text:
    BILL PRESCOTT v. STATE.
    No. A-8749.
    Nov. 16, 1934.
    (37 Pac. [2d] 830.)

      Earl Boyd Pierce, for plaintiff in error.
    J. Berry Kang, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Phil K. Oldham, Co. Atty., for the State.
   DAVENPORT, J.

The plaintiff in error was by in: formation jointly charged with Maxwell Peak and John Matlock with the crime of murder; was tried separately, convicted, and sentenced to death in the electric chair.

The offense is alleged to have been committed the night of April 28, 1933. Joe C. Bell, the deceased, was a traveling salesman and lived at McAlester, Okla.; he was on his way home the night he was killed and was near the south line of Muskogee county, on highway 77. The record shows that the defendant and those charged with him had stolen an automobile for the purpose of using the same in hijacking, and had provided themselves with a red flag to flag parties who might be traveling on the highway'. The defendant and other parties were seen on the highway a short time before the alleged offense by a man in charge of a filling station, where they were fixing a casing. The defendant was placed in jail at Muskogee, and was later taken to the penitentiary at McAlester for safe-keeping. While in the penitentiary at McAlester, the defendant sent for Y. S. Cannon, the sheriff of Muskogee county, and to him, in the presence of J. W. Phillips, made a confession, in which confession the defendant stated the other boys with him were John Matlock and Maxwell Peak; that he flagged the car down and jumped on the running board of the car with a gun pointed at deceased; that it was not his intention to kill him, but in some manner in his excitement he pulled the gun and it went off, and when he shot the first time he shot the second time; that after Bell had been shot they robbed him; that John Matlock got his watch; they went through his pockets and got his money and turned the money over to Matlock. The defendant further stated that the pistol left at the scene of the killing belonged to Matlock.

Witness Cannon stated that later on he had a further conversation with the defendant and that the statements as tO' the commission of the crime were in substance the same as the first confession but that the words used probably varied some. In the second confession the record shows that the defendant again reiterated the statement that he had fired the shot; that they stopped the deceased for the purpose of robbing him. The defendant said they went to the scene of the robbery and killing in an old Ford car. The record further shows that a day or two prior to the killing deceased was seen driving an old Ford car in and around the city of Muskogee which resembled the car described by the defendant.

The testimony further shows that the day after the killing the deceased was in possession of some car chains, the same kind of chains the deceased had been using. Several witnesses testified as to the defendant’s statements as( to his actions prior to and on the night of the killing. No testimony was offered on behalf of the defendant. The record is voluminous, many pages taken up with objections of the defendant’s counsel and argument in support of the same, arguments, objections, and statements of the county attorney, and rulings, orders, and statements of the trial judge; a great deal of it having no bearing on the issues joined.

The circumstances surrounding the defendant’s actions prior to the night of, and the day after the killing, show that the confession of the defendant at the time it was made was correct as to what had taken place, and the object of holding up the deceased, and as to who fired the shot. The evidence in this case is sufficient if believed by the jury to warrant it in returning a verdict of guilty and imposing the death penalty. The question of the sufficiency of the evidence is for the jury. This court has repeatedly held that conflicting issues of facts are for the sole determination of the jury; that the verdict will not be disturbed if the evidence adduced reasonably tends to support it. Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Smith v. State, 18 Okla. Cr. 519, 196 Pac. 734; Adeaholt v. State, 19 Okla. Cr. 122, 198 Pac. 351; Campbell v. State, 23 Okla. Cr. 259, 214 Pac. 738; Mayse v. State, 38 Okla. Cr. 144, 259 Pac. 277; Joe Wisdom v. State, 56 Okla. Cr. 140, 36 Pac. (2d) 514.

Several errors have been assigned by the defendant as grounds for reversal. The only one upon which the defendant has devoted any time in his brief and argument is the first assignment:

“The verdict of the jury and judgment and sentence of the court is contrary to law, in that said verdict is violative of, repugnant and contrary to sections 7 and 20, of article II, of the Constitution of the state of Oklahoma; and of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution; and that by reason of same said defendant has been deprived of his life without due process of law, in that he was denied the right of counsel, with the accustomed incidents of consultation and opportunity of preparation for trial, and was not given a fair, impartial and deliberate trial as provided by law.”

In order to reach a proper decision as to whether or not the defendant in this case was deprived of due process of law, it will be necessary to recite step by step the proceedings from the time the defendant was arrested up to and including his trial and conviction and sentence. It is admitted by the defendant that he had a preliminary trial in conformity with section 2793. O. S. 1931, and that in his preliminary trial he was represented by counsel. If the defendant was. denied due process of law, it must have occurred after the defendant was held to bail and during the pendency of the charge against him in the district court. It is shown by the record that when the defendant was arraigned on the information filed against him on the 3d day of November, 1933, the court advised the defendant of his right to have counsel to defend him, and if he was unable to employ counsel, the court would appoint counsel for him. Being assured by the defendant that he was unable to employ counsel, the court appointed Oscar Hudgins, a reputable attorney of the Muskogee bar to represent him.

It is further disclosed by the record that on the day defendant was arraigned the case was set for trial on the 16th day of November, 1933, thirteen days after the defendant had been arraigned and counsel appointed to defend him; that on the 16th day of November, 1933, counsel who had been appointed to represent the defendant appeared in open court and filed a motion for continuance on the ground of the absence of witnesses whose testimony was material to the defense, the attendance of which witnesses he had not had time to secure; that some of the witnesses were nonresidents of the state. Hudgins served notice on. the county attorney that he desired to take depositions.

It is further shown that Oscar Hudgins, appointed by the court to defend, advised the court that he desired to withdraw from the case, that defendant had told him he did not care to have him defend him further. The court asked the defendant if he desired Mr. Hudgins to defend him and received a reply from the defendant that he did not. The court then made an order permitting, Hudgins to withdraw from the case, and to withdraw his motion filed for a continuance and his notice to take depositions. The court then suggested an appointment of several attorneys, who were members of the bar in Muskogee county, and learned from the attorneys he suggested he would appoint that they were interested in defending or assisting in the defense of the two other defendants who were jointly charged with this defendant, and they could not accept the appointment. The court then appointed Earl Pierce, a reputable member of the bar to defend, and immediately the brothers of the defendant employed Pierce to defend and he accepted the employment.

The record further shows that after Mr. Pierce was employed to defend, he advised the court he was unfamiliar with the facts and that it would be necessary for him to have a continuance for a sufficient length of time for him to acquaint himself with the defense. Mr. Pierce then asked and secured permission of Mr. Hudgins to refile the motion for continuance he had filed, and notice to take depositions, which motion for continuance was overruled and defendant excepted. The court refused to grant time to take depositions under the notice served and ordered the case to proceed to trial.

It is urgently insisted by the defendant that by the action of the court in forcing him to trial immediately after counsel, appointed on the 3d of November, 1933, had withdrawn from the case by permission of the court on the 16th day of November, 1933, the day the case was set for trial and forcing him to trial with counsel appointed by the court and immediately after the employment of counsel by the brothers of the defendant, he was deprived of his constitutional right and due process of law, as counsel was not given sufficient time to acquaint himself with the case and prepare to properly represent the defendant.

The question now arises, What is meant by due process of law in a criminal case in a state court? Due process of law is defined in Ballentine’s Law Dictionary, page 413, as follows:

“Law in the regular course of administration through courts of justice, according to those rules and forms which have been established for the protection of private rights; law according to the settled course of judicial proceedings; such an exercise of the powers of government as the settled maxims of the law permit and sanction, and under such safeguards for the protection of individual rights as these maxims prescribe for the class of cases to' which the one in question belongs. 6 R. C. L. 433-446.”

This court, in Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann Cas. 1914C, 314, defines due process of law in the first paragraph of the syllabus, subdivisions (f) and (g), as follows:

“The term ‘due process of law’ is synonymous with ‘the law of the land’; and in criminal cases ‘the law of the land’ necessarily means the law of the state where the offense is committed, and where the trial takes place.
“In criminal cases in a state court, ‘due process of law’ means ‘a trial in a court of competent jurisdiction, before an impartial judge and jury, or judge without a jury, upon an accusation, either by indictment or information, as the state may provide, charging the accused with the violation of some state law, of which accusation the accused must have notice in time to enable him to prepare for trial. This trial must proceed according to the established procedure or rules of practice in such state applicable to all such cases. In other words, the defendant must have his day in court. The admission of evidence for or against the accused must be according to the established rules in such state in all such cases, and the punishment inflicted must be authorized by law.”

