text:
    Ex parte E. F. WALROD.
    No. 9989.
    Dec. 23, 1941.
    (120 P. 2d 783.)

      Springer & Springer, of Stillwater, for petitioner.
    Leon J. York, of Stillwater, for respondent.
   DOYLE, J.

This case originates in this court on application of E. F. Walrod for writ of habeas corpus.

Petitioner alleges that he is unlawfully restrained of his liberty by John Black, chief of police of the city of Stillwater, on a purported commitment issued upon the judgment and sentence of M. J. Bradley, municipal judge and mayor of said city, finding said petitioner1 guilty of violating section 1, city ordinance No. 611, by distributing advertising and reading matter on the streets, and alleging that said municipal court, or the judge thereof, was wholly without jurisdiction to make and enter the said judgment and sentence imposed and to issue said commitment thereon, because said ordinance violated freedom of the press, his right to' free speech, and free exercise of religion as guaranteed to him by the First Amendment to the Constitution of the United States, which ordains that:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition ¡the Government for a redress of grievances.”

And alleging that petitioner is detained and deprived of his liberty without due process of law as guaranteed to him under the Constitution of the State of Oklahoma and in violation of the Constitution and laws of the United States of America, and particularly the Fourteenth Amendment to the Constitution of the United States, which had the effect of making the said First Amendment applicable to the states, which ordains that:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Citing Lovell v. City of Griffin, 303 U. S. 444, 58 S. Ct. 666, 669, 82 L. Ed. 949.

The Sixth Article of the Constitution of the United States declares:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United ‘States, shall be the supreme Law of the Land.; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to' the Contrary notwithstanding.
“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Section 1 of Article 1 of the State Okla. St. Ann. Constitution declares:

“The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.”

And section 2, art. 1 of the State Constitution declares :

“Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.”

Section 22 of art. 2 of the State Constitution declares :

“Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

Reference is made to section 7 of article 2, which declares:

“No person shall be deprived of life, liberty, or property, without due process of law.”

Lovell v. City of Griffin, supra, holds that the free exercise of a person’s religion and the practice thereof, and the freedom of speech and freedom of the press which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action, and municipal ordinances adopted under state authority constitute state action and are within the prohibition of the Fourteenth Amendment, and that the. constitutional guaranty of freedom. of the press embraces distribution as well as publication, Mr. Chief Justice Hughes, delivering the opinion of the court, said:

“The ordinance is comprehensive with respect to1 the method of distribution. It covers every sort of circulation ‘either by hand or otherwise.’ There is thus no restriction in its application with respect to time or place. It is not limited to ways which might be regarded as inconsistent with the maintenance of public order, or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets. The ordinance prohibits the distribution of literature of any kind at any time, at any place, and in any manner without a permit from the city manager.
‘We think that the ordinance is invalid on its face. Whatever the motive which induced its adoption, its character is such that it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship. The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his ‘Appeal for the Liberty of Unlicensed Printing.’ And the liberty of the press became initially a right to publish ‘without a license what formerly could be published only with one.’ While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, .the prevention of that restraint was a leading purpose in the adoption of the constitutional provision. * * *
“The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. What we have had recent occasion to say with respect to the vital importance of protecting this essential liberty from every sort of infringement need not be repeated. Near v. Minnesota [283 U. S. 697, 51 S. Ct. 625, 75 L Ed. 1357] supra; Grosjean v. American Press Co. [297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660], supra; De Jonge v. Oregon [299 U. S. 353, 57 S. Ct. 255, 81 L. Ed. 278], supra.
“The ordinance cannot be saved because it relates to distribution and not to publication. ‘Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication Avould be of little value.’ Ex parte Jackson, 96 U. S. 727, 733, 24 L. Ed. 877 [879]. The license tax in Grosjean v. American Press Co. [297 U. S. 233, 56 S. Ct. 444, 80 L. Ed. 660], supra, was held invalid because of its direct tendency to> restrict circulation.
“As the ordinance is void on its face, it was not necessary for appellant to seek a permit under it. She was entitled to contest its validity in answer to the charge against her.”

In the case of Schneider v. State of New Jersey, Town of Irvington, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed. 155, the Supreme Court of the United States held:

“The power of municipalities to enact regulations in the interest of the public safety, health, welfare or convenience may not be so- employed as: to abridge the individual liberties secured by the Constitution to¡ those who wish to speak, write, print or circulate information or opinion. * * *
“A municipal ordinance which prohibits persons in public streets from handing circulars, handbills, etc., to those Avilling to receive them, the purpose of which is to prevent the littering of a street by persons who after receiving them throw them away, violates the constitutional right of freedom of speech and of the press, even though it is enforced only if those who receive printed matter throw it away in the- street, and though its operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places.”

This opinion Avas a consolidation of four cases involving ordinances in cities from New Jersey, California, Wisconsin and Massachusetts.

The Los Angeles, Milwaukee, and Worcester ordinances prohibited the distribution of handbills on streets or sidewalks or parks1 and were upheld by the state courtsl which distinguished Lovell v. City of Griffin, supra, on the ground that distribution was merely excluded from public streets, leaving other places open for the exercise of the liberty of speech and press. The Supreme Court held that the purpose of keeping streets clean and of good appearance was insufficient to justify a person lawfully on the street from distributing literature, saying:

“Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution results from the constitutional protection of the freedom of speech and press.”

The town of Irvington, New Jersey, ordinance provided no one should canvass, solicit or distribute circulars or other matter or call from house to house without first reporting to and receiving a written permit from the chief of police. It required information to be given in the application and left it to the officer’s discretion whether the permit might be granted, refused or recalled. Petitioner in that case as in this was: a member of “Jehovah’s Witnesses” who called from house to house and did substantially the same things as petitioner did in the case here. She was convicted and the highest court of New Jersey affirmed ¡the conviction. Town of Irvington v. Schneider, 121 N. J. L. 542, 3 A. 2d 609.

Mr. Justice Roberts, delivering the opinion of the court, in part saysi:

“Four cases are here, each of which presents the question whether regulations embodied in a municipal ordinance abridge the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution. * * *
“The freedom of speech and of the press secured by the First Amendment * * * against abridgment by the United States is similarly secured to'all persons by the Fourteenth against abridgment by a state.
“Although a municipality may enact regulations in the interest of the public safety, health, welfare or convenience, these may not abridge the individual liberties! secured by the Constitution to those who wish to speak, write, print or circulate information or opinion.
“Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to' allow no pedestrian to' pass who did not accept a. tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship’ to the freedom to speak, write, print or distribute information or opinion.
“This court has characterized the freedom of speech and that of the press as fundamental personal rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the framers of the Constitution that exercise of the rights lies at the foundation of free government by free men. It stresses, as do' many opinions of this court, the importance of preventing the restriction of enjoyment of these liberties.
“In every case, therefore, where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to apprise the substan-tiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.
“In Lovell v. City of Griffin [303 U. S. 444, 58 S. Ct. 666, 82 L. Ed. 940], supra, this court held void an ordinance which forbade the distribution by hand or otherwise of literature of any kind without written permission from the city manager. The opinion pointed out that the ordinance was not limited toi obscene and immoral literature or that which advocated unlawful conduct, placed no limit on the privilege of distribution in the interest of public order, was not aimed to prevent molestation of inhabitants or misuse or littering of streets, and was without limitation as toi time or place of distribution. * * *
“The Los Angeles, the Milwaukee, and the Worcester ordinances under review do not purport to license distribution but all of them absolutely prohibit it in the streets and, one of them, in other public places as well.
“The motive of the legislation under attack in Numbers 13, 18 and 29 is held by the courts below to be the prevention of littering of the streets and, although the alleged offenders were not charged with themselves scattering paper in the streets, their convictions were sustained upon the theory that distribution by them encouraged or resulted in such littering. We are of opinion that the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it. Any burden imposed upon the city authorities in cleaning, and caring for the streets as an indirect consequence of such distribution! results from the constitutional protection of the freedom of speech and press. This constitutional protection does not deprive a city of all power to prevent street littering. There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets. * * *
“We are not to be taken as holding that commercial soliciting and canvassing may not be subjected to such regulation as the ordinance requires. Nor do’ we hold that the town may not fix reasonable hours when canvassing may be done by persons having such objectsi as the petitioner. Doubtless there are other1 features of such activities which may be regulated in the public interest without prior licensing or other invasion of constitutional liberty. We do hold, however, that the ordinance in question, as applied to the petitioner’s conduct, is void, and she cannot be punished for acting without a permit.
“The judgment in each case is reversed and the causes are remanded for further proceedings not inconsistent with this opinion.”

In the case of Stromberg v. People of California, 283 U. S. 359, 51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484, the United States Supreme Court held:

“The conception of liberty under the due process clause of the 14th Amendment embraces the right of free speech. * * *
“The right of free speech is not a.n absolute one, and the state, in the exercise of its police power, may punish its abuse by those whn indulge in utterances which incite to violence and crime, and threaten the overthrow of organized government by unlawful means.”

