text:
    CHARLES HUGHES v. STATE.
    No. A-10253.
    March 15, 1944.
    (147 P. 2d 176.)

      John F. Thomas, of Lawton, for plaintiff in error.
    Randell S. Cobb, Atty, Gen., and Jess L. Pullen, Asst Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant,. Charlie Hughes, was charged in the county court of Comanche county with the unlawful possession of intoxicating liquor, a jury was ■waived, defendant was tried, convicted and sentenced to serve 60 days in the county jail and pay a fine of |200 and costs, and has appealed.

, The only issue presented is whether the description in the search warrant was a sufficient legal description of defendant’s premises to lawfully entitle the officers to make a search of defendant’s home.

Prior to the trial, the defendant filed a motion to suppress the evidence because the description in the search warrant was erroneous. At the hearing on the motion to suppress, proof was introduced both by the state and the defendant. ■

The description of the premises in question, as set forth in the search warrant, reads: “certain one story, red tile house, -with shingle roof, facing south, the same having a porch on south, the same being the first house west of the Ice Plant, on the north side of the street, said house being the third house east of the east limits of Fletcher, Oklahoma, on the north side of Main Street, east of Town of Fletcher, Comanche County, Oklahoma.”

It was undisputed that the house of defendant was a one-story, red tile house, with shingle roof, facing south, and that there were no other houses in the immediate vicinity of that description. The defendant had built this house along with some others adjacent to it of the same material, but the other houses had been covered with stucco.

The conflict in the testimony of the state and defendant arose from that part of the description which recited that the defendant’s house was the first house west of the ice plant; the proof of defendant being that the defendant’s house was the second house west of the ice plant. The proof of the state was that the defendant’s' house was the first house west of the ice plant, but the officer who testified for the state on the motion to suppress admitted that there was another house west of the ice plant, but that it was northwest of the ice plant and not west. That the house northwest of the ice plant faced the west and did not face the south and did not meet with the other descriptive averments set forth in the search warrant. There seems to be little dispute but what the house of defendant is correctly described as the third house east of the east limits of Fletcher on the north side of Main street, although one or two witnesses thought that it was the fourth house.

Some contention is made of the fact that the street running in front of defendant’s house is referred to in the warrant as Main street, when its real name, according to the town plat, was Bateman avenue. However, in refutation of this, every witness who testified both for the state and defendant referred to the street as Main street. It was the street on which the business of the town was located. The incorporators of the town had given that street the name of Bateman but everyone referred to it as Main street. There seems to have been no way that the designation of this street as Main street could have been confusing to the officers undertaking to serve the warrant. This street was the principal thoroughfare through the town.

At the conclusion of the hearing on the motion to suppress, the trial court made the .following statement:

“I have listened to all of this evidence, there is no question in the court’s mind about what these witnesses testified, it was all understood that the main street of Fletcher is the street described in this search warrant, generally understood so by everybody. I first thought when they began to introduce the evidence there was another house but I found out it was properly described from the city limits. There might be a little discrepancy on the other, but I can see in a way where that could properly be construed to be alright, it sets back on the road and wouldn’t be right directly west of the ice plant, it would be northwest, and I’ll overrule the motion.”

In the case of Williams v. State, 68 Okla. Cr. 334, 98 P. 2d 621, 622, the warrant was sustained which described the premises as:

“Premises known and described as the Second (2nd) house East of Highway No. 81, on West Michigan Avenue, on the North Side of said Avenue, Just West of the City Limits of the City of Chickasha.”

In Smart v. State, 63 Okla. Cr. 162, 73 P. 2d 488, 489, the description was held sufficient, which stated:

"From the south end of Wewoka St., Wewoka, Okla. one mile east, then south approximately one and one half mile to old Eureka Tool house, then east two hundred feet, third house on south side of road.”

There was a conflict in the evidence which raised a question of fact as to the correct legal description. There is substantial evidence in the record to support the finding that the description set forth in the search warrant was the correct description of defendant’s premises. Under the uniform holdings of this court, such finding of the trial court, when supported by substantial evidence, will be sustained on appeal. Peterson v. State, 76 Okla. Cr. 46, 133 P. 2d 914.

It is also insisted that since the name “John Doe” was inserted in the search warrant as the name of the person in possession of the premises to be searched that the search warrant was thereby invalidated.

We have held that where the name of the owner or occupant of premises is known to the person making the affidavit to obtain the search warrant that it is better practice to insert his name in the affidavit and warrant. However, where the search warrant is for specifically described premises only, and not for the search of a person, the failure to name the owner or occupant of the property in the warrant does not invalidate it if the description of the premises to be searched is otherwise correct. Vincent v. State, 75 Okla. Cr. 116, 129 P. 2d 196; Cook v. State, 75 Okla. Cr. 402, 132 P. 2d 349; Sanders v. State, 76 Okla. Cr. 6, 133 P. 2d 562.

The officers found 15 pint bottles of whisky, three quart bottles of whisky, three pint bottles of gin, one quart bottle of whisky partially filled, and one quart bottle of alcohol partially filled. No defense witnesses were offered at the trial.

Holding as we have that the issue on the motion to suppress raised a question for determination of the trial court and that his ruling thereon is supported by substantial evidence, and further finding no material error in the record, the judgment and sentence of the county court of Comanche county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    GLEN PATTERSON v. STATE.
    No. A-10260.
    March 15, 1944.
    (147 P. 2d 179.)

      Robert Burns and Mathers & Mathers, all of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Jim Ted Robinson, Co. Atty., of Sayre, for defendant in error.
   BAREFOOT, J.

Defendant, Glen Patterson, was charged in the district court of Beckham county with the crime of robbery, was tried, convicted and sentenced to serve a term of eight years in the penitentiary, and has appealed.

The information filed in this case charged the defendant and his codefendant, Charley Patterson, with the crime of robbery in the following language:

“That one Charley Patterson and Glen Patterson late of the county aforesaid, on or about the 8th day of August, 1941, in the county of Beckham, state of Oklahoma, did then and there unlawfully, knowingly, wilfully, wrongfully and feloniously make an assault in and upon one Melvin Jones with a certain weapon, to-wit: a revolver, then and there and thereby putting the said Melvin Jones in fear of an immediate and unlawful injury to his life and person by' threatening to shoot the said Melvin Jones if he resisted and did then and there under and by means of the use of said force and putting in fear, tie the said Melvin Jones and chloroform him, and did then and there unlawfully, wilfully, wrongfully and feloniously, against the will of him, the said Melvin Jones, take, steal and carry away from the custody and possession of the said Melvin Jones the sum of eleven dollars in lawful United States currency which was the property of the Story Hotel and did further take, steal and carry away seven pieces of luggage containing valuable jewelry of the value in excess of $10,000, being owned by the Samuel Gordon Jewelry Company, the same being under the personal custody of Mr. George Sutter, who had checked said luggage in at the Story Hotel and left the same in the care, custody and possession of the said Melvin Jones and that the said Charley Patterson and Glen Patterson did take the above personal property with the unlawful, wrongful and felonious intent then and there on the part of them, the said Charley Patterson and .Glen Patterson, to rob and deprive the said lawful owners of the said property and to convert the same to their own use and benefit,” etc.

A severance was demanded and defendant was separately tried, and was convicted, as above stated.

Counsel who briefed this case in behalf of the defendant did not participate in the trial thereof.

For a reversal of the case, it is contended:

“First, the court erred in overruling the request of the defendant to advise the jury to return a verdict of not guilty in this case because the evidence wholly failed to establish the crime of robbery, as charged in the information.
“Second: There is a vital variance between the evidence and the allegations contained in the information, the verdict of the jury and the judgment and sentence of the court.”

These contentions may be considered together.

It first becomes necessary to make a brief statement of the facts. The defendant was the son of his codefendant, Charley Patterson. Both were residents of Oklahoma City, Oklahoma county, Oklahoma. The only evidence was that presented by the state. The defendant did not testify, and did not introduce any evidence.

George Sutter, a resident of Anadarko, Caddo county, Oklahoma, was a jewelry salesman for the Samuel Gordon Jewelry Company, a wholesale jewelry concern. He went to Elk City in Beckham county, on August 7, 1941. and stayed at the Story Hotel, in that city. He carried with him seven cases containing samples of jewelry, diamonds, watches, etc. Five of the cases were steel with Yale locks, while two of them were leather cases, with leather straps around them, and Yale locks on the buckles. These cases were checked to Melvin J ones, the night clerk of the Story Hotel, and were placed by him behind the desk of the clerk, and in behind a telephone switchboard, under the stairway. When Mr. Sntter retired for the night, around 11 or 11:3Q, these cases were in their proper place. He was awakened during the night, and went into the lobby of the hotel, and there was much excitement and he looked for the cases, and all of them were gone. The next day he saw and identified his cases. They were at the police station in Elk City, in a black car that had fender wells, four of the cases in the back seat and three in the tonneau. He identified each of the bags and testified they were taken without his knowledge or consent, and that the value of the property in the cases was in excess of $10,000. None of the cases had been opened. Mr. Sutter identified the defendant as being one of the two parties whom the officers had arrested and who was present at the police station in Elk City at the time he identified his cases.

