text:
    WALLACE ESTILL, Jr., v. STATE.
    No. A-6151.
    Opinion Filed May 4, 1929.
    (277 Pac. 256.)
    A. S. Norvell and Goode & Dierker, for plaintiff in error.

      George F. Short, Atty. Gen, and Leverett Edwards, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior Pottawatomie county of the crime of obtaining property by false pretense and was sentenced to serve the term of three years in the penitentiary.

The defendant assigns numerous grounds of error, but we deem it only necessary to pass upon defendant’s) third and fourth assignments to dispose of the case. The assignments read as follows:

“That the court erred in his ruling upon the introduction of evidence in support of motion to quash and excluding competent, material, and relevant testimony offered by the plaintiff in error and refusing to permit the plaintiff in error to introduce such evidence, to' all of which rulings the plaintiff in error excepted to at the time.
“That the court erred in overruling the motion to quash in this cause.”

■ The defendant filed his application in proper time, setting out that he was being proceeded against in the superior court, setting out and attaching, his motion to set aside and quash the indictment, and alleging under oath that he was acting in good faith, and praying for an order to examine witnesses in support of his application to set aside and quash the indictment. Due notice was served on the county attorney of the time and place to hear this motion. The trial court set the hearing on said application for the 22d day of May, 1925. Thereupon the defendant produced as a witness W. W. Gilbert, who was duly sworn, and it was stipulated that he was the county treasurer, who testified as follows:

“Q.. Mr. Gilbert, you testified before the grand jury, did you, in reference to these charges? A. Yes, sir.
“Q. Just relate to the court what your evidence was before the grand jury on this matter.
“Mr. Durham: To which the state objects as being incompetent, irrelevant and immaterial, and inadmissible.
“The Court: It is incompetent, for the purpose of this hearing; objection sustained for the reason it is incompetent for the defendant to call a witness who testified before the grand jury and cross-examine him in regard to the particular evidence they gave, but can only inquire as to> the subject-matter of the testimony.
“Mr. Reily: Exception.
“Q. What subject did you testify about?
“Mr. Reily: Now, at this time come the defendants and each of them and offers to interrogate the witness, and introduce the exact evidence that he gave before the grand jury relating to the alleged offenses set forth in the indictment in these particular causes.
“Mr. Durham: To which offer the state objects for the reason it would be incompetent, irrelevant and immaterial and inadmissible.
“The Court: Objection sustained.
“Mr. Reily: Exception.
“Q. All right; what was the subject-matter that you testified to? A. Well; it related, as I remember now, to warrants — particular warrants of the Board of Education of School District No. 93, city of Shawnee, which had been used by the National Bank of Commerce and also by the First National Bank of Tecumseh to secure deposits of the county, county deposits in the bank.
“Q. Was any evidence given as to how you got possession of those warrants? A. Yes, sir.
“Q. What was the substance of the evidence on that?
“Mr. Durham: State objects to that question as being incompetent and inadmissible.
“The Court: 'Sustained.
“Mr. Reily: Exception.
“Mr. Reily: The ruling of the court, then, is that we cannot introduce any evidence at all to show what the evidence was before the grand jury with reference to these indictments?
“The 'Court: No, sir, that is not the ruling of the court. The ruling of the court is that witnesses may be called in support of this motion for the purpose of showing whether or not they testified before the grand jury from facts in their independent knowledge or from records and books of which they were the custodians, but the particulars of that evidence cannot be inquired into.
“Mr. Reily: Exception to the ruling of the court.”

Thereafter witnesses H. G. Faust, Mrs. Anna May Hunt, Neal Wimmer, L. C. Bocher, R. C. Arington, George Hunter, Ed Campbell, J. S. McIntyre, J. C. Baker, A. S. Merritt, G. S. Baxter, J. D. Keller, and N. M. Pell were each and all duly sworn and offered by the defendant as witnesses to testify in support of his motion to set aside and quash the indictment, and the court made practically the same ruling with reference to these witnesses as to witness W. W. Gilbert, which objections were sustained by the court. The defendant then made the following offer:

“Comes now the defendants and each of them and offers to show at this time in support of their motions to quash and for the purpose of showing there was incompetent, irrelevant and immaterial evidence before the grand jury upon which the indictments were founded, by the witness, the foreman of the grand jury, the evidence in detail of Neal Wimmer, E. C. Manney, Anna May Hunt, F. D. Keller, Sam' Larson, G. S. Baxter, George Hunter, A. B. Merrit, R. 0. Arrington, Ed. Campbell, J. C. Baker, J. S. McIntyre, W. W. Gilbert, H. G. Faust, L. C. Bocher, whose names appear as the witnesses endorsed upon the backs of the indictments and the copies thereof that was served upon the attorneys for the defendants 'by the county attorney’s office.”

To which the state objected:

“To which the state objects as incompetent, irrelevant and immaterial and inadmissible.”

Which objections were sustained by the court in the following language: “The court holds it is inadmissible for this witness to testify or undertake to testify to the evidence of the witnesses given before the grand jury. Objection sustained.”

To the line of testimony which the defendant was seeking to offer, which was being objected to by the state as incompetent, irrelevant, and immaterial, the court said:

“It is the purpose of the court to investigate and see whether or not any incompetent evidence was introduced, but it is also the purpose of the court to keep out a fishing expedition to find out what the witness did testify to before the grand jury, in order that they may prepare a defense.”

Section 2598, C. O. S. 1921, provides as follows:

“To enable the defendant to make proof of the matter set up as grounds for setting aside the indictment or information the defendant may file his application before any court of record in the county, setting out and alleging that he is being proceeded against in a certain court, naming it, and setting out a copy of his motion, and alleging, all under oath, that he is acting in good faith, and praying for an order to examine witnesses in support thereof. The court shall thereupon issue subpoenas to compel any or all witnesses desired to appear before him at the time named, and shall compel the witnesses to testify fully in regard to the matter and reduce the examination to writing, and certify to the same, and it may be used to* support the motion. The mover shall pay the costs of the proceeding. He shall notify the county attorney at least two> clear days before he proceeds, of the time and place of taking such testimony, and the county attorney may be present and cross-examine the witnesses, and if need be, the case in the district court must be adjourned for that purpose.”

Section 2599, C. O. S. 1921, further provides:

“All witnesses, including grand jurors, shall be bound to answer fully, and shall not be answerable for the testimony so given in any way, except for the crime of perjury committed in giving such evidence. When a grand juror has been fully examined as to his qualifications to sit, and has answered under oath that he is qualified, and has been received by the court and permitted to act, his incompetency shall not thereafter be shown as a ground of objection to any indictment returned by that grand jury.”

Defendant having in time complied with the provisions of section 2598, he brought himself within the provisions of section 2599,, which gave him the right to have all witnesses, including grand jurors, to answer fully with reference to the testimony which they gave or which was heard by the grand jury.

In the case of Royce v. Territory, 5 Okla. 61, 47 Pac. 1083, Mr. Justice Tarsney, delivering the opinion of the court, says:

“These provisions simply declare and codify the rules of the common law, under which no indictment was valid, unless found and based upon legal and competent evidence; that its invalidity, in this respect, might be brought to the attention of the court by a plea in abatement, and that the facts to sustain said plea might be shown by the testimony of witnesses, and that the defendant was of right entitled to a trial of the matters so set up and relied upon in his plea in abatement. It is true that at the common law, a motion to quash or a plea in abatement was an appeal to the discretion of the judge, and that matters of judicial discretion cannot ordinarily be reviewed upon appeal; but that proposition is not involved in the case at bar. Here, the court below refused to exercise that discretion 'by refusing to set a day for hearing of the matters set up in the motion, and by refusing to summon or hear witnesses in that) behalf and by summarily overruling the application and motion. We think this was substantial error against the rights of the defendant. He could only be legally put upon trial upon a valid indictment; to the validity of such indictment it was essential that it should have been found by a grand jury upon legal and competent evidence tending to sustain the offense charged. The defendant sought to avail himself of the rights guaranteed to him, both by the common law and the statute, by showing that such indictment was found without any legal or competent evidence, showing the commission of the crime charged.”

Section 17, art. 2,, Constitution of state of Oklahoma, provides:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information.”

This section of the Constitution does not mean an accusation in the form of an indictment, but does mean a presentment or indictment found and returned by a grand jury, legally selected, impaneled, and sworn, and upon competent evidence, as authorized by law; and a trial of a person for such crime without an indictment thus found and returned is in violation of constitutional right and void.

Where a defendant files a motion to set aside and quash an indictment on the grounds that it is found by the grand jury, without legal and competent evidence but upon hearsay testimony and no sufficient testimony, and makes an application to the trial court to set a day for the taking of testimony as to the matters alleged in said! motion in accordance with section 2599, O. O. S. 1921, it is reversible error for the court to refuse to permit the defendant to examine the witnesses fully who appeared before the grand jury when such indictment was returned, and error also to refuse the defendant the right to examine the grand jurors fully as to the evidence offered before them in support of such indictment.

