text:
    JOHN SATTERFIELD v. STATE.
    No. A-4884.
    Opinion Filed Aug. 18, 1925.
    (238 Pac. 868.)
    J. N. Fortner, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below.

From a conviction in the county court on a charge of assault and battery, the defendant has appealed. The evidence of the state sustains the allegations of the information. The defense is an alibi. The principal error complained of is the admission of incompetent evidence. The record discloses the following state of facts. Just before the conclusion of the trial, during the noon recess, while walking down the steps from the court-house, in the absence of the defendant, Hugh D. Fox, an attorney, who had volunteered his services, and who was sitting in the case, said to and in the presence of R. C. Blocker, J. Will Jones, and J. A. Andrews:

“I framed the defense in this case, and it is air tight.”

Upon the reconvening of court, the county attorney called each of these witnesses, Blocker, Jones, and Andrews, and over the objection of the defendant, represented by Mr. Fortner, evidence of the statement of Fox was introduced in evidence. At this time the case was closely contested and it was uncertain whether the jury would believe the testimony offered by the witnesses for the state or the alibi offered by the defendant. It is the contention of the defendant that this evidence was wholly incompetent and highly prejudicial and turned the scales against the defendant. The state admits that the case presented was close on the evidence. We are unable to tell from the record whether or not the statement by Fox was intended as a joke or was seriously made in a bragging spirit. Fox testified that it was jokingly made. In any event it was a reprehensible statement. The natural conclusion to be drawn by the jury from this evidence was that the testimony offered on behalf of the defendant was false and inspired by counsel for defendant to deceive the jury and to defeat justice.

That this evidence was incompetent is beyond question, and was obviously prejudicial. Certainly a statement made by a third person, not in the presence of the defendant, and not shown to have been either expressly or impliedly authorized by the defendant, is not admissible against him, even though the person making the statement was acting in the capacity of an attorney. 16 C. J. 639.

In the Case of Cecil v. Territory, 16 Okla. 197, 82 P. 654, 8 Ann. Cas. 457, wherein the father of the defendant, charged with rape, negotiated with the parents of the girl for a settlement or compromise, the court admitted in evidence the acts of the father. The Supreme Court reversed the case, holding that, unless there was evidence to connect the defendant with the father’s negotiations, such evidence was incompetent. This case is reaffirmed and additional authorities cited in the case of Bruner v. U. S., 1 Okla. Cr. 205, 96 P. 597. Where incompetent evidence is admitted against the defendant which is reasonably calculated to háve influenced the verdict of the jury, such error is not harmless and constitutes reversible error.

The case is reversed and remanded.

BESSEY, P. J., absent, not participating.

DOYTiE, J., concurs.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    F. D. McPHETRIDGE et al. v. STATE.
    No. A-5426.
    Opinion Filed Aug. 24, 1925.
    (238 Pac. 865.)
    See, also, 30 Okla. Cr. 41, 234 P. 785.

      Champion, Champion & George, for plaintiff, in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error F. D. McPhetridge was convicted of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. From the judgment he appealed by filing in this court, January 7,1925, a petition in error with case-made.

. The Attorney General has filed a motion to dismiss the appeal as to plaintiff in error McPhetridge on the ground that he a fugitive from justice, which motion is supported by the affidavit of E. C. London, sheriff of Carter county, in part as follows :

“At the same term of court and on the 9th day of October, 1923, F. D. McPhetridge was tried and convicted in another case wherein he was charged with a violation of the liquor laws. This second case resulted in a conviction, and the defendant was given a fine of $500 and a jail sentence of 6 months, from which judgment he failed to lodge his appeal within the time allowed by law. That on the 14th day of April, 1925, he was committed to the county jail of Carter county to serve the sentence of the court imposed in this second case, and was sent to the road camp on being committed, and thereafter, on the 24th day of June, 1925, escaped from the guard in charge, and is now and has been since said 24th day of June, 1925, a fugitive from justice.’’

The uniform holding of this court is that, where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless the defendant is where he can be made to respond to any judgment or order which may be entered and rendered in the case; and, where the defendant makes his escape from the custody of the law, and becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss his appeal. Young v. State, 16 Okla. Cr. 116, 180 P. 872; McKellop v. State, 18 Okla. Cr. 326, 194 P. 457.

The motion to dismiss was filed August 3, 1925, and no response or answer thereto on behalf of this plaintiff in error has been filed. ,

Upon the uncontroverted facts this plaintiff in error has waived his right to have his appeal in this court considered and determined, and the appeal is therefore dismissed, and the cause remanded to the county court of Carter county.

BESSEY, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    WALTER HODGES et al. v. ASA E. WALDEN.
    No. A-5771.
    Opinion Filed Aug. 25, 1925.
    (238 Pac. 1118.)
    Champion, Champion & George, for petitioners.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   PER CURIAM.

Application for alternative writ of mandamus filed this 25th day of August, 1925. Cause dismissed, on motion of the petitioner, on the same day.


author: EDWARDS, J.

text:
    AARON COKLEY v. STATE.
    No. A-4982.
    Opinion Filed May 23, 1925.
    Rehearing Denied Aug. 25, 1925.
    (240 Pac. 660.)

      Ben Smith, for plaintiff in error.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Blaine county in September, 1923, on a charge of selling whisky to a minor. He was convicted and sentenced to pay a fine of $100 and to serve 60 days in the county jail. His appeal was filed in this court in January, 1924. No briefs have been filed. We have examined the record, and no error is apparent. The evidence was conclusive, the instructions fair, and no exceptions taken during the course of the trial to the ruling of the court nor the instructions.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    Ex parte HOMER ROBERTS.
    No. A-5763.
    Opinion Filed Aug. 26, 1925.
    (238 Pac. 867.)

      A. H. Meyer, for petitioner.
    The Attorney General, and Chas. Hill Johns, Asst. Atty. Gen., Allan Falkenstine, Co. Atty., and J. P. Wishard, Asst. Co. Atty., for respondent.
   DOYLE, J.

This is a petition for writ of habeas corpus, filed in this court August 21, 1925, whereby Homer Roberts seeks to obtain his discharge from the Blaine county jail on the ground that he is unlawfully restrained of his liberty by H. J. Law, sheriff of Blaine county.

It is averred that his illegal confinement and detention consists in this, to wit: That a commitment was illegally issued by W. F. Duncan, judge of the county court of Blaine county, upon a preliminary examination had upon a complaint wherein petitioner was charged with the crime of robbery by the use of firearms of the State Bank of Greenfield, and that, under the evidence introduced on said examination, petitioner was entitled to have been discharged from custody for the reason that said evidence was insufficient to show probable cause of believing petitioner to be guilty of the crime charged, which it is alleged will more fully appear from the transcript of the testimony taken upon said examination, and that said commitment as issued by said committing magistrate was without authority of law, and the same is therefore null and void. It is further shown that the district judge of the judicial district of Blaine county is absent from the state. Wherefore petitioner prays that a writ of habeas corpus be granted and that he be discharged from custody, and further prays that if the court should be of the opinion that the evidence is sufficient to hold petitioner upon the charge of robbery by firearms, he be admitted to bail, fixed at a reasonable amount, for the reason that the proof of guilt is not evident nor the presumption thereof great.

It is well settled that the courts exercise a supervising jurisdiction over the proceedings of a committing magistrate by means of habeas corpus and inquire into the legality of a commitment, and the question of probable cause, before an information is filed in the district court. Ex parte Turner, 3 Okla. Cr. 168, 104 P. 1071; Ex parte Beville, 6 Okla. Cr. 145, 117 P. 725; Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142; Ex parte Miller et al., 29 Okla. Cr. 301, 233 P. 775.

On a preliminary examination it is not necessary that the evidence on which the accused is held to answer be sufficient to support a conviction. Under the statute (section 2497, Comp. Stats. 1921) it is enough if it be shown that the offense was committed and that there is sufficient cause for believing the defendant gúilty thereof.

Upon careful consideration of the evidence taken on the preliminary examination, we think it is sufficient to warrant the holding of petitioner for trial. Therefore the application for his discharge on the writ is denied. Upon the record before us there can be no doubt that petitioner is entitled to be admitted to bail as a matter of legal right.

Wherefore it is adjudged and ordered that petitioner be admitted to bail in the sum of $5,000, bond to be conditioned as by law provided, and upon approval of the same by the judge of the county court of Blaine county, the respondent, sheriff, shall discharge said petitioner from custody.

EDWARDS, J., concurs.


text:
    ROBERT SIMMONS v. STATE.
    No. A-5043.
    Opinion Filed Aug. 26, 1925.
    (238 Pac. 871.)
    G. L. Bynum and W. C. Hall, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the superior court of Okmulgee county on a charge of unlawful possession of intoxicating liquor, the plaintiff in error, hereinafter referred to as defendant, has appealed, assigning as error, first, that the court admitted incompetent evidence; second, misconduct of the trial judge. The record discloses that a search of the premises of the defendant was made by the sheriff of Okmulgee county and others, and there was found two quarts of Scotch whisky, half gallon of corn whisky, half gallon of wine, and a quart of gin, numerous jugs smelling of whisky, and a quantity of empty bottles.

