text:
    LEE CENTELL v. STATE.
    No. A-7070.
    Opinion Filed Jan. 17, 1930.
    (287 Pac. 429.)

      See, also, 38 Okla. Cr. 127, 259 Pac. 276.
    Sherman & Warren and C. H. Baskin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county on a charge of murder, and was sentenced to life imprisonment in the state penitentiary.

Defendant and one T. L. Ellard were jointly charged with the murder of L. S. (or Ellis) Baker. Ellard was driving the car in which defendant and Hull went to and from the place of the killing, and one Delmar Hull killed Baker by stabbing him seven times with a knife. All the parties were oil field workers. The killing occurred in the town of Earlsboro, at the house of a Mrs. Johnson. The testimony of defendant and his witnesses indicates that this place was a whisky joint and bawdy house, and that they went there to procure whisky. Mrs. Johnson had been doing laundry work for Baker, the deceased, for some time, and he went there on this occasion for the purpose of getting his laundry. He went into the kitchen to wait and was not in the front room or on the porch where the women were. Delmar Hull, who was with defendant and Ellard, was intoxicated to some extent. He went into the kitchen where Baker was, and soon a difficulty arose. A young son of Mrs. Johnson and two women, a Miss Williams and a Miss Carlton, who were on the front porch, started into the kitchen. Defendant was at the door leading from the front room into the kitchen, and put his hands on the side of the door and refused to let. any one enter, and just at this time Hull struck deceased in the stomach with a chair. Defendant testified that his motive in keeping others out of the kitchen was to see that Baker and Hull had a fair fight, although at the time he saw Hull had the chair raised to strike Baker. The theory of the state is that defendant aided, assisted, and abetted Hull in the actual killing. The theory of defendant, as just stated, is that he was atempting to see that there was a faiir fight between Baker and Hull, or that he was acting as a peacemaker. A square conflict is thus presented. From the rather voluminous record, we quote a few brief excerpts. Daisy William, who lived at the Johnson place, in part testified:

* * Q. After you turned around and went out on the porch you say Baker came running 'around the house? A. Yes, sir, about a minute after that.
“Q. Did you see Centell and Hull about that time, or later? A. Yes, as he came around the house Lee Centell was right after him, right behind him.
“Q. What was Centell doing, was he running? A. Yes, he as running.
“Q. After Baker, the dead man? A. Yes, sir. * * *
“Q. Just tell exactly what those three men did? A. Wei], after I left the house and walked onto the porch, in a few minutes, maybe a minute, Baker came running around the house, Lee Centell following him, and the car was parked out in front of the house in the road, with the motor running.
“Q. And Ellard sitting in the car? A. Yes, sir. Just as he started around the car, Lee Centell hit him— he got even with the car and hit him and knocked him against the car.
“Q. How? A. With his fist.
“Q. Where? A. Eight in here (indicating) I think, about the head and knocked him against the car, and then he grabbed him around the neck—Lee Centell grabbing him around the neck and was holding him and hitting him.
“Q. How did he grab him? A. Around the neck like this (indicating) someway, with his arm, and was hitting him in the face and Delmar Hull ran around the house and said ‘I will kill him,’ and stabbed him 4 or 5 or 6 or 7 or 8 times—4 times before they even started the car off, and he ran around and got in the left side of the car and Lee Centell got in on this side and tried to pull Baker into the car, but couldn’t. * * *
“Q. After Hull stabbed Baker what was Lee Centell doing? A. Still holding him.
“Q. Did he turn Baker loose at all? A. No, sir.
“Q. Now, what did Centell do to or with Baker after Hull stabbed him? A. He go into the car and tried to pull him into the car and couldn’t, but he was still holding him and dragged Baker on the running-board, and he drove north a block.
“Q. What was Baker’s condition at that time as to whether he was disabled in any way? A. Yes, sir, he was.
“Q. He was disabled and Centell dragged him on the running-board? * * *
“Q. Was anything said there by any of them, during that time you remember hearing? A. Baker said, ‘Please don’t kill me.’ * * *”

Hettie Carlton testified:

“* * * Q. What racket did you hear? A. A rumbling of some kind. I didn’t know what it was until I went to the middle door between the kitchen and living room. * * *
“Q. Where was Centell? A. He was in the middle door, standing in the middle door*. * * *
“Q. Tell the jury what happened- there you observed ? A. I started through the door, and he was standing in the door and he wouldn’t let me through.
“Q. What did he do? A. When he met me a second time he hit me and knocked me back.
“Q. How did he hit you and how did he knock you back? With what? A. Just his hand, shoved me back against the wall. * * *
“Q. What did he say? A. He said he would knock my head off if I didn’t stay back. * * *
“Q. Could you see into the room? A. Yes, sir, I saw under his arm.
“Q. What did you see? A. Well, I seen Hull hit Mr. Baker.
“Q. What with? A. With a chair, stool chair.
“Q. Where did he hit him; what part of his body? A. In the stomach. * * *
“Q. What was the next thing you observed? A. Mr. Baker coming around the side of the house.
“Q. How was" he coming? A. He was just trotting along.
“Q. What was his appearance to you at that time? A. Well, he-seemed to be kind of exhausted, kind of give-out as he came by me.
“Q. Did you see anybody else coming? A. Yes sir.
“Q. Around the house, who? A. Centell and Hull. * * *
“Q. Go ahead? A. And Centell ran onto him and hit him.
“Q. What did he hit him with? A. With his fist. •* * *
“Q. Go ahead and tell what occurred? A. He hit him and knocked him towards the car, and the next I seen he had his arm over Baker’s headr-had Baker’s head under his arm and setting down backwards into the car seat on the right hand side.
“Q. You say he had his arm over Baker’s head? A. Yes, sir.
“Q. Just tell the jury as nearly as you can how he had it? A. He had his head under his arm like this (indicating).
“Q. Had Baker’s head under Centell’s arm? A. Yes, sir. * * *
“Q. What else occurred then? Did you see Hull during that time? A. I wasn’t looking at Hull at that time. He came by me though when Centell stepped backwards in the car, Hull came by me and I saw a knife flash.
“Q. Where was the knife? A. In Hull’s hand.
“Q. Where did Hull go, and what did he do? A. He went by me and stabbed him. * * *
“Q. What was Baker doing at the time Hull stabbed him? A. He was standing on the ground with his head down.
“Q. Under Centell’s arm,, as you described? A. Yes, sir.
“Q. When the car started what happened to Baker and Centell and Hull? A. When the car started—well, the car was going so fast Mr.. Baker’s feet left the ground, and he caught with his knees on the running board and I seen Hull reach over Centell’s shoulder with the knife.
“Q. What did he do? A. He stabbed him.
“Q. Stabbed who? A. Baker.”

J. F. Vaught, a carpenter, who was working on a building across the street, testified:

“* * * Q. Just tell the jury what you observed with reference to this difficulty? A. Well, there was a fight started over there.
“Q. Over where? A. Over across that street by that house straight across that the store fronts. A couple of men fell out the back door in a scrimmage. * * *
“Q. What happened when they went out the back door? A. Well, there was a fellow came out right after them and he interfered in the fight.
“Q. What did he do? A. Well, sir, I think he kicked —the best I could see, he kicked this guy.
“Q. Kicked who? A. This man Baker, I believe his name was. He was on top, it looked like from where I sat in the scrimmage. * * *
“Q. Then, what occurred? A. This man got up off of him—Baker got up and this guy that did the kicking there hit him or cut him, I don’t know which.
“Q. The man that kicked him? A. Yes sir.
“Q. What, if anything, then happened. A. They went out of my sight around the house. * * *
“Q. Did you later see them? A. Yes sir.
“Q. Then, tell the jury what you saw? A. Just saw a rough and tumble fight.
“Q. Just tell what you did next see? A. They just grabbed him.
“Q. Grabbed who? A. Grabbed this party, Baker.
“Q. Who grabbed him? A. I don’t know; both of them, I reckon. * * *
“Q. What was done there then when they grabbed him? A. They looked to me like they was dragging him.
“Q. Who dragged him? A. Both of them, I suppose. They was in a bunch there together.
“Q. Where did they drag him to? , A. Drug him to a car, * * *
“How fast did that car start up and move away from there? A. Why pretty good gait, pretty fast.
“Q. What went with the man whose feet were dragging as they went along? What happened to him? A. I think they carried him about a block and threw him off. *• *