This court has held in numerous cases that it will not reverse a case except where the defendant has been deprived of a constitutional or statutory right; but in the case at bar the defendant has certainly been deprived of both his constitutional and statutory right to examine the witnesses and grand jurors on his motion to set aside the indictment.

In the case of Hayes v. State, 3 Okla. Cr. 1, 103 Pac. 1061, in paragraph 3 of the syllabus, this court said:

“Where a defendant files a motion to set aside an indictment on the grounds that it is not found by a legal grand jury, and that no witnesses appeared before and no evidence of any kind was presented to the grand jury which returned the indictment, and that the court had no jurisdiction of the defendant, and makes application to the trial court to set a day for the taking of testimony in support of said motion as prescribed by section 5399,, Wilson’s Rev. & Ann. St. 1903, held, that it is reversible error for the court to refuse such application, and to summarily overrule said motion.”

It would be an anomaly if a cause should be reversed because the court refused to grant a hearing of the application to quash the indictment and that the court might grant the application and set a day for the hearing and then refuse to permit the defendant to introduce any evidence under his application as was done in the case at bar.

If the state had presented to the grand jury the same evidence that was introduced in the trial of this case it would have been amply sufficient to warrant the return of the indictment. It may be that the state did introduce all of this evidence before the grand jury, but this court has no way of finding out whether that was done or not, because the trial court arbitrarily refused to permit the defendant to ascertain what evidence was introduced before the grand jury by an examination of the witnesses and the grand jurors.

We think the motion and application to take testimony presented a right to be heard upon the motion showing the invalidity of the indictment, that it was a substantial right of the defendant to be allowed to establish the facts stated in such motion, for the purpose of showing that he was about to be tried without due process of law, and that the court below, while in determining said motion, after hearing the evidence thereon, would exercise a judicial discretion, not ordinarily reviewable, it had no discretion to refuse to hear said motion, or to refuse the application to take testimony or to hear witnessesi who testified before the grand jury or the grand jurors! who heard the testimony, to sustain the facts stated in such motion, and that such refusal was reversible error.

The importance of the proposition involved may be appreciated when it is considered that the defendant had no other way to have the question presented to the attention of the court or considered by it; as, under our statutes, it could not be presented, either upon a motion for a new trial or upon a motion in arrest of judgment; hence, if it be not substantial error for a trial court to summarily overrule a motion to set aside and quash an indictment, based upon the grounds stated in this motion, and to arbitrarily refuse to comply with the statutes and permit the defendant to produce evidence showing its invalidity, then the constitutional right of one accused of crime may be taken from him and he may be held, to answer to a capital or otherwise infamous crime without a presentment or indictment of a grand jury. The Constitution, in guaranteeing this right to persons accused of crime, did not mean a mere form of indictment, but meant a valid indictment, found and presented in accordance with the ancient and just rules and safeguards of law, provided for the organization, action, and conduct of grand juries.

The view we take of this case makes it unnecessary to pass upon the other questions raised by the defendant.

The cause is therefore reversed and remanded, with instructions to the trial court to permit the defendant to examine the witnesses and grand jurors, upon the evidence introduced by the grand jury against the defendant in the case at bar, and for further proceedings according to law.

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


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    JOE OLDHAM v. STATE.
    No. A-6563.
    Opinion Filed May 4, 1929.
    (277 Pac. 254.)

      Norman H. Wright, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county for contaminating the waters of the North Canadian river by depositing, placing, throwing, and permitting to be placed in said waters certain contaminating substances commonly known as dynamite, and his punishment fixed by the jury at 90 days in the county jail.

The defendant for his first ground of error contends that the information is insufficient to charge a public of-tense against the defendant. Section 2756, C. O. S. 1921, provides among other things that a motion in arrest of judgment may be founded on any of the defects in the indictment or information mentioned as grounds of a demurrer, unless such objection has been waived by a failure to demur.

By section 2616, C. O. S. 1921, it is provided that any defect that appears on the face of the information “can only be taken by demurrer, except * * * that the facts stated do not constitute a public offense, may be taken * * * in arrest of judgment.”

So that it appears from the statutory provisions of this state that the only question raised as to' the insufficiency of the information is the question of whether or not the said information states a public offense.

As to the manner of stating a public offense, and as to when an information sufficiently states the offense, this court, in the case of Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635, held:

“The true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.”

In the case of Price v. State, 9 Okla. Cr. 359, 131 Pac. 1102, it is said:

“The common-law doctrine of a strict construction of criminal law and all proceedings in criminal cases, and that an indictment should be certain to a certain intent in every particular, is not in force in Oklahoma.”

Furthermore, it has been repeatedly held by this court that:

“Where the statute states the elements of a crime, it is generally sufficient either in an indictment or information, to charge such crime in the language of the statute.”

Robinson v. State, 8 Okla. Cr. 667, 130 Pac. 121; Smith v. State, 32 Okla. Cr. 121, 240 Pac. 143; Abrams v. State, 13 Okla. Cr. 13, 161 Pac. 331; Rhodes v. State, 30 Okla. Cr. 20, 234 Pac. 645.

The offense charged here is purely statutory, and the statute sets out the acts constituting the offense, and the information substantially follows the language of the statute, and the information is good and sufficient to comply with all the requirements of the statutes of this state respecting statutory offenses and sufficiently states this particular offense as the statute was construed by this court in the case of State v. Wheatley, 20 Okla. Cr. 28, 36, 37, 200 Pac. 1004.

It is next contended that the evidence is wholly insufficient to sustain the judgment. In the case of Strong v. State, 42 Okla. Cr. 248, 275 Pac. 385, in paragraph 2 of the syllabus, this court said:

“When the evidence disclosed by the record tends reasonably to support the verdict of the jury, such verdict will not be disturbed by this court on appeal.”

It is next contended that the trial court erred in admitting certain incompetent evidence. It appears from the record that the evidence of throwing dynamite in the Canadian river on June 20th was inadvertently admitted upon the supposition that that was the case being, tried against the defendant. There appeared to have been a mistake by the clerk in numbering the informations. When the mistake was discovered the trial court said, “The testimony introduced so far will be stricken, is that what you wish to do?” The county attorney answered, “Let it stand for the purpose of showing intent.” Defendant’s counsel then objected to this testimony as being testimony relating to a crime alleged to have been committed! on a date other than the date alleged in the information. This objection was overruled by the court, and defendant’s counsel then announced, “However, we have no objections to its staying in the record.” Defendant thereby waiving the objection. The state then offered evidence of other witnesses tending to prove the throwing of dynamite in the Canadian river on the 20th day of June, without objection on the part of defendant until the conclusion of the trial, when a motion was made to exclude all this testimony.

In the case of Ford v. State, 5 Okla. Cr. 240, 114 Pac. 273, it is held:

“A defendant on trial should protect his rights by proper objections and exceptions in the trial court. Unless this is done, he will not be heard to- complain here except on fundamental errors.”

The case of Meiggs v. State, 16 Okla. Cr. 557, 187 Pac. 450, held:

“Admission of evidence which is not objected and excepted to will not be reviewed on appeal by this court unless it constitutes fundamental error.”

It is finally contended that the trial court erred in giving a certain instruction on the law of alibi and in refusing the defendant’s requested instruction on this subject. Neither the instruction given nor the instruction requested is correct. Counsel for defendant consented! that the trial court might instruct the jury orally in this case, and there is nothing in the record to show that prior to the giving of such oral instruction there was any written request that the trial court instruct on the subject of alibi. So far as the evidence is concerned, there is really no proof sfifficient to require the giving of an alibi instruction in this case. The defendant only claims that he was asleep in his father’s barn on his father’s farm at the time of the commission of this offense, and as such place is only three-fourths of a mile distant from the place where the dynamiting occurred, it is apparent that it would not take the defendant more than a few minutes to get from the bam to the river, and none of the witnesses for the defendant claimed to have been awake all night, the night this alleged dynamiting took place, and that the defendant was in the barn during the entire night.

Under section 2822, C. O. S. 1921, this court is not permitted to reverse a judgment of conviction because of any ground of misdirection of the jury,, unless it appears from the entire record that the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.

From an examination of the whole record we are unable to see that the instructions as a whole do not substantially state the law of the case. Owing to the fact that some incompetent evidence was admitted which might have tended to prejudice the minds of the jurors against the defendant, the court is of the opinion that the cause should be affirmed, but that the punishment should be reduced to 30 days in the county jail.

The cause is therefore modified and affirmed, and the punishment fixed at 30 days in the Oklahoma county jail.

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


author: EDWARDS, P. J.

text:
    BOB BELL v. STATE.
    No. A-6753.
    Opinion Filed May 4, 1929.
    (277 Pac. 254.)
    Sigler & Jackson and Brown, Brown & Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, upon a charge of assault and battery with a deadly weapon, was convicted in the district court of Carter county of an assault and battery and his punishment fixed at a fine of $5.