In the case of Cantwell et al. v. State of Connecticut, 310 U. S. 296, 60 S. Ct. 900, 903, 84 L. Ed. 1213, 128 A.L.R. 1352, appellant, Cantwell, and his two- sons, members of a cult known as Jehovah’s Witnesses, and claiming to be ordained ministers were convicted upon information charging a violation of a state statute prohibiting any person from soliciting money or any valuable thing for any religious, charitable or philanthropic cause, from any other than a member of the organization, unless such cause should have been approved by the secretary of the public welfare council, and providing that upon application the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and that if he SO' finds, he shall approve the same and issue a certificate that may be revoked at any time. The Supreme Court of the United States held that “the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment.”

Syllabus Nos. 2, 3, 4, and 5 read as follows :

“The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaran-ted by the First Amendment, including freedom of speech and of religion. * * *
“The freedom of conscience and freedom to adhere to such religious organization or form of worship1 as the individual may choose, guaranteed by the Fourteenth Amendment, is absolute and cannot be restricted by law; but the free exercise of the chosen form of religion, involving acts, is subject to regulation for the protection of society. * * *
“The power to regulate the exercise of a chosen form of religion must be so exercised as not unduly to infringe the freedom of religion protected by the Fourteenth Amendment. * * *
“Under the Fourteenth Amendment, a state may not by statute wholly deny the right to preach or disseminate religious views.”

Mr. Justice Boberts, delivering the opinion of the court, in part says:

“The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, — * freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to' regulate must be so exercised as not, in attaining, a permissible end, unduly to' infringe the protected freedom. No one would contest the proposition that a state may not, by statute, wholly deny the right to- preach or to- disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a state may by general and nondiscriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the Act in question is not such a regulation.”

The principles applicable to' the questions here presented have clearly been set forth in the opinions above quoted.

Considering the questions presented in the light of the First and Fourteenth Amendments to' the Constitution of the United States, and the decisions thereon pronounced by the Supreme Court of the United States, which decisions are final and conclusive and to which all state tribunals must yield, it follows that the ordinance in question is unconstitutional and void.

From all the foregoing considerations we necessarily conclude that petitioner’s trial, conviction and sentence in the municipal court of the city of Stillwater and all* the proceedings were null and void.

It follows that petitioner wasi restrained of his liberty and held in custody without due process of law, and is entitled to a discharge from the imprisonment of which he complains. He is therefore by the judgment of this court discharged therefrom.

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


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    WILLIAM F. WAGNER v. STATE.
    No. A-9903.
    Jan. 7, 1942.
    (121 P. 2d 322.)

      Sigler & Jackson, of Ardmore, for plaintiff: in error.
    Mae Q. Williamson, .Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Wm. F. Wagner, was charged by information in the county court of Carter county, on November 25, 1939, with the offense of unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve a term of thirty days in the county jail and to pay a fine of $250 and costs, from which judgment and sentence he appeals to this court.

Counsel for defendant assign as error the following:

(1) That the court erred in admitting testimony in reference to* the search of defendant’s home, and erred' in admitting testimony of the officers as to* what they found while in the defendant’s home.

(2) That the court erred in overruling objections to* the argument of the county attorney.

The affidavit for search warrant complained of by defendant is as follows:

“The State of Oklahoma, Carter County, ss.
In the Name of the State of Oklahoma
“The State of Oklahoma, Plaintiff vs. Wm. F. Wagner, 130 3rd Ave. N. E., Ardmore, Okla, defendant
Application for Search Warrant
“Clarence Harris, Chief of Police, Ardmore, of lawful age, being duly sworn, on oath deposes and says: That in Carter1 County, State of Oklahoma, on the 21st day of November, 1939, the above named defendant Wm. F. Wagner at number 130 3rd Ave. N. E., in a certain building described as follows: a One Story Frame building, a resident in Carter County, did, then and there unlawfully have in their possession and under their control, and do1 now keep for the purpose of selling, bartering, giving away and otherwise furnishing certain intoxicating liquors. * * *
“That the aforesaid premises is a place used for the storage of intoxicating liquors in violation of the Statutes of Oklahoma.

The description in the search warrant, based upon the above affidavit, is as follows:

“* * * on the 21st day of Nov., 1939, Wm. F. Wagner, Ardmore, Oklahoma, and John Hoe, whose real name is not known, has sundry liquors: To wit, whisky, wine, ale & beer at number 130 3rd Ave. N. E., Ardmore, in a certain building described as a one story frame building A resident in Ardmore in Carter County, Oklahoma if w if JJ

Counsel for defendant state in their brief:

“In the outset we say that the affidavit for the search warrant was insufficient for the reason that it did not describe any property whatever. The description in the affidavit for the search warrant simply described the property at ‘130 3rd Ave. N. E., in a certain building described as follows: One story frame building, a resident in Carter county, Oklahoma.’
“In the first place we say that the mere fact that this was a residence and the affidavit said it was a residence rendered this affidavit insufficient to search the residence. In addition to that there would certainly have to be a description more definite than that given in the application for a search warrant. To describe a place as a frame building, a residence in Carter county is covering too much territory.”

The affidavit in question does more than to describe a place as a frame building, a “residence” in Carter county. “Wm. F. Wagner, 130 3rd Ave. N. E., Ardmore, Okla.,” is set out in the style of the application. The description proper sets out: “Wm. F. Wagner at number 130 3rd Ave. N. E. in a, certain building described as follows: a One Story Frame building, a resident in Carter County.” The search warrant contains a complete description of the premises taken wholly from the affidavit.

In Juhl v. State, 50 Okla. Cr. 139, 296 P. 763, it is stated:

“A search warrant is limited to the premises described in the affidavit, and may not include additional or different places to be searched than those described therein.”

Although this affidavit does not appear1 to have been carefully drawn, we think it is sufficient because it gave all the information sufficient for a proper search warrant.

As to the contention that the affidavit refers to the premises as a “residence” and for that reason the search and seizure was illegal, we cannot agree. From a reading of the affidavit, it appeared to us that the word “resident” in the description was used advisedly, and referred to the defendant. But from a reading of the descriptive part of the search warrant, it appears that there is some merit to the contention of defendant that the premises were referred to as a, residence, in that “resident” was used in the affidavit and search warrant in the sense of “residence”. However', even if the place to> be searched was referred to as a residence, it is immaterial in this instance. The statement in the affidavit that the premises is a place of storage for intoxicating liquor is sufficient for issuance of a search warrant for a private residence. Sec. 2639, O. S. 1931, 37 Okla. St. Ann. § 88. Hyatt v. State, 38 Okla. Cr. 382, 262 P. 215.

The evidence on behalf of the state, in addition to disclosing the whisky which was found in the place of business of the defendant, further showed that the premises searched was a place of public resort, where people came and went regularly, that whisky has been stored there by defendant, and that there were glasses, tables, and many empty whisky bottles in the place. No evidence wasi offered on behalf of the defendant.

In connection with the contention of the defendant that the statement made by the county attorney in his closing argument to the effect: “We’ve got him down there in an open, notorious place of public resort,” is prejudicial, we find that this question has not been properly preserved for review by this court; but in view of the evidence and the undisputed proof, we cannot say that such statement, if made, was prejudicial to the defendant.

Finding no substantial error in the record, the case is affirmed.

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


text:
    MARVIN ELMO SIMS v. STATE.
    No. A-10109.
    Jan. 7, 1942.
    (121 P. 2d 317.)

      Falkenstine & Fisher, of Watonga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Marvin Elmo' Sims, was charged in the county court of Canadian county with the crime of unlawful transportation of intoxicating liquor, tried, convicted, and sentenced to serve 30 days in the county jail and pay a fine of $50, and he has appealed to this court.

The only contention presented in the brief of the defendant is that the evidence does not show that the defendant committed any crime in the presence of the arresting officers at the time of, or immediately prior to, the search and seizure so as to authorize a search and seizure without a warrant.

The defendant was arrested about 3 o’clock a. m., by two highway patrolmen at the intersection of highways 66 and 270, about nine miles west of El Reno, and approximately 100 pints of whisky were found in the turtle-back of the defendant’s automobile.

Certain facts are undisputed, to wit:

(1) That the officers did not have a search Avarrant nor a warrant for the arrest of the defendant.

(2) That the defendant was the owner and operator of the automobile and had therein the large amount of whisky found by the officers on that occasion.

The defendant filed a Avritten motion to suppress the eA-idence before the commencement of the trial. The two highway patrolmen and the defendant and a passenger in the defendant’s automobile testified in the hearing on this motion.

The highway patrolmen testified that the defendant was stopped and arrested because he was operating, his automobile in a reckless manner and violating the rules of the road.