If the defendant was denied any of his constitutional rights and was deprived of due process of law, it was in the trial in the district court, as the record discloses that the defendant Avas represented by counsel in the preliminary trial and Avhen he Avas arraigned in the district court, up to and including the day the case was assigned for trial, and Avhen it was announced by the state it was ready for trial. What right of the defendant Avas denied, if any, to show that the defendant was denied due process of laAV occurred Avhen the case called for trial, and when counsel that had been representing the defendant for thirteen days prior tO' the calling ofi the case for trial Avas permitted to withdraAV from the case, and counsel was appointed by the court and hired by the brothers to defend. It is necessary to carefully study the record to ascertain as to whether or not the defendant was deprived of due process of law by being forced to trial immediately after counsel who defended him was called in to the case, keeping in mind that from the day of the preliminary up to and including the date the case was called for trial, which had been regularly assigned for several days, tbe defendant had been accorded due process of law by having counsel representing him in his preliminary examination, and by counsel appointed by the court representing him when he was arraigned, and by counsel who had prepared a demurrer, motion for continuance, and notice to take depositions, and filed the same in the court, and having the same passed on by the court.

The defendant, in his brief, relies on Powell v. State of Alabama, reported in 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527.

A careful examination of Powell v. State of Alabama, supra, discloses the facts are not the same as in this case. In the Powell Case the crime was committed on March 25, 1931; the indictment was returned March 31, 1931, and on the same day the defendant was arraigned and entered his plea of not guilty. No counsel had been employed and aside from a statement made by the trial judge several days later and during the colloquy immediately preceding the trial, the record does not disclose when or under what circumstances an' appointment of counsel was made or who was appointed. During the colloquy the trial judge, in response to a question, said he appointed all the members of the bar for the purpose of arraigning the defendants, and he anticipated that the members would continue to represent the defendants if no counsel appeared, therefore the Powell Case is not in point, and does not sustain the contention of the defendant in this case, as it is clearly shown that in the preliminary- and in his arraignment 13 days before the case was assigned and called for trial a reputable lawyer of good standing at the bar of the court where the defendant was called to answer was appointed and continued to represent defendant until the day the case was called for trial, when counsel appointed by the court asked permission to withdraw for the reason the defendant had advised him he did not care to have him defend him further. Counsel was then appointed by the court and hired by the brothers of defendant to defend, and the court ordered the trial to proceed. At every stage of the proceedings up to the date of calling the case for trial, the defendant was represented by an able lawyer.

The record does not disclose any reason why at the late hour the defendant did not want counsel to defend him unless his request was based on the statement in the record that counsel had been trying to get him to enter a plea of guilty. Be it said to. the credit of the counsel who had been appointed to defend that he had taken every step necessary to raise the question of the validity of the information, and had filed a motion for continuance and notice to take depositions prior to his withdrawal from the case.

The question, as to whether or not due diligence was shown in the motion and whether or not the court should grant a further extension of time to give counsel an opportunity to prepare for trial is in the sound discretion of the trial court and unless that discretion has been abused this court will not reverse the same.

In Likes v. State, 54 Okla. Cr. 444, 23 Pac. (2d) 394, in the fourth paragraph of the syllabus, this court said:

“Time allowed for trial after plea of, not guilty is within court’s discretion, subject to review if abused.”

The court further stated in the opinion:

“Defendant in a criminal case is entitled to a reasonable time to prepare for trial; the time allowed for trial after plea is largely discretionary. What is a reasonable .time depends on the facts and circumstances in each case. What might be a reasonable time to prepare for trial in one case might be wholly inadequate in another.”

The facts in this case fail to show an abuse of discretion. The crime was committed on April 22, 1933, and the defendant was given a preliminary trial June, 1933; no statement is contained in the record that the defendant was a pauper and unable to employ counsel, nor is there any statement in the record showing as to what counsel representing the defendant did in the preliminary trial in preparing this case for trial and from the preliminary trial in June up to November 3, 1933. The record discloses the first time it was brought to the knowledge of the trial judge that the defendant was a pauper and had no relatives able to and willing to employ counsel for him was on the 3d day of November, 1933, the date the defendant was arraigned, and at that time counsel was appointed for him and continued to represent him until November 16, 1933, the date the case was called for trial, and counsel appointed by the court was permitted to withdraw ; it is shown that from the date of the preliminary up to and including the day the case was. called for trial on November 16, 1933, defendant had able counsel to represent him, and it is further shown that he had brothers living in the city of Muskogee where the trial was to be held.

In Hall v. State, 11 Okla. Cr. 57, 142 Pac. 1044, in subdivision (a) of the first paragraph of the syllabus, this court stated:

“A motion for continuance, based upon the ground that counsel were employed immediately prior to the calling of the case for trial, and had no time for preparation for the trial on that account, is addressed to the sound discretion of the court, and his rulings thereon will not be disturbed by this court, unless it clearly appears that such court acted arbitrarily and not in the dispassionate exercise of the discretion contemplated by law.”

In Brewer v. State, 13 Okla. Cr. 514, 165 Pac. 634, this court held:

“An application for continuance is addressed to the sound discretion of the trial court, and when such application is based upon the proposition that counsel have had insufficient time to prepare for trial, this court will review the record and consider all of the circumstances in connection with the employment of attorneys from the time the arrest was made; and when it is made to appear that capable lawyers have been employed, and have withdrawn from the case because fees were not paid, and that other capable counsel was employed, and a part of the fee paid some time prior to the calling of the case for trial, and the remainder on the date the same was called for trial, but that no effort had been to prepare the case for presentation to the jury, a reversal will not be granted on the ground that the court abused its discretion in-refusing a continuance for the term, which would amount to a delay of six months.”

There is no showing that the defendant, his relatives or his attorney who appeared for him in the preliminary trial made any effort to prepare a defense for the defendant from June until November 3,1933, when Attorney Brown withdrew from the case and Attorney Hudgins was appointed. The defendant asked that he be given a new trial so he could present the defense of insanity. The showing made by the defendant in support of his motion for a continuance discloses it was insufficient to sustain that contention, and the court properly overruled the motion of the defendant for a continuance, the defendant failing to show diligence.

It is the duty of the defendant to make an honest effort to prepare for trial. The record fails to disclose why process was not procured for the witnesses or steps taken earlier to secure the depositions or attendance of the witnesses. The defendant cannot sit idly by and wait until the day of trial before he begins to' get ready for trial. He must be diligent. If any special reason exists which causes him to fail to exercise the utmost diligence, this reason must be stated in his motion for continuance as an excuse for not having exercised the utmost diligence. No such reasons are stated in the motion, and the defendant has utterly failed to show the exercise of due diligence. He had from June, the date of the preliminary, until November 3, 1933, the date he was arraigned and counsel appointed for him; he then had thirteen days between the date of arraignment and the date the case was assigned for trial. No action was taken during that time and the motion for continuance and notice to take depositions was filed the day the case was assigned for trial.

The defendant is entitled to a reasonable time to prepare for trial. In Scott v. State, 29 Okla. Cr. 324, 233 Pac. 776, in the first paragraph of the syllabus, the court said:

“A defendant charged with crime is entitled to a reasonable time to. prepare for trial, and what is a reasonable time will depend upon the circumstances surrounding a particular case.”

The granting or denial of a motion for a continuance in a criminal case rests in the sound discretion of the trial court. Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635; Killion v. State, 19 Okla. Cr. 215, 198 Pac. 625; Smith v. State, 16 Okla. Cr. 684, 181 Pac. 942.

In; determining the question as to whether or not the court abused its discretion in overruling defendant’s motion for a continuance, this court will carefully review the record and consider all of the circumstances in connection with the employment or appointment of attorneys from the time the arrest was made, and when it is made to appear that capable lawyers have been employed or appointed and had withdrawn from the case, and other capable counsel was employed, but that no effort has been made to prepare the case for presentation to the jury, a reversal will not be granted on the ground that the court abused its discretion in refusing to grant a continuance. Brewer v. State, 13 Okla. Cr. 514, 165 Pac. 634.

The defendant urges that his motion in arrest of judgment should have been sustained and that he be given an opportunity to show that he was insane, setting forth facts in' support, of his motion. It is needless to go into detail and cite authorities upon this question, but suffice it to say that the showing made by the defendant was not sufficient to warrant the court in sustaining his motion in arrest of judgment or his motion for a new trial. This court in Roe v. State, 17 Okla. Cr. 587, 191 Pac. 1048, laid down the rule as to a test of mental responsibility.

In Adams v. State, 49 Okla. Cr. 94, 292 Pac. 385, this court said:

“The rule that insanity, once proved, is presumed to continue, obtains only in cases of a chronic or permanent nature. If the insanity, admitted or proved, is only occasional or intermittent in its nature, the presumption of its continuance does not arise.”

