text:
    Ex parte W. H. SEALE.
    No. A-10201.
    Sept. 30, 1942.
    (129 P. 2d 862.)
    W. N. Bedwine, of McAlester, for petitioner.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   BABEFOOT, P. J.

Petitioner, W. H. Seale, hasl filed in this court petition for writ of habeas corpus alleging' that he is now confined in the State Penitentiary at McAlester by Fred Hunt, warden; that he is unlawfully restrained of his liberty by reason of a void judgment and sentence pronounced against him by Judg’e Hayson of Oklahoma county on or about the 5th day of October, 1915, by which he was sentenced to serve a term of 99 years in the penitentiary. Copy of the indictment and judgment and sentence are attached to the petition.

The grounds upon which petitioner relies for this writ are almost identical to the grounds set forth in the case of Ex parte Paul Nye, 75 Okla. Cr. 155, 129 P. 2d 614:

Defendant was charged with the murder of J. H. Haywood McDonald in Oklahoma county on the 5th day of March, 1915. He was arrested in the State of Arizona and was brought back to this state in the month of September, 1915, and entered a plea of guilty to murder and was by the court sentenced as above set forth.

A response has been filed by the Attorney General on behalf of the Honorable Fred Hunt, warden of the penitentiary, and attached thereto is an affidavit of W. D. Witcher, a deputy sheriff, who went to the State of Arizona and brought petitioner to this state. Also attached is an affidavit of Judge John W. Hayson, in which he states:

“John W. Hayson, of lawful age, being first duly sworn, deposes and says that on the 2nd day of October, 1915, he was one of the District Judges of the 13th Judicial District of the State of Oklahoma, composed of Oklahoma and Canadian Counties, and that on said date as such Judge, he held Court at Oklahoma City, Oklahoma.

“That on said date, in cause No. 3817, State of Oklahoma v. Seale, the defendant was duly arraigned in said Court under the indictment in said cause. That the indictment was read to defendant. Whereupon this affiant, as Judge of said Court, inquired of defendant as to Ms true name, and the defendant stated that his name was W. H. Seale. This affiant then inquired of said Seale if he had an attorney and was informed by the said Seale that he had no attorney and did not desire an attorney. Whereupon this affiant advised the said Seale that he was entitled to counsel and entitled to time to plead to said indictment. The said W. H. .Seale then informed the Court that he did not desire any further time to plead and did not desire counsel, but desired to plead to1 the indictment at once.

“Whereupon the Court asked the said defendant whether he desired to plead guilty or not guilty to the charge in the indictment. The defendant thereupon stated that he desired to plead guilty and to be sentenced at once. The Court thereupon pronounced judgment upon the defendant and sentenced him to life imprisonment at McAlester, Oklahoma, and directed the Court Clerk to prepare the proper judgment and sentence.”

The facts set forth in the above affidavit are corroborated in the affidavit of W. D. Witcher, who was present at the time defendant received his sentence. There is no proof or evidence to contradict the statements above made. There is nothing- to show that the judgment and sentence entered against petitioner is void. The affidavits reveal that he was 23 years of age at the time judgment and sentence Was entered.

Upon the authority set forth in the Nye Case, supra, the petition for habeas corpus is denied.

DOYLE and JONES, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    EARNEST WATERS v. STATE.
    No. A-10022.
    Sept. 30, 1942.
    (129 P. 2d 863.)

      John W. Hunt and P. B. Garland, both of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Earnest Waters, was charged in the county court of Pontotoc county with the crime of omitting to provide for his minor children, was tried, convicted and sentenced to serve one year in the county jail and pay a fine of $75 and costs, and has appealed.

Two assignments of error are presented in the brief of defendant: First, that the county court was without jurisdiction to try said cause for the reason that the offense, if any, committed by the defendant was a felony; second, punishment is excessive and should be modified.

The prosecution herein was instituted under the provisions of section 1833, O. S. 1931, 21 O. S. 1941 § 852, which provides:

“Every parent of any child who willfully omits,, without lawful excuse, to' perform any duty imposed upon him by law to furnish necessary food, clothing, shelter or medical attendance for such child is guilty of a misdemeanor.”

This statute was adopted from the Dakota Code by the Territorial Legislature. It appeared as section 2434 in the Revised Laws of 191.0 and section 1855 of the Compiled Statutes of 1921.

It is the contention of defendant that the act of the Legislature of 1923, chapter 78, while not expressly naming the act herein as being specifically repealed, did repeal it by implication in that section 4 of the 1923 act repealed all conflicting laws.

Defendant’s contention cannot be sustained. The 1923 act amended chapter 149, Session Laws 1915, and now appears as 21 O. S. 1941 §§ 853 and 855. This act was directed specifically at the parent who abandons his minor child or children under the age of 15 years and willfully neglects or refuses to- maintain or provide for such child, and further provides that he shall he deemed guilty of felony. The statute under which this prosecution was instituted applies to either parent who willfully omits, without lawful excuse, to furnish necessary food, clothing, shelter or medical attendance to their child or children and makes such offense a misdemeanor. The issue of abandonment is not a condition in a prosecution under the misdemeanor statute. The act of 1928, by its terms, specifically amended sections 1854 and 1856, C. O. S. 1921, 21 O. S. 1941 §§ 851, 853. The act in question (section 1855, C. O. S. 1921, 21 O. S. 1941 § 852) was not mentioned and it apparently was the intent of the Legislature to leave said section alone. Under the misdemeanor statute, if a parent is living with a child and willfully omits to furnish necessary food or medical attention, he has committed a misdeameanor, but if he deserts the same child and refuses to maintain or provide for him, prosecution could be instituted under the felony statute. The desertion of the child by the parent was considered sufficient' justification by the Legislature to cause them to make such offense a felony, while the failure to provide the necessities, of life without an abandonment of the child was to continue to1 be a misdemeanor. Of course, if the parent abandons the child and refuses to provide for him, the county attorney, in his discretion, could elect to prosecute under the misdemeanor statute and ignore, for the purpose of the prosecution, the issue of abandonment.

Repeals by implication are not favored. Cox v. Territory, 2 Okla. Cr. 668, 104 P. 378; Hudson v. State, 37 Okla. Cr. 290, 258 P. 352.

In Hudson v. State, supra, the first syllabus provides :

“Repeals of statutes by implication are not favored. It will not be presumed that the Legislature intended to repeal a prior statute by a later1 one where it is not so expressed, unless the implication is necessary.”

In the body of the opinion it is stated:

“Repeals by implication are not favored, and will not be adjudged unless it necessarily follows from the language used. The presumption is against the intention to repeal unless express terms are used. Particularly is this true where the two acts are not irreconcilable or necessarily inconsistent, but both may be made to stand together. Huston v. Scott, 20 Okla. 142, 94 P. 512, 35 L. R. A., N. S., 721; 25 R. C. L. 918, 919, 921; Chew Heong v. United States, 112 U. S. 536, 5 S. Ct. 255, 28 L. Ed. 770.”

We hold that the statute in question is a valid existing statute and the prosecution was correctly maintained under the provisions of that statute.

At the time this cause was assigned for oral argument, the defendant filed a motion to strike the case from the docket for the reason that he had been contributing to the support of his minor children for the last several months to the extent of his earning capacity, and that he desired to continue to' do so, and prayed the court to allow the case to lie dormant until the Attorney General or the county attorney of Pontotoc county should request the same to be reset for final determination. Attached to the motion was an affidavit by the wife of the defendant, who was the prosecuting witness, in which she joined in the motion and stated that the defendant was satisfactorily contributing to the support of said minor children, and that if the case should be affirmed and said defendant confined to jail, the children would suffer. The county attorney of Pontotoc county likewise joined in said motion. While such request was unusual in its nature, this court has permitted the case to' lie dormant for several months. We now feel that the questions raised in the briefs should be determined and this cause disposed of upon the dockets of this court.

We have come to the conclusion, in view of the statements of all the parties concerned, that the punishment assessed the defendant should be modified from a term of one year in the county jail and a fine of $75 and costs, to a term of six months in the county jail and a fine of $75 and costs.

This court may not grant clemency. If the defendant is still satisfactorily contributing to the support of his children, such matter may properly be addressed to the chief executive, who may, in his discretion, grant executive clemency to- the defendant upon such terms and conditions as he may see fit to impose. The guilt of the defendant was clearly established. The matter of his conduct towards his children subsequent to his conviction is properly a matter for the Governor and not a matter to address to this court.

It is therefore ordered that the judgment of the county court of Pontotoc county be modified by reducing the sentence imposed against the defendant from one year in the county jail and a fine of $75, to six months in the county jail and a fine of $75, and the judgment and sentence of the county court of Pontotoc county, as thus modified, is accordingly affirmed.

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


text:
    JOHN A. HIETT v. STATE.
    No. A-10133.
    Sept. 30, 1942.
    (129 P. 2d 866.)

      Harry C. Hicks, of Hollis, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, John A. Hiett, was charged in the district court of Harmon county with the crime of assault with a dangerous weapon, was tried, convicted and sentenced to serve six months in the county jail, and has appealed.

On September 2, 1941, petition in error with case-made and proper proof of notices was filed in this court. No briefs have been filed and no appearances for oral argument made.