Upon the first assignment, the defendant contends that the court permitted incompetent evidence of the reputation of the premises of the defendant. The evidence of reputation is competent, and, while the witnesses who testified on this point did not show themselves very well acquainted with the reputation of the premises, yet, since the qualification of a witness as a general rule is for the determination of the trial court, and since the objection goes more to the weight than to the admissibility of the evidence, we think this assignment does not present reversible error. Prendergast v. Sate, 31 Okla. Cr. 8, 236 P. 903, and authorities cited therein.

The next contention is that the judge in the course of the trial made statements indicating his opinion of the guilt of the defendant, and abused his discretion when he examined witnesses. The record discloses that in the course of the trial the court conducted a rather lengthy and vigorous examination of one of the principal witnesses for the state, and upon the defendant’s counsel objecting and requesting a record, the court said:

“The reporter will make record of everything this court does. The court has no desire to infringe on the attorneys. The court has only one desire, he wants to see justice done between the state and the defendant in this case, and the court is not going to permit any technicalities to defeat the cause of justice between the state and the defendant. I want to know what the witness knows. I am only asking him questions which the Criminal Court of Appeals have held are competent. In this case we are going to get at the truth.”

Further, on the examination of other witnesses, the court said:

“Get somebody that knows something in this case. Surely there were plenty of witnesses that might be obtained.”

And again said:

“All right, has the defendant anything? Is there anybody that lives down there — I could have got some witnesses.”

These statements, in the presence of the jury by the learned trial judge, taken in connection with the examination conducted by the court, tended to indicate to the jury that, in the opinion of the court, witnesses against the defendant could have been had, and that the defendant by objecting was endeavoring to prevent the development of the truth. However worthy the motive of the court was it must have had some effect upon the jury. A judge presiding at a trial occupies a high and authoritative position before the jury. He has it in his power by words or action, or both, to materially influence their verdict, and while it is proper for a trial judge to interrogate a witness for the purpose of making clear any point which may be obscure, yet he cannot conduct a lengthy examination which would tend to indicate his opinions, even though particular questions taken alone might not have that effect. Wilson v. Territory, 9 Okla. 331, 60 P. 112; Hicks v. United States, 2 Okla. Cr. 626, 103 P. 873; Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; Harrison v. State, 11 Okla. Cr. 14, 141 P. 236; Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689; Shepherd v. State, 17 Okla. Cr. 631, 192 P. 238; Viadock v. State, 30 Okla. Cr. 374, 236 P. 56; Westfall v. State, 30 Okla. Cr. 115, 235 P. 270.

For the reason that the case may be again tried, we refrain from any comment on the evidence. The case is reversed and remanded.

BESSEY, P. absent, not participating.

DOYLE, J., concurs.


text:
    STEVE PERETTO v. STATE.
    No. A-5045.
    Opinion Filed Aug. 26, 1925.
    (238 Pac. 870.)

      G. L. Bynum and W. C. Hall, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe,. Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction upon a charge of having possession of intoxicating liquor with intent to sell, the plaintiff in error, hereinafter referred to as defendant, has appealed. He was charged with having possession of 16 gallons of “choc” beer and 1% gallons of wine and two-thirds of a quart of whisky. The evidence on the part of the state sustained the allegation, which was denied by the defendant, who testified that he had only 5 or 6 gallons of “choc” beer and no wine or whisky.

Complaint is made by defendant: First, that the evidence is not sufficient; second, that the court erred in its instructions to the jury; and, third, the court erred in admitting the evidence of the reputation of the defendant’s residence where the liquors were found. Upon the first assignment, it is contended that there is no substantial proof that the so-called choc beer contained as much as one-half of 1 per cent, of alcohol, measured by volume. This contention is correct, there is no substantial proof on this point, and if the case rested on the proof on that subject, it would necessarily be reversed. The court does not take judicial knowledge that choc beer is intoxicating, but its intoxicating character must be proven. Rambo v. State, 31 Okla. Cr. 214, 238 P. 869; Crawford v. State, 5 Okla. Cr. 33, 113 P. 200; Cunningham v. State, 18 Okla. Cr. 706, 192 P. 1104.

The state, however, did offer evidence of the seizing of a gallon and a half or a gallon and three quarts of wine. Wine is a vinous liquor expressly designated within the terms of section 6999, Comp. St. 1921, as amended by chapter 123, Session Laws, Special Session 1924, and as such its possession with intent to sell is a violation of law. It is true the defendant denies having possession of any wine, and upon that point there is a direct conflict of the evidence, but since the jury saw and observed the witnesses it is for them to determine who they will believe or disbelieve. In the absence of any unusual circumstances, their verdict will not be disturbed on questions of fact.

Complaint is made of various instructions given by the court. These instructions are not set out in the brief, as required by the rules of court, but we have examined them and find no such error as calls for a reversal.

It is also urged that proof of reputation of the place was not confined to the place of residence where the liquors were found, but covered a place where defendant had previously lived. We are unable to determine from the record at what time the defendant had moved from the place of search, or how remote was the matter of reputation at the former place. Proof of reputation of a place where intoxicating liquors are kept for sale is admissible for the purpose of showing intent. Prendergrast v. State, 31 Okla. 8, 236 P. 903, and authorities therein cited.

No prejudicial error is shown affirmatively. The case was fairly tried, the evidence sustains the verdict, and the case is affirmed.

DOYLE, J., concurs. BESSEY, P. J., absent, not participating.


text:
    JIM FRAZIER v. STATE.
    No. A-5018.
    Opinion Filed Sept. 14, 1925.
    (239 Pac. 186.)
    McCollum & McCollum, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Pawnee county on a charge of selling whisky, the plaintiff in error, hereinafter called defendant, has appealed, assigning as error: First, the cross-examining of defendant concerning other offenses or charges against him for which he had not been convicted; second, in permitting the state to offer evidence in rebuttal of other offenses charged against the defendant for which he had not been convicted.

In the trial of the case, the state used only one witness in chief. The defendant thereupon offered the evidence of the defendant, who denied the sale testified to by the witness for the state. Upon cross-examination the county attorney questioned the defendant about the sale of whisky to other individuals, which the defendant denied. Thereupon the state called in rebuttal several witnesses who testified at other times they had purchased whisky from the defendant. The defendant by becoming a witness was subject to the same rules of cross-examination as any- other witness, and, within the usual boundaries, might be discredited and impeached. Kirk et al. v. State, 11 Okla. Cr. 203, 145 P. 307; Smith v. State, 14 Okla. Cr. 348, 171 P. 341.

Upon a charge of the sale of whisky the offense is not continuing, but single, and the charge is not supported by proof that the defendant at some other time sold whisky to some other person. The introduction of such evidence serves to confuse the jury and injects into the case collateral matters which the defendant cannot be prepared to meet. The introduction of such evidence is prejudicial and requires a reversal. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383; Proctor v. State, 8 Okla. Cr. 537, 129 P. 77; Clemmons v. State, 8 Okla. Cr. 161, 126 P. 705.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    JIM FRAZIER v. STATE.
    No. A-5017.
    Opinion Filed Sept. 14, 1925.
    (239 Pac. 185.)
    McCollum & McCollum, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Pawnee county for ,a violation of the prohibitory law, plaintiff in error, hereinafter called defendant, has appealed.

The defendant contends there was error in the following particulars: First, insufficiency of the information; second, the admission on behalf of the state of incompetent evidence, third, error in the court’s instructions.

The information charges that the defendant maintained “a place where intoxicating liquors, to wit, whisky, * * * were received and kept for the purpose of bartering, selling, and giving away.” The defendant contends that the information is insufficient under the holding of this court in the case of Proctor v. State, 15 Okla. Cr. 338, 176 P. 771. In the Proctor Case it is held that section 4, c. 26, Laws of 1913, is unconstitutional as making it a crime to have a. mere intent to violate the law without any overt act having been committed. The section of the statute under which the prosecution in this case is had is section 7022, Comp. St. 1921 (section 13, c. 70, of the Laws of 1910-11). The case of Proctor v. State is therefore not in point as a construction of the statute upon which this prosecution is based. The information here charges both the intent and the overt act; it is sufficient. Kinney v. State, 26 Okla. Cr. 144, 223 P. 198; Small v. State, 21 Okla. Cr. 99, 210 P. 317; Ivey v. State, 26 Okla. Cr. 184, 223 P. 401.

It is next contended that the court committed error in the admission of incompetent and irrelevant testimony. This assignment is directed to evidence of reputation of the place, and to evidence of various persons that they had bought whisky at the place charged, and to evidence of the sheriff that he had raided the place and seized whisky. The reputation of a place where it is alleged whisky is kept with intent to sell is competent. Cameron v. State, 13 Okla. Cr. 692, 167 P. 339; Ward v. State, 15 Okla. Cr. 150, 175 P. 557; Bland v. State, 18 Okla. Cr. 514, 196 P. 732. See, also, Jones et al. v. State, 23 Okla. Cr. 9, 211 P. 1075; Goen v. State, 23 Okla. Cr. 370, 214 P. 1085; Barngrover v. State, 28 Okla. Cr. 22, 229 P. 301.