Mack Robinson testified for the state. He was a member of the police department at Elk City. He was on the night shift, and worked from 6 o’clock in the evening until 6 in the morning. He testified that just after midnight on the morning of August 8, 1941, he was at. the Rock Island Cafe, on Main street. That about 3 a. m. he came out of the cafe, and “started north and I saw two men come from the Story Hotel and get into a car and went north.” He went to the front of the Story Hotel and attempted to go in, and the door was locked. He went to a telephone and called the hotel, but got no response. He finally got the sister of the owner and manager of the hotel, Mr. Ed Story; and he came and opened the front door. Soon after the door was opened a number of persons came in, and upon investigation the night clerk, Melvin Jones, was found in the rest room, where he was bound and gagged, and tied to the stool. His feet were tied together and tied to the stool, his hands were tied behind him, and Ms face and mouth were taped with four-inch adhesive tape. After Ms release he was unable to talk for some time, and prior to this trial he had died, but not by reason of any injury he received on the night of August 7th. This witness could not identify the defendant as being one of the parties whom he saw leave’ the hotel, for the reason that he was not close enough to him. He described the car as being a black car with fender wells, and that he saw the first two numbers of the tag — 1—4—. He said “the exhaust was altogether different from what a car of that type would be. It sounded to me like a part of the muffler was busted or the exhaust was loose at the muffler.” He examined the car at the police station the foliowing day, and the one in which the defendant and his codefendant were at the time of their arrest, and stated that it was the same car he saw back out from the Story Hotel the night before, and go north.

Mr. Ed Story testified to being the owner and manager of the Story Hotel. He described the building and testified to seeing Mr. Sutter when he went through the hotel to go to his room. Also to getting up at night and opening the door and of the officers finding the night clerk, Melvin Jones, bound, as above described. He testified to other details with reference to checking baggage, etc., which it is unnecessary to relate.

Mr. O. C. Thornton testified that he owned a wholesale gasoline station in Elk City on the 7th and 8th of August, 1941. He recalled being at his place of business after midnight on August 7th. Pie testified that he saw “a black, ’38 Buick sedan came from the south to my station, came right up that street and went out on 66.” He was standing out beside the gasoline pump at the time. He described the car as being a black sedan and that it had well fenders and a trailer hitch on the back. He also testified that there was a drain ditch near his station and this car drove through the mud at the time it passed. There were two men in the car, but he could not identify the defendant as being one of them. The car turned east on Highway 66. He testified that by reason of the action of the parties in the car, and his thought that they intended to hold up his station, he immediately called the police station, and told Mr. Jones, the night chief, about the car. Mr. Jones came to his station immediately, and they drove out east on Highway 66 to Canute, but did not catch up with the car, and turned around and returned to Elk City. On the following day he went with the officers to El Reno, and there saw a “black Buick ’38 sedan, with well fenders.” He identified it as the same car he had seen pass his station the night before. It had the number TI — but he did not remember the balance of the number. He also testified that, “it seemed to me it had an exhaust or muffler or something cracked on it, it was loose or something,” and that the mud on the car was of the same color and kind as that in the ditch near his station. The car he saw in El Reno had the same “round ball or knob trailer-hitch.” He identified the defendant as being one of the parties sitting in the car at the time he saw it in El Reno.

Mr. O. C. Jones, the night chief of police at Elk City, testified to being called by Mr. Thornton. He himself had just noticed the automobile. He immediately went to Mr. Thornton’s station, and they followed the car out of town, but returned to Elk City, and went to the Story Hotel, where he assisted in releasing Mr. Melvin Jones. He identified the rope and tape which was introduced in evidence as that taken from the body of Melvin Jones. He went to El Reno, in Canadian county, which is east of Elk City on Highway 66, the next morning and there at the police station found the black Buick ’38 sedan, as testified by Mr. Tbornton. Tbe defendant was identified as one of tbe parties in the car, and he saw tbe seven bags in the automobile. They were the same bags later identified by Mr. Sutter as his bags that were taken from the Story Hotel. He brought the defendant and his codefendant to Sayre, in Beckham county, where they were placed in jail.

Gene Barnes testified that he’was a member of the State ITighway Patrol. That he was stationed at Elk City, and on the night of August 7, 1941, or early morning of the 8th, he was at the Story Hotel and that he called the State Highway Headquarters at Bethany and gave them a description of the automobile and contents which had left Elk City. He later received a call informing him that parties had been arrested and were being held at El Beno. He went with the Elk City officers to that point, and his evidence was the same as the others with reference to finding the automobile, the contents, and the defendant.

J. H. Blackard testified that he was a member of the State Highway Patrol, and on August 8, 1941, he was living at Edmond but working around Oklahoma City. He worked from midnight until 9 o’clock in the morning. He recalled receiving a broadcast from headquarters to all patrolmen in that part of the state, about 4:30 a. m. He was about ten miles northwest of Oklahoma City, and immediately went to Yukon, on Highway 66, to notify the officers there. He then went west, and near Banner received information over his radio that the car he was looking for had passed through El Beno, going east on Highway 66. He and his companion officer stopped and turned their searchlights on the highway, and the second car that came along was the one they were looking for. There were two men in it, some large objects in the back seat, and the number was 1-4 — •. “We laid the red light on and started the siren and they pulled off to the side of the road.” The elderly one of the two, who said his name was Charley Patterson, got out of the car. The other party in the automobile was this defendant. The officers searched both parties and found a 45-calibre pistol fully loaded lying on the floor boards in the front part of the automobile. Four cases were found in the back seat, and three in the trunk. These cases were later identified by Mr. Sutter in Elk City, and were turned oyer to him, and a receipt taken therefor. The cases were introduced in evidence. The men and the automobile and the cases were taken to El Reno, and turned over to the Elk City officers.

Mr. W. R. Livingston testified that he was a highway patrolman, and in August, 1941, was working with J. H. Blackard. His evidence was identical with that of Patrolman Blackard.

Ernie Eason testified that he canned the mail from Altus to Elk City. That on August 7, 1941, he left Altus about 10:30 p, m., and arrived at Elk City about 1 a. m. He usually remained there until about 3:10 or 3:15. That on the morning of August 8, 1941, he was in the Rock Island Cafe, in Elk City, about half a block from the Story Hotel. About ten minutes before three he left the cafe and started to the post office. He testified, “I saw one car come down Main street and go on down to just south of the Story Hotel and park at the curb, and two men got out of the car and went into the Story Hotel.” He further testified that the car was a black Buick ’38 model sedan, and that it had two 'spare tires, one in each fender well. He went from the post office to the Casa Grande Hotel and then to the Rock Island Cafe for the purpose of picking up two passengers. He saw two men come out of the Story Hotel, enter the Buick car, back it out from the curb and drive off, going north. In a short while he went by the Story Hotel and stopped, and was there and assisted in cutting the rope and releasing Melvin Jones.

Ed Story upon being recalled testified to the front doors being locked with a Yale bolt and that you could lock them by pulling them shut. He also testified to the arrangement of the Hotel.

These were all of the witnesses who testified for the state, and the defendant did not testify and offered no evidence.

The defendant requested four instructions, as follows:

“1. The defendant above respectfully requests the court to require the jury to assess the punishment, in the event they convict the defendant.
“2. The defendant requests the court to charge the jury on robbery in the second degree.
“3. The defendant moves the court to advise the jury to return a verdict of not guilty in this case.
“4. The defendant moves the court to dismiss the charge of robbery with firearms and not submit that issue to the jury.”

The court granted the second and fourth requests and so instructed the jury. No exceptions were taken to any of the instructions given by the court. The court instructed the jury as to the definition of robbery, as set out in the statute, Tit. 21 O. S. A. § 791, as follows:

“Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

He also instructed the jury as to robbery in the first degree, and as to conjoint robbery. The jury returned a verdict as follows:

“We, the jury impaneled and sworn to try the issues in the above entitled cause, do, upon our oaths find the defendant Glen Patterson, guilty of conjoint robbery, as charged in the information, and fix his punishment at imprisonment in the State Penitentiary for a term of 8 years.”

It is contended that because no one testified positively that a gun was used at the time of the robbery, the evidence was insufficient to sustain the verdict and judgment, by reason of the allegations in the information.

While the evidence against this defendant is largely circumstantial, we have often held that one may be convicted upon circumstantial as well as direct and positive testimony.

The evidence in this case is such that it precludes every doubt but that the defendant and his codefendant were the parties who bound and gagged Melvin Jones, the night clerk of the Story Hotel; and that they were the parties who robbed him of the seven cases containing the diamonds and watches, etc., checked by the witness Sutter. Prior to the trial Melvin Jones had died and the state was deprived of his testimony, yet every circumstance conclusively establishes the fact that defendant and his father, his codefendant, were the guilty parties. It is true that no witness was able to testify that he saw them in the very act of binding and gagging the night clerk and displaying the pistol at the time of the robbery; yet two men were seen entering the hotel; two men were seen to emerge from the hotel; two men Avere seen just after they left the hotel; the car in Avhich they were driving was identified beyond question by a number of witnesses; two men, who were these identical defendants, were arrested in this identical automobile. The property taken at the hotel was in the automobile, and in their possession. They had just had time to drive from the scene of the robbery to the place where they were arrested. It was upon the identical highway they were seen traveling just after the robbery; they were going directly toward the city where they lived. The 45-calibre pistol fully loaded was found upon the floor boards in the front part of the car. Certainly under this state of facts, the jury were justified in finding that the defendant was one of the parties who committed this crime, and to infer from this evidence that they used the gun or had it at the time they committed this crime. However, to commit the crime of robbery in the first degree, it is not essential that one use a firearm, and the court at the request of the defendant instructed the jury that the evidence did not show that the robbery had been committed with firearms, and this issue was eliminated from the consideration of the jury at the request of the defendant. He cannot at this time complain of this action.