Where the defendant appeals from a judgment of conviction and no briefs are filed, nor argument presented, this court will examine the evidence and ascertain if it supports the verdict, and will make an examination of the information, instructions excepted to, and the judgment, and if no material error is apparent, the judgment will be affirmed. Epps v. State, 69 Okla. Cr. 460, 104 P. 2d 262.

We have carefully examined the record and no fundamental error appears. In fact, there are no legal questions presented by tbe record. It is admitted that the defendant assaulted the prosecuting witness. There was a sharp dispute in the testimony of the witnesses for the state and the defendant as to whether the assault was provoked by actions of the prosecuting witness. This was an issue for the determination of the jury, and this court will not interfere with the verdict under such circumstances. It appears that the defendant was accorded a fair and impartial trial.

The judgment of the district court of Harmon county is accordingly, in all things, affirmed.

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


author: HOYLE, J.

text:
    SWANIE FITZGERALD v. STATE.
    No. A-10055.
    Sept. 30, 1942.
    (129 P. 2d 867.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for the State.
   HOYLE, J.

The appeal in this case is taken to reverse a judgment of the county court of Kiowa county, rendered in accordance with the verdict of the jury, finding “the defendant, Swanie Fitzgerald, guilty and assess his punishment at a fine of $125 and a jail sentence of 15 days.”

Motion for new trial was duly filed. On December 20, 1910, said motion, having been presented to the court, was overruled, exception allowed; thereupon judgment was rendered on the verdict, and that the defendant pay all costs.

The specific charge was that in said county on the 26th day of March, 1910, Swanie Fitzgerald did have in his possession two and one-half pints of whisky, with' the unlawful intent to sell the same.

Several assignments of error are presented in the brief of plaintiff in error, among others, that the court erred in permitting the state, oyer defendant’s objection^ (and exceptions, to indorse the names of Edgar Hunter and Tom Overstreet upon the information, after the jury was impaneled and sworn to try the cause; that the court erred in admitting incompetent and prejudicial evidence over defendant’s objections; that the verdict of the jury is contrary to the law and to the evidence, and that the court erred in overruling defendant’s motion for a new trial.

It appears from the record that Doss Kutch, chief of police, in company with Elton Cary, his assistant, on March 26, 1940, went to the home of defendant, on South Stephens street in the city of Hobart, in executing a search warrant, and served the same on Mrs. Fitzgerald; that they found two and one-half pints of whisky and returned the same to Max Carder, assistant county attorney.

Over defendant’s objection, Doss Kutch testified that he saw there was quite a number of cars went in and out of defendant’s premises, and over the defendant’s objection he further testified as follows:

“Q. Mr. Kutch, from your observation do> you know the reputation of the defendant’s place, whether it is a place for selling intoxicating liquor? A. I do. Q. What is that reputation, Mr. Kutch, good or bad? A. Bad. Q. Mr. Kutch, you stated that you are chief of police. In that capacity have you had a number of complaints against the defendant’s premises as being a place for sale and possession of intoxicating liquors prior to the search and seizure on March 26,1940? Objection overruled. Exception. A. I have.”

Elton Cary testified as follows:

“Q. Did both you and Mr. Kutch find this two' and one-half pints of intoxicating liquor? A. Yes, sir.”

Edgar Hunter, called and sworn as a witness, was permitted to testify, over the defendant’s objections, that his name had been indorsed on the information after both state and defendant announced ready for trial and after the jury having been impaneled and sworn to try the case; that defendant’s counsel has had no opportunity whatever to interview witness as to what his evidence would be.

“The Court: Overruled. At this time I will give you ten minutes to talk to these two additional witnesses if you want to talk to them. (No examination made of witnesses by counsel for defendant.) Q. ¡Son, how old are you? A. Twelve. Q. And you understand the oath the judge gave you, about swearing to the truth, that is correct? A. Yes, sir. Q. Around the first part of the year, say March 26th, or maybe several months before or after, the defendant, Mr. Fitzgerald, lived on Stephens Street, to your knowledge, didn’t he? A. Yes, sir. Q. Son, do you know if the defendant, Mr. Fitzgerald, has a son about your age? A. I don’t know if it is his son or not, he has got a boy. Q. He lives in the house with} him? A. Yes, sir. Q. When you played with him, didn’t you have occasion often times to go into Mr. Fitzgerald’s house and play in through the house and around the premises? A. Yes. Q. Son, when you played in the house, didn’t you have some knowledge of where some intoxicating liquor was hid? Objection overruled. Exception allowed. Q. Just tell the court, son, if you knew where any intoxicating liquor was held in Mr. Fitzgerald’s house. Or about the premises? A. Around the cellar porch. Q. Where else, son, in the kitchen, refrigerator, or anything like that? Counsel for defendant: Objected to1 leading the witness. Incompetent, irrelevant and immaterial. By the Court: Don’t lead. Q. Son, where else on the premises did you know that whisky was being kept in Mr. Fitzgerald’s house? Objection overruled. Exception taken. Q. Just answer the question? A. Joe Ben showed me one — kept some down in the ice-box in the back room. Q. When you played around the house, did you see a large number of people coming in and out of the house? Objection overruled. Q. Now at any time when you played around there in the premises, son, did you see people carry away intoxicating liquor, that you could see? Objected to' as incompetent, not within the issues of this case and prejudicial. A. I seen them carry it in their pocket. By the Conrt: It goes to the reputation of the place. Overruled. Exception. Q. Now, son, just tell the court and jury if you saw men carry away intoxicating liquor from that place, when you could see the intoxicating liquor. Objected to as incompetent, irrelevant and immaterial, and not within the issues of this case, leading and suggestive. By the Court: Overruled. Counsel for defendant: Not the proper way to establish/ the general reputation. By the Court: I think that would be the best way to> establish a reputation. Overruled. Exception. A. Yes. Q. A number of times? Counsel for defendant: We move that the evidence be stricken and that the answer be stricken, and the jury instructed not to consider it. Overruled. Exception. Counsel for defendant : At this time comes the defendant and asks the court to declare a mistrial of the case for the prejudicial effect of the evidence that has been heard in the presence of the jury. By the Court: Overruled. Exception. Q. Son, tell us, how you saw the intoxicating liquor? A. In their pocket, saw the top of it sticking out.”

Tom Overstreet, constable, testified:

“Q. Have you seen a large number of cars in and at Swanie Fitzgerald’s place, on South Stephens? A. I have seen several cars in and at his premises. Q. Mr. Overstreet, do you know the general reputation of the) place on South Stephens, the defendant’s place? A. Yes, sir. Q. Will you just tell the court if that reputation is good or bad, for sale and possession of intoxicating liquors? Objected to as being incompetent, irrelevant and immaterial, and no proper predicate having been laid. Overruled. Exception allowed. A. Bad.”

On behalf of the defendant, Dan Christian testified: That he is general supervisor foreman of the farm to market project of W.P.A. in west commissioner’s district, and has held the position for about two' years; is acquainted with defendant, Fitzgerald, also with Clint Huggins; that on March 26th iSwanie Fitzgerald worked on said project of which he had supervision; that the time sheet shows that defendant worked eight hours on that day, from 8 to 12, and 12:30 to 4:30; that the time sheet also shows that Clint Huggins worked the same hours on that day.

The time sheet introduced in evidence as exhibit “A”.

He further] testified that Mr. Fitzgerald had been employed on said project for some period of time, and worked for about one month after March 26th, at which time all the employees that resided in the city of Hobart were discharged for the reason that local employment became available in the vicinity of the project.

Clint Huggins testified:

“I live at Hobart, worked on the W.P.A. as testified by Mr. Christian, worked on the 26th day of March, I worked through March, Mr. Fitzgerald worked with me. On March 26th, Mr. Fitzgerald and I bought three pints of whisky, we drank a half pint that night, the next day we went back on the job. I heard they had raided his home and found the two and a half pints of liquor we had bought.”

That he did not drink it and left the whisky at ■Swanie’s, and did not take his portion home because his wife don’t approve of that; that no part of the liquor purchased was for the purpose of selling it or unlawfully disposing of it. It was for their own use, so that they could have a drink when they came in at night after working all day.

On cross-examination asked:

“Q. From whom did you purchase that? Objected to as incompetent, and not within the issues of this case. Sustained. The County Attorney: Exception.”

The defendant rests and the state rests.

The defendant moved the court to direct the jury to return a verdict of not guilty, for the reason that the evidence fails to establish the commission of the offense charged.

The Court: Overruled. Exception reserved.

The first contention is that the court erred in permitting- the county attorney to indorse the names of two additional witnesses, Tom Overstreet and Edgar Hunter, on the information after the jury was duly impaneled and sworn, in that the county attorney made no proper showing as required by sec. 2829, Sts. 1931, 22 O. S. 1941 § 303, to the effect that the evidence was not known to him prior to' the trial. Citing Clark v. State, 5 Okla. Cr. 189, 113 P. 992, and Steen et al. v. State, 4 Okla. Cr. 309, 111 P. 1097, 1099, where this court, speaking through Judge Richardson, said:

“Under this statute, it is the duty of the county attorney, before he files the information, to indorse thereon the names of all persons whom he knows or has reason to believe will be called by the state as witnesses to testify in the case in chief; and, if subsequently the names of other witnesses to be used to prove the case in chief become known to him, leave of court should be obtained to place their names on the information, and this should be done and the endorsement made as early as possible before the trial begins. Where, however, after the trial is begun, the county attorney learns of other witnesses in chief whom he did not know of before; upon a proper showing of that fact made to the court, leave to indorse their names even while the trial is in progress, and to permit them to testify, may be granted by the court in the exercise of its discretion.”