Patrolman Etheridge testified in this connection as follows:

“A. The patrol car and the car driven by Mr. Sims was headed in an easterly direction on TJ. S. Highway No. 66 at a point nine miles west of El Reno and this car was observed to swerve across the black line, back to the south side or shoulder of the road going in an easterly direction, ran off the shoulder, continued on to an intersecting road that connects 270 and 66, turned in a northerly direction, run a stop line up there, was weaving back and forward on the road, stopped on U. S. 270 about 100 yards north of the stop sign at the intersection of the road to. the county road, it isn’t a part of the highway, it is a cut-off about nine miles west, directly west of the filling station, it runs, in front of the filling station, it is not 270 or 66 either,.”

Upon further questioning, Etheridge testified that the patrol car was directly behind the defendant’s car, about 100 yards, when they first observed it swerve over the center line, and that it swerved in such a manner that an oncoming car was forced to leave the highway.

Patrolman Sisney testified in this connection as follows :

“A. Patrolman Etheridge and myself were patrolling- east on 66 at a, point nine miles and a half or ten ■miles west of El Reno. I was driving, I noticed a car ahead of me that was going slow and weaving, it went across the black line, then across on the right hand side to the shoulder. I called it to the attention of Mr. Eth-eridge, and said look at that car,’ then a, car came from the east, this car pulled toward and across the black line and the other car pulled off the pavement. Q. You mean the car going in the westerly direction met this car and drove off the pavement? A. Yes, sir. This car pulled the wheels off the pavement and went on. Q. 'Which car ? A. The car that met Sims. Sims went on east and we followed, we went ahead and stopped this car, we would have stopped it sooner but another car came along and he pulled over to the west across the line, this car left the pavement, Sims went on east and turned to- the left. Q. Where? A, About nine miles west, a little by-road at the intersection of 270 and 66, just to the west side of that filling- station, he turned left at this point, before we could stop him he was 150 feet north on 270. Q. Did you get out of the patrol car at that time? A. Yes, sir. Q. What did you do? A. I immediately went to the door of Sims’ car. Q. Did you ask him to step out of the car. A. I asked for an explanation of that kind of driving; he said he guessed his lights were poor. I said I would have to* place him under arrest for violation of the rules' of the road. Q. Sims made some statement about his lights? A. Yes, I said, 'Let’s see you walk up and down.’ I could smell whisky on his breath; he walked up and down the road for me, he walked all right. I looked in the front seat, I seen part of a pint, I looked in the car1 and seen another part of a pint on the floor boards. I asked Sims to raise the turtle-back, he did so, he got the keys out of the car, he raised it up, and we could see the packages.”

On cross-examination it was disclosed that Sisney filed charges against the defendant in the justice of the peace court the next morning for violating the rules of the road. It is not disclosed what disposition was made of this charge. The information against the defendant herein was verified by the sheriff of Canadian county and not by the highway patrolmen.

The defendant testified that he was driving slowly, getting ready to' make the turn where Highway 66 intersects with 270; that he pulled over past the center of the line, preparing to make the turn to the left, when he saw an oncoming car which caused him to- pull back to the right and off the road on the shoulder, where he stopped until the car had passed; that he misjudged the speed of the other car and saw that he could not make the turn, so he pulled back to the right-hand side of the road and stopped his car until the other car passed. That after the car had passed, he turned at the intersection and drove 300 or 400 feet before the patrolmen came up and stopped him.

On cross-examination the defendant admitted former convictions for possession of whisky and for driving an automobile while under the influence of intoxicating1 liquor.

One Petree testified that he was an occupant of the defendant’s automobile at the time he was stopped, and his testimony as to what caused the defendant to operate his automobile in the manner in which it was operated is in substance the same as the defendant’s.

On cross-examination he admitted that he had been drinking that night, and further admitted that he had been convicted three times, for the crime of possession of intoxicating liquor.

Counsel for defendant have written an excellent brief, citing some decisions of this court where it was apparent from the evidence that the testimony of officers was given merely as a subterfuge to try to justify an unlawful search of the accused’s property. We have no criticism to make of the decisions cited by the defendant. The question as to whether a defendant has. committed an offense in the presence of the officer, which justifies his arrest by the officer and a subsequent search of his automobile, necessarily depends upon all of the facts and circumstances of the particular case.

In the cases cited by counsel for the defendant, no charges of a violation of the law other than the violation of the liquor, law as disclosed by the unlawful search by the arresting officer were made; and it was apparent from those cases that the officers were trying to testify concerning an alleged violation of the law merely as a subterfuge to justify their unlawful search.

Here we do not have a similar situation. From the testimony of the officers; corroborated in part by the defendant himself, it is. evident that the defendant violated the rules of the road. The officers arrested the defendant for this violation of the law and followed the matter by filing charges against the defendant before a justice of the peace the following, morning. So far as the record discloses, the defendant was not known to either of the highway patrolmen, and it is apparent that he would not have been apprehended on this occasion had it not been for his illegal operation of his automobile on that occasion.

There are other circumstances, also, which occurred which justified the arrest of defendant and seizure of the intoxicating liquor. We refer to the fact that part of the whisky was in plain sight of the officers as they approached defendant’s car, and the balance of the whisky was disclosed to them by a free and voluntary act on the part of defendant in such a manner as to constitute a waiver on his part of his immunity from an unlawful search. See, Hammonds v. State, 73 Okla. Cr. 287, 120 P. 2d 376; Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99; Arnold v. State, 70 Okla. Cr. 203, 105 P. 2d 556; Camp v. State, 70 Okla. Cr. 68, 104 P. 2d 572; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465.

In Hammonds v. State, supra, it is stated:1

“Peace officers have the right to' arrest without a warrant all persons who are guilty of a violation of the criminal law in their presence.
“As an incident to such legal arrest the person and automobile of the offender may without a warrant be searched for contraband goods.”

Prom all of the foregoing we have come to the conclusion that the defendant committed a crime in the presence of the officers and by reason thereof the officers had the right to' arrest the defendant without a warrant, and as an incident to such legal arrest to search the automobile for contraband goods.

Tbe judgment of the county court of Canadian county is accordingly affirmed.

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


author: BAREFOOT, P. J.

text:
    WYATT HAGAN et al. v. STATE.
    No. A-9901.
    Jan. 7, 1942.
    (121 P. 2d 315.)
    Mac Q.. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and O. E. Enfield, Co-. Atty., of Arnett, for the State.
    C. B. Leedy, of Arnett, for defendants.
   BAREFOOT, P. J.

Wyatt Hagan and Esther Bender were charged in the district court of Ellis county with the crime ,of adultery, were tried, convicted and defendant Wyatt Hagan assessed a fine of |500 and costs and defendant Esther Bender1 assessed a fine of f200 and costs. Both defendants have appealed.

This case was filed in tbis court on tbe 27tb day of July, 1940. On tbe 17tb day of February, 1941, a motion was filed to abate tbe same as to tbe defendant Wyatt Hagan for tbe reason that said Wyatt Hagan died on February 10, 1941. On tbe 19tb day of February, 1941, an order was entered abating, tbe same as to tbe defendant Wyatt Hagan for tbe reason above stated. Hagan v. State, 71 Okla. Cr. 262, 110 P. 2d 928. Tbis appeal is now pending as to tbe defendant Esther Bender.

A number of errors are presented which we now deem it unnecessary to consider. Tbe only question necessary for consideration is as to whether tbe evidence was sufficient to sustain tbe charge of “open and notorious” adultery under tbe principles announced by tbe former1 decisions of tbis court. Tbe statute upon which tbis charge was based is Oklahoma Statutes 1931, section 1837, O. S. A., Title 21, § 871, which is as follows:

“Adultery is tbe unlawful voluntary sexual intercourse of a married person with one of tbe opposite sex; and when tbe crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of tbe parties to tbe crime only by bis or her own husband or wife as the case may be, or by tbe husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery.”

In construing tbis statute it has been tbe uniform bolding of tbis court that, before a prosecution may be bad under tbe above section, it is necessary for tbe injured spouse to commence tbe prosecution:

“Provided, that any person may make complaint when persons are living together in open and notorious adultery.” Gill v. State, 32 Okla. Cr. 278, 240 P. 1073, 1074; Heacock v. State, 4 Okla. Cr. 606, 112 P. 949; Stone v. State, 12 Okla. Cr. 313, 155 P. 701.

In the instant case the prosecution was not commenced or prosecuted by the husband oí defendant, but by other parties. It was therefore necessary for the proof to show that there was a living together in “open and notorious.” adultery as provided by the statute.

We do not consider it necessary to go- into a detailed discussion of the evidence. We have carefully examined the record and the able briefs filed, and from such examination have come to the conclusion that the evidence was insufficient to establish “open and notorious” adultery as pronounced by the former decisions of this, court. Defendant Esther Bender was living as the housekeeper of her co-defendant Wyatt Hagan. There is evidence in the record and circumstances, sufficient to- sustain the finding by the jury of adultery had defendant 'been prosecuted by her husband as provided by the statute, but there was an utter lack of proof that she was living in “open and notorious” adultery so- far as the citizens of Shattuck, where she resided, were concerned.

