to be believed, that the defendant had driven his car at least a mile hurriedly, that a bottle would continue to stay on the running board, when there is no proof to show that it was in a container or fastened in any way whatever. We feel we have a right to consider the physical facts, and that it is hardly probable that the bottle would remain on the running board of the car with the car being driven and turned at a rapid rate of speed, but, for the sake of interpreting the record in this case, grant that there was a bottle on the running board at the time the officers came up to where the defendant had stopped his car, that alone would not be sufficient to justify the officers in making the pursuit they admit they did without any authority. If officers of the law are to be permitted, when they are out on the highway and see a car, some one driving by in a car, to act upon mere suspicion that there may be an offense committed and pursue the parties driving the car until they desire to stop, and when they do stop and leave their car, then without authority go up and search the car, then the guaranties of the Constitution amount to nothing.

Defendant had a right to be on the highway; had the right to drive any direction he desired; he was not required to stop at his home unless he desired to do so. The officers had a right to be on the highway, but we do not think they had the rig’ht to pursue the defendant without knowledge that he was violating the law.

The next question to be considered is, If the following by the officers and coming upon his car is to be approved, is the testimony sufficient then to warrant a conviction? ’The witnesses admit they did not know what was in the bottle they found. Only one of the witnesses undertakes to say what the contents of the bottle was; he attempts to swear that the contents smelled like whisky; he admits he did not taste it. The other witnesses testified only to the number of bottles they found in the car; made no effort to say what the contents of the bottles were; and the only witness who stated.it was whisky stated that he smelled of it and that it was whisky. The one witness who testified that he smelled of the! bottle does not attempt to say what was in the other bottles if anything. If these officers found whisky in this car, why was it not presented in court? There should have been at least some of it preserved for evidence. When the officers began to follow the defendant in his car, they began an effort to search, and continued it up until the time they claim they found the bottles.

In Thomas et al. v. State, 32 Okla. Cr. 57, 240 P. 133, the sheriff testified as follows:

“We were walking around in the road when we heard parties advancing and we stepped into the timber. It seemed to be some other parties, I heard them say something about some whisky; we walked back out to the road and stopped Jim Thomas and Bill Barnard in the front car; about that time I heard something break. I found a broken fruit jar in the front of the car and something running on the floor. I presumed it was whisky from the smell of it.”

On cross-examination, he said:

“Now it smelled like corn whisky, but I do not know what it was.”

In this case the witness undertakes to say that he smelled one of the bottles, and that it smelled like whisky. That was the only thing upon which he based his evidence as to the contents of the bottle being corn whisky.

In Klein v. State, 26 Okla. Cr. 173, 223 P. 201, the court, in paragraph 3 of the syllabus, says:

“In a .prosecution for transportation of intoxicating liquor, evidence obtained by search of defendant’s automobile without a search warrant held inadmissible, in view of Const, art. 2, § 30.”

In Taylor v. State, 36 Okla. Cr. 431, 255 P. 157, this court said:

“At the time charged in the information certain officers intercepted the defendants in an automobile upon the public highway- and attempted to stop them. When they did not promptly stop, they fired into the car in which they were driving and then arrested the defendants and searched the car aiid found in it a jug of whisky. They had no' warrant for the arrest of defendants nor any search warrant, and the apprehension and search was based on suspicion only. This was in violation of the Constitution and statutory rights of defendants and was seasonably objected to. The conviction cannot be sustained.

The evidence in this case is challenged on the ground that it was unlawfully procured, a'nd on the further ground that it was insufficient to sustain a conviction. We hold that the evidence in this case was obtained by the officers by an unlawful search and seizure and contrary to section 30, art. 2, of the Bill of Eights, and was improperly received in evidence in violation of the defendant’s rights.

The last contention of the defendant is as follows: That the evidence relied on to establish the defendant’s guilt, even if its competency be admitted, wholly fails to do so. We think that is well taken. The evidence is wholly insufficient to sustain the judgment.

For the reasons stated, the judgment appealed from herein is reversed, and the cause remanded, with directions to dismiss.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    W. G. SHELTON v. STATE.
    No. A-6351.
    Opinion Filed Oct. 26, 1928.
    (271 Pac. 262)
    Phillips & Phillips and Brown, Brown & Williams, for plaintiif in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiif in error was convicted in the district court of Carter county of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary.

The judgment was entered in February, 1926, and the appeal was lodged in this court in August, 1926. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted. In many cases this court has held that where an appeal-is prosecuted from a conviction for a felony and no briefs filed nor oral argument made in support of the appeal, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors, and, if none appear and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done this. No jurisdictional or fundamental error is apparent, and the evidence supports the verdict.

The case is affirmed.

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


author: EDWAEDS, J.

text:
    JAMES M. HARRIS v. STATE.
    No. A-6369.
    Opinion Filed Oct. 26, 1928.
    (271 Pac. 263.)
    N. E. McNeill and Harry E. Stege, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWAEDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of practicing medicine without a license, and was fined $500.

The prosecution is under the Medical Practice Act (chapter 59, Session Laws 1923). The information charges that defendant, without having a license or certificate to practice medicine and surgery, did treat and prescribe as physician and surgeon to Velma Weidman, and for compensation, certain drugs'; for an alleged tumor.

The record discloses that at the time charged Velma Weidman and her husband went to the residence of defendant, and the husband informed defendant that his wife was in bad health and he wanted her examined; that defendant took them into another room, placed Mrs. Weidman in a chair, tested her pulse, and proceeded to give a diagnosis of her trouble, going somewhat into details in defining her symptoms and ailment, and then informed her that she had a tumor and was on the verge of “T. B.” He then told them that he had an “oil of radium” to cure her, that his medicine ran from $500 to $1,000, and that two bottles of the “oil of radium,” one for internal and one for external use, would be $125. Defendant then took out of the cupboard two bottles of brown liquid and told them if she would take it according to directions, one-half a teaspoonful each morning and night for a week and a reduced dose after that, and used the other bottle to rub on, it would cure her tumor. The husband then paid him $125 and received the preparation. The defendant did not take the stand and offered no testimony.

It is urgued at some length that the Medical Practice Act is in violation of section 57, art. 5, of the state Constitution. This is no longer an open question in this state. In the case of Reeves v. State, 36 Okla. Cr. 186, 253 P. 510, this contention was considered at length, and it is there held that the act in question is a valid exercise of the police power and not in violation of any provision of the state Constitution.

In enacting this law, the Legislature evidently intended to prevent persons not properly educated, in the science of medicine and not properly licensed from acting or assuming to act as a physician or surgeon and to protect the public from quacks, humbugs, and charlatans who so often prey upon the public, pretending to have marvelous remedies or pretending to cure incurable diseases.

By cross-examination defendant sought to show that the charge of $125 was for the preparation of “oil of iradium” only; that defendant made no charge for any advice or examination. He argues that it is no violation of law for any person to sell medicine in his home, and that the evidence does not sustain the charge. This contention cannot be sustained. It is evident that the physical examination, the pretended diagnosis, and the imposing on the credulity of the patient by the sale of a worthless preparation for $125 , constitutes but a single transaction, and while it is probably true that at the time defendant informed his patient he was charging the $125 for the two bottles of drugs and not for the examination and diagnosis, this does not alter the situation. The entire transaction is a practice of medicine within the definition of the Medical Practice Act. The fact that defendant informed his patient at the time that this charge was for the pretended medicine is plainly but a subterfuge to avoid the provisions of the law.