In Boston v. State, 39 Okla. Cr. 275, 264 P. 212, 213, it is said:

“It is error to' permit a witness to testify in chief in a misdemeanor case, unless his name has been indorsed on the information. [Sec. 2829, Sts. 1931, 22 O., S. 1941 § 303.] The law does not contemplate that the namesi of witnesses known to the state shall be withheld, hnt that they shall be indorsed on the information. Where they are omitted by oversight or inadvertence, or it is not learned until after the information is filed that certain persons may be witnesses, and there is no bad faith, their names may be indorsed as the rule of the court may prescribe, or by leave of court even during the course of the trial.”

Under the statute permission to' indorse the names of additional witnesses on the information is a matter resting entirely within the judicial discretion of the court, and unless it clearly appears that it was an abuse of discretion, and that it was prejudicial to the substantial rights of the defendant, it will not be held to be reversible error.

It appears that the testimony of the said witness was incompetent for reasons hereinafter stated.

It is also urged that the witness Edgar Hunter was incompetent, and that .the court erred in admitting the testimony, and in overruling the motion to1 strike the testimony of said witness.

Obviously, it was an error to overrule the objections made and to overrule the motion to strike the testimony of this witness, as shown by the testimony of said witness hereinbefore set out in full, and it may he said the same is the strongest argument in support of defendant’s contention. It appears that the witness failed to state! whether or not the testimony of observations made by this witness “several months before or afterwards” of the alleged date of the offense, was made for the purpose of qualifying, to testify as to the reputation of defendant’s residence.

It also appears that the court commented on the weight of the evidence as follows: “It goes to the reputation of the place.” Overruled. Exception. And again stated: “I think that would be the best way to establish a reputation.” Overruled. Exception. This was error.

It will also be observed that the testimony of this witness was in part hearsay:

Where hearsay testimony has been received which contributes to a verdict of guilty, the reception of such evidence does not constitute harmless error, but will be ground for reversal. McRae v. State, 8 Okla. Cr. 483, 129 P. 71; Brokhaus v. State, 11 Okla. Cr. 625, 150 P. 510; Hull v. State, 61 Okla. Cr. 12, 65 P. 2d 423.

It is also, contended that the testimony as to' the reputation of the defendant’s residence, occupied as such, was based on observations alone. The witness Kutch testified that from observations he knew the reputation of the defendant’s place, and that reputation was bad. The witness Overstreet, constable, testified that he saw several cars at the defendant’s premises and knows the general reputation of the place, and that reputation is bad.

The objections tc the competency of these witnesses! was that no proper predicate had been made.

We think the objections were well taken.

In Small v. State, 21 Okla. Cr. 99, 210 P. 317, 318, it is said:

“ ‘Reputation’ is said to be the common knowledge of! a community.”

In Tarbutton v. State, 57 Okla. Cr. 442, 48 P.2d 877, 878, it is said:

“It is true that the word ‘reputation,’ when unqualified, in common parlance means general reputation. What peace officers say to one another’ about a man’s place is not reputation. Reputation is what people generally in a community say of a place.”

It follows that the witnesses for the state did not properly qualify as knowing the general reputation of defendant’s place of residence.

In the case of Williams v. State, 25 Okla. Cr. 284, 220 P. 667, this court held:

“Proof that defendant’s home had the general reputation of being a place of public resort is not a sufficient predicate to authorize the admission of evidence of the general reputation of such place as a place where intoxicating liquor is kept for sale.”

Matson, Presiding Judge, in the opinion, reviewing decisions of this court, concludes as follows:

“Thus it will be seen that evidence of the general reputation of the premises as a place where liquors are sold is ordinarily not admissible in a prosecution for the unlawful possession of intoxicating liquor with intent to sell. In this jurisdiction the only exception to such general rule is as stated above, and evidently in this case the prosecuting officers believed they were complying with the premise that the place must be a place of public resort by merely proving the general reputation of the place as one of public resort. Such was not the holding in the Ward Case. Before evidence of general reputation of the premises will be held to be admissible in prosecutions of this kind there must be specific evidence that the place itself was a place of public resort, not simply that it bore such reputation.”

It is our opinion that the testimony as to the reputation of defendant’s home was wholly incompetent, and the only effect of it must have been to prejudice the jury against defendant, and for this reason it was error to overrule defendant’s motion to strike the same.

The statements of the court, duly excepted to, taken in connection with the leading and suggestive questions propounded by the county attorney to the child witness, were clearly a comment upon the weight of the evidence. These expressions of the court were not a correct statement of the law and might reasonably have prejudiced the jury against defendant, his counsel and defense.

We do not deem it necessary to comment on the other assignments of error.

When we recall the presumption that the law always indulges as to the innocence of one accused of crime, and the necessity of establishing the guilt of the defendant beyond a reasonable doubt, we think it would be destroying the presumption in favor of innocence, and permitting the subversion of the rule requiring the establishment of guilt beyond a reasonable doubt, to allow this! conviction to stand, and we cannot help thinking that a conviction upon testimony so slight and insufficient was more the result of passion and partiality than the dispassionate conclusion of the jury upon the facts in evidence.

For the erroneous admission of incompetent evidence and the insufficiency of the evidence to sustain the verdict, the judgment of the county court of Kiowa county is reversed, and unless further incriminating facts can he proved, the defendant should he discharged.

BAREFOOT, P. J., and JONES, J., concur.


author: BAREFOOT, P. J.

text:
    ELDON FRED HOLDER v. STATE.
    No. A-10009.
    Sept. 30, 1942.
    (129 P. 2d 872.)

      Glen O. Morris and Robert R. Rittenhouse, both of Oklahoma City, for plaintiff.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant.
   BAREFOOT, P. J.

Defendant, Eldon Fred Holder, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, to wit, 13 pints and 22 half pints and 168 pints and four quarts of tax-paid whisky, a jury was waived and he was tiled before the court. He was found guilty and his punishment set at a fine of $50 and to serve 30 days in jail, and has appealed.

The record in this case reveals that the liquor in question was found in two different places. The 13 pints and 22 half pints were found in defendant’s automobile in a public alley in Oklahoma City. Defendant was driving the car at the time and the officer testified that he ordered defendant to stop by reason of a traffic regulation; that when he went to the car he saw the liquor on the floor board of the car; that the dome lights of the car were burning and that he immediately arrested the defendant. The 168 pints and four quarts were found after a search of defendant’s home. It is admitted that the officer did not have a search warrant at the time. It is the contention of defendant that by reason of this fact they did not have a right to search either the automobile or defendant’s home, or private residence. As to the right to the search of defendant’s home, or private residence, it is unnecessary to decide in this case for the reason that under the evidence defendant was arrested for the commission of a misdemeanor in the presence of the officer. Where this arrest was lawful and not a subterfuge, the search was permissible under the many decisions of this court. Matthews v. State, 67 Okla. Cr. 208, 93 P. 2d 549; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028; Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239. The defendant was tried before the court, without the intervention of a jury. He was only given a punishment of $50 fine and 30 days in jail.

We have carefully examined the record and come to the conclusion that his arrest was lawful and that. the officer, upon seeing the liquor in the car, had the right to search defendant’s automobile. Defendant admitted that it was Ms liquor. The question of intent was a question for the court to decide, a jury having been waived.

After a complete examination of the record, we are of the opinion that the judgment and sentence of the court of common pleas of Oklahoma county should be affirmed, and it is so ordered.

DOYLE and JONES, JJ., concur.


text:
    Ex parte CHESTER A. WHITE.
    No. A-10221.
    Oct. 7, 1942.
    (130 P. 2d 103.)

      Glen O. Morris and George Miller, Sr., both of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.,
   JONES, J.

This is an original proceeding in habeas corpus instituted by the petitioner to secure his release from confinement in the county jail of Oklahoma county.

The agreed facts are that the petitioner entered his plea of guilty in the district court of Oklahoma county in two cases wherein he was charged with driving an automobile while under the influence of intoxicating liquor and was adjudged to pay a certain fine and the costs taxed against him. Included in the costs so charged against the petitioner was a “county attorney fee” of $40' in each case. Petitioner has paid the fine and the court costs with the exception of the $80 so assessed, and at the time of the filing of the petition was incarcerated in the county jail in default of the payment of said costs' where he ivas being given credit on said costs at the rate of $1 for each day of incarceration in said jail.

The sole question presented by this proceeding is whether the so-called county attorneys’ fees prescribed by section 1035, O. S. 1931, 28 O. S. 1941 § 38, should be taxed as costs in felony cases where the defendant pleads guilty and has been sentenced pursuant to such plea.