In Arms v. State, 49 Okla. Cr. 34, 292 Pac. 76, the fourth paragraph of the syllabus reads:

“The test of criminal responsibility for committing an act which is declared to be a crime is fixed at the point 'where the accused has mental capacity to distinguish between right and wrong as applied to the particular act and to understand the nature and consequences of such act.”

There are many other questions which have been argued by the defendant, which it is not necessary to discuss as they are not applicable to the facts as shown by the record. This court has carefully considered the question raised by the defendant as to whether or not he was denied due process of law, and, from the facts shown, have reached the conclusion that defendant’s contention is not borne out by the record.

A careful reading of the record does not indicate an abuse of discretion on the part of the trial court. The defendant seems to have become dissatisfied with counsel that was appointed by the court and the morning the case was set for trial advised that he did not want counsel to defend him. In our judgment the trial court acted entirely within the reasonable exercise of its discretion in requiring the case to be tried. The application for postponement on the ground of absent Avitnesses for a few days may or may not have been meritorious. The defendant and his associates willfully and premeditatedly waylaid the deceased on the public highway and killed him. The killing was uncalled for and without justification. Society and the law will tolerate no such conduct as the accused was guilty of in this case.

There are no errors in the record warranting a reversal. The judgment of the trial court was just and proper. The court and the jury properly discharged their duty. The case is affirmed.

The original time fixed for the execution having passed, owing, to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence in the district court of Muskogee county be carried out by electrocution of the defendant, on Friday, the 4th day of January, 1935.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J,

license: Public Domain

text:
    JESS HOLLINS v. STATE.
    No. A-8789.
    Nov. 16, 1934.
    (38 Pac. [2d] 36.)

      Redwine & Hill, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Sebe Christian, Co. Atty., for the State.
   CHAPPELL, J,

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Okmulgee county of the crime of rape by force, and his punishment fixed by the jury at death.

This offense was committed on the 26th day of December, 1931. On the 30th day of December, 1931, defendant entered his plea of guilty to the charge, and his punishment was fixed by the court at death. On the 12th day of August, 1932, defendant filed his petition in this court for a writ of habeas corpus. After a full hearing and careful consideration of the questions raised, the writ was granted and defendant remanded to the custody of the sheriff of Creek county for further proceedings according to law. Ex parte Hollins, 54 Okla. Cr. 70, 14 Pac. (2d) 243.

Thereafter defendant applied for a change of venue, which was granted and the case transferred to Okmulgee county. Defendant there demurred to the information, which was sustained by the court. The county attorney asked leave to amend the information; leave was granted by the court and the case set for trial on the 4th day of April, 1934. Because of the holding of this court in Holcomb v. State, 16 Okla. Cr. 1, 166 Pac. 755, that an amended information could not be filed in the county to which the case had been transferred, but must be sent back to the county from which it came, the county attorney filed an amended information in Creek county and the case was dismissed in Okmulgee county. After the amended information had been filed, defendant applied to this court for a, writ of habeas corpus, alleging that because the court had sustained a demurrer to the information and had not ordered an amended information filed and because the county attorney had moved to dismiss the proceedings in Okmulgee county and the court had so ordered, the sustaining of the demurrer was a bar to further prosecution and the Okmulgee court was without jurisdiction to proceed any further. Upon a hearing, this court denied the writ and directed the court clerk of Creek county to transmit the amended information and all other papers and records in his custody to the court clerk of Okmulgee county and directed the district court of Okmulgee county to proceed with the trial of the case in accordance with the court’s order in that case. Ex parte Hollins, 56 Okla. Cr. 284, 88 Pac. (2d) 35.

When the case was called for trial in Okmulgee county, defendant raised the same questions that had been raised in the second habeas corpus proceeding, but in accordance with the order of this court the objections were denied and the case proceeded to trial. The jury found the defendant guilty and fixed his punishment at death. To review that conviction and judgment defendant has appealed to this court.

It is first contended that when the court sustained the demurrer to the information it did not direct the county attorney to file a new information, and that therefore the prosecution was barred.

Section 2612, C. O. S. 1921 (St. 1931, § 2952), provides :

“If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be re-submitted to the same or another grand jury, or that a new information be filed.”

In Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18, this court said:

“Under sections 5794 to 5797, inclusive, Revised Laws 1910, if a demurrer to an indictment or information is sustained and the court is of the opinion that the objection to the demurrer may be avoided by a new indictment or information, the direction of the court to hold the defendant for further prosecution is sufficient to prevent a judgment bar arising from sustaining the demurrer, if, from the language used in the order,, it may be fairly inferred that the court intended that the case be resubmitted to a grand jury or that a new information be filed.”

In the case at bar it appears from the record that at the time the demurrer was sustained the state asked leave to file an amended information, which leave was by the court granted, and the case set for trial on the 4th day of April, 1934. It is not necessary to set out all that was said by the court and counsel. While the language of the court is informal and not as complete as it might have been, yet it may be fairly inferred from such language that the court directed the filing, of a new information.

It is next contended the amended information must be filed in the county where the case originated, and that the county attorney is without authority to file an amended information in the court to which the change of venue was granted.

The case of Holcomb v. State, 16 Okla. Cr. 1, 166 Pac. 755, holds that an information amended under such circumstances has to be filed in the court from which the change of venue was taken. We have reached the conclusion that this holding is incorrect. It is based upon a Missouri decision which argues that because under the Constitution of that state prosecutions by indictment and by information for felonies are concurrent remedies, and since an indictment could not be amended in the county to which the change was taken, it follows that an information may not be amended in that county. The decision overlooked the fact that an indictment could not be amended in either county. It required a new indictment to be returned, and of course under the Constitution only a grand jury of the county in which the offense was committed would have jurisdiction to return such an indictment. But that it not true as to an information under the Constitution and laws of this state. The county attorney, who is an officer of the court, and who is always in court, has authority to amend an information by leave of the court, and under our statute this may be done without leave of court at any time before the defendant pleads. Section 2830, O. S. 1931, provides how and when an information may be amended' either in matter of substance or of form. Section 2910, O. S. 1931, among other things, provides:

“The court to* which the action is removed must proceed to trial and judgment therein the same in all respects as if the action had been commenced in such court.”

Certainly then the court to which the change is taken has the same jurisdiction in respect to the trial of an information charging a felony as the court from which the change was taken would have had had no change been taken. Therefore, the court to which the change was taken would have authority under our statute to permit the amendment of the information within the provisions of section 2830, supra.

In State v. Lyts et al., 25 Wash. 347, 65 Pac. 530, that court said:

“Under 2 Ballinger’s Ann. Codes & St. § 4860, declaring that the court to which a proceeding is transferred on change of venue shall exercise over the same-a like jurisdiction as if it had originally commenced therein, the allowance of an amendment to the information by the couid to which a criminal prosecution has been transferred does not operate to dismiss the proceeding.”

In 1 Bishop, New Criminal Proc. § 714, it is said:

“An information differs from an indictment. Since the prosecuting officer, unlike the grand jury, is always present in court, he may, on leave, amend it to any extent not interfering with the due order of judicial proceedings.”

To the same effect is State v. Kusel, 29 Wyo. 287, 213 Pac. 367. In the Kusel Case the court took occasion to examine thoroughly all the cases upon the subject, including the Missouri case and the Holcomb Case therein referred to, and, after digesting all the authorities, in the body of the opinion said:

“Notwithstanding the constitutional guaranty to defendant of the right to- be tried by a jury of his peers in the county in which the crime is committed, he has no fundamental right to have the pleadings settled in the county where the action was commenced.”

The very purpose of a change of venue is to divest the court from which the case is transferred from any further jurisdiction in the case, and since this is true it would follow that such court would have no jurisdiction to entertain the filing of another information in that particular prosecution.

There is another reason why defendant cannot now urge these questions. In Ex parte Hollins, 56 Okla. Cr. 284, 38 Pac. (2d) 35, defendant raised these questions in his petition for a writ of habeas corpus. The adverse judgment rendered against defendant in that case makes these question res ad judicata.

It is next contended the court erred in overruling defendant’s challenge to the jury panel because no Negroes were on the jury panel, defendant alleging that they were excluded solely and exclusively on account of their race and color.

The Supreme Court of the United States has held that such a motion should be sustained where the evidence discloses that Negroes, on account of their race and color, were purposely excluded from serving on a petit jury in a criminal prosecution against a Negro; that such action does constitute unlawful discrimination and is in violation of the Fourteenth Amendment to the Constitution of the United States. Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567; Gibson v. Mississippi, 102 U. S. 565, 16. S. Ct. 904, 40 L. Ed. 1075.

This court has held to the same effect. Smith v. State, 4 Okla. Cr. 328, 111 Pac. 960, 140 Am. St. Rep. 688.