C. A. Oden, a tailor living-in a house 20 or 30 feet from the Johnson house, testified:

“* * * Q. Go ahead and tell what you observed as you left the well? A. The fight Avas going on in the house when I was at the well. I don’t know it was a fight, but I coiild hear blows and sounds. I couldn’t say that it Avas, but I got my water and started back, and when I got about half way between my house and the old house I saw a man run into the front yard and whom I do not know.
“Q. Where did he come from? A. He came either from around the house or front door of the house, I don’t know Avhich.
“Q. You -don’t know which? A. No, sir. This man seemed to be in misery or something. He seemed to be knocked breathless. I couldn’t explain his condition, but he was going towards town and I saw a good sized fellow —I don’t know none of the men but this fellow seemed the way it looked he would weigh 200 pounds, ran up behind .him and kicked him. Just after he kicked him he grabbed hold of him with Avhat I call a Nelson grip.
“Q. What do you mean a Nelson grip? A. Well, I can show you. * * *
‘“Q. Tell what then happened, Mr. Oden? A. After the man got hold of him Avith his Nelson grip, whom was a good sized man, he shook him and he took hold of him in a very rough manner and drug him up to the car, and then about' that time a third man came along and assisted in placing the man on the fender of the car.
“Q. Did you see where this third man came from? A. He came with the rest of them, but, however, he was later getting out than the others.
“Q. Now what did the third man do when he came up? A. When he came up he took hold of Mr.-, the man who got killed, whom they said was Mr. Baker— took hold of his right arm. After they placed him on the fender of the car then, he hit him or stabbed him a time or two. I don’t know whether he stabbed him or not. I did’t see the knife.
“Q. Describe the kind of blow you saw dealt? A. The kind of blows I saw dealt at that time were just straight blows. * * * He laid him on the car, you see, fighting him at the same time, this big mail—he seemed to be the biggest man in the crowd of the three. Then he places him—helped shove him towards the car, push him towards the car, and he ran around and got in from the other side, if I remember right, and reached over and stabbed again. I didn’t see the knife.
“Q. Which one did that? A. I don’t know.
“Q. Was it the big man or the other man you say stabbed him? , A. It wasn’t the big man that done the hitting at that time.
“Q. Now, did you see the big man hit him at all? A. Yes, sir, I did. * * *
“Q. Then tell what occurred, what you heard or saw there? A. I only heard the man that got killed say ‘give me my hat.’ That is all I remember ever hearing the man say.
“Q. What else occurred that you saw. A. At that time the motor was moving west, or the car was moving west, and there was still blows being made as the car moved on, and then when they got to the corner of the street this man was shoved off the running-board and he hollered once or twice and was dead when I got down there.
“Q. How fast did that car move down the street as they went away? A. I couldn’t say.
“Q. Well, about how fast, could you say about how fast it moved? A. Well, I would estimate 18 miles an hour, or 20.
“Q. When the man fell off the car, how did he fall, in what position? A. He didn’t fall off the car, no sir.
“Q. How did he get off? A. The big man shoved him off. * * *”

Other disinterested witnesses testified along the same line. Even on defendant’s own evidence it is difficult to see how an impartial jury could have concluded that he was attempting to see a fair fight between Baker and Hull, and that later in the difficulty he acted as a peacemaker. Defendant and Hull were friends. They had gone to this place together. Hull was drinking heavily and was a large and robust man. It is evident that, after Hull had struck Baker with a chair and Baker fled in a weakened condition, both defendant and Hull pursued him, and that defendant struck him, then held him while Hull came up and stabbed him, and, after he was taken some distance, held by defendant on the running-board of the car, he was shoved or thrown to the ground and left to die. The testimony for the state proves a cruel and vicious murder. The case fully illustrates the wisdom of the rule that questions of fact are for the determination of the jury, who hear the witnesses and observe their demeanor on the stand, and are in a better position to weigh and determine conflicts of testimony and the credibility of witnesses than an appellate court, whose members, of course, do not have this opportunity. There is an abundance of testimony to support the verdict of the jury, and from which they could reasonably and logically find that defendant aided, abetted, and assisted in the homicide.

