author: ARMSTRONG, Judge.

text:
    DAVID BROWN v. STATE.
    No. 306.
    Opinion Filed February 6, 1911.
    (113 Pac. 219.)
    GAMING — Conducting Poker Games — Sufficiency of indictment. An indictment which charges a person with conducting the prohibited game of poker for value, but which fails to charge that the persons who played at the game were playing for money or representative of value, does not charge a public offense under our statute.
    (Syllabus by the Court.)

      Appeal from Tulsa County Court; N. J. Gubser, Judge.

    David Brown was convicted of conducting a poker game, and he appeals.
    Reversed and remanded, with directions.

      Davidson & Malloy, for appellant.
    Citing Proctor v. Territory, 18 Oída. 378, and People v. Carroll, 80 Cal. 153.

      Chas. TVest, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The plaintiff in error was tried on an information in the county court of Tulsa county, and judgment rendered against him on the 16th day of September, 1908, on a charge of conducting a poker game. His punishment was fixed at a fine of $100 and imprisonment in the county jail for 30 days, and he has perfected his appeal to this court.

The only question we shall consider in this record is the sufficiency of the information, the charging part of which is as follows:

“That on the 14th day of June, 1908, in Tulsa county, state of Oklahoma, Dave Brown, late of said county, and within the jurisdiction of this court, did unlawfully conduct the prohibited -game of poker for a representative of value, contrary to the form of the statute in such cases made and provided, against the peace and dignity of the state of Oklahoma.”

Appellant filed a demurrer to this information, which was overruled, and he excepted. After conviction he filed motions in arrest of judgment and for a new trial, in both of which he raised the question of the sufficiency of the information, which motions were overruled, and he excepted. The statute under which this appellant was prosecuted and convicted reads as follows :

“Every person who deals, plays or carries on, opens or causes to be opened, or conducts, either as owner or employee, whether for hire or not, any game of faro, monte, poker, roulette, craps or any banking or percentage game played with dice, cards, or .any device, for money, checks, credit or any representative of value, is guilty of a misdemeanor, and is punishable by a fine of not less than one hundred dollars, nor more than one thousand dollars, and by imprisonment in the county jail for a period of not less than thirty days, nor more than six months.” (Snyder’s Comp. Laws 1909, § 2422.)

The information in this case charges that the plaintiff in error “did unlawfully conduct the prohibited game of poker for a representative of value.” The information does not charge an offense under the foregoing statute.

In discussing a similar information, based upon a similar statute in California, the Supreme Court of that state says:

“To constitute it an offense to conduct the game, it (the game) must be ‘played for money, checks, credit, or any other representative of value.’ The information does not charge that the game was played for money, but that the defendant conducted it for money. It may be that those who were engaged in the game w;ere playing for amusement, and paid the defendant a fixed sum, in no way dependent upon the result of the game for conducting it. This would be within the allegations of the information, but it would not be a public offense or within the statute.” (People v. Carroll, 80 Cal. 153, 22 Pac. 129.)

This information should not only have .charged- that the appellant conducted the game for a representative of value, but that those who played at the game played for a representative of value. The case of Proctor v. Territory, 18 Okla. 378, 92 Pac. 389, is a case identical with this in point of principle. In that case the information failed to charge that-the person who conducted the game did so for value. In this case the information charges that the person conducting the game did so for value, but fails to charge that the persons who played at the game were playing for money or a representative of value. The information fails to charge a public offense under the statute, and the motion of the appellant filed in arrest of judgment in the county court should have been sustained.

The judgment of the trial court is reversed and the cause remanded, with directions to the court below to sustain the motion in arrest of judgment, and give the county attorney leave to amend the information if desired, and for such other and further .proceedings as may be proper.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    ANNIE WILLIAMSON v. STATE.
    No. A-176.
    Opinion Filed February 6, 1911.
    (113 Pac. 232.)
    1. APPEAL — Case-Made Not Served in Time — Affirmance. When a case-made is not served within the time allowed by the trial judge, it will be stricken from the record and the case will be affirmed, unless prejudicial errors appear in the transcript.
    2. APPEAL — Case-Made—Making and Serving — Extension of Time. The trial judge has no authority to make an order extending the time for making and serving case-made after the time originally given has elapsed.
    3. SAME — Sufficiency of Application — Record. Extensions of time within which to make and serve case-made should be secured by written application presented to the court or judge and- a written order made by him signed and entered in the record.
    (Syllabus by t-he Court.)

      Appeal from Okmulgee County Court; M. M. Alexander, Judge.

    Annie Williamson was convicted of unlawfully maintaining a place wherein intoxicants were kept for sale, and she appeals.
    Affirmed.

      Stanford & Cochran, for appellant.

      Fred S. Caldwell, for the State.
   ARMSTRONG, Judge.

This case was tried in the county court of Okmulgee county in November, 1908, the appellant being convicted on the 23d day of said month. Motion for a new trial was properly filed, and was by the court overruled on the 28th day of November, 1908, whereupon the appellant was sentenced to pay a fine of $250 and costs and serve 90 days in jail. The appellant prayed an appeal to the Criminal Court of Appeals, and was given 90 'days in which to perfect the same. No time was asked within which to make and serve case-made at that time, and it is presumed that the appellant intended to avail herself of the statutory period of 30 days.

It appears from the record that on December 17, 1908, the appellant was granted an extension of time to make and serve case-made of 45 days. The record further shows that on February Y, 1909, a further extension of 30 days was granted the appellant in which to make and serve case-made, and a further extension of 60 days in which to file petition in error in the Criminal Court of Appeals. On the 2d day of March, 1909, 60 days additional to make and serve case-made was allowed. Petition in error was filed in this court on May 15, 1909. On the 29th day of March, 1909, counsel for the state filed a motion to strike the case-made and dismiss the appeal, on the ground, among others, that the extension granted on the 17th day of December expired on the 11th day of February, and that on that date no case-made had been prepared and served, and no further extension of time had been granted. The record sustains this contention.

Counsel for the appellant on May 11, 1909, filed a motion asking to be permitted to amend case-made by including a certificate from the county judge of Okmulgee county to the effect that he had told the clerk of his court to make an order extending the time on the 2'd day of February, 1909. The statute provides that the court or judge may extend the time for making and serving case-made upon proper showing. An order extending the time for making and serving case-made upon proper showing can be made either by the court or the judge if the court is not in session. The certificate offered does not show that the court was in session at the time the county judge told his clerk to make an order and doesn’t show that the order was made by the judge. The certificate is insufficient. The regular way to secure an order extending the time for making and serving case-made is to present a written application and secure a written order signed by the judge, and have the same entered of record on the minutes of the court. It is the duty of the persons applying for these extensions to properly preserve the record, and have all such orders included-in the case-made when the same is filed.

The information in this case is regular. The instructions of the court fairly state the law. There is nothing prejudicial in this transcript to the rights of the appellant.

The record shows that the case-made was not served in time, and that the extension -of the county judge was granted after the time originally given had elapsed. The case-made is therefore stricken from the record. No errors appearing in the transcript, this case will have to be affirmed. This question has been repeatedly passed upon by this court. Bradford v. State, 3 Okla. Cr. 367, 106 Pac. 535; Houck v. State, 3 Okla. Cr. 483, 106 Pac. 977; Durant v. State, 3 Okla. Cr. 447, 106 Pac. 651; Lewis v. State, 3 Okla. Cr. 448, 106 Pac. 647.

Affirmed.