In the early case of Copeland v. State, 10 Okla. Cr. 1, 133 P. 258, it is said:

“Except where persons, are living together in open and notorious adultery they cannot be prosecuted under the laws of Oklahoma unless such prosecution is commenced and carried on by the wife or husband of one or the other of the offending parties. * *
“To constitute living together in open and notorious adultery the parties must reside together publicly, in the face of society, as if the conjugal relations existed between them, and their illicit intercourse must be habitual.”'

See, also, Kitchens v. State, 10 Okla. Cr. 603, 140 P. 619. In Burns v. State, 17 Okla. Cr. 26, 182 P. 738, it is said:

“Haying occasional illicit intercourse, without a public or notorious living together, is not sufficient to constitute the offense of living in a state of open and notorious adultery. To> constitute ‘open and notorious adultery,’ the parties must reside together publicly in the face of society, as if the conjugal relation existed between them.”

In Mathis v. State, 60 Okla. Cr. 58, 61 P. 2d 261, it is said:

“Except where persons are living together in open and notorious adultery, they cannot be prosecuted under the laws of Oklahoma unless such prosecution is commenced and carried on by the wife or husband of one or the other of the offending parties, * * *
“To' constitute ‘living in open and notorious adultery’ under the statute, there must be something more than occasional illicit intercourse indulged in. The parties must reside together in the face of society, as if conjugal relations existed between them, and their so living and the fact that they are not husband and wife must be known in the community in which they reside.”

See, also, Barber v. State, 15 Okla. Cr. 588, 179 P. 790; Spencer v. State, 14 Okla. Cr. 178, 169 P. 270, L.R.A. 1918F, 592; Rachel v. State, 71 Okla. Cr. 33, 107 P. 2d 813; Roberts v. State, 27 Okla. Cr. 97, 225 P. 553.

Applying the law as above announced to the facts as shown by the record in this case, we find that the evidence failed to establish an “open and notorious” living together of the defendants Wyatt Hagan and Esther Bender. The court should have sustained the demurrer to the evidence and the motion to> return a verdict of not guilty.

For the reasons above stated, the judgment and sentence of the district court of Ellis county is reversed, with directions to discharge the defendant Esther Bender.

JONES and DOYBE, JJ., concur.


author: DOYLE, J.

text:
    Ex parte W. L. WINNETT et al.
    No. A-9900.
    Jan. 7, 1942.
    (121 P. 2d 312.)

      Kenneth Kienzle, of Shawnee, for petitioners.
    Kandall Pitman, City Atty., of Shawnee, for respondent.
   DOYLE, J.

Petitioners by this proceeding seek to secure their discharge from the custody of the chief of police of the city of Shawnee.

In their petition for the writ issued herein it is alleged that they were each by complaint filed in municipal court charged as follows :

“Did unlawfully commit the offense of circulating literature on the streets of the City of Shawnee, Okla,., against the peace and dignity of the City of Shawnee, and against the ordinance of said City in such case made and provided.”

And upon their trial they were each found guilty, punishment assessed by fine and cost; in default of payment to be committed to the city jail.

It is alleged in their petition:

“That said restraint is illegal in that it violates the constitutional rights of these petitioners and is in violation of the First and Fourteenth Amendments to the Federal Constitution by abridging the freedom of the press and prohibiting the distributing of the literature about the plaintiffs’ religion; that said restraint is illegal in that the municipal judge or court of the City of Shawnee does not ha,ve any jurisdiction over* the subject matter of the charge contained in the complaints against these petitioners, and does not have any jurisdiction over the persons of these petitioners.
“Wherefore your petitioners pray Your Honorable court to grant a writ of habeas corpus and that they be discharged without delay from said unlawful imprisonment.”

Upon the return day the case was orally argued and time given to file briefs. The petitioners were released on their own recognizance pending the determination of the case.

The ordinance in question prohibited the distribution of literature of any kind at any time on the streets of the city of Shawnee.

Respondent in his answer states that each petitioner was charged in the municipal court, M. M. Chapman, judge, by complaint as set forth in their petition; that on the 28'th day of June, 1940, all of said defendants present in municipal court and being represented by Kenneth Kienzle, the city being represented by Randall Pitman, city attorney, and upon their trial said defendants were found guilty of the offense of circulating se-. ditious literature in the city of Shawnee, and were each sentenced to pay a fine of $7.50 and costs.

Counsel for respondent in his brief states:

“These petitioners are members of a religious! sect, known as ‘Jeho-vah’s Witnesses’, and have as part of their belief that no- person should salute the flag of the United States of America, or pledge allegiance to that flag or to that country. They also- entertain the belief from what is commonly called ‘conscientious objectors,’ that is their religion does not permit them to goi to war for their country. Literature containing these doctrines was being! circulated by the petitioners, and the municipal judge, after a regularly conducted trial, found them guilty of circulating seditious literature, and assessed a fine against them. At the conclusion of the trial they gave notice of their intention to appeal to the district court of Pottawatomie county, and were granted ten days in which to make an appeal bond. They neglected and failed to make this bond and were again taken into custody on the 13th day of July, and were held in custody until ordered released by this court.”

Counsel for petitioners in reply says:

“The complaint did not say what kind of literature, we must therefore suppose that it meant any and all kind of literature. Such a charge is void upon its face and deprives the petitioners of their constitutional rights and violates the constitutional guaranty of freedom of speech and freedom of the press, and freedom of religious worship.” Citing the case of Lovell v. City of Griffin, 303 U. S. 444, 58 S. Ct. 666, 82 L. Ed. 949.

The Fourteenth Amendment provides:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It has been repeatedly held by the Supreme Court of the United States that freedom of speech and freedom of the press which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties protected by the Fourteenth Amendment from invasion by state action, and municipal ordinances adopted under’ state authority, constitute state action and are within the prohibition of the Fourteenth Amendment, and that the constitutional guaranty of freedom of the press embraces distribution as well as publication. Lovell v. City of Griffin, supra; Palko v. Connecticut, 302 U. S. 319, 58 S. Ct. 149, 82 L. Ed. 288; Schneider v. State of New Jersey, 308 U. S. 147, 60 S. Ct. 146, 84 L. Ed. 155; Stromberg v. People of California, 283 U. S. 359, 51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484.

See, also, Zimmerman v. Village of London, Ohio, D. C., 38 F. Supp. 582.

The questions of law and fact in this case are almost identical with the questions involved in the case of Ex parte Walrod, 73 Okla. Cr. 299, 120 P. 2d 783, decided by this court in opinion filed December 23, 1941.

It follows that the ordinance in question is unconstitutional and void, and as enforced against petitioners amounts to a denial of freedom of speech and freedom of the press and freedom of religious rights guaranteed by the Constitution and protected against state infringement by the Fourteenth Amendment to the Constitution of the United States.

In the case of Zimmerman v. Village of London, Ohio, supra [38 F. Supp. 584], at the conclusion of the opinion written by Judge Underwood, it is said:

“Democracy rests upon the theory that all men are possessed of certain inalienable rights1; these rights, if democracy is to survive, must be based upon mutual tolerance and understanding. They give to no class or group the right to dictate to another what his opinions or belief shall be. The right; to entertain and express views does not carry with it the right to force personal views upon others and vociferous minorities may be as guilty of this unconstitutional and undemocratic usurpation of fundamental rights as organized government, and perhaps such conduct on the part of groups and individuals is the more reprehensible because it cannot be as effectively dealt with as the same sort of action on the part of governmental authority. Nevertheless, the Constitution gives to all men equal rights and equal protection of the law and it has not yet required that those who seek its protection should in turn give to it their protection; that moral obligation rests with the conscience of the individuals and from the degree of fulfillment of the obligation we may judge the truth of pretensions made.
“It is the conclusion of this court that the plaintiffs have a constitutional right to distribute their literature from door to door in an orderly manner, without interference by state authority, there being neither allegation nor showing that such literature is against public morals or in any way improper for distribution.”

From all the foregoing considerations we necessarily conclude that petitioners’ prosecution and conviction in the municipal court of the city of Shawnee, and all the proceedings had in connection therewith, were null and void.

It follows that petitioners were restrained of their liberty and held in custody without due process of law. They are therefore by the judgment of this court discharged from the imprisonment of which they complain as prayed in their petition.

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


text:
    OSCAR GRAHAM v. STATE.
    No. A-9884.
    Jan. 14, 1942.
    (121 P. 2d 308.)

      Mac Q. Williamson, At-ty. Gen., Jess L. Pullen and Owen J. Watts, Asst. Attys. Gen., and Arthur J. Marma-duke, Co1. Atty., of Duncan, for the State.
    Jerome Sullivan, of Duncan, for defendant.
   BAREFOOT, P. J.

Defendant was charged in the district court of Stephens county with the crime of murder, wa.s tried, convicted of manslaughter in the first degree and sentenced to serve a term of 11 years in the penitentiary,.and has appealed.

Defendant has assigned seven errors for reversal of this case:

(1) The evidence is insufficient to support the conviction.