The judgment was entered on March 19„ 1927, and! the appeal was not lodged in this court until September 14, 1927, more than 120 days after the judgment and sentence. Section 2808, Comp. Stat. 1921, requires that an appeal from a conviction for a misdemeanor be filed within 120 days, and when an appeal is not filed in the time fixed by law, this court acquires no jurisdiction.

The appeal is dismissed.

DAVENPORT and CHAPPELL. JJ., concur.


author: DAVENPORT, J.

text:
    FRITZ PIERCE v. STATE.
    No. A-6452.
    Opinion Filed May 4, 1929.
    (277 Pac. 251.)
    C. B. Leedy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged jointly by information with Ralph Tallman, and was convicted of having in and! upon the lands and premises controlled by the said Fritz Pierce six barrels of mash which was fit for manufacturing and distilling intoxicating liquor. Ralph Tallman was acquitted. The defendant Fritz Pierce was convicted, and his punishment left to the court. The court sentenced the defendant to 30 days in jail and to pay a fine of $150 and cost. Motion for new trial was filed, considered, and overruled, and the case appealed to this court.

Before the case was called for trial, the defendant filed a motion to suppress the evidence on the ground that the search warrant described the S. E. % of section 10, township 21 north, of range 26 west I. M., and that defendant had never had possession, control, or ownership of the said land, and that the search warrant described certain land the defendant was in possession of but in making the search they did not find anything on the land controlled, owned, or possessed by the defendant, and that the property alleged to have been found by the officers under the search warrant did not belong, to him, nor did he have any ownership or know anything about the property being where it was alleged to have been found by the officers. The motion of the defendant to suppress the testimony was overruled, and defendant duly excepted.

The state then called C. L. Thoroughman, who testified he was a federal prohibition officer; he knew Fritz Pierce; that on February 12, 1926, when he went out to assist in making the search of the premises, Mr. Deveney and Hanley accompanied him; when they got to Mr. Piercers place, they found Mr. Pierce and Mr. Tallman; they began the search immediately after talking with Mr. Pierce and Mr. Tallman. Over the objection of the defendant, he was permitted to state he searched the property described in the search warrant. Witness then testified to the conversation they had had with the defendant Pierce in which the defendant told them to go ahead and search his place, but that he did not have possession of the other property and they would have to get another search warrant to search that. Witness further testified defendant had on rubber boots and looked like he had been wading in the water. An objection was interposed by the defendant, which was overruled and exceptions saved. The witness then attempted to describe the condition of defendant’s clothing as to being dirty or clean; then witness testified as to where they found the still, pressure tanks, burner and pitcher pump in the cave with the mash.

The record contains several objections made by the defendant which the court sustained and directed .the jury not to consider any of the testimony with reference to the still, boiler, pressure tank, and pitcher pump.

R. E. Deveney was called as a witness, and testified in substance that be went with Mr. Thoroughman tbe morning they claimed to have searched tbe premises; that bis search warrant described tbe S. E. % of section 10, township 21 north of range 26 I. M., and tbe S. E. % of section 11, township 21 north, range 26 west I. M., and witness stated that Mk. Pierce’s house was on S. E. *4 of section 10; they found the six barrels of mash in a cave where they found the other articles. On cross-examination the witness admitted that he did not, of his own knowledge, know whether the barrels of mash they found were in section 10 or 11.

Witness Hanley in substance testified to the same facts as did the other two witnesses, except he did not make any observation as to the tracks on the land; he said there were lots of tracks where the mash was found; there was kind of a trail down that way, but as to where the tracks went he never paid any attention; he claimed that he and Mr. Thoroughman detected the smell of mash when near the house of the defendant; that the defendant ha,d some barrels in the house, in a shed room; he did not notice any smell of mash or any mash in the barrels while Mr. Thoroughman was mashing them up; he saw a number of gallon jugs in the old shed; that there was a pile of broken ones; Mr. Thoroughman had already broken them.

On cross-examination the witness stated he thought the section line between sections 10 and 11 was about 200 yards west, but finally stated he did not know where it was. He stated defendant’s house was in section 10; he thought Mr. Pierce’s house and the cave were both located on the S. E. % of section 10. Witness further on cross-examination stated in substance that he did not know whether the cave where they found the mash was in section 10 or not.

Witness C. L. Thoroughman was recalled and asked with reference to the barrels in or near the Pierce house, and stated he destroyed the barrels while there; that there were three in the side room adjoining the house, and he could smell mash in the barrels. The above is in substance the testimony offered by the state. Through the entire testimony the state attempted to produce testimony showing that the place where they found the mash in the cave or dugout was in the same section of land as the home of the defendant. The defendant contended that it was in a subdivision of section 10, and his home was in section 11, and that he did not have anything to do with that land, but that it was in possession and under control of other parties.

The defendant called C. A. Hartman, who testified that he knew where the line was between sections 10 and 11, in township 21 north, range 26 west I. M.; told when the survey was made, and about being present, and testified positively that the home of the defendant was in section 11; that the section line 'between 10 and 11 was west of the defendant’s house; that defendant’s house is located in the S. W. % of section 11; that he knew who had been in possession of the S'. E. % of section 10 prior to and on that date and subsequent to February, 1926; that Kelly Dennison and George Boyles were the parties that have been in possession of the land; that the parties named had; fenced it and were using it for pasture.

Ben Van Camp was called as a witness for the defendant, and he testified he had lived in that county since 1918; that he was well acquainted with the defendant, Fritz Pierce; that the defendant lived on the S. W. % of section 11; witness further stated that no one lived on the S. W. % of section 10 that he knew of; that he did not know whether Ralph Tallman lived there with the defendant or not.

Ralph Tallman testified, in substance, that he lived with his father and. mother at Gage, excepting, two days in February, 1926, when he was at the home of Fritz Pierce; that Mr. Pierce had told him he knew where he could get a job; that he was at Mr. Pierce’s house on the 12th of February when the officers came; he was never at Mr. Pierce’s'place before the time mentioned; that on the 11th and 12th of February, Mr. Pierce was working on a car and doing different things around the house; he was arrested on the 12th of February; he went with Mr. Pierce across the creek and north to a place where Mr. Pierce wanted to rent some land.; the officers never found anything on the farm that Mr. Pierce lives on; they said they found empty barrels; while the federal officer and Mr. and Mrs. Pierce were standing at the Pierce house, they saw some parties on some high rocks over on section 10 and called the federal officer’s attention to it; that he did not have any property of any kind or character located in S. E. % of section 10, nor did he have any right or possession to it; that he did not own or have any interest in any of the things found by the officers over on section 10; that at the time the search was made in S. E. % of section 10, it was controlled by George Boyles and Kelly Dennison. On cross-examination he said it was about 75 yards from Mr. Pierce’s house west to the creek. Defendant Pierce told the officers they were welcome to search his place.

Fritz Pierce was called, and testified in substance that on February 12, 1926, he lived about seven miles northwest of Shattuck on the Pete Booth place; “I had a lease on the house and yard, and had charge of the rest of the place looking after the fences; I had the W. % of S. W. % of section 11; it was probably 50 or 75 steps from my house to the section line west; I never had possession or control of any land in section 10; nor any part of it under my control; Kelly Dennison and George Boyles had used it for almost a year; they had used it for the summer 1925, and were still using it on February 12, 1926; I made a few sets of traps during the winter and tried to catch coyotes; I was at home when Mr. Deveney told me he had! a search warrant for me, and I told them to put it to me; he wanted to search, and I told him I did not own any of the lands or have possession of any only the house and yard; I had a lease on that; but as far as I was concerned they could search any property I had possession of, and if they wanted to search any further they would have to get a search warrant for the parties having possession, and the federal officer spoke up and said, ‘I am a federal officer and I go where I want to/ and I said, ‘I have known of people getting fined for going where they wanted to’.” The written lease of the defendant was then introduced showing that he had leased the west half of the S. W. % of section 11, township 21 north, range 26 west I. M. Witness then testified that the officers did not find any barrels in his house with mash in them; there were three barrels in his house; he did not know what there would be a chicken trough for, as he did not have any chickens; the barrels were picked up, and one barrel had contained saurkraut, but there had been no sour mash at the house; “there was one seven-gallen jug and two five-gallon jugs in there; there was nothing in them; never had been any whisky in them to my knowledge; I knew nothing about the property they found on the S. W. % of section 10, only what I saw that day; they took me with them to it when they tore it up and got the property; I knew nothing about the ownership of the mash or barrels they found there or the boiler or pump; I never did own any of it, nor did I have possession of it or put it where it was found; I did not know whoput it up there; I was on a deal with old man Booth, about a half mile up the creek north, to rent his place; I had to go three or four miles to get around there in a car, and it was just a quarter of a mile to walk; he lived on the bank of the creek, and I crossed the creek and went up to the house; I put on my rubber boots, andi I just got back when the officers came; Ralph Tallman went with me; I had not at any time crossed the creek over to where the officers found the still and mash; the land was what you might call pasture land; it was rolling, rough country, kindly sand hills.”