It is also argued that the court erred in instruction No. 15. This instruction, in substance, tells the jury that, if they believe or have a reasonable doubt that deceased approached the car for the purpose of procuring a weapon with the intent to resume the difficulty with Hull, and believed or had a reasonable doubt that defendant in his acts was attempting to dispossess or prevent the deceased from procuring a weapon, or have a reasonable doubt that defendant knew that Hull was armed with or using a knife upon deceased, or if they had a reasonable doubt that defendant knowingly assisted Hull, then they should acquit him. This instruction is not well worded, but it does not place on defendant the burden of proving his defense. The killing is undisputed. It was also proven that defendant participated in the things which led up to and caused the death of deceased. Section 2719, Comp. Stat. 1921. The conflict is as to the extent of or purpose of his participation. The court here evidently was attempting to state to the jury defendant’s theory and to tell them, if they believed this theory or had a reasonable doubt of it, they should acquit. This instruction, in connection with the other instructions, is not prejudicially erroneous.

Complaint is also made that during the course of the trial the court ordered the defendant committed to the custody of the sheriff. This it is insisted indicated to the jury the opinion of the trial judge. The court had express authority to make such order. Section 2724, Comp. Stat. 1921. Nothing is suggested that would indicate an abuse of discretion.

Some other assignments of error are argued in the briefs, but none of .them are of sufficient importance to call for special discussion.

Upon a careful consideration of the entire record, we find no material error.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: CAPPELL, J.

license: Public Domain

text:
    ROY DIXON v. STATE.
    No. A-7004.
    Opinion Filed Jan. 17, 1930.
    (288 Pac. 357.)

      Blanton, Osborn & Curtis and Sandlin & Winans, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CAPPELL, J.

The plaintiff in error, hereinafter called defendant, was jointly indicted with his brother, John Dixon, and charged with the murder of one Francis Pearce, alleged to have occurred on the 25th day of March, 1926. Roy Dixon was convicted and sentenced to serve a term of four years in the state penitentiary. This is a companion case to that of Dixon v. State (No. A-6830) 45 Okla. Cr. 218, 282 Pac. 686, in which case the codefendant, John Dixon, had been previously convicted of manslaughter and sentenced to a term of seven years in the penitentiary. This conviction was affirmed by this court on the 16th day of November, 1929.

The killing occurred at a country dance in the southwest part of Garvin county. The defendants asked for a severance of trial, and the state elected to try John Dixon first. In that trial the contention of the state was that John Dixon fired the shot that killed the deceased, Francis Pearce, and that Roy Dixon was an aider and abetter in the killing. In the case at bar the theory of the state was the same as in the trial of John Dixon.

The evidence of the state, in substance, was that defendant and Francis Pearce had engaged in a fight a short time previous to the killing, and that the defendant had received the worst of that encounter; that John Dixon took a revolver from his pocket, and attempted to kill deceased at that time; that the defendant with his brothers, Red Dixon and John Dixon, left the house for a short while, and that the dance was resumed in their absence; that in a short time the defendant with his brothers returned to the room where the dance was being held, and that defendant immediately renewed the fight with deceased; and that, while deceased was being assaulted by defendant, John Dixon fired the shot which resulted in the death of Francis Pearce.

The defendant first contends that the evidence is insufficient to support the verdict of the jury. The theory of the state was that there was an understanding between the defendant and John Dixon, that defendant should renew the assault on Francis Pearce, and that John Dixon, being armed, should intervene therein and use said weapon upon the pretext that it was necessary to do so to defend his brother, the defendant, against any assault then being made upon him. This court has repeatedly held that, in passing upon the sufficiency of the evidence to support the verdict and judgment, it is only necessary that the court may find in the record a basis in the evidence upon which the judgment may. be sustained. Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115.