(2) Counsel for prosecution committed reversible error in examination of defendant.

(3) The court committed reversible error in the manner and form of instructing the jury.

(4) Error of the court in going in the jury room on the night of December 12 and communicating with the jury while it was deliberating without the presence of the defendant or his counsel.

(5) Error of the court in denying defendant’s mo'tion to exclude the entire testimony of the witness Beulah Sparks from the consideration of the jury.

(6) Error of the court in overruling defendant’s •motion to> declare a mistrial after the sheriff and under-sheriff mixed and mingled and conversed with the jury.

(7) Punishment assessed by the jury is excessive under the evidence in the case.

After an examination of the briefs and the record, we have decided that these errors may be considered together. We have'come to the conclusion that under the law this case must be reversed, and we first consider assignment of error No. 4 which is:

“Error of the court in going in the jury room on the night of December 12 and communicating with the jury while it was deliberating without the presence of the defendant or his counsel.”

The record reveals that after the jury had retired to deliberate on their verdict, the court at about 9:30 at night went to- the jury room, opened the door and entered, and in the presence of the bailiff made inquiry of the jury if they would be able to reach a verdict in a short time, and the foreman told him to give them about 15 minutes, and he said, “All right,” and returned to his chambers. In 20 or 25 minutes the jury returned, but did not have a verdict and were by the court excused until the next morning. Neither the defendant nor his counsel were present at the time that the court entered the jury room.

The statutes with reference to the conduct of the jury after instructions have been delivered and the case finally submitted to them are Oklahoma Statutes 1931, sections 3081 and 3085, O. S. A., Title 22, §§ 857 and 894, which are as follows:

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, ox* to ask them whether they have agreed upon a verdict, and to return them boto court when they have so agreed, or when ordered by the court.”
“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to> be informed on a point of law arising- in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and1 the defendant or his counsel, or after they have been called.”

These statutes have been under1 consideration many times in this court. Ridley v. State, 5 Okla. Cr. 522, 115 P. 628; Watson v. State, 7 Okla. Cr. 508, 124 P. 329; Selstrom v. State, 7 Okla. Cr. 345, 123 P. 557; Thomas v. State, 13 Okla. Cr. 414, 164 P. 995; Henderson v. State, 18 Okla. Cr. 611, 197 P. 720; Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222; Walter v. State, 29 Okla. Cr. 221, 233 P. 240; Bennett v. State, 42 Okla. Cr. 264, 275 P. 390; Grable v. State, 60 Okla. Cr. 339, 44 P. 2d 152. In the case of Raab v. State, 62 Okla. Cr. 361, 71 P. 2d 773, we have cited and reviewed all of those decisions. The facts in each case are somewhat different, but in all of them the principle has been followed as announced in the Ridley Case, supra [5 Okla. Cr. 522, 115 P. 630]. Judge Doyle said in that opinion:

“The question presented is whether such misconduct is sufficient to require the court to> set the verdict aside and grant a new trial. It is1 of the utmost importance that jurors and court officials should be held to a strict observance of the provisions of law prescribing their procedure and duties, and their conduct should be such that no possible suspicion can attach to them of having acted in a manner prejudicial to the accused, or in his favor1. If there was1 a disagreement between them, or if they Avere doubtful as to how they should proceed, they should have required the officer in charge to conduct them into court, and the- necessary information would' be given by the court in the presence of the parties. It will be presumed, in the absence of anything to the contrary, that the rights of the defendant were prejudiced by the action of the jury and clerk of the court in disregarding and failing to observe the requirements of the statute. Courts cannot be too strict in compelling a rigid and vigilant observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury and the purity of jury trials. We deem it unnecessary to consider the other assignments.”

In the Raab Case, supra, we quoted from the case of Sargent v. Roberts, 1 Pick., Mass., 337, 11 Am. Dec. 185, an old and leading case. It is there said [62 Okla. Cr. 361, 71 P. 2d 778] :

“And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the cause. The oath administered to the officer seems to¡ indicate this as the proper course: Tie is to suffer no person to speak to them, nor to speak to them himself unless to ask them whether they are agreed;’ and he is not to suffer them to separate until they are agreed, unless by order of court. When the court is adjourned, the judge candes no power with him to his lodgings, and has no more authority over the jury than any other person; and any direction to them from him, either verbal or in Avriting, is improper.
“It is not sufficient to- say that this power is in hands highly responsible for the proper exercise of it; the only sure way to prevent all jealousies and suspicions, is to consider the judge as having no control whatever over the case, except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consideration compared with this great object. If by reason of the long intervals between the sessions of the court, jurors here are subjected to inconveniences which do' not exist elsewhere, this must be remedied by holding two sessions a day instead of one. It is better that everybody should suffer inconvenience, than that a practice should be continued which is capable of abuse, or at least, of being the ground of uneasiness and jealousy.”

We also quote from the decision of the late Judge McDermott in Little v. United States, 10 Cir., 73 F. 2d 861, 864, 96 A.L.R. 889. The facts in that case were a little stronger than in the instant case, but the same principle is announced when the court says:

“Underneath that phase of it lies the proposition that no one should be with a jury while it is engaged in its deliberations. The jury system is founded upon the proposition that disinterested jurors will hear the evidence in open court, and upon that evidence and that alone, deliberate among themselves until a verdict is. reached. * * To permit various persons, under one pretext or another, to- be with the jury in its deliberations is to open the door to grave abuse and to strike directly at the heart of the system. Without exception, as far as we are advised, such procedure has been held to be error. * * * Nor should there be any communication between the court and jury except in open court.”

Since the decision in the Raab Case, supra, this court has again had this question before it in the case of Lewis v. State, 73 Okla. Cr. 172, 119 P. 2d 91, 92. In an opinion by Judge Jones it is said:

“Where jury had retired to deliberate on its verdict, communication or instructions given jury by judge should have been in open court in presence of, or after notice to, county attorney and defendant or his counsel, or after they had been called.
“Where the trial judge communicates with jury outside courtroom and in absence of defendant or his counsel, defendant is presumably prejudiced, and state has burden to show that there was no prejudice.”

In reversing this case the court quoted from the case of State v. Wroth, 15 Wash. 621, 47 P. 106, 107, where it is stated:

“It is contended bv the appellant’s counsel that this constituted such misconduct on the part of the trial judge as requires a reversal, and we think the contention must be sustained. In the discharge of his official duty, the place for the judge is on the bench. As to him, the law has closed the portals of the jury room, and he may not enter. The appellant was not obliged to follow the judg,e to the jury room in order-to' protect his legal rights*, or to see that the jury was not influenced by the presence of the judge; and the state cannot be permitted to show what occurred between the judge and the jury at a place where the judge had no* right to* be, and in regard to> which no official record could be made.
“But learned counsel for the state insist that the judge said nothing to the jury, and hence his conduct could not have been prejudicial to the defendant. But the law does not subject parties litigant to the disadvantage of being required to accept the statement of even the judge as to what occurs between himself and the jury a.t a place where the judge has no* right to be, and where litigants cannot be required to attend,. It is the lawful right of a party to have his cause tried in open court, with opportunity to be present and heard in respect to everything transacted. It is his right to be present and attended by counsel whenever it is found necessary or desirable for the court to communicate with the jury, and he is not required to depend upon the memory or sense of fairness of the judge as to what occurs between the judge and jury at any time or place when he has no lawful right to be present. His right in this respect goes to the very substance of trial by jury. Aside from the rights of the parties, public policy will not sanction any departure from the rule which requires that all such communications shall be public, and in the presence of the parties or their counsel.”

See, also, Osborne v. State, 93 Tex. Cr. R. 54, 245 S. W. 928; Crabtree v. Hagenbaugh, 23 Ill. 349, 76 Am. Dec. 694; Coolman v. State, 163 Ind. 503, 72 N. E. 568; Wacaster v. State, 172 Ark. 983, 291 S. W. 85; State of North Dakota v. Murphy, 17 N. D. 48, 115 N. W. 84, 17 L. R. A., N. S., 609, 16 Ann. Cas. 1133; 22 A. L. R. 261; 62 A. L. R. 1468; 96 A. L. R. 899; 38 Cyc. 1859; 64 Corpus Juris 1037; 16 R. C. L. 298 and 299.

We realize and know there was no intention on the part of the trial judge in the instant case to- in any manner influence the jury. His high standing, and ability as a trial judge are well known to the members of thisi court, but the members of this court have also had extensive experience in the trial of criminal cases and we know how the ordinary juror is constantly keeping watch for some slight movement or expression from the trial judge as to what he believes ought to be the outcome of the trial. If this watch isi had during the progress of the trial, how much more so will it be if the court is permitted to gO' to the jury room and enter the same after they have retired to deliberate on their verdict. Not only what he may say, but the very fact that he goes there, may be an indication which they will take that he is personally interested in their returning a verdict. Some may come to the conclusion that he desires a verdict of guilty; others to the conclusion that he desires a verdict of not guilty. Its only effect can be to cause discord among the jurors in their secret deliberations. The defendant and his counsel have no opportunity to be present nor to take any exception to anything that may transpire. The only way to protect the rights of defendant is for the court to send for the; jury and have them come into open court, and there in the presence of defendant and his counsel make inquiry of them if it is desired. It is not only a dangerous precedent to permit the court to- go into1 the jury room after the jury has retired to deliberate, but it is very hard to prove what actually took place therein during the time that the judge was present.