Defendant in his brief relies upon the case of Smith v. State, 66 Okla. Cr. 408, 92 P. 2d 582, in which this rule of law is announced:

“Mere acquiescence in the commission of a crime by another is insufficient to establish guilt, since it must be shown either that the defendant committed the offense, or aided, abetted, or assisted in its commission. * * *
“To constitute one a party to a crime, it is necessary that such person be concerned in its commission, and it is not sufficient that he merely acquiesces therein with knowledge that another is committing the offense.”

From the statement of the evidence hereinbefore made, it will be seen that this rule of law has no application to the facts in the instant case. The circumstantial evidence of the participation of the defendant in this crime precludes its application. The same is true as to the case " of Miller v. State, 57 Okla. Cr. 99, 45 P. 2d 769, cited by the defendant. The defendant did not take the witness stand or offer any explanation of liis presence at the time the crime was committed.

The contention of defendant that there was a vital variance between the evidence and the allegations of the information and the verdict of the jury and judgment and sentence, cannot be sustained. In the first place, this question was not raised in the motion for new trial, nor in the petition in error. It is raised in the brief filed in behalf of defendant for the first time. An examination of the information reveals that it charged the defendant with the use of firearms, but clearly covered the offense of conjoint robbery. The court at the request of defendant eliminated the question of robbery with firearms, and submitted to the jury only the question of robbery in the first degree and conjoint robbery. There was no exception or objection to the verdict of the jury finding the defendant guilty of conjoint robbery.

Conjoint robbery is defined by Oklahoma Statutes, Tit. 21 O. S. A. 1941 § 800, as follows:

“Whenever two or more persons conjointly commit a robbery or where the whole number of persons conjointly commits a robbery and persons present and aiding such robbery amount to two or more, each and either of such persons is punishable by imprisonment in the penitentiary for not less than five years nor more than fifty years.”

Section 801 defines robbery or attempted robbery with firearms or with a dangerous weapon, and fixes the punishment. It has often been decided that the above statutes defining conjoint robbery and robbery or attempted robbery with firearms or a dangerous weapon, are statutes of classification, and not definitions. Simpson v. State, 40 Okla. Cr. 58, 266 P. 783; Inman v. State, 61 Okla. Cr. 73, 65 P. 2d 1228; Woods v. State, 68 Okla. Cr. 406, 99 P. 2d 189; Smith v. State, 69 Okla. Cr. 17, 99 P. 2d 527.

The statute defining robbery is Tit. 21 O. S. A. 1941 § 791, as above quoted. Conjoint robbery is where the act is committed by two or more persons. In conjoint robbery the punishment may be by imprisonment in the penitentiary for not less than five or more than 50 years, and for robbery with firearms it may be by death, or imprisonment at hard labor, in the State Penitentiary for a period of time not less than five years, at the discretion of the jury trying the case.

The judgment and sentence entered followed the charge in the information, and used the words “robbery with firearms,” and did not use the term “conjoint robbery,” as was found in the verdict of the jury. This was a mere typographical error. The defendant was not deceived and the punishment inflicted was a proper and legal punishment for the crime of which the defendant was convicted. It was in accordance with the verdict of the jury, and the instructions of the court, in the event defendant was found guilty. Even if the judgment and sentence were defective as contended by defendant, it could only result in a return to the trial court for correction, which we consider unnecessary, in view of the facts in this case. The sentence pronounced is not a void or illegal one, and the defendant would be able to plead former jeopardy against any attempted prosecution of this case. The appeal bond filed herein states that the defendant was convicted and sentenced for the crime of conjoint robbery. Winfield v. State, 18 Okla. Cr. 257, 191 P. 609; Richards v. State, 22 Okla. Cr. 199, 210 P. 295.

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

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    JOE COOK v. STATE.
    No. A-10243.
    March 22, 1944.
    (147 P. 2d 171.)
    David Tant and Tellegen & Miskovsky, all of Oklahoma City, and Billingsley & Kennerly, of Wewoka, for plaintiff in error.

      Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Roy P. Parham, Co. Atty., of Okemah, for defendant in error.
   BAREFOOT, J.

Defendant, Joe Cook, was charged in the district court of Okfuskee county with the crime of grand larceny, was tried, convicted and sentenced to serve a term of five years in the State Penitentiary at McAlester, and has appealed.

This defendant was charged jointly with one Clifford Capshaw with the larceny in Okfuskee county of “one four-inch Kelly joint of the value of $400, the property of one C. M. Serán.”

This property is an iron or steel rod about 40 feet in length, with a device which attaches to a rotary rig used in the drilling of oil wells. It was located on land where a well had been drilled in Okfuskee county, and was stolen from the location some time near the middle of June, 1941. Other property belonging to Mr. Serán and consisting of two sets of tongs, two jars, and an overshot, being heavy oil well equipment, was stolen at or near the same time. All of this property was afterwards found in Oklahoma county, some time near the 1st of July, 1941, and was recovered by the owner.

There is no evidence connecting this defendant in any way with the theft or asportation of this property in Okfuskee county. He was never seen or known to be in that county. The Kelly joint was recovered in Oklahoma City, Oklahoma county, during the early part of July, at the place of business of one John Schuster, who was running a machine shop at 1130 Southeast Twenty-ninth street, in Oklahoma City. It had been sawed in two and welded, making it about four feet shorter than when taken, and had been painted. One means of identifying the Kelly joint was that it had been planed down from a six-inch Kelly to a four and a quarter inch Kelly.

Mr. Schuster testified that he knew the defendant Joe Cook, and that he saw him the early part of July, 1941, at Bill Clay’s Supply store on West Main street, in Oklahoma City. That he went there after the defendant called him and told him that he had a Kelly he wanted to sell. They could not agree on the price. The next day the defendant called him (it was about the Fourth of July) “telling me that he wanted me to sell that Kelly for him, and asking if I could send to Bill Clay’s and get the same. I instructed my truck driver to get it, which he did.” Mr. Schuster placed the Kelly on a rack in front of his shop, out where the public could see it from the street. It was found there by the officers, and delivered to Mr. Serán, who identified it and claimed to be the owner. The only other conversation this witness had with the defendant was to tell him that the officers came out and took the Kelly joint.

This is the only evidence that in any way connected this defendant with the Kelly joint stolen in Okfuskee county, or with any of the other property stolen in that county. All of the other evidence offered by the state was with reference to the finding and identifying of the property in Oklahoma City, Oklahoma county, and of an effort by the officers to arrest the defendant; and finally of his arrest in the State of Kansas.

The defendant offered in evidence a witness named Bill Shepard. This witness had been many times convicted of a felony, and had served numerous sentences in the state and federal penitentiaries, and had a number of charges pending against him at the time he testified, including a charge for the theft of the jars, and one for the theft of the overshot lost by Mr. Serán.

The witness Shepard testified to going from Oklahoma City to Okfuskee county in the middle of June, 1941, in company with Everett Wood. He went in his car, and Wood went in a truck. That they went to an oil well and stole a Kelly joint therefrom. That it was loaded by them on the truck, and taken by Mr. Wood to Shawnee, and witness came on to Oklahoma City. That so far as he knew, it was never brought to Oklahoma City. That they started to saw it in two, but did not have time to finish it. He testified:

“Q. Hid Joe Cook or Clifford Capshaw know you or this man Wood were going to take Mr. Seran’s Kelly joint? A. They did not. Q. I)id they know afterwards that you did? A. No, sir.”

He further testified that he went back to Okfuskee county about the last Sunday in June, alone, and in the nighttime, and stole from the same place an “overshot” and “a set of tongs.” He started to Oklahoma City with them, and had a flat and buried the tongs, but loaded the overshot back in the car and took it to Oklahoma City. He took it apart and left part of it at his home, “and took part of it to Capshaw’s shop, and painted it.” He was asked:

“Q. Now did Clifford Capshaw or Joe Cook either know you were going to take these tongs or overshot? A. They did not. Q. Prom the possession of Mr. Serán? A. No, sir. Q. Did they have anything to do with it? A. They did not. Q. And did you tell them afterwards that you had taken it, or did they know you had them in your possession? A. No, sir.”