It is also argued that there is error in instruction No. 6 of the court’s charge. This instruction is general, and in substance advises the jury that if they find beyond a reasonable doubt that on the date charged defendant did practice medicine without having a license for such purposes they should find him guilty, and, if they entertained a reasonable doubt, they should acquit. This instruction, it is contended, does not contain the elements of the offense charged, and permits the jury to find defendant guilty without finding that he prescribed for a patient for a fee or compensation. This instruction standing alone might be subject to the objection made, but it must be consTdered and construed with all the other instructions. In other instructions the jury are advised what constitutes a practice of medicine as defined by statute, which construed with instruction No. 6, in the ■absence of any request for any additional instruction, is sufficiently definite.

The record discloses no error substantially prejudicial to the rights of the defendant.

The case is affirmed.

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


author: PER CURIAM.

text:
    In re CLAUD JONES.
    No. A-7179.
    Opinion Filed Nov. 9, 1928.
    (271 Pac. 426.)

      John P. Crawford, U. G. Winn, and Geo. A. Mansfield, for petitioner.
    Edwin Dabney, Atty. Gen., and J. W. Bolen, for ■the State.
   PER CURIAM.

Claud Jones filed his petition in this court on October 1, 1928, alleging his unlawful imprisonment and restraint of his liberty by W. B. Walker, sheriff of Pontotoc county. Attached to, and made a part of, this petition is a transcript of the proceedings had before T. 0. Cullins, a justice of the peace in Pontotoc county, Okla., and a copy of the testimony taken before the district judge of Pontotoc county, at Ada, upon the application of petitioner for habeas corpus to be admitted to bail.

The petitioner is charged with the murder of William Roddie, alleged to have been committed in said county, on or about the 19th day of September, 1928. The transcript discloses that, upon the preliminary examination had before the justice of the peace, said petitioner was held without bail on the offense charged to ■await the action of the district court thereon. At the hearing it was contended by the petitioner that he was entitled to bail upon the testimony of the state and evidence in his behalf, for the reason that the proof is not evident or the presumption great. It is also set forth that an application was made to the district court of Pontotoc county for bail, which was by the said court denied. The determination and conclusion of the court in each case is based upon a settled rule of this court that, upon application for bail by writ of habeas corpus after commitment for a capital offense, the burden is upon the petitioner to show facts sufficient to entitle him to bail, when these facts do not appear from the evidence adduced on the part of the prosecution.

Upon a careful review of the record it is the opinion of the court that the petitioner has not brought himself within the rule established by this court, and therefore is not entitled to bail.

Writ denied.


text:
    C. E. YOUNG v. STATE.
    No. A-6245.
    Opinion Filed Nov. 9, 1928.
    (271 Pac. 426.)

      Jno. L. Ward, L. O. Todd, and A. W. Kelley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty.. Gen., N. B. Johnson, Co. Atty., and H. Tom Kight, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Rogers county on a charge of manslaughter in the first degree and was sentenced to serve a term of four years in the state penitentiary.

The evidence is conflicting in many particulars; that for the state discloses a state of facts about as follows: On the date charged, defendant with his wife.and some children and A. P. Davis, a codefendant, drove from Tulsa in an automobile about 21 miles to a neighborhood in Rogers county known as “Timber Ridge” for the purpose of visiting one Lige Teague. W. E. McMillan, with his family of several children, the oldest being Homer McMillan, a boy of 18 years, lived on a farm about a quarter of a mile from Teague’s place. A small church building was just across the section line from the McMillan home. The week before, a daughter of defendant, about 13 or 14 years old, had visited the Teague home. There had been some difficulty among the youngsters of that age, and a boy named Jack Piquet was reported to have struck the girl or to have called her a liar. On the morning of the homicide, when defendant and his party arrived opposite McMillan’s home, they encountered Lige Teague, and also some young people who had been to Sunday school. Teague signaled Young, who stopped his car, and Teague then pointed to Piquet and informed defendant he was the boy that had called his daughter a damn liar. Defendant got out of his car, started toward Piquet but was stopped by some one and a quarrel ensued. McMillan at the time was on a pallet on his porch. Homer McMillan told the . persons there they did not want any fussing in front of the home, whereupon Davis, of defendant’s party, ■attempted to assault him. The elder McMillan then got ■up from the pallet and told the party either to go up the road or down the road, but not to start any fight there. Davis in substance informed McMillan they would not move in either direction. Whereupon McMillan went in the house, got his gun, came out and sat down with it across his lap, and told the Young party to move on. Defendant said, “Let’s go, let the folks out at Teague’s, and we will go get our guns and get the son-of-a-bitch. He and Davis then got in the car and left Teague in front of McMillan’s house and drove to ,Teague’s, let out the other members of the party, then drove back by McMillan’s house, and Teague asked them how long before they would return. Defendant replied as soon as they could go to Tulsa and get their guns. Defendant and Davis then drove to Tulsa., procured guns, and were joined by two of defendant’s sons and the wife of one of them, and two other men who worked with him in an iron foundry at Tulsa. They returned to the McMillan place. In the meantime McMillan, becoming apprehensive, sent to one of his neighbors, Bates Weaver, and asked him to come over, as he anticipated trouble, -and asked him to send tó Catoose for a deputy sheriff so that trouble might be averted. Weaver came to MeMillan’s place, and soon the car with defendant and Davis and his party arrived. Defendant alighted from the car and directed his party to alight and walked over to Weaver, who was near his car in McMillan’s yard, and demanded what he was doing there. Weaver informed him that he was there to prevent him murdering McMillan. Defendant put his gun into the stomach of 'Weaver and informed him he would kill him. Weaver ;caught the gun by the barrel and a scuffle ensued, in which the gun was discharged, but no one was hit. McMillan got up from his bed, took his Colt’s pistol ana went to the door. Homer McMillan took a shotgun and went to the southwest corner of the house. The two sons of Young were in the road directly in front of the McMillan house, and as McMillan appeared in his door they fired into the door casing with Luger pistols. McMillan thereupon killed both of them, and defendant, by this ltime having wrested the gun from Weaver, turned and killed Homer McMillan, who was standing at the corner of the house with a gun in his hand, and who had just fired but had missed his mark. During this time Davis was shooting a.t Weaver. The elder McMillan then shot at defendant and hit the barrel of the gun, knocking it from defendant’s hand, fired again, and broke the leg of defendant, who fell. The firing then ceased. When the smoke had cleared away the two sons of defendant were dead, and the son of McMillan died the same day in a hospital at Tulsa. The evidence of the state is contradicted and explained by the evidence of defendant and his witnesses and by the cross-examination of the state witnesses. The testimony of W. E. McMillan in particular was much shaken on the cross-examination. De*. fendant’s evidence supports his theory that one of the Young boys was killed by Homer McMillan and that the killing of Homer McMillan by defendant was in his necessary self-defense and in the defense of relatives. Many details are omitted, but the respective theories and the evidence in support present a question of fact for the jury. They must have believed in large part the evidence of the state.

It is apparent from this recital of facts that this tragedy which resulted in the death of three young men arose without any substantial cause for conflict and was entirely unnecessary, even among persons ready and willing to enter into a combat. It must have appeared to the jury that defendant was willing to enter into a combat with a deadly weapon, and under such view, ■which is sustained by ample evidence, they were exceedingly lenient in fixing the punishment. The punishment fixed would indicate further that they also considered the elder McMillan at fault in too readily entering into this shooting affray.