FURMAN, PRESIDING Judge, and DOYLE>, Judge, concur.


text:
    WILL YOATHER v. STATE.
    No. A-249.
    Opinion Filed February 6, 1911.
    (113 Pac. 234.)
    INTOXICATING LIQUORS — Illegal Disposal — Evidence—Instructions. (a) On the trial of an indictment which charges the sale or giving away of a specific kind of liquor by name, not accompanied by general descriptive terms, the sale must be proved as alleged.
    (b) An instruction by the court to the effect that a person charged with the sale or giving away of whisky is guilty, when the proof shows the sale or giving away to have been alcohol, Is erroneous. Por correct instruction, see opinion.
    (Syllabus by the Court.)

      Appeal from Stephens County Court; W. H. Admire, Judge.

    Will Yoather was convicted for giving away whisky, and appeals.
    Reversed and remanded.

      Gilbert & Bond, for appellant.
    Citing: City of Lincoln Center v. Linker, 5 Kan. App. 242; Lemly v. State (Miss.) 20 L. R. A. 645; State v. Martin, 34 Ark. 340; Kirh v. Territory, 10 Olda. 46.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

Will Yoather was convicted in the county court of Stephens county on the 8th day of May, 19-09, on a charge of giving away whisky, and was sentenced by the court to pay a fine of $50, and be confined in the county jail 30 days, and pay the costs of the prosecution. He prayed an appeal, which was duly perfected, and this cause is here regularly.

The information in this case charges that “the said Will Yoather then and there being did then and there give to one Roy Vaught three drinks of whisky, the said Roy Vaught being then and there a minor of the age of fifteen years,” etc. The proof shows the prosecuting witness received alcohol, instead of whisky; there being a conflict as ~to whether the appellant gave it to him or whether he secured it himself. There are a number of assign-meuts of error, but this is the only one that it is necessary for ns to consider, and it is raised in the appellant’s ninth assignment.

• The general rule is, as laid down 'by Cyc., that if an indictment charges the sale of a specific kind of liquor by name, and not accompanied by general descriptive terms, it must be proved as alleged. 6 Cyc. 264, and authorities cited thereunder. The information in this case might have just as easily charged the offense in language to have justified this proof; but the pleader, having chosen to narrow the inquiry down to whisky, is bound thereby. The Court of Appeals of Kansas, in discussing this proposition, says: .

“It is elementary that a defendant must be tried upon the identical charge which is preferred against him. He cannot be charged with doing one thing, and be found guilty of doing another, even though a similar thing. Here the defendant was charged with selling a certain definitely named drink, called ‘American Hop Ale,’ alleged to be of a like nature with malt, hop tea tonic, ginger ale, and cider, and therefore prohibited by the ordinance. Such a charge cannot be sustained by proving .the sale of something else. The city having seen proper to thus limit the charge, the court could not enlarge it, as was attempted by the instruction complained of. * * * That the complaint may have alleged the offense with unnecessary particularity, 'and thus have narrowed the inquiry before the jury, is not a matter for this court to consider.” (City of Lincoln Center v. Linker, 5 Kan. App. 242, 47 Pac. 174.)

We think that the instruction of the court on this point, wherein it attempted to enlarge the scope of the investigation by defining the term “whisky” as follows: “By the term ‘whisky,’ is meant a spirituous, distilled, or intoxicating liquor within the meaning of the statute regulating the liquor traffic; * * * and if you find from the testimony in this case beyond a reasonable doubt that the whisky alleged in the -information comes within the meaning of one or all of the terms here defined to you,” etc.,- is erroneous. The instruction should have given, the law as applicable to the proof.

We think the following instruction, as requested by the appellant, would have properlv covered the case:

“You are instructed, under the information in this case, the defendant is charged with the giving away of whisky, and before yon are warranted in convicting the defendant it will be necessary that the state prove to you by legal and competent evidence beyond a reasonable doubt that the beverage so given to Roy Vaught was whisky, if you should find that it was given at all.”

In the case of Kirk v. Territory, 10 Okla. 46, 60 Pac. 797, the court says:

“In charging the jury, due regard must be had to the state of the case, and the character and amount of proof, and the law as stated to the jury must be applicable to the pleadings and testimony.”

In the case before us it is very clear that this rule was not observed.

For the errors indicated, the case will be reversed and remanded, with directions to the court below to grant the appellant a new trial.

FURMAN, PeesidiNG Judge, and DOYLE^ Judge, concur.


author: AEMSTEONG, Judge.

text:
    MOSE OFFITT v. STATE.
    No. A-368.
    Opinion Filed February 6, 1911.
    (113 Pac. 554.)
    1. HOMICIDE — Evidence—Admissibility — Threats — Appeal—Harmless Error — Exclusion of Evidence — Subsequent Admission. On the trial of a person on a charge of murder, evidence tending to show that the deceased had made threats against the defendant is competent and should be admitted, when the issue of self-defense is presented. The trial court commits error in refusing to allow such testimony to go to the jury. Such error, however, is cured by the court later, during the trial, allowing the testimony to be introduced.
    2. EVIDENCE — Res Gestae — Declarations of Deceased. Statements of the deceased, made prior to his death and immediately, following the shooting, and while deceased is still lying where he was shot, are entitled to be admitted' as part 'of the res gestae,, especially when the proof shows that he realized that he was mortally wounded.
    3. TRIAL — Waiver of Error — Cross-Examination of Witness. A defendant does not waive his right to urge exceptions on the admissibility of evidence by cross-examination of a witness on the matter objected to.
    4. HOMIQIDE — Dying Declarations — Admissibility. A declaration made by deceased, clearly without premeditation or design, when the record shows he is mortally wounded, and he has made statements showing that he realizes his condition, are properly admitted as dying declarations.
    5. APPEAL — Harmless Error — Instructions. The giving of a manslaughter instruction on a trial for murder, although erroneous, is not sufficient to justify a reversal of a cause, when the proof shows clearly that the issue of manslaughter was not raised and that the defendant was properly convicted of murder; and the giving of such manslaughter instruction is held to be harmless.
    6. APPEAL — Harmless Error. When a re'cord although disclosing many errors, shows that the proof is clear, that the defendant was fairly tried and properly convicted, and that the errors complained of are not prejudicial to his rights, the judgment of conviction will be affirmed under the doctrine of harmless error.
    (Syllabus by the Court.)

      Appeal from District Court, Pittsburg County; Preslie B. Cole, Judge.

    Mose Offitt was convicted of murder, and he appeals.
    Affirmed.

      Puller & Porter, for appellant.

      Chas. West, Atty. Gen., for the 'State.
   AEMSTEONG, Judge.

The indictment in this case charges the appellant, Mose Offitt,- with the murder of Bud Ivey, in Mc-Alester, Pittsburg county, Okla., on the 3d day of November, 1908.