This was, in substance, all the testimony offered by the defendant, and defendant at the close of the testimony demurred to the evidence of the state. The motion was overruled, and defendant duly excepted.

The state then recalled H. N. Hanley, who was asked if he saw any stock in the pasture, and he answered he did not notice any; that some places in the pasture you could not see very far. “After Mr. Tallman was arrested, I asked him what he was doing there, and he said he was out of work and Mr. Pierce told him to come over and stay until he got a job; he complained of not having had any breakfast, that he had just gotten up before we got there.” Witness Deveney was recalled by the state, and he testified there was no evidence of stock in the pasture where they found the mash. This is, in substance, all the testimony we deem necessary to set out to arrive at a proper decision in this case.

The defendant insists that the court erred in overruling his motion for a new trial; that the verdict is contrary to the evidence and the law; that the court erred in refusing to give the jury instructions 1, 2, and 3 requested by the defendant; that the evidence is wholly insufficient to sustain a conviction for the offense charged; that the court erred in admitting over the objection of the defendant incompetent and prejudicial evidence during the trial; that the judgment of the court is contrary to the law and evidence.

These errors will all be considered together, as they relate to the sufficiency of the evidence to sustain a conviction. Throughout the trial, the defendants Pierce and Tallman being on trial together, the state introduced evidence attempting to show that the defendants Pierce and Tallman were the owners of the mash they claimed they found and attempted to show that the home of defendant Pierce was located in section 10,, township 21 north, range 26 west I. M. The defendant Pierce introduced a written lease showing his home was not in section 10 and was in section 11, and that the mash found by the officers was on section 10 quite a distance away from his home across the creek in a pasture which the undisputed testimony shows was in the possession of other parties. The state attempted to> show that at the home ,of the defendant Pierce they found some barrels and jugs. The defendant admitted they were in a room where he kept his plunder, but he says one of the barrels was a saurkraut barrel, and that there was no mash in there, nor had there been any whisky in the barrels, or any of the jugs to his knowledge.

There was nothing found by the officers on the place occupied by the defendant to connect him with the offense in this case, except the statement of the federal officer that he could smell an odor of mash. The federal officer testified that he saw some mash that had been fed to some chickens in a feed trough. Neither of the other officers testified to this fact. The defendant says there was no mash in the trough nor did he have any chickens to be fed.

The evidence in this case is insufficient to sustain a conviction. At most, it amounts to a suspicion against this defendant. There is no testimony showing that anything found on the premises where the defendant resided was in any way connected with what was found on another place, which the undisputed facts show was in possession of other parties.

We hold there is not sufficient testimony in this case to convict the defendant.

The case is reversed and remanded.

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


text:
    DOCK RUSS v. STATE.
    No. A-6458.
    Opinion Filed May 4, 1929.
    (277 Pac. 250.)

      Ralph Rawlings, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the IState.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of transporting intoxicating liquor and was sentenced to pay a fine of $50 andi to be confined in the county jail of Murray county for 3O' days. Motion for new trial was filed and overruled, and the case appealed to this court.

Briefly, the testimony on the part of the state is that the officers met the defendant on the street in the city of Sulphur, Murray county, Oklahoma, and they each stated they suspected the defendant had whisky; they stopped! their cai', got out, and without any warrant for the arrest of the defendant, or to search the defendant’s person, they searched him and claim to have found a pint of whisky on his person. The state’s witnesses! all admit they did not see the whisky, and that the defendant was peacefully walking along, the street without disturbing any one.

The defendant objected to the introduction of the testimony of the state on the ground that it was procured without a warrant for the arrest of the defendant, or a warrant to search his person; which objection was by the court overruled, and defendant duly excepted.

We do not deem it necessary to further discuss the question raised by the defendant that the court erred in permitting the testimony procured as it was, to be introduced, and the overruling of defendant’s motion for a new' trial. We hold that the defendant’s objection was well taken and the testimony procured by the officers was unlawfully admitted.

This question has been before this court often. In the case of Crossman v. State, 28 Okla. Cr. 198, 230 Pac. 291, this court said:

“An officer has no more right to search the person of one suspected of the commission of a misdemeanor without a search warrant than he has to search his home.”

In Keith v. State, 30 Okla. Cr. 168, 235 Pac. 631, in the sixth paragraph of the syllabus, the court said:

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

In view of the facts contained in this record and the decisions of this court upon the question involved, the objection of the defendant to the introduction of the testimony was well taken, and the defendant’s conviction, having no sufficient evidence to support it without the use of evidence which has been unlawfully obtained, should be reversed.

The judgment is reversed, with directions to' discharge the defendant.

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


text:
    LEO T. WYNN v. STATE.
    No. A-6608.
    Opinion Filed May 4, 1929.
    (277 Pac. 250.)

      Rummons & Hughes, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Kiowa county on a charge of having in his possession intoxicating liquors with intent to sell the same and his punishment fixed at a fine of $350 and confinement in the county jail for a period of four months.

The appeal was lodged in this court May 18, 1927, and plaintiff in error was at large upon an appeal bond. The Attorney General has filed a motion in this court, supported by the affidavit of W. E. Settle, undersheriff, that the defendant, Leo T. Wynn, after filing said appeal, committed a felony in said Kiowa county and is now a fugitive from justice and without the jurisdiction of this court.

It has been uniformly held by this court that, where a person is convicted of a crime and has prosecuted an appeal bond to this court and thereafter becomes a fugitive from justice or is otherwise beyond the jurisdiction of this court and cannot be made to respond to any judgment or order that might be made in this case,, the appeal will be dismissed.

For the reasons assigned, the appeal is dismissed.

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


text:
    ELMER RIDENOUR v. STATE.
    No. A-6606.
    Opinion Filed May 4, 1929.
    (277 Pac. 247.)
    R. B. Strong and Meacham & Meacham, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Custer county of assault with intent to rape and his punishment fixed at imprisonment in the state penitentiary for a term of five years.

No 'briefs in support of the appeal have been filed, but the cause was orally argued at the time the case was submitted.

An examination of the record discloses that at the time charged the prosecuting witness, Rita Marical, and one Minnie Williamson were riding in an automobile with defendant and others, and while out in the car defendant assaulted the prosecutrix and attempted to have intercourse with her by force. The record discloses an aggravated assault to commit a rape. An issue of fact is raised, but the credibility of the witnesses and the weight of the testimony was for the jury. We see no reason to disturb the judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    TOM PANTHER v. STATE.
    No. A-6527.
    Opinion Filed May 4, 1929.
    (277 Pac. 247.)
    Saunders & Emerick and O. G. Pitman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county of the crime of rape in the first degree, and was sentenced to serve a term of fifteen years in the state penitentiary.

This conviction was for rape 'by force under the fourth subdivision of section 1834, C. O. S. 1921. The defendant was a married man 34 years old, full-blood Shawnee Indian living at Miami, Oklahoma, and the prosecutrix, Callie Clark, was an unmarried female, 19 years of age, and also a full-blood Indian.

The facts in the case are substantially that the defendant induced the 'prosecutrix to leave the stomp dance grounds where an Indian stomp dance was being held on the night of August 21, 1926, to go with defendant on an automobile ride. The prosecutrix claims that, after they reached a place a few miles from the stomp ground, that the defendant began to try to force the prosecutrix to have intercourse with him, that she jumped out of the car and ran, and that the defendant ran after her, and catching her, dragged her down under a bridge and dragged her from under the bridge into some weeds off in a field nearby and there committed rape upon her.

The story of the prosecutrix is amply supported by all the physical facts, including, her torn and soiled clothing, her blackened eye and bruised face, and the appearance of the ground, weeds, and underbrush at the place where the assault took place. The prosecutrix is also corroborated by the testimony of one physician, who testified that, from an examination, some one had had intercourse with the prosecutrix, but the doctor could not tell how recently.

The first error complained of by the defendant is that the evidence is insufficient to support the verdict. It is a sufficient answer to this contention to say that the evidence of the state overwhelmingly supports the contention of the prosecutrix that the defendant raped her as alleged in the information. There is no merit in the contention that the evidence is insufficient to support the verdict.

The defendant alleges as.his second ground of error that the court erred in refusing upon the request of the defendant, to instruct, first, that the jury might find the defendant guilty of assault and 'battery; and, second, the court erred in refusing, upon the request of the defendant, to instruct the jury that they might find the defendant guilty of an assault with intent to commit rape. The defendant assigns the refusal of the court to give such instruction as a ground for reversal of this case.