The first assignment of error argued is that the trial ijury was not drawn and impaneled as provided by law. it appears that the names of the entire panel of the petit jurors were each written on a separate piece of cardboard paper of a uniform size, and these cards, without being folded, were put in a wooden box about four inches wide,' eight inches long, and six inches deep, and the box shaken before any names were drawn out. The names were drawn by the court clerk. The statutes applicable to the formation of a trial jury are sections 2643 and 2649, inclusive, Comp. St. 1921. In substance, they provide that the names of the jurors shall be written upon uniform slips of paper, folded, placed in a box, and the box shaken to intermingle the ballots before any names are drawn, and that the clerk shall not look at the slips before drawing them from the box. These provisions of the law were not literally complied with. Upon motion being made, however, testimony was taken and the clerk in part testified:

Direct examination: "* * * Q. I will ask you, Mr. Robinson, if during the impaneling of this jury or during the formation of this jury in this case, if you took this box and closed it up and shook it immediately before withdrawing each name? A. No, sir. I took it and closed it up and shook it before I started to draw them, and then I put it so I could not see in it and drew the names out. * * *”

On cross-examination: “Q. Before you started to draw this jury, you took these names that had been written on these pieces of cardboard, and placed them in that box, did you? A. Yes, sir. Q. Then you took that box and shook it? A. Yes, sir, I did. Q. So as to mix and mingle these various pieces of cardboard together? A. Yes, sir. Q. And then when you were required to draw another name to fill a vacancy on the jury, you put .the box where you could not see in it, and reached in and drew a name? A. Yes, sir. Q. And whether the writing on the board was turned up or down, the box was in a position where you could not see in there? A. I couldn’t see in there. Q. Or tell anything about who you were getting? A. No, sir. * * * Q. But you did shake it a number of times during the time? A. I never could see in it. I always put it where I can’t see in it, so I will have to reach in. I haven’t any idea as to who is coming out of the box. * * *”

The objection to the manner in which the jury was impaneled was not made until the second day of the trial, after the original panel had been exhausted, the second panel drawn and- exhausted except for one name in the box and after eight challenges on each side had been used. The court then offered to discharge the single juror whose name remained in the box, and in substance /ruled that there was a substantial compliance with the law, and defendant could have sustained no prejudice by the failure to conform strictly to the requirements of the statutes. This court in the case of Grant v. State, 11 Okla. Cr. 396, 146 P. 919, held that where these statutes are not complied with the court should sustain a challenge to the panel. In that case the names were written on slips which were not folded; but no showing was made that the clerk did not see the names before the slips were drawn, nor that the entire panel was exhausted in selecting a jury for the trial of that case. Where the entire panel is exhausted before the jury is secured it can make no difference which name is first taken from the box. As the purpose of this statute is to prevent the jury from being hand-picked and to provide that a trial jury shall be selected from the panel by lot, if any prejudice were made to appear we would promptly reverse this case. A substantial compliance with the statute will be sufficient when the deviation is not prejudicial. Section 3526, Comp. Stat. 1921. See, further, Wadsworth v. State, 9 Okla. Cr. 84, 130 P. 808; Littrell v. State, 21 Okla. Cr. 466, 208 P. 1048.

It is next argued that the court erred in admitting ¡incompetent evidence offered by the state. This assignment is directed to several items of testimony. The state was permitted to show that on Sunday preceding the homicide some of the young people of the neighborhood had a quarrel and fight at and near the church across the road from the McMillan home, and to show that a few nights before the tragedy there was some difficulty between a number of men in the highway in front of the McMillan house. The defendant was not present at either of these occasions. Presumably the first of these matters was offered to explain the statement of Teague to defendant at the time they met on the day of the tragedy near the McMillan house. We do not perceive just why the difficulty that occurred a few nights before the homicide was relevant or competent. There are other items also erroneously admitted. We have examined each of them carefully. In several instances the witnesses made some hearsay statement or testified to some statement by some third person not binding on defendant and which should have been excluded. Upon the whole record, however, we are of the opinion that these errors are inconsequential when considered with the main facts of the homicide and that they did not affect the verdict. They fall within the provisions of section 2822, Comp. Stat. 1921, defining harmless error, and do not require a reversal.

Complaint is made that the court refused to permit 'defendant to show that a list of the witnesses to be used by the state was not served two days before the case was called for trial, as required by article 2, § 20, Bill of Rights. This was the second trial of this ease. The record discloses that prior to the first trial a list of names of the witnesses with their addresses was properly served. It is the contention of the defendant, in substance, that the list should again be served before entering upon this trial. The object of the constitutional provision is to inform defendant of the names and addresses of the witnesses the state intends to use against him so that he may investigate the character of the witnesses and be prepared to meet their testimony. When a defendant has once been served with this list and receives the information contemplated, the constitutional requirement is satisfied^ and it is not necessary to again serve the list in case of a mistrial unless the state intends to use additional witnesses not contained in the list served, in which case the names and addresses of such additional witnesses Tnust be served to comply with the constitutional requirement. In the case before us no additional witnesses were "called, and hence it was not necessary to again serve the list.

Some argument is advanced that the court made prejudicial remarks in the presence of the jury panel at the time of the general examination at the beginning of the term. It appears that when the jury panel was examined generally as to their qualifications for service at the term, the court in stating generally the duties of jurors said:

“Gentlemen, we are now entering' upon a criminal term, where we have several cases in which there are several defendants, some of whom are no doubt very anxious to convince you of their innocence. Their friends may make improper approaches to you, gentlemen, and I want to insist, if you are approached improperly by any person as to how your ballot should be, that you report that to the court. It is not proper that jurors should be approached, either by way of whisky, if any of you should happen to drink, or in any other way, and it is just as necessary that you keep your reputation uninsulted as any other part of the court machinery, and I want to insist, gentlemen, that if any improper approach is made to you by anyone to try to influence your actions on the jury, that you report that matter to the court. I believe we have one or two other jurors who have just gotten in; stand up, gentlemen, the ones who have not been qualified.”

This, defendant contends, is prejudicial as suggesting that the friends in this case might attempt to improperly influence them. It is not shown that the remarks of the court influenced any juror in this case, or that the court had in mind or referred to the defendants in this case. While the language used is not approved, yet it is proper for the trial judge to instruct the jurors at the time the panel is examined on voir dire as to their duty generally. It should be in terms applicable alike to the state and the defendant. See Pate v. State, 15 Okla. Cr. 90, 175 P. 122.

Objection is also made that the court permitted counsel for the state in examining the jury to inquire if they were members of any church or if they had been members of any church. It is true that church membership does not determine the qualifications of a juror, but a prospective juror, within reasonable bounds and limited by a fair discretion of the court, may be examined as to his membership in any organization which might give counsel information and enable him to properly exercise his peremptory challenges. Menefee v. State, 30 Okla. Cr. 400, 236 P. 439; Cummings v. State, 32 Okla. Cr. 274, 240 P. 1078; Raymer v. State, 32 Okla. Cr. 385, 241 P. 499; Buchanan v. State, 33 Okla. Cr. 312, 243 P. 992; Roof v. State, 34 Okla. Cr. 145, 245 P. 666; Cooley v. State, 34 Okla. Cr. 281, 246 P. 650.