The evidence discloses the fact that the appellant and the deceased were both working as waiters, at the Busby Hotel in McAlester during November, 1908. The proof shows that the shooting occurred about 8 o’clock in the evening, and that death, caused by the wound, occurred about 1:30 the following morning. On the lobby floor of the Busby Hotel, the eastern wing was composed at that time of the American plan dining room on the south end, occupying about one-half of the space; the European plan cafe along the northwest corner, occupying approximately one-eighth of the floor space of the eastern wing; the kitchen and commissary, occupying the remaining space on that floor. The kitchen connects with the dining room and the cafe. From the commissary a stairway ascends into the servants’ room or help’s hall above, which occupies a space over the kitchen and commissary in the northern half of the eastern wing. Tire great height of the large American dining room takes up the space south of the help’s hall on the level with it; the only entrance to the help’s hall is a stairway going down to the commissary. In the center of the servants’ room or help’s hall is the eating table, surrounded by backless benches. Other benches are around the room in various places, and lockers are in that room, opposite the stairs and beyond the center table, in which the waiters keep their uniforms when off duty and their street clothes when on duty. These lockers seem to be shared by several waiters. They are customarily closed with hinges and padlocks, but if the waiter is a little late and the key to the padlock not at hand, to get in the help frequently knock off the padlocks or hinges, or otherwise force an entrance, and nail the hinges and locks back with staples. To do this nailing an iron scale weight from the commissary below is often used, and was so used shortly before the trouble. The evening meal seems to have begun in both the dining room and the cafe at 6 p. m. each day. The head waiter, Tom Duckett, as appears to have been his custom, about 5:30 p. m. on the afternoon of the killing, went up into the servants’ quarters to see if his waiters were preparing for the coming service. It appears that the deceased, Bud. Ivey, worked under him and the appellant, Mose Offitt, was not under him, but worked with three or four others in the cafe. Duckett found the deceased, the appellant, and some other waiter in a quarrel over a card game, cursing and unruly. He separated them, finally boxed the ears of the deceased, who was under his discipline, sent him down into the kitchen, and warned the defendant to desist from the quarrel. The defendant, in speaking to Duckett, after Ivey had gone, threatened Ivey and said, “I am going to kill him.” This was about half an hour before the killing. Ivey went into the dining room and shortly after, apparently realizing that he had left some money in the pocket of his street clothes which were in the locker in the servants’ quarters, returned to get it. In the meantime Offitt had gone down to the kitchen, and, he claims, was there told that Ivey had gone out to arm himself. The persons whom he claimed gave him this information denied it. He did not go at once to arm himself. He says in his testimony that he knew if Ivey came in he could go to the cafe. He says'that he knew that the deceased would have to come in and go to the help’s hall or servants’ quarters before going to work. He says that he himself went to the servants’ hall and armed himsblf with a Smith & Wesson .38 caliber pistol to protect himself from Ivey, and also says that he expected Ivey might be there when he went there. His exact language being, in response to a question: “No, sir; I wasn’t necessarily expecting him, but I prepared myself if anything come up.”

One witness, Brown, says:

“When Mbse [meaning appellant] came up, he stood a few minutes near the end of the table, then turned back and went •to the steps leading down to the commissary below, looked down the steps, took his gun out, and went back to the end of the table. Immediately steps were heard coming up the stairs. Mose stood with a handkerchief over his face watching the steps. Ivey came up and went to his locker.”

Appellant denies that he went to the stairs and looked down, watching for the deceased, as stated by the witness above, -but admits that after deceased came up he kept his eyes on him. It appears from this record that the appellant directly contradicted every witness in the case on some material point.

The witness Brown, quoted above, says that after deceased arrived in the room and unlocked his locker and hung up his coat, that he got something out of the locker which he put in his pocket, and the appellant walked towards the deceased, saying, “Throw up your hands,” pointing a pistol at him, and, “If you don’t, I will kill you.” The appellant shot, and deceased grabbed the gun, and the appellant shot again. That the deceased fell across the benches after the second shot. That at the command to raise his hands, the deceased raised his hands to about his waist. That he saw the deceased’s hands, and there was nothing in them.

The witness Simmons, who appears to have been another waiter, tells substantially the same story. He says deceased was putting on his jacket at the locker when the appellant went towards him, knocking his (witness’) arm (it appears that the witness was standing with his hand up. on the wall), and said to the deceased, “Throw up your hands,” and appellant shot. That then he (the witness Simmons) got out of the way by going downstairs. ■

It appears from the testimony of the witness Johnson that he was in the servants’ quarters, talking to the deceased about going to work, when he first saw the appellant and heard him order the deceased to throw up his hands. He says the deceased didn’t move, and, upon the command to throw up his hands, said to the appellant: “What do I want to throw up my hands for ?” when the appellant fired the first shot. That the deceased was standing up against his locker, and at the first shot staggered towards the appellant, and at the second shot fell on the table, and witness pulled him' on a bench. The deceased didn’t fall clear to.the floor, but just staggered over on the bench. He is sure that deceased was fixing to go to work, and that he didn’t s'ee him move towards the appellant; but that he staggered toward the appellant after the first shot.

The witness Whittaker, who appears to have been another waiter, says that he reached the deceased not over two minutes after the shooting; that the excitement still .continued. He says they were “stampeded.” That when he reached the deceased he was hollowing, “Put me out; I am burning”; that he asked him (meaning the deceased) how he (meaning the deceased) let him (the appellant) shoot him, and the deceased answered that he could not do anything; he was taking his money out — putting.it in his pocket — and before he could do anything he was shot.

The witness Banks, who is a white man and appears to have been the constable, said when he reached the deceased shortly after the shooting that he could not talk much. The deceased said he was as good- as a dead man, and when witness leaned over and asked him how it happened, deceased said he was putting on his jacket when the appellant -came in and told him to throw np his hands, and shot. This witness says he found a little money in the deceased’s pocket.

'Witness Chambers, a colored man, visited the deceased in the hospital after the shooting; said- the deceased had no hope -of getting well and insisted he couldn’t get well, although the witness encouraged him. At that time deceased told the witness how the trouble was, -and said: “If I am living in the morning, you come back and I will tell you more about it.’’ It seems that the deceased told witness at that time that in changing some money out of one pocket into another, he noticed this appellant coming up with a pistol, and appellant said, ■ “Throw up your hands, G-od damn you; I am going to kill you,” and was shot immediately. That he hollowed and ¿told the fellow not to shoot him, and said, “You are killing me for nothing,” and that appellant was in the act of shooting the second time, when he jumped and grabbed him, to prevent him from shooting any more, and that he shot the second time before deceased could get hold of him.

The appellant denies what these witnesses say; his statement being that when he changed his coat Sam Simmons was up there talking, and went up and placed his hand against the wall and said to deceased, “Come on.” And deceased said: “If you are in a hurry, go on downstairs,” and reached in his locker, and witness Simmons said, “Don’t do that; come on.” And when he reached in the locker, appellant noticed his hands, and he put his right hand in his pocket and walked toward him. That he took out his gun and said: “Stop, and throw up your hands.” All the other witnesses present deny this statement of the appellant, and he is flatly contradicted by every other witness to the occurrence.

The appellant got away from the scene of the trouble with great speed, was arrested- within an hour without his gun, and makes no intelligent explanation of what became of it.

The appellant makes many assignments of error. The first we shall notice is assignment No. 5, in which he contends that the court erred in refusing to permit the appellant to testify as to what he was informed by one Walker and Simmons relative to the deceased’s conduct shortly before the time of the killing. The record does not show what the appellant wanted to state to the court and jury, but, from the statement of counsel made at the time, it was evidently the desire of the appellant to state that he had been informed by the two persons named that deceased had gone oil and armed himself, and that he had better be on his guard. This was admissible, and the court should have admitted it; but this error was cured later, the defendant being allowed to testify to those matters.