He further testified that on the Tuesday night following, he, in company with a man by the name of John Pressley, returned to Okfuskee county, and they stole “two sets of jars” (oil field equipment) from the same place from which he took the other property. That he took them to Oklahoma City and hid them in the yard of the codefendant, Clifford Capshaw. With reference to this, he testified:

“Q. What did you do with them? A. I hid them down at Capshaw’s yard near his house. Q. Did you see Capshaw? A. No. Q. Had you seen him since this Sunday or several days prior? A. No, I had not. Q. Tell the jury whether you ever saw Capshaw from the time you took the Kelly joint until you took the jars? A. Yes, I saw him a time or two. Q. You saw him after you got the Kelly? A. Yes, sir. Q. Did you tell him you took the Kelly joint? A. No. Q. Did you tell him you were leaving the jars down there? A. No. Q. Was there anybody there when you left them? A. His wife. Q. Did you talk to her? A. No. Q. What did you do? A. He has about an acre there and some old timber and stuff piled out there and I drove the car out there and piled them out and covered them up. Q. Do you know whether or not Mr. Capshaw knew they were there until he was arrested? A. No, T wouldn’t know. Q. Did Capshaw or Cook either one know thgt you were going to take the jars that belonged to Mr. Serán? Mr. Parham: To which we object as calling for a conclusion. The Court: Well, I don’t know how he could answer that. Q. Did you ever tell Mr. Capshaw or Mr. Cook that you were going to take these jars? A. I did not. Q. Did you ever tell either one of them you had left them on Capshaw’s property there in Oklahoma City? A. No, sir, I did not. Q. Did Mr. Capshaw or Mr. Cook either have anything whatever to do with the taking of that Kelly joint, or the taking of the over-shot and the tongs, or the taking of the jars? A. They didn’t. Neither one of them knew anything about it or had anything to do with it. Q. And had no interest in them? A. No.”

The witness then testified to being arrested in Oklahoma county and being brought to Okfuskee county, where he had been in jail since July 4,1941. On direct and cross-examination he testified to having made a written statement to the county attorney, and this statement was introduced in evidence. It contained some contradictory statements to the evidence he gave at the trial, but it could only be received to affect his credibility as a witness. There was nothing to connect the defendant with the larceny of the property, or even with the possession thereof in Oklahoma county, except as above outlined.

Evidence was also offered to show that the property found in Oklahoma City was not the property of Mr. Serán. This was a conflict in the testimony which may not be considered.

With this statement of the evidence and the law applicable thereto, it will at once be seen that the court should have sustained the motion of defendant to direct a verdict of acquittal. And this is true after giving the state every logical inference as to the guilt of defendant. This court in a number of cases almost identical with the facts here has announced the applicable law. In the case of Dismore v. State, 60 Okla. Cr. 346, 44 P. 2d 894, the law is stated:

“Where larceny has been committed and asportation has terminated, one not connected with the original taking, either as principal or as aider or abettor, but who thereafter, with knowledge that property has been stolen, assists in concealing, selling or destroying [or dismantling the stolen property, is not guilty of the larceny.” Pass v. State, 34 Ariz. 9, 267 P. 206; Tucker v. State, 21 Tex. App. 699, 2 S. W. 893; Boyd v. State, 24 Tex. App. 570, 6 S. W. 853, 5 Am. St. Rep. 908; People v. Disperati, 11 Cal. App. 469, 105 P. 617; Reed v. State, 22 Okla. Cr. 141, 210 P. 311; Vann v. State, 21 Okla. Cr. 298, 207 P. 102.

See also the case of Underhill v. State, 70 Okla. Cr. 39, 104 P. 2d 447, 448:

“The mere fact of finding stolen property on premises, or any other place to which many others have free access, without showing accused’s actual, conscious possession thereof, discloses only prima facie constructive possession, and is not such possession as will justify an inference of guilt by reason thereof.
“The first requisite of larceny is taking possession of goods by the thief. Taking and carrying away being essential elements of the crime of larceny, no subsequent connection with the property stolen can make one guilty of theft who was not connected with the original taking.”

In the case of Graham v. State, 12 Okla. Cr. 84, 152 P. 136, this court said:

“It is well settled that this court will not disturb the verdict on account of the evidence when there is evidence to support it. The converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such verdict when it is contrary to the evidence, or when there is no evidence to support it.
“The possession of stolen property recently after the larceny may or may not be an incriminating circumstance. Whether it is or not depends upon the facts and circumstances connected with such possession; and, where the testimony for the state, standing alone, raises a presumption of fact in favor of an innocent possession, and there is nothing in it from which the jury may legitimately infer a felonious taking, the evidence is insufficient to sustain a conviction.”

In that case the defendant took the witness stand and in the instant case he did not do so, but the evidence of the witness Shepard was quite positive and convincing that he stole the property in question, and the evidence, if any, connecting the defendant therewith is very slight and doubtful, and under the ruling in the Dismore case would not be sufficient to convict the defendant of the larceny of the Nelly joint in Okfuskee county, the crime with which he stood charged.

■ The recent case of Yoder v. State, decided by this court on November 17, 1943, and reported in 78 Okla. Cr. 36, 143 P. 2d 160, 161, is almost a parallel case. There the property was stolen in Coal county and found in Pottawatomie county. Defendant was formally charged with the theft in Coal county. The proof only showed that he had attempted to sell the property in Pottawatomie county, and no evidence was offered to show his connection with, or that he aided or abetted the party who stole the property in Coal county. The judgment was reversed, it being stated in the fourth and fifth paragraphs of the syllabus :

“Where larceny is committed in ‘C’ County and recovered in ‘P’ County, and defendant is charged with the larceny in ‘G’ County, it is necessary to connect defendant with the larceny in ‘C’ County or to show that he aided and abetted the party stealing the property in ‘O’ County. This may be proven either by direct or circumstantial evidence.
“Where larceny has been committed and asportation has terminated, one not connected with original taking, either as principal or as aider or abettor, but who thereafter, with knowledge that the property has been stolen, assists in concealing, selling or destroying stolen property, is not guilty of larceny.”

We have examined the instructions given by the court in the instant case. No exceptions were taken thereto, and no requested instructions were offered. Under this state of the record, this case would not be reversed, but we desire to call attention to the fact that no instruction was given on circumstantial evidence, and no instruction was given or requested with reference to the effect of possession of recent stolen property, which has been well defined by the law of this state. These were issues vitally involved in the trial of this case, if the jury was to pass upon the guilt or innocence of this defendant. Graham v. State,, supra. If this case is retried, the court should instruct the jury upon circumstantial evidence, and as to the effect of the possession or selling of the recent stolen property.

In the case of Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258, the defendant was charged in Carter county with the crime of receiving stolen property. The property Avas stolen in Johnston county. The judgment was affirmed. Under the evidence in the instant case, a charge of receiving stolen property in Oklahoma county against this defendant Avould have been much easier sustained than a charge of larceny by defendant in Okfuskee county.

For the reasons above stated, the judgment and sentence of the district court of Okfuskee county is reversed, and the case remanded.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    CLIFFORD CAPSHAW v. STATE.
    No. A-10242
    March 22, 1944.
    (147 P. 2d 175.)
    Tellegen & Miskovsky, of Oklahoma City, Billingsley & Kennerly, of WeAvoka, and David Tant, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., E. J. Broaddus, Asst. Atty. Gen., and Roy P. Parham, Co. Atty., of Okemah, for defendant in error.
   BAREFOOT, J.

Defendant, Clifford Capshaw, was charged with the crime of larceny in the district court of Okfuskee county, was tried, convicted, and sentenced to serve a term of two and one-half years in the State Penitentiary at McAlester, and has appealed.

This is a companion case of Cook v. State, 78 Okla. Cr. 258, 147 P. 2d 171. The facts here are practically identical with the facts in that case. The same questions are presented in each case, and the cases have been jointly briefed.

For the reasons stated in the Cook case, the judgment and sentence of the district court of Okfuskee county is reversed, and the case remanded.

JONES, P. J., concurs. DOYLE, J., not participating.


author: JONES, P. J.

text:
    JIMMIE BYERS v. STATE.
    No. A-10257.
    March 22, 1944.
    (147 P. 2d 185.)

      Wimbish & Wimbish, of Ada, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an appeal from verdict of jury and sentence of the district court of Pottawatomie county wherein the defendant, Jimmie Byers, was convicted and sentenced to serve one year in the State Penitentiary for the crime of obtaining property under false pretenses.

The defendant, on or about April 28, 1940, .went to the Booker Brothers Service Station in McLoud, Okla., and purchased two automobile tires and tubes on the strength of a credit card of the Magnolia Petroleum Company, purportedly issued to the Bender Tool Company of Denver City, Tex. The defendant represented himself as being one J. P. Myers, agent of the Bender Tool Company, and signed a credit ticket for the purchase of the automobile tires and Libes which amounted to the sum of $24.80.

A representative of the Magnolia Petroleum Company testified to the plan of the company concerning the issuance of credit cards to various customers who were on their approved credit lists. These cards would enable the customer to make purchases at various Magnolia service stations over the country and sign a credit memorandum or invoice in triplicate for their purchase. One of said invoices would in turn be sent to the home office of the oil company. The oil company then would bill the customer the first of each month for the purchases that had been made. Each of the credit cards bore an identifying number.