It is argued at some length that the court erred in refusing to give certain requested instructions and in the giving of several of the instructions of the court’s charge. To discuss each of the requested instructions refused by the court and the instructions given by the court and complained of is not necessary. We have examined the charge of the court and the requested instructions and are of the opinion that the requested instructions, so far as applicable, are sufficiently covered by the charge of ■the court, and that the charge considered and construed as a whole sufficiently covers the issues in the case, and is without any material error and is as favorable to defendant as the law warrants. Ussaery v. State, 22 Okla. Cr. 397, 212 P. 137; Lacy v. State, 30 Okla. Cr. 273, 236 P. 53; Collins v. State, 32 Okla. Cr. 136, 240 P. 135; Brown v. State, 24 Okla. Cr. 161, 216 P. 944; Wilkie v. State, 33 Okla. Cr. 225, 242 P. 1057; Tritthart v. State, 35 Okla. Cr. 41, 247 P. 1111.

Some other matters are suggested in the briefs, but, upon a consideration of the entire case, we are convinced the errors are not materially prejudicial; that defendant had á fair trial and there has been no miscarriage of justice.

The case is affirmed.

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


author: DAVENPORT, J.

text:
    BARNES TAYLOR v. STATE.
    No. A-6033.
    Opinion Filed Dec. 8, 1928.
    (272 Pac. 886.)
    Davis & Brumfield, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court o'f Noble county, upon a charge of having in his possession choc beer, 'capable of being used as a beverage, for the purpose of bartering, selling, giving away, and otherwise furnishing the same to others, and sentenced to imprisonment in the county jail for a period of six months and to pay a fine ef $500. Motion for new trial was filed and overruled, and appeal perfected to this court.

The information in this case was filed June 13, 1925. On October 12, 1925, the defendánt appeared in court by his attorneys, and filed a motion to quash the search warrant and the affidavit upon which the search warrant was based, for the following reasons:

“1. That said warrant is not in due form as required by law and is therefore illegal and void, ab initio.
“2. That the affidavit praying for the search warrant fn this case does not state sufficient facts to justify the issuance of said warrant and the warrant is therefore illegal and void.”

Defendant filed a motion to suppress the evidence of the state on the following grounds: “That said evidence was obtained wrongfully and by means of an illegal and void search warrant, and that all the evidence of the state ojbtained by means of such illegal and void search warrant is by law inadmissible against this defendant.”

Motions to quash search warrant and to suppress evidence was overruled, and defendant duly excepted. The defendant also renewed his objection to the evidence on the ground that it was procured by an illegal search warrant.

The allegations in the affidavit upon which the search warrant is based is that F. H. Yeager was sworn, and stated that numerous and divers persons, who are users of intoxicating liquor, do frequent a public resort, indicating that intoxicating liquors are being sold, bartered, given away, or otherwise disposed of, in violation of the prohibitory laws of the state of Oklahoma; then states that it is a one-story residence building in Perry, Okla., used, occupied, and in possession of the defendant Barnes Taylor.

Defendant assigns several errors alleged to have been committed by the trial court. After a careful examination of the record, the only errors we deem necessary to be discussed are the action of the court in overruling defendant's motions to quash the search warrant, to suppress the evidence, and admitting evidence procured by reason of the search warrant, over the objection of the defendant, and refusing to exclude the evidence offered by the state from the consideration of the jury.

This court has repeatedly defined what was necessary for the purpose of securing a warrant to search a residence and defined what should be stated in an affidavit for a warrant.

In Cudjo v. State, 34 Okla. Cr. 199, 245 P. 906, the court said: “A private residence is immune from search and seizure unless a showing is made by affidavit that such residence or some portion of it is * * * a place of storage, or a place of public resort.”

It has been held by this court in so many cases that we deem it useless to cite all the authorities that an affidavit for search warrant is insufficient if made on information and belief. Vice v. State, 36 Okla. Cr. 18, 251 P. 509; Hancock et al. v. State, 35 Okla. Cr. 96, 248 P. 1115; Brandt v. State, 34 Okla. Cr. 400, 246 P. 1106; Hall v. State, 34 Okla. Cr. 334, 246 P. 642; Bornheim v. State, 39 Okla. Cr. 224, 264 P. 921.

The question in this case is: Can the affidavit be interpreted to be an affidavit on information and belief, or an affidavit on suspicion, as the language used in the affidavit, that numerous persons frequent a public resort, indicating what is being done at the place, cannot be interpreted as a positive statement that intoxicating liquors are being kept at the place described for the purpose of being sold, bartered, given away, or otherwise disposed of,.in violation of law? The affidavit does not contain any of the statutory requirements necessary for the purpose of securing a search warrant to search the residence of defendant. The affidavit does not state facts necessary under our statute to warrant the court in issuing the necessary search warrant; the motion to quash the affidavit for the warrant, and to suppress the testimony secured thereunder and the objection of the defendant to the introduction of the testimony procured under the search warrant based upon the insufficient affidavit, was well taken and should have been sustained. There is no competent testimony to support the verdict and judgment.

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

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


author: DOYLE, P. J.

text:
    H. G. ROBINSON et al. v. STATE.
    No. A-6702.
    Opinion Filed Dec. 8, 1928.
    (272 Pac. 392.)
    Tom W. Cheatwood, for plaintiffs in error.

      Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellants, H. G. Robinson and J. S. Wright, were tried and convicted on an information charging that they “did unlawfully and willfully manufacture, ferment and possess a compound, mixture, mash, wort and wash fit for distillation and the manufacture of intoxicating and alcoholic liquor, to wit, whisky,” and in accordance with the verdict of the jury they were each sentenced to pay a fine of $50 and to confinement in the county jail for 30 days. They have appealed from the judgment.

The evidence on the part of the state shows that in executing a search warrant officers went to the place, about 10 miles southeast of Lexington, occupied by the defendants, and thereon found three or four barrels of mash, a still, and some jars, jugs, and buckets. Their testimony shows that there were tracks leading from the house occupied by the defendants on the placé, and also from the barn, to where the mash and still was found, which was between a quarter and a half mile from the house.

As witnesses in their own behalf each defendant denied ownership or knowledge of the mash and still and utensils found. Three witnesses testified that the reputation of the defendants as to being law-abiding citizens in that community was good.

The errors assigned question the sufficiency of the information and the sufficiency of the evidence to support the verdict. There was a demurrer to the information on • the ground of duplicity, which we think was properly overruled.

It was the peculiar province of the jury to pass upon the credibility of the witnesses, and under the settled rules of this'court we cannot disturb the verdict of the jury, where there is any substantial evidence to support it.

There were no exceptions to the giving or the refusal to give any instruction. Upon an examination of the entire record, it appears that the defendants were fairly tried.

The judgment appealed from is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte J. W. KING.
    No. A-6913.
    Opinion Filed Dec. 8, 1928.
    (292 Pac. 389.)
    Sigler & Jackson, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is illegally restrained of his liberty by the warden of the state penitentiary; that a judgment was rendered in the district court of Kay county under which he was convicted of the crime of robbery with firearms; that the judgment and sentence and commitment are illegal and void; that the information did not state any crime whatever; and that the court did not have jurisdiction.

Defendant was jointly charged in the district court of Kay county with H. H. Ward. Ward was convicted, and appealed to this court, and the conviction was reversed, for the reason that the information was insufficient. Ward v. State, 34 Okla. Cr. 296, 246 P. 664.

The law is that, if the court which rendered the judgment had not jurisdiction to render it either because the proceedings under which they were taken were unconstitutional or for any other reason, the judgment is void, and may be attacked collaterally, and the person who is imprisoned thereunder may be dioharged on habeas corpus. Ex parte Nielsen, 131 U. S. 176, 182, 9 S. Ct. 672, 33 L. Ed. 118; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Mackey et al. v. Miller (C. C. A.) 126 F. 161.