The question of self-defense was a very close issue according to the facts in this case, but we shall not discuss the facts. It becomes unnecessary to pass upon the other questions raised by the defendant. However, we • will state that the evidence of the witness Beulah Sparks was incompetent and immaterial and should not be permitted against the defendant. The other errors mentioned would not probably arise in a retrial of this case.

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

JONES and DOYLE, JJ., concur.


text:
    JACK GREER v. STATE.
    No. A-10079.
    Jan. 14, 1942.
    (121 P. 2d 329.)

      Charles G. Ozrnun, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and W. W. Godlove, Co. Atty., of Lawton, for the State.
   BAREFOOT, P. J.

Defendant was charged in the county court of Comanche county with the crime of unlawful possession of intoxicating liquor, to wit: two pint bottles partly full of whisky and one pint bottle partly fall of gin, was tried, convicted and sentenced to pay a fine of $500’ and to, serve 186 days in the county jail, and has- appealed.

On examination of the record we find that the Attorney General has filed a confession of error, which is as follows:

“Comes now the defendant in error, the State of Olda-homa, and shows to the court that this case was filed in the county court of Comanche county, Oklahoma, on the 30th day of August, 1940, that the defendant Jack Greer stated that Charles G. Ozrnun of Lawton, Oklahoma, was employed as his counsel in September, 1940, and to the same effect is an affidavit by Charles G. Ozrnun, set forth in his motion for a continuance at page 42 of the case-made.
“It will be noted likewise that this attorney set forth in his notification and request for continuance (C.-M. 8) that he was the attorney of record and that he was a member of the Legislature and would be at the Capitol on February 3, 1941, the date said cause was set for trial, and prayed the court to' strike said casé from the calendar as heretofore made.
“We have examined the statement of facts and arguments filed herein and note the authorities cited in the brief of defendant. In addition to those quoted the court’s attention is invited to the case of Gilroy v. State, 64 Okla. Cr. 332, 80 P. 2d 602, the first syllabus of which is as follows:
“ ‘Under section 396, Okla. Stats. 1931, Okla. St. Ann. tit. 12, Sec. 667, a member of the Legislature is entitled to a continuance of cases in which he is attorney of record as a matter of right, during the time he is serving as a. member of the Legislature in actual session.’
“We therefore conclude that the court erred in forcing this defendant into trial under the facts and circumstances and especially in Anew of the record. It is our opinion that said court should have granted the defendant a new trial under the holding in the Gilroy case. We see nothing this court can doi except reverse this cause.
“Bespeetfully submitted,
“Mac Q. Williamson, Attorney General,
“Jess L. Pullen, Assistant Attorney General,
“Attorneys for Defendant in error.”

We have examined the record and find that the above statement is correct. This case was filed on the 30th day of August, 1940. Charles G. Ozmun Avas employed by defendant as his attorney and his fee paid. The case was set for trial on the 3rd day of February, 1941, at which time the said Charles G. Ozmun was in attendance upon the Legislature of this state, of which he Avas a member. A motion for continuance was filed for the reason above stated. There are facts in the record which might have justified the court in refusing to grant the continuance, but attached to. his motion for new trial is an affidavit by the said Charles G. Ozmun in which he states positively that he was employed by the defendant in September, 1940, and prior to the time he was. elected a member of the Legislature and paid a fee in the case. That he had been informed by the county attorney that this, case had been dismissed as per agreement. That he did not know same was set for trial until February 1, 1941, and that he immediately filed his motion for continuance. That he was representing defendant in other litigation. That on February 3, 1941, he was at Oklahoma City in attendance upon the Legislature, which was in session at that time, and was unable to be present on February 3, 1941, when the case was tried. There is no response or denial by the state of the facts set forth in this affidavit. Defendant’s case was tried without the assistance of counsel.

The statute with reference to this matter is Oklahoma Statutes 1931, section 396, O. S. A., Title 12, sec. 667, as amended by Laws 1937, page 1, sec. 1, which is as follows:

“The court may, for good cause shown, continue an action at any stage of the proceedings upon terms as may be jiist; provided, that if a party or his attorney of record is serving as a member of the Legislature or the Senate, sitting as a court of impeachment, or within thirty (30) days after an adjournment of a session of the Legislature, such fact shall constitute cause for continuance of the case, and all motions, demurrers and preliminary matters to be heard by the court, the refusal to grant which shall constitute error, and entitle such party to a new trial as a matter of right. * * *”

Under the above statement we think it was error for the court to overrule the motion for new trial filed by defendant, and for the reasons above stated, the judgment and sentence of the county court of Comanche county is reversed and remanded.

JONES and DOYLE, JJ., concur.


text:
    FRANK J. STEPHENS v. STATE.
    No. A-10186.
    Jan. 14, 1942.
    (121 P. 2d 326.)

      Loys W. Criswell, of Stroud, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Frank J. Stephens, was charged in the district court of Jackson county with the commission of the crime of bigamy, a third and subsequent felony, was tried, convicted, and sentenced to serve 21 months in the State Penitentiary, and has appealed to this court.

Only two contentions have been presented, to wit:

(1) The court erred in allowing the county attorney to1 amend the information in a matter1 of substance after the jury had been impaneled and sworn to try the cause.

(2) The punishment imposed was excessive.

The information, in so far as it relates to the crime of bigamy, the charge upon which the defendant was convicted, alleges as follows :

“That the said Frank J. Stephens, alias Frank Stevens, in Kiowa county, State of Oklahoma, and on or about the 16th day of December, 1929, marry and take to himself as a wife, one Zelpha Tomes, who* was thereafter known as Zelpha- Stephens. That on or about the 3rd day of June, 1941, the said Zelpha Stephens did file suit for divorce in the district court of Kiowa county, State of Oklahoma, in case No: 8'563. That thereafter and on or about the 3rd day of June, 1941, the said Frank J. Stephens, alias Frank Stevens, did cause to be filed in said case or divorce action, his general appearance and waiver of summons. That thereafter and on the 18th day of June, 1941, said cause came regularly on for hearing and the court judicially determined that the said Zelpha Stephens was entitled to a divorce and granted her such divorce by journal entry of decree as of that date.
“That thereafter and within six (6) months from the date of said decree of divorcement, to wit: on the 9th day of August, 1941, the said Frank J. Stephens, alias Frank Stevens, in Altus, Jackson county, Oklahoma, did then and there, wilfully, knowingly, unlawfully, big-amously and feloniously, marry and take to himself as his wife, one Susie Audine Humphrey, hereinafter known as Susie Audine Stephens, she being a single person and not having been married to or the wife of the said Frank J. Stephens, alias Frank Stevens, prior to this said time.”

Upon arraignment of the defendant, the defendant through his counsel filed a demurrer to' the information, alleging that the information failed to state an offense under the laws of Oklahoma. The demurrer was overruled with exceptions allowed the defendant, and a plea of not guilty was thereupon entered. After a jury had been impaneled and sworn to' try the case, the county attorney made his opening statement and commenced the introduction of evidence. The defendant through his counsel interposed an objection to the introduction of any evidence for and on behalf of the state for the reason that the information wholly failed to state or allege an offense, and specifically called the court's attention to the fact that the information failed to allege that at the time of the second marriage of the defendant he had a living wife. Thereupon, the county attorney asked leave to amend the information by inserting the following:

“The said Frank J. Stephens, alias Frank Stevens, then and there at the date of this second marriage having a living wife, to wit: Zelpha Stephens.”

The court thereupon, over the objection and exception of the defendant, permitted such amendment to be made; the trial proceeded, resulting in a conviction of the defendant.

It is urged by the defendant that the court erred in allowing an amendment in substance to the information after the jury was impaneled and sworn, and that the defendant having been placed in jeopardy, the cause should be reversed and ordered dismissed.

Section 2830, O. S. 1931, 22 Okla. St. Ann. § 301, is as follows:

“An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

Counsel for defendant makes no. contention in his argument or brief that the information prejudiced him in any manner or that said amendment came as a surprise, or that he needed a continuance to further prepare for trial in order to meet the allegations of the amended information, but he cites and relies upon the rule of law laid down in the cases of Bohannan v. State, 11 Okla. Cr. 69, 112 P. 1092, and Pozzini v. State, 7 Okla. Cr. 692, 126 P. 1010.

In the recent case of Herren v. State, 72 Okla. Cr. 251, 115 P. 2d 258, the apparent conflict in decisions of this court construing this statute was reviewed, and the amendment to- the information in that case was sustained.