In Anderson v. State, 8 Okla, Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314, in paragraph 4 of the syllabus, this court says:

“The question of the sufficiency of the instructions! and the action of the court in refusing to give special instructions requested must always be considered and determined by the facts of each case in which they arise.”

In the case of Sherman v. State, 20 Okla. Cr. 306, 202 Pac. 521, paragraph 1 of the syllabus, this court said:

“The instructions given should be germane to the evidence introduced, eliminating abstract questions of law not raised by the evidence.”

In the case at bar, the evidence on the part of the prosecutrix presents a case of rape in the first degree; there is absolutely no evidence on the part of the state that would tend to reduce this offense to any lower degree of rape than rape in the first degree, nor is that testimony such as to authorize the giving of instructions on any included offense. The court therefore will have to look to the testimony of the defendant in search of a basis for the giving of the requested instructions.

The defendant flatly denies that lie accomplished the act of sexual intercourse testified to by the prosecutrix. Defendant denies that the prosecutrix overcame by resistance any assault by bim upon her. The defendant testified that the prosecutrix got into his car and went with him voluntarily; that, when they reached the place the prosecutrix claims the crime was committed, the prose-cutrix got out of the car voluntarily, and that defendant and prosecutrix took hold of hands and walked 'back to a small bridge and went under the bridge, and that the prosecutrix lay down there and found the ground to be wet, and that defendant, holding the prosecutrix’s hand, led her through a water gate and out into a weed patch, where prosecutrix voluntarily lay down with her head in his arm, and that there defendant attempted to have intercourse with prosecutrix, but that prosecutrix resisted him and told him he would have to give her some money; that the defendant then got his pocketbook out and let the prosecutrix have a $20 bill to look at, and then again attempted to have intercourse with her, and that, when she resisted, he gave up; that from that time on the scuffle was over the defendant trying to get the $20 bill away from the prosecutrix.

The defendant then testified that he promised the prosecutrix to give her some money when they got back to camp where he could change the bill and also to buy her a dress in the place of the one that was torn. Defendant testified further:

“Q. I believe you stated on direct examination that the girl lay down under the bridge 'by herself, and she told you it was muddy and you took hold of her hand and pulled her up, is that right? A. She sat down is what I said.
“Q. Did she sit down in the mud? A. Yes.
“Q. What did you do? A. I picked her up by the hand, and helped her up.
“Q. You did not get her down in that mud and get on her, did you? A. No, I did not.
“Q. You did not do anything except to stand there and take her by the hand and pull her up is that right? A. I helped her up, yes, sir.
“Q. And then you went south? A. Yes, sir.
“Q. Through the water gate? A. Yes, sir.
“Q. How many times did you get her down after you got her through the water gate? A. I believe it was twice.
“Q. You say you did not have intercourse with her? A. No, sir.
“Q. Did you try to force her to have intercourse with you? A. I don’t quite understand.
“Q. Did you use any force or violence trying to get her to have intercourse with you? A. Well, in a way I was trying to force her, but I didn’t really try to take it away from her by hurting her or anything like that.
“Q. You say when you put your hand under this girl’s clothes you felt the clothing rip? A. When I kind of put my hand under on her private part I heard something rip.
“Q. Could you hear it or feel it? A. I heard it rip. I could not tell what it was.
“Q. Were you using enough force with your hand to tear her clothing, make that rip? A. Yes.
“Q. Did you tear her clothing? A. I don’t know whether I did or not, but I expect maybe I did in the scuffle, something like that.
“Q. You say the last scuffle was over the money? A. Yes.
“Q. You had already given up the idea of having intercourse with her at that time and you were just scuffling over the money? A. Yes, sir.”

Defendant’s counsel in their brief, in arguing that the evidence was insufficient to support the verdict, say: “She was on her back in the sand, her feet were straight out and her head was on the ground. Tom g,ot down on his knees with his knees between her legs. His left hand was on the ground and with his right hand he held her left hand (How? With force? The record is silent) and there they had intercourse. Not a sign, nor a moan; not a kick nor a struggle; but for four minutes they had intercourse. During that time his hands were on the ground and her hands were up behind her head. They got up and returned to the car,, drove quietly back to the dance ground, and there the officers met them. On being asked what had happened she said they had had a wreck. Being denied the truth of her story, she told another; and on being threatened with incarceration, it being apparent that she could not make a confession of voluntary intercourse, she said Rape. Let any man of active life contemplate this picture, as made by the record, lay aside the admitted indiscretions committed by the defendant for which he is not on trial, consider the question of rape and that alone — the State’s evidence may show an intercourse, but it fails utterly to show any resistance or force. The evidence, we say, is insufficient to sustain the conviction.”

The theory of the defense was, as shown by this argument, that no crime was committed, and that defendant was entitled to an acquittal. The defendant also presents another theory of the case, in which he says in effect, “I didn’t try to rape her but was only using force and money as a persuasive, but, if you find I was trying to rape her don’t find that \ actually raped her bnt only tliat I tried to.” The defendant will not be permitted to adopt this theory in the trial court and base his defense upon that theory and ask a reversal upon a different theory in the appellate court. There must be substantial evidence to support the theory upon which he asks the reversal.

In Sayers v. State, 10 Okla. Cr. 233, 135 Pac. 1073, this court said:

“When a defendant, who has a right of election as to several defenses, takes the stand as a witness and makes such admissions as to render every theory of defense unavailable save one, he will be deemed to have elected that one.”

The defendant could have been acquitted by the jury on his evidence if they had believed his testimony. An examination of the entire record convinces the court from the evidence that the defendant was either guilty of rape or nothing.

In the case of Anderson v. State, supra, the question of the sufficiency of the instructions and the action of the court in refusing to give special instructions, it wasi held they must always be considered and determined by facts of each case in which they arise. The instructions must be considered in connection with their application to the evidence in the case in which they are given.

The evidence offered by the state and the defense offered by the defendant, raised no issue of a lesser crime than first degree rape, and the requested instructions were therefore properly refused.

For the reasons stated, the cause is affirmed.

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


author: PER ODRIAM.

text:
    MRS. O. A. STITES v. STATE.
    No. A-6705.
    Opinion Filed May 4, 1929.
    (276 Pac. 1118.)
    J. F. Thomas, A. Burleson, and Lewis Hunter, for plaintiff in error.
    Edwin Dabney, Atty. Gen,, and Smith O. Matson and J. H. Lawson, Asst. Attys. Gen., and W. T. Dixon, Co. Atty., for the State.
   PER ODRIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $250 and to serve 30 days in the county jail.

The judgment was entered on April 9, 1927. Thereafter extensions of time were made, and the case was filed in this court on July 16, 1927. A motion to dismiss has been filed by the state, setting out that the appeal was not filed within the time fixed by the trial court. The motion should be and the same is overruled.

No briefs in support of the appeal have been filed, and examination of the case-made discloses no jurisdictional or fundamental error.

The case is affirmed.


text:
    JACK HUNTER et al. v. STATE.
    No. A-6544.
    Opinion Filed May 18, 1929.
    (277 Pac. 953.)
    J. Q. A. Harrod, for plaintiffs in error.
    W. P. Morrison, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Canadian county on a charge of having possession of mash and were each fined $50, and each sentenced to serve 30' days in the county jail.

This is a companion case to No. A-6545, 43 Okla. Cr. 138, 277 Pac. 952, decided at this sitting of the court, and the conviction rests upon substantially the same evidence as the conviction in that case. The defendants filed their conviction in A-6545 as a bar to a prosecution in this case. Under the search warrant issued in these cases the officers found a still and two barrels of mash upon the premises of defendant, C. M. Hunter. At the proper time the defendants filed their plea of former jeopardy and former conviction, which plea was by the court overruled, and the ruling of such plea is now before this court in this appeal.

In the case of Hourigan v. State, 38 Okla. Cr. 10, 258 Pac. 1057, this court said in the body of the opinion:

“The ‘same offense’ as the term is used in the constitutional guaranty, section 21, art. 2, state Constitution, and the statutes just referred to, does not mean the same offense eo nomine, but means the same criminal act, transaction, or omission. To constitute a good plea on the ground of former jeopardy, the offense in which the plea is made must be the same as that in which jeopardy has attached. But to make the offenses the same, the informations need not be in identical language.' The offenses may differ in name and yet be the same. First Bishop’s New Criminal Law, par. 1050. Where the same testimony will support both charges, it is generally said that the offenses are the same. Estep v. State, 11 Okla. Cr. 103, 143 Pac. 64. The testimony in the case at bar is practically the same as the testimony given in No. A-5855. It discloses that at the time charged defendant with others had possession of the parts of a still and a quantity of mash. Defendant has been convicted of having possession of mash. The state may not split or divide up an offense into the different parts and punish an accused for each of such parts. Hirshfield v. State, 11 Tex. App. 207. * * * If the state elects through its authorized officers to prosecute an offense in one of its phases or aspects, it cannot afterwards prosecute for the same criminal act, or series of acts under color of another name.”