In another assignment the appellant complains of the court for having permitted the witness Whittaker to testify to certain statements having been made to him by the deceased in the absence of the appellant. The record shows.that the deceased was lying there where he was shot; that he had never moved; that it was only a few seconds after the shooting and before being-moved from the particular spot; that the deceased, from this evidence, appeared to realize that he was mortally wounded. We think this testimony was entitled to go to the jury. The Attorney General contends that the appellant waived his right to urge this exception because he later cross-examined on this proposition, and thereby re-introduced the same. We do not agree with this contention. The appellant had the right to cross-examine the witness on any material point, and bring out whatever he could for the benefit of his case, without waiving his exception. W'e do not think that the exception is well taken, however.

In assignment No. 7, the plaintiff in error complains of the court in permitting the witness Banks to testify as to certain conversations and declarations of the deceased after the shooting, in the absence of the appellant, on the theory that they were dying-declarations. Appellant contended no proper foundation had been laid. In the case of Hawkins v. U. S., 3 Okla. Cr. 651, 108 Pac. 561, this court said:

“Upon a trial for murder, a declaration made by the decease;!, clearly without premeditation or design, not more than half a minute after the shooting, upon the spot where the shooting occurred, and which declaration tended to explain the main fact, viz., the circumstances of the shooting, is properly a part of the res gestae, and is admissible.

The record shows that the deceased had said, "I am a dead man; I am not going to lie to you any more about it,” and then he told of the trouble. Eecord, page 88. In the case of Hawkins v. U. S., cited supra, this court held that proof that the deceased was shot one afternoon and died abut 8:30 or 9 o’clock the folio-wing morning, that his wound was intensely painful and necessarily fatal, and that he said that he was going to die — shows the conviction in the deceased’s mind that death was impending, and is sufficient predicate for the admission of his dying declaration. The record in this case seems to be as strong, if not stronger, than the one in the case of Hawkins v. U. S. We therefore conclude that the testimony of the witness Banks was properly admitted.

The complaint of the appellant against the court for permitting the testimony of John Chambers is wholly without merit, as it clearly appears from the record that the deceased at that time realized his hopeless condition, and that he died in a few hours after Chambers talked to him.

The other errors assigned by counsel in their petition and urged in their brief involve the instructions of the trial court. No man could read this record without being overwhelmed with the idea that this appellant is guilty of murder, and, so far as the evidence is concerned, there are no material errors prejudicial to the rights of the appellant in admitting or rejecting it. We think -each instruction given is subject to criticism. The principal objections to them, however, are not such as are prejudicial to'the interests of the appellant. It appears that these instructions were given under the idea that this offense was to be tried under the laws of Arkansas in force in that portion -of the state of Oklahoma formerly known as Indian Territory (prior to statehood), a portion of which comprises Pittsburg county. There is no excuse for the county attorney and the trial court making this mistake, but we cannot see that it was harmful to the appellant, however. Murder and manslaughter, under our statute, are easily and clearly defined, and all the propositions raised in this case should have been covered by clear and explicit instructions. The trial judge is not expected to write a treatise on the law of murder and manslaughter in giving instructions to a jury. The instructions should be concise, and so clear that the average layman could understand them.

Counsel for the appellant urges error in the manslaughter instruction and insists his case should be reversed on that ground. If there was any manslaughter in this case, we would be inclined to agree with this contention; but under the proof in this record the appellant was properly convicted of murder, and the fact that an erroneous manslaughter instruction was given could work no injury to the appellant, and whatever error there was in the same, if any, was harmless.

The Attorney General suggests in his brief that, “this being a case of homicide, with self-defense interposed as justification, no reasonable excuse is apparent why the stereotyped instructions of carefully considered eases in the jurisdiction of this or that of other states having the same law were not followed. People v. Hecker, 109 Cal. 451, 42 Pac. 307, 30 L. R. A. 403, and many other cases furnish a complete supply suitable for all contingencies. This is too dangerous a matter for experimentation, when the ap-, proved course is so plain, and the failure, so far as the record shows, of the prosecuting officer in preparing and furnishing the forms of the Hecker ease, or -one of similar importance and distinction, should not pass without comment.” We hope that the trial courts and prosecuting officers will see to it in the future that their proceedings are not subject to criticisms of this kind. People must be tried according to law. This court is not here to excuse errors, but to correct them, and if there were any proof in this record tending to sustain the contentions of the appellant, this case would have to be reversed.

Upon a careful consideration of' the entire record, we feel constrained to say that whatever errors there are work no injustice upon this appellant, and, under the doctrine of harmless error heretofore announced by this court, the judgment of the lower-court is affirmed. )

FTTEMAN, PRESIDING Judge, and DOYLE, Judge, concur.


text:
    CHARLEY SIMPSON v. STATE.
    No. A-265.
    Opinion Filed February 6, 1911.
    (113 Pac. 549.)
    1. INDICTMENT AND INFORMATION — Sufficiency—Felonies— Language of Statute. An indictment for a felony, although in the language of the statute, is not sufficient, unless it states all facts necessary to constitute the offense with sufficient certainty.
    2. BURGLARY — Sufficiency of Indictment — Allegation of Ownership, (a) An indictment for burglary, whether at common law or under statute, must allege every fact and circumstance necessary to constitute the offense, including time, place, ownership, and description of the premises.
    (b) An allegation of ownership, in an indictment for burglary, is sufficient if laid in the lessee or tenant in possession.
    3. BURGLARY — “Dwelling House” — Poolroom of Hotel. A hotel is a “dwelling house” within the meaning of the law, when it is continuously used as a place of habitation. A dwelling house, under our statute, includes all buildings attached to and used in connection with the house usually lived in, and embraces a pool hall joining the main hotel building and connected by a large archway, when both businesses are operated together.
    (Syllabus by the Court.)

      Appeal from District Court, G-rady County; Frank M. Bailey, Judge.

    Charley Simpson was convicted of burglary in the second degree, and he appeals.
    Eeversed and remanded, with directions.

      ■F. F. Biddle, for appellant.
    Citing: State v. Forlder, 22 Kan. 542; Winslow v. State (Neb.) 41 N. W: 1116; State v. Schuchman, 33 S. W. 35, 34 S; 'W. 842; Thomas v. State (Ala.) 12 South. 409; Biclcford v. People, 39 Mich. 210; Neill v. State, 55 Ala. 466; Moore v. People (Mich.) 11 N. W. 415; Potter v. State, 92 Ala. 37; State v. Hutchinson, 111 Mo. 257; People v. Galderwood, 66 Mich. 92; Quinn v. People, 71 N. Y. 561; Fuller v. Slate, 48 Ala. 273; Ex parte Vincent, 26 Ala. 145; People v. Griffon, 77 Mich. 585; People v. St. Glair, 38 Cal. 137; State v. GlarJc, 42' Vt. 629; Colbert v. State, 91 Ga. 705; Mitchell v. Com., 88 Ky. 349; State v. Atkinson (Wis.) 58 N. W. 1034; Com. v. Hayden, 150 Mass. 332; Givens v. State, 40 Fla. 200; People v. Barnes, 48 Cal. 551; State v. Dale, 141 Mo. 284; Hoa/s v. Com., 3-3 S. W. 1104; St. Louis v. State (Tex. Or. R.) 59 S. W. 889; People v. Parker, 91 Cal. 91.

      Smith G. Matson, Asst. Atty. Gen., for the State.
    Citing: Markham v. State, 25 Ga. 52; State v. Jaynes, 78 N. C. 504; Webb v. State, 52 Ala. 422'; White v. State, 49 Ala. 344.
   ARMSTRONG, Judge.