In the case of Arms v. State, 19 Okla. Cr. 31, 292 P. 76, it is held:

“An information may be amended in matters of either form or substance when it can be done without prejudice to the rights of the accused.”

See, also-, in this connection, Ward v. State, 34 Okla. Cr. 296, 246 P. 664; Hammons v. State, 47 Okla. Cr. 297, 287 P. 1076; Little v. State, 21 Okla. Cr. 1, 201 P. 305.

This is one of those cases that probably would never have been, filed except for the bad reputation of the defendant on account of two- former1 convictions for felonies.

At the time the defendant was divorced by his wife, he was a resident of California. The wife, however, obtained the divorce in Oklahoma. The second marriage was two months later in Oklahoma. No attempt was made to keep* it a secret. There is good reason to* believe that the defendant thought that he had a right to remarry under the law at any time after the decree was granted, even though the six months’ period had not elapsed. While such a reason is- no legal excuse for the commission of a crime, it is entitled to consideration in mitigation of punishment.

We are inclined to think that the punishment imposed was excessive, and that this severe term was1 assessed the defendant solely because of his unsavory reputation.

The defendant was unable to make an appeal bond, and has been incarcerated in the State Penitentiary since October 2, 1941. While there is some merit to* defendant’s contention that the court erred in allowing the amendment to the information after the commencement of the trial, we have come to the conclusion, in view of statements made by counsel for defendant and the Attorney General at the time of the presentation of this case by oral argument, that the interests of both the state and the defendant would be better' served by overruling this contention of the defendant, affirming the case, and modifying the judgment, rather than reversing the case and ordering a new trial.

The defendant has already served four1 months in the State Penitentiary, which is a very substantial sentence in proportion to the seriousness of the crime that was committed. He apparently has no defense to this charge, and to reverse this case would require him to lose the benefit of the time that he has served in the penitentiary.

It is our opinion that the punishment imposed herein is a cruel and excessive punishment under the record in this case, and that the ends of justice will he met by modifying the sentence imposed upon the defendant from 21 months in the State Penitentiary to nine months in the State Penitentiary.

Under section 674, O. S. 1931, 12 Okla. St. Ann., § 1280, it has been made unlawful for any person who has a living- husband or wife to marry another person within six months from the date of a decree of divorcement, granted in this state, and cohabit with such husband or wife in this state during- said period.

Section 675, O. S. 1931, 12 Okla. St. Ann. § 1281, provides that the punishment shall be not less than one year nor more than three years upon conviction for said , offense.

The state did not prosecute the defendant under this statute, but elected to' prosecute him under the habitual criminal statute, section 1817 (2), O. S. 1931, 21 Okla. St. Ann. § 51. The punishment that may be imposed upon him under this statute may be any term in the penitentiary not exceeding, ten years.

The defendant was found guilty under section 1817, supra, rather than section 675, supra. We cite these statutes, as some question has been raised as to whether under the prosecution herein the punishment could be modified to less than one year in the State Penitentiary.

It is therefore ordered that the judgment of the district court of Jackson county herein be modified from a sentence of 21 months in the State Penitentiary to a sentence of nine months in the State Penitentiary, and the judgment as thus modified is affirmed.

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


text:
    O. S. STALEY v. STATE.
    No. A-9908.
    Jan. 14, 1942.
    (121 P. 2d 324.)
    Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, O. S. Staley, was charged by information, on June 26, 1939, in the county court of Beckham county with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve a term of 90 days in the county jail and to pay a fine of $200, and appeals to this court.

Counsel for defendant make two contentions in their brief:

(1) That the court erred in overruling defendant’s motion to suppress the evidence.

(2) That the evidence is insufficient to support the conviction.

Defendant urges that his motion to suppress should have been sustained for the reasons that the affidavit for search warrant states that the premises are not the private residence of defendant, when in fact they were, and since the premises were his private residence, the affidavit was insufficient without an allegation that the premises were a place of public resort or used as a place of storage, and that the search warrant is void and indefinite because it includes, property not in possession or under control of defendant.

The caption of the affidavit for search warrant is: “The State of Oklahoma v. Intoxicating Liquors”; and it is stated in the affidavit that liquors are being kept in violation of the law by defendant on “Lots 12 to 19, in Block A of the Dewaides Addition in the City of Elk City, Beckham- County, State of Oklahoma,” and further that the premises described are not the private residence of the defendant or any other person.

In the hearing upon the motion to suppress the evidence, it was shown that defendant occupied lots 13 to 19, and that lot 12, which adjoined defendant’s premises, was a vacant lot belonging to. another. Defendant stated that he had no- control over lot 12.

It is undisputed that there is; no other building or improvements on any of the property described in the search warrant other than the buildings leased by the defendant. Since lot 12 was a, vacant lot and not within the curtilage of a residence, there could be no misunderstanding from the description in the search warrant as to the property to be searched.

The fact that the search warrant contained the description of the vacant lot, which was not under actual lease to defendant, does not make it a blanket search warrant.

Testimony of defendant showed that the premises described contained a filling station, a dance hall, and a restaurant, all in the same building. Defendant and his wife had a bed in the filling station. They kept part of their clothes in the filling station and part of them in the restaurant.

This place was not a private residence, occupied as such, because of the mere fact that defendant and his wife slept in one part of it and kept their clothes in another; they were rather sleeping in a place which was public. The place where defendant slept was in the front of the filling station which was open to1 the public at all times. The defendant, in answer to a question by his counsel, said he lived at the Tower Night Club and Filling Station. The burden was upon defendant in support of his motion to suppress to show that the premises were a private residence, occupied as such, and he failed to do this.

The officer found 11 one-half pints of whisky and gin concealed in the counter of the restaurant. Defendant offered no testimony at the trial of the case.

The state showed defendant in possession of more than a half-gallon of whisky. This was sufficient to make a prima facie case, since the Legislature has provided that the possession of in excess of one quart of intoxicating liquor is prima facie evidence of an intent to violate the law. Section 2626, O. S. 1931, as amended by Session Laws of 1933, ch. 153, p. 339; 37 Okla. St. Ann. § 82. Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836.

For the reasons stated above, this case is affirmed.

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


text:
    JOHN EDMOND FORD v. STATE.
    No. A-10071.
    Jan. 17, 1942.
    (121 P. 2d 320.)
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. -Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
    A. W. Jenkins and Owen F. Renegar, both of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, John Edmond Ford, was charged in the distinct court of Oklahoma county with the crime of driving an automobile “while intoxicated and under the influence of intoxicating liquor” on the 18th day of September, 1940; was tried, convicted by a jury and punishment assessed by the court at 90 days in the state penitentiary, and he has appealed.

A motion has been filed by the Attorney General to strike the case-made for the reason that extensions of time to prepare and serve the same had expired one day prior to the time allowed by the court for the filing of the same. We have examined the record and find that the allegations of the motion are true, but we have decided to examine the record on its merits, inasmuch as the case had been briefed by defendant prior to the filing of the motion to dismiss.

The only contention of defendant for reversal of this case is that the evidence was insufficient to sustain the judgment and sentence and the proof did not show that defendant was driving a “motor vehicle.” The record reveals that Jack Bond, a motorcycle police officer of Oklahoma City, was on duty at a school crossing at 25th and South Central streets in Oklahoma City at about noon on September 18, 1940; that he was stopping cars and assisting school children to cross the street. His testimony is as follows:

“A. I had the traffic stopped north and south on Central and was helping the school children across the street on the south side where we had it marked for a cross walk and I had one car or maybe two stopped on the south side and maybe one on the north side on 25th street and I had my back to the south and I heard a commotion behind me and turned around quick and this gentleman Avas driving his car up Avithin five or six feet of me and I just turned around and he had a difficult time getting the car stopped and about two or three children had run on across the street and I started over to tliis man in the car and when I started to the car I held my hand up for him to stop and he put the car’ in gear and drove north by me and I jumped on the side of the car and he went about one-third of a block and me telling him to stop and he didn’t stop' and I grabbed the steering wheel and turned it to- the right and drove it up on the curb on the east side of the street on Central about one-third of the block from the intersection north. Q. Did you then make an investigation or examination of the defendant- at that time? A. I took the defendant out of the car and he was in a drunken condition and I sat him on the running board and called to another officer that was off duty at the time and was standing at the intersection to call me a car, that I had a drunk man. Q. Did someone come to' help you? A. He called presumably for Mr. Lackey. Q. Did you get a man out there? A. Yes, sir. Q. How did he come out? A. In a patrol car. Q. From the police department? A. Yes, sir. Q. After the officer came out in the patrol car, what did you do with the defendant? A. I placed him in the car by the side of the driver and got on my motorcycle and followed them to the police station, where we took him in and booked him. Q. Who was on the desk when you took him in? A. Bob Collins. Q. I believe you said you had been a police officer for a good many years? A. Yes, sir. Q. Do you know or can you tell when a man is drunk ? A. I believe I can. Q. You had an opportunity to observe this man, didn’t you? A. Yes, sir. Q. Was he drunk or sober? A. He was drunk. Q. What kind of an automobile was he driving,? A. A 1936 model Ford coupe. Q. Did he say anything to you! on the way down to the station or at any time? A. He did not speak a word to me from the time I first saw him until I put him in jail. Q. While he was down at the station you saw him there at the desk? A. He was in such a drunken condition that the man that booked him could not understand his name and I read it from his driver’s license. Q. That he had on his person? A. Yes. Q. Could he walk or stand up? A. He was leaning against the desk. Q. Did he pass any car in that school zone? A. He passed a car that was waiting on the south side of the intersection.”