The facts in the case at bar are practically the same as facts in Hourigan v. State, supra. The defendants having been put in jeopardy in the trial of No. A-6545 and been convicted upon a charge of possession of a still, they could not then be convicted upon a charge of possession of mash in connection with that still, the evidence all being obtained at the same time and under the same search warrant.

For the reasons stated, the case is reversed and remanded, with instructions to dismiss.

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


text:
    JACK HUNTER et al. v. STATE.
    No. A-6545.
    Opinion Filed May 18, 1929.
    (277 Pac. 952.)
    See, alsi, 43 Okla. Cr. 136, 277 Pac. 953.
    J. Q. A. Harrod, for plaintiffs in error.
    W. P. Morrison, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted of having possession of a still, and their punishment fixed as follows: Jack Hunter and Dan Hunter each fined $150 and sentenced to five months in the county jail; C. M. Hunter, $50 fine and 30 days in jail.

The state offered no competent testimony against the defendants Dan Hunter and C. M. Hunter tending to connect them with the ownership and possession of the still found on the premises of C. M. Hunter. The court erred in overruling the motion of the defendants Dan Hunter and C. 'M. Hunter to advise the jury to find the defendants not guilty. The defendant Jack Hunter took the witness stand in his own behalf and admitted that he had possession of the still. He sought to explain that possession by saying he found it in a canefield near his father’s house; but the jury believed the testimony of the state, and not the explanation of the defendant.

The evidence of the state and the defense both disclose that C. M. Hunter was the owner of the premises searched. The uniform holding of this court has been that the immunity guaranteed by the Constitution against unreasonable searches is personal. An accused will not be heard to object that the search of the premises of some third person is a violation of his constitutional right. Since the defendant Jack Hunter was neither the owner nor in possession of the premises searched, he cannot raise the question of the illegality of the search and seizure proceedings, nor object to the introduction of the evidence obtained by such search. The evidence of the case is sufficient to support a verdict of guilty against the defendant Jack Hunter, and the cause as to him is therefore affirmed.

There being no evidence to support the verdict of guilty against the defendants Dan Hunter and C. M. Hunter, the cause as to them is reversed, with instructions to dismiss the case as to the two last-named defendants.

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


text:
    C. W. WINGER v. STATE.
    No. A-6551.
    Opinion Filed May 18, 1929.
    Rehearing Denied June 8, 1929.
    (277 Pao. 947.)
    Roberson & Roberson, for plaintiff in error.
    W. P. Morrison, Co. Attv., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county for a violation of the prohibitory liquor law, and his punishment fixed at imprisonment in the county jail for 90 days and to pay a fine of $500.

The evidence offered by the state tended to show that the defendant was in possession of a certain building in the town of Okarche. Affidavit was filed for search warrant and search warrant duly issued and placed in the hands of the sheriff of Canadian county for search. Two deputy sheriffs concealed themselves in a building opposite the one to be searched, saw the defendant go to the building to be searched, unlock the door,, reach in and bring out in his hand a bottle which defendant placed in his coat pocket, and then locked the door and started to walk away. The officers stopped the defendant, demanded that he give them the bottle, and when defendant failed to do so, one of the officers reached in his pocket and took out the bottle, which contained whisky. The officers then compelled the defendant to accompany them back to the building to be searched, and on the order of the officers the defendant unlocked the door, and the officers went in, searched the building, and found 12 gallons of whisky, 7 or 8 gallons of wine, 5 5-gallon jugs, and a number of empty bottles. An information was filed against the defendant charging him with the possession of this liquor, and- on the trial of the case the defendant was convicted.

The first ground of error alleged is that the affidavit and search warrant were insufficient to authorize a search of the premises. The case-made does not contain a copy of the affidavit nor the search warrant. Neither did the defendant introduce any evidence tending to show the illegality of the affidavit or search warrant.

In the case of Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, this court said:

“The burden of proving the invalidity of the search rests on the defendant.”

In the case of Saunders v. State, 4 Okla. Cr. 264, 111 Pac. 965, Ann. Cas. 1912B, 766, this court said:

“A matter assigned as error in the motion for a new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered in the appellate court.”

The presumption of law is that the affidavit for search warrant was sufficient, and, since the defendant makes no showing to the contrary, this court cannot consider defendant’s objection.

The evidence obtained under the search warrant being properly admitted by the court and being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    C. O. PATTERSON v. STATE.
    No. A-6560.
    Opinion Filed May 18, 1929.
    (277 Pac. 674.)
    John T. Hays, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Kiowa county, on a charge of having in his possession intoxicating liquors on the 18th day of December, 1926, on the southwest quarter of section 15 — 17—19, with the unlawful and wrongful intent on the part of the defendant to violate the prohibitory liquor laws, and his punishment fixed at 60 days in jail and a fine of $250. Motion for new trial was filed, considered, and overruled, and defendant excepted and has appealed to this court.

Tbe evidence on bebalf of tbe state, in substance, is: Sam Standerfer stated be was deputy sheriff on tbe 18tb day of December, 1926; knew tbe defendant, and went out to where tbe defendant was then living; be bad a search warrant to search tbe premises; W. E. -Settle went with him; they drove up in tbe yard where tbe defendant was living and parked their car; the defendant came out and “we advised him we bad a search warrant to search for intoxicating liquor, and defendant said, ‘AH right, go ahead.’ We searched the bouse and outbuilding and did not find 'anything; I went west of tbe barn and crossed! tbe fence, saw some tracks, followed tbe tracks down a little road that bad been made where they had been hauling cotton from tbe field for something like 250 to 300 yards, where there were some cotton stalks where the land had been cultivated in cotton for 1926, and we found in this cotton patch, under some grass, a half-gallon fruit jar full of corn whisky; Mr. Settle at the time was near the barn with Mr. Patterson.” Over the objection of the defendant, the witness was then permitted to tell about seeing defendant’s two sons in the pasture some distance away, who started their car and went east hurriedly. “I pursued them about a mile, where they stopped at some alfalfa haystacks.” The court permitted the witness to state his idea of what the boys were doing at the haystack a mile away, and defendant reserved an exception. The court also permitted the witness, over the objection of the defendant, to state that when he went to his car, after they had gotten through with the search, some wiring was out of order and he could not start it. The witness did not contend that defendant had anything to do with his car.

The testimony of W. E. Settle was, in substance, the same as the testimony of the first witness. All of the testimony on behalf of the state shows that the fruit jar of whisky was found 250 to 300 yards from the bam at the place where defendant was living, and in a field where cotton had been cultivated in 1926.

The defendant testified for himself, and stated he was living on the C. G. Long place on the 18th of December, 1926; that he had been living there two or three weeks; Mr. Long had arranged for defendant and his family to pick cotton on Mr. Long’s place; that while they were picking cotton Mr. Long had agreed to let them have the use and occupancy of the house; he had contracted with Mr. Long that after the 1st of January, 1927, he would, work for Mr. Long for wages and Mr. Long was to let his family have some land to cultivate for the year 1927. Defendant stated the whisky found by the officers did not belong to him; he did not know anything about it; had never been in possession of it; he never saw or knew anything about it until the officers claimed they found it in the field about 250 to 300 yards from the house where he was living. The defendant was then asked' by the county attorney if his boys had not left the house about the time the officers found the whisky, which was objected to by the defendant, the objection overruled, and defendant excepted. The defendant stated his boys went to the field in the car; that he was in the house when the boys went away; his married son was at the house when the officers came, and he did not leave the house. The two boys that went out in the field were Jack and Dutch, as defendant remembered. “I knew the officers were searching the place and told them to go right ahead and search; I suppose the boys went to the field to pick cotton, as they had been picking cotton over where they went, and the frost was about off that morning; I did not see the boys any more until just before we got to town.”

C. G. Long was called on behalf of defendant, andl stated he was the owner of the place; that his renter had cultivated the land for the year 1926, and had picked about seven bales of cotton, but as he had farmed the land on a 50-50 basis, he could not make anything after he had paid the rental and he had gone away and left the cotton, and the witness C. G. Long hired the defendant and his family to gather the cotton for him and had agreed for defendant to work for him for wages, and was to let the defendant’s family have some land to cultivate, but he had not decided as to what land it was. This is, in substance, all the testimony that was introduced. It is not contended on behalf of the state that it had any evidence whatever showing this defendant had ever been in possession of the one-half gallon of whisky the officers claim to have found out in the cotton patch, over 250 to 800 yards from the barn; it was admitted they found no indication of the keeping of whisky, the handling of whisky, or the manufacturing of whisky where the defendant was living; the state proved that defendant had a number of sons, and, over the objection of the defendant, that two of them went from the pasture out in the field where there were some alfalfa haystacks more than a mile from where the defendant was living. The defendant had not cultivated the land where the whisky was found for 1926, and as shown by the owner of the land was not in possession of anything but the house and its surroundings, and was only hired for the purpose of helping the land-owner gather the cotton crop.