The state’s evidence in this case furnished a basis upon which the jury could reasonably conclude that both' of these defendants were guilty of the crime of murder, and that it was plainly their intention to commit a felonious assault upon the deceased, and that they were acting together in the commission of that assault, and that the killing was a direct result of that assault, as contemplated by both of them. Where the evidence would support a conviction of murder, it is amply sufficient,, if believed, to support a conviction of manslaughter. Warren v. State, 6 Okla. Cr. 1,115 Pac. 812, 34 L. R A. (N. S.) 1121; Jones v. State, 8 Okla. Cr. 576, 129 Pac. 446; Marshall v. State, 11 Okla. Cr. 52,142 Pac. 1046; Hickman v. State, 32 Okla. Cr. 307, 240 Pac. 1097.

The defendant complains that the court erred in instructing the jury touching the question of his guilt of murder. Inasmuch as he was only convicted of manslaughter in the first degree, he will not he heard to complain of any instruction touching upon the law applicable to his guilt of the crime of murder. Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526; Lady v. State, 18 Okla. Cr. 59, 192 Pac. 699; Agent v. State, 18 Okla. Cr. 281, 194 Pac. 233; Roberts v. State, 36 Okla. Cr. 28, 251 Pac. 612.

An examination of the instructions given and complained of in this case discloses that, taken as a whole, they cover the law of the case, and are as favorable to the defendant as the evidence warrants. Taken sepai*ately, some of the instructions may not correctly and fully cover every phase of the law of this case, but, taken as a whole, they are sufficient. McCarty v. State, 21 Okla. Cr. 365, 207 Pac. 1069; Ned v. State, 29 Okla. Cr. 389, 233 Pac. 1096; Lacy v. State, 30 Okla. Cr. 273, 236 Pac. 53; Houston v. State, 43 Okla. Cr. 181, 277 Pac. 687.

The defendant next contends that the court erred in refusing to give instructions requested by him. It is not error to refuse to give requested instructions where the instructions given by the court on its own motion are sufficient. White v. State, 22 Okla. Cr. 131, 210 Pac. 313; Jessie v. State, 28 Okla. Cr. 309, 230 Pac. 519.

The defendant complains of other errors, but they are not of sufficient importance to require a reversal of this case. For the reasons stated, the cause is affirmed.

EDWARDS, P: J., and DAVENPORT, J., concur.


author: CHAPPELL, J.

text:
    WALTER D. CLINKSCALES v. STATE.
    No. A-6960.
    Opinion Filed Jan. 25, 1930.
    (288 Pac. 348.)
    Mounts & Chamberlin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tillman county of the crime of assault with intent to commit rape, and his punishment fixed at a fine of $175. It is from this verdict of the jury that he appeals.

The record in this case recites a story of debauchery and wanton human misconduct almost unbelievable. The evidence of the prosecutrix is that she was married at the age of 12 years; that from the time she was 14 years of age her husband took her around the country and solicited men to have sexual intercourse with her as a means of procuring a livelihood; and that during nearly two years she had intercourse with such a large number of men that she was unable to remember who they were or where the intercourse occurred. She¡ testified that on or about the 22d day of August, 1927, one Eugene Wise took her to the home of the defendant; that it was a two-room house with only one bed; that she was dressed in overalls with a thin undergarment; that she slept the first night in the bed between Wise and the defendant, sleeping in the undergarment, and that the defendant did not attempt to have intercourse with her; that on Monday night before the defendant came home she had intercourse with Wise; that the three slept in the same bed as the night before; that on Tuesday night she again had intercourse with Wise before defendant came home, and that when defendant came home she was standing beside the bed in this undergarment; that the defendant asked her to have intercourse with him; that this was in the presence of Wise and another man in the house named Hanley, and that she told the defendant that her monthlies were on, and that the only thing the defendant did was to put his arm around her and ask her to have intercourse with him; that he made no assault upon her and made no attempt further than to ask her to have intercourse with him. The defendant vehemently denied that he attempted to have intercourse with the prosecutrix.

The defendant contends that the evidence offered by the state is wholly insufficient to constitute an assault with intent to commit rape