The indictment in this ease was returned by the grand jury of Grady county at the April, 1908, term. The appellant was arraigned in May, 1909, and filed a demurrer to the indictment, raising, among other things, the question that the indictment failed to allege the ownership of the building burglarized, and, generally, the sufficiency of the indictment. The demurrer was overruled, and he excepted; the ease went to trial, and, at the close of the testimony of the state, the appellant filed a motion requesting the court to advise the jury to return a verdict for him, which motion was overruled, and he excepted. There was no testimony offered by the appellant, defendant below. The jury was instructed by the court as to the law, and after deliberation returned into court a verdict of guilty, assessing a punishment of two years in the penitentiary ’ on the appellant. He excepted to the verdict and filed' a motion for a new trial, setting up, among other things, the error of the court in overruling his request for an instructed verdict. The motion was overruled, and he excepted. An appeal was prayed and granted, and this case is here regularly.

There are a number of assignments of error in this record. The only questions we deem it necessary to determine, however, are the sufficiency of the indictment and the degree of the offense this appellant should be charged with, as disclosed by the proof before us.

The charging part of the indictment is as follows:

"That Charley Simpson did intentionally, unlawfully, wil-fully, feloniously, and burglariously, in the nighttime, did break and enter the building occupied by Horace Humphreys, in which the said Horace Humphreys was conducting a billiard and pool hall, and in which said pool hall the money and valuable things, the personal property of the said Horace Humphreys, were kept and being, and with the unlawful, wilful, felonious, and burglarious intent, then and there of the said Charley Simpson, the money and valuable things the personal property of the said Horace Humphreys, in said building, then and there being and kept, then and there to unlawfully, wilfully, feloniously, and burglariously steal, take, and carry away by stealth.”

This part of the indictment clearly shows that the pleader intended to charge burglary in the second degree. We think the indictment is insufficient. Proceedings had in the court below, as disclosed by the record, indicate clearly that the defendant was tried on the theory that he was guilty of burglary in the second degree.

Ordinarily an indictment for a felony which follows the language of the statute is sufficient, if all the.facts necessary to constitute the offense are thereby stated, and stated with sufficient certainty. The great weight of authority holds that an indictment for burglary, whether at common law or under statute, must allege every fact and circumstance which is necessary to constitute the offense with sufficient certainty as to time, place, ownership, and description of the premises, to inform the accused of the particular crime of which he is charged, 6 Cyc. 200; State v. Dale, 141 Mo. 284, 42 S. W. 722, 64 Am. St. Rep. 513; 1 Bish. New Crim. Proc. §§ 81, 519; Winslow v. State, 26 Neb. 308, 41 N. W. 1116; Hays v. Com., 33 S. W. 1104; St. Louis v. State (Tex. Cr. R.) 59 S. W. 889. If there is a complete description of the property burglarized, some of the courts hold that it is then not necessary to allege the ownership. People v. Parker, 91 Cal. 91, 27 Pac. 537. The better rule, however, is to allege it; and for that purpose it is sufficient to allege the ownership in the lessee or tenant in possession. The Alabama Supreme Court and a large number of others have determined this question in accordance with the view here expressed. It will be observed that the indictment in this case nowhere charges the ownership of the house alleged to have been burglarized, and nowhere describes the same. The Supreme Court of Nebraska, in the case of Winslow v. State, construing a statute almost identical with ours, and in discussing an indictment practically in the form of the one before us, with the exception that the indictment there was more definite, having • alleged the location of the building in a certain town, says:

“In cases of this kind there must be an allegation of ownership. * * * The lawful occupancy of the property by one in possession is sufficient to justify an allegation that he is the owner.”

Some of the courts hold that it is necessary to allege the ownership in the person who holds the'fee title to the property, if known. This seems to be the Kansas rule, as stated in State v. Fockler, 22 Kan. 542; but the better rule appears to be to lay the ownership in the one rightfully in possession, and prove the same as alleged. Thomas v. State, 97 Ala. 3, 12 South. 409; Whart. Crim. Law, vol. 1, § 816. We think either would be sufficient. An examination of those authorities and many others forces us to conclude that this indictment is insufficient. The court below, therefore, erred in overruling the demurrer.

The appellant insists that, if he is guilty of burglary at all, he is guilty of burglary in the first degree. We are inclined to agree with this contention. Tire testimony shows that Horace Humphreys, with his family, lives in' the New Eiarly Hotel building in Chickasha; that he operates a pool hall in the room this appellant is charged with having burglarized, which room is adjoining the hotel, under the same roof and operated in connection with the hotel business; that Humphreys cut a large archway in the wall between the pool room and the office of the hotel and moved his cigar business into the pool room, and that all the business was conducted together by him. "

The witness Turntine testified as follows (record, pp. 36, 37) :

“Q. Where did yon lire at that time [referring to the date of the alleged burglary] ? A. I made my home at the Early Hotel. Q. Yon were living there? A. Yes, sir. Q. Humphrey and his family lived in the hotel at that time? A. Yes, sir. Q. This pool hall yon were speaking of is connected with the hotel' — is one room with the hotel? A. Yes, sir. Q. There is a large archway leading from the office or lobby of the hotel to' the pool room? A. Yes, sir; from the lobby. Q. They are both together? A. No, sir; there is an archway between. Q. It is all under one inclosure? A. Probably. Q. And this pool room is under the same roof and a part of the building of the hotel? A. Yes, sir. Q. Humphrey and his family lived there continuously during that time? A. Yes, sir. Q. Punning the hotel, cigar stand, and billiard hall together and in connection'? A. Yes, sir.”

The witness Bennett testified as follows (record, p. 46) :

“Q. Where did you live on the 9th day of April, 1908? A. At the Early Hotel. Q. For whom were you working at that time? A. Horace Humphreys. Q. What business was Mr. Humphreys engaged in there at that time? A. Punning a hotel and billiard hall business.”

On cross-examination (record, p. 50) :

“Q. This pool room there is a part of the hotel building, and the archway goes from the office in the hotel? A. Yes, sir. Q. It is all under the same roof? A. Yes, sir. Q. This archway is closed at night?, A. Yes, sir. Q. The dining room is also closed at night? A. Yes, sir.”

The witness Humphreys testified as follows (record, pp'. 51, 52) :

“Q. Where did you live on the 9th day of April, 1908? A. Chickasha, Oída. Q. What business, if any, were you engaged in in Chickasha at that time? A. Hotel business, billiard, and pool hall. Q. Was there any valuable thing besides money in -that building that night? A. The usual stock of cigars, etc. Q. Who did that property belong to that was in that building? A. To myself.”

Cross-examination of Horace Humphreys (record, p. 58) :

“Q. You were a married man 'at that time (referring to the date of the alleged burglary) ? A. Yes, sir. Q. Where did you and your family live on the date of the alleged burglary? A. Earlv Hotel. Q. The pool hall you spoke of was -a room in connection with the hotel building, was it not? A. Tes, sir. Q. And opened out into the poolroom where the money was taken .from? A. Yes, sir. Q. It was all under the same roof and. a part of the same building? A. Yes, sir.”

Redirect examination:

“Q. You state that the pool hall and the Early Hotel were together; is it not two buildings, and was not the doorway cut, after you took charge of it, from the hotel to the pool room? A. After I put this pool hall in that room I consolidated the cigar business of the hotel and cut an archway between the two rooms. Q. They were different rooms? A. Yes, sir; previous to that time.”