The proof of the state showed that the Bender Tool Company, which was the company in whose name the card used by the defendant was purportedly issued, was a fictitious company and the name J. P. Myers used by the defendant was a fictitious name. The defendant was arrested in Memphis, Tenn., when he had gone to a lithographing shop and sought to have credit cards similar to the one he had been using made for the purpose of continuing to perpetrate the fraud upon the Magnolia Petroleum Company. After the arrest of the defendant he made several statements to officials of the Magnolia Petroleum Company in which he said that he had obtained the card from a friend while he was in a cafe in Seagraves, Tex. That the friend had several credit cards and spread them out on a table and he selected the Magnolia card. That he used the Magnolia card in making various purchases over several states during the period from about April 20th to May 6th.

The credit manager for the Magnolia Petroleum Company identified 81. sales tickets which evidenced purchases made under the purported authority of the credit card in the possession of the defendant. In each of the purchases the sales ticket was made to the Bender Tool Company of Denver City, Tex., and was signed by J. P. Myers, which ivas the same name used by the defendant in making the purchase at McLoud. Most of these purchases were for new tires and tubes. Under the admission of the defendant to the officers, in order to secure money, he would later resell these tires and tubes at a discount. The total purchases during the period when the defendant Avas using the fictitious credit card was about the sum of $900.

It is first contended that the court erred in admitting in evidence one of the credit cards issued by the Magnolia Petroleum Company which Avas admitted solely for the purpose of showing the general type of card used by the defendant. This exhibit did not purport to be the.one used by the defendant in making the various purchases charged against him. At the time this exhibit was introduced in evidence the record discloses the following:

“Q. Mr. Rooker, are you familiar with the design and make of the Magnolia Petroleum Company’s credit cards as of April, 1940? A. Yes, sir. Q. I’ll hand yon here State’s Exhibit No. 2, and ask you to tell the court and jury what that is? A. Well, it’s a Magnolia Petroleum Company credit card, and it’s been canceled on May 1, 1940. Q. Is that the general type of credit card which they used then? A. Yes, they are all just alike except for the number of the card and who it’s made out to. Q. Does your company have in its possession the credit card used in this instance? A. W'e don’t have it ourselves, the Magnolia might have it. Q. You say you don’t have it? A. No, sir. Q. And you don’t know where it is? A. No, sir. Q. Now, the card that Avas presented to you that morning, was it of that particular type? A. Yes, it was just exactly like it. Mr. Hendon: If the court please, Ave’d like to offer State’s Exhibit 2 in evidence to sIioav the general type of the card, without reference to the subject matter on it — just the printing from the engraver. Mr. Bob Wimbish: To which we object as incompetent, irrelevant and immaterial. The Court: Objection OAmrruled. Be admitted to show the general type of the card. Mr. Wimbish: Exception.”

Counsel have not pointed out in their brief where the admission of this eA-idence prejudiced the defendant. As a part of the state’s case the prosecution sought to show the system and method of sale of goods by the use of credit cards. In this connection the display of the type of credit card used by defendant in making the purchases was an aid to the jury so that they might better understand the testimony and explanation of the procedure followed by defendant in procuring the goods charged to him.

It is next contended that the court erred in admitting in evidence, over the objection of the defendant, certain other tickets, or credit card invoices, showing alleged fraudulent purchases other than the one for which the defendant was on trial. In this connection it is argued that there was not sufficient evidence to connect the defendant Avith the purchases represented by said tickets to make them admissible against him. These tickets showed purchases by an individual who signed them as J. P. Myers, as an agent for the Bender Tool Company of Denver City, Tex. The card number and the names were identical with that used by the defendant in making his purchase in the instant case. After the arrest of the defendant he told officials of the Magnolia Petroleum Company that he first used the credit card in Texas, and that then he started out and went through Texas, Arizona, New Mexico, back to Oklahoma, down through Arkansas and Louisiana, until he was finally arrested in Memphis, Tenn. He told of making purchases by the use of this card at Texola, McLoud, Shawnee, Atoka and El Reno, Okla. From the admissions made by the defendant he had possession of this credit card from about April 20th to May 6th. The tickets admitted in evidence were issued during this period and the places of purchase and dates of each ticket showed the route covered by defendant as admitted by defendant to the officers.

One of the witnesses for the state qualified as a handwriting expert and he stated that it was his opinion that the name J. P. Myers which was written on eqch of the credit cards introduced in evidence was in the handwriting of the same individual.

The general rule is that in a prosecution for one crime it is not proper to admit testimony against the defendant tending to connect him with the commission of other offenses for the purpose of establishing the guilt of the offense charged. However, there is an exception to the general rule that such evidence is competent when it tends to establish a systematic scheme or plan so related to each other that the proof of one tends to establish the other. Such instances often arise in cases of embezzlement, forgery and obtaining money under false pretenses. Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779; Chappell v. State, 74 Okla. Cr. 213, 124 P. 2d 742.

There have been many instances of abuse of this exception to the general rule above noted. The abuse of this rule has caused the reversal of more cases on appeal to this court in recent years than that of any other one matter.

We have said that in order for other offenses to be admissible against the accused to show a common scheme or plan or intent that they must not be remote as to time and there must be a visible connection between the crimes. Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 135 A. L. R. 1149; Pressley et al. v. State, 71 Okla. Cr. 436, 112 P. 2d 809; Landon v. State, 77 Okla. Cr. 190, 140 P. 2d 242; Herren v. State, 75 Okla. Cr. 251, 130 P. 2d 325.

The fact that one person may commit similar crimes does not justify the admission of the other identical offenses if they are independent of each other. Where the trial court cannot clearly see a visible connection between the alleged other offenses to the one charged, he should refuse to admit the other offenses in evidence. If the trial court is uncertain as to the admissibility of such evidence, he should give the benefit of such doubt to the defendant, as it is manifestly unfair to the accused to force him to prepare to defend himself against any collateral crime other than the one charged against him in the information. Juries are too prone, when such other offenses are admitted in evidence, to find an accused guilty of the crime charged merely because' he' might have committed some other offense.

In the instant case the defendant took one credit card, and, by the use of this credit card, made a series of purchases, numbering approximately 80, over a period of approximately two weeks. The visible connection between these offenses is apparent and clearly these related offenses come within the exception to the general rule and their admission in evidence was not an error.

Next it is insisted that the court erred in admitting, over the objection of the defendant, a typewritten list of the alleged purchases represented by the tickets herein-above discussed, which said list carried the caption “Purchases Made by Jimmie Byers.”

An agent of the oil company had carefully checked the credit tickets which had been sent in to the head office of the company representing purchases made under the credit card used by the defendant during the period herein involved, and had taken the tickets and arranged them in chronological order and at the top had typed in the insertion “Purchases Made by Jimmie Byers.”

The statement that the list contained purchases made by the defendant, of course, was a conclusion of the person who prepared the list and should not have been admitted in evidence. The typed statement simply recited in chronological order the purchases which had already been evidenced by the various tickets which had been identified and admitted in evidence as State’s Exhibit 4. There was no necessity for a petition of this evidence, and since the typed statement was no part of the original record the objection of the defendant to its admissibility should have been sustained.

However, since this evidence was merely cumulative and concerned a matter which had been clearly established, we cannot see how the defendant has been prejudiced by its admission. The defendant did not testify and offered no defense other than the testimony of the county attorney and sheriff of Canadian county concerning the defendant’s plea of guilty in Canadian county to the charge filed there in connection with a purchase made on the identical credit card involved in the instant case. That proof was offered by the defendant solely in mitigation of the punishment in case the jury determined that he was guilty of the offense herein charged. Since this evidence was cumulative and the guilt of the defendant is evident, we hold that its admission, although error, was harmless.

Lastly, it is contended that the court erred in giving instruction No. 6, which is as follows:

“You are instructed that the court has permitted the defendant to introduce evidence in this case tending to show that the said defendant entered a plea of guilty in Canadian county, Oklahoma, to a charge of obtaining money under false pretense by the use of a Magnolia credit card, which card is alleged to have been used in this case, and was sentenced to serve a term of two years in the State Penitentiary at McAlester, and that said defendant served two years in said penitentiary, and that said defendant entered into an agreement with the Magnolia officials that they would not prosecute the defendant any further. In this connection you are instructed that any agreement had between the Magnolia officials and the defendant is not a bar to a prosecution for a crime alleged to have been committed in Pottawatomie county, State of Oklahoma, and the court has permitted said evidence to be introduced for the sole and only purpose that the jury may or may not consider the same in mitigation of punishment in the event they find the defendant guilty as charged in the information.”

The defendant contends that the court erred in that part of the instruction which recites “the jury may or may not consider the same.” An instruction in almost this identical language was requested by defendant. Evidently counsel for defendant considered the instruction as given to be fair as no objection or exception was taken to the giving of this instruction. It is not our purpose to place the stamp of approval upon this instruction as a model to be followed in the future where similar circumstances arise in the trial of other cases. However, we do not see any fundamental error committed in the giving of this instruction to where this court would be compelled to say that it was so erroneous that the judgment of conviction should be reversed by reason of the giving of this instruction, although the guilt of the defendant is conclusively proved. Where no exception is taken to an instruction it will not be considered on appeal unless it is so fundamentally wrong that this court can say that by the giving of such instruction the defendant was deprived of a substantial right essential to his defense. We do not think the instruction was as confusing and misleading to the jury as counsel contend.