The court heard evidence on this motion and overruled the same. The burden is on defendant to prove that Negroes were excluded from the jury panel solely on account of their race and color. A careful examination of the record discloses no such evidence. Having failed to offer any proof on this question, it was not error for the court to overrule the challenge.

In connection with this error it is also alleged that the jury commissioners failed to comply with the law in the selection of the names to be placed in the jury, box, and that the sheriff failed to comply with the law in the summoning of the jury.

In Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883, this court said:

“A substantial compliance with the forms provided for by law for drawing and serving* jurors is sufficient.
“A challenge to the panel of jurors can be founded only on a material departure from the forms of law providing for drawing and summoning jurors, or the intentional omission of the sheriff to summon one or more of the jurors drawn; and, to entitle a defendant to successfully challenge a panel of jurors, the burden is upon the defendant to show that the illegality or wrong which is the basis of such challenge is such as to have caused the defendant to suffer material prejudice.”

To the same effect is Buxton v. State, 11 Okla. Cr. 85, 143 Pac. 58.

Numerous other cases of this court might also be cited.

There is nothing in the record to show failure of the officers to perform their duty, nor material prejudice to the defendant.

It is next contended the court erred in admitting, in evidence the signed statement of defendant made a few days after the offense was committed.

The statement itself recites that no threats, or force, or coercion, or intimidation, or promise of reward were used or made, and no evidence was offered by the defendant that in any wise tended to show that the statement was not made fully, freely, and voluntarily, without promise or hope of reward. Under this record, the statement was clearly admissible in evidence.

It is next contended the assistant county attorney was guilty of misconduct, in his argument to the jury.

The argument of the county attorney was sane, conservative, and free from anything objectionable. As much cannot be said for- the argument of the assistant county attorney. The principal objection to his argument is this statement:

“What are you going to do? I don’t want life imprisonment in this case because that is too uncertain— would rather you would turn him loose. I think probably somebody might take care of him. I don’t know.”

Defendant’s counsel made prompt objection to this argument, which was overruled by the court and exception saved by defendant. This argument was improper, but in view of the undoubted guilt of the defendant and the enormity and wantonness of the offense, the jury could not have been prejudiced against defendant by such argument.

For a full discussion and citation of authorities on misconduct of counsel, see Oglesby v. State, 56 Okla. Cr. 286, 88 Pac. (2d) 32.

Other questions are raised and argued by defendant in his brief, but are not considered of sufficient importance to require a separate discussion in this opinion. It is sufficient to say that none of them are fundamental and none would require a reversal of the case.

From a careful consideration of the record by each member of the court, we are satisfied defendant had a fair trial; that the verdict is just and the death penalty fully warranted. The cause is therefore affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged! by this court that the judgment and sentence of the district court of Okmulgee county be carried out by the electrocution of defendant on the 4th day of January, 1935.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    Ex parte JESS HOLLINS.
    No. A-8573.
    June 1, 1934.
    (38 Pac. [2d] 35.)
    See, also- Hollins v. State, 56 Okla. Or. 275.
   PER CURIAM.

On this 1st day of June, 1933, comes on for hearing the application of the petitioner, Jess Hollins, for the issuance of the writ of habeas corpus prayed for, and this court, having on the 12th day of May, 1933, issued a rule to show cause, directed to the sheriff of Creek county, Okla., why the said Jess Hollins should not be discharged from his custody, and on the day and date aforesaid, return to said rule to show cause having been made in open court, the court finds, upon due consideration of the petition and evidence in support thereof and in opposition thereto, that the rule to show cause should be discharged, and the sheriff of Creek county, Okla., is ordered and directed to hold the said Jess Hollins in his custody for trial on the charge of rape by force, now pending against him on change of venue to the district court of Okmulgee county, Okla., from the district court of Creek county, Okla.

And it appearing to this court that the district court of Okmulgee county, Okla., on the 27th day of February, 1933, sustained a demurrer to the information and gave leave to file an amended information against this defendant, charging said crime, and it further appearing to this court that the county attorney of Creek county has filed a new information charging said offense in the district court of Creek county.

It is ordered, adjudged, and the court clerk of Creek county is hereby directed to certify and transmit immediately upon receipt of this order to the district court of Okmulgee county, Okla., the said information and all other papers in his possession on file in the district court of Creek county, Okla., of whatever number the same may bear in Creek county, in the case wherein the state of Oklahoma is plaintff and Jess Hollins is defendant, charged with rape by force, and the district court of Okmulgee county is directed to proceed with the hearing and trial of said cause in manner and form as prescribed by law.


author: EDWARDS, P. J.

text:
    ERNEST OGLESBY v. STATE.
    No. A-8766.
    Nov. 16, 1934.
    (38 Pac. [2d] 32.)
    Harrod & Harrod and Williams, Cowan & Benedum, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted of murder in the district court of Oklahoma county and his punishment fixed at death.

On December 2, 1933, defendant shot and killed Douglas Gates, a police officer of Oklahoma City. A brief statement of the evidence surrounding the homicide is as follows: Defendant was a young man, about 27 years of age, with a criminal record of some 22 felony convictions in the state of Texas, having been convicted in seven different counties in that state, but under the irresponsible system sometimes prevalent he had been pardoned. He was living with a. young woman to whom he was not married. They had spent the night preceding the homicide at a cottage at Camp Jackson, about a mile north of the State Capitol. About 8 o’clock in the morning defendant left the camp, drove south to Twenty-Third street, then west on Twenty-Third street to Robinson, and just west of this street the killing occurred. He was driving a Chevrolet coupe which had been stolen about two weeks before from warehouse of a dealer at Fort Cobb. On the car was a tag belonging to a car which had been stolen at Weatherford about a month before and which car had been destroyed by burning near El Reno. In the car, convenient to the driver, was a sawed-off automatic shotgun, fully loaded, and in addition a box of shells for the gun. Also there was a fully loaded automatic pistol which had been taken in a burglary at Kiowa, Kan., about three weeks before the homicide. At this burglary in Kansas, 200 pennies were stolen and pennies were scattered over the floor of the car driven by defendant, in the back of the car were two pinch bars and a sledge hammer. Defendant was also armed with a police special revolver with which the homicide was committed. The deceased Gates, a police officer, and Campbell, a companion police officer, were operating a scout car, being on duty from 1 a. m. to 9 a. m. They drove into a filling station at Camp Jackson and were in or about the police car at the time defendant drove out. The police car had the usual police markings, the words “Police Car” and the . police number on both sides and on the rear, ten or twelve inches in height, Gates and Campbell were in police uniform and had on overcoats and wore police shields or insignia; they also wore police caps with prominent badges in front. The shot that killed Gates struck the edge of the shield that he wore. As defendant drove out of Camp Jackson, Campbell consulted a list of stolen' car numbers and discovered the car driven by the defendant bore tag of a stolen car. They immediately followed defendant, who drove at a high speed, and overtook him at the intersection of Twenty-Third and Robinson, where he had been stopped by a traffic signal. Campbell got out of the police car and Avent to defendant, made some inquiry and started behind the car to verify the number, defendant speeded his car, and Campbell jumped on the rear bumper or tire carrier as the car passed him. He called on defendant to stop, and in reply defendant fired through the glass in the rear, which knocked glass into Campbell’s eyes, who then fired his own pistol twice, once through the glass. About this time defendant collided with another car coming from the opposite direction, and Campbell was thrown from the rear and was unable to say as to the other shot. Defendant got out of the car and fired twice into the police car, Avhich was then in the middle of the street, and one of these shots struck and caused the death of Gates, who was at the wheel. Another car driven by a Mr. Case, who had his family in the car, was just behind the police car. Case, seeing the affray, stopped and backed his car around the corner into Robinson street, and defendant then went to that car and, with pistol in hand, forced the driver to take a circuitous route to May avenue on the west side of the city, stating the police or officers were after him. After leaving the car of Case, defendant, who had been wounded in the left arm, went to a house a few blocks away, which had been rented by him the day before under a fictitious name, and was arrested there an hour or so later. At the time of arrest he denied any knowledge of, or participation in, the shooting. The pistol used was found concealed under a stove in the bathroom. At the trial defendant admitted the killing and admitted the various convictions and the serving of time under several of them. He explained his possession of the stolen car by stating he bought it from one McDonald a week or SO' before the homicide. That he was looking at used cars at Oklahoma City when this person, whom he did not know, came up and proposed to sell it to him. That he agreed to buy for $400, paid $200' down, and was to pay the other when he was furnished title, which was to be done December 5th. That McDonald gave the address of Enid, Okla., but gave no street number. That at the time he did not know the car contained the shotgun, the shells, and the automatic pistol, but that later McDonald told him that they were there. That he did not know the pinch bar and sledge hammer were in the car. He further testified he did not see the police car at Camp Jackson as he drove out and did not know it followed him. That he did not know deceased and Campbell were police officers. That he had trouble with one Eed Shores in Texas, Shores had threatened him and he understood he was in Oklahoma City, and when the officer commanded him to stop he believed it was Shores seeking to make at attack on him, and he shot in his self-defense and only after the officers had fired and wounded him in the left forearm. That he did not discover the car deceased and Campbell were driving was a police car until after the shooting, and he then fled because he was frightened and did not know what to do. He admitted he fled from the scene in the car of Case, but denied that he forced him to drive with a pistol, but that he held his pistol down by his side.