This court, following the general rule, has frequently held that the writ of habeas corpus cannot take the place of an appeal. Ex parte Flowers, 2 Okla. Cr. 430, 101 P. 860; Ex parte Cranford, 3 Okla. Cr. 190, 105 P. 367; Ex parte Shows, 4 Okla. Cr. 416, 113 P. 1062; Ex parte Wood, 21 Okla. Cr. 252, 206 P. 541; Ex parte Stover, 14 Okla. Cr. 120, 167 P. 1000; Ex parte Lyde, 17 Okla. Cr. 618, 191 . 606.

In the Lyde Case this court held:

“The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had thé court which rendered the judgment jurisdiction of the offense and of the person convicted? Or did the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment §nd sentence?”

In the Show Case, supra, it was said:

“The general rule is that the writ of habeas corpus may not be used, either before or after conviction, to test the sufficiency of an indictment or information; but the rule is subject to the qualification that when the accusation is not merely defective or technically insufficient, not merely demurrable or subject to a motion to quash, but is fundamentally defective in substance, so that it charges a crime in no manner or form and by no intendment, a party in custody to answer thereto, or after conviction thereon, will be discharged on habeas corpus.”

Here the information, attempting to charge defendant with the crime of robbery by firearms, was defective, indefinite, and insufficient, and demurrer thereto should have been sustained. On appeal this court would have reversed the judgment for insufficiency of the information, as was done in the companion case of Ward v. State, supra. Yet, while the information is defective, still by intendment it can be determined what the pleader intended to charge. The information can be made by amendment to properly charge the offense attempted to be charged. See Ex parte Kennedy, 10 Okla. Cr. 648, 135 P. 1194. This court in effect held in the Ward Case, supra, that the information was demurrable only, and could be amended; that is, the information was defective and technically insufficient, but was not so fundamentally defective in substance as to charge a crime in no manner or form and by no intendment.

The writ is denied.

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


text:
    FLOYD MILLER et al. v. STATE.
    No. A-6161.
    Opinion Filed Dec. 8, 1928.
    (272 Pac. 387.)
    Win. H. Lewis, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were convicted in the county court of Oklahoma county, upon a charge of having possession of intoxicating liquor with the unlawful intent to sell, barter, give away, and otherwise furnish the same to others, and each sentenced to pay a fine of $50 and be imprisoned in the county jail for a period of 30 days. From the judgment and sentence the defendants perfected an appeal to this court.

The testimony on behalf of the state in substance is as follows: C. W. Abbott stated that he knew the defendants; that he saw them on the 26th day of August, 1925, at the intersection of Avenue G and Pennsylvania, at a cold drink stand on the south side of Avenue G; other officers were with him. Question by Mr. Lewis:

“You went out to search this pop place? A. In the public highway just north of this stand we found this whisky. The pop stand is on the south side of Avenue G., and we found the whisky on the north side about seventy-five or more feet away from the cold drink stand.”

Witness was then asked the following question:

“Do you know the general reputation of this place located at the intersection of Avenue G and Pennsylvania Avenue, Oklahoma City, Oklahoma County, Oklahoma, on the 26th day of August, 1925, as to being a place where whisky was kept, bartered, sold, given ,away or otherwise furnished to divers persons unknown?”

This question was objected to by the defendants as incompetent, irrelevant, and immaterial, and highly prejudicial. The objection was overruled, and defendants duly excepted. The witness was then permitted to state that the reputation of the place was bad.

Witness was then asked the following question:

“Do you know the general reputation of the place mentioned in the previous question as being a place where people were permitted to congregate and resort for the purpose of buying, receiving and drinking intoxicating liquor?”

This question was objected to by the defendants as incompetent, irrelevant, and immaterial, and highly prejudicial. Objection overruled. Defendants saved an exception. Witness was permitted to answer the question, and stated the reputation of the place was bad.

The testimony further shows that the cold drink stand where one of the defendants lived was on the south side of Avenue G; that the avenue was paved, and the place where they claim to have found the whisky was on the north side of the pavement about 75 feet or more from the defendants’ cold drink stand. Witness further, on cross-examination, testified that he had never seen either of the defendants go to the place where they claim the officers found the whisky mentioned in the testimony, and that he did not see either of the defendants in possession of any of the whisky.

H. O. Brewer testified in substance to the same facts as did witness Abbott, and Brewer was asked the same question as to the reputation of the place and was permitted to answer the same, over the objection of the defendants. Witness upon cross-examinjation testified that he did not see any path from the north side of the pavement on the north side of the road; that it was on a shoulder of the pavement, and the autos ran over it. On redirect examination witness was asked this question by Mr. Harrod:

“Q. He asked you if you knew who this whisky belonged to. I will ask you if you were convinced beyond a reasonable doubt on the raid you made there and the searches made there who it belonged to?” (Objected to as incompetent, irrelevant, and immaterial. No ruling.) A. I would judge it belonged to Miller.”

Gi. W. Johnson, a witness for the state, testified as to being present, and was permitted to answer, over the objection of the defendants, as to the reputation of the place. On cross-examination he stated he knew nothing about the defendants selling whisky. If they had sold any, had never seen any one in and about the place, never did search the pop stand before this date. He testified the officers had a search warrant, but he could not tell what court had issued it, nor what place it commanded the officers to search.

W. V). Brown, a witness for the state, testified in substance the same as the other witnesses, and was asked about the reputation of the place, and was permitted to answer, over the objections of the defendants, stating the reputation of the place was bad.

The defendant Medley took the stand in his own behalf, and denied any knowledge of any whisky, and denied any ownership in the whisky claimed to have been found, and denied he had ever sold any whisky or kept any for the purpose of selling, bartering, or giving away the same; that he was a soldier in the World War and had contracted tuberculosis, and had bought this pop stand to make a little money and to be where he could live out in the open. He stated that defendant Miller had no interest whatever in the pop stand and was only there visiting with him. Medley admitted that at one time he had paid a fine for being intoxicated.

This is, in substance, the testimony in the case..

There are twelve errors alleged to have been committed by the trial court, all of which go to the error of the court in overruling the motion of the defendants for a new trial, and to the admission of the evidence as to> the search of defendant’s pop stand and building where he lived, and the overruling of the demurrer to the state’s evidence.

The testimony on behalf of the state shows that the defendant Medley was running the pop stand where he sold cold drinks and had a place in, the stand where he slept; that this stand was located on the south side of Avenue G; that the officers went to defendants’ place of business and searched the same; they claim to have had a search warrant; neither of them could state from what court it was issued, and it was not shown they had complied with the law and served the defendant Medley or Miller with a copy of the warrant, or, failing to find any one in possession of the building, had posted a copy of the same on the building or near it. They do not claim to have found any whisky in the place of business of the defendant Medley, but claim that on the north side of the pavement, and 75 feet or more from the defendant’s cold drink stand, under some old tins they found a quantity of whisky and wine. Neither of the officers claim to have seen either of the defendants near where the whisky is alleged to have been found. This was a public thoroughfare where people frequently pass, and defendant Medley was depending for his trade on those who stopped at the stand to buy cold drinks, and Medley claimed that Miller had nothing to do with the stand, owned no interest in it, and was there visiting him.