The statute in question reads as follows:

“The clerks of the courts and the justices of the peace shall charge and collect as costs in all criminal cases, to be known as county attorneys’ fees, and pay into the county treasury to the credit of the court fund, the following fees:

“For each plea of guilt in the justice of the peace court ................................................................... $ 5.00

“For each conviction in the justice of the peace court on a plea of not guilty ...................... 10.00

“For each conviction in the county court for gambling, carrying concealed weapons, disturbing religious worship, and for violation of the enforcement act —....................................................... 15.00

“For a conviction in all other misdemeanor cases —...............................................-........................... 10.00

“For each conviction on a charge of a felony except as herein otherwise provided ..................... 40.00

“For each conviction on a charge of rape, burglary, robbery or arson, in the first degree...- 75.00

“For each conviction on a charge of a capital offense ....................................i........,............................. 100.00”

It is the contention of the petitioner that the term “conviction,” as used in such statute, means a judgment which is assessed where there has been a plea of not guilty and a trial and conviction. His argument is based principally upon the fact that said statute specifically distinguishes between a plea of guilty in the justice of the peace court and a conviction in the justice of the peace court on a plea of not guilty, and fixes the fee which is to be charged at double the amount where there is a trial upon a plea of not guilty from that which is charged when a plea of guilty is entered.

When this question was raised the first impression of the court was that the contention of the petitioner was sound and should be sustained. However, a consideration of the statute and of the former decisions of this court has forced us to conclude to the contrary. .

If the contention of the petitioner was correct, it would not have been necessary in the second item of the above statute, in referring to justice of the peace cases, to insert the words “conviction on a plea of not guilty,” but it would have been sufficient, if petitioner’s contention is correct, to- have merely stated: for each plea of guilty- — $5; for each conviction — $10.

In the case of Gilmore v. State, 3 Okla. Cr. 639, 108 P. 416, 417, 139 Am. St. Rep. 981, it is said:

“In its ordinary sense the term ‘conviction’ is used to designate that particular stage of a criminal prosecution, when a plea of guilty is entered in open court, or a verdict of guilty is returned by a jury. But in a strict legal sense it denotes the final judgment of the court,” and “imports the final consummation of the prosecution, from the complaint to the judgment of the court by sentence.”

In Ex parte White, 28 Okla. Cr. 180, 230 P. 522, it was held:

“The term ‘conviction,’ in article 6, § 10, of the Constitution relating to pardons and paroles, denotes thel final judgment of the trial court, upon a plea of or verdict of guilty.”

■See, also, Martin v. State, 30 Okla. Cr. 49, 234 P. 795.

In 24 C. J. S., Criminal Law, § 1556, it is stated:

“In its general or popular sense, ‘conviction’ is the establishment of the guilt of accused according to¡ some known legal mode. In legal phraseology ‘conviction’ means the establishment or ascertainment of a person’s guilt prior to and independently of judgment or sentence, as by a confession in open court, a plea of guilty, or a verdict or finding of guilt by a jury. In its restricted or technical legal sense, ‘conviction’ means the final consummation of the prosecution including the judgment or sentence, or, as is frequently the case, the judgment or sentence itself.”

A conviction is that “legal proceeding of record which ascertains the guilt of the party and upon which the sentence or judgment is founded.” Commonwealth v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699.

In Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757, 762, this court, in discussing the proof which is necessary to establish a former conviction, used this language:

“It would seem, therefore, that a former conviction must be established by proving the rendition of a judgment on the verdict or plea of guilty.”

In 1 Bouv. Law Diet., Rawle’s Third Revision, p. 672, we find the term “conviction” defined as that legal proceeding of record which ascertains the guilt of the party and upon which the sentence or judgment is founded, and includes an ascertainment of the guilt of the party by an authorized magistrate in a summary way, or by confession of the party himself, as well as by verdict of a jury.

There is another reason why the contention of counsel for defendant may not be sustained. The statute herein involved became a law in 1910. Session Laws 1910, chap. 69, § 13. The Attorney General has directed the attention of this court to the fact that the administrative construction placed upon said statute by the Attorney General soon after its enactment was in accordance with the definition hereinabove set forth and included an ascertainment of the guilt of the party by a judgment and sentence on the verdict or by a plea of guilty. The court clerks of this state, acting on the advice of the Attorney General, have uniformly followed this administrative construction of said statute.

This is the first time this issue has been raised in the Criminal Court of Appeals. The Legislature, with a full knowledge of the administrative construction placed on said statute, has allowed it to remain a part of our Code without change since its adoption in 1910., For 30 year’s these fees have been charged as costs without questioning said statute.

In the case of League v. Town of Taloga, 35 Okla. 277, 129 P. 702, 705, it is stated as follows:

“The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for its judicial interpretation.”

And see Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L.R.A., N.S., 1036; Foote v. Town of Watonga, 37 Okla. 43, 130 P. 597; Missouri, O. & G. v. State, 29 Okla. 640, 119 P. 117; State v. Hooker, 26 Okla. 460, 109 P. 527; City of Tulsa et al. v. Weston et al., 102 Okla. 222, 229 P. 108; Leininger et al. v. H. L. Cannady Co., 139 Okla. 301, 282 P. 474.

It is our conclusion that the term “conviction,” as used in said statute, refers to the final judgment of the court based upon a plea of guilty or a verdict of guilty after a trial.

For the reasons hereinabove stated, the petition for writ of habeas corpus is hereby denied. The petitioner, Chester A. White, was admitted to bail pending the determination of this, proceeding.

It is therefore ordered that said petitioner, Chester A. White, be committed to the county jail of Oklahoma county until the costs, including the county attorney’^ fee of $80, are satisfied, in accordance with the statutes, by the payment of said costs or by service by the defendant of the statutory time in said county jail.

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


text:
    S. J. KING v. STATE.
    No. A-10033.
    Oct. 7, 1942.
    (130 P. 2d 105.)
    Glenn R. Watson, of Okemah, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and J. Walker Field; Asst. Atty. Gen., for defendant in error.
   BAREFOOT, P. J.

Defendant, S. J. King, was charged in the district court of Okfuskee county with the crime of maliciously and cruelly injuring a domestic animal; was tried, convicted, and sentenced to pay a fine of $25, and has appealed.

This appeal comes to this court upon a transcript. The evidence offered at the trial is not shown by the record. The question presented is that the statute under which defendant was charged is unconstitutional and void and did not create a public offense, and is in contravention of article 2, sec. 9, and article 2, sec. 7, of the Constitution of this state, and article 14, sec. 1, of-the Amendments to the Constitution of the United States. This question was raised by an amended demurrer to the information and in this, demurrer it was, alleged that the information filed under the above statute is duplicitous, and that the terms of the statute are so indefinite and uncertain that a public charge could not be based thereon.

All of these assignments of error are presented together and may be so considered.

The statute here concerned is Oklahoma Statutes 1931, sec. 1844, O. :S. A. (Stat. 1941), Title 21, § 1685, and is as follows:

“Any person who shall wilfully or maliciously overdrive, overload, torture, destroy or kill, or cruelly beat or injure, maim or mutilate, any animal in subjugation or captivity, whether wild or tame, and whether belonging to himself or to another, or deprive any such animal of necessary food, drink or shelter; or who shall cause, procure or permit any such animal to be so overdriven, overloaded, torturéd, destroyed or killed, or cruelly beaten or injured, maimed or mutilated, or deprived of necessary food, drink or shelter; or who shall wilfully set on foot, instigate, engage in, or in any way further any act of cruelty to any animal, or any act tending to produce such cruelty, shall he punished by imprisonment in the penitentiary not exceeding, five years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars; and any officer finding an animal so maltreated or abused shall cause the same to be taken care of, and the charges therefor shall be a lien upon such animal, to' be collected thereon as upon a pledge or a lien.”

It is contended by defendant that because the above statute provides for a punishment “by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year, or by fine not exceeding five hundred dollars,” the statute itself constitutes cruel and unusual punishment. To sustain his contention that the above statute is indefinite and uncertain to the extent that it is unconstitutional and void, defendant in his brief cites the following cases: State v. Lawrence, 9 Okla. Cr. 16, 130 P. 508; State v. Barnett, 60 Okla. Cr. 355, 69 P. 2d 77; Groskins v. State, 52 Okla. Cr. 197, 4 P. 2d 117, and Katzman v. Commonwealth, 140 Ky. 124, 130 S. W. 990, 30 L.R.A., N.S., 519, 140 Am. St. Rep. 359.

We have carefully examined these cases, and they do not sustain the contentions of defendant. In each case they uphold the validity of the statute in question. In some of the cases the statutes under consideration are much more general and broad in their terms than the statute here involved. In the Barnett Case, supra, the court sustained a statute, Oklahoma Statutes 1931, §§ 9146 and 9163, O. S. A. (Stat. 1941), Title 6, §§ 18 and 22, which, to our mind, is much more indefinite and uncertain than the one here involved. The court, in approving the case of Groskins v. State, 52 Okla. Cr. 197, 4 P. 2d 117, said [60 Okla. Cr. 355, 69 P. 2d 89] :

“A penal statute is sufficiently certain, although it may-use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to he prohibited. * * *

“This court is of opinion that the statute, including the sections in question, is constitutional and that all objections which have been urged thereto are without merit. Hence, the motions to quash and set aside the indictments in the two cases before the court below should be overruled.”