Two assignments of error are presented in the briefs:

First. Error of the court in refusing to instruct on manslaughter in the first degree.

Second. Misconduct of the county attorney in his closing argument.

These, assignments will be discussed in the order presented.

At the time the court prepared his instructions, counsel orally requested the court to instruct on manslaughter in the first degree, which was refused and exceptions taken.

“Murder” is defined by Okla. Stat. 1931, § 2216, and “manslaughter in the first degree” is defined by section 2223, which is:
“Homicide is manslaughter in the first degree in the following cases:
“First. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
“Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
“Third. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.”

In charging the jury it is the duty of the court to state to them all the matters of law which it thinks necessary for their, information. Section 3079. It is also the duty of the court, particularly in a prosecution for murder, to instruct upon the law applicable to the case, whether requested to do so or not. Collegenia v. State, 9 Okla. Cr. 425,132 Pac. 375.

If, therefore, under any view of the evidence, whether of the state or the defendant, there is any substantial evidence tending to reduce the offense to a lower degree of homicide than murder, it is the duty of the court to instruct on such loAver degree, but where there is no evidence tending to support the lower degree of the crime, but where all the evidence is that, the killing is either murder or excusable homicide, then it is not necessary for the court to instruct the jury on the law of manslaughter. Williams v. State, 12 Okla. Cr. 39, 151 Pac. 900; Fray v. State, 46 Okla. Cr. 260, 285 Pac. 142.

It was the theory of the state, supported fully by its evidence, that the deceased and his companion discovered defendant under circumstances furnishing probable cause for believing a felony to have been committed and fully justifying them in apprehending him, and when they accosted him for preliminary questions before arrest, he began an attack, Avhich resulted in the death of one of the officers; that such homicide is murder, without any circumstances of mitigation or any evidence tending to reduce it to the lower degree.

It Avas the theory of defendant, supported by his testimony, as in part heretofore stated, that he did not know that deceased and his companion were officers, or that they were intending or attempting to arrest him, but believed he was being unlaAvfully attacked, and the shots fired by him were in his self-defense. The court instructed upon this theory in instruction 13, as follows:

“You are further instructed that if you find from, the evidence in this case that Webb Campbell and Douglas Gates, on the 3rd. day of December, 1933, at the intersection of 23d. Street and Robinson Avenue in Oklahoma City, Oklahoma, attempted to arrest the defendant, Ernest Oglesby for the larceny of an automobile or any other felony, and you further find that the defendant at the time did not know the said Webb Campbell and Douglas Gates, or did not recognize them as peace officers, and did not know or believe that they were peace officers intending to arrest him, and you further find that from the manner and conduct of the said officers it then and there reasonably appeared to' the defendant that they were mailing an unlawful attack upon him, and without authority of lav/ intended then and there to kill or inflict upon him some serious bodily injury, and that there was imminent danger of such unlaAvful intention being executed, as vieAved by the defendant, from his standpoint, and you find that the defendant shot and killed the said Douglas Gates to avoid such threatened imminent danger to him, or if you entertain a reasonable doubt thereof, then it will be your, duty to find the defendant not guilty.”

Under the theory of defendant he Avas innocent of any crime, Avas driving lawfully on the highway, and was accosted by deceased and his companion, who began an attack on him, and without knowledge on his part that they were officers, and that in repelling, the attack deceased lost his life. Under this view of the evidence he was guilty of no offense, but was fully justified. There is no middle ground. Either defendant killed the deceased for the purpose of escaping arrest and in doing so committed murder, or he defended himself from an unlawful attack and was justified in slaying deceased. That the jury believed the evidence of the theory of the state is evident from the fact that they found defendant guilty and assessed the extreme penalty.

Considering the second assignment, i. e., misconduct of the county attorney, in his closing argument, this is predicated on the following:

While defendant was testifying, the widow of deceased, seated in the har of the courtroom, made the following exclamation: “That is a dirty lie! You killed my husband, that is what you done.”

No attention was paid to this outburst. The testimony was not interrupted; counsel proceeded with his examination Avithout any break. The attention of the court was not directed to it and no objection or exception made. In the closing argument the assistant county attorney made some reference to this exclamation — the exact Avords used by him Avere not taken and are not in the record. Defendant’s counsel objected and moved to strike out the argument and to instruct the jury not to consider it. Thereupon the court said:

“The jury is instructed that any reference as to what the lady knew about the facts should be stricken, and that the fact that she made the outcry should not be considered in the testimony; and counsel will now proceed with his argument.”

Defendant’s counsel contends the remark was inflammatory and prejudicial and deprived defendant of a fair trial, citing Childs v. State, 13 Okla. Cr. 461, 165 Pac. 622; Foster v. State, 25 Okla. Cr. 36, 218 Pac. 898. The reference of the county attorney to this statement of the widow Avas improper. If, under the evidence, it may have influenced the jury in reaching their verdict, it was prejudicial error. This is not a neAV question. The courts have considered such a contention many times. The rule is that although the county attorney may have made improper remarks in his closing argument, yet, if they are AvithdraAvn from the consideration of the jury by the trial judge and there is no reason to believe defendant suffered injury thereby, they are not grounds for a new trial. Todd v. State, 93 Tex. Cr. R. 553, 248 S. W. 695; Pendergrass v. State, 157 Ark. 364, 248 S. W. 914; Carroll v. U. S. (C. C. A.) 154 F. 425; Vaughn v. State, 25 Ala. App. 204, 143 So. 211; Bowlin v. State, 93 Tex. Cr. R. 452, 248 S. W. 396; Pointer v. State, 114 Neb. 13, 205 N. W. 574; Hulsey v. State, 172 Ga. 797, 159 S. E. 270; Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003; Gunnells v. State, 7 Okla. Cr. 98, 122 Pac. 264; Wood v. State, 3 Okla. Cr. 553, 107 Pac. 937; Davis v. State, 7 Okla. Cr. 322, 123 Pac. 560; Morgan v. State, 9 Okla. Cr. 22, 130 Pac. 522; Allen v. State, 13 Okla. Cr. 395, 164 Pac. 1002, L. R. A. 1917F, 210; Foster v. State, supra; Sewell v. State, 38 Okla. Cr. 225, 260 Pac. 84; Sanders v. State, 50 Okla. Cr. 274, 296 Pac. 764.

The exclamation of the widow of deceased was misconduct. A trial court should not tolerate interruptions or disorder, but of his own motion should promptly suppress it and admonish the jury. In the instant case counsel for defendant did not attach sufficient importance to the outcry to make any objection, but when it was referred to in the argument he objected and the court sustained the objection and instructed the jury that neither the argument nor the outcry should be considered. It was then not an abuse of discretion to deny the motion for new trial on this ground.

The nature of the charge, the aggravated circumstances under which the crime was committed, and the extreme punishment assessed have called the earnest attention of all the members of the court to the able briefs of counsel and the contentions made. We are satisfied defendant had a fair trial, that the verdict is just, and the death penalty fully warranted. There is no reason for this court to set aside or modify the judgment. The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Oklahoma county] be carried out by electrocution of the defendant on the 4th day of January, 1935.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    BUD ARMSTRONG v. STATE.
    No. A-8755.
    Nov. 23, 1934.
    (37 Pac. [2d] 983.)
    R. N. Linville, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was; by information charged with possession of one gallon of whisky, with the unlawful and wrongful intent of selling, transporting, and otherwise furnishing the same; was tried on the information; and the jury returned a verdict of guilty, fixing the punishment at $100 fine and 60 days’ imprisonment in the county jail.

The state called three witnesses, all of whom were officers, who testified they went to the home of the defendant with a search warrant and found in the kitchen of the defendant, in a water bucket, a liquid which the officers said was whisky; two one-half gallon jars were found in the kitchen, each of which the officers stated contained a small quantity of whisky. No other paraphernalia, bottles, boxes, or containers were found in or around the place of defendant. The charge upon which the defendant was tried is that he had whisky in his possession, with the unlawful and wrongful intent of selling, transporting, and otherwise furnishing the same, contrary to the form of the statute.