The state failed to introduce any testimony whatever against Miller showing that he was interested in the cold drink stand, or that he had ever had possession of any whisky or wine alleged to have been found, or that he participated in any way whatever in the management, ownership, or control of the cold drink stand, admitted by defendant Medley to have been his. There is no testimony whatever to show active or constructive possession of the liquor alleged to have been found. Where the state relies upon circumstantial evidence for a conviction, the guilt of the defendant must be proved beyond a reasonable doubt, and all facts that are necessary to ¡be established must be consistent with each other and with the main facts sought to be proved, and the circumstances together must be of a conclusive nature. It is not sufficient that the circumstances coincide with, account for, and therefore render probable, the guilt of the defendants. They must exclude to a moral certainty every other reasonable hypothesis than that of the guilt of the defendants.

The only circumstances in this case pointing to the guilt of the defendants are the proximity of the liquor to the residence and cold drink stand of defendant Médley. This amounts to a strong suspicion that defendant Medley was implicated, but was insufficient to establish the guilt beyond a reasonable doubt. The whisky might have been placed where it was found by some other persons where it was accessible when they desired to get it. It is contended that the court erred in admitting evidence of the general reputation of the place of defendant Medley, as being a place where intoxicating liquor was kept for the purpose of being bartered, sold, given away, or otherwise furnished, for the reason that there was no proper predicate laid for the testimony. •Before evidence of the general reputation of his place can be legally admitted, it must be proven that the place itself was a place of public resort, and not merely that it bore such a reputation. The defendants’ place was a cold drink stand, where purchasers would stop for the purpose of buying cold drinks. There is no evidence that either of the defendants had in any way whatever been connected with the buying, selling, or furnishing of intoxicating liquor at his place.

In Yakum v. State, 30 Okla. Cr. 184, 235 P. 253, this court said:

“Before evidence of the general reputation of a place may be received as evidence in a case of unlawful posession, * * * it must be shown that the place itself was a place of public resort, not merely that it bore such reputation.”

To justify or sustain a conviction f'or having intoxicating liquor with intent to violate any provision of the prohibition laws, there must be evidence sufficient not only to prove possession but also to prove criminal intent. Fitzgerald v. State, 39 Okla. Cr. 320, 264 P. 929.

The record fails to disclose any testimony connecting defendants with the possession of the whisky alleged to have been found on the north side of the avenue, on a vacant lot opposite defendant Medley’s place. The fact that some empty bottles were found in or along the street near defendant’s place is not sufficient testimony to sustain a conviction of possession of intoxicating liquor with intent to barter, sell, give away, or otherwise dispose of the same. The demurrer to the testimony of the state was well taken and should have been sustained. The court erred in permitting the state to introduce testimony, over the objection of the defendants, as to the general reputation of his place without a proper predicate being laid by the state showing that the defendants’ place was a place of public resort.

There are other errors assigned, but, in the view we take of this record, we do not deem it necessary to discuss them.

For the reasons herein stated, the case is reversed and remanded.

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


text:
    RAYMOND ASHWOOD v. STATE.
    No. A-6330.
    Opinion Filed Dec. 8, 1928.
    (272 Pac. 385.)
    M. D. Hartsell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county on a charge of having possession of whisky mash, and was sentenced to serve 30 days in the county jail and to pay a fine of $150.

It appears from the record that on January 13, 1926, a deputy sheriff went to a farm about 10 miles from Muskogee upon which no one resided and the ownership of which does not appear. No one was there at the time, and the officer went to the barn, which was in the pasture, and one side was open with wagon sheets stretched\ across. He testified that he smelled mash there. He returned that night with another officer, and upon approaching the barn saw a light in it, heard a “blubbering” and “popping off” noise which he took to be the operation of a still, and smelled the mash. They entered the barn and found a still in operation with defendant and one Jim Tennison attending it. It developed on cross-examination that when there in the afternoon the deputy sheriff had a search warrant which he did not serve, and upon this fact being disclosed and objection being made, the county attorney declared that they did not rely upon the search warrant, and evidence in regard to it was excluded.

It is first urged that the jury was not sworn to try the case, but was sworn only on voir dire. This matter was first raised in the motion for a new trial, and some evidence was offered. Defendant and his attorney testified that the jury was not sworn. The court clerk and the reporter testified that the jury was sworn. The case-made recites that the jury was “impaneled and sworn.” The recital in the case-made is conclusive in this court and cannot be impeached.

The principal contention is that the evidence upon which defendant was /convicted was obtained by an illegal search without a warrant.

The only evidence offered by defendant was the testimony of Wayne Ashwoo'd, son of defendant, a 15 year old boy, who was present at the time the officers appeared. He testified that his father had control of the place; did not know whether he had any stock on it or not; that they kept some feed in the barn; did not know who owned the land, and knew that his father had it in charge because he had told him; that no one lived in the house there; that they lived about a half mile away, and his father did not have the farm the year before; that there were four barrels of mash there; that his father and Tennison were making whisky when the officers came.

The undisputed testimony being that the barn was in a pasture on premises on which no one resided, that defendant’s possession was at most for agricultural purposes, that the operating of the still made a noise which could be heard for 50 yards or more, and the mash smelled for a considerable distance, and there being no question of the guilt of defendant, we are of the opinion that no error requiring a reversal is shown.

The case is affirmed.

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


text:
    JIM STRIBBLING v. STATE.
    No. A-6356.
    Opinion Filed Dec. 10, 1928.
    (272 Pac. 488.)

      James H. Mathers and Thos. Norman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county on a charge of murder, and was sentenced to life imprisonment in the state penitentiary.

G.n December 23, 1925, defendant shot and killed one Charlie Collins. The evidence for the state is that defendant and the deceased had a quarrel on the streets of Ardmore. Soon thereafter defendant left for his home, some five or six miles northeast of Ardmore, and after a short time deceased also left for his home, which was in the same neighborhood. Some four miles northeast of Ardmore, defendant apparently had some trouble with his automobile by going into a ditch, and had stopped, and was at his car when deceased drove up in an automobile with several persons in it. Defendant required all the occupants of the car except deceased to get out, and he got on the running board, required deceased to drive down the road some two or three hundred yards, and there shot him with a pistol, causing immediate death. Counsel for defendant admit that the testimony of the state makes out a case of murder.

Defendant interposed a plea of self-defense, and his testimony is, in effect, that a state of bad feeling existed between them; that deceased habitually went armed and had made threats against him; that on the day of the homicide and prior to the quarrel at Ardmore deceased had struck at him with a pocket knife; that defendant’s car was stalled at the time deceased came up; that deceased covered him with a shotgun and forced him to get on the side of the car and accompany him; and that he shot in self-defense while deceased was endeavoring to shoot him with a shotgun. Various details are omitted in this brief summary. It was shown on cross-examination that defendant had previously been convicted of manslaughter and also of felonious assault. There are some inconsistencies in the testimony, both for the state and for the defendant, but, since the weight and credibility of the testimony is within the province of the jury, there is nothing in the evidence that calls for any interference by this court.

The only contention argued by defendant is that the court erred in his instructions Nos. 8, 10, 13, 14, and 15. The record discloses that, after the instructions had been read to the jury, counsel for defendant said: “The defendant excepts to instructions Nos. 6, 8, 9, 10, 13, 14, 15, and 17.” Exceptions to instructions cannot properly be taken in this manner. The fifth subdivision of section 2687,. Comp. St. 1921, is as follows:

“When the evidence is concluded, the attorneys for the prosecution may submit to the court written instructions. If the questions of law involved in the instructions are to be argued, the court shall direct the jury to withdraw during the argument, and after the argument, must settle the instructions, and may give or refuse any instructions asked, or may modify the same as he deems the law to be. Instructions refused shall be marked in writing by the judge; if modified, modification shall be shown in the instruction. When the instructions are thus settled, the jury, if sent out, shall be recalled and the court shall thereupon read the instruction to the jury.”