There are many questions raised by the defendant as to why this conviction should be reversed, but the only one that is necessary to be mentioned is defendant’s assignment 4, “That the court erred in overruling the motion of the defendant to return a verdict of not guilty.” This court has repeatedly held that where there is any competent evidence to go to the jury, though conflicting, it would not disturb the verdict of the jury. In Ren et al. v. State, 9 Okla. Cr. 671, 132 Pac. 1131, this court said:

“To justify or sustain a conviction of having possession of intoxicating liquor with intent to violate any of the provisions of the prohibitory law, there must be evidence sufficient to prove possession, and also' evidence of the criminal intent. When a verdict is manifestly contrary to the evidence, this court has no discretion, but must reverse the judgment.”

From a careful examination of the testimony in this case we fail to find any testimony that tends in any way whatever to connect the defendant with the possession of the whisky. The testimony in this case does not even amount to a strong suspicion of the defendant’s guilt. The whisky was alleged to have been found about 250 to 300 yards from the house in which the defendant was living. Defendant may be guilty, but we hold that the testimony in this case falls far short of the requirement of the law necessary to sustain a conviction.

The judgment is reversed.

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


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    EDWARD LOVELESS et ux. v. STATE.
    No. A-6562.
    Opinion Filed May 18, 1929.
    (277 Pac. 672.)

      Wright & Gill, for plaintiffs in error.
    Edivin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were convicted of possession of intoxicating liquor with intent to barter, sell, give away, and otherwise furnish the same to divers persons unknown, •and the defendant Ed Loveless’ punishment was fixed at a fine of $500 and confinement in the county jail for a . period of six months; the punishment of Mrs. Ed Loveless was fixed at a fine of |50 and confinement in the county jail for a period of 30 days. Motion for new trial wasl filed, overruled, and both defendants have appealed to this court.

The state to sustain the allegations in the information called H. O. Brown, the substance of whose testimony is as follows:

“I am a deputy sheriff; I know the defendants Mr. and Mrs. Ed Loveless; I went to their place about the 20th of March, A. D. 1926; Mr. Lindsay went with me.”
“Mr. Gill: At this time we object to the introduction of any evidence in this case, for the reason it was obtained, if any was obtained, by reason of an unlawful search and seizure, and in support of this objection we offer in evidence defendants’ exhibits A and B, being the search warrant and application for the search warrant.
“The Court: Overruled at this time.
“Mr. Gill: Exceptions.”
“I went out there with W. P. Lindsay and Chester Abbott. Mr. Lindsay went to the front door, I went to the rear, and I think Chester Abbott went to the front door with Mr. Lindsay. I went to a little window and saw. Mrs. Loveless in there. I then went to the kitchen door, Mr. Loveless was standing in the dining room; Mr. Loveless said, ‘Don’t go into the bathroom, my wife is taking a bath.’ I then heard a bottle break, and I immediately kicked in the door and went in. I took a quart of watery substance from the bathtub for analysis and turned it over to a chemist. We preserved pieces of the vessels broken. There were two one-gallon jugs that had been broken.”

It was agreed by both state and defendants that if the chemist was present he would testify that the analysis showed 19.85 per cent, alcohol.

On cross-examination the witness stated that the place where he made the arrest was the private residence of the defendants; that he went to the back porch of the residence and tore down the screen and entered the porch, and he believes they broke into the back door of the house; “I put my shoulder or my foot against it and kicked the back door in; I’heard a bottle break; I was in the kitchen when I heard the second bottle break.”

W. P. Lindsay testified, in substance, to the same facts as did the witness H. O. Brown. On cross-examination Lindsay stated Mr. Loveless told him he did not have more than two gallons of whisky. “I looked up the phone directory and the phone was in the name of Lee.” The' county attorney asked the witness what he knew about the place the defendants were living in, was it a private residence or a place of 'business, and he answered, “I would take it to be a bootlegging joint and place of business.” This was objected to by defendants, and the objection sustained by the court and the jury instructed not to consider the statement. The witness stated he did not know from whom the defendant was renting the house; all he knew was that the phone was in the name of Lee. This is in substance the testimony on behalf of the state.

At the close of the state’s testimony the defendants, and each of them, moved to strike from the record the testimony introduced by the state, for the reason that the same was secured in violation of the constitutional rights of the defendants.

“The Court: At this time the court overrules the motion.
“Mr. Grill: Exceptions.”

The defendants then demurred to the evidence introduced on the part of the state, for the reason the same is insufficient to establish the allegations to the information, which demurrer was overruled and defendants excepted.

Mrs. Loveless, one of the defendants, was called as a witness, and testified she was the wife of Ed Loveless; she was living with him at the time the officers made the raid on their residence; that she broke some bottles when >the officers came in; “my husband told me to break them; we had some whisky around there for our own use; ,'we had lived in Oklahoma City about six years.” The county attorney on cross-examination continued to ask the witness questions as to whether or not, when the officers were at their place previous to this time, when they lived on Tenth street, they beat anybody up. This was objected to by the defendant and the court sustained the objection. The witness stated she saw Mr. Lindsay before she went into the bathroom; they broke the screen door in, and the rear door, coming into the house. The county attorney then asked the witness if it was not a fact that the officers took from their house about 700 gallons of mash and a still, on Tenth street, before they moved to the place where they were living when the officers made the search on which the prosecution is based. The defendants objected, and the court inquired of the county attorney if he was asking that question to lay a predicate for impeachment of the witness, and the county attorney replied, “Yes,” requiring the county attorney to fix the time and place. The county attorney then repeated the question fixing the place, but did not fix the time. The witness stated that the officers found a still and something like 15 barrels of mash; witness stated the phone was in E. J. Lee’s name for the reason that when they lived on 10th street they owed a phone bill and the phone could not be connected up without paying the bill. She stated they had the residence rented, and that she paid the rent, 'and that the parties gave her a receipt. This is in substance the testimony of the defendant.

At the close of the testimony of the defendant, Mrs. Ed Loveless moved the court to instruct the jury that in his opinion the evidence was insufficient to warrant the jury to return a verdict against her. The motion was denied. The parties then agreed that the conrt could instruct the jury orally, which was done.

■Several errors have been assigned by the defendants alleged to have been committed by the trial court. The first assignment urges that the court erred in admitting the evidence secured by the search of a private residence on a complaint made on information and belief.

The defendants set out in full the application made by W. P. Lindsay to secure the search warrant to search the premises of the defendants. The charging part of the affidavit, omitting the caption, prayer and jurat, is as follows:

“I, W. P. Lindsay, being first duly sworn, depose and say, that in Oklahoma County, in the State of Oklahoma, on the 20th day of March,, 1926, Ed Loveless, alias Ed Lee and Mrs. Lee, in certain buildings and premises described as follows, to-wit: A one story frame house and outbuilding located at 609 North Brauer 'St., in Oklahoma City, in said County and 'State, did then and there unlawfully and willfully have in his possession and under his control, and did then and there unlawfully keep and does now unlawfully have in his possession and under his control, and does keep intoxicating liquors, described as wine, whisky, beer and other spirituous, fermented and malt liquors, a more particular description of which this affiant cannot give, and certain personal property, fixtures and furniture, consisting of bars, glasses, jugs, bottles and' other furniture, containers and fixture^, a more particular description of which this affiant cannot give, used for same.
“That the said persons are still willfully and unlawfully keeping the said property and intoxicating liquors above described for the. purpose and with intent to violate the Laws of the State of Oklahoma, and that they are used in and about the business of keeping a place where intoxicating liquors are willfully and unlawfully sold,, and all of the said above described devices, furniture, fixtures and appliances are being used by said persons in aid of said unlawful business.
“And the 'affiant further says that the above named! persons, at the said; place and in said building, are now. engaged in the business of keeping a place where intoxicating liquors are sold, given away and otherwise furnished to divers persons whose names are to this affiant unknown, in violation of the prohibitory laws of said State of Oklahoma, and are using all of the above described property in connection with and in aid thereof.
“Affiant further states that he has been informed by a reliable resident of the neighborhood that whisky is being kept and sold on the premises, that divers persons congregate there for the purpose of. buying intoxicating liquor; that said Loveless has been arrested by affiant in possession of a still, and that to his best information said Loveless is still making and selling intoxicating liquor, said premises in possession of said Loveless have become a place of public resort.”

The defendants insist that the allegations in this affidavit are not sufficient in law to warrant the officer in using the search warrant to search his private residence.

Section 7013, C. O. S. 1921, provides:

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

The question to be determined by this court is the question as to whether or not the affidavit and application, upon which the search warrant in this case is issued, contained the necessary allegations to be set forth in an affidavit to secure a search warrant to search the private residence of the defendants.