The Lawrence Case, supra, fully supports the contention of the state and not that of the defendant. It is true that the offense there involved was a common-law crime and the one here involved is statutory, but there is no difference in the rule by reason of this fact. The opinion states [9 Okla. Cr. 16, 130 P. 510] :

“We are of the opinion that [Comp. Laws 1909], section 2782, 21 O. S. 1941 § 22, is not void for uncertainty and that it is valid and enforceable, and that any act which is willful and wrongful and which results in grossly disturbing the public peace, or openly outrages public decency, or injures public morals, is within its terms, and constitutes an offense against the laws of the state of Oklahoma.”

In the Katzman Case, supra, the statute was upheld and the rule announced as follows [140 Ky. 124, 130 S.W. 991, 30 L.R.A., N.S., 519, 140 Am. St. Rep. 359] :

“ ‘No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.’ * * *

“Every penal statute should be given a reasonable construction — one that will effectuate the legislative intent in its enactment — and, if it describes the offense in language that can be understood by persons of ordinary intelligence, it will not be declared invalid on the ground of uncertainty. The established rules of construction do not require that the sufficiency of penal statutes should be measured by a technical standard that would impair their efficiency and make their enforcement difficult, if not impossible. A little common sense, as well as legal learning, must be used in the practical administration of the law; and it is not essential that a statute shall be so elaborate in its detail as to attempt to meet every possible state of fact that may arise under it. * * * The intention of the Legislature is to be collected from the words employed, but in construing a statute the court will look to the whole act, and the purpose of its makers in its enactment.”

It may be true that the statute above quoted is loosely drawn, but throughout it reveals that its main purpose is to punish those who are cruel to domestic animals. It provides many ways for the carrying out of this cruelty. Certainly the shooting of a domestic animal with a shotgun, as is charged in the instant case, would, if proved, constitute an act of cruelty contemplated by the statute. From a reading of the information, which is contained in the transcript, the defendant could not but know with a degree of certainty with what crime he was charged and what it was necessary for him to meet. While the evidence is not contained in the record, it does reveal that his defense was that of an alibi. He was not and could not have been misled in any way by the indefiniteness or uncertainty of the charge. Our statutes, Oklahoma Statutes 1931, sec. 3, O. S. A. (Stat. 1941), Title 25, § 29, provide that a liberal construction should be placed upon the interpretation of criminal statutes, with a view to effect their objects and to promote justice, and they should not be held unconstitutional unless clearly shown to be. The statute here involved gives a wide latitude as to the punishment which may be inflicted. It is to be assessed by the court or jury as the facts in each case justify. In the instant case a fine of $25 was imposed. This of itself could not be said to be cruel and unusual punishment for the malicious shooting of a hog.

It is not necessary in this case for the court to pass upon the question as to whether the assessment of a $25 fine under this statute constitutes a felony. This question is not directly raised and is not fully briefed. We reserve this question for future consideration when the same may be properly raised and presented.

To support the contention of defendant that the statute above quoted constitutes cruel and unusual punishment, the following Oklahoma cases are relied upon: Ellis v. State, 54 Okla. Cr. 295, 19 P. 2d 972; Ex parte Frank Meyers, 55 Okla. Cr. 75, 24 P. 2d 1011. Both of these cases uphold the statute under consideration. In the Ellis Case the court said [54 Okla. Cr. 298, 19 P. 2d 974] :

“Originally, no doubt, this prohibition was intended to forbid punishment of a barbarous character as the whipping post, the pillory, burning at the stake, breaking on the wheel, dismemberment, mutilation, or punishment in the nature of torture.”

In the Meyers Case it was said [55 Okla. Cr. 76, 24 P. 2d 1012]:

“A large discretion is vested in the Legislature in the fixing of penalties * * * and a penalty imposed by statute will not be held unconstitutional as excessive, unless it is so excessive as to shock the sense of mankind.”

This case expresses the general rule as announced by the text-books and authorities in general: 15 Amer. Jur., § 528, p. 171; 24 C.J.S., Criminal Law, §§ 1978 and 1979, pp. 1187-1194, and cases cited.

We do not think that the penalty imposed by the statute above quoted is “so excessive as to shock the sense of mankind.” As stated above, there may be individual cases which demand heavy punishment. Others may demand lighter. This statute permits both a high degree and a low degree of punishment, as the circumstances warrant.

Finding no error, the judgment and sentence of the district court of Okfuskee county is affirmed.

DOYLE and JONES, JJ., concur.


text:
    VIRGIL McCANN v. STATE.
    No. A-10021.
    Oct. 7, 1942.
    (130 P. 2d 108.)

      Robt. R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Virgil McCann, was charged in the court of common pleas of Oklahoma county with the unlawful transportation of intoxicating liquor, jury was waived, was tried, convicted and sentenced to serve 30 days in the county jail of Oklahoma county, pay a fine of $50 and costs, and has appealed.

Defendant contends in his petition in error that the court erred in overruling his motion to1 suppress the evidence. The facts show that one officer had driven another officer to his home about 11 p.m.; that while the officers were sitting in their automobile in front of the home of one of the officers, defendant pulled out of an alley-way driving at a fast rate of speed and ran a stop sign on Walnut street; that the officers pursued and stopped him. That when they approached the automobile which the defendant was driving, one of the officers asked the defendant his name and asked to see his driver’s license. That the officers saw exposed in a pocket of the defendant at that time a pint of whisky with the seal unbroken. Lying in the back seat were two half pints of whisky. The defendant was searched and two other pints of whisky were found on his person, making a total of three pints and two half pints of whisky found by the officers on that occasion.

No citation of authority, nor argument, nor reference to any facts is made in the brief of defendant to support his contention that the motion to suppress should ha.ve been sustained.

An offense was committed in the presence of the officers. They had a right to stop the defendant for violating the city ordinances, and when they approached the defendant’s car and saw the whisky they had a right to seize the same. See the recent cases of Holder v. State, 75 Okla. Cr. 202, 129 P. 2d 872; Golden v. State, 75 Okla. Cr. 121, 129 P. 2d 202; Saffa v. State, 75 Okla. Cr. 19, 128 P. 2d 241; Franklin v. State, 71 Okla. Cr. 115, 109 P. 2d 239; Sands v. State, 36 Okla. Cr. 55, 252 P. 72; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544, and other cases therein decided.

Most of defendant’s brief is devoted to' his proposition that the defendant was charged with the unlawful transportation of intoxicating liquor and was sentenced for unlawful possession of intoxicating liquor, which constituted a material variance requiring a reversal of this case.

This assignment of error was not set forth in the motion for a new trial, nor in the petition in error attached to the case-made filed herein. NO' motion in arrest of judgment was presented raising this question.

However, we have considered the entire record, and it is clear that defendant was charged and convicted of the offense of unlawful transportation of intoxicating liquor. Apparently due to a clerical error by the stenographer who prepared the judgment and sentence, it recites :

“* * * the prisoner, Virgil McCann, being personally present in open court, and having been legally charged with the offense of illegal possession of intoxicating liq-nor and having been duly arraigned thereon, and having pleaded not guilty and having been duly and legally tried and convicted of said offense, in said court, the prisoner is now informed of the nature of the charge, of his plea and of the verdict, and is asked by the court whether he has any legal cause to show why judgment and sentence should not be pronounced against him, and alleging no sufficient cause why judgment and sentence should not be pronounced against him, and none appearing to the court, the court does now hereby adjudge and sentence the said Virgil McCann for said offense by him committed.”

In the case of Wood v. State, 4 Okla. Cr. 436, 112 P. 11, 45 L.R.A., N.S., 673, it is stated:

“Where there is a variance between the verdict of the jury and the sentence of the court, it must appear from the record that such variance cannot be corrected without depriving the defendant of a substantial right, before the conviction will be set aside, but the cause will be remanded to the lower court for resentence.”

In the case of' Petition of Breeding et al., 75 Okla. 169, 182 P. 899, it is stated:

“The powers of the different courts of this state to amend imperfect records to speak the truth, by orders nunc pro tunc, extends to criminal as well as to civil proceedings.

“A criminal case is ‘pending’ in the sense that the court may correct its records by orders nunc pro tunc at any time until the judgment is fully satisfied.”

See also Caudill v. State, 9 Okla Cr. 66, 130 P. 812.

The proof of the defendant’s guilt of transporting intoxicating liquor is clear. No- defense was offered and defendant relied in the trial of the case solely upon the proposition that the search and seizure was unlawful. The judgment and sentence as. prepared can be corrected without depriving the defendant of a substantial right.

It appears from the record that no part of the judgment assessed against defendant has been satisfied and that there is no good reason why this defendant should not be resentenced in accordance with the verdict rendered against him.

It is therefore ordered that all the proceedings had in the trial court in this case, up to and including the verdict of guilty, are approved and affirmed, and that the judgment and sentence of the trial court be set aside upon the ground of the variance between the verdict and the judgment and sentence, and that this cause be remanded to the court of common pleas of Oklahoma county with directions to the judge of said court to resentence the defendant for the offense of transporting intoxicating liquor, in conformity to the information and verdict rendered against him. When the defendant has been re-sentenced, in accordance with this opinion, he shall be forthwith delivered to the sheriff of Oklahoma county so that the sentence of the court may be executed without further delay.