See, also, section 2722, Comp. St. 1921.

It is the purpose of these sections to provide a manner of settling the instructions before they are read to the jury. It contemplates that the charge of the court shall be submitted to counsel, and that either party may then request instructions, and that the court shall either give in whole or in part, or refuse the same, and shall note and sign his action on the instruction. The court should submit the instructions to counsel without request, but, if he fails to do. so, counsel should request that he be heard upon the instructions. In this manner ■the court is given an opportunity to correct any errors which may have been made in the instructions and to supply any deficiency requested by counsel, and, further, an opportunity is given the counsel for the state to join with the defendant in having corrected any error that may appear. To wait until the court has read the instructions to the jury and then to except in the manner shown here, without pointing out any claimed error or deficiency and without giving the court an opportunity to correct the instruction, is in effect to invite error, and unless the error is so fundamental in character as to have likely caused a miscarriage of justice, an exception taken in this manner is unavailing. Boutcher v. State, 4 Okla. Cr. 576, 111 P. 1006.

We have examined with care the instructions here complained of, and, while in several instances they are inaptly worded, they do not contain any fundamental error. No particular purpose would be served by setting out the instructions and discussing them separately.

The case is affirmed.

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


text:
    C. W. WINGER v. STATE.
    No. A-6191.
    Opinion Filed Dec. 12, 1928.
    (272 Pac. 386.)
    Roberson & Roberson, for plaintiff in error.
    Edwin- Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, C. W. Winger, was charged in the county court of Canadian county with the offense of unlawful possession of intoxicating liquor, alleged to have occurred on or about the 30th day of January, 1926. The trial resulted in a verdict of guilty, the verdict signed by five jurors, but failed to fix the punishment. Motion for new trial was duly filed and overruled, and the court sentenced the defendant to pay a fine of $50, and to be confined in the county jail for 30 days. ' To reverse the judgment rendered on the verdict he appeals.

The principal assignment is that the verdict is contrary to, and not sustained by, sufficient evidence.

The evidence shows that the defendant lived in the town of Okarche, owing a garage and repair shop on lot 10, block 14, in said town. A search warrant issued covering lots 9, 10, arid 11 in said block and town, on each of which lots was located a business building, each owned and occupied and controlled by separate parties. Hunter Dry Goods Store occupies one of said lots; the defendant another; and the Heinen Motor Company the third.

The testimony of two deputy sheriffs, Pearce and Harkins, shows that in executing a search warrant a bottle containing about two spoons full of whisky was found on the defendant’s place, and a bottle containing about one-half pint was found on the lot occupied by the Heinen Motor Company.

The bottles and their contents were admitted in evidence against defendant’s objection that the same was obtained under a void search warrant, issued upon an affidavit wholly insufficient in' law in failing to describe as particularly as may be the premises to be searched. Against the defendant’s objection, the witnesses Pearce, A. W. Culp, and H. H. Mayfield were each permitted to testify that they were acquainted with the general reputation of the Winger garage as to being or not being a place where intoxicating liquors were sold, and that such reputation was bad.

At the close of the state’s case defendant’s counsel imoved the court to direct the jury to return a verdict of not guilty, on the ground that all the evidence was incompetent, because the same was obtained in executing a void search warrant, and for the reason that the evidence wholly fails to show that the whisky found was in the possession of the defendant. The motion was overruled, and exception allowed.

For the defense, D. F. Shaffer testified that he lived in Okarche 21 years, and knows the defendant, who' is the town electrician, and runs the garage occupying a 25-foot lot; that the bottle of liquor introduced in evidence was picked up on the lot occupied by the Heinen Motor Company, that, concerning the reputation of the defendant’s place of business, he has never heard a thing in any way, form or fashion, good or bad.

J. W. Jackson testified that he was a deputy sheriff, farmer, and stock raiser, and was present when Officers Pearce and Harkins searched the Winger garage; that he, as an officer, assisted in the search; that he had helped build the Winger garage; that he saw the bottle of whisky introduced in evidence about six feet outside of the back door of Winger’s garage, but it was not on the lot the garage was on, but was on the property of George Heinen; that witness had lived in that community 21 years, and knows the general reputation of the Winger garage as to being or not being a place where intoxicating liquors were sold, and that such reputation was good.

W. R. McIntosh testified that he was city marshal of Okarche, and was acquainted with the general reputation of Winger’s garage as to being or not being a place where intoxicating liquors were sold, and that such reputation was good.

At the close of all the evidence, defendant’s counsel again moved the court for a directed verdict of acquittal, which motion was overruled.

Upon consideration of the evidence in the case, we find that there was no competent evidence introduced tending to prove the unlawful intent. The court failed to instruct the jury the purpose for which reputation of the defendant’s garage was admitted.

Upon the whole record, we are of opinion the evidence is not sufficient to support the verdict, and for this reason the motions for a directed verdict of acquittal should have been sustained. The judgment appealed from is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


author: PEE CUEIAM.

text:
    LON HONEYCUTT et al. v. STATE.
    No. A-6128.
    Opinion Filed Dec. 15, 1928.
    (273 Pac. 283.)
    Carlile & Wall, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PEE CUEIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Sequoyah county on a charge of larceny of domestic live stock, and were each sentenced to serve a term of two years in the state penitentiary.

This is a companion case to the case of McClanahan v. State, 41 Okla. Cr. 15, 269 P. 782, and is based upon the larceny of one cow, the property of F. D. Cason, upon the same day that the larceny of the property described in the case just referred to was committed, but from a different owner. The evidence and the questions presented are substantially the same as in that case. There is sufficient evidence to amply sustain the verdict and judgment.

The case is affirmed.


text:
    BEN. HUGHES, Jr., v. STATE.
    No. A-6569.
    Opinion Filed Dec. 15, 1928.
    (272 Pac. 485.)

      Mathers & Renegar and E. V. Rakestraw, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Washita county on a charge of robbery, and was sentenced to serve a term of five years in the state penitentiary.

The record discloses that on April 12, 1927, there was lodged in this court an appeal from the conviction of plaintiff in error in the district court of Washita county, wherein he was convicted of robbery and was sentenced to serve a term of five years in the state penitentiary. Pending his appeal, plaintiff in error was incarcerated in the state reformatory at Granite, Okla., upon a prior conviction for larceny in the district court of Custer coun•ty. On November 20, 1928, said plaintiff in error escaped from the reformatory at Granite, and is now a fugitive from justice, as is made to appear from the motion of the Attorney General and the affidavits attached.

It is well settled that, where a defendant has been convicted and perfects an appeal to this court and thereafter becomes a fugitive and is where he cannot be made to respond to any judgment or order which may be rendered in the case, the appeal will be dismissed.

Following this well-settled rule, the appeal is dismissed.

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


text:
    HERSCHEL GREEN v. STATE.
    No. A-6991.
    Opinion Filed Dec. 15, 1928.
    (272 Pac. 487.)
    Ross Rizley, R. B. Loofbourrow, Clyde Miles, and W. G. Hughes, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Orlando F. Sweet, Co. Atty., for the State.
   DOYLE, P. J.

Plaintiff in error, Herschel Green, was convicted of assault with intent to commit rape, and his punishment assessed at imprisonment in the penitentiary for a term of two years. On the judgment rendered in pursuance of the verdict, an appeal was perfected.