The testimony of this officer was corroborated by Bob Collins, a lieutenant with the police department in Oklahoma City. I-Ie testified that defendant was drunk at the time he was brought before him. He stated:

“A. I asked him his name and he mumbled something’1 that was not understandable, that I didn’t understand, and he had to hold onto the booking desk and was weaving around and slobbering; he didn’t have control of himself.”

Defendant did not take the witness stand, but introduced several witnesses who' testified that they had seen him on the morning- of the 18th of September, and that, in their opinion, he was not under the influence of intoxicating liquor. The latest they had seen him was about 10 o’clock. It will be noted from the above statement of the evidence that it was amply sufficient to justify the jury in' returning a verdict of guilty against the defendant.

It is contended that the proof did not show that defendant was driving a motor vehicle. The officer testified he was driving a “1936 model Ford coupe.” As stated in the brief of the Attorney General, there have been many jokes on the Ford of early days, but this is the first time we have heard it seriously contended that they are not motor vehicles. There is nothing in the record to justify the modifying of the sentence imposed by the court in this case. The only wonder is that some school child was not seriously injured by the acts of this defendant, taking- into' consideration his condition at the time. The judgment of the district court of Oklahoma county is- affirmed.

JONES and DOYLE, JJ., concur.


text:
    BENNIE LINDSAY v. STATE.
    No. A-9911.
    Jan. 21, 1942.
    (121 P. 2d 613.)
    Frank Hickman, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Bennie Lindsay, was charg-ed with robbery, conjointly with David Gandall and Louis Bauhaus, acting in concert with Bill Shivel, by information filed in the district court of Tulsa, county on November 3, 1939, was tried, convicted and sentenced to serve a term of ten years in the State Penitentiary, and has, appealed to this court.

This case has not been briefed by counsel for defendant nor argued before this court.

The petition in error presents two assignments :

(!) Errors of law occurring during the trial.

(2) Insufficiency of the evidence.

In Capps v. State, 56 Okla. Cr. 133, 34 P. 2d 1084, it is stated:

“Where an appeal from a conviction for a felony is brought to this court and no briefs are filed and no appearance for oral argument made when the case is set for submission, this court will examine the record for jurisdictional or fundamental errors. If none appear and the evidence reasonably supports the judgment, it will be affirmed.”

An examination of the record discloses that the only question before us is whether the evidence is sufficient to sustain the conviction.

Louis Bauhaus, an admitted accomplice of defendant, stated that before October 2, 1939, the date of the alleged robbery, he had worked in a market belonging to the prosecuting witness, Mrs. A. Y. Gabriel, and had lived ivith his wife and child upon a farm belonging to' this same prosecuting witness. The defendant had roomed with Bauhaus for about two months prior to the robbery, Avhile looking for a job. On one occasion defendant asked the Avitness if Mrs. Gabriel took her money home with her at night and if it would not be a good idea to rob her.

Bauhaus further stated that he, his wife and baby, and defendant left the farm on the night of the robbery about 8 o’clock in defendant’s car. They drove into Tulsa and picked up Bill Shivel. Mrs. Bauhaus went to the Circle Theatre and made arrangements to meet the witness later. Bauhaus was in the front seat Avith defendant. They then picked up Dave Gandall and planned the robbery. Shivel and Gandall got out of the car on the Dawson Road about a half mile from Mrs. Gabriel’s home. Witness and defendant went to Admiral Place and Lewis avenue to wait until Mrs. Gabriel passed in her car. They followed her home. Bauhaus saw her struggling with a man in her driveway. He and defendant drove to Memorial Drive, where they were joined by Shivel and Gandall, who- had come in Mrs. Gabriel’s car. Shivel and Gandall had taken three $100 bills, a $20 gold piece, considerable currency, checks and other* papery from the woman. Witness was given $160 as his share of the money. Defendant received one of the $100 bills as a part of his booty. Shivel and Gandall disposed of the checks and papers they had taken by hiding them at a culvert on Twenty-First street.

Defendant and witness met Mrs. Bauhaus and went by Mrs. Gabriel’s market. One of the attendants at the market told Bauhaus that Mrs. Gabriel had been robbed.

At breakfast the next morning, witness and defendant discussed the robbery in front of Mrs. Bauhaus. Defendant stated that Mrs. Gabriel put up an awful fight. He displayed the $100 bill and said that he was afraid he would have to eat it.

That same morning they drove to the Crown Drug Store at Fifteenth and Peoria, where defendant bought some envelopes. Bauhaus gave defendant $115 to- keep for him, and they drove to Twelfth and Cheyenne. Defendant said that he would leave the money Avith a man named Phil.

The witness learned a day or so later that he was being sought for the robbery, and was arrested at Gabriel’s market on Thursday after the robbery.

Rebecca Bauhaus, wife of Louis Bauhaus, testified that on October 2, 1939, Bauhaus, Lindsay, and Bill Shivel were in the car when she went to the Circle Theatre. Her husband told her they were going to another show. Bauhaus and Lindsay came to pick her up about 11 or 11:30, and they went to Gabriel’s market. Mr. Hern, the night attendant, told her about Mrs. Gabriel being robbed. The next morning at breakfast, her1 husband and the defendant told her they had held up Mrs. Gabriel. Defendant exhibited the $100 bill. Later in the day they went, to a Grown Drug Store, where defendant bought some envelopes. Bauhaus gave him $115, which he put in an envelope. They went somewhere on Cheyenne avenue where defendant said that he would leave the money with Phil, and that his father would get it. After he had gone into a house and come back, he stated that Phil was not at home but that he left the money with Phil’s wife.

Clara Meadows, wife of Phillip Meadows, stated that defendant came to her1 house a few days after the robbery and asked for her husband, who was not at home. She did not remember an envelope or the approximate date.

Claude G. Fowler, pharmacist for the Crown Drug Store at Fifteenth and Peoria, identified defendant as having bought envelopes from him on a Wednesday or Thursday morning shortly after the 1st of October, 1939.

Mrs. Y. S. Gabriel stated that she left her grocery store on October 2, 1939, in the evening about 9 o’clock. She had three $100 bills, a $20 gold piece, considerable currency (mostly in $5 bills), some checks and other papers with her-. When she got out of her car and was opening the gate at her home, she was assaulted and robbed by two men.

A. W. Strader, another witness for the state, testified he was a police officer and that he was on duty Sunday, October 1, 1939. That he investigated the robbery of Mrs. Gabriel which took place on October 2, 1939, and that he and his assistant, John Allen, another officer, arrested Bennie Lindsay at Louis Bauhaus’ mother’s home on East Admiral, and took him to the station and searched him and found $59 or $69 on his person in currency, mostly $5 hills.

David Gandall, jointly charged with Bauhaus and Lindsay with this offense, testified for the defendant that, he had never seen either Bauhaus or defendant until he saw them in jail. He was acquainted with Shivel and lived with Shivel’s two sisters. He had a previous criminal record.

Mrs. Carrie Lindsay stated that her son, the defendant, had been in Tulsa about six weeks looking for a job. She had bought some hogs from him for a sum between $80 and $90. She did not pay him all at one time. Her last payment had been $45.

Bennie Lindsay, the defendant, testified in his own behalf that the police had taken $67 from him. This was the amount left from $8'8 his mother had paid him for his hogs. Defendant denied having ever made any statement to Bauhaus about robbing Mrs. Gabriel. He stated that on October 2nd they had not picked up Bill Shivel. After Mrs. Bauhaus got out at the Circle Thea-tre, he took Bauhaus to the Lyric Theatre and went to a used car lot on South Cincinnati avenue where he talked with a salesman named Cecil about trading his car. He did not know Gandall at that time and had never seen him until after he was arrested. After talking with the salesman, defendant drove around, went to a hamburger joint on North Denver avenue, and then met Bauhaus about 11 o’clock at a tavern called Charley’s on Third street.

Defendant denied that there was any mention made of the robbery at Gabriel’s market when they stopped there. The first he knew about it was the next morning when Bauhaus and his wife showed him an article in the paper. They were having breakfast at the home of Bauhaus’ mother. Defendant further denied buying envelopes and having any connection with the robbery.

Austin Branscum, a rebuttal witness for the state, testified that he saw defendant and Gandall together in defendant’s car on either the third or fourth of October.

The evidence in this case is amply sufficient to warrant the finding of the jury, and for that reason the judgment is affirmed.

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