The jury evidently took into consideration the fact of the previous conviction and sentence of two years, as they only assessed a punishment of one year’s imprisonment in the State Penitentiary.

Counsel for defendant present an earnest plea for their client pointing out his youthfulness, the fact that he gave a bill of sale to his automobile to the oil company as a partial payment for the fraudulent purchases he had made, and the further fact that after his sentence in Canadian county he went immediately to the State Penitentiary and served all of that sentence and that he should not be further punished. These are factors which might appeal to the Chief Executive in the exercise of executive clemency. This court is not authorized, even though the circumstances might be impelling to them, to modify a sentence or reverse a judgment of conviction unless we are able to say, after an examination of the complete record, that substantial error has been committed. An examination of this record does not disclose any material error which requires a reversal of the judgment of conviction.

The judgment of the district court of Pottawatomie county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    ERVIN WEAVER v. STATE.
    No. A-10266.
    March 29, 1944.
    (147 P. 2d 800.)

      Tyree & Busby, of Lawton, for plaintiff in error.
    Randell S. Cobb, A tty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Ervin Weaver, was charged in the county court of Comanche county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 90 days in the county jail and pay a fine of $500 and costs and has appealed.

The testimony of the state was that certain officers of Comanche county, armed with a search warrant, made a search of a room in the Mayflower Hotel and found 12 half pint bottles of whisky. That the defendant Weaver was in the room at the time it was searched.

The evidence of defendant was that the rooms in question were occupied by one Willis and not by the defendant, and that the liquor belonged to Willis and not the defendant.

There are many assignments of error presented in the brief of defendant. Some of them will not be discussed for the reason that the same question will not arise in a new trial, and we have come to the conclusion that the case will have to be reversed on account of the commission of errors, which will be hereinafter discussed.

Over the objection and exception of the defendant, the court admitted in evidence, as primary evidence of the state, the affidavit for search warrant and the warrant which was used by the officers in making the search of the premises where the liquor herein involved was seized. The recitations in the affidavit and in the search warrant set forth certain facts pertaining to the offense charged against defendant. Some of the statements would not have been admissible in the trial of the case if the state had sought to make proof of the same.

In Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131, it is held:

“The state offered in evidence a search warrant reciting that ‘intoxicating liquors are being kept for the purpose of selling and otherwise furnishing said liquor in violation of law by the defendant.’ Held, that as the recitals of the search warrant were with reference to the essence of the offense charged, the admission of the warrant as independent evidence was prejudicial.”

See, also, Hollingsworth v. State, 53 Okla. Cr. 280, 10 P. 2d 458; Bruner v. State, 44 Okla. Cr. 425, 281 P. 319; Weeks v. State, 41 Okla. Cr. 95, 270 P. 858. Obviously the court erred in allowing these exhibits to be admitted as primary evidence of defendant’s guilt.

It is next insisted that the trial court erred in denying the application requesting the county judge to certify his disqualification to preside over the trial of the case. The application to disqualify was filed on the day of the trial and was based on a statement allegedly made by the county judge when a motion for a continuance was filed a few months previous to that time, in which the county judge had stated that he thought the application for a continuance was framed and that defendant had gone to the hospital to keep from going to trial.

The proof offered in support of the application was not sufficient to show that the county judge was disqualified. The record shows that the court was extremely fair with the defendant. Nothing was said by the judge during the trial of the case which showed the existence of any bias or prejudice on his part. ITe had refused to commit him to the county jail after certain appeals of the defendant to this court on other liquor convictions had been affirmed because he did not want the defendant to be prejudiced by reason of his being incarcerated in jail at the time the instant case was tried. Counsel for defendant liad waived a jury and the county judge set aside the order waiving the jury and reset the case on the jury docket. We do not believe that there was sufficient showing made to sustain the contention that the county judge was disqualified.

In addition to that the application for disqualification was not timely presented.

Tn Young v. State, 74 Okla. Cr. 64, 123 P. 2d 294, 295, it is stated :

“Under the above statute a written application should be filed setting forth the grounds or facts upon which the claim is made that the judge is disqualified. A reasonable notice should be given to the other side of the hearing, and should the trial judge refuse to certify his disqualification within three days before said cause is set for trial, application may be made to this court in criminal cases for mandamus requiring him so to do.
“Due diligence should be used in making the application, and should not be delayed until the day the case is set for trial.
“Where one had knowledge of the grounds of disqualification for more than three days prior to the day set for trial, and did not avail himself of the procedure prescribed by the above statute, he cannot urge the disqualification on appeal.”

It is claimed that the trial court erred in denying the motion of defendant to disqualify the jury panel by reason of certain .statements made in the presence of the jury by the trial judge. The statements were made by the trial judge in connection with certain questions propounded by the judge to counsel for defendant, who was testifying in support of the application to disqualify the judge. In the questions asked by the court the following statements appear:

“Q. Yesterday, when you presented your motion here for continuance in this case and I overruled your motion, and later when the sheriff picked him up and was putting him in jail on the remanding conviction up there and you immediately brought him in before me? A. Yes. Q. The sheriff wanted to take him to jail and it took a court order to keep him out of jail? A. Yes.’’

Counsel for defendant contends that the court, by these remarks, had prejudiced the rights of defendant in calling attention to the fact that defendant had other cases upon which he had been convicted and was about to be incarcerated in the county jail by reason of those convictions. That the county judge, by said remarks, placed the character of the defendant in issue before the jury panel. That • all of the jury panel were seated in the court room awaiting a call to sit in the instant case, and that said remarks Avere prejudicial and reversible error. In connection Avith this point, it is urged that the verdict itself Avas excessive and sIioaa’S that the jury acted by reason of passion and prejudice engendered in their minds against the defendant by reason of these remarks of the court.

We have given this assignment of error particular attention. Standing alone it probably would not be sufficient grounds for a reversal of this case, although it might be sufficient to justify a reduction of the punishment which was imposed. But when this proposition is considered along with the other assignments of error, they are sufficient to require this court to reverse the cause for a new trial.

We shall not discuss the assignments of error such as the failure to sustain the motion for a continuance, and others, as the questions involved in them will not appear in the new trial.

The judgment of the county court of Comanche county is accordingly reversed and remanded for further proceedings in accordance with this opinion.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    NORMAN V. CURTIS v. STATE.
    No. A-10238.
    March 29, 1944.
    (147 P. 2d 465.)

      A. F. Moss, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., of Tulsa, for defendant in error.
   BAREFOOT, J.

Defendant, Norman Y. Curtis, was charged in the court of common pleas of Tulsa county with the crime of engaging in the practice of dentistry without first obtaining a license from the State Board of Dentistry; was tried, convicted and sentenced to pay a fine of $250, and costs, and has appealed.

This prosecution was instituted under Tit. 59 O. S. A. 1941 § 271, the pertinent portion of which is as follows:

“Any person shall be regarded as practicing dentistry within the meaning of this Act who shall hold himself out, or employ methods, in any way, representing himself as being engaged in the practice of dentistry; or who shall hold himself out in any way, or permit himself to be held out in any way, as being able to diagnose, or profess to diagnose or examine clinical material and contract for the treating of; or treat, or profess to treat by professional instructions, or holds himself out as treating, any of the diseases or disorders or lesions of the oral cavitv, teeth, gums, maxilliary bones and associated structures; or removes teeth, or repairs or fills cavities in the human teeth; or corrects, or attempts the correction of malposted teeth, or treats deformities of the jaws and adjacent structures; or furnishes, supplies, constructs, reproduces or repairs, or offers to furnish, supply, construct, reproduce or repair prosthetic dentures (sometimes known as plates), bridges or other substitutes for natural teeth, to tV user or prospective user thereof; or administers anesthetics, general or local, or uses X-ray, and interprets dental X-ray films, or who offers or undertakes, by any means or methods, to remove stains or concretions from teeth, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of same; or takes impressions of the teeth and jaws; or diagnoses, makes and adjusts appliances to artificial casts of malposted teeth for treatment of the malposted teeth in the human mouth, with or without instructions; or Avho OAvns, maintains, or operates an office or offices, by holding a financial interest in same, for the practice of dentistry. The fact that a person uses any dental degree, or designation, or any card, device, directory, poster, sign or other media whereby he represents himself to be a dentist, shall be prima facie evidence that such person is engaged in the practice of dentistry; ...”