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


text:
    EUGENE DAVIS v. STATE.
    No. A-10035.
    Oct. 7, 1942.
    (130 P. 2d 111.)

      Allen G. Nichols, of Wewoka, and Ratterree & Nolen, of Okemah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error. ■
   BAREFOOT, P. J.

Defendant, Eugene Davis, and George Deer were charged jointly in the district court of Okfuskee county with the crime of larceny of domestic fowls, to wit, 20 turkeys. A severance was granted the defendant Eugene Davis. He was tried, convicted, and sentenced to pay a fine of $200 and to' serve two months in the county jail, and has appealed.

It is first contended that the state failed to prove the venue in this case; that it was not proved that the crime was committed in Okfuskee county. We have carefully examined the record and find that the evidence of Mary Rice, the complaining witness, showed that she resided three miles from Sand Oreek and in Okfuskee county; that her residence was on the county line between Okfuskee and Hughes counties, but that she resided east of the county line, in Okfuskee county, and that her turkey house was located due east of her home, facing the south. This would place it in Okfuskee county. The turkey roost was immediately behind the turkey house and this was the place from which the turkeys were stolen. This evidence was sufficient to establish the venue in Okfuskee county.

It is next contended that the evidence is insufficient to sustain the judgment and sentence. We dO' not consider it necessary to give a review of the evidence. There was a sharp conflict between the evidence of the state and that of the defendant. As has universally been held by this court, a verdict of the jury will not be set aside where there is a conflict in the testimony, and the evidence of the state is sufficient to sustain the verdict. ¡Several disinterested witnesses identified the defendant as one of the parties who sold the turkeys at Wewoka on the day following their loss. One of the turkeys was positively identified by the owner by reason of certain peculiar marks. Other circumstances, together with the fact that defendant lived in close proximity to where the turkeys were stolen, were facts to be considered by the jury in arriving, at their verdict. They saw the witnesses upon the stand and were in a better position to judge where the truth lay than is an appellate court. The defendant presented a good defense. His case was well tried. If the jury had believed his story, he would have been acquitted. But they found otherwise and, for the reasons above stated, the judgment and sentence of the district court of Okfuskee county is affirmed.

DOYLE and JONES, JJ., concur.


author: JONES, J. DOYLE, J.

text:
    ALVA FLOYD MOORE v. STATE.
    No. A-10106.
    Oct. 14, 1942.
    (130 P. 2d 114.)

      Jeff R. Laird, of Ada, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Alva Floyd Moore, was charged in the district court of Pontotoc county with the crime of murder, was tried, convicted and sentenced to death, and has appealed.

The attorney for the defendant was appointed by the court. We compliment him upon the vigorous and earnest manner in which he has presented his client’s cause.

The evidence of the state is substantially as follows:

Alf Hardage and his brother, Bill Hardage, owned and operated a Texaco filling station in the city of Ada. Alec Powell was a negro porter employed at the filling station. The defendant, a World War veteran, without any permanent home, lived occasionally with his brother and nephew in Ada. When the defendant was in Ada he loafed frequently at the filling station operated by the Hardage brothers.

Gene Caskey testified that on May 1, 1941, he first saw the defendant at Scotty’s restaurant near the Hard-age filling station; that at the request of defendant he drove him home after'his coat; that defendant pawned the coat and they drove to Elizabeth’s place on Broadway, where defendant bought a half-pint of whisky; that while he was with defendant, defendant took two drinks from the bottle; that defendant had a small pistol in his pocket which he showed to the witness; that defendant seemed upset and commenced crying and said that Scotty and defendant’s brother had been mistreating him. Defendant pulled a small g;un out of his pocket and said: “I had just as soon to shoot you as anybody.” Witness then told of conversation had with defendant where defendant seemed to be worried about someone telling his nephew that he had borrowed some money from a laundryman in Ada. Witness left defendant in front of the Hardage filling station.

Bill Hardage, brother of the deceased Alf Hardage, testified that defendant had loafed at their filling station off and on for about two. years prior to May 1, 1941, the date of the homicide. He saw defendant at the filling station about 3 o’clock on May 1, 1941. Defendant had liquor on his breath and tried to borrow $17 and mentioned that he wanted to. go to Sherman, Tex. That defendant had tried to borrow money from them frequently to buy whisky. This witness was not present when the incidents occurred which led up to the homicide.

J. F. Cromer, who was in the electric welding business at Ada, was a customer of the Hardage brothers. He came to the filling station about 4 o’clock, May 1, 1941. He and the deceased Hardage were visiting and joking with each other and he noticed the defendant six or seven feet away. That Alf Hardage gave him a torpedo match which exploded when he struck it. That he had not paid any particular attention to defendant until he saw him put a gun on Alf and tell him to get in a car which the deceased Alec Powell had just driven to the station. That when the defendant pointed the gun at Alf, Alf kidded and laughed and said all right and started out the door to the automobile. That defendant pointed the gun at Cromer and Cromer slapped it back and asked if it. was loaded, at which the defendant replied: “You bet it is loaded, and I will shoot your guts out if you don’t get away from here.” Cromer walked on to his automobile, which was parked several feet from the automobile in which Alf Hardage and the negro porter Powell were sitting. That defendant followed witness to his car and threatened to shoot him, but finally left and went back to the car and ordered Alf Hardage to. get under the wheel. That Cromer then got in his automobile and slammed the door. When the door slammed the defendant came running back to Cromer’s automobile threatening to shoot. That Cromer then picked up a gun which he had in the car, pointed it at the defendant and told him to put his gun up, whereupon the defendant wheeled and ran back and crawled into the back seat of the other automobile and ordered Alf Hardage to “Get out of here, take off.” A chase then followed across town in which the witness secured the aid of a motorcycle cop. The cars were driven at a high rate of speed on the Fittstown road. Witness first noticed the negro porter laying with his head on the back of the front seat as if he had been shot. Later he saw Alf Hardage go down and the car swerved into a ditch and ran into' a fence, where it was stopped. That he and the motorcycle cop ran up and ordered the defendant to come out of the car with his hands up. That defendant stuck his right arm out of the back window and waved a white handkerchief and later came out through the window. That defendant was shot through the jaw and was bleeding. Both Alf Hardage and Alec Powell were dead, with a single bullet Avound in the back of their heads.

Quinton Blake, the motorcycle policeman, testified to the chase which he and Cromer made after the Hard-age automobile. His testimony concerning the shooting and the other facts surrounding the homicide were substantially the same as that of Cromer.

He further testified that the gun which the defendant used held eleven cartridges, and that all of the shells had been fired except the last one, which hung in defendant’s gun. He identified a picture of the automobile in which the parties were killed and pointed out seven holes in the car which Avere made from the inside. These bullet holes Avere at various places in the car, some of them in the top of the automobile and some through the window, indicating that the defendant had apparently fired aimlessly.

The defense interposed was insanity. The defendant and several other witnesses testified in his behalf. Their proof showed that the defendant served overseas in the first World War with the 90th Division. That he served in the front line trenches from August 1, 1918, until the armistice was signed, November 11, 1918, without relief. That many of the major conflicts which marked the turning point of that Avar were fought during this period. His certificate of "discharge from the United States Army was introduced in evidence and it showed that defendant fought in four major engagements at St. Mihiel, Meuse-Argonne, Villersen-Haye, and Puvenelle. The proof further shoAved that the defendant, during one of the battles, was fighting in a shell hole with three of his buddies and that a large shell struck near them, completely covering the four with dirt and debris. That defendant had to' be dug out of the shell hole and was the only one of the four who was alive. The defendant and his father had an unusually strong attachment to each other, and while the defendant was in France he received word that his father had died, which further unnerved him. That he had never drunk intoxicating liquor before he went to the war-, but that upon his return he commenced drinking. That his mother died shortly after defendant returned from overseas, after which time the defendant wandered around from place to place Avithout any permanent abode. That he spent a considerable time in veterans’ hospitals in NeAV Mexico, California, Kansas, and Muskogee, Okla.

A doctor at Ada testified that defendant’s brother had brought defendant to him for examination a few months before the homicide, at which time the defendant was complaining of severe frontal headaches. That he could find no organic cause for this ailment and advised that defendant he taken back to the Veterans’ Hospital at Muskogee.

The proof further showed that defendant was taken to Veterans’ Hospital at Muskogee, where he stayed three weeks. That when they started to take him to the hospital he cried and asked them to take him toi an asylum because he was going crazy. That he left the hospital without permission because they were fixing to operate on him.

The defendant admitted on cross-examination that he had been convicted of a felony in New Jersey and placed on probation, and that he had served six months in jail in California for petty theft.

The proof further showed that when the defendant was sober he was quiet and peaceful, hut that when he was drinking he would get mad and get into trouble. The proof further showed that any sudden noise near him would cause the defendant to become very excited and nervous. Various incidents were related by witnesses where the defendant would jump and shake for 15 or 20 minutes when a car would backfire near him, or would be highly nervous during a thunderstorm. One of the witnesses, a photographer for an Ada newspaper, testified that he took a flash picture of the defendant at the preliminary examination. That the defendant was not expecting him to take the picture and when the light flashed the defendant jumped to his feet, threw his hands over his face, and showed the most violent reaction the photographer had ever seen exhibited by any person who had had his picture thus taken.