The fact of a raid by the sheriff on the place was not admissible as affecting the credibility of the defendant, or as proof of reputation of the place, but the finding of whisky there by the sheriff would be admissible as proof of the receiving and keeping of whisky. And, in like manner, the proof of purchase of whisky at the place of the defendant was admissible, and, while possibly the rules of evidence were not strictly adhered to in all particulars, yet we think that the admission of the evidence complained of does not constitute reversible error.

Lastly, it is contended that the court erred in his instructions in defining the offense for which the defendant was being prosecuted; it being the theory of the defendant that the prosecution was under section 4, c. 26, of the Laws of 1913. The instruction complained of clearly follows and defines the offense charged under section 7022, Comp. St. 1921. The contention is therefore not tenable.

Upon a consideration of the whole case, the defendant was properly charged under a valid statute, the evidence clearly establishes his guilt of the offense charged, and no reversible error is shown.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    JACK WALKER v. STATE.
    No. A-5002.
    Opinion Filed Sept. 14, 1925.
    (239 Pac. 191.)

      Warren & Warren, for plaintiff in error.
    George F. Short, Atty. Gen., and V. E. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Choctaw county on a charge of transporting whisky, the plaintiff in error, hereinafter called the defendant, has appealed. The only reason assigned for reversal is that the court permitted evidence obtained by an unlawful search of the defendant to be introduced in evidence.

The record discloses that one Nesbit, a constable, without any warrant, was on the highway at night look-' ing for some- person or persons, and the defendant came along and was stopped by the officer, who questioned him. The defendant appeáred to be drinking, and the officer inquired what he had, and he answered: “I got some whisky.” The defendant was then searched, and a jar of whisky taken from his person. Upon the trial the witness was questioned fully on direct examination, and the whisky introduced in evidence, all without objection. He was again questioned fully on cross-examination, after which a motion was made that the evidence be stricken and withdrawn for the reason that the search was a violation of the constitutional rights of defendant. The defendant did not take the stand, and offered no evidence.

The witness for the state further testified that he saw no offense committed in his presence by the defendant, and had no warrant for his arrest, nor search warrant.

Upon this state of facts, the defendant contends that his constitutional rights were invaded, and that the trial court should have stricken the evidence and ordered the discharge of the defendant, citing Gore v. State, 24 Okla. Cr. 394, 218 P. 549.

The state contends that the defendant did not make timely objection to the search of his person, and that by informing the officer of his possession of whisky he waived immunity from search. In the case of Miles v. State, 31 Okla. Cr. 4, 236 P. 907, it was held by this court that information communicated to an officer by a person engaged in the commission of an offense was sufficient to authorize an officer to act as for an offense committed in his presence.

While the statement made by the defendant was sufficient to authorize the officer to make the arrest of the defendant and the search of his person, yet we think the contention of the defendant should be overruled for another reason. For even if it be admitted that the arrest and search was in violation of the defendant’s constitutional rights and the evidence obtained by the search should have been excluded on timely objection, the objection in this, case was not timely made.

The defendant further contends that the defendant had a right to presume that the officer arresting him was acting within his authority, and that the motion to strike the evidence was a timely objection, citing in support of his contention, Amos v. United States, 255 U. S. 813, 41 S. Ct. 266, 65 L. Ed. 654, and State v. Wills, 91 W. Va. 659, 114 S. E. 261, 24 A. L. R. 1398. Neither of these cases supports the contention made. In the Amos Case the residence of the defendant was searched by officers of the government without a search warrant, in the absence of the plaintiff in error. After the jury was sworn, but before any evidence was offered, the defendant presented to the court a verified petition praying that the property so seized be returned to him. This was denied by the court, and his motion to exclude the property as evidence was also denied on the theory that it came too late after the jury had been impaneled. The case was reversed, the court in effect holding that the objection as made was timely. In the Wills .Case the defendant was arrested without a warrant and on mere suspicion of having whisky on his person. The court states the question thus:

“The question then arises whether, on a trial for the offense of having the ‘moonshine liquor’ in his possession, the liquor or any evidence of the offense so procured by means of the unlawful search, can be given in evidence by the state over the objection of the defendant.”

And the court, in syllabus 9, held:

“It is unnecessary for the accused, before trial, to move the court to return the articles so illegally taken from him, or to reject the evidence obtained by means of the unlawful search or seizure, in order to exclude such articles or evidence against him at the trial, but objection is properly and seasonably made, by motion when they are offered on the trial.”

It is evident that the method of raising the objection in each of these cases was entirely different to the manner in which it is raised here. In the Amos Case it was raised by a petition to return the property seized and by an objection to its introduction. In the Wills Case it was made by an objection to the introduction. Certainly the defendant knew whether any warrant or a search warrant was served upon him, and if he desired to claim his constitutional right of immunity from search of his person, he should have made objection when the evidence was offered.

The immunity granted by the Constitution against an unreasonable search of the person and effects of a defendant is for his benefit. This constitutional right is in the nature of a personal privilege or exemption, and may be waived. State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Hill v. State, 9 Okla. Cr. 629, 132 P. 950; Dalton v. State, 6 Okla. Cr. 85, 116 P. 954; Stouse et al. v. State, 6 Okla. Cr. 415, 119 P. 271; Starr v. State, 5 Okla. Cr. 440, 115 P. 356; Franklin v. State, 9 Okla. Cr. 178, 131 P. 183.

It is not necessary, before going to trial, for a defendant to file a motion to suppress the evidence obtained by an unlawful search. Objection is timely made if interposed to the introduction of the evidence.

If the defendant desired to object to the competency of the evidence obtained by an unlawful search of his person, such objection should have been presented at the time the evidence was first presented, and, upon his failure to do so, his permitting the same to be developed and introduced without objection was waiver of the objection, and his motion to strike and withdraw, after the evidence had been introduced without objection, came too late.

The evidence being undisputed, and no prejudicial error appearing, the case is affirmed.

BESSEY, P. J., and DOYHE, J., concur.


text:
    TROY COKER v. STATE.
    No. A-5014.
    Opinion Filed Sept. 14, 1925.
    (239 Pac. 190.)
    C. C. Williams, for plaintiff in error.
    George F. Short, Atty. Gen., and Y. P. Crowe, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Le Flore county on a charge of selling whisky, the plaintiff in error, hereinafter called defendant, has appealed. The only assignment of error urged is that the evidence is insufficient to sustain the verdict. The record discloses that John Hudson was the only witness for the state. He testified that he went to the restaurant run by the defendant and purchased a half pint of whisky from the defendant. The defendant denies that he sold him any whisky, and offers the evidence of another witness who testified that he was at the restaurant during the afternoon of the alleged sale and did not see the defendant sell whisky to the state’s witness. That is to say, there is a square conflict between the testimony for the state and the testimony of the defendant. This presented a question of fact exclusively for the jury. They saw the witnesses, observed their demeanor on the stand, and were in a better position than this court could possibly be to properly weigh the testimony. The issue was properly submitted to the jury, and they found against the defendant.

It has been the uniform holding of this court that where there is evidence, although conflicting, from which the jury may reasonably and logically find a defendant guilty, and the jury, under proper instructions, render a verdict, that this court will not become triers of fact and set aside the verdict on the ground of insufficiency. This has been so often held that it is no longer necessary to cite authorities to support the rule. No prejudicial error appearing, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    PAT WHITFIELD v. ASA WALDEN, District Judge.
    No. A-5794.
    Opinion Filed Sept. 16, 1925.
    (239 Pac. 266.)

      See, also, 30 Okla. Cr. 279, 235 P. 929.
    Culp & Culp, Hodge & Schenk, and Sigler & Jackson, for petitioner.
    The Attorney General, G. B. Fulton, Asst. Atty. Gen., J. B. Dudley, and Ben F. Williams, for respondent.
   DOYLE, J.

An application was made to this court for writ of mandamus to require Asa E. Walden, District Judge of the Eighth Judicial District, to certify his disqualification in a case wherein Pat Whitfield, petitioner, is charged by information filed in the district court of Carter county with the crime of murder, and alleging that said case is now pending before the said district judge, and that the said district judge is disqualified to try the same by reason of the fact that he is biased and prejudiced against petitioner to such an extent that he cannot have a fair and impartial trial. It is averred:

That “petitioner has been heretofore tried before Hon. Asa E. Walden for the crime involved in this action; that said trial lasted approximately one week; that during said trial said judge became violently antagonistic to this defendant and to his rights in said cause; that on one occasion Hon. George Culp, as one of the attorneys for defendant, made an objection to certain testimony, and said judge overruled said objection, whereupon said Culp attempted to dictate into the record the ground of his objection, and the court became violently angry at said Culp and in the presence of the jury threatened to fine him and to send him to jail; that during said trial Hon. H. H. Brown was making an argument on behalf of the state and was quoting and arguing what a juror who had been disqualified had said on his voir dire examination; that counsel for the petitioner herein objected to this argument, whereupon the court reprimanded counsel, and threatened to send counsel to jail for making an objection, in the presence and hearing of the jury, and announced that he would not permit counsel for defendant to make an objection to any argument made by the counsel for the state.”