The case was tried before the court, a jury being waived, and upon an agreed statement of facts, which was as follows:

“It is hereby stipulated and agreed by and between the parties hereto that the following are the facts in this case bearing upon the guilt or innocence of the defendant, to-wit:
“That the United Dental Laboratory, located at 402 South Cheyenne, Tulsa, Oklahoma, is owned and operated by tbe defendant, Norman V. Curtis; that on several occasions people had gone to the defendant’s laboratory for the purpose of having dental plates made; that the witnesses went to the laboratory as a result of having seen an advertisement in the local paper stating that dental plates were made and sold by the above defendant; that upon inquiring of the defendant as to the plates, they were told that he would be happy to make the plates for them but it would be necessary for them to see a licensed dentist for the purpose of having the impressions made from which the plates were to be made and the defendant further suggested that there was a very good dentist just down the hall, Dr. Moore, who is and was at all times mentioned in this stipulation, a regularly licensed dentist under the laws of the State of Oklahoma; that the witnesses did contact Dr. Moore and that the impressions were made. Thereafter the impressions were taken in the laboratory of the defendant and the plates were made therefrom. The testimony will further show that a contract for the sale of the teeth was made by the defendant and the customer; that a separate contract was made by the dentist and the customer for the making of the impressions and that the customer separately paid the dentist and the laboratory for their respective services; that in each of these particular three or four cases in which the witnesses are present, the dentist Avas Dr. Moore but that Dr. Moore was not the only licensed dentist who took impressions from Avliich the defendant made plates and in each instance in which the defendant has made plates, he did have in his possession, prior to the time he made such plates, a notation and impression made by a regularly licensed dentist.
“It is further stipulated and agreed that more than seventy-five per cent of the regular licensed dentists, practicing the profession in Tulsa County, State of Oklahoma, on the date of this complaint, and for many years prior thereto, take impressions exactly as Dr. Moore took the impressions in the instances referred to heretofore in this stipulation and sent the impression to Hettinger Brothers, which is a nation-wide organization, and that in the laboratories of Hettinger Brothers the plates and teeth were made from the impressions taken by the dentist, exactly as in the instant case; that thereafter Hettinger Brothers returned the plates so made, to the dentist who took the impressions and the dentist collected the money from his patient and that the patient' did not come in contact with and did not pay Hettinger Brothers for the plates, as made; that in all of these cases the dentist was paid by the patient and the dentist himself paid the laboratory for making the plates.”

For a reversal of this case it is contended that the court erred in finding the defendant guilty, and in not finding him not guilty under the agreed statement of facts, and under the law.

Defendant’s first proposition is:

“Under the rule of ejusdem generis the whole section must be construed together and the general acts denounced as the practice of dentistry are limited by all other acts so denounced.”

After an analysis of the statute above quoted, defendant in his brief states:

“The single clause of the section upon which it was contended in the trial court the defendant had violated is the clause ‘or supplies artificial substitutes for natural teeth.’ ”

He then argues that the rule of ejusdem generis precludes the application of the statute to make the defendant guilty under the statute.

In the first place, it occurs to us that there is an attempt to limit the charge as contained in the information. The real charge, as we see it, is that the defendant held himself out as a practitioner of dentistry when he had not obtained a license from the State Board of Dentistry. It is provided by the terms of the Act (Tit. 59 O. S. A. § 271), in part as follows:

“Any person shall be regarded as practicing dentistry within the meaning of this Act who shall hold himself out, or employ methods, in any way, representing himself as being engaged in the practice of dentistry; ... or supplies artificial substitutes for natural teeth; ...”

This language clearly relates to the supplying of dentures (commonly known as “plates”), bridges and other artificial substitutes to the user or prospective user thereof, and not to the making and delivery for a stipulated sum of such substitutes by dental laboratories for and to licensed dentists.

Tit. 59 O. S. A. 1941 § 273 prohibits persons from beginning “the practice of dentistry, or any branches thereof, without first applying for and obtaining a license for such purpose from the Board” (meaning from the Board of Governors of the Registered Dentists of Oklahoma) ; and section 277 of such Title prohibits persons from holding themselves out to the public “directly or indirectly, or through agents or employees, as soliciting patronage or as being qualified to practice dentistry in this State;” and section 323 of the same Title, which amended section 44, article 4, chapter 24 Oklahoma Session Laws 1935, is in part as follows:

“Any person . . . who shall practice, or attempt to practice dentistry . . . within the State of Oklahoma, . . . without having complied with the provisions of this Act, shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not exceeding Five Hundred Dollars ($500.00), or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment.”

From a reading of the agreed statement of facts, it is at once readily discernible that defendant, whom it is agreed is not a licensed dentist as provided by the laws of this state, is holding himself out to the public as a dentist, and is soliciting patronage, and as being qualified to practice dentistry in this state. ' The agreed statement says: “that the witnesses went to the laboratory as a result of having seen an advertisement in the local papers stating that dental plates were made and sold by the above defendant.”

It may be observed from a reading of the whole of the agreed statement of facts, that there was an agreement and understanding between the defendant and Dr. Moore for the defendant to advertise for business in a manner contrary to the statutes of this state, and that Dr. Moore and the defendant were to receive the benefits therefrom. There can be no doubt but that there was an aiding and abetting contrary to Tit. 21 O. S. A. 1941 § 172, which is as follows:

“All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

As to the applicability of the rule of ejusdem generis, this question is fully answered in the case of Wilkins v. State, 70 Okla. Cr. 1, 104 P. 2d 289, 291, where this rule is fully discussed, and the authorities fully reviewed. It was there said:

“The term 'ejusdem generis,' is recognized as a rule of construction. Its application does not change the rule that courts will endeavor to ascertain the true legislative intent in construing statutes. This legislative intent should be sought in the ordinary meaning of the words of the statute, construed in view of the connection in which they are used, and of the evil to be remedied.” Couch v. State, 71 Okla. Cr. 223, 110 P. 2d 613; Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608, 55 S. Ct. 570, 79 L. Ed. 1086; Harris v. State, 41 Okla. Cr. 221, 271 P. 263; Holt v. State, 51 Okla. Cr. 263, 300 P. 430; State Bar v. Retail Credit Ass’n, 170 Okla. 246, 37 P. 2d 954.

We liaye carefully considered tbe cases cited in defendant’s brief and they are in accord with the principles announced in the Wilkins case.

The facts in the case of Lasdon v. Hallihan, Director of Registration and Education, 377 Ill. 187, 36 N. E. 2d 227, 230, decided September 10, 1941, are almost parallel with the facts in the instant case; and the Illinois statute is almost identical with the Oklahoma statute. The manner of procedure as related by the facts are practically the same as used by the defendant in the instant case. The court in its opinion said:

“Appellants say they do not contend that the provision of the act which requires the making of the impression and fitting and adjustments of the plate in the oral cavity to be done by a licensed dentist is not a proper exercise of legislative power, but that their objection is to the provision which prohibits them from making and offering dental plates for sale or use to the public. ... it is argued, as a matter of statutory construction, that the dental laboratory operations as carried on by appellants did not constitute the practice of dentistry within the meaning of the act.
“In the exercise of police power the practice- of the professions has been subjected to licensing and regulation for the reason that the services customarily rendered by those engaged in such professions are so closely related to the public health, welfare and general good of the people, that regulation is deemed necessary to protect such interests. It has been held a proper exercise of police power to legislate and protect the professions performing such services against commercialization and exploitation. Winberry v. Hallihan, 361 Ill. 121, 197 N. E. 552; Semler v. Oregon State Board of Dental Examiners, supra; People v. People’s Stock Yards State Bank, 344 Ill. 462, 176 N. E. 901. In the Semler case, supra, in discussing the objectives sought by the legislature of the State of Oregon in enacting the Dental Practice act of that State, the court said (294 U. S. 608, 55 S. Ct. 572, 79 L. Ed 1086) : ‘The legislature was not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place. The' community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but- protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards not only against deception, but against practices which ivould tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous.’ ...
“The facts as found by the master may not fully justify a statement that appellants designed to commercialize and exploit the profession of dentistry but there is sufficient in the record to warrant the conclusion that if the objectionable provisions of the act were removed on constitutional grounds the possibility of commercialized exploitation of the profession would be present.
“Appellants claim they have a constitutional right to advertise their business and sell their products to the public, subject only that the making of the impressions and the fitting and adjustment of the plates shall be by a licensed dentist. It is obvious that if they were permitted to thus advertise their business, the practice of the profession of dentistry would, to a great degree, be subservient to the business of those engaged in the making of plates. It is well known that masses of the public do not comprehend or understand the skill that is necessary to the making of proper dentures and the proper charges to be made for such services. Such persons are often attracted by the advertisements of the quack and charletan and seek his services.
“Appellants concede that a considerable number of their customers come to their laboratories because of the advertisements and publicity they give to their business. They also admit that they refer many of their customers to a dentist, as a rule to one particular dentist. Dr. Hejna testified that about thirty-five per cent of his patients were referred to him by ones operating a laboratory. If the advertisement carried on by the dental laboratories was the medium that brought the customer to the laboratory, and he was sent from there to Dr. Hejna’s office, it would, as to its effect upon the dental profession, be much the same as though he had come to Dr. Hejna’s office in answer to an advertisement of Dr. Hejna’s which is prohibited by section [s] 18 and 18b of the act. If the restrictions of which appellants complain were removed, it would permit licensed dentists receiving patients referred to them by the dental laboratories to do indirectly what other provisions of the act prohibit them from doing directly. . . .
“Appellants Avere not entitled to injunctive relief and the decree Avas correct.”

See, also, Gobin and Freeman v. State, 9 Okla. Cr. 201, 131 P. 546, 44 L. R. A., N. S., 1089.