The state, in order to sustain its allegations, introduced over the objection of the defendant the affidavit for the search warrant and the search warrant. The affidavit for the search warrant, among other things, alleges that:

“Intoxicating liquors are being manufactured, sold, bartered, given away and otherwise furnished in violation of law and are being*, kept for the purpose of selling, bartering, giving away and otherwise furnishing said liquor in violation of the law of the state of Oklahoma by Bud Armstrong or party unknown to affiant, and that said intoxicating liquors are being manufactured, stored and kept on the following described premises, to wit; the buildings, basements, cellars, appurtenances and premises situated and being: On lots 13 and 14 in block A in the city or town of Elk City, DeWaide Add Beckbam county, state of Oklahoma.
“Affiant further states that the said premises above described are the private residence of the said Bud Armstrong or party unknown to affiant, occupied as such, and that it is a place of public resort or some part of it is used as a place of storage for intoxicating liquors, and as a storehouse, resort, or place where people congregate for the purpose of obtaining intoxicating liquors and drinking the same, as he has observed this place for the past two weeks and seen cars going and coming out at all hours of the day and night, some of the occupants appeared to be intoxicated and some had what appeared to be bottles in their pockets.”

The recitals in the search warrant are substantially the same as in the affidavit.

The defendant insists that the court erred in overruling his motion for a new trial. One of the grounds of the defendant’s motion for a new trial is that the court erred in the admission of illegal evidence on behalf of the state, over the objection of the defendant. The court admitted the affidavit for the search warrant and the search warrant as a part of the state’s evidence in chief. The statements in the affidavit and the search warrant are with reference to' the offense charged. It is fundamental that ex parte affidavits are not admissible in evidence. The admission of the affidavit and search warrant as independent evidence was prejudicially erroneous. Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858; Bruner v. State v. State, 44 Okla. Cr. 425, 281 Pac. 319.

There are other errors assigned, but the view we take of this record makes it unnecessary to consider them. The case is reversed.

CHAPPELL, J., concurs. EDWARDS, P. J., not participating.


author: CHAPPELL, J.

text:
    JAMES BRANN v. STATE.
    No. A-8747.
    Nov. 23, 1934.
    (37 Pac. [2d] 982.)
    S. J. Montgomery and T. H. Haugh (Leslie W. Lisle, of counsel), for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the county court of Osage county of the offense of depositing salt and other deleterious substances in Bird creek, under section 11567, Oklahoma Statutes 1931, and his punishment fixed by the jury at a fine of $350.

Defendant was prosecuted by indictment, which was returned by a grand jury impaneled in the district court, but, the offense being a misdemeanor, the indictment was certified to the county court, where trial was had.

Numerous errors are set out and argued in defendant’s brief, but for the purpose of this opinion it will only be necessary to pass upon, his No. 10, in which he alleges:

“The evidence in this case is insufficient to support the verdict rendered therein and the verdict and judgment is not' supported by the evidence.”

The evidence of the state was that the lease in question was known as the “Enfisco Lease,” which is located 25 miles northeast of the Pawhuska water reservoir; that defendant owned a % interest in the lease, his son a 1/32 interest, and the balance of the lease was owned by the Enfisco Oil Corporation; that between the Pawhuska reservoir and the Enfisco lease was a large number of other producing wells whose waste material went into Bird creek; that complaint had been made about salt water produced on! the Enfisco- lease and the city had called on defendant to take care of it; that an agreement was entered into whereby defendant was to drill a deep well and install some pumps and pump salt water into certain ponds upon the lease; that, in pursuance of that agreement, defendant did drill a well and install pumps and attempt to dispose of the salt water; that, complaint having been made to the Osage Agency that the Enfisco Oil Company was not taking care of the salt water, thereupon the agency shut the lease down and permitted the production of neither oil nor salt water for some time prior to the date of the offense alleged in the indictment; that a receiver had also been appointed for the lease in the federal court; that on or about the 28th day of May, 1934, certain dikes on the lease were cut and the salt water stored in the ponds allowed to escape; that the state offered no proof that defendant had anything to do with the cutting of the dikes nor releasing the water, nor did it offer any proof that any of the released water ever reached the Pawhuska reservoir.- In fact, the exhibits brought out by the state and its evidence show that there was no change in the condition of the water in the reservoir for 90 days prior to the time the offense was alleged to have been committed.

When the state rested, defendant demurred to the evidence and asked the court to advise the jury that the evidence was insufficient to support a verdict of guilty, which was denied by the court. Thereupon, defendant, testifying for himself, denied that he had anything to do with or knew anything about the cutting of the dikes, and that none of the salt water from his lease ever reached Bird -creek. Other witnesses for the defendant testified that they had land below the lease and along Bird creek leased for- pastures, and that any salt water that might have escapéd from the Enfisco lease never reached the main creek, and that stock drank out of this creek below the lease, and that fish Avere caught there. At the close of the case, defendant reneAved his demurrer to the evidence, which was overruled.

To support the verdict, the state must prove that defendant wrongfully, Avillfully, and unlaAvfully deposited or placed, or permitted to be deposited or placed, in. Bird creek salt water or other deleterious substances and the water in the city reservoir Avas contaminated by the deposit from defendant’s lease.

A careful examination of the record reveals no competent proof to support this charge. The cause is therefore reversed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ROY MAITLEN v. STATE.
    No. A-8759.
    Nov. 23, 1934.
    Rehearing Denied Dec. 7, 1934.
    (38 Pac. [2d] 964.)
    Meacham, Meacham & Meacham, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (Hester Atherton Gifford, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor with the unlawful intent to sell the same to others, and sentenced to pay a fine of $100 and to be imprisoned in the county jail for 15 days.

The evidence on behalf of the state, in substance, shows that on the 27th day of May, 1933, Sheriff Simpson, of Custer county, procured a search warrant to search the premises of this defendant, and Ed Phelps, a police officer, and Delmar Russell, a deputy sheriff, accompanied the sheriff to the hotel where the defendant occupied an apartment in the north end of the ground floor of a building known as the Lacy Hotel. The testimony shows there was an adjoining apartment on the south and a shed room joined on to< the northeast corner of the Lacy Hotel which extended up to the first story of the hotel.

The sheriff testified in making the search they found two full pints and two parts of pints of whisky. This testimony is corroborated by the other officers accompanying the sheriff.

The testimony on behalf of the defendant is that the whisky found by the officers did not belong to the defendant, but had been brought into the apartment by his son, Chick Maitlen, and a couple of boys; that the wife of the defendant had taken the whisky from the boys and placed it under a dresser in their bedroom. The testimony shows the officers also found some cases of empty bottles. Chick Maitlen testified that the three cases of bottles were delivered to the Maitlen apartment for Prank Sturgis, who lived in the adjoining apartment, as the door to the Sturgis apartment was locked and no one was in the Sturgis apartment. This is in substance the testimony.

Several errors have been assigned and discussed by the defendant. The first question discussed by the defendant is that the court erred in overruling his motion to suppress the evidence on the ground that it was secured by an unlawful search and seizure. The description of the property to be searched is as follows:

“That portion of lots 20, 21, 22, 23 and 21 in block 26, original town of Clinton, Oklahoma, which is occupied by Roy Maitlen as a residence, being more particularly described as follows, to wit: The northeast room and shed room adjoining thereto of the ground floor of the Lacy Hotel, and that said property above described is occupied by Roy Maitlen as a residence.”

The defendant insists that the description in the affidavit and the search warrant as herein set out is insufficient to warrant the officers in searching his apartment, and especially that part of his apartment known as the bedroom, and in support of his contention he cites Blackwell v. State, 48 Okla. Cr. 156, 290 Pac. 352, and Collier v. State, 54 Okla. Cr. 441, 23 Pac. (2d) 393, and urges that the affidavit in this case is identical with the affidavit considered by the court in the Blackwell and Collier Cases, supra. In both of these cases the affidavit for the search warrant merely stated that there was a certain resort in, upon and about a certain described tract of land. There was no statement in the affidavit in either case that the residence of the defendant was a place of public resort. The affidavit mentioned a certain public resort somewhere in,, upon, or near the lands described in the affidavit, but wholly failed to state the home of the defendant was a place of public resort.

In this case under consideration the affidavit is by no means a model, but describes all the grounds, outbuildings, and the Lacy Hotel, including in the description that part of the Lacy Hotel occupied by the defendant as his residence, and is not identical with the Blackwell and Collier Cases. It is regrettable that officers, when an affidavit for a search warrant is applied for, do not describe the property to be searched in clear and concise language and not include other properties not claimed to be in the possession of the parties to be searched as a part of his residence. In this case there are sufficient facts stated in the affidavit to justify the issuing of the search warrant, and the motion of the defendant to suppress was properly overruled.