Hnder our statute this proof is sufficient to sustain a conviction for burglary in the first degree. The Supreme Court of Missouri (State v. Hutchinson, 111 Mo. 257, 20 S. W. 34), in discussing the proposition of what constitutes a dwelling house within the meaning of the burglary statute, says “that the phrase 'part of a dwelling house’ means a part of the building which constitutes a dwelling house,” and holds that:

“Where a room was separated from another by about four feet, both being inclosed under the same roof, and connected by porches on each side extending from the door of one to the door of the other, in one of which rooms a person lived and the other being used for storing and keeping; things not in immediate use, the latter room is a part of the dwelling house, though there be no internal communication between this room'and the other.”

The case before us is a stronger case, because there was internal communication between the room in which the burglary is charged to have been, committed and the principal dwelling.

The 'Supreme Court of New Jersey, in the case of Rogers v. Troth, 36 N. J. Law, 422, holds that the term “dwelling house,” within the meaning of the statute prohibiting the pulling down or removal of any dwelling house in the construction of roads, includes all buildings attached to and used in connection with the house in which persons dwelt or usually lived, and therefore it was held to embrace a billiard saloon attached to a hotel and always used in connection with, and as a part thereof, for business purposes, though not actually dwelt in by persons.

A dwelling house is the apartment, building, or cluster of buildings used and occupied as a place of abode. Fuller v. State, 48 Ala. 273; Ex parte Vincent, 26 Ala. 145, 62 Am. Dec. 714; Mitchell v. Com., 88 Ky. 349, 11 S. W. 209; People v. Griffen, 77 Mich. 585, 43 N. W. 1061. Hotels are dwelling houses, within the meaning of the law, when they are continuously used as a place of habitation. People v. St. Clair, 38 Cal. 137; State v. Clark, 42 Vt. 629; Colbert v. State, 91 Ga. 705, 17 S. E. 840.

We are satisfied that the appellant should have been charged with burglary in the first degree.

For the reasons herein set forth, this cause Is reversed and remanded, with directions to the sheriff to take charge of the appellant and to the court below to set aside the indictment, and have the appellant proceeded against for burglary in the first degree.

FUEMSAN, PkesidiNG Judge, and DOYLE, Judge, concur.


text:
    CARSIE ELLIOTT v. STATE.
    No. A-233.
    Opinion Filed February 6, 1911.
    (113 Pac. 213.)
    1. APPEAL — Reversal—Loss of Transcript. When the record discloses that the appellant is unable to present a full and complete appeal in this court by reason of the loss of portions of the transcript by officials of the court below through no fault of his, the cause will be reversed.
    2. NEW TRIAL — Grounds—Loss of Record. When the record or portions of the record material to appeal are misplaced through no fault of the appellant, the trial court should grant a new trial upon proper showing in the same manner as the law provides for new trials on the ground of newly discovered evidence.
    (Syllabus by the Court.)

      Appeal from Stephens County Court; W. II. Admire, Judge.

    Carsie Elliott was convicted of selling intoxicating liquor, and he appeals.
    Eeversed and remanded, with directions.

      Gilbert & Bond, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The appellant was convicted in the county court of Stephens county on the 4th day of May, 1909, on a charge of selling intoxicating liquor. On the 7th day of May, 1909, he filed a motion for a new trial, which was overruled, and he excepted. On the samfe day judgment was pronounced, and he was allowed 30 days in which to make and serve case-made. On the 3d day of June an extension of 20 days was granted by the court upon a showing that the appellant had been unable to secure a transcript of the evidence. The record shows that the stenographer lost the notebook containing the stenographic report of the testimony taken at this trial, and was unable to furnish the defendant with a transcript of the same for that reason; that the defendant made due and proper demand for the 'same, and was in no way at fault in the premises. The county judge also exonerates the appellant from any blame in this connection. This court has held in the case of Tegeler v. State, 3 Okla. Cr. 595, 107 Pac. 949, that, where a defendant is deprived of his right to present a complete appeal to this court through no fault of his, he is entitled to a new trial. The same rule is announced in the case of Bailey v. United States, 3 Okla. Cr. 175, 104 Pac. 917, 25 L. R. A. (N. S.) 860. The record clearly discloses that in this pase the appellant is in no wise at fault by reason of the loss of the stenographic notes, and that he could not perfect a complete appeal without them. When this condition arises and is properly presented to the trial court, and it is made to clearly appear to that court that the defendant is not responsible for the loss of the record or material portions thereof which cannot be supplied in any way, a new trial should be granted and save the expense of bringing the cause to this court for reversal.

Following the doctrine announced in the cases cited, supra, this cause is reversed and remanded, with directions to the court below to grant the appellant a new trial.

FURMAN, PresidiNg Judge, and DOYLEi, Judge, concur.


text:
    JAMES FLOYD v. STATE.
    No. A-383.
    Opinion Filed February 6, 1911.
    (113. Pac. 212.)
    ASSAULT AND BATTERY — Instructions—Self-Defense. It is reversible error for the trial court to instruct. the jury in an assault case, wherein the plea is self-defense, that the appearance of danger must cause in the defendant reasonable belief, founded on reasonable evidence, that he is in imminent danger of great bodily harm before he can avail himself of such plea, and that the defendant must have used all reasonable means in his power , consistent with his safety to avoid the danger which apparently threatened him.
    (Syllabus by the Court.)

      Appeal from District Court, Pottawatomie County; TP- N. M-aben, Judge.
    James Floyd was convicted of assault witli a deadly weapon, and appeals.
    Reversed and remanded.

      C. D. Holt, Jesse Williams, and B. B. Blaheney, for appellant.

      Smith Q. Matson, Asst. Atty. G-en., fox tbe State.
   ARMSTRONG, Judge.

Tbe plaintiff in error was tried in the district court of Pottawatomie county in October, 1908, on an indictment charging him with an assault- with a dangerous and deadly weapon, and convicted. Motions for a new trial and in arrest of judgment were filed and. overruled and exception saved.. There are a great many errors urged in the brief of counsel for plaintiff in error, most of which are well taken, but we shall only discuss one of them, as the auestions raised have been determined by this court, and the errors complained of will not likely recur on a trial anew of this cause.

The eleventh assignment, of error complains of the following instruction, which appears in the case-made on page 53, as instruction No. 10:

“The jury are instructed that where the evidence shows beyond a reasonable, doubt that the assault was committed by the defendant, and the defendant seeks to avoid the responsibility of such assault on the grounds of self-defense, it must be apparent from the evidence that the circumstances and surroundings of the defendant at the time of the assault were such as to cause in him the reasonable belief, founded on reasonable evidence, that he was in imfninent danger of death or great bodily harm at the hands of his assailant, and, before the defendant can be excused on the ground of self-defense, he must have used all reasonable means within his power, consistent with his safety, to have avoided the danger which apparently threatened him, and to have averted the necessity for the assault.”

This court has repeatedly held that such an instruction as the foregoing is prejudicial. In the case of William P. Price v. State, 1 Okla. Cr. 358, 98 Pac. 447, this court, in discussing an identical instruction with this, speaking through Presiding Judge Fur-man, said:

“This instruction is utterly inconsistent with, and directly contradictory to, the fundamental principles of criminal law, that all persons charged with crime are presumed to be innocent until they are proven guilty by competent evidence beyond a reasonable doubt, and that the burden is not upon a defendant to prove his innocence, but is at all times upon the state to prove his guilt beyond a reasonable doubt. Neither is it the law that when a person is threatened with death or great bodily injury that he must use all,means consistent with his safety to avert the necessity of killing his assailant before he will be justified in doing so. This instruction destroys the right of the defendant to act upon appearances of danger. It took from the defendant the right to have the jury view the facts and circumstances of the case from the defendant’s standpoint. * * * If this instruction is correct, then the right of self-defense can only be exercised by cowards and slaves, and as jo brave men and free men it is a mockery, a snare, and a delusion.”