This court has repeatedly held that a search warrant for a private residence, where the affidavit did not contain any of the statutory requirements, thé warrant is invalid and void. There is no positive statement in the affidavit as to any one of the facts necessary to be stated to secure a search warrant. The necessary allegations should be:

First, that the residence or some part of it is used as a store,'

Second, a shop,

Third, a hotel,

Fourth, a boarding house,

Fifth, a place for storage, or

'Sixth, a place of public resort.

Neither of these allegations are contained in the affidavit. The affiant says that he is informed that said premises in possession of Loveless have become a place of public resort.

In Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629, this court, after citing sections 3615 and 3616, Revised Laws 1910, says:

“Under these sections of the law a search warrant cannot be lawfully issued, and no officer can lawfully enter and search the private residence of anyone unless such residence is a place of public resort, or it or some portion of it is used as a store, or as a shop, or as a hotel, or as a boarding house, or as a place for storage.”

There is not a line in the testimony in this entire record that any of the conditions required by the statute attached to the home of these defendants, and not a line of proof in the record, to indicate that any such condition existed. The proof in the record shows they had whisky in the house when Officer Brown broke in the back door, and Officer Lindsay came in the front door; one of the defendants broke a container in which the whisky was into the bath tub and officers got a part of the contents and had it analyzed, the analysis showing that it was 19.85 per cent, alcohol; but no one testified there was anything further in the home to indicate that it came within any of the requirements of the statute before a warrant should issue to search the residence of the party.

In Duncan v. State, supra, the court further said:

“No officer has a lawful right to search any such residence, even though he possesses such warrant, unless such conditions, or some of them, exist in the habitation at the time the search is to be made. No man, be he officer or otherwise, is permitted to ruthlessly invade the sacred rights of any home, however humble, unless he is clearly within the law. The home of the American citizen is his castle supreme, and he whoi dares invade the sanctity thereof does so at his peril.”

We hold that the affidavit in this case does not contain the necessary allegations upon which to predicate a search warrant to search the residence of the defendants, and that the objections of the defendants to the introduction of the testimony procured by reason of the search warrant the officers claim to have, should have been sustained.

There are other errors assigned by the defendants which have merit, but the view we take of this record is it is not necessary to discnss them.

There being no competent testimony to sustain the judgment, the cause is reversed and remanded.

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


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    JOHN MENNER v. STATE.
    No. A-6602.
    Opinion Filed May 18, 1929.
    Rehearing Denied June 6, 1929.
    (277 Pac. 670.)

      See, also, 35 Okla. Cr. 252, 250 Pac. 541.
    Warren & Warren, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Choctaw county on a charge of shooting at another with intent to kill, and was sentenced to serve a term of nine years in the state penitentiary.

It appears from the record that defendant, a negro, and a negro companion named Crane were traveling in a car and had a collision on the highway with a car driven) by other parties. A difficulty followed, and defendant was struck and knocked down by Ernest Bryant, who had come upon the scene. Defendant drew a small pistol and fired at Bryant. He and his companion then left the scene. Officers were notified, and they went into the negro section of the town of Boswell, where defendant was in a barn, and as the officers approached with a gun in hand several shots were fired by defendant at them, and the fire was returned. The charge is predicated on the shooting at Bryant.

Complaint is first made that defendant did not have a speedy trial, that his preliminary was held in the latter part of February and he was committed for the action of the district court, but no information was filed in the district court until September following. He was brought to trial in October. The record does not disclose whether or not he was at liberty on bail during this time. No authorities in support of the contention are cited. In all criminal prosecutions the defendant has a right to a speedy trial. Article 2, § 20, Const.; section 2349, Comp. Stat. 1921. It was the duty of the magistrate upon holding defendant for the action of the district court to' forthwith send the papers with a transcript of his proceedings to the district court. Again the record does not disclose whether or not this was done. As soon as the transcript was transmitted, it was the duty of the county attorney to file an information charging the offense for which the accused was held by the magistrate. Articles 5, 6, c. 7, Comp. Stat. 1921. If this were not done within a reasonable time, defendant, if incarcerated, would be entitled to his discharge by habeas corpus. If not incarcerated! upon appropriate action in the district court, that court should either require a speedy trial or dismiss the action. No complaint of the delay was made until after the information had been filed in the district court, the case assigned and ready for trial. Under this state of the record, the court properly overruled the motion to dismiss.

The only other assignment of error argued is that the court’s instructions 3 and 4 do not correctly state the laAv and are prejudicial. Instruction number 3 is, in substance, the usual charge that a plea of self-defense is not available to. one who is the aggressor or to> one who enters voluntarily into a difficulty armed with a deadly weapon. Instruction number 4 is, in substance, that, if it should appear to the jury that defendant at the time he fired the shot believed that he was in danger of losing his life or receiving great bodily harm, then such shooting was justifiable, unless they should further find beyond a reasonable doubt that defendant was the aggressor and had provoked the difficulty, in which case he would not be entitled to rely on the law of self-defense. The instructions are substantially correct and as a whole they cover the law applicable to the case.

There was clearly error, however, in admitting in evidence in detail the subsequent conduct of defendant in resisting the officers. Error is not urged upon this point, and it may be said to have been waived. We have no doubt, however, that the punishment assessed was materially increased by reason of this testimony.

Justice requires that the judgment be modified by reducing the punishment from nine years in the penitentiary to four years in the penitentiary, and, as modified, the judgment is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    MINNIE P. VALE v. STATE.
    No. A-6540.
    Opinion Filed May 18, 1929.
    (277 Pac. 608.)

      Prank B. Grant and James O. Lynch, for plaintiff in error.
    Roy R. Carver, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error;, hereinafter called defendant, was convicted of having possession of whisky and her punishment fixed by the jury at a fine of $150 and confinement in the county jail for a period of 90 days.

Upon application for search warrant by the affidavit of George P. Long, a search warrant was duly issued, and! the officers conducting the search found three quarts of whisky in room 3 of the Aimeda rooms. The defendant was conducting said rooming house at the time and was found in the room where the whisky was seized. The officers arrested the defendant; she was convicted of having possession of the whisky, and now prosecutes her appeal to this court.

The first assignment of error questions the sufficiency of the affidavit for search warrant. The defendant contends that the facts as stated in the affidavit could not have been known by the affiant and contests the accuracy of said affidavit.

This court has recently passed upon this precise question in the case of Frank Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, in which case this court laid down the rule that:

“Where the affidavit and search warrant are sufficient on their face, the evidence obtained 'by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information or the means 'by which it was obtained.”

The defendant further complains that the search was illegal because the liquor was not found in the room of the defendant, but in the room of another person who had rented the room in which the whisky was found. This court has repeatedly held that the immunity guaranteed by the Constitution against unreasonable searches is personal and that the defendant cannot be heard to complain of an unreasonable search or seizure as against another person. Klaber v. State, 35 Okla. Cr. 238, 250 Pac. 142; Williams v. State, 35 Okla. Cr. 172, 249 Pac. 433; Penrod v. State, 38 Okla. Cr. 46, 258 Pac. 1052.

The defendant next contends that the evidence was insufficient to support the verdict of the jury. The jury heard the evidence, saw the witnesses, and was able to observe their demeanor and to judge of their credibility. They evidently believed the witnesses of the state 'and disbelieved the story of the defendant. The judge who presided at the trial passed on the motion for new trial and denied the same. There is sufficient evidence in the record if believed by the jury to justify the verdict of guilty. Defendant assigns other errors, but they are without merit. The cause is therefore affirmed.

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


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    BURL LOFTON v. STATE.
    No. A-6546.
    Opinion Filed May 18, 1929.
    (277 Pac. 597.)
    O. C. Wells, for plaintiff in error.
    W. M. Williams, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was charged jointly with Ed Penn and; J. C. Story with the crime of transporting intoxicating liquor. At the time of the trial the defendant, J. C. Story,, was a fugitive from justice and his bond was, ordered forfeited. The defendants, Burl Lofton and Ed Penn, were tried and found guilty by a jury and sentenced by the court to each pay a fine of $100' and all costs of the action taxed at $131.40, and each be confined in the county jail for a period of 60 days.

This case was tried in November, 1926, and the appeal of the defendant, Burl Lofton, was lodged in this court on the 28th day of ¡March, 1927. The Attorney General has filed a motion to dismiss the appeal on the ground that the defendant is a fugitive from justice. This motion was filed on the 9th day of November, 1927, and is supported by an affidavit made by the county attorney and sheriff of Greer county that the defendant is a fugitive from justice, and the motion also bears tbe affidavit of Mary A. Foley that she served a copy of tbe motion to dismiss upon C. C. Wells, attorney at law, Mangum, Okla., tbe attorney of record for the defendant in this case, by United States mail.

No response to said motion has been made. It is settled by many, decisions of this court that, where a defendant has been convicted and appeals from tbe judgment, this court will not consider bis appeal unless be is where he can be made to respond to any judgment or order of the court, but in such cases will dismiss the appeal.

Tbe appeal is dismissed.

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