text:
    JOHN SHAW v. STATE.
    No. A-1290.
    Opinion Filed September 14, 1912.
    Appeal from Woods County Court; W. M. Biekel, Judge.
    John Shaw was cinvicted of violating the prohibitory law, and appeals.
    Affirmed.
    Chase & Stevens, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM:

An opinion dismissing the appeal in this case was filed on the 15th day of June, 1912 (see 7 Okla. Cr. 743), and on rehearing it is made to appear that the case-made was amended so as to correct the defect. The dismissal is hereby set aside, and the cause re-instated. Upon a careful consideration of the record we find no errors sufficient to justify a reversal. The judgment of the trial court is therefore affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    JOHN LEISHMAN v. STATE.
    No. A-1224.
    Opinion Filed September 14, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    John Leishman was convicted of violating the prohibitory law, and appeals.
    Reversed.
    Giddings & Giddings, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM:

The plaintiff in error was convicted in the county court of Oklahoma county on a charge of selling intoxicating liquor, and on the 28th day of March, 1911, was adjudged to pay a fine of fifty dollars and be confined in the county jail for a period of thirty days. He perfected his appeal in this court in due form. The proof upon the part of the state establishes the sale. The testimony on the part of the defense flatly contradicts the prosecuting witness. The accused testified on his own behalf that he was in bed sick on the date the sale was made as contended by the state, and his physician, Dr. Kuhn, corroborated his testimony and says that the accused was in bed for two or three days prior and subsequent to the date upon which the prosecuting witness claims to have purchased the whisky. In addition, the prosecuting witness after having voluntarily filed the .complaint against the accused went to the. county attorney’s office and made a written statement to the effect that he did not purchase the whisky. The following instruction of the court is complained of as ground for reversal in view of the facts in this ease:

"You are the exclusive judges of the weight and credibility of the the witnesses in this case, and in determining what weight and credit you will give to the testimony of any witness you will take into consideration the appearance of the witness on the stand, his manner of testifying, his interest or lack of interest' in the result of this ease; his opportunity or lack of opportunity for knowing and seeing the things about which he has testified, and if you believe that any witness, has willfully testified falsely in any material matter, you may disregard the whole of such witness’ testimony unless the same is corroborated by other witnesses whom you believe have testified truthfully in such matter, or by other competent credible testimony.”

This instruction has been repeatedly condemned by this court. It. .should not be given at all, and is held to be especially harmful in a case where the facts are controverted. See Rea v. State, 3 Okla. Cr. 269, 105 Pac. 381; Manning v. State, 5 Okla. Cr. 532, 115 Pac. 612; Fletcher v. State, 2 Okla. Cr. 300. The trial courts are warned against giving such instructions. Let the judgment be reversed and the cause remanded with direction to grant a new trial.


author: PER CURIAM.

text:
    J. T. SHIVE v. STATE.
    No. A-1346.
    Opinion Filed September 14, 1912.
    Appeal from Ouster County Court; W. J. Lackey, Special Judge.
    J. T. Shive was convicted of violating the prohibitory law, and appeals.
    Reversed.
    Holcombe & Norfleet, for plaintiff in error.
    Smith C. Matson and E. Q-. Spilman, Asst. Attys. Gen., and E. J. Lindley, County Attorney, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Custer county at the July, 1911, term, on a charge of selling intoxicating liquor, and on the 1st day of August, thereafter, was adjudged to pay a fine of two hundred fifty dollars and be confined in the county jail for a period of thirty days. The information charges that the accused sold two bottles of beer to one Prank Coker on September 3, 1909, in Custer county, Oklahoma. The testimony of the witness Coker was the only evidence introduced by the state tending to establish the charge. His testimony is as follows: “Q. Tell the jury, what you did there (meaning the home of the accused). A. I got two bottles of beer there. Q. Just go ahead and tell the rest of the transaction. Tell the jury what you did. A. Dick Cole and I was together, and I asked for some beer; first we met Judge on the street, and we walked to his home, and he said he had some beer, so I got two bottles, and Dick Cole drank one, and I drank the other, and when we got them drank Dick said let’s have another, and he got two more, and after he had got them, I laid fifty cents on the table in the dining ■ room where we was all at. He' was in a hurry and said he had to ge •to the train and meet his wife and Mrs. Bowes. Q. You may state to the jury in what part of the house this all took place? A. In the dining' room. Q. "Where was the defendant when you put it on the table? A. We was all in the room there together. Q. Did he know you put the money there? A. He ought to have known it, we was all in the dining room, but I didn’t see him pick it up. I was the first one out. I think I was out to the gate before they came out of the house. The gate is there near the door. I couldn’t say that he picked it up for I didn’t see him. Q. Who delivered the beer to you? A. He taken it out of the ice box that set on the table. Q. You say the defendant took it from the ice box? A. Yes, sir, and set it on the table. I am sure he did. Q. Did you lay the fifty cents near the place where you got the beer? A. Yes, sir, right near it, I will say. Q. What was said about the beer, if you remember? A. Nothing that I remember. As well as I remember, he was in a hurry and there was not much said. Q. Where was he standing when you laid the money there? A. In the room near the table. I don’t remember just how far, but it was in the same room. Q. Tell the jury what he said. A. He said he was in a hurry, he had to meet the train as Mrs. Bowes was away, and he left.” On cross-examination, this witness testified further that he had been arrested and convicted for bootlegging; that he had an agreement with the county officers, under which he was to ‘turn up’ a lot of them, if they would let me, and he (Ed Thomas, sheriff) told me that if I would go down and bring in the proofs he would make it right with me. I was to -file all I could get. ’ ’ Dick Cole, whom the prosecuting witness claims was with him, testified on behalf of the defendant as follows: “Q. Did you, on the third day of September, 1909, or any other day, buy any beer of this defendant? A. No, sir, I wasn’t there. Q. Did Drank Coker on the third day of September, or any other time, buy any beer of this defendant in your presence? A. No, sir.” The testimony of this witness was not shaken on cross-examination. A number of witnesses testified that the reputation of the prosecuting witness, Coker, for truthfulness was bad.

The Attorney General in his brief takes the position that the conviction was improper under the record, and the testimony insufficient upon which to base a verdict of conviction, if the rule in the case of Mask v. State, 2 Okla. Cr. 85, is adhered to. The county attorney has filed an extensive supplemental brief, principally in opposition to the position assumed by the Attorney General’s office. We have carefully considered this record, and are unable to conclude that this conviction should stand. This court has never upheld a conviction based upon the uncorroborated testimony of a self-confessed criminal, who admitted in his testimony that'he was securing immunity by reason of such testimony, and when such witness is impeached for truthfulness and flatly contradicted by other witnesses whose credibility is not assailed. If this were a ease where two witnesses of equal credibility had testified, and the issues had been properly submitted to the jury, this, court would not interfere with a verdict of conviction. But no such case is presented. The county attorney in his supplemental brief has cited numerous authorities, not a single one of which is in point upon the issue here raised. The proof in this ease nowhere indicates that the prosecuting witness asked the accused to sell him beer. All the circumstances do indicate is that the parties were were merely taking a drink, if they were at the home of the accused at all. . The prosecuting witness laid down fifty cents, and does not undertake to say that the accused ever got it, or knew that he put it or was going to put it there. No act of the prosecuting witness could amount to constituting a sale by the accused. He must part with his property for consideration in order to establish a sale. If the state is to be allowed to secure convictions without .clearly establishing a sale, or proving facts from which, in law, a legitimate inference may he drawn that a sale had been made, then ho honest man would be safe from persecution by his enemies. No man would contend that if two or more persons take a drink together and one, without the knowledge or consent of the other, expressed or implied by his acts, leaves money secreted about the place or room, he could by such act cause the prosecution and conviction of the others. This case comes clearly within the rule of Mask v. State, supra, a rule that has been followed uniformly by this court. If the county attorney of Custer county will devote his time and energy to the end of securing sufficient testimony to clearly establish an offense as vigorously in other eases as he has in his brief presented this, the good citizens of his county will have no occasion to complain of the lack of proper law enforcement. The confession of error by the Attorney General is sustained, and this cause reversed and remanded.


author: PEE CURIAM:

text:
    W. J. MOON v. STATE.
    No. A-1156.
    Opinion Filed September 14, 1912.
    Appeal from District Court, Bryan County; Summers Hardy, Judge.
    W. J. Moon was convicted of adultery and appeals.
    Appeal dismissed.
    Chas. E. McPherren and Chas. P. Abbott, for plaintiff in error.
   PEE CURIAM:

The plaintiff in error was convicted of the crime of adultery and was sentenced to pay a fine of two hundred and fifty dollars. The judgment and sentence was entered on February 4, 1911. From this judgment the defendant appealed. The plaintiff in error’s attorney of record has filed a motion to dismiss said appeal. The appeal is therefore dismissed and the cause remanded to the district court of Bryan county with direction to enforce the judgment therein.


text:
    PRESS ROBERTS et al. v. STATE.
    No. A-1741.
    Opinion Filed September 14, 1912.
    Appeal from District Court, Love County; S. II. Russell, Judge.
    Press Roberts and Martin Cavins were convicted of aggravated assault, and appeal.
    Appeal dismissed.
    Brown and Brown, for plaintiffs in error.
   PER CURIAM:

Press Roberts and Martin Cavins were convicted of aggravated assault, on an information wherein they were charged with a felonious assault. The judgment and sentence was entered on fjovember 29, 1910. From which judgment the defendants appealed. Ón September 10th, by their counsel of record, plaintiffs in error filed a motion dismissing their said appeal. The appeal is therefore dismissed, and the cause remanded to the district court of Love county with direction to enforce its judgment therein.


text:
    GROVER RUSSOM v. STATE.
    No. A-1387.
    Opinion Filed September 14, 1912.
    Appeal from Love County Court; R. A. Keller, Judge.
    Grover Russom was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    B. C. Logsdon, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM:

The plaintiff in error, Grover Russom, was con-vieted in the county court of Love county on a charge of unlawfully transporting intoxicating liquor from one place to another in this state, and on the 19th day of July, 1911, was sentenced to pay a fine of three hundred dollars and be confined in the county jail for a period of sixty days. Upon a careful examination of the record in this ease no error appears sufficient to justify a reversal. The judgment of the trial court is therefore affirmed.


text:
    OTTO DISHON v. STATE.
    No. A-1136.
    Opinion Filed September 14, 1912.
    Appeal from Caddo County Court; C. Eoss Hume, Judge.
    Otto Dishon was convicted of violating the prohibitory law, and-appeals.
    Affirmed.
    Bristow & MeEadden, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Q-en., for the State.
   PER CURIAM.

Plaintiff in error was tried at the January, 1911, term of the county court of Caddo county on a charge of having unlawful possession of intoxicating liquor with intent to sell the same, and was adjudged to pay a fine of two hundred dollars and be confined in the county jail for a period of thirty days. At the trial Ben Eord was jointly charged with Dishon, and the appeal was originally perfected by both parties. Eater Ford withdrew his appeal and the ease was submitted as to Dishon. We have carefully considered the record and briefs of both parties, and are of the opinion that substantial justice requires that the judgment of the trial court be affirmed. The judgment is affirmed.


text:
    In re JOHN WILLIAMSON.
    No. A-1337.
    Opinion Filed September 19, 1912.
    Original application for writ of habeas corpus.
    Writ denied.
    Stanford & Cochran, for petitioner.
    J. W. Childers, Co. Atty., and Smith C. Matson, Asst. Atty. G-en., for the State.
   PER CURIAM.

This is a petition for a writ of habeas corpus wherein the petitioner, John Williamson, alleges that he is illegally restrained of his liberty by Claude Eoach, sheriff of Okmulgee county, for a violation of the prohibition law, and further avers that he has fully served the term of imprisonment adjudged against him, and that he is now being held in default of the payment of the fine adjudged against him. The only question presented worthy of consideration is the same as in the case of Ex rel T. C. Bowes, ante. For the reasons given in the opinion in that case the writ of habeas corpus is discharged and the petitioner is remanded to the custody of the sheriff of Okmulgee county.


text:
    RUFUS LILLIARD v. STATE.
    No. A-1229.
    Opinion Filed October 26, 1912.
    Appeal from Pottawatomie County Court; Eoss F. Loekridge, Judge.
    Eufus Lilliard was convicted of disturbing religious worship, and .appeals.
    Affirmed.
    S. P. Freeling, for plaintiff in error.
    Chas. West, Atty. Gen., for the State.
   PER CURIAM.

Eufus Lilliard was convicted in the county court of Pottawatomie county at the January, 1911, term on a charge of disturbing religious meeting in said county, and his punishment fixed at a fine of fifteen dollars. On a careful examination of the record we find no error sufficient to justify a reversal of this cause. The judgment of the trial court is therefore affirmed.


text:
    GUS BARBEE v. STATE.
    No. A-1234.
    Opinion Filed October 26, 1912.
    Appeal from Pottawatomie County Court; Boss P. Loekridge, Judge.
    Gus Barbee was convicted of conducting a gambling game, and appeals.
    Affirmed.
    Clyde Pitman and A. M. Baldwin, for plaintiff in error.
    ' Chas. West, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Gus Barbee, was convicted in the county court of Pottawatomie county oh a charge of conducting and carrying on as owner, games of poker and craps for money, cheeks .and other representations of value, and his punishment fixed at a fine of three hundred dollars and confinement in the county jail for a period 'of thirty days. We have carefully examined the record and find' no error prejudicial to the substantial rights of the plaintiff in error." The judgment of the trial court is therefore affirmed.


text:
    BUD HART v. STATE.
    No. A-1630.
    Opinion Filed November 19, 1912.
    Appeal from District Court, Latimer County; W. H. Brown, Assigned Judge. ■
    Bud Heart was convicted of grand larceny, and appeals.
    Appeal dismissed.
    Andrew & Day, for plaintiff in error.
   PER CURIAM.

Bud Heart, plaintiff in error, was convicted of grand larceny and he was duly sentenced to imprisonment in the penitentiary for a term of one year. The Attorney General on May 29th, 1912, filed the following motion:

“Comes now the State of Oklahoma, by Chas. West, Attorney General, and moves the court to dismiss the pretended appeal herein, and as grounds therefor, says: That plaintiff in error was convicted of grand larceny; that the judgment was rendered on October 10, 1911, and 90 days was given in which to prepare and serve a ease-made, 45 days from December 16, 1911; that the ease-made was served on January 31, 1912, being one day after the last extension of time had expired; that there is no certified transcript of the record. Wherefore, the Attorney General moves the court to dismiss the appear herein.”

No response has been filed to this motion. We are of opinion that the motion should be sustained. No ease-made will be considered on appeal which does not show affirmatively that it was served upon the county attorney within the time fixed for that purpose by the trial court. Billus v. State, 7 Okla. Cr. 37, 121 Pac. 790, and eases therein cited. There is not in the record any certificate of the clerk of the district court to the transcript of the record. The motion to dismiss the appeal is therefore sustained and the cause is remanded to the ' district court of Latimer county with direction to carry the judgment and sentence into execution.


text:
    R. McGOVERN v. STATE.
    No. A-1596.
    Opinion Filed November 19, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Wilson & Wilson, for plaintiff in error.

      Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for the State.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Cl J. Davenport, for the State.
   PER CURIAM.

E. McGovern was convicted in the county court for a violation of the prohibition law and was on the. 26th day of September, 1911, sentenced to be confined in the county jail for a term of three months and to pay a fine of two hundred fifty dollars. Erom this judgment an appeal was attempted to be taken by filing in this court a case-made on January 25, 1912. This is more than one hundred and twenty days from the rendition of the judgment. Eor this reason the Attorney General has filed a motion to dismiss the purported appeal, which motion is hereby sustained and the purported appeal is hereby dismissed and remanded to the county court of Oklahoma county with direction to enforce its judgment and sentence therein.


text:
    T. IRWIN v. STATE.
    No. A-1623.
    Opinion Filed November 19, 1912.
    Appeal from Major County Court; E. W. Madison, Judge.
    Jno. Y. Roberts, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for the State.
   PER CURIAM.

'T. Irwin was convicted of a violation of the prohibition law, and was on the 20th day of October, 1911, sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars. Erom this judgment an appeal was attempted to be taken by filing in this court a petition in error with case-made on February 24, 1912. This is more than one hundred and twenty days from the rendition of the judgment. Eor this reason the Attorney General has filed a motion to dismiss, which motion is hereby sustained and the purported appeal is hereby dismissed, and the case remanded to the county court of Major county, with direction to enforce its judgment and sentence therein.


text:
    MRS. LUTHER LAIL v. STATE.
    No. A-1612.
    Opinion Filed November 19, 1912.
    Appeal from Garvin County Court; W. B. M. Mitchell, Judge.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Mrs. Luther Lail was convicted of conducting a house of ill fame and was, on October 14, 1911, sentenced to pay a fine of one hundred dollars and stand committed until such fine is paid. From this judgment an appeal was attempted to be taken by filing in this court on May 29, 1912, a transcript of the proceedings had. No petition in error has been filed in this case and it is apparent that the appeal was not taken in time. This court not having-acquired jurisdiction, the appeal on the motion of the Attorney General is hereby dismissed and the cause remanded to 'the 'county court of Gar-vin county with direction to enforce its judgment and sentence therein.


text:
    ANDREW LOVELACE v. STATE.
    No. A-1727.
    Opinion Filed November 19, 1912.
    Appeal from Ellis County Court; A. L. Squire, Judge.
    Chas West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for the State.
   PER CURIAM.

Andrew Lovelace was convicted of a violation of the prohibition law. February 14, 1912, he was sentenced to serve a term of 90 days in the county jail and to pay a fine of two hundred fifty dollars. From this judgment an appeal was attempted to be taken by filing in this court May 14, 1912, petition in error with case-made. The record shows that on March 14 he was given 30 days in which to make and serve a ease-made and was given 60 days from March 14, 1912, in which to perfect his appeal to this court. The petition in error and ease-made was filed in this court 61 days from March 14, 1912. For this reason the Attorney General moves that the appeal be dismissed. Which motion is hereby sustained and the appeal dismissed, and the cause remanded to the county court of Ellis county with direction to enforce its judgment therein.


author: FURMAN, P. J.

text:
    JIM REVARD v. STATE.
    No. A-1582.
    Opinion Filed November 30, 1912.
    Appeal from Osage County Court; C. T. Bennett, Judge.
    A. W. Comstock, for appellant.
    Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

Judgment was pronounced against appellant in the county court of Osage county on the 17th day of October, 1911, for a violation of the prohibitory liquor law, and his punishment was assissed at a fine of $50 and 30 days confinement in the county jail. Under our statute, in misdemeanor eases, the appeal must be perfected by filing the transcript in this court within 60 days from the date of judgment. But the court trying the case may for good cause shown enter an order extending such time not to exceed 120 days from date of judgment. In this ease no order was made extending the time for filing the transcript of the record in this court. Such time therefore expired on the 60th day after the rendition of the judgment. But the transcript of the record was not filed in this court until the 13th day of January, 1912, which was long after the time provided by law had expired. This court therefore did not acquire jurisdiction of this cause and the attempted appeal is dismissed, with directions to the county court of Osage county to proceed with the execution of its judgment.

DOYLE, J., concurs. AEMSTEONG, J., absent, and not participating.


text:
    CHARLES HILL v. STATE.
    No. A-1514.
    Opinion Filed November 30, 1912.
    Appeal from Washington County Court; James T. Shipman, Judge.
    J. E. Charlton, for appellant.
    Smith C; Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

On the 5th day of June, 1911, judgment was rendered in the county court of Washington eoiinty against appellant for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $50 and 30 days confinement in the county jail. From this judgment appellant attempted to appeal. The transcript of the record was not filed in this court until December 4, 1911, which was 182 days after the rendition of the judgment. In misdemeanor cases the appeal must be perfected by filing a transcript 'of the record in this court within 60 days from the date of judgment, unless tie court by special order extends suel time; but in no event can this extension be for more than 120 days from the date of judgment. In this case there was no extension of time for filing the transcript in this court, and as the transcript was filed 122 days after; the time allowed by law, we did not acquire jurisdiction of the case and the appeal is therefore dismissed, with directions to the county court of Washington county to proceed with the execution of its judgment.

DOYLE, J., concurs. ABMSTBONG, J., absent, and not participating.


text:
    SWANNEY FITZGERALD v. STATE.
    No. A-1526.
    Opinion Filed November 30, 1912.
    Appeal from Garter County Court; W. P. Winfrey, Judge.
    Champion & Champion, for appellant.
    Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

On the 5th day of October, 1911, judgment was pronounced in the county court of Carter county against appellant for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $100 and 60 days confinement in the county jail, from which judgment appellant attempted to take an appeal. The time for perfecting the appeal by filing a transcript of the record in this court, beyond the 60 days allowed by law, was not extended by order of the county court. It therefore expired on the 4th day of December, 1911. But the transcript of the record was not filed in this court until the 6th day of December, 1911, which was two days after the time had expired. If an appellant can perfect an appeal two days after the time allowed by law has expired he can perfect it two years thereafter. The time for filing the transcript in this court is a limitation placed by the Legislature upon the right of appeal, and the filing of the transcript after the expiration of such time does not confer jurisdiction upon the court of such case. The appeal therefore is dismissed.

DOYLE, J., concurs. AEMSTEONG, J., absent and not participating.


text:
    G. M. STINNETT v. STATE.
    No. A-1500.
    Opinion Filed November 30, 1912.
    Appeal from Marshall County Court; J. W. Falkner, Judge.
    Eider & Hurt, for appellant.
    Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

DOYLE, J., concurs. ARMSTRONG-, J., absent, and not participating.


text:
    FRANK HINES v. STATE.
    No. A-1588.
    Opinion Filed November 30, 1912.
    Appeal from Sequoyah County Court; W. N. Littlejohn, Judge.
    E. M. Erye and R. A. Jackson, for appellant.
    Smith C. Matson and C. J. Davenport, Asst. Attys. Gen., for the State.
   FURMAN, P. J.

On the 19th day of July, 1911, judgment was rendered against appellant in the county court of Sequoyah county for a violation of the prohibitory liquor law, and his punishment was assessed at a fine of $250 and 60 days confinement in the county jail, from which judgment appellant attempted to appeal. But the appellant did not file a transcript of the record in this court until January 17, 1912. Under our statute, in misdemeanor eases, an appeal must be perfected within 60 days after date of judgment, but the court-trying the case may by special order extend such time not' exceeding 120 days from date of judgment. In this case there was no order of the county court extending the time in which the transcript -of the record might be filed in this court. Therefore to give this court jurisdiction it was necessary to file the transcript within 60 days from July 19, 1911, which would have been not later than September 17, 1911. As the transcript of the record was filed in this court 122 days after the time provided by law, this court has not acquired jurisdiction of the case and the appeal is therefore dismissed.

DOYLE, J., concurs. ARMSTRONG, J., absent, and not participating.


text:
    In re CHARLEY SMITH.
    No. A-1011.
    Opinion Filed December 7, 1912.
   PER CURIAM.

The- petitioner, Charley Smith, on February 6, 1911, filed in this court a petition signed and verified by his oath wherein he avers that he is illegally restrained of his liberty by Jack Spain, sheriff of Oklahoma county. And now on this 10th day of February, in open court,. the petitioner and respondent being present and represented by counsel, it is considered and adjudged by the court that the writ of habeas corpus be discharged, and petitioner remanded to the custody of the respondent.


text:
    In re ALVA COLSON and GUY LEE.
    No. A-1008.
    Opinion Filed December 7, 1912.
    Ralso F. Morley, for petitioner.
   PER CURIAM.

On February 3, 1911, there was filed in this court a petition for writ of habeas corpus wherein petitioners alleged that they were illegally restrained of their liberty by Wm. McCullough, sheriff of Tulsa county. The application for the writ was denied. On Mareh 23, 1911, petitioners by their counsel of record moved to dismiss their application. At the May, 1911, term the cause was dismissed, at petitioners’ costs.


text:
    Ex parte HERBERT CRIDER.
    No. A-805.
    Opinion Filed December 7, 1912.
    Application for writ of habeas corpus to be let to bail.
    Application denied December 7, 1912.


text:
    JULIUS STUMPF v. STATE.
    No. A-1343.
    Opinion Filed December 14, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Pruitt & Sniggs, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Julius Stumpf, plaintiff in error, was convicted in the county court of Oklahoma county on a charge of having possession of intoxicating liquor with the unlawful intent to sell the same. On the 23rd day of May, 1911, he was adjudged to be confined in the county jail for a term of six months and to pay a fine of five hundred dollars. Prom this judgment he appealed. Prom a careful examination of the record we are convinced that the appeal in this ease .is destitute of merit and it would serve no useful purpose to review the assignments. The judgment of the county court of Oklahoma county is therefore affirmed and the cause remanded thereto with direction to enforce its judgment and sentence therein.


text:
    JULIUS STUMPF v. STATE.
    No. A-1344.
    Opinion Filed December 14, 1912.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    Pruitt & Sniggs, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Julius Stumpf, plaintiff in error, was convicted in the county court of Oklahoma county on an- information which charged that he did commit the crime of selling intoxicating liquor. May 23, 1911, he was sentenced to be confined in the county jail for a term of six months and to pay a fine of five hundred dollars. Prom the. judgment the defendant appealed. We have carefully examined the record and find no error prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is therefore affirmed.


text:
    W. B. STAFFORD et al. v. STATE.
    No. A-1447.
    Opinion Filed December 14, 1912.
    Appeal from Canadian County Court; W.’ A. Maurer, Judge.
    W. B. Stafford and Pred Mittnacht were convicted of a violation of the prohibition law, and appeal.
    Affirmed.
    Phelps & Cope, for plaintiffs in error.
    Chas. West, Atty. Gen., Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiffs in error were convicted of having possession of intoxicating liquors with the unlawful intent to sell the same. August 26, 1911, they were sentenced each to be confined in the county jail for a period of 30 days and'to pay a fine of two hundred dollars. The proof on the part of the prosecution shows that the Sullivan hotel at El Eeno was searched under warrant on March 8, 1911, by a constable and two police officers of the city, and there was found large quantities of intoxicating liquors, and fixtures used in connection with the sale of the same. The defendants, W. B. Stafford and Pred Mittnacht were sitting in front of the hotel when the officers arrived. The evidence further shows that Stafford was the lessee. There was proof of the payment by the defendant' Mittnacht of the special tax required of retail liquor dealers by the United States. There was also proof of the sale of intoxicating liquors at the place. There was no evidence offered on the part of the defendants. Upon a careful examination of the record we find no error sufficient to justify a reversal of the convictions. The judgments of the county court of Canadian county are therefore affirmed.


text:
    H. A. WHITE v. STATE.
    No. A-1427.
    Opinion Filed December 14, 1912.
    Appeal from Superior Court, Grady Oounty; Will Linn, Judge.
    Thos J. O’Neill, for plaintiff in error.
    Chas. West, Atty. Gen., and John II. Venable, Co. At-ty., for the State.
   PER CURIAM.

H. A. White, the plaintiff in error, was convicted in the superior court of Grady county of a violation of the prohibition law, and sentenced to serve a term of 30 days in the county jail and to pay a fine of fifty dollars. The judgment and sentence was entered on the 6th- day of May, 1911. Erom this judgment an appeal was attempted to be taken by filing in this court on September 16, 1910, a petition in error with ease-made. The Attorney General has filed a motion to dismiss the appeal for want of jurisdiction. In view of the fact that more than one hundred and twenty days elapsed from the rendition of the judgment before the petition in error was filed in this court, we are without jurisdiction to entertain the appeal, and the motion to dismiss the appeal must be sustained. The purported appeal is therefore dismissed and the superior court of Grady county is directed to proceed with the execution of its judgment.


text:
    BILLY JERNIGAN v. STATE.
    No. A-1284.
    Opinion Filed December 14, 1912.
    Appeal from Superior Court, Logan County; S. S. Lawrence, Judge.
    McGuire & Smith, for plaintiff in error.
   PER CURIAM.

Billy Jernigan, the plaintiff in error, was at the April, 1911, term of the superior court of Logan county convicted of the crime of selling to one J. J. Oliver one pint of beer, and was on May 27, 1911, sentenced to be confined in the county jail for the term of thirty days and to pay a fine of fifty dollars and costs. Erom this judgment an appeal was taken. Plaintiff in error alleges that he could not and did not have a fair and impartial trial for the reason that the court erred in forcing him to be tried before a prejudiced and disqualified jury, the majority of whom had by their verdict in the case of State v. Selstrom heard the same evidence as adduced in this case as to the purported sale of the beer to the prosecuting witness. The proof on the part of the prosecution made out a clear case of the sale of the beer as charged. There was no evidence offered on the part of the defendant. Under this evidence the jury could not do otherwise than convict. The judgment of the court below is affirmed.


text:
    DR. A. E. DAVENPORT v. OLDFIELD, Judge, et al.
    No. A-1417.
    Opinion Filed December 14, 1912.
    O. W. Stringer, for plaintiff in error.
    A. T. Boys in Pro Per, and J. S. Estes, for defendants in error.
   PER CURIAM.

This proceeding was instituted to obtain a writ of prohibition against the defendant, the superior court of Oklahoma eounty, and Edward D. Oldfield, judge of said court, and A. T. Boys, a® receiver in cause No. 1395 in said court. When the application was presented the writ was denied. Time given the counsel to file brief. Por a failure to prosecute, the cause is hereby dismissed.


text:
    T. C. BOWES v. STATE.
    No. A-1367.
    Opinion Filed December 14, 1912.
    Appeal from Ouster County Court; J. C. McKnight, Judge.
    Webster & Lackey, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and E. G. Spilman, Asst. Atty. Gen., for the State.
   PER CURIAM.

T C. Bowes, plaintiff in error, was .convicted in the county court of Custer county on an information filed in said court on September 18, 1910, which charged the unlawful sale of one quart of beer to one P. S. Brooks. November 19, 1910, the defendant was arraigned and entered a plea of not guilty and released on bond. On July 13, 1911, the ease was tried to a juiy which found the defendant guilty, fixing his punishment at imprisonment for 120 days in the county-jail and to pay a fine of two hundred seventy-five dollars.

Motion for new trial was filed and overruled. On July 17, 1911, judgment was entered in accordance with the verdict.

It is now contended that: “The court erred in not setting aside the verdict and then dismissing the case on the motion for a new trial, for the reason that the defendant had not been brought to trial at the next term of the court after the informaion was filed.” The question presented has been directly passed upon by this court in the case of T. C. Bowes v. State, 7 Okla. Cr. 316, where it is said:

“In the absence of a proper record affirmatively showing the contrary, the presumption is that the court had continued the case for a presumably lawful cause. The burden was on the defendant, in support of his motion to dismiss, to show that the laches was on the part of the state through its prosecuting officers, otherwise the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand a trial or resist the continuance of the case from term to term. A defendant who has never demanded or been refused trial is not entitled to a discharge under the constitutional provision, article 2, see. 20, and the statutory provision, section 6498; Comp. Laws 1909.”

Binding no prejudicial error in the record the judgment is affirmed.


text:
    JOHN BOYDSTUN v. STATE.
    No. A-1513.
    Opinion Filed December 14, 1912.
    Appeal from Bryan County Court; J. L. Bappolee, Judge.
    MePherren & Abbott, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Bryan county of the offense of having whisky in his possession with intent of violating the prohibition law. On August 16, 1911, he was sentenced to be imprisoned in the county jail for a period of 100 days and to pay a fine of five hundred dollars. Prom this judgment he appealed by filing in this court December 14, 1911, a petition in error with case-made attached. The Attorney General has filed a motion to dismiss the appeal for the reason that the plaintiff in error is a fugitive from justice from the state of Oklahoma and that his present residence is unknown. Which motion is supported by several affidavits. No response has been made to said motion. In the case of Tyler v. State, 3 Okla. Cr. 179, 104 Pac. 919, it was held that this court will not consider an appeal unless the plaintiff in error is where he can be made to respond to any judgment or order which' may be rendered in the ease, and where he makes his escape from the custody of the law and is at large, as a fugitive from justice the .court will on motion dismiss the appeal. The motion of the Attorney General is sustained and the appeal is hereby dismissed with direction to the county court to enforce its judgment and sentence therein.


author: PURMAN, P. J.

text:
    OTIS SHIPMAN v. STATE.
    No. A-1492.
    Opinion Filed December 31, 1912.
    Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.
    Jos. L. Hull, Asst. Atty. Gen., for the State.
   PURMAN, P. J.

On the 7th day of May, 1910, judgment was rendered against the appellant in the district court of Sequoyah county, wherein he was sentenced to the penitentiary for a term of one year for the -crime of robbery. Prom this judgment appellant attempted to prosecute an appeal, but the transcript of the record was not filed in this court until the 24th day of November, 1911. Under our statute an appeal in a felony case must be perfected by filing transcript of the record within six months from the time of the rendition of the judgment. As the time for filing a transcript of the record in this court had expired, this court did not acquire jurisdiction of the appeal. Said pretended appeal is therefore dismissed with directions to the district court of Sequoyah county to enforce its judgment.

ARMSTRONG and DOYLE, JJ., concur.


text:
    G. A. JOHNSTON v. STATE.
    No. A-1057 and No. A-1245.
    Opinion Filed January 7, 1913.
    Appeals from Coal County Court; R. H. Wells, Judge.
    Jahn & Gibson, for plaintiff in error.
    Smith 0. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

G. A. Johnston was convicted of a violation of the prohibition law and was on the 26th day of January, 1911, sentenced to be confined for a -period of 30 days in the county jail and to pay a fine of fifty dollars. In the second case, on a conviction for a similar offense he was on the 11th day of May, 1911, sentenced to be confined for a period of 30 days in the county jail and pay a fine of fifty dollars. Prom these judgments appeals were perfected. The assignments of error on the appeals are without merit. The judgments of the county court of Coal county are therefore affirmed and the causes remanded thereto with direction to enforce the judgments therein.


text:
    CHAS. A. JOHNSON v. STATE.
    No. A-1487.
    Opinion Filed January 13, 1913.
    Appeal from Washita County Court; L. R. Shean, Judge.
    Chas. A. Johnson was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Jones & Bashore, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM:

The plaintiff in error, Chas. A. Johnson, was convicted in the county court of Washita county at the July, 1911, term, on a charge of unlawfully conveying intoxicating liquors, and his- punishment fixed at a fine of fifty dollars and imprisonment in tie county jail fox a period of 30 days. Upon a careful examination of tie record we find no error sufficiently prejudicial to justify a reversal of tiis cause. See Rupart v. State, 7 Okla. Cr. 201; and Maynes v. State, 6 Okla. Cr. 487. Tie judgment of tie trial court is affirmed.


text:
    JAMES HERBERT v. STATE.
    No. A-1494.
    Opinion Filed January 13, 1913.
    Appeal from Canadian County Court; W. A. Maurer, Judge.
    James Herbert was convicted of violating tie prohibitory law, and appeals.
    Affirmed.
    E. T. Barbour, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for tie State.
   PER CURIAM.

The plaintiff in error, James Herbert, was tried and convicted in tie county court of Canadian county on a charge of selling intoxicating liquor, and was on tie 2nd day of September, 1911, sentenced to pay a.-fine of two hundred dollars and serve 30 days in the county jail. Upon a careful examination of tie record and tie briefs on both sides in this case we are of tie opinion that tie judgment should be affirmed. The only question urged is tie insufficiency of tie evidence. We cannot say as a matter of law that the verdict is contrary to tie evidence. Tie judgment of tie trial court is therefore affirmed.


text:
    OTTO BAUER v. STATE.
    No. A-1503.
    Opinion Filed January 13, 1913.
    Appeal from Washita County Court; L. E. Siean, Judge.
    Otto Bauer was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    G. W. Cornell, for plaintiff in error.
    Smith C. Matson and Jos. B. Hull, Asst. Attys. Gen., for tie State. Gen., for tie State.
   PER CURIAM.

The plaintiff in error, Otto Bauer, was tried and eonvicted at tie July, 1911, term of the county court of Washita county, on a charge of having the unlawful possession of intoxicating liquors with intent to sell the same, and his punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for a period of 180 days. We have carefully examined the record and find no errors prejudicial to the substantial rights of the plaintiff in error. The judgment of the trial court is therefore affirmed.


text:
    O. J. TRUESDELL v. STATE.
    No. A-1520.
    Opinion Filed January 13, 1913.
    Appeal from Pottawatomie County Court; Boss P. Loekridge, Judge.
    O. J. Truesdell was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    T. G. Cutlip, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, O. J. Truesdell, was tried and convicted at the October, 1911, term of the county court of Pottawatomie county, on a charge of having the unlawful possession bf intoxicating liquor with intent to sell the same, and his punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for a period of 30 days. We have carefully examined the record in this case and find that the judgment of the trial court is .correct and should be affirmed, and it is so ordered.


text:
    WILLIAM REED v. STATE.
    No. A-1528.
    Opinion Filed January 13, 1913.
    Appeal from Canadian County Court; W. A. Maurer, Judge.

    William Reed was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Harry K. Allen, for plaintiff in error.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiff in error, 'William Reed, was tried and convicted in the county court of Canadian county on a charge of selling intoxicating liquor, and on the 10th day of November, 1911, adjudged to pay a fine of five hundred dollars and be confined in the county jail for a period of six months. Upon a careful consideration Of the record in this case we find no error sufficient to justify a reversal. The judgment of the trial court is therefore affirmed.


text:
    THEODORE GATES v. STATE.
    No. A-1535.
    Opinion Filed January 13, 1913.
    Appeal from Stephens County Court; W. H. Admire, Judge.
    Theodore Gates was convicted of violating the prohibitory law, and appeals.
    Affirmed.
    Wilkinson P. Morris, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Theodore Gates, was convicted in the county court of Stephens county, at the October, 1911, term, on a charge of having in his possission intoxicating liquors for the purpose of sale, and his punishment fixed by the jury at a fine of fifty dollars and imprisonment in the county jail for a period of 30 days. Upon a careful examination of the record we find no error sufficient to justify a reversal. The judgment of the trial court is therefore affirmed.


text:
    OTIS TITTLE v. STATE.
    No. A-1536.
    Opinion Filed January 13, 1913.
    Appeal from Craig County Court; S. P. Parks, Judge.
    Otis Tittle was convicted of violating the' prohibitory law, and appeals.
    Affirmed.
    James S. Davenport, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., (J. S. Estes, of Counsel), for the State.
   PER CURIAM.

Otis Tittle, the plaintiff in error, was tried and convicted in the county court of Craig county on a charge of maintaining a place for the illegal sale of intoxicating liquors, and on the 14th day of October, 1911, was adjudged to pay a fine of one hundred dollars and be imprisoned in the county jail for a period of 30 days. Upon careful examination of the record, finding no error sufficient t» justify a reversal, the judgment of the trial court is affirmed.


text:
    BILL GREEN v. STATE.
    No. A-1527.
    Opinion Filed January 18, 1913.
    Appeal from Stephens County Court; W. H. Admire, Judge.
    Bill Green was convicted of a violation of the prohibitory law, and appeals.
    Reversed.

      Wilkinson & Morris, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson and E. G. Spilman, Asst.' Attys. Gen., for the State.
   PER CURIAM.

Bill Green, the plaintiff in error, was convicted and sentenced to he confined for 30 days in the county jail and to pay a fine of fifty dollars, on an information which charged that he "did then and there sell to one Silas Gibson two one-half pints of whisky, contrary to,” etc. The verdict was signed by five of the .-jurors. Of the assignments of error it is only necessary to consider the one, that "the verdict of the jury was contrary to the evidence.” The complaining witness, Amos York, testified that he was in a hack with Silas and Cub Gibson and John York; that they were driving from Marlow to Duncan on the evening of August 13th to attend the county fair. The transcript is then as follows:

"Q. Just turn around there and tell the jury what happened when you met Green? A. We was coming down this way and met Bill Green about four miles north of here, and Silas called him out and asked him if he had anything, he said yes; we drove the buggy up close to his and stopped and Silas handed him some money and he got np and raised the cushion up and put his hand under his knee. Q. What brand of whisky was it he bought? A. I think is was Sunny Brook. Q. Now, you are sure it was pints are you? A. No, it was half pints. Q. How must did you say he paid for it? A. $2.00. Q. Paid $2.00 for two half pints of Sunny Brook whisky? A. No, it was four half pints. Q. Did you drink? A. I drank a little that day. Q. How much did you take that day before you met Mr. Green? A. I didn’t take any, much. Q. About how much? A. I don’t know how much? Q. Tell me how many drinks you had before you left Marlow? A. I think I had just about one. Q. Of what? A. Whisky.”

Silas Gibson testified that when they met the defendant Amos' York was acting pretty drunk; that Green did not sell him any whisky', nor did he pay Green any money. Oub Gibson testified that he was in the hack but he did not see Silas Gibson buy any whisky from Mr. Green; that he saw Amos-York take two or-three drinks before they met Green. The defendant testified on his own behalf that he met the Indians about sundown and they were all drinking; and had been fighting, that Silas Gibson was the soberest one of the bunch; that he did -not sell Silas Gibson, any whisky nor did Silas Gibson give him any money. It is earnestly insisted that the evidence is manifestly insufficient to sustain the verdict, and that the 'court erred in overruling the motion for a new trial for this reason. The right of the defendant to move for a new trial for the reason that the verdict is contrary to the evidence is provided by section 6896, Procedure Criminal:

"A court in which a trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only * * * 8th. When the verdict is contrary to law or evidence.”

Considering the fact that the only witness for the state admitted that he had been drinking whisky and his contradictory statements, at one time saying that the defendant was alone and at another time that his son was with him, and making different statements as to the number of half pints that were sold, and considering that the other witnesses present all testified in direct contradiction to the statements of the prosecuting witness, and testified that he was drunk at the time they met the defendant, we do not believe that the complaining witness was worthy of credence. While the cases are very rare in which this court interferes to disturb the judgment of the trial court, and it is only in a case when the verdict is clearly contrary to the evidence, or when from the doubtful character of the evidence against the defendant and the preponderance in his favor is such that it is evidence that the jury were influenced by passion or prejudice, that a new trial will be granted. We think that this cause falls within the rule laid down by these eases and that a new trial should be granted. The judgment is therefore reversed.


text:
    J. D. WELCH, Jr., v. STATE.
    No. A-1458.
    Opinion Filed Janary 25, 1912.
    Appeal from Okfuskee County Court; W. A. Huser, Judge.
    J. D. Welch, Jr., was convicted of a violation of the prohibition law, and appeals.
    Affirmed.
    Huddleston & Hoekensmith, for plaintiff in error.
    Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PEE CURIAM:

Plaintiff in error was convicted in the county court of Okfuskee county on an information which charged that he did have in his possession intoxicating liquors with intent to violate provisions of the prohibition law. September 8, 1911, he was sentenced to pay a fine of fifty dollars and to be confined in the county jail for 30 days. An appeal was properly perfected. It is our opinion that the ' assignments of error are without merit. The testimony of the officers show that they found intoxicating liquors in the possession of the defendant in his pool hall at the town of Boley. There was evidence also of the payment of the special tax required by liauor dealers of the United States. No reversible error appearing, the judgment of the trial court is affirmed.


text:
    In re E. BIFFLE.
    No. A-239.
   The application for write of habeas corpus denied orally January-25, 1913.


text:
    G. A. JOHNSTON v. STATE.
    No. A-1350.
    Opinion Filed January 25, 1913.
    Appeal from Coal County Court; E. H. Wells, Judge.
    Jahn & Gibson, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

G. A. Johnston was convicted of a -violation of the prohibition law and was on the 13th day of July, 1911, sentenced to pay a fine of two hundred fifty dollars and to be confined for ninety days in the county jail. An appeal was properly perfected. The assignments of error are without merit. The judgment is therefore af-fiirmed.


author: FURMAN, J.

text:
    GREEN SMITH v. STATE.
    No. A-1315.
    Opinion Filed February 1, 1913.
    Appeal from District Court, Wagoner County; E. C. Allen, Judge.
    Brown & Stewart, for appellant.
    Smith C. Matson and E. G. Spilman, Asst. Attys. Gen., for the State.
    Appellant was convicted in the district court of Wagoner county of the offense of grand larceny, and his punishment was assessed at fiye years confinement in the penitentiary, and appeals.
    Affirmed.
   FURMAN, J.

Prom an inspection of this record we are of the opinion that the appeal was taken for delay only. The state’s evidence is direct and positive as to the guilt of appellant. Neither appellant nor his co-defendant testified. The evidence introduced by appellant did not make out a defense. The credibility of the state’s witnesses is a question for the jury alone. There is nothing in this record to indicate that the jury were influenced by improper motives in arriving at their verdict. We think all the evidence introduced, under the previous rulings of this court, was competent, and that the trial was regular. See Holmes v. State, 6 Okla. Cr. 541, andBurns v. State, decided at the present term. The judgment of the lower court is therefore affirmed.

ARMSTRONG, P. J., and DOYLE, J., concur.


text:
    A. WIETELMAN v. STATE.
    No. A-1715.
    Opinion Filed February 1, 1913.
    Appeal from Oklahoma County Court; John W. Hayson, Judge.
    A Wietelman was convicted of unlawfully selling beer, and appeals.
    Affirmed.
    Edyvard A. Wagoner, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, A. Wietelman, was convicted in the county court of Oklahoma county on a charge of unlawfully selling intoxicating liquor. John Douglas and O. P. Hull as -witnesses for the state testified that they lived in Oklahoma City and were engaged in the postal service, that on the day named in the information they went to the defendant’s place of business, 318 South Robiu-son, Oklahoma City, and ordered a lunch, and bought from the defendant two bottles of Pabst beer, for which they paid twenty-five cents a bottle. Proof of the payment by the defendant of the special tax of twenty-five dollars, required of retail liquor dealers by the United States, for the period commencing July, 1911, locating 318 South Robinson, Oklahoma City, was also made. There was no evidence offered on the part of the defendant. The jury returned a verdict of guilty and assessed the punishment at imprisonment in the county jail for six months and to pay a fine of five hundred dollars. On January 22, 1912, the court rendered judgment in accordance" with the verdict. Defendant appealed by filing in this court on April 29, 1912, his petition in error with case-made. An examination of the record discloses that this appeal is destitute of merit. The judgment is therefore affirmed.


text:
    SAM HOGAN et al. v. STATE.
    No. A-1567.
    Opinion Filed February 1, 1913.
    Appeal from Garfield County Court; Winfield Scott, Judge.
    Sam Hogan and Walt Cook were convicted of selling intoxicating liquor, and appeal.
    Affirmed.
   PER CURIAM.

Plaintiffs in error were jointly charged, and upon their trial, convicted of unlawfully selling intoxicating liquor. John P. Burford and H. L. Reynolds as witnesses for the state -testified substantially as follows: That they were detectives employed by a detective agency in Oklahoma City, that on the day named in the information they went into the defendant’s pool hall in Enid, and after playing two or three games of pool and paying for the same, Burford asked the defendant Cook if they could get something to drink, and he said “yes,” and opened a door and led them down a stairway into a room containing gambling devices and a bar, and they walked up to the bar and the defendant Hogan asked them wnat they would have and1 Burford said a couple of bottles of beer and Hogan handed them a couple1 of bottles of Budweiser beer, that he paid fifty cents for it and they drank it. Proof of the payment of the special tax required of liquor-dealers by the United States was also made. There was no evidence offered on the part of the defendants. The jury returned a verdict of guilty. .October 7, 1911, judgment was rendered, sentencing each defendant to six months imprisonment in the county jail and that they each pay a fine of three hundred dollars. The defendants appealed by filing in this court on January 5, 1912, their petition in error and case-made.' An examination of the reeord discloses that the assignments of error-are destitute of merit. -The judgment of the county court of Garfield county is therefore affirmed. Mandate to issue forthwith.


text:
    In re LEWIS REMILLARD.
    No. A-1906.
    Opinion Filed February 22, 1913.
    Application for write of habeas corpus.
    Dismissed.
    C. B.. Leedy, for petitioner.
    Chas. West, Atty. Gen., contra.
   PER CURIAM.

The petitioner, Lewis Bemillard, filed a petition for -the writ of habeas corpus in this court on the 15th day of February, 1913, on the ground that he was unlawfully restrained of his liberty by the sheriff of Ellis county. On the 17th day of February, 1913, the petitioner filed a motion asking this court to dismiss his petition for the writ of habeas corpus. The motion is sustained, and the petition dismissed.


author: BAREFOOT, P. J.

text:
    HORACE B. HANCOCK v. STATE.
    No. A-10372.
    Feb. 7, 1945.
    (156 P. 2d 155.)

      R. Place Montgomery, of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen;, J. Walker Field, Asst. Atty. Gen., and David L. Field and Gerald Watts, ,Co. Atty., both of Hobart, for defendant in error.
   BAREFOOT, P. J.

Defendant, Horace B. Hancock, was charged in the county court of Kiowa county with the crime of driving an automobile upon .the public highway while under the influence of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $250, and has appealed.

For reversal of this case, it is contended:

“1. The information in this case is demurrable.
“2. The state’s evidence was illegally obtained and the defendant illegally arrested, and it was error to admit evidence relating thereto.
“3. The evidence is insufficient to sustain the conviction.
“4. The punishment assessed is excessive.”

As to the first assignment of error, it may be stated that defendant was charged with the violation of 47 O. S. 1941 § 93, which is as folloAVS:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is an habitual user of veronal, barbital, nembutal, sodium-amatal, or other barbitrate, or barbituric acid preparations, chloralhydrate, bromidia, benzedrine, or amphetamine preparations, or narcotic drugs, to operate or drive a motor vehicle on any highway Avithin this State, as defined in Section 1, of this Act (Sec. 91 of this Title) and any person violating the provisions of this Section shall be deemed guilty of a misdemeanor for the first offense and upon conviction therefor shall be punished by imprisonment in the county jail for a period of time not to exceed one (1) year, or by a fine of not more than Five Hundred ($500.00) Dollars or by both such fine and imprisonment. Any person found guilty of a second offense under the provisions of this Act shall be deemed guilty of a felony and upon conviction thereof shall be punished by imprisonment in the State Penitentiary for a period of time not to exceed two (2) years or a fine of not more than One Thousand ($1,000.00) Hollars or by both such fine and imprisonment.”

The charging part of the information was as follows:

“. . . he the said Horace B. Hancock then and there being, did then and there unlawfully, wilfully, wrongfully and intentionally drive, operate, and propel a certain motor vehicle, being a 1941 Chevrolet Five-passenger coupe, 1941 Oklahoma Tag No. 20-1866, upon and over the Hobart City Route of State Highway No. 9, from a point unknown in Kiowa County, Oklahoma, to a point on said State High-Avay No. 9, at approximately one mile east of the city of Hobart, Kiowa County, Oklahoma, while he, the said Horace B. Hancock, was under the influence of intoxicating liquor, ...”

It is contended that the information is “both duplicitous and insufficient to state the offense sought to be charged.”

The contention that it is duplicitous is that it may charge the crime of reckless driving as well as driving Avhile under the influence of intoxicating liquor.

A careful reading of the information is the best answer to this contention. There is nothing therein which charges the defendant with driving a motor vehicle in a careless or reckless manner, or with the violation of any other rule of the road. It only charges one offense, that of “driving an automobile upon a public highway while under the influence of intoxicating liquor.” It is neither duplicitous nor does it fail to state an offense under the statute above quoted.

The second and third assignments of error may be considered together, and necessitate a short review of the evidence.

On the afternoon of January 21, 1941, defendant had driven in his automobile from his home in the city of Hobart, Kiowa county, to the country, and was returning home on State Highway No. 9, east of Hobart. While driving west, upon said highway, he met a car traveling-east. Immediately behind this car, and traveling in the same direction, was a state patrol car, containing Patrol Officers Archie L. Bird and E. N. Haynes. Defendant’s wife and R. B. Crigger, a farmer, were riding with him. As the cars were meeting, the officers in the patrol car noticed that defendant was driving to the south of the center line of the highway, and that he forced the car in front of them to swerve to the right to avoid a collision. They also had to swerve the patrol car to> keep from being-struck by defendant’s car. They immediately stopped, turned around and followed the car of defendant. After going- about a quarter of a mile, they sounded the siren and stopped defendant. Upon reaching his car, they observed that defendant was drunk, or under the influence of intoxicating liquor. After some words, in which defendant demanded to know why he was being arrested, he was taken from his car and placed in the patrol car, and one of the officers drove his car. Immediately upon defendant being taken from his car, the officers placed handcuffs upon him. He was taken in to Hobart, and placed in the custody of the sheriff of Kiowa county. Both of the patrol officers testified that defendant was drunk and under the influence of intoxicating liquor. Their evidence on this point was as follows:

Archie L. Bird:
“A. No, I walked up first to tlxe left side of the car and talked to the defendant. He spoke to me, and I asked him his name, and found out he was drunk, and opened the door and asked him to get out. He didn’t do it, would-n’t do it. Finally I got hold of his arm and got him out, and he still was objecting to getting in the patrol car, and I took out the handciiffs and put them on him, and my partner, Ed. Haynes, took him back to the patrol car and brought him to jail, and I drove his car. Q. That is, you brought his car and other occupants on in to town? A. Yes, sir. Q. Did you talk to the defendant after he was brought into the jail? A. Yes, we had a little conversation, not much. Q. Approximately how long were you with him after you brought him in to the jail? A. After1 he was in jail? Q. Yes. A. Oh, approximately 15 or 20 minutes. Q. And what was his condition at that time? Was it any different than it was in the automobile? A. No, he was still drunk.”
And Officer E. N. Haynes:
“Q. What was his condition at that time? A. He was in a drunken condition; smelled strong of alcohol and could not walk without assistance from his vehicle to the patrol car. Q. Did you give him that assistance, or did Mr. Bird? A. I gave him the assistance.”
Others who testified as to his condition immediately following his arrest wrere W. P. Dugan, Sheriff of Kiowa county, who testified as follows:
“Q. What was his condition at the time you first saw him and talked with him, with reference to being intoxicated? A. Well, he was drinking. Q. Would you say that he was under the influence of intoxicating liquor? A. Yes, I believe I would. Q. To such a degree as to impair his ability to conduct himself? A. Well, he would walk all right. Q. Was his talk impaired? Did he follow a line of thought? A. He wasn’t talking very much.”
Deputy Sheriff J. M. White:
“Q. State to this jury his condition at that time with reference to being — whether or not he was under the influence of intoxicating liquor? A. He was. Q. In what degree, John? (An objection is overruled) A. Oh Pony was pretty drunk.”
Constable Tom Overstreet:
“Q. How long did you stay there, would you say? A. I was there probably 30 minutes. Q. What would you say with reference to the defendant’s condition at that time with reference to being intoxicated. A. At that time his speech was just a little broken was about all. His tongue seemed to be just a little thick where he couldn’t handle his speech like he should. Q. Was he sitting in a chair at the time you were there? A. He was sitting in a chair on the east end of the office.”

Deputy Sheriff Mitch Hill did not see the defendant until he had been in jail for approximately five hours. He testified:

“Q. 'What would you say with reference to his condition at that time? A. He seemed to me like he was all right then. Q. Could you state whether or not you smelled intoxicating liquor upon his person? A. I smelled his breath, yes.”

Defendant testified that he was not under the influence of intoxicating liquor at the time, but with reference to drinking during the afternoon, he said:

“Q. Had you had a drink that day? A. Yes, sir. Q. Where did you take a drink, and under what circumstances? Tell the jury. A. We had walked over this mountain, up one canyon and down another one and back up, and I fell and hurt my leg. When we got back to the car — I have a crippled leg, and I have medicine to take all the time for it, and I took two of these pills and used the whisky to wash them down with. Q. You had the whisky there with you? A. Yes, sir. Q. * * * Was you drunk at all, or under the influence of intoxicating liquor? A. I was not drunk.”

Defendant testified that he took the two pills which lie washed down with the whisky, about two hours prior to his arrest.

He also testified to having served two years as deputy sheriff of Kiowa county some years previous to his arrest.

Dr. B. H. Watkins, defendant’s physician, testified with reference to the defendant being under his care, and that the taking of the two pills described, two hours previous to his arrest, would have a tendency to make him groggy, without the whisky.

Mr. Crigger, wrho was with the defendant during the afternoon, testified that in his opinion defendant was not under the influence of intoxicating liquor, and Mr. Bay Lyde testified that he had passed defendant’s automobile just prior to his arrest, and that he was driving in a careful manner and he could not observe that he was under the influence of liquor.

It is contended by the defendant that under the above statement of facts his arrest was illegal, and evidence with reference thereto1 was inadmissible.

This contention is based upon the fact that the patrol officers did not have a warrant for defendant’s arrest at the time he was stopped upon the public highway, and that a crime was not committed in their presence which justified his arrest.

To support this contention certain cases are cited in which this court has held that officers cannot stop an automobile upon the public highway under suspicion and search the same for intoxicating liquor.

It may be definitely stated that the facts in those cases are not identical with the facts in the instant case. Here the officers saw the car of defendant being driven in a manner that was clearly a violation of the rules of the road as provided by the statutes of this state. 69 O. S. 1941 § 583. This was being done to such an extent that it caused them to stop their car, turn around and pursue the car of defendant. Of course they did not know at that time that defendant ivas drunk or under the influence of liquor. It was only after they apprehended him that they made this discovery. If they had found that he was not under the influence of intoxicating liquor, they might have cautioned him, without arrest, although they would have had the right under the law to arrest him for a violation of the rules of the road, as prescribed by the statute.

For this court to hold that under the circumstances as revealed by the record in this case, the officers did not have the right to stop an automobile upon the public highway for the purpose of caution, or arrest, for a violation of the law, without first having a search warrant, or a warrant of arrest, would nullify the law and make the enforcement thereof a farce. To so hold would mean that one in an intoxicated condition driving an automobile in a manner dangerous and hazardous to the safety and lives of the general public, could not be stopped until in all probability he had committed irreparable damage to persons or property. The law above quoted was enacted for the protection of the lives and property of those who travel upon the public highways. Officers are elected and appointed to enforce the law. It is their sworn and solemn duty to execute the same in such manner as will not deprive citizens of those rights guaranteed them by the Constitution and laws. The presumption is that they will act in a cautious and careful manner to the end that the rights of the citizens will be protected; and for this court to hold that an officer did not have the right to stop a citizen for a violation of the law upon the public highway without having in his possession a warrant of arrest at the time, would in our opinion make a nullity of the law, and greatly endanger the lives and safety of the citizens of this state.

Defendant strenuously complains about the officers placing handcuffs upon him at the time of his arrest. It may have been that the officers were not justified in taking this action, but the manner of handling one who has been arrested is for the consideration of the arresting officer, subject to the pains and penalties of the law for his willful violation thereof.

It is provided by the statutes of this state that an officer has the right to arrest for a misdemeanor without the necessity of a warrant, where the offense is committed in his presence. 22 O. S. 1941 § 196. In construing this statute, we have often held that the officer has the right to approach a car upon the public highway or in a public place and if he observes a violation of the law, he has the right to arrest without the necessity of a warrant. The reason for this holding may be seen in the following cases: Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Hoppes v. State, 70 Okla. Cr. 179, 105 P. 2d 433; Coburn v. State, 70 Okla. Cr. 329, 106 P. 2d 533; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Hutson v. State, 72 Okla. Cr. 61, 112 P. 2d 1109; Hammonds v. State, 73 Okla. Cr. 287, 120 P. 2d 376; Hutchinson v. State, 74 Okla. Cr. 30, 122 P. 2d 395; Brown v. State, 74 Okla. Cr. 246, 125 P. 2d 234; Saffa v. State, 75 Okla. Cr. 19, 128 P. 2d 241; Wirth v. State, 79 Okla. Cr. 59, 151 P. 2d 819.

No constitutional or statutory right of the defendant was violated, and the court did not err in permitting the introduction of evidence giving the facts as above outlined.

It is contended that the judgment and sentence in this case is excessive. The statute which accused is charged with violating, provides that the first offense shall constitute a misdemeanor, and the punishment shall be “by imprisonment in the county jail for a period of time not to exceed one (1) year, or by a fine of not more than Five Hundred ($500.00) Dollars or by both such fine and imprisonment.” The punishment assessed in this case was a fine of $250. It may be that this fine would be considered large, under the circumstances of this case, but when it is considered that the jury did not inflict a jail sentence, which it had a right to do, under the statute, and that no error appears in the record, and that the defendant had a fair and impartial trial, we cannot hold that justice demands a modification of the sentence imposed by the jury and the court.

The Legislature evidently enacted this law Avith the strong desire that those who were under the influence of intoxicating liquor should be prohibited from driving motor vehicles upon the highways of this state, and in the terms of punishment, a wide latitude is given, so that one may receive the punishment which the facts and circumstances of his particular case justify. The jury of the county Avhere the crime is committed, after hearing all the facts and circumstances, is in a better position to assess this punishment than is an appellate court. It is only when this punishment is so excessive that the court may be of the opinion that it Avas brought about through passion or prejudice as revealed by the record of each individual case, or by reason of error committed in the trial of the case, that the court may come to the conclusion that justice demands a modification of the judgment and sentence that it Avill be modified. We do not find the facts in the instant case to come within this rule.

For the reasons above stated, the judgment and sentence of the county court of Kiowa county is affirmed.

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


author: BAEEFOOT, P. J.

text:
    Application of JOHN O. STORY.
    No. A-10544.
    Feb. 14, 1945.
    (156 P. 2d 154.)
    John O. Story, in pro. per.
    Eandell S. Cobb, Atty. Gen., for respondent.
   BAEEFOOT, P. J.

The petitioner, John O. Story, was convicted in Bryan county for the murder of his wife, and was sentenced to serve a life term in the penitentiary. .From such judgment and sentence he appealed to this court, and on December 17, 1941, the judgment and sentence was affirmed. Story v. State, 73 Okla. Cr. 273, 120 P. 2d 387. A full statement of the facts in connection Avith his case may be found in that case.

On October 7, 1942, petitioner, who was at that time confined in the State Penitentiary, filed in this court a petition for writ of habeas corpus, and on December 12, 1942 (75 Okla. Cr. 367, 131 P. 2d 773), such petition was denied. On July 6, .1944, he filed this application, which he denominates an “application for writ of mandamus.” To this application, petitioner has attached affidavits, letters and statements from various parties, and in his petition has reviewed the testimony taken at the trial of his case, all of which was passed upon in the appeal to this court.

To his application for mandamus, the Attorney General has filed a demurrer.

It is clear that we cannot, on a petition for mandamus, petition for “review,” or by habeas corpus, assume jurisdiction to again review the merits of this case. This can only be done upon appeal. The court will only give relief when the judgment and sentence was void, or the court was without jurisdiction to render the judgment and sentence. Ex parte Wright, 78 Okla. Cr. 157, 145 P. 2d 772; Ex parte Frazier, 78 Okla. Cr. 230, 146 P. 2d 849; Ex parte Mayberry, 78 Okla. Cr. 366, 148 P. 2d 785; Ex parte Davis, 78 Okla. Cr. 444, 150 P. 2d 367; In re Maynard, 79 Okla. Cr. 215, 153 P. 2d 5050.

This petitioner is now confined in the State Penitentiary. We have been careful to guard every right which he had under the Constitution and laws of this state. As stated in many decisions, the power of clemency is vested in the Governor of this state. Barrett v. State, 75 Okla. Cr. 414, 132 P. 2d 657.

With, the present law pertaining to the Pardon and Parole Board, opportunity is afforded petitioner for a review of his case, and for such action as the board deems advisable, under tlie facts and circumstances. There is nothing in the application that would justify this court, under the law, in granting an application for writ of mandamus, or other relief.

The application for writ of mandamus is therefore denied.

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


author: JONES, J.

text:
    HENRY COOK SALISBURY v. STATE.
    No. A-10341.
    Feb. 14, 1945.
    (156 P. 2d 149.)

      Robert Burns, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

An information was filed in the district court of Oklahoma county, on January 21, 1942, charging the defendant, Henry Cook Salisbury, alias Henry Williams, with the crime of robbery with firearms after former conviction of a felony. The defendant was tried, convicted, and sentenced to serve ten years in the State Penitentiary, and has appealed.

The proof of the state showed that the defendant and his brother, T. W. Salisbury, went to a room in the Bilt-more Hotel in Oklahoma City, about 1:30 a. m., October 1, 1941. They had previously made arrangements to meet three other men at this room for the purpose of having a poker game. After defendant and his brother entered the room, they each pulled an automatic pistol, held up and robbed the three men with whom they were supposed to play the poker, taking $290 and a diamond ring valued at $300 from one man, $137 from another man, and $37 from the third. The three men who were robbed were gagged and their hands and feet were tightly taped with adhesive tape. They released themselves in a few minutes after the defendant and his brother had fled and notified the manager of the hotel and the policemen of what had occurred.

T. W. Salisbury was arrested at his home two days later, but the defendant was not arrested until the night of October 16th, in Houston, Tex., after a chase by officers of the Houston Police Department. The policemen of Oklahoma City had obtained information that the defendant was in Houston and they sent a warrant for his arrest to the Houston officers. When the officers started chasing the defendant, he commenced driving about 70 miles an hour and it was only after he had crashed into a post going at that speed that the officers were able to overtake him. In the center of the street where the defendant’s car crashed into the post, the officers found an automatic pistol similar to the one used by defendant in the alleged robbery. The gun was loaded.

On behalf of the defendant, it was contended that the defendant had known the McKelvey brothers, who were allegedly robbed, for several months. That he had met them in a gambling house in Missouri. That the McKelveys carried insurance against robbery and it was agreed between the defendant and the McKelveys that the defendant would stage a fake holdup of the McKelveys, that the McKelveys would make application to the insurance company for payment of a fictitious loss which they had sustained, and that the money obtained from the insurance company would be divided among the parties to the frame-up. The defendant admitted that he and his brother taped the three men in the hotel and did everything that should have been done to give it the appearance of a real hold-up, so that the McKelveys would be able to secure payment of their insurance. That Lloyd McKelvey gave him $100 while he was in the hotel room with them. That he did not take any money from any of the parties, and that all of them were laughing and in a good humor while they were being tied. The defendant denied that he had any pistol at any time.

As a part of the state’s case, counsel for defendant stipulated that defendant had been convicted in Oklahoma City of the crime of grand larceny in 1934, as alleged in the information. In addition to this conviction, the defendant admitted in cross-examination that he had been convicted of felonious assault in Kansas City, Mo., and had been convicted of grand larceny in Texas.

It is first insisted that the information is fatally defective and insufficient to confer jurisdiction on the court. No demurrer or attack on the information was ever made and this assignment of error was not presented in the motion for new trial nor in the petition in error attacked to the case-made filed in this court. Under such circumstances, the alleged error ivould be considered waived. The only exception would be where the information wholly fails to state any facts which would constitute a public offense amounting to a felony, so as to confer jurisdiction on a district court to try the accused.

In justice to the attorney who has briefed the case on behalf of the defendant in this court, it should be stated that he was not the attorney who represented the defendant at his trial nor did he make the record on the motion for new trial nor prepare the petition in error filed in this court.

We have examined the information. It is regular in every way and in conformity with the holdings of this court sustaining the validity of informations filed in robbery cases. The information is styled “Robbery with fire arms after former conviction of felony.” The allegation with reference to the robbery is sufficiently clear and distinct so as to comply with all the essentials necessary in alleging a violation of the statute. 21 O. S. 1941 § 801.

It is in connection with the allegation of the second offense that the argument of the defendant is based. This part of the information has all of the essential allegations in it necessary to show a prior conviction. It does have one misstatement, however, in which it states: “and the said offense of robbery with fire arms being punishable by imprisonment in the State Penitentiary for a term not less than 15 years.” Under the statute, 21 O. S. 1941 § 801, supra, the punishment for robbery with firearms may be as low as five years in the State Penitentiary.

In tlie case of Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389, 390, it is stated:

“Habitual criminal statute, Penal Code, Art. 6, Sections 1817 and 1818, O. S. 1931, 21 Okla. St. Ann. §§ 51 and 52, does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. ‘Habitual criminality’ is a state and not a crime.”

It is true as argued by counsel for defendant that there is no such crime as that of being “a habitual criminal.” However, after alleging the violation of the robbery with firearms statute, the information in the instant case alleges the fact of a prior conviction for a felony, by reason of which fact, the jury might, if they find the defendant guilty of the crime of robbery and further find that he had formerly been convicted of a felony, more severely penalize the accused than they would have been authorized to have done if he had not sustained the former conviction.

In the case of Ex parte Burnett, 78 Okla. Cr. 147, 145 P. 2d 441, it is stated:

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

It is further contended that the defendant was denied a fair trial by reason of the inflammatory and prejudicial argument of the assistant county attorney. AÍ1 of the argument of the assistant county attorney is included in the record. The argument complained of is directed to the statement of the prosecutor wherein he referred to the various names under which the accused had been arrested in many other places and of his conviction at those places. However, this argument was legitimate as the defendant on cross-examination admitted without any objection being interposed by his counsel that he had gone under an alias at other places and admitted the convictions as stated in the foregoing part of this opinion. The prosecutor is entitled to mate an argument based upon his reasonable deductions from the bad record of former convictions admittedly sustained by the defendant.

It is next contended that the court erred in permitting the introduction of the minutes of the court proceeding in the district court of Oklahoma county to show the prior conviction of the defendant on the charge of grand larceny.

At the time this instrument was identified and offered in evidence, the deputy court clerk of Oklahoma county was on the witness stand. The information charging the defendant with the crime of grand larceny, which was the basis for the allegation of the prior conviction in the information, liad been identified and introduced in evidence. The minutes showing the conviction of the defendant were then identified and offered in evidence to which counsel for defendant stated at the time that they were offered, ‘No objection.’1' Counsel for the state then proceeded to further show the proof of the prior conviction and identifying the defendant as being the person named in the information in the former case when counsel for defendant interrupted to state:

“Mr. James: If the court please, in order to facilitate matters, if it is a-matter of proof of his prior conviction, I will admit the judgment and sentence and admit the prior conviction. The Court: And you admit the identity of 'parties? Mr, James: Yes. The Court: He being the same as Henry Williams. Mr. James: Yes.”

With these admissions in the record, counsel cannot now assert that there is no proof to show a former conviction of the defendant.

Lastly, it is contended that the evidence is insufficient to sustain the conviction. We are impressed with some of the argument presented by counsel for defendant, especially that part which argues that the defendant under the evidence of the state was friendly to the persons who allegedly had been robbed. That he was unmasked at the time of the alleged robbery, coupled with the fact that the persons Avho were robbed did apply for and were paid insurance money to reimburse them for most of their alleged loss. However, even though we might have been impressed with this testimony of the defendant, if we had been on the jury, yet, the testimony of the state was wholly contradictory to that of the defendant, and if believed by the jury, showed a clear case of robbery. Under such a state of the record, it is not within the province of this court to interfere with the finding of the jury. Only the minimum term of 10 years’ imprisonment was assessed. The crime of robbery with firearms is punishable by death or by imprisonment in the State Penitentiary for any period of time not less than 5 years. 21 O. S. 1941 § 801, supra. When this statute is considered in connection with the habitual criminal statute, 21 O. S. 1941 §§ 51 and 52, it is seen that the minimum punishment that the jury could assess in the instant case was a term of ten years in the State Penitentiary, and they were so advised by the court in its instructions.

There were no exceptions saved to any of the instructions given by the court, and, after a careful consideration of the entire record, we have found no fundamental error which would require a reversal of the judgment of conviction.

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

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


text:
    ERNEST GATHER WALKER v. STATE.
    No. A-10364.
    Feb. 14, 1945.
    (156 P. 2d 143.)
    E. P. Hughes and Clayton Carder, both of Hobart, for plaintiff in error.
    Randell S. Cobb, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Gerald Watts, Co. Atty., of Hobart, for defendant in error.
   BAREFOOT, P. J.

Defendant, Ernest Gather Walker, was charged in the county court of Kiowa county with tbe crime of driving a motor vebicle while under the influence of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $150 and the costs, and has appealed.

Defendant presents two assignments of error:

“I. The court committed prejudicial error in admitting in evidence the unsworn declaration of Dr. J. L. Adams.
“IT. The court abused its discretion in overruling the application of the defendant for a continuance.”

From the view we take of this case, it is only necessary to consider the first assignment of error.

The record reveals that the defendant, upon being-arrested by the officers, was taken to the county jail. When he reached there, he requested that a physician be called to examine him and Dr. J. L. Adams, the county physician, was called. This physician had died prior to the date of the trial.

Patrol officer Archie L. Bird testified as follows:

“Q. Was the defendant examined in your presence by the Doctor? A. Yes, sir. Q. At whose request was that examination made? A. I don’t remember now at whose request it was. Q. What doctor was that? A. It was Doctor Adams, the one that has died recently. Q. After the examination by the 'Doctor, were you present when he stated what was wrong with him, if anything? (Upon objection by defendant, question is withdrawn.) Q. Was the defendant present wdien the Doctor announced his verdict after the examination? A. Yes, sir, he was in the room. Q. What was the — what did the Doctor say after the examination? Counsel for Defendant: Object to as not the best evidence. The Court: Overruled. Counsel for defendant: Exception. A. Well, the Doctor stated that he was drunk. Counsel for Defendant: Objected to as incompetent, irrelevant and immaterial as to what the Doctor said, as being hearsay. The Court: Overruled. Defendant: Exception. Q. That statement was made in the defendant’s presence? A. Yes, sir.”

Sheriff W. P. Dugan testified:

“Q. Was his conversation coherent? A. Well, he talked quite a bit, said he wasn’t drunk, and demanded a doctor. That is, he requested one. Q. Was the defendant present when the doctor stated the result of his examination? A. He was. Q. What did the Doctor state? Counsel for Defendant: To which we object for the reason that the evidence is hearsay and in violation of the constitutional rights of the defendant. The Court: Overruled. Defendant: Exception. A. The Doctor said — I asked the Doctor what about it. Counsel for Defendant: Who asked the Doctor? A. I asked the Doctor about it. Counsel for Defendant: Objected to as incompetent irrelevant and immaterial. The Court: Overruled. Counsel for Defendant : Exception. A. The Doctor said, Hell, he was drunk as far as he was concerned. Counsel for Defendant: Press, didn’t he say this — didn’t Doctor Adams say that if a fellow had had a bottle of beer he was drunk so far as he was concerned? A. No. I don’t remember him saying that. Q. You say that Ernest asked for a Doctor, but didn’t ask for this particular one? A. Just insisted that we get a doctor. Q. But this doctor was the county doctor? A. Yes, he was the county doctor. Counsel for Defendant: Comes now the defendant and moves the court to strike all the evidence as to the statement of Dr. J. L. Adams for the reason that the same is incompetent, irrelevant and immaterial, and in violation of the constitutional rights of the defendant to be confronted in the courtroom by the witnesses used against him, and that by indirection the testimony of this witness had been given to the jury because of statements he is alleged to have made. The Court: Overruled. Defendant: Exception.’”

To support the contention that this evidence was inadmissible, counsel for the defendant cites in his brief the case of Saunders v. State, 33 Okla. Cr. 336, 244 P. 55, and calls attention to the cases therein cited. We have examined this case, and the other cases from this court, and find that the contention of the defendant has been sustained in a number of cases.

In the Saunders Case, supra, the court said:

“It is further urged that the trial court erred in admitting testimony of accusations made by an officer to the defendant after his arrest, which he did not answer. It is well settled that an accused in custody has a right to remain silent, and this silence may not be used as evidence against him as a tacit admission of guilt. An accused does not have to deny an accusation made to him or contradict a statement made in his presence, and in such case the statement or accusation and his silence are not admissible against him. Ellis v. State, 8 Okla. Cr. 522, 128 P. 1095, 43 L. R. A., N. S., 811; Vaughan v. State, 7 Okla. Cr. 685, 127 P, 264, 42 L. R. A., N. S., 889; Towery v. State, 13 Okla. Cr. 216, 163 P. 331, L. R. A., 1917D, 491; Ellington v. State, 24 Okla. Cr. 67, 215 P. 964; Patton v. State, 29 Okla. Cr. 66, 232 P. 454; Mackey v. State, 30 Okla. Cr. 31, 234 P. 782.”

See, also, Yep v. United States, 10 Cir., 83 F. 2d 41.

The evidence in the instant case, as to whether or not defendant was under the influence of intoxicating liquor at the time of his arrest, is about equiponderant. Three witnesses testified that the defendant was under the influence of intoxicating liquor, and three witnesses testified that he was not.

The Attorney General, in his brief on behalf of the state, contends that by reason of the fact that the defendant himself had the doctor called, he would be bound by the statements made by the doctor, and could not raise the question of the inadmissibility of this evidence. We do not think this contention can be sustained. The statement quoted to have been made by the doctor, who was deceased at the time of the trial, may have been the deciding factor in causing the jury to find this defendant guilty, and we are of the opinion that this testimony was inadmissible, in view of the authorities aboye cited. No authority is cited by the state to sustain its contention.

It is unnecessary to discuss the other error complained of in this case.

For the reasons aboye stated, the judgment and sentence of the county court of Kiowa county is reversed and remanded.

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