We have carefully examined and considered the case of State ex rel. Kennedy v. Lepon, 219 Ind. 1, 36 N. E. 2d 276, 277, decided September 17, 1941. In that case the Indiana Supreme Court had under consideration the Dental Practice Act of that State. The statute had the same provision as the Oklahoma and Illinois statutes, “avIio . . . supplies artificial teeth as substitutes for natural teeth,” Burns’ Ann. St. § 63-522, but also contained the folloAving proA'iso: “Nothing in this act shall interfere with the performance of mechanical work on inanimate objects by any person ... in or operating a dental laboratory.” The court held that under this statute it Avas not unlaAvl'ul for Lepon, who was operating a dental laboratory in Indiana, to sell artificial substitutes for natural teeth to the public. The court recognized the difference in the statutes Avhen it said: “The Illinois statute is dissimilar and the cited cases interpreting it are inapplicable.” See, also, Oshins v. York et al., Florida State Board of Dental Examiners, 1942, 150 Fla. 690, 8 So. 2d 670; People v. A. A. A. Dental Laboratories, 318 Ill. App. 160, 47 N. E. 2d 371.

( The registered dentists of Oklahoma filed an application for permanent injunction against this defendant doing business as the United Dental Laboratory, in the district court of Tulsa county, prior to the institution of this action. The trial of that case was upon the identical agreed statement of facts as the instant case. The trial court granted a permanent injunction, and on appeal to the Supreme Court the judgment was affirmed. Curtis v. Registered Dentists of Oklahoma, 193 Okla. 233, 143 P. 2d 427. In the opinion the court, in the syllabus, said:

“1. In construction of statutes, the legislative intent must govern, and to arrive at the legislative intent, the entire act must be considered, together with all other enactments upon the same subject, and when the intention of the Legislature can be gathered from the entire statute, words may be modified, altered or supplied, to give statute effect which Legislature intended.
“2. Legislative intent in Dental Act is to protect the public from any person who might undertake to engage in the practice of dentistry without license to do so and part of its purpose is to prevent any one other than a licensed dentist, supplying artificial substitutes for natural teeth to persons who would use them. * * *
“3. Person [si who [engage] in the business of supplying artificial substitutes for natural teeth to public at large, without being licensed to practice dentistry, held himself out as being engaged in ‘practice of dentistry’ in violation of the Dental Act. . . .
“4. State may enact legislation to protect public from any person who might undertake to engage in the practice of dentistry without license to do so.
“5. Even though statute is penal it may be properly construed to accomplish the purpose for .which it was enacted so as to obviate the evil to be remedied.
“6. Violation of statute designed to protect the public from any person who might undertake to engage in practice of dentistry without license could be properly prevented by injunction, even though statute was a penal one ..."

Finding no error in the record,' the judgment of the court of common pleas of Tulsa county is affirmed.

JONES, E. J., concurs. DOYLE, J., not participating.


text:
    JEWELL ROSS v. STATE.
    No. A-10239.
    April 5, 1944.
    (147 P. 2d 797.)

      Jerome Sullivan, of Duncan, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Jewell Ross, was charged by information filed in the district court of Stephens county with the crime of burglary in the second degree, a jury ivas waived, the defendant was tried, convicted and sentenced to serve two years in the State Penitentiary, and has appealed.

The state conclusively proved that defendant entered the store building of one L. D. Cain in the town of Loco through a window on October 25, 1940, and took therefrom 75 or 80 pairs of khaki pants and a large number of assorted canned goods and other merchandise.

The defendant took the witness stand and admitted his guilt. His testimony in this connection is as follows:

“Q. Now, Jewell, did you burglarize Mr. Cain’s store in Loco? A. Yes, sir. Q. Since then have you seen that you made a serious mistake? A. Yes, sir, I have. Q. Have you done everything you could to rectify that mistake? A. Everything that was possible for me to do. Q. Have you paid Mr. Cain back? A. Yes. Q. State to the court how much money you paid Mr. Cain for the property you took out of there? A. Í paid him $102.00.”

About four months after the burglary was committed the officers found several pairs of khaki pants in possession of defendant, which were identified by Mr. Cain as having been stolen from his place of business. The defendant, at that time, admitted his guilt to the officers.

It is first insisted by the defendant that the court erred in overruling the demurrer to the amended information for the reason that the description of the building alleged to have been burglarized was wholly insufficient to apprise the defendant fully as to the location of the building he is alleged to have entered.

In support of his contention defendant cites Simpson v. State, 5 Okla. Cr. 57, 113 P. 549, and other cases in which this court has held that an indictment or information for burglary, whether at common law or under the statute, must allege every fact and circumstance necessary to constitute the offense, including the time, place, ownership, and a description of the premises.

There is no question but what the information in question alleged all the essential ingredients of the crime of burglary in the second degree, unless it can be said that the location of the building is insufficiently described.

That part of the information to which objection is made is as follows:

“Jewell Ross did, in Stephens County, and in the State of Oklahoma, on or about the 25th day of October, 1940, * * * break into and enter in the niglittime, by opening a window in a building in the town of Loco, Oklahoma, being in the possession of L. 13. Cain, and in which building is a grocery store owned and operated by the said L. D. Cain, and there being kept in said building certain personal property belonging to said L. 13. Cain, etc.”

In the trial of the case the proof showed that the town of Loco was a very small place with a population not to exceed 300.

It is essential to the validity of an information that the act charged as the offense shall be clearly and distinctly set forth in ordinary language and in such a manner as to enable a person of common understanding to know with what he is charged so as to enable him to prepare his defense.

In Sparkman v. State, 67 Okla. Cr. 245, 93 P. 2d 1095, 1906, it is stated :

“An information which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that if convicted or acquitted he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.”

Since all of the essential elements of burglary are sufficiently alleged in the information, and the building is described as being the grocery store of L. D. Cain in the town of Loco, we think the information sufficiently meets the above test.

It can hardly be said that the defendant was not sufficiently apprised of the location of the building he is alleged to have entered. However, it would have been much better for the state to have inserted other descriptive averments, as this court can perceive that a situation might have arisen to where L. D. Cain would have had two store buildings in the town of Loco. If the lot and block number were known they should have been inserted.

However, we have a statute which provides:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.” 22 O. S. 1941 § 410.

We think this statute would apply to this case in view of the fact that the guilt of the defendant is undisputed and in view of the further fact that the trial court, in pronouncing judgment and sentence, gave the defendant the minimum sentence of two years’ imprisonment in the State Penitentiary.

It is further contended that the court erred in forcing defendant to trial before 24 hours had elapsed in which to enter his plea.

In this connection the record discloses that on September 20th the court clerk sent out a docket of civil cases for trial with a notation thereon that the trial of criminal cases would commence on October 6th and further issuing notice to every defendant who had not been arraigned to appear on October 1st for arraignment. The defendant did not appear on October 1 st. He was out of the state working and did not receive the notice from his counsel, and, accordingly, did not appear until October 6th. It further appeared from the testimony of the court clerk that the court had made an order on September 25th setting the case of defendant for trial on October 7th, and that a copy of this docket was sent to counsel for defendant. When the case was called for trial on October 7th, at the request of the county attorney, the case was passed to October 8th. On October 8th defendant filed a demurrer to the information which was overruled, but permission was given to amend the information. On October 9th defendant filed a demurrer to the amended information which was overruled and the defendant was ordered to trial on October 10th. The defendant refused to plead further after the demurrer to the amended information was overruled, insisting that he had 24 hours additional time in which to plead, and, accordingly, the trial court entered a plea of not guilty for him.

Counsel for defendant relies solely upon the statute, which provides:

“If, on the arraignment, the defendant require it, he must be allowed until the next day, or such further time may be allowed him as the court may deem reasonable, to answer the indictment or information.” 22 O. S. 1941 § 491.

No request for a continuance on account of not being prepared for trial or for any other ground was presented. In view of the fact that defendant took the witness stand and admitted his guilt, and in considering the leniency Avith which the court treated the defendant by allowing him to remain out of the state at work pending his trial, and not forfeiting his bond for failure to appear on October 1st for arraignment, it would seem to us the height of ridiculousness to reverse this case on this wholly technical proposition of law.

Lastly, it is contended that the judgment of the court is excessive punishment in that the defendant should have been given a suspended sentence. The prosecuting witness recommended in his testimony that the trial court give the defendant a suspended sentence. The proof further showed that defendant had repaid the prosecuting witness the alleged value of the goods taken in the burglary. However, tbe proof showed that defendant bad been in other trouble and the question as to whether the defendant should be given a suspended sentence was a matter addressed solely to the discretion of the trial judge.

In the case of Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162, 163, it is stated:

“Only those persons coming within terms of statute are eligible for suspended sentence, but they have no right to demand the same; and it may not be granted to them except at the discretion of the court.
“Where all constitutional and statutory guarantees have been observed in criminal prosecution, requirements of due process are fully satisfied, presumption of innocence is overcome, and hence suspension of sentence is not a matter of right, but purely within trial court’s discretion.”

The granting of a suspended sentence being a discretionary matter with the trial court, this court will not interfere with the exercise of that discretion.

There are no material errors in the record.

The judgment and sentence of the district court of Stephens county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.