The instruction discussed by this court in the case of Price v. State was given in a murder case, and the one before us now was given in an assault case. The principle of self-defense is in each the same. It was error in the trial court to- give this instruction. The motion in arrest of judgment should have been sustained.

The judgment of the court below is reversed, and this cause remanded, with directions to grant a new trial.

FTJRMAN, PeesidiNg Judge, and DOYLE, Judge, concur.


text:
    T. N. SMITH v. STATE.
    No. A-291.
    Opinion Filed February 6, 1911.
    (113 Pac. 204.)
    INTOXICATING LIQUORS — Illegal Sale — Proof of Other Sales. Where the state charges and relies upon a particular sale to constitute a violation of the prohibition law, it is error for the court to permit proof of other sales, and to instruct the jury that the same was admitted for the purpose of showing whether or not the defendant sold the intoxicants to the particular person named in the information.
    (Syllabus by the Court.)

      Appeal from LeFlore County Courtj Jas. L. Hale, Judge.

    T. N. Smith was convicted of selling intoxicating liquor, and he appeals.
    Reversed and remanded, with directions.

      Day, Du Bois & Taylor, for appellant.

      Smith C. Maison, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The plaintiff in error, T. N. Smith, was convicted on the 4th day of May, 1909, in the county court of LeFlore county, on the charge of selling intoxicating liquor, and sentenced to 30 days in jail and a fine of $75, and has perfected his appeal to this court.

The only substantial error we find in this record is in the instructions of the court, which instructions appear to have been given orally and taken dowij by the stenographer, and not numbered in this record; the instruction in question being as follows:

“There is testimony allowed to come before you, showing the sale, or tending to show the sale, to another party about the same time of this alleged sale — to one Cluck. This is allowed to come before you, gentlemen of the jury, as a circumstance in the case showing whether or not this man had whisky there at his place of business for the purpose of sale, and further to show whether or not he sold it to' Dr. Hays and received the money, or its equivalent, for it.”

We think this instruction is clearly erroneous, and is sufficient, to'entitle this appellant to a new trial.

Where the state charges and relies upon a particular sale, the general rule is that proof of other sales, for the purpose of establishing the particular sale charged, is not admissible. The issue on a criminal trial is single, and the testimony should be confined to the issue; and on trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses. Whart. Crim. Ev. par. 104; 1 Bish. Crim. Proc. par. 1120; State v. Hughes, 3 Kan. App. 95, 45 Pac. 94; King v. State, 66 Miss. 502, 6 South. 188; Stone v. State, 7 South. (Miss.) 500; McClure v. State, 148 Ala. 625, 42 South. 813.

The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice in criminal prosecutions. Bishop says that “to permit such evidence would be to put a man’s whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.” 1 Bish. Crim. Proc. par. 1124.

The appellant excepted to the foregoing instruction at the time it was given, and filed a motion for a new trial, complaining of it in that motion. A new trial should have been granted.

This cause is reversed and remanded, with directions to the court below to grant the appellant a new trial.

FUBMAN, PeesidiNg Judge, and DOYLE., Judge, concur.


author: ABMSTBONG, Judge.

text:
    R. E. RICE v. STATE.
    No. A-218.
    Opinion Filed February 6, 1911.
    (113 Pac. 207.)
    INTOXICATING LIQUORS — Possession—Evidence. Mere possession of whisky, without proof of the purpose for which it is held, is insufficient to sustain a conviction of one charged with having whisky in his possession for unlawful purposes.
    (Syllabus by the Court.)

      Appeal from Grady County Cowrt; N. M. Williams, Judge.

      E. E. Eice was convicted of having in his possession spirit-uons liquors with intent to sell, and appeals.
    Eeversed and remanded.

      Bond & Melton, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ABMSTBONG, Judge.

The plaintiff in error was convicted in the county court of Grady county on a charge of having- in his possession spirituous liquors for the purpose of selling the same. Upon arraignment he filed a motion to set aside the information, which motion was overruled, and he excepted. ‘The case went to trial before a jury, and, at the close of the state’s testimony, he requested the court to advise the jury to return a verdict of not guilty, which was denied, and he excepted.

The evidence introduced in this case on the part of the state shows that one Hobbs went to the Bock Island depot in Bush Springs in March, 1909, and found a barrel marked to E. E. Eice, Sterling, Okla., via Bush Springs. Sterling appears to be an inland town about 15 miles from the railroad. Hobbs loaded the barrel on his wagon and drove away from the station, and had gone but a short distance when he met a drayman by the name of Fourt, and delivered the barrel over to Fourt. Fourt carried it to the house of the appellant and left it. The record does not show that either of the parties had any instruction or order from the appellant to get the barrel, but does show, from the state's witnesses, that, after his arrest, the appellant told the drayman that the barrel was not his. This appears to have been the first time that he had seen the drayman'after the delivery of the barrel to his residence. A deputy sheriff was in town the day the barrel was delivered, and was informed that a suspicious barrel had been delivered at the house'of the appellant, whereupon he secured a search warrant and went to the home of the appellant, seized the barrel, opened it, and found that it contained pint bottles of whisky. The appellant was not at home on the day in question, and was not arrested until two or three days later. Upon the trial the state undertook to show that he had received other shipments of whisky, but the testimony fails to show that the packages delivered' contained whisky.

There is nothing in this record to show that "the appellant ordered the barrel in question or had anything to do with it. There is nothing in the record to show that he was ever, at any time, charged with selling whisky. The evidence is wholly insufficient to sustain a conviction upon this charge. The state had a right to show, as this court has heretofore held, any previous unlawful sale of intoxicants by the appellant, if he had made any such sales, for the purpose of tending to establish intent. See Hill v. State, 3 Okla. Cr. 686, 109 Pac. 291. The state did not offer to make any such showing in this case. The mere possession of whisky is not in itself sufficient to justify the conviction of a person for having whisky in his possession for unlawful purposes. It is necessary for the state to establish the purpose for which the whisky is held. The testimony on the part of the state indicates that this was a shipment from Ft. Worth, Tex., and' if that is true, it was an interstate shipment. This court has repeatedly held that persons residing in this state have a right to receive interstate shipments for their own use, and, while an unusual quantity might be a circumstance to be considered against one on trial on a charge of this. kind, that of itself would not warrant a conviction. The proof must go further and establish the intent and purpose of the person charged. Alexander v. State, 3 Okla. Cr. 478, 106 Pac. 988.

At the close of the state’s testimony, the defendant below requested the court to advise a verdict for him, which was denied by the court, and he exceptdd; and, after conviction, he filed a motion for a new trial, which was overruled. The trial court committed error in refusing the request of the appellant for the instruction. The motion for a new trial should have been sustained.

Judgment reversed and the cause remanded, with directions to the court below to grant a new trial.

FURMAN, PresidiNG Judge, and DOYLE, Judge, concur.


author: ARMSTE'ONG, Judge.

text:
    JOE COWDEN v. STATE.
    No. A-321.
    Opinion Filed February 6, 1911.
    (113 Pac. 202.)
    1. CONSTITUTIONAL LAW — Trial by Jury — Waiver. A person charged with a misdemeanor in the county court may waive a jury and be tried by the court! Section 20, art. 7, Constitution of the state, held to be self-executing, and intended to cover this class of cases.
    2. APPEAL — Review—Findings of Fact by Court. The finding of facts by the court upon the waiver of the jury has the same effect as if the case had been tried by a jury, and will not •be disturbed on appeal if there is sufficient testimony tending to sustain it.
    (Syllabus by the Court.)

      Appeal from Pottawatomie County Court; E. D. Beasor, Judge.

    Joe Cowden was convicted of maintaining a place where intoxicants were kept for sale, and he appeals.
    Affirmed.

      B. B. Blalceney and J. H. Maxey, for appellant.

      Smith C. Matson, Asst. Attv. Gen., for the State.
   ARMSTE'ONG, Judge.

On the 3d day of March, 1909, the county attorney of Bottawatomie county filed an information against the plaintiff in error, Joe Cowden, charging that he did "unlawfully, knowingly and wilfully keep and maintain a place in which there was received and kept spirituous, vinous, fermented and malt liquors and imitations thereof and substitutes therefor, to wit, whisky, beer, ale and wines, for the purpose of selling, bartering, giving away and otherwise furnishing the same.” On the 4th day of March the appellant was arrested, arraigned, and entered a plea of not guilty. On the 24th day of March, 1909, his case came on for trial, the state appearing by the county attorney and the appellant appearing in person and by.his attorneys, who in the court below were Ereeling & Hood, and the state and the defendant below, appellant here, agreed to waive a trial by jury and agreed that the same be submitted to, tried, heard and determined 'by the court without the intervention of a jury, and thereupon the court proceeded to hear the case. (Record, p. 8.) Having heard the evidence the court found the appellant guilty, and assessed his punishment at a fine of $100 and 30 days in jail, and on the same day entered judgment. Appellant filed motions for a new trial and in arrest of judgment, both of which were overruled, and he excepted. This case is briefed and argued in this court by B. B. Blakeney and J. H. Maxey for the plaintiff in error. They rely principally on the proposition that the defendant below, plaintiff in error here, could not waive the right of a trial by jury, and that the court had no jurisdiction to try the cause without the intervention of a jury, and that the judgment of the court is therefore void, citing section 19, art. 2, of the Constitution; on this subject, which is as follows:

“The right of trial by jury shall be and remain inviolate, and a jury for the trial of civil and criminal cases in courts of record, other than county courts, shall consist of twelve men; but m county courts and courts not of record, a jury shall consist of six men. This section shall not be so construed as to prevent limitations being fixed by law upon the right of appeal from judgments of courts not of record in civil cases concerning causes of action involving less than twenty dollars. In civil cases, and in criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein.”

This contention is untenable. It is only necessary for us to cite section 20 of article 7 of the Constitution on this point, as follows:

“In all issues of fact joined in any court, all parties may waive the right to have the same determined by jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.”

Counsel evidently overlooked this provision or they would not have so earnestly insisted that their position is correct. This latter provision is a self-executing, plain, common-sense provision, intended to cover just such cases as this. The court below committed no error in this respect. The cases cited by counsel, both from the Oklahoma Territorial Supreme Court and other courts, have no application since the adoption of our Constitution. The Supreme Court of this state in the, case of Farmers’ Bank v. McCall, reported in 25 Okla. 600, 106 Pac. 866, 26 L. R. A. (N. S.) 217, discusses this latter provision of the Constitution, and says that the highest evidence of waiver is by consent entered of record. The waiver is sufficient, and the trial court properly heard and determined the issues submitted.

On the question of the insufficiency of the evidence to sustain the judgment of the court, we do not think that position is well taken. The findings of the court below as to the facts have the same binding eifect upon this court as if the case had been tried by a jury. If there is sufficient testimony tending to sustain the finding of the court below it will not be disturbed by this court on appeal.

Finding no errors affecting the substantial rights of the appellant, the judgment of the court below is affirmed.

FURMAN, PRESIDING Judge, and DOYLEi, Judge, concur.


text:
    E. E. ANDREWS v. STATE.
    No. A-284.
    Opinion Filed February 6, 1911.
    (113 Pac. 201.)
    JURY — Method of Drawing — Waiver. A person charged with a misdemeanor may waive the drawing of a jury from the box.
    ('Syllabus by the Court.)

      Appeal from Kiowa County Court; J. W. Mansell, Judge.

    E. E. Andrews was convicted of selling intoxicating liquors, and appeals.
    Affirmed.

      Thos. W. Conner, for appellant.

      Smith C. Matson, Asst. Atty. Gen., for the State.
   ARMSTRONG, Judge.

The information in this ease was filed in the court below on the 12th day of May, 190&. On the 14th day of May the cause was continued by agreement to the 31st day of May. The cause came on for hearing on tiie 1st -day of June following, the record reciting that this was one of the regular judicial days of the regular April term of the county court; that on said day both sides announced ready for trial, and the court instructed the clerk to call a jury to. the box. The clerk proceeded to call the jury, and there appeared to be only ten jurors present. 'Whereupon the county attorney and the attorney for the appellant entered into the following agreement, which appears in the record:

“There being present only ten of the regular panel of the jurors summonsed to try the issues in this cause, it is mutually agreed by and between the counsel for the state and the defendant that they proceed to challenge two jurors each and waive the summonsing of the two additional jurors.”

After this agreement had been entered into, the attorney for the appellant objected to proceeding further with the trial and asked leave to interpose what he terms a demurrer, which appears in the record as follows:

“(1‘) For the reason that this is not a regular term of the county court of ICiowa county, Oklahoma. (2) For the further reason that the jury present to try the above entitled cause is not the regular jury drawn from the jury box, but is a special jury summonsed by the sheriff of this county upon an open venire to try this particular case, after the regular jury in attendance upon said court has been discharged on or about the 17th day of April, 1909, and the defendant at this time asks leave to show facts in support of these his objections.”

Whereupon, the following agreement was entered into between the county attorney and the attorney for the appellant:

“It is mutually agreed by and between the counsel for the state and the defendant that since the regular jury has been discharged from attendance upon this court that said court has- been adjourned from Monday to Monday up till the present time, and on the last Monday, to wit, the 31st day of May, 1909, was adjourned to this day. It is further mutually agreed that the jury now present to try the issues in the above-entitled cause are not a regular jury in. attendance upon this court, but is a special jury summonsed by the sheriff of this county upon an open venire to try the issues of this particular case. It is further agreed that the regular jury drawn from the jriry box was discharged from attendance on this court on or about the 17th day of April, 1909.”

TJpon the above agreement being entered into, the court overruled defendant’s demurrer, and he excepted. It appears that this appellant had agreed on the 14th day of May for this cause to be continued to the 31st day of May, 1909; that the regular jury had been discharged nearly a month prior to the date this agreement was entered into; that, when the case was called for' trial, the appellant announced ready and agreed to waive one of his challenges to the jurors present, and the jurors had been called to the box. We think the appellant waived whatever right he may have had to demand a trial by a jury drawn from the box in the regular manner by announcing ready and waiving one of his challenges.

There are no other errors urged by counsel for the appellant in his brief, and, none appearing from the record, this cause is affirmed.

FURMAN, PRESIDING Judge, and DOYLE, Judge, concur.