It is further averred that while the jury were deliberating of their vérdict the said judge asked counsel for the defendant to come to his chambers, and there informed counsel that the jury were unable to agree; that he wanted to discharge the jury; that he was going to sustain a motion for a change of venue in this case, and would do so on the following Monday morning; that counsel for defendant, relying upon his statement, agreed that they would in open court agree that the jury be discharged. The court ordered the jury to be returned to the courtroom, and after asking the foreman how they stood, and being informed that they stood 7 for acquittal and 5 for conviction, the court asked defendant’s counsel if they would agree for the jury to be discharged; and, relying on the statement that a change of venue would be granted, counsel for defendant agreed for said jury to be discharged; that the court has since that time informed counsel for defendant that he could not grant said change of venue because it would ruin him politically.

It is further averred that said district judge gave the morning press an interview, which was published by the said press and was distributed throughout the country, wherein he referred to the fact that many jurors had disqualified in the Pat Whitfield case, and urged them not to do so in the future.

It is further averred that since said trial the said district judge has on many occasions discussed the facts in this case publicly, and has publicly declared this petitioner is guilty, that he ought to be sent to the penitentiary, and that he would be convicted and sent to the penitentiary.

It is further averred that said district judge on many occasions has requested petitioner’s attorneys to file a motion to disqualify him and expressed the hope that the Criminal Court of Appeals would disqualify him, further stating that he would make no resistance to disqualification by the Criminal Court of Appeals; that he realized that he could not give this petitioner a fair and impartial trial; “that this petitioner, relying upon the statements and matters above mentioned, shows that the said district judge is disqualified in this case, and that this court should make an order disqualifying this judge; that he has heretofore presented to the said district judge his petition to disqualify the said judge, and the same has been overruled, and attaches hereto a copy of the order overruling the same.” Petitioner also attaches to this petition affidavits of Guy H. Sigler, John L. Hodge, and H. B. Brumley, also a duly certified transcript of the shorthand notes taken by O. H. English, court reporter in the trial of said cause at Ardmore on the 9th day of June, 1925, which transcript reads as follows:

“By Mr. Brown (during his argument to the jury) : A man asked me last night, after hearing this testimony, ‘Well, what do you think now?’ and then I said, ‘What else do you expect?’
“By Mr. Culp (of counsel for defendant): Your honor, will you give us a bill on that?
“By the Court: I think it is legitimate, Mr. Culp. (Exception allowed.)
“By Mr. Brown (of counsel for state, during his argument) : You remember what a certain juror said when he was being qualified as a juror in this case about people carrying guns, and you remember what the balance of the jurors said in this case.
“By Mr. Sigler (of counsel for defendant): We except to what a juror, or jurors, said in this case, if the court please, while the jury was being qualified.
“By the Court: Take the exceptions, Mr. Sigler, as this argument is proper in this case.
“By Mr. Culp (of counsel for defendant) : May we take our exceptions to these remarks?
“By the Court: Yes; you may take your exception and leave him alone, too, and if you don’t leave him alone, •some of you will get fined. Proceed, Mr. Brown.
“By Mr. Hodge (of counsel for defendant) : We except to the remarks of the court also.
“By the Court: Take your exceptions, and let Mr. Brown proceed with his speech.
“By Mr. Sigler (of counsel for defendant, out of hearing of the jury) : Comes now the defendant and moves the court to instruct the jury to disregard these statements by the attorney, Mr. H. H. Brown, and instruct the jury there is no testimony to justify the same, and particularly the following: ‘The men who have testified for the defendant in this case have testified for defendants in enough murder cases if all the men were killed at one time the blood would drown them.’ And the defendant now makes this statement into the record, and desires to show why he did not make the objection at the time the words were uttered, as he attempted to make an objection to the speech, and the court at that time threatened to fine the defendant’s counsel, in the presence of the jury, if they made another objection.
“By the Court: I think there is sufficient testimony in the case to support all the argument.
“By Mr. Dudley, County Attorney: He said some of these witnesses had testified in enough murder cases that the blood would drown them if they were all killed at one time, but not in cases in favor of this defendant— he did not say that.
“By Mr. Sigler (of counsel for defendant, out of the hearing of the jury) : The defendant offers to prove his statements, and also to prove at this time the court refused to permit him to take his exceptions.
“By the Court (out of hearing of the jury) : The court will not only fine you, but will also send some one to jail, the next man that disturbs any one in their argument, the very next man. I am saying this for the record, and the jail is for the man that says anything or disturbs the next argument.
“By Mr. Sigler (of counsel for defendant): We except to the ruling of the court.”

In response to the alternative writ respondent filed his answer, the material part of which is as follows:

“The court desires to dictate into the record a response to the motion to disqualify: This court admits that Pat Whitfield was tried before this court at another term of court or at another day of this term — no it was another term. The court denies that it was violently antagonistic, or antagonistic at all, to the rights of the defendant.
“As to that portion of the charge or motion which states that on one occasion Hon. George Culp, who was one of the attorneys for the defendant, made an objection to certain testimony, and that said judge overruled said objection, whereupon Culp attempted to dictate into the record the grounds of his objection, and the motion further states that the court became violently angry with said Culp in the presence of the jury, and threatened to fine him and send him to jail, the court has this to say: Mr. Culp did make some objections to the admissibility of the testimony, and the court, after hearing those objections, overruled them, whereupon Mr. Culp arose and in the presence of the jury tried to dictate his offer and tender of proof in a manner which only suggested to the court and which would lead any reasonable attorney to believe and to know, from court-room practice, that he merely intended to get the inadmissible testimony to the jury for their consideration. After two or three times of this sort of practice, the court did reprimand Mr. Culp. The court denies that he threatened to send Mr. Culp to jail, and the record will not so state, in the presence of the jury, or at any time.
“Relative to that portion of the motion which says that during said trial, when H. H. Brown was making an argument on behalf of the state and was quoting and arguing what a juror who had been disqualified had said on his voir dire examination, that counsel for the defendant objected to this argument, whereupon the court reprimanded the counsel and threatened to send the counsel to jail for making an objection: This statement is a flat contradiction of the truth, and was known to be untrue by the pleader when he drew the pleading. Mr. H. H. Brown was making a statement to the jury, and counsel for the defendant kept objecting at every point and stage of his argument, until this court came to the conclusion that they were not objecting upon any reasonable grounds, but only to harass Mr. Brown in his argument. The court then did reprimand counsel, and had them to take their seats. Later on the jury was withdrawn and the court did use some remarks to counsel that he would not have used in the presence of the jury, requiring them to dictate their objections into the record and not to continuously harass counsel for the state when they were making their argument.
“Relative to that portion of the motion which says that the jury, after hearing this case for almost a week, retired to deliberate at 4:20 p. m.: That is about correct; and at 9 o’clock on the same evening the said judge asked counsel for the defendant to come to his chambers — by way of parenthesis I will say that counsel were in the chambers of the judge at about that time, but not upon the invitation of the court — whereupon he informed said counsel that the jury was hung; that he wanted to discharge the jury, and that he was going to sustain the motion for a change of venue in this case, and would do so on the following Monday morning. This is a flat contradiction of the truth in the case. The jury reported to this court in open court, in the presence of the defendant and in the presence of defendant’s counsel, and in the presence of counsel for the state, that they were hung; whereupon this court asked the jury as to numbers — how they were hung —not as to whether they stood for acquittal or conviction, -and without any warning from the jury whatsoever, the jury made the statement in open court, in the presence of the defendant, that 7 of them stood for acquittal, and 5 of them stood for conviction. Whereupon the defendant and his counsel and the state and its counsel — and the record will so show — in open court said that they were willing that the jury should be discharged and to declare the case a mistrial. Mr. Sigler, of counsel for defendant, did that night try to get this court, in chambers, to promise him a change of venue. This court told Mr. Sigler at that time and has told him many times since that he did not think that a change of venue was warranted where the jury showed that 7 of them stood for acquittal, and 5 of them stood for conviction. However, the court has not had presented to him since the trial a formal motion asking for a change of venue, and the court is not now passing on that question. The court is now passing’ upon the question of whether the court is disqualified.
“Relative to that part of the charge or motion which says the defendant further shows to the court that after said trial the Honorable Asa E. Walden stated to counsel for the defendant that he realized that he had not been fair in the trial and could not give the defendant a fair and impartial trial: No such statement was ever made by this court to any member of counsel for the defendant, and was known by the pleader to have not been made at the time the pleading was drawn. Further, that the sight of the wife and child of the deceased almost ran him crazy; I never made any such statement as that. I did say to Mr. Sigler and I believe Mr. Culp that I had tried so many murder cases within the last 12 months that the sight of orphan children and widowed women did make the heart of this court bleed, and I say that again this morning, from the bench, and reiterate the fact, and I am proud that it does make my heart bleed to see the wives and children of slain men in court, but that does not disqualify this court from giving the defendant a fair and impartial trial. I would hate to get to the place where it did not make my heart bleed to see these orphan children. The court denies that it runs him crazy, as alleged by counsel for defendant, or that the court made any such statement to counsel for defendant.
“The other part of the motion, as to the Press report, Mr. Sigler has about corrected that statement. The court did, at the close of the examination of the jury, last spring, after the jury in the Whitfield Case had been selected and were out of the presence of the court — the court, in talking to a bunch of talesmen, probably 75 in number, many of whom had disqualified in the case, and the court had come to the conclusion — had disqualified a great number of them — for business reasons, the court did give a lecture on jury service to those 75 men, calling their attention to the importance of jury service in this country, and did not directly charge that any of them had disqualified for business reasons, but the court did have the opinion that some of them had done so, and the court made this remark: That the man who would disqualify for jury service on account of business reasons was not giving to his state and to his country the full measure of devotion that he owed to it. The court made that sort of a statement to those jurors.
“In closing, the court wishes to state that at many times counsel for the defendant has sought to engage this court in private interview concerning this case, and Mr. Sigler is no1¡ the only party guilty. Mr. John L. Hodge, on numerous occasions, has told this court that he, at all times during the trial, did not seek to see that the defendant got a fair and impartial trial, but that he and counsel for the defendant sought to lead the court into reversible error. Mr. John L. Hodge made this statement to this court no later than last week, in the presence of other attorneys, in chambers at Marietta.
“This court knows that it can give this defendant a fair and impartial trial, and knows that it will give this defendant a fair and impartial trial; however, this court refuses to be run off of the bench by the statements of counsel which are untrue, and refuses for these reasons to disqualify in this case. You may have your exception, Mr. -Sigler.
“I want to put another thing in that record before the defendant gets out. Relative to the statement of the defendant that the court would not grant the change of venue because it would ruin this court politically': The court never made any such statement as that, and it was known by counsel who drew the statement in the pleading that the court never made any such statement; I want that to go in, too.”

It appears that the second trial of the defendant’s case is set for Monday, September 14th.

The petitioner bases his right to the relief prayed for upon article 2, § 6, of the Bill of Rights, which in so far as applicable here, provides:

“Right and justice shall be administered without sale, denial, delay, or prejudice.” Const. art. 2, § 6.

By this provision of the Consitution the people have prohibited a judge from trying a cause in which he is prejudiced by or for either party. In Ex parte Ellis, 3 Okla. Cr. 220, 105 P. 184, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863, we said:

“The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not be shaken, and provided that right and justice should be administered without prejudice. By virtue of this constitutional provision, who can doubt or question the absolute and unqualified right of the citizen when called to answer in a court of justice to demand that his trial shall be before an impartial judge and by impartial jurors? Any other doctrine would place the rights of the citizen which were intended to be protected by this constitutional provision at the mercy or control of the court or judge thereof.”

Under the statute, section 2629, C. S. 1921, bias and prejudice of the presiding judge to such an extent that a fair and impartial trial cannot be had is sufficient cause to entitle the defendant to have a change in the judge. The statute further provides that the defendant may “file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.” Section 2633, C. S.

If the application is in compliance with the statute and the judge concedes that he is prejudiced, he certifies his disqualification as requested. If he refuses to admit his disqualification and therefore refuses to make the certificate, a petition may be filed for writ of mandamus to require him so to do, and the question of his disqualification will then be determined by this court upon the petition and the response thereto. The facts upon which the claim of prejudice is made must be set out in the original application so that the judge may know upon what the claim is based, and it is not sufficient to set those facts out for the first time in the petition for the writ.

Considering only the transcript of the proceedings had in the argument of counsel for the state on the defendant’s first trial, together with the uncontroverted statement that the respondent had publicly declared petitioner to be guilty, and that he would be convicted and sent to the penitentiary, we are satisfied that petitioner is entitled to a change of judge.

The remarks of the prosecuting attorney were wholly improper, and the objections of counsel for the defendant should have been sustained. The remarks of the court in overruling said objections and in admonishing counsel for the defendant were wholly without justification. By numerous decisions of this court it is held that attorneys for a defendant are entitled to and must receive fair treatment at the hands of the trial court.

We may remark here that while an idle or thoughtless remark of the judge, made out of court concerning a case pending before him, is not sufficient cause to entitle the defendant to have a change of judge, yet the utmost care should be exercised by a trial judge, especially in a capital case, not to let fall any expression in or out of court as to the guilt or innocence of the defendant, or as to what he thinks of the defendant, his counsel, or his case.

For the reasons stated, we are of the opinion that the Application for a change of judge should have been granted. Respondent having refused to disqualify, the writ q£ mandamus as prayed for is awarded.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J. EDWARDS, J.

text:
    ARTHUR SKELTON v. STATE.
    No. A-4939.
    Opinion Filed May 23, 1925.
    On Rehearing Sept. 19, 1925.
    (239 Pac. 189.)
    W. P. Hickok and J. H. Antrobus, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton and Chas. Hill Johns, Asst. Attys. Gen., for the State.
   EDWARDS, J.

The record discloses that the plaintiff in error was charged wtih a violation of the liquor law, the charging part of the information being as follows:

“That the said Arthur Skelton, on the day and year aforesaid, and in the county and state aforesaid, did knowingly, willfully, unlawfully, convey, transport, ship, and carry certain spirituous, vinous, fermented, malt, and intoxicating liquor, to wit, ten ounces of ‘Jake,’ from a point unknown to informant to another point on the street in front of Butler Bros.’ Garage, in the town of Taloga, Dewey county, Okla. * * *”

Upon a trial the plaintiff in error was convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The plaintiff in error advances two propositions as ground for reversal: First', that the information is insufficient. Second, that the evidence does not sustain the verdict. These assignments of error are so closely related in this case that they will be considered as one proposition.

It will be noticed that the allegation of the information is that defendant did transport certain spirituous, vinous, fermented, malt and intoxicating liquor, to wit, “ten ounces of Jake.” The general allegation is limited by the specific term “Jake.” The information is sufficient, as it alleges the transportation of prohibited liquors. Estes v. State, 13 Okla. Cr. 604, 166 P. 77, 4 A. L. R. 1135; Crawford v. State, 5 Okla. Cr. 33, 113 P. 200; Moss v. State, 4 Okla. Cr. 247, 111 P. 950.

' But where a charge of transporting intoxicating liquor is made, setting out specifically the liquor transported, unless the liquor alleged is one of which the court takes judicial knowledge of its intoxicating character, it is necessary to prove that the liquor alleged to have been transported is intoxicating.

When facts are so well known and fixed in the public mind that the courts take notice of them without proof, this notice is generally spoken of as judicial knowledge or judicial notice. Among this class of facts is the knowledge that certain liquors contain a large percentage of alcohol and are intoxicating; among them, brandy, gin, whisky, wine, and, of course, alcohol.

There are other liquids where there is a conflict of authorities as to whether or not the courts will take judicial knowledge of their intoxicating character; some of the states holding that they will not take such notice, and others holding that they do. Among these are beer, cider, hard cider, and Jamaica ginger. Then there is a class of beverages sometimes intoxicating, the nature of which the courts do not take judicial notice, and where a violation of che prohibitory law is predicated thereon, it is necessary to prove that they are intoxicating. Among this latter class are “choc,” or choctaw beer and bitters. Crawford v. State, 5 Okla. Cr. 33, 113 P. 200; Cunningham v. State, 18 Okla. Cr. 706, 192 P. 1104; State v. Feeback, 3 Okla, Cr. 508, 107 P. 442; State v. Kollar, 17 Okla. Cr. 132, 196 P. 968; McNeal v. State, 15 Okla. Cr. 639, 179 P. 943; Kolar v. State, 29 Okla. Cr. 76, 232 P. 449.

Among the latter class, also, is “Jake” as charged in this case. Our attention has not been called to any definition, judicial or otherwise, of the concoction designated as “Jake.” The word is a low colloquialism applied to a liquor reputed to be composed of a mixture of Jamaica ginger” and some other beverage or beverages, and the word “Jake” is presumably derived from, or a corruption of the word “Jamaica.” Its intoxicating character and alcoholic content would, of course, vary in any case with the percentage of alcohol contained in the mixture, of which there is no fixed percentage. It is necessary, therefore, that where a violation of the Prohibitory Law is based on the sale or transportation of the concoction designated “Jake” there must be proof that it is intoxicating.

The information being sufficient if the proof of the intoxicating character is sufficient, the verdict should be sustained. We have examined the record, and while the evidence is not strong, there is evidence that the concoction was intoxicating, and that the plaintiff in error at the time was partially intoxicated. When there is evidence, its weight and sufficiency of the evidence is for the jury. The verdict will not be disturbed.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.

On Rehearing.

EDWARDS, J.

Since filing the original opinion in this case, a petition in error has been duly filed, calling the attention of the court to the fact that in the trial of the case below there was no proof of venue, and that this question was presented in the briefs and overlooked by the court. An examination of the record and briefs discloses that this contention is well founded. A careful examination of the record discloses that there was no proof of venue in the trial of this case. The proof is that the defendant was seen in Jim Smith’s restaurant, and his car was searched in front of Butler’s garage. There is no evidence that these places were in Dewey county, nor is there any other evidence from which the conclusion may reasonably be drawn that the offense charged was committed in Dewey county.

The venue of an offense must be proven as charged. Brunson v. State, 4 Okla. Cr. 467, 111 P. 988; Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L. R. A. (N. S.) 153. It may be proven by circumstantial evidence, and it need not be proven beyond a reasonable doubt. Gritts v. State, 6 Okla. Cr. 534, 118 P. 673, 120 P. 669; Harvey v. Territory, 11 Okla. 156, 65 P. 837; Groh v. State, 30 Okla. Cr. 396, 236 P. 435. It is not necessary that any witness state directly that the crime was committed in the county of the prosecution. It will be sufficient if the place of commission be so described that the court may take judicial notice that it is in such county. Hunter v. State, 6 Okla. Cr. 446, 119 P. 445.

In this case, however, neither Jim Smith’s restaurant nor Butler’s garage is so described or identified that the inference may reasonably be drawn, or that the court may take judicial notice, that such places were in Dewey county.

The case is therefore reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    ARTHUR HORN v. STATE.
    No. A-4363.
    Opinion Filed May 16, 1925.
    Rehearing Denied Sept. 19, 1925.
    (238 Pac. 966.)

      Theo. D. B. Frear, for plaintiff in error.
    'George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity and convenience the plaintiff in error will be referred to as defendant, as in the court below. The defendant was convicted in the district court of Craig county for the crime of uttering a forged instrument, the release of a mortgage, and sentenced to a term of seven years in the penitentiary. The following assignments of error are argued in the brief: First. That the information is defective. Second. Refusal of requested instructions. Third. Failure of the court to properly instruct on circumstantial evidence. Fourth. Insufficiency of the evidence to sustain a conviction. These assignments will be considered in the order presented.

The information on which the defendant was tried does not contain a copy of the forged instrument, but contains instead the allegation that the release has been destroyed or is in the possession of some one to the informant unknown. That informant is unable to set out said instrument. The release is rather fully described in the information. This allegation does not bring the information within the provisions of section 2569, Comp. St. 1921, which provides that when an instrument which is the subject of an indictment or information for forgery has been destroyed or withheld by the act or procurement of the defendant, and the fact of withholding or destruction is alleged, the misdescription of the instrument is immaterial. There is no good reason why the county attorney should not have attached, or pleaded in full, a copy of the forged release, as the information sets out the fact that it is recorded, giving book and page. A failure to do so is poor pleading. See Arnold v. State, 15 Okla. Cr. 519, 179 P. 897. However, the failure to set out the instrument could in no sense have been prejudicial to the defendant. For, if the description as alleged in the information failed to fully apprise the defendant of the instrument in question, the allegation of the book and page where the same was recorded afforded him an opportunity to fully ascertain the contents, and under this state of facts the error was harmless.

Upon the second assignment the record discloses that defendant requested the giving of three separate instructions, touching the matter of knowledge and intent of the defendant in case the jury should find that the defendant uttered and published the forged release in question. We perceive no fault in the requested instructions, but the substance of them was fully covered by the court’s charge Nos. 4 and 5, and it follows that there was no error in refusing the request made.

Considering the third assignment of error, the failure of the court to instruct on circumstantial evidence. The case is not one based wholly on circumstantial evidence. It was proven by direct testimony, and in fact admitted in the brief of the defendant, that the release was a forgery, and that defendant had the release placed of record; that he conducted the negotiations and obtained the price for the land conveyed against which was the mortgage attempted to be released by the forged release in question. And after the money paid for the land was deposited in the bank jointly in the name of defendant and one Fred Jackson, it was withdrawn on the checks of the defendant. Where a case is not one wholly of circumstantial evidence, a defendant is not entitled as a matter of right to have the jury instructed on that point. Hendrix v. U. S., 2 Okla. Cr. 240, 101 P. 125; Star v. State, 9 Okla. Or. 210, 131 P. 542. And, even had the defendant been clearly entitled to an instruction on circumstantial evidence, the failure to give such an instruction under the conditions shown here would not require a reversal. In the case of Matthews v. State, 8 Okla. Cr. 676, 130 P. 125, this court held:

“The court did not give an instruction with reference to circumstantial evidence, neither was such an instruction requested by counsel for appellant. We think that an instruction upon circumstantial evidence should have been given. But, as no exception was preserved to the action of the trial court in failing to give such an instruction, we cannot reverse the conviction upon this ground.”

Finally, it is argued at some length that the evidence is insufficient to sustain the verdict. In behalf of the defendant it is pointed out that the evidence fails to show that the defendant knew the instrument to be forged. Also that the notary public who took the acknowledgment to the release in question testified that the defendant was not the person who signed and acknowledged it. But, on the other hand, the evidence does clearly show that the release was a forgery. It shows that the sale of the land incumbered by the mortgage sought to be released by the forged instrument was negotiated by the defendant by a written contract under the terms of which he agreed, to furnish a clear and perfect title; that defendant delivered the forged release to an abstractor to be put of record and the abstract extended; that he then conveyed the land as clear of all incumbrance; that he checked out the money paid as a consideration therefor. The evidence is not insufficient, and it is too well settled to require citation of authority that, where there is any legal evidence reasonably supporting the verdict, its weight is for the jury and this court will not disturb the verdict, although there may be conflicting evidence.

Finding no reversible error, the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    WELLINGTON BRUNER v. STATE.
    No. A-4430.
    Opinion Filed May 23, 1925.
    Rehearing Denied Sept. 19, 1925.
    (238 Pac. 1000.)
    Norvell & Haulsee, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity, the plaintiff in error will be referred to as defendant.

Both the defendant and deceased are negroes, and were brothers-in-law. Defendant was 26 years old and a veteran of the World War. The deceased was 48 years old. Some slight misunderstanding had arisen between them, but, so far as the record discloses there had never been any quarrel or dissension of any kind. On Sunday, April 2, 1921, defendant went on horseback to the town of Seminole, and on his way went by the house of deceased. Their relations appeared amicable. Defendant claimed to be going to the house of a relative to get some medicine. He hitched his horse at Seminole, went to the house of Will Ellis, left his pistol, and was about town until about 3:20, when the homicide occurred. The deceased went to the town of Seminole in an automobile which he parked near a hotel for colored, and not far from where the horse of the defendant was hitched. It appears he had an engagement to meet Tecumseh Bruner at Seminole, and was in his car most of the time. About 3 o’clock, or a little later, defendant got his pistol, and going toward his horse passed the car of deceased,, who was talking to relatives of defendant. They spoke to each other, apparently friendly, and immediately defendant drew his pistol and shot deceased through the head, who fell out of the car and staggered a short distance where he sank down, and died. He had a pistol tied in the pockets of a pair of trousers under his overalls. After the shooting, defendant came around the car and pointed the gun at deceased, but a bystander prevented him from shooting again. He then went to his horse, mounted, and a deputy sheriff called for his surrender. On his defiance, the officer fired at him, and defendant fired four or five shots as he rode away. He went to the house of a relative a few miles away, who took him in a car and went in the direction of Wewoka, where he was met by officers and taken into custody.

The defendant claims that he acted in his self-defense, and that at the time he shot the deceased made a motion which led him to believe he was about to draw a pistol. He explains his resistance to the officers immediately following the homicide by saying that he did not'know they were officers.

The assignments of error argued in the brief may be stated about as follows: First, insufficiency of the evidence; second, errors of law occurring at the trial in the admitting of incompetent evidence and the exclusion of competent evidence offered by defendant; third, error of the court in refusing requested instructions by. defendant and in the giving of instructions prejudicial to the defendant. These various assignments will be considered in the order presented.

Upon the first assignment, i. e., the insufficiency of the evidence, defendant’s counsel present the theory that there was ill feeling between the parties and threats made by ’e-ceased, and that, as the defendant passed to the rear of the car, the deceased made some movement of his shoulder which led the defendant to believe that he was about to draw a gun, and that the shot was fired in self-defense. The witnesses for the state, who were at or near the scene of the killing, coincide fairly closely in their account of the shooting. None of them testify that the deceased made any act whatever, and all appeared to be relatives or friends of defendant. There seems to be no substantial basis in the evidence to support the statement of defendant that the deceased made any movement whatever. The evidence was for the jury, and under it we fail to see how they could have returned a different verdict.

Upon the second assignment of error, i. e., the admitting of improper and the excluding of proper evidence, several contentions are grouped. The complaint is first made that the state introduced evidence that the deceased had two girls by a former marriage, one in college in Tennessee, and another teaching in the Lima high school. There is perhaps some slight reason for the admission of this evidence to account for the absence of the daughters of deceased from home on the Sunday morning when defendant was at the house of deceased. Defendant contends that it was a direct and unfavorable comparison between the family of deceased and the defendant. The evidence is really immaterial and serves no purpose. It merely calls to the attention of the jury the family of deceased, and might to that extent be said to create a feeling unfavorable to the defendant. But on the other hand the defendant testified that he had a wife and one child and was a veteran of the World War, which called the attention of the jury to matters foreign to the issue, and which might create a sympathy for him. This is a part of the old byplay which has been practiced since the memory of man runneth not to the contrary, where, in the trial of criminal cases, the wife, children, or old parents are brought in and arrayed on different sides of the counsel table for emotional purposes. In this case as in most cases, it is played by counsel for both sides. We do not commend these methods, but there was nothing in the proceedings here which could be reasonably calculated to arouse the passion of the jury or in any manner prevent the defendant from having a fair and impartial trial. Further under this assignment it is contended that the court erred in excluding the evidence offered by defendant, by the witness Millie Sango, of a conversation between the deceased and his wife on the morning of the shooting. There is nothing in this contention. The witness did testify:

“Q. Did you hear Douglas Hamilton (the deceased) say anything that morning about Wellington Bruner (the defendant) ? A. No, sir. Q. Didn’t hear him say anything at all? A. No, sir.”

To further questions the court sustained objections, which was no error.

Complaint is made that the court excluded testimony of the witness Tecumseh Bruner, a half-brother of defendant, that he had no arrangements to meet the deceased at Seminole on the day of the killing. This evidence should have been admitted. There had been some evidence that the deceased was at Seminole to meet Tecumseh, as explaining why he was in his car at the time of the shooting. However, it is not shown that the defendant had any knowledge why the deceased had come to Seminole, or that he had any reason to believe that he was there for the purpose of precipitating a difficulty with the defendant, and hence deceased’s purpose would not affect the defendant’s right of self-defense in any particular. If it were shown that any knowledge or reason to suspect the purpose of deceased in coming to Seminole was to make an opportunity for a difficulty, and this was known to the defendant, the exclusion of this evidence would be material. Under the record it is of no special importance.

Upon the third assignment, i. e., error of the court in refusing requested instruction and giving of erroneous instructions, the first contention is upon defendant’s request No. 13, to the effect that, if a state of ill feeling existed in the mind of the deceased toward the defendant and known to the defendant at the time, the jury might take this into consideration in explanation of the act of shooting and in determining whether or not defendant acted in self-defense. This is not a correct statement of the law. The most that the evidence shows, and that from the defendant alone, was that there was some misunderstanding between defendant and deceased. No claim is made by defendant that there had ever been any quarrel, but defendant did testify that his brother or half-brother had told him of some statement made by deceased which indicated ill feeling. The fact that deceased had an ill feeling toward the defendant, and the defendant knew this, if it had been shown, would not justify or mitigate his act of shooting the deceased. Now if the deceased were a dangerous man, which is nowhere contended, and the defendant had any reason to fear him, he might act on a less significant overt act than under other conditions, but in neither case would a mere ill feeling excuse the homicide. Justification could come only from some overt act which would lead the defendant, as a reasonable person, under the circumstances, to apprehend that his life was in danger, or apparent danger, or that he was in danger of suffering some great bodily injury at the hands of deceased.

The next contention is that the court erred in instruction No. 8, with reference to the departure of the defendant from the place of the homicide, and to the effect that, if the. jury found beyond a reasonable doubt that the defendant “ran away” from the scene after firing the fatal shot, it might be considered as a circumstance tending to show guilt; it being argued that in order to constitute flight it is necessary that there be a subsequent hiding-out, evasion, or concealment, or the leaving of the community for parts unknown, citing 16 C. J. 552, and Terry v. State, 13 Ala. App. 115, 69 So. 370, and it being further argued that the evidence showed that the defendant did not intend to leave the community, but merely withdrew for the purpose of surrendering to the proper authorities. The instruction, however, does not assume that the defendant 'fled, but submits that to the jury as a question of fact. If the leaving of the scene of the homicide, under the circumstances detailed in the evidence, was a flight, it is admissible as tending to establish the guilt of the defendant, If, on the other hand, the explanation of the defendant was satisfactory to the jury, it would have no significance. Pittman v. State, 8 Okla. Cr. 58, 126 P. 696; Robinson v. State, 8 Okla. Cr. 667, 130 P. 121; 1 Wigmore on Ev. § 276.

The next contention is that the court erred in refusing defendant’s request for an instruction on the presumption of innocence. The court gave an instruction on the presumption of innocence to the effect that defendant was presumed innocent and of good character, and that the presumption stands as a witness in his favor until overcome by competent testimony, which instruction defendant admits is correct so far as it goes, and to that extent is substantially in the form of the request. The request continues :

“* * * Until it is overcome by legal evidence which establishes his guilt to the satisfaction of your minds beyond a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”

The instruction given is technically incorrect. In various other of the court’s instructions the jury are repeatedly told that the guilt must be established beyond a reasonable doubt, and are told, if they have a reasonable doubt, they must acquit the defendant. The instruction is poorly drawn, but does not present substantial error.

The next contention is that the court did not give a sufficient instruction on good reputation of defendant. The jury are told that the defendant has offered testimony in support of his good reputation, and that this may be taken into consideration in determining whether or not the defendant might be likely to commit the crime charged against him. This was not excepted to, but the defendant made the further request that good reputation should also be considered along with the other evidence in the case to determine whether the witnesses who had testified were mistaken or had testified falsely or untruthfully, and added the further clause that, if the jury entertained a reasonable doubt of the defendant’s guilt, they should acquit him, or, if they believed him guilty beyond a reasonable doubt, they should convict him. The latter part of the instruction is covered by the court’s charges, and its incorporation here is a repetition. A general charge on the matter of character is proper, and this court has adopted the rule announced in White v. U. S., 164 U. S. 100, 17 S. Ct. 39, 41 L. Ed. 365, where it is said:

“When the court told the jury it was admitted that the defendant was a man of good character, and that the jury might consider such good character and give such weight to it as they saw proper under all the evidence in the case, and that the defendant was entitled to a reasonable doubt, it was sufficient.”

See Morris v. Ter., 1 Okla. Cr. 617, 99 P. 760, 101 P. 111; Cannon v. Ter., 1 Okla. Cr. 600, 99 P. 622; Holmes v. State, 6 Okla. Cr. 541, 119 P. 430, 120 P. 300; Wilson v. State, 3 Okla. Cr. 714, 109 P. 289.

In the Wilson Case, supra, the court said:

“On principle it would seem that the very fact that the court admits the evidence as to the defendant’s good character could not but be understood by the jury as a command to consider it.”

Wherever it is proper to give the instruction on reputation, it should conclude by informing the jury that, if they find beyond a reasonable doubt that the defendant is guilty as charged, then his previous good reputation would be no justification or defense. Bishop’s New Criminal Procedure, § 1116. The request in the Cannon Case, supra, which was by the court denied, is substantially the same as the request in this case.

The next contention is that the court erred in instruction No. 6, which is a general charge on self-defense, and particular complaint is made to the language that, if the jury had a reasonable doubt existing in their minds, “engendered by the evidence,” then it would be their duty to acquit. The use of the phrase “engendered by the evidence,” it is argued, requires that the evidence alone shall raise a reasonable doubt, and places a burden on the defendant. This court recently had occasion to criticise the term “engendered by the evidence” in the case of Lacy v. State, 30 Okla. Cr. 273, 236 P. 53, but held such expression did not constitute reversible error.

The next contention is that the court erred in instruction No. 11 in stating the things necessary to be proven in order to establish the offense, and in refusing to give defendant’s request that they must find beyond a reasonable doubt every fact and circumstance essential to the guilt of the defendant. There is some weight to the argument if instruction No. 11 is singled out, but the instructions must be considered as a whole. They are not models by any means, but, when considered all together, fairly submit the law.

Other matters are presented by the brief, and all have had our attention. The record has been carefully read. There is no such error shown as would warrant a reversal.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    FRANK POTTS v. STATE.
    No. A-5083.
    Opinion Filed June 2, 1925.
    Rehearing Denied Sept. 19, 1925.
    (238 Pac. 968.)
    F. W. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment of conviction rendered on the verdict of a jury finding the defendant, Frank Potts, guilty of unlawful possession of intoxicating liquor, and fixing his punishment at 30 days in jail and $200 fine.

The undisputed facts are that the sheriff and four deputies, under authority of a search warrant, visited the defendant’s drug store in the town of Picher, for the purpose of searching for intoxicating liquors, and in a warehouse back of the drug store they found a 5-gallon can of grain alcohol. The officers took a sample of the alcohol to a chemist for analysis, and it was found to be grain alcohol, and did not contain any other ingredients except a slight trace of acetone; the chemist testified that all grain alcohol contained a slight trace of acetone.

The defense was that the defendant had purchased the alcohol two or three years before, and had bought it for the purpose of selling it to the hospital to be used for medicinal purposes and for sterilizing instruments, and that . he did not know that it was pure grain alcohol, but thought it was wood alcohol.

Several assignments of error are directed to the admission of evidence. We have carefully examined them, and find no error in the rulings of the court in this regard.

Several assignments of error are directed to the giving of certain instructions and the court’s refusal to give requested instructions.

The instructions excepted to and those requested are lengthy, and we think it unnecessary to burden this opinion with a quotation of them. A discussion of them would not be of value as a precedent or as a guide in future cases.

The instructions given fully presented the entire law of the case and the defendant, from all that the record discloses, had a fair trial.

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    J. E. MAY v. STATE.
    No. A-4897.
    Opinion Filed July 18, 1925.
    Rehearing Denied Sept. 19, 1925.
    (238 Pac. 1003.)
    H. J. Sturgis, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For brevity and convenience, the plaintiff in error will be referred to as defendant, as in the court below.

From a conviction on a charge of violating the prohibitory law, the defendant appeals. The petition in error contains various assignments, two only of which are discussed in the briefs, and these, in effect, question only the sufficiency of the evidence to sustain the verdict and judgment. The evidence shows that certain officers went to the premises of the defendant with a search warrant, and after giving him a copy inquired if he had any whisky there. After some hesitation, defendant answered “No,” but soon called the sheriff aside and told him there was some whisky near the barn; that the night before a stranger whose name he did not know had asked to leave it there; that he had refused permission, but had later found it there. H!e then showed the officers a sack in which there were 3 one-half gallon bottles and a quart bottle of whisky. A 50-gallon barrel containing some corn mash was found in the shed or granary near the barn, covered over with hay. On analysis the mash was found to contain 3.4 per cent, of alcohol; the whisky in the bottles was found to contain 36.6 per cent, of alcohol. An oil burner with pipe connections attached, some lead pipe, a boiler top, showing .to have been soldered onto a boiler with a hole in the top, a dome apparently from the top of the still with a hole for a lead-off pipe, were all found in the premises. As stated, the defendant claims the sack containing the whisky had been left there the night before. The state offered evidence that when the sack was lifted from the ground the grass underneath had turned white. The defendant explained the presence of the mash as a preparation for feeding hogs, and earnestly contends that the evidence is not sufficient to sustain the verdict, citing Ren v. State, 9 Okla. Cr. 671, 132 P. 1131; De Byrum v. State, 9 Okla. Cr. 448, 132 P. 382; Silva v. State, 11 Okla. Cr. 12, 141 P. 235; Ward v. State, 15 Okla. Cr. 61, 175 P. 60; Cooper v. State, 17 Okla. Cr. 413, 189 P. 366.

To sustain a conviction for having possession of intoxicating liquor with intent to violate the prohibitory liquor law, there must be evidence to prove both possession and criminal intent. The possession of more than one quart is prima facie evidence of intent to violate the law, and with the surrounding circumstances was sufficient to go to the jury. In Cosby v. State, 30 Okla. Cr. 294, 236 P. 51, it is held:

“Where an accused is charged with having possession of the prohibited quantity of intoxicating liquors with intent to sell, proof of the possession of such prohibited quantity is sufficient to submit to the jury under the prima facie evidence rule, and where the possession or the intent, coupled with possession, is sought to be rebutted or disproved, the question of the sufficiency of the evidence is a matter of fact for the jury, and, in the absence of unusual circumstances will not be disturbed because of insufficiency.”

It was for the jury to say whether or not the explanation of the defendant of his possession was reasonable and sufficient to rebut the presumption arising from possession, and they must have disbelieved his explanation, drawing on their common sense that the grass under a covering will not turn white in a single night. They must also have viewed with incredulity the explanation that some mysterious stranger, whose name the defendant did not know, came to his premises the night before and asked permission to deposit whisky, and although permission was refused left it there. Such explanation, does not seem reasonable to us, and must have struck the jury in the same light.

Following the well-settled rule of this court a conviction upon the ground of insufficiency of the evidence will not be reversed where there is evidence from which the jury could rationally and logically conclude that the defendant was guilty.

The case is affirmed.

BESSEY', P. J., and DOYiLE, J., concur.


text:
    Ex parte JACK KARAM. O. T. Shinn, Respondent.
    No. A-5526.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 1118.)
    B. A. McAleer, for petitioner.
   PER CURIAM.

From the records filed in this proceeding it appears that the matter in controversy relates to a civil contempt over which this court has no jurisdiction. The Attorney General has filed a motion to dismiss, because this court has no jurisdiction to determine an application of this character relating to civil procedure. The motion of the Attorney General is sustained, and the application dismissed.


text:
    VERNIE LOFTON v. STATE.
    No. A-4465.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 1119.)
    C. C. Wells, for plaintiff in error. '
    The Attorney General and ¡G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Vernie Lofton, plaintiff in error, was convicted in the county court of Greer county of the offense of illegal transportation of intoxicating liquor, with his punishment fixed by the jury at confinement in the county j>ail for a period of 60 days and to pay a fine of $100. From the judgment on the verdict, he appeals. The Attorney General has filed a motion to dismiss the appeal, because it was not lodged in this court within 120 days from the date of judgment, as provided by law, and that no order of court was made extending the time beyond that period. An examination of the record shows that the motion to dismiss is well taken. The appeal is therefore dismissed, and the trial court is directed to execute the judgment rendered therein.


text:
    Ex parte TINDELL.
    No. A-4840.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 1119.)
    Geo. Giddings, for petitioner.
    The Attorney General, for the State..
   PER CURIAM.

It having been made to appear to this court that the petitioner has abandoned and withdrawn his application herein, the petition is dismissed.


text:
    DAVE WRIGHT v. STATE.
    No. A-4994.
    Opinion Filed July 23, 1925.
    Rehearing Denied Sept. 26, 1925.
    (239 Pac. 182.)

      John A. Remy, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was by verdict of a jury found guilty of burglary in the second degree, committed by breaking into a private garage, where the evidence tended to show that he removed the tires from an automobile, placing two of them on his own car and taking two to a repair shop, where they were afterwards found. The jury failed to assess the punishment, and the court fixed the punishment at confinement in the state penitentiary for a term of two years.

This case was regularly submitted at the March, 1925, term of this court, at which time no brief had been filed by plaintiff in error. Upon submission further time was given to file briefs and plaintiff in error notified, to which no response has been made and no briefs have been filed. From this we may assume that there is no merit in the appeal.

We have, however, examined the record and find that the information sufficiently charges the offense; that the evidence is sufficient' to support the verdict; that the instructions of the court fairly state the law of the case; and that the defendant otherwise had a fair trial.

The judgment of the trial court is affirmed.


author: BESSEY, P. J.

text:
    OSCAR T. SHINN v. STATE.
    No. A-4763.
    Opinion Filed Sept. 26, 1925.
    (239 Pac. 269.)

      O. T. Shinn and C. H. Parrick, for plaintiff in error.
    The Attorney 'General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error was convicted of the abduction of a child, with his punishment assessed by the jury at two years in the penitentiary.

Oscar T. Shinn, plaintiff' in error, in this opinion referred to as the defendant, was convicted in the district court of Ojklahoma county of the statutory crime of “enticing, taking, and abducting” from his parents a four year old child, named Jack Karam.

The domestic life of the parents of this child, Ameen Karam and Josephine Karam, was unhappy from the beginning, finally culminating in divorce proceedings, wherein each charged the other with evading marital obligations, with acts of gross immorality, and with gross neglect of duty in the matter of the physical care of the child, Jack, involved in this prosecution. It was charged, among other things, that the mother spent many nights with men in questionable places; that she had no real affection for her child; that she frequently left little Jack in the care of strangers and persons unfit to look after him; that she permitted the child to go unkempt and his body to become filthy, and did not care for him when he was ill.

In the course of events, the custody of the child was, by the court, awarded first to the father, then later to the mother, then again to the father, and a portion of the time to the defendant, Shinn, and his wife. At one time it was decreed by the court that neither of the parents of the child was a fit person to have the care and custody of the child.

From the record it appears that little attention was paid to the several orders of the court providing for the child’s care and custody, and that at times the child was, in effect, an abandoned and neglected child. For a period of about 20 weeks the child was kept by Mr. and Mrs. Karam, sometimes one, and sometimes the other, at various places and rooming houses, in charge of strangers. During a portion of this time, and prior thereto, the child had been in the care and custody of Mr. and Mrs. Shinn, who, it appears, gave him excellent care and attention. A portion of this time Mr. Karam paid the Shinns for the child’s board and care. During the time little Jack was with the Shinns, they formed a strong affection and attachment for him and expressed a desire to keep him as a member of their own family.

It is claimed by defendant, Shinn, and, in part, corroborated by letters written to him by Mr. Karam, that Mrs. Karam turned the child over to Shinn and his wife, and that Mrs. Karam shortly thereafter abducted the child from them. Soon after this Mr. and Mrs. Shinn forcibly took the child from Mrs. Karam, which taking constitutes the basis of this prosecution.

Mr. Shinn was a lawyer, but, paying no heed to the maxim, “He who acts as his own lawyer has a fool for a client,” he conducted his own defense in the trial court, and did it very inefficiently. The record in the case is incomplete and confusing. The evidence was badly presented, so that it would be difficult, if not impossible, to make or state definite findings of fact.

After much travail, this court has arrived at the conclusion that but one assignment of error need be noticed; namely, that the evidence is insufficient to support the verdict.

We are satisfied, from what appears in the record, that the Shinns were about the only persons having anything to do with the Karam child who had any real affection for him, or who gave him appropriate care and attention, and that in the numerous shiftings of this responsibility they, in a legal and moral sense, had as much right to his custody as either one of the neglectful parents. The child was practically a waif, and we feel that under all the circumstances surrounding its alleged abduction there is no sufficient proof of a violation of the letter and spirit of the law to sustain the verdict of the jury.

The cause is reversed for insufficiency of the evidence, with instructions to the trial court to dismiss the action.

DOYLE, J., concurs.

EDWARDS, J., disqualified, not participating.