It is next argued by the defendant that the whisky was not found in the place described in the affidavit and warrant, and that the right to search is limited to the place described in the warrant. The force of defendant’s argument is that the whisky found by the officers was found in the bedroom of the defendant’s residence and not in the northeast room of the Lacy Hotel as described in the warrant; defendant insisting that the place where the Avhisky was found was a separate and distinct room to the northeast corner room of the Lacy Hotel. With this contention we do not agree. It is perfectly apparent that the northeast room of the Lacy Hotel and the other descriptions in the affidavit are sufficient to' include all of the divisions of the apartment occupied by the defendant.

It is next argued by the defendant that instruction No. 3 is erroneous and prejudicial to' the rights of the defendant, and for that reason the case should be reversed, citing in support of his contention Walton v. State, 53 Okla. Cr. 24, 3 Pac. (2d) 212, 213. The Walton Case was reversed on the ground that the court did not go far enough in its instruction; this court, after quoting the instruction in Walton v. State,’supra, in the last paragraph of its opinion stated:

“Even though an accused is proved to possess more than the prohibited quantity, it is not obligatory upon the jury to convict, but they must believe from all the evidence beyond a reasonable doubt that the accused is guilty, and the court by some apt language should SO' instruct the jury.”

The court in this case in instruction No. 3 in definite and concise language explained to' the jury what was meant by prima facie evidence, and stated:

“And in this connection you are instructed that if you find and believe from the evidence in this case beyond a reasonable doubt that the defendant Roy Maitlen had in his possession about three pints of whisky containing more than 3.2 alcohol measured by weight and capable of being used as a beverage, then you will consider that fact in connection with all the other facts and circumstances in arriving at your verdict.”

The contention of the defendant as to- instruction No. 3 is without merit. There are several- other questions argued and discussed by the defendant, but, after a careful consideration, we find they do not possess sufficient merit to warrant a reversal.

In this case, the defendant, in an effort to- avoid a conviction, introduced testimony of his son and another witness to show that the whisky found in his room belonged to his son and not to the defendant, and also that the cases containing the empty bottles were left there by some one, whose name was not given, to be delivered to a man by the name of Sturgis. This testimony is unbelievable, and a parent should not place his son on the stand and permit him to- testify as the son did in this case even though the father may cherish the hope that the evidence may aid him in being acquitted.

The defendant was accorded a fair and impartial trial. The instructions of the court, considered in their entirety, correctly stated the law applicable to the facts in the case. The requested instructions of the defendant were properly refused by the court.

There being ample evidence in the case to support the verdict of the jury and the errors complained of being without merit, the case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    BIGGS v. WATT, Chief of Police, et al.
    No. A-8840.
    Dec. 5, 1934.
    (38 Pac. [2d] 587.)
    W. C. Hall and A. L. Jeffrey, for petitioners.
    Harlan Deupree, Municipal Counselor, and A. P. Van-Meter, Asst. Municipal Counselor, for respondents.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by John Watt, chief of police of Oklahoma City, and others. That he was charged in the police court with “* * * operating an oil well without a permit, * * *” and that there is no ordinance of said city making the operation of an oil well without a permit an offense.

In the return to the writ the respondents seek to justify the prosecution, conviction, and imprisonment of petitioner under the terms of Ordinance No. 3944 of said city. Said ordinance, in section 2, defines an offense: “To drill or put down any petroleum or gas well” unless a permit therefor shall have been first obtained. It nowhere provides for a permit to operate an oil well no’r defines an offense for the operation of an oil well without a permit. Under the settled rule that penal statutes cannot be enlarged by implication or extended by inference, the prosecution must fail. McDonald v. State, 54 Okla. Cr. 122, 15 Pac. (2d) 149. There being no ordinance defining the offense sought to be charged, the municipal court had no jurisdiction. The writ is awarded, and petitioner discharged.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    G. R. COULTER v. JOHN WATT, Chief of Police, et al.
    No. A-8843.
    Dec. 5, 1934.
    (38 Pac. [2d] 588.)
    W. C. Hall and A. L. Jeffrey, for petitioners.
    Harlan Deupree, Municipal Counselor, and A. P. VanMeter, Asst. Municipal Counselor, for respondents.
   PER CURIAM.

This case presents the same question as Biggs y. John Watt et al., 56 Okla. Cr. 306, 38 Pac. (2d) 587, just decided, and on the authority of that case the writ is awarded, and petitioner discharged.


text:
    F. S. COURTER v. JOHN WATT, Chief of Police, et al.
    No. A-8841.
    Dec. 5, 1934.
    (38 Pac. [2d] 588.)
    W. C. Hall and A. L. Jeffrey, for petitioners.
    Harlan Deupree, Municipal Counselor, and A. P. VanMeter, Asst. Municipal Counselor, for respondents.
   PER CURIAM.

This case presents the same question as Biggs v. John Watt et al., 56 Okla. Cr. 306, 38 Pac. (2d) 587, just decided, and on the authority of that case the writ is awarded, and petitioner discharged.


text:
    L. A. COURTER v. JOHN WATT, Chief of Police, et al.
    Na. A-8842.
    Dec. 5, 1934.
    (38 Pac. [2d] 587.)
    W. C. Hall and A. L. Jeffrey, for petitioners.
    Harlan Deupree, Municipal Counselor, and A. P. VanMeter, Asst. Municipal Counselor, for respondents.
   PER CURIAM.

This case presents the same question as Biggs v. John Watt et al., 56 Okla. Cr. 306, 38 Pac. (2d) 587, just decided, and on the authority of that case the writ is awarded, and petitioner discharged. _


text:
    J. PAUL MATHIES v. STATE.
    No. A-8725.
    Dec. 7, 1934.
    (38 Pac. [2d] 588.)

      See, also, 55 Okla. Or. 14, 28 Pac. (2d) 594.
    Babb, Bennett & Babb and White & White, for plaintiff in error.
    J. Berry King, Atty. Gen., F. M. Dudley, Asst. Atty. Gen., and A. G. Windham, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter referred to as defendant, was convicted in the district court of LeFlore county of the offense of willfully, knowingly, intentionally, fraudulently, unlawfully, and feloniously approving a certain unlawful, fraudulent, and unauthorized claim against LeFlore county, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of five years.

It appears from the record that the defendant was a member of the board of county commissioners of LeFlore county from 1925 to 1932, and during four years of that time was chairman of the board; that claim No. 519 for the fiscal year 1929-1930 was prepared in the name of L. A. Harper as claimant and filed with the county clerk and duly allowed by the board of county commissioners on the recommendation of defendant, and that a warrant was issued by the clerk and delivered to defendant, payable out of the funds allotted to defendant’s commission district No. 2 for road work purporting to have been performed in that district under defendant’s supervision; that the claim and warrant were both missing from the files of the county clerk, together with a large number of other claims and warrants involving other alleged unlawful transactions of defendant; that the evidence of the state disclosed 149 other warrants issued apparently according to the same system employed in allowance of the L. A. Harper claim, and the issuance of warrants thereon; that 69 of the warrants so issued were delivered to defendant; that 30 of these claims were filed by defendant; that in 68 of these cases neither the claim nor the warrant could be found, but the record indicated that the warrants had been delivered to defendant; that 17 of the warrants introduced indicated indorsement of the payee’s name by defendant; that defendant frequently requested the county clerk to leave the door unlocked between the commissioner’s office and the clerk’s office to make it convenient for him to work at night, and that defendant at all times had access to these purported unlawful and fraudulent records.

To sustain its allegation that the claim was fraudulent and unlawful, the state called 40 witnesses residing in commissioner’s district No. 2, who testified they had resided in that district from 10 to 30 years, and that many of them had been engaged in road work under defendant during the time defendant was commissioner; that none of them had ever seen, heard of, or worked with.L. A. Harper ; and that as far as they knew no such person had ever done any road work in LeFlore county, and particularly any road work in commissioners’ district No. 2. Wherever these witnesses testified to knowing of any of the other 149 claims presented, those persons were immediately subpoenaed and brought into court, and all those who could be found testified that they had never done any work in LeFlore county and had never filed' any claim and had received no part of the proceeds of these warrants.

The defendant did not take the witness stand.

Defendant called Woodson Matties, his brother, to prove that L.. A. Harper was a real person and that after he had indorsed the warrant the witness cashed it at his hank.,

On cross-examination, however, this witness said he did not see L. A.; Harper indorse the warrant, nor did he cash it for him; that he had no personal knowledge of the matter and was merely testifying from what the bank records purported to disclose.

The state had previously used this witness to- show that the state’s exhibit 358, being a warrant included in the list of other offenses, for the sum of $427, had been cashed at his bank; that the warrant was presented and indorsed by defendant and the witness gave him $427 in cash.

To sustain the charge, the state must prove that the defendant in his official capacity approved the L. A. Harper claim knowing the same to be fraudulent and unlawful. Proof of these facts by direct evidence would usually be impossible.

After the state had shoAvn that defendant was county commissioner, that he presented the claim and vouched for it, and that it was approved and allowed by the board of county commissioners while he was chairman, and that he received the warrant from the clerk, the state then showed by numerous long-time residents of that section of the country that no such person existed or was known in that community, and that defendant in the same manner had handled 149 other claims, some of which were fictitious and fraudulent, and others for real persons but fraudulent. This evidence is sufficient to support the verdict of the jury and the case must be affirmed unless the errors complained of by defendant are sufficient to require a reversal.

Defendant’s second contention is that there is a fatal variance between the allegations of the information and the proof offered.

The information charges in substance that defendant was the duly elected, qualified, and acting commissioner of LeFlore county, and in his official capacity did willfully, knowingly, intentionally, fraudulently, unlawfully, and feloniously approve and allow a certain unlawful, fraudulent, and unauthorized claim against the said LeFlore county, to wit, claim 519 of the fiscal year 1929-1930, said claim being against the road fund for labor performed by one L. A. Harper on the county highway of said LeFlore county; that said L. A. Harper did not perform the work and labor charged for in said claim, but he, the said J. Paul Mathies, well knowing said claim to be unlawful, unauthorized, and fraudulent, as aforesaid, did unlawfully, intentionally, knowingly, and feloniously approve and allow the same; defendant’s particular contention being that the state was bound to prove the direct allegation that L. A. Harper had not performed the work and labor, and that it was insufficient to show that he was a fictitious person, and that said proof constituted a fatal variance between the allegations and the proof.

To support its claim, the state showed the claim was filed by the defendant and on his recommendation it was allowed, and that the warrant was delivered to him, all of which indicated that L. A. Harper was a fictitious person and had not performed the labor for which the claim was filed. To further support its case, the state then introduced proof by other men who had worked for years in that road district, and by others who had lived there from 10 to 30 years, that no such person had performed any work to their knowledge, or had been seen or was known in that community, the contention of the state being that when they showed this set of circumstances and further that such an individual was unknown in the community and that he was a fictitious person, that they had produced the proof required by law to support the charge; that if L. A. Harper was a fictitious person, as a matter of fact and law he had not performed the labor, and if defendant knowing these facts had caused the warrant to be issued and received it himself, he was guilty as charged. If L. A. Harper was a fictitious person, it necessarily follows that the claim charged in the information was unlawful for the reason that said L .A. Harper had not performed the work or labor collected for.

In Nichols “Applied Evidence,” vol. 2, p. 2138, it is said:

“In order to prove that there was no such person as had been supposed or pretended to be indicated by a name, a witness may testify to his search and inquiries made for the purpose of finding such person among persons most likely to know him if there were such a person, and also as to the result.”
“To convict of forging a draft signed by a fictitious person, it was not necessary to prove that there was no such person in existence at the time the writing was signed, it being sufficient to show to a common certainty that there was no such person in the vicinity of and connected with the particular acts charged in the place and county where jurisdiction accrued.”
“Guilty knowledge of the spurious character of an instrument uttered by the accused, may, like any other fact, be proved by circumstantial evidence.”

To the same effect are: State of Louisiana v. Hahn, 38 La. Ann. 169; People v. Eppinger, 105 Cal. 36, 38 Pac. 538; People v. Sanders, 114 Cal. 216, 46 Pac. 153; People v. Gordon, 13 Cal. App. 678, 110 Pac. 469; State v. Peeples, 71 Wash. 451, 129 Pac. 108; Miner v. State, 27 Ariz. 248, 232 Pac. 875; People v. Ruche, 74 Cal. App. 556, 241 Pac. 279.

In 3 Greenleaf on Evidence, m tH rH r-i

“This was prima facie proof that Miller was not a real person until the prisoner should produce him or give other proof of his existence.”

When the charge and the state’s proof are considered with the authorities cited, it is evident that there was no variance between the charge and the proof.

It is next contended the court erred in admitting evidence of other similar transactions.

This court has had this question before it in many cases, the latest of which was Quinn v. State, 54 Okla. Cr. 179, 16 Pac. (2d) 591, where the court laid down the general rule with its exceptions and cited many authorities of this and other courts to sustain its position on that question.

The state’s proof was intended to show a plan or scheme on the part of the defendant whereby periodically each year he would file these claims and cash these warrants. The court instructed the jury that this evidence was received only for the purpose of showing plan or scheme, and that if the jury failed to find or had a reasonable doubt that the defendant was guilty as charged, that they must acquit him notwithstanding these other acts. The evidence was clearly admissible and all defendant’s rights were preserved by the instructions of the court.

It is next contended the court erred in permitting the state to introduce 149 other claims, after it had made its preliminary proof and introduced in evidence the claim alleged to be fraudulent.

In Waller v. State, 19 Okla. Cr. 329, 199 Pac. 224, this court said:

“Where evidence admitted is competent, ordinarily the order in which it is admitted will not constitute reversible error.”

In Smith v. State, 36 Okla. Cr. 9, 251 Pac. 507, this court said:

“Evidence received out of order will not work a reversal, where, if introduced in order, the result would probably have been the same.”

A careful examination of the record reveals no abuse of discretion on the part of the trial court in the introduction of the state’s evidence.

Some complaint is made concerning the giving and refusal of instructions, but they are without any substantial merit.

It was contended by the defendant that it was the custom of the board of county commissioners of that county for each member to have charge of the funds allotted to his particular district; that he filed the claims and received the warrants, sometimes cashing them and delivering the proceeds to those who performed the labor; and that the acts complained of constituted at most only a legal irregularity.

This court cannot put its approval on any such system. It is wholly unauthorized by law, and, if followed to its logical end, can result only in wrongdoing and fraud upon the part of those who engage in it. The defendant during all the years he was on the board of county commissioners continually and systematically under this system robbed the taxpayers! of LePlore county through manipulation of false and fraudulent claims. The verdict of guilty is fully supported by the evidence, and the punishment administered is reasonable under all the circumstances.

No reversible error appearing, the cause is, affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ARLEY WARD et al. v. STATE.
    No. A-8770.
    Dec. 7, 1934.
    (38 Pac. [2d] 582.)
    Homer H. Bishop and H. H. Edwards, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter referred to as the defendants, were informed against in the district court of Murray county, were tried and convicted of robbery with firearms, and sentenced to serve 25 years each in the state penitentiary.

From this judgment of conviction, the defendants have appealed to this court, and the appeal is brought to this court on a transcript of the record alone. No case-made is attached or made a part of the record in this court.

Under section 3146, O. S. 1931, a transcript of the record is composed only of the following papers: First, the indictment and a copy of the minutes of the plea or demurrer; second, a copy of the minutes of the trial; third, the charges given or refused, and the indorsements, if any, thereon; and fourth, a copy of the judgment.

The second assignment urged by the defendants is, that the court erred in overruling their demurrer to the information. This assignment is the only question presented by the petition in error in this case which this court can properly review on the transcript of the record, as the action of the court in the overruling or sustaining of the demurrer is made a part of the record by the statute. The defendants in their brief have not presented any argument on the question that the court erred in overruling’ their demurrer to the information. This court has carefully examined the information and finds that it states facts clearly and sufficiently to advise the defendants of the charge against them, and to enable them to properly prepare their defense. The court did not err in overruling the demurrer of the defendants.

The defendants in their brief have presented an argument in support of their contention that the court erred in overruling their motion for a continuance. . The minutes of the clerk incorporated in the transcript, of the record show that a motion for a continuance was presented by the defendants and overruled by the court. The motion for a continuance is not a part of the record on appeal by transcript, and therefore is not before this court for consideration. Stueble v. State, 7 Okla. Cr. 728, 123 Pac. 1134; Hembree v. State, 15 Okla. Cr. 422, 177 Pac. 385; Likes v. State, 54 Okla. Cr. 444, 23 Pac. (2d) 394.

The defendants, in their petition in error, have set forth several assignments, but in view of the fact that this is an appeal by transcript, they are not properly before this court for review. This court has always tried to protect the constitutional and statutory rights of persons convicted of crime, and to give to their appeal the fullest consideration permitted by law. The court has considered all the questions presented by this appeal by transcript. No reversible error is presented. The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.