Since the appeal was taken, and before final submission of the cause, counsel for the state have filed a motion to abate the proceedings based on the death of plaintiff in error, who was killed in an automobile accident in the state of Kansas, near St. Johns, November 24, 1928, and was buried at Elkhart, Kan., on Tuesday, November 27, 1928.

In a criminal action, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death.

It is therefore adjudged and ordered that the proceedings in the abpve-entitled cause, especially under the judgment rendered, have abated, and that the district court of Texas county enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.


text:
    CHESTER CLINE v. STATE.
    No. A-6361.
    Opinion Filed Dec. 15, 1928.
    (272 Pac. 487.)
    T. J. Sargent and I. D. Ross, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county on a charge of adultery, and was sentenced to serve IV2 years in the state penitentiary.

The evidence is that defendant committed adultery with Lizzie Bradshaw, the wife of Albert Bradshaw, who commenced and carried on the prosecution. There is some argument made that the evidence of the state is so sharply contradicted that this court should hold it to be insufficient; but where there is sufficient testimony, as in this case, to sustain the verdict, the weight and credibility of the evidence being within the province of the jury, in the absence of unusual circumstances, this court will not disturb the findings of the jury.

The contention is made that the court erred in overruling the defendant’s demurrer to the information. The information alleges that the offense was committed “about the month of April, 1924.” It is argued that this is not sufficiently definite, but that the specific date should be charged. The proof of the particular act relied upon is that it occurred the latter part of April or first part of May, 1924. It has been many times held by this court that, unless time is a material ingredient of the offense, it is not essential that the precise time be alleged, and if alleged a variance between the proof and the allegation is not material so long as the offense is within the period within which the prosecution may be instituted. Star v. State, 9 Okla. Cr. 210, 131 P. 542; Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132; Irvin v. State, 15 Okla. Cr. 260, 176 P. 83; Ealum v. State, 32 Okla. Cr. 197, 239 P. 933.

The case is affirmed.

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


text:
    ALONZO RAYMER v. STATE.
    No. A-6363.
    Opinion Filed Dec. 15, 1928.
    (272 Pac. 488.)

      R. E. Davenport, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grady county on a charge of burglary, and was sentenced to serve a term of two years in the state penitentiary.

The information alleges that defendant and one William Bradley broke into and entered the house of S. F. Kniss, by opening a window with the intent to commit larceny therein. The only assignment of error argued is that the evidence is insufficient to sustain the verdict and judgment. This contention must be sustained. There is no testimony in the record that the defendant either alone or with Bradley broke into the building alleged. There is evidence that they committed larceny of property in the building, and one witness testifies to a conclusion that they came out of a window of the building. There is no evidence that they entered through the window, or that the window or doors were closed. While the breaking and entry may be shown by circumstantial evidence, there must be some proof, either direct or circumstantial, that the building was in fact broken into within the meaning of the statute defining burglary. Section 2059, Comp. St. 1921; 9 C. J. p. 1076, par. 133; 4 R. C. L. p. 416, §§ 3 and 4.

The case is reversed and remanded.


text:
    LILLIAN TOMPKINS v. STATE.
    No. A-6248.
    Opinion Filed Dec. 15, 1928.
    (272 Pac. 490.)
    J. W. Simpson and E. I. Saddler, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county for manslaughter in the first degree, and was sentenced to serve a term of 60 years in the state penitentiary.

The appeal was lodged in this court May 22, 1926. Thereafter defendant gave an appeal bond, and was released from confinement. On March 12, 1928, the state filed a motion to dismiss the appeal, setting out that, since the appeal was lodged in this court, defendant has been convicted in the United States court for the Northern District of Oklahoma for a violation of the prohibition law, and was sentenced to serve a term of two years in the federal reformatory at Frankfort, Ky., and was committed to said prison at Frankfort, Ky., on March 5, 1928, and that defendant cannot be made to respond to any judgment or order which may be rendered in this case. Defendant and her bondsmen have filed a response to said motion admitting that defendant was convicted in the United States Court for the Northern District of Oklahoma, as stated in the motion, and is now incarcerated and serving a sentence of two years in the reformatory at Frankfort, Ky., and pray that the court give them time to procure her return to the jurisdiction of this court. This response was filed March 16, 1928. Since then no further proceedings have been had so far as this court has been advised.

It is well settled by many decisions of this court that an appeal will not be considered, where the plaintiff in error is a fugitive or beyond the jurisdiction of the court, where he cannot be made to respond to any judgment or order which may be made in the case, and, upon proper motion and showing by the Attorney General, the appeal in such case will be dismissed. Morey v. State, 6 Okla. Cr. 166, 117 P. 724; Belcher v. State, 9 Okla. Cr. 50, 130 P. 515; Terrell v. State, 24 Okla. Cr. 301, 217 P. 900.

It being conclusively shown and admitted that defendant is now outside the state of Oklahoma, and in the custody and under confinement in a United States prison, and that she cannot be made to respond to any judgment or order which might be made in this case, the appeal is dismissed.

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


text:
    U. S. HILL v. STATE.
    No. A-6321.
    Opinion Filed Dec. 15, 1928.
    (272 Pac. 490.)

      O. C. Wybrant and L. A. Foster, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woodward county on a charge of selling whisky to a minor, and was sentenced to serve a term of 240 days in the state penitentiary and to pay a fine of $150.

The information alleges that defendant sold to one Eddie Nelson, a minor, one-half gallon of spirituous liquor commonly called whisky. It is first argued that the information is defective in failing to allege that the liquor contained as much as one-half of 1 per cent, of alcohol, measured by volume. There is nothing in this contention. Section 6996, Comp. Laws 1921, prohibits the sale to any minor of any spirituous, vinous, fermented, or malt liquors. The courts take judicial notice that whisky is a spirituous liquor, and is intoxicating. Cox et al. v. State, 3 Okla. Cr. 129, 104 P. 1074, 105 P. 369; Childers v. State, 4 Okla. Cr. 237, 111 P. 958; State v. Kollar, 17 Okla. Cr. 132, 186 P. 968.

The next contention made is that the court erred in admitting incompetent evidence prejudicial to defendant. The witness to whom the sale charged in the' information was alleged to have been made, in answer to a question by counsel for defendant, on cross-examination, testified that he was drinking at the time he made the purchase of whisky alleged. Counsel for the state, on redirect, then had him testify that the night prior thereto he made another purchase of whisky from defendant and paid him $2.50 for it, that it was delivered to him by defendant, and it was this whisky that he was drinking at the time. This was drawn out at considerable length. It is fundamental that the issue in a criminal case is single, and it is not the policy of the law to convict an accused of one crime by showing that at some other time he was guilty of another. Newton v. State, 26 Okla. Cr. 65, 221 P. 1046; Perdue v. State, 40 Okla. Cr. 9, 266 P. 514; 16 C. J. 586-605.

Where evidence of another crime tends to prove the specific crime charged, as where it tends to show a common scheme or plan, or where the crimes are so related to each other that proof of one tends to prove the other or to connect the defendant with the commission of] the’ crime charged or sheds light on the crime charged, or where it tends to show motive or intent or identity, or has some logical connection with the offense charged, proof of another crime is competent. Keith v. State, 13 Okla. Cr. 1, 162 P. 239; Smith v. State, 14 Okla. Cr. 348, 171 P. 341; Newton v. State, 26 Okla. Cr. 65, 221 P. 1046; Jefferies v. State, 37 Okla. Cr. 110, 257 P. 333.

The record does not bring this case within any of the exceptions.

The case is reversed and remanded.

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