One of the officers who examined the two: deceased shortly after the killing occurred testified that neither of them had any powder burns around their wounds, which indicated that the gun was not held close to their heads when it was fired.

The defendant, in testifying concerning the incidents which occurred on the day of the homicide, stated that he did not remember talking to the various parties who testified that they had talked to him on that date. He testified that he did not remember getting the gun, which belonged to his nephew, and did not remember the many other incidents which occurred. That he considered Alf Hardage and Alec Powell both as his friends and neither had done anything, to make him mad at them.

The other testimony on the part of defendant’s relatives and friends was that the defendant, until the outbreak of the present war, would never talk of his World War experiences, but that after the present conflict started he constantly talked of his own war experiences and stated that he hoped the government would take the older men who had seen service in the other war and not ruin the lives of young men. It is quite evident from the testimony that the constant news and talk of war had refreshed defendant’s memory of the days which he had served in the trenches of France.

There is some contention made in defendant’s brief that the court erred in the giving of certain instructions and of his failure to give am instruction requested by the defendant, but the chief contention of counsel for defendant is that the punishment, under the circumstances, is excessive and should be modified to life imprisonment. In presenting his contentions concerning the alleged error in the giving of instructions or rejection of requested instructions, counsel states that if such was error on the part of the court, it should at least be grounds for the modification of the judgment.

We have examined the instructions which were given and the instruction requested by defendant and have found no error committed. The court might have been justified in giving an instruction requested by defendant to the effect that if they should believe defendant was intoxicated to the extent of lacking the mental capacity to form a premeditated design to take life, then he should only be convicted of manslaughter in the first degree; but his failure to do so is not error where the testimony of all the witnesses, both for the state and defendant, was that the. defendant was not in a drunken condition. There were no facts testified to by any witness upon which such an instruction could be based. The witness who came the closest to testfiying to any such condition was the witness who. stated that defendant had taken two drinks out of a bottle of whisky, but this witness) stated that defendant was not drunk and all the other witnesses who talked to the defendant on that date, including those who saw him at the filling station and those who saw him immediately after he was arrested, stated that he was not drunk. Some of them stated that they could discern the smell of liquor on his breath, but that was as far as any of them went in testifying concerning any degree of intoxication. The theory of defendant was that the defendant was nervous over a quarrel with his nephew that day and became temporarily unbalanced because of the sudden noise caused by the explosive match and not because he had become mentally unbalanced due to being drunk. The defendant himself denied doing any drinking the day of the homicide. It is well settled that the defendant is not entitled to an instruction on an issue which is not raised by evidence. Gandy v. State, 34 Okla. Cr. 350, 246 P. 887. However, we shall consider this assignment in connection with the question of the modification of the judgment.

As to the other instructions complained of in the petition in error, we find that they are not discussed in the defendant’s brief, and, after a careful reading of the instructions, we find that they are such instructions as have been repeatedly approved by this court in cases where an issue of insanity has been raised, and there is no merit to this assignment of error.

We noAv come to the question most seriously urged upon this court, as to whether the sentence of death should be modified to that of imprisonment for life at hard labor. This court has the power under section 3204, O. S. 1931, 22 O. S. 1941 § 1066, on appeal, to reverse, affirm or modify the judgment. The right of modification, however, is: not unlimited. It must, as a matter of law, be Avithin the limits of the punishment fixed by the statute for the offense for which the accused was convicted. It must further be the exercise of a judicial power, as distinguished from the executive power of commutation, reprieve, pardon or parole. The one is an award of justice and the other is an act of grace.

The power conferred on this court to modify a sentence as a judicial act makes it the duty of this court in a capital offense to examine the entire record and to carefully weigh and consider the evidence, including the evidence as to defendant’s sanity at the time of the homicide, the instructions of the court given and those refused, in order to ascertain if, in the furtherance of justice, the judgment and sentence of death should be reduced to' life imprisonment.

Defendant was a shell-shocked and wounded veteran of the World War. It is undisputed that prior to that conflict he was an ordinary, honest, American citizen, physically in good health and that he did not drink intoxicating liquors. Like many other of our citizens who fought the bloody battles of that struggle, the war left its mark upon this defendant. The habit of some returned soldiers to turn to alcoholic liquor in an effort to forget the shock and frightful scenes which were burned upon their minds in those battles, and to forget the memory of dead buddies who had fallen around them, was very common in this country after the war had ended. It is common knowledge in Oklahoma and a fact frequently discussed by editorial writers and a fact within the personal knowledge of the writer of this opinion, that two of Oklahoma’s greatest World War heroes have hardly drawn a sober breath since that conflict.

The defendant’s physical condition has been such that he has spent many months in veterans’ hospitals in various states. iSudden noises shocked his nervous system. It is reaasonable to conclude that the noise made by the explosive match upset his mental equilibrium and affected his actions. After he had started to1 leave in the automobile with Hardage he heard Cromer slam his car door and he left the Hardage automobile and ran over to the Cromer car. There is nothing in these actions to show a deliberate killer at work, but rather a highly nervous man reacting with abnormal violence to noises reminiscent of war.

It is true, as insisted by the state’s attorney, that the overwhelming number of men who fought for their country on Flanders’ field returned to this nation and settled back in their communities and have lived honorable and respected lives since that time. But that war did not affect all men alike. The physical and mental make-up of all men is not the same. The fact that a man who commits the crime is an ex-soldier and honorably served his country is no excuse or justification for his commission of a crime, but when it is shown, as in the instant case, that the defendant honorably served his country and while so doing suffered shock and wounds which troubled him after that conflict had ended, then such circumstances should rightly be taken into consideration in determining whether such condition possibly contributed to the crime, and, accordingly, whether the judgment and sentence should be modified.

The shots fired by him in the fleeing automobile best illustrate his nervous condition. Five shots went through the top of the automobile scattered from front to back, one shot went through a side glass, one through the front windshield, one into the head of the passenger in the front seat and one into the back of the driver’s head. There were no powder burns on the victims, which tends to indicate that the defendant sat in the back seat and fired the fatal shots, as it is reasonable to conclude that if he had held the pistol close enough to the deceased to insure a direct and fatal hit powder burns would have been inevitable. While the defendant committed certain actions which indicated that he knew what was going on, such as the holding of a white handkerchief out of the window which indicated that he wanted to surrender, still there are such circumstances surrounding the entire occurrence which show the workings of an abnormal mind.

The question of the sanity of the defendant has been submitted to a jury under proper instructions and they have made their finding that defendant was sane. The penalty of death as a punishment of crime is to be inflicted only in the most extreme cases. It is a matter of record that the members of this court favor the infliction of the death penalty in cases where the evidence and the law justifies. Here there was an utter lack of motive. Both of the deceased were friends of defendant. He had had no' harsh words with the deceased, although lie had asked a brother of deceased to lend him money to go to Texas.

Honored and respected citizens; have met their death in a shocking manner and wholly without provocation. It was so deplorable that an entire community was justly shocked. Ordinarily, the person committing such a homicide should be given the death penalty for his crime, but there are extenuating, circumstances in defendant’s background which impel this court to conclude that the sentence should be modified to life imprisonment.

If we are tO' literally apply the doctrine of an eye for an eye, tooth for a tooth, life for a life, then the defendant most certainly should be electrocuted. But if there is a place in our criminal jurisprudence where the courts should temper their judgments with mercy it is in the instant case and solely because of the physical and mental condition of the defendant which arose because of his participation in an armed conflict fighting for his country.

The defendant should not be pardoned. The citizenship of this state deserves protection and the defendant should be kept in confinement as punishment for his crimes until a natural death comes to him.

For the reasons hereinabove given, it is the judgment of this court that the judgment and sentence of death assessed against defendant by the district court of Pontotoc county be modified by reducing it to imprisonment in the State Penitentiary at hard labor for life, and the judgment and sentence, as thus modified, is affirmed.

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

DOYLE, J.

(concurring). In a capital case, the law of our state in its great humanity allows the jury, after they have first determined the question of guilt, to assess the punishment, which may be death or imprisonment for life at their discretion, and, even after the jury say that the defendant should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment for life. Section 3204, O. S. 1931, 22 O. S. 1941 § 1066. In the case of Fritz v. State, 8 Okla. Cr. 342, 128 P. 170, 177, we said:

“The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor when deemed proper in the furtherance of justice is in no sense the power of commutation; of the sentence of the lower court. Commutation can be granted only by the chief executive of the state, and is granted as a matter of clemency. The judicial power to modify a judgment and sentence and the executive power to pardon, parole, or commute are wholly distinct in their nature. The one is an award of justice and the other is an act of grace. Commutation is a matter of discretion and may be refused. Justice is imperative, and must not be denied. The fact that the Governor has the power to commute does not abridge the defendant’s! right to appeal to this court for relief. In other words, this provision of our criminal procedure act makes it the duty of this court to' review the record, and in a proper case, if necessary in the furtherance of justice, modify the judgment so as to prevent the imposition of punishment which the evidence will not warrant.”

See Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Chambers v. State, 16 Okla. Cr. 238, 182 P. 714; Wilson v. State, 17 Okla. Cr. 47, 183 P. 613; McConnell v. State, 18 Okla. Cr. 688, 197 P. 521; Young v. State, 19 Okla. Cr. 363, 200 P. 260; Walker v. State, 20 Okla. Cr. 319, 202 P. 799; Peters v. State, 22 Okla. Cr. 245, 211 P. 427; Phillips v. State, 27 Okla. Cr. 108; 225 P. 180; Doublehead v. State, 27 Okla. Cr. 375, 228 P. 170; Bradley v. State, 31 Okla. Cr. 194, 237 P. 625; Goben v. State, 32 Okla. Cr. 237, 240 P. 1085; Manwaurin v. State, 35 Okla. Cr. 220, 249 P. 966; Johnson v. State, 35 Okla. Cr. 212, 249 P. 971; Hubka v. State, 40 Okla. Cr. 161, 267 P. 864; Holford v. State, 57 Okla. Cr. 431, 48 P. 2d 1082; Mitchell v. State, 59 Okla. Cr. 345, 60 P. 2d 631; Methvin v. State, 60 Okla. Cr. 1, 60 P. 2d 1062; Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438.

No more solemn duty can be imposed upon the courts than the duty of protecting, and the duty of taking, human life. To take the life of a human being is an awful thing, even when it is taken by the law.

Upon a careful examination and consideration of the entire record, my conclusion is that for the reason stated, the punishment imposed is excessive and for this reason the jury abused its discretion in assessing the extreme penalty of the law, and that justice requires that the judgment and sentence of death should be modified to provide that the defendant, Alva Floyd Moore, be imprisoned in the State Penitentiary for life at hard labor, instead of that he suffer death by electrocution.


text:
    J. A. PARKEY v. STATE.
    No. A-10054.
    Oct. 14, 1942.
    (130 P. 2d 112.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., anxd Jess L. Pullen and J. Walker Field, Asst. Attys. Gen., for defendant in error.
   JONES, J.

J. A. Parkey was charged in the county court of Kiowa county with unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50, and has appealed.

Counsel for defendant have presented many assignments of error in their brief However, in the view which we have taken of this case, it is only necessary to discuss one of them, to wit, the sufficiency of the evidence to sustain the conviction.

Two constables and a justice of the peace made a search of a small house on the rear of certain premises near the town of Hobart, where the defendant was living with his daughter, and found several pints of intoxicating liquors. The justice of the peace who issued the search warrant for the premises accompanied the constables and took the leading part in the search. The legality of the search was attacked at the trial, but it is unnecessary for us to discuss that issue. One of the constables remained at the car, about 100 yards: from where the search was conducted, and the other constable and the justice of the peace made the search. The court allowed the constable who made the search to testify, over the objection of the county attorney, that he had been furnished information that the whisky was in the outbuilding, but that his informant stated that it did not belong to “old man Parkey” (the defendant). The room where the whisky was found was locked and entrance was made by removing a window. Inside of the room, in addition to the whisky which was seized by the officers, was a stove, a trank and some other household goods. Parkey was present when the search was made and strenuously objected to the officers making a search. He told the officers at that time that the outbuilding had been rented by his daughter and son-in-law, who had charge of the premises, to J. T. McKendree for |5 per month for storing the household goods of McKendree. It developed from the testimony of the officers that McKendree had been operating a road-house a short distance from the place where the whisky was found, and that he had had some previous trouble with the officers over whisky. Other than the fact that Parkey was present at his daughter’s home on the same premises as the building where the whisky was found, no proof was introduced by the state to connect Parkey with the whisky.

In defendant’s behalf the proof showed that the premises involved, containing about 11 acres, had been rented by the owner to George Rosendale, who was employed by the telephone company at Hobart. Rosendale had married the daughter of the defendant and they had been living at this place about three years. Some time before the search was made Rosendale was taken to the sanitarium at Clinton for treatment of tuberculosis. The defendant Parkey was a widower and had been staying with different ones of his children. When Rosendale was taken to the sanitarium Mrs. Rosendale asked her father, the defendant Parkey, to come and stay with her and her children, as she was also in ill health. The evidence is clear that Parkey was merely a guest at his daughter’s home to assist her while her husband was gone.

One of the constables testified that he was convinced “to my own satisfaction that the whisky was not Parkey’s.”

The defendant Parkey testified that he was 71 years of age and had lived in and near Hobart for 30 years. That he had never in his life been arrested or accused of any crime. That he formerly served as police judge of the city of Hobart and that there was hard feeling existing between him and the justice of the peace who-issued the search warrant and conducted the search. That he had nothing to do with the premises, but had come there to stay with his daughter while her husband was gone. That he did not know whisky was in the building, but he did object to the search being made unless the officers could produce a search warrant.

Mrs. Eosendale testified that she and her husband had rented the small outbuilding where the liquor was found to J. T. McKendree for $5 per month for the purpose of storing his household goods. That she saw Mc-Kendree bring some large boxes and a trunk and some other household goods and store them in the building, but did not know that any liquor had been placed therein. That McKendree had placed a lock on the door and had kept it locked all of the time and that she did not know what was in the building. That the defendant was living there with her because she had been ill and unable to take care of the place and she had asked her father to come and help her while her husband was in the sanitarium.

The mayor of Hobart, the postmaster, the city treasurer, and many other responsible citizens of Kiowa county testified on behalf of the defendant that his reputation as an honest, peaceable, and law-abiding citizen was good. No evidence was offered by the state to refute the evidence of good reputation and no effort was made by cross-examination to discredit tbe good reputation of tbe defendant.

We are of tbe opinion that tbe state has wholly failed to sustain tbe burden of proving that defendant bad tbe possession and control of tbe intoxicating liquors which were found. The constable who' made tbe search stated that be was convinced that tbe liquor was Mc-Kendree’s and this court is also convinced from a reading of the record that tbe whisky belonged to McKendree, who bad been having difficulties with tbe officers because of bis liquor activities. Tbe statute of limitations bas not run and tbe county attorney, with tbe evidence shown in this record, has ample time if be wishes to institute a prosecution against McKendree, who' is apparently tbe proper party to be charged with tbe ownership and possession of tbe whisky in question. Other than tbe statement by tbe defendant at tbe time tbe search was made to tbe officers that be was tbe man of tbe place and that be was not going to let them search tbe building where tbe liquor was found without a search warrant, there is nothing to connect tbe defendant with this offense.

Mere knowledge by tbe defendant, if in truth be bad such knowledge, that tbe whisky was stored in tbe building would not be sufficient to convict him of tbe possession of it. It is clear that be did not have tbe possession or control of tbe building where tbe whisky was found.

We think tbe evidence is insufficient to sustain tbe conviction, and, accordingly, tbe judgment of tbe county court of Kiowa county is reversed and remanded with instructions to discharge tbe defendant.

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


author: PER CURIAM.

text:
    JOE QUICK v. STATE.
    No. A-10271.
    Oct. 14, 1942.
    (130 P. 2d 101.)
    Gordon Johnston and M. J. Parmenter, both of Oklahoma City, for plaintiff in error.
    Mac. Q. Williamson, Atty. Gen., and :Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Defendant, Joe Quick, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, and entered a plea of guilty and was sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

The Attorney General has filed a confession of error in which it is stated:

“Comes Now the State of Oklahoma, defendant in error, and confesses error in said cause for the following reason:

“It appears that the defendant and his counsel, pursuant to an agreement with the county attorney, went to the court house for the purpose of entering a plea of guilty, but that the defendant did not personally accompany his counsel before the court and seems not to have been personally present when the plea of guilty was entered.

22 O. S. 1941 § 516 provides: ‘A plea of guilty can in no case be put in, except by the defendant himself, in open court, unless upon an indictment or information against a corporation, in which case it can be put in by counsel.’

“§ 583 provides: ‘If the indictment or information is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment the trial may be had in the absence of the defendant; if however, his presence is necessary for the purpose of identification, the court may, upon application of the county attorney, by an order or warrant, require the personal attendance of the defendant at the trial.’

“While we do not doubt the guilt of the defendant, and that defendant as well as his counsel fully understood the agreement with the assistant county attorney for the entry of said plea of guilty, we are obliged to confess that such plea entered in his absence was not binding upon him, and that the trial court should have permitted the withdrawal of same.”

“Mac Q. Williamson, Attorney General “Sam H. Lattimore, Assist. Attorney General, “Attorneys for Defendant in Error.”

We have examined the record and find the statements made by the Attorney General are true, and, for the reasons therein stated, the judgment and sentence of the court of common pleas of Oklahoma county is reversed and remanded.


text:
    JOE QUICK v. STATE.
    No. A-10272.
    Oct. 14, 1942.
    (130 P. 2d 102.)
    Gordon Johnston and M. J. Parmenter, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

The facts in this case are identical with the facts in the case of Joe Quick v. State, 75 Okla. Cr. 241, 130 P. 2d 101, decided this day, the 14th day of October, 1942, and for the reasons therein stated, the judgment and sentence of the court of common pleas of Oklahoma county is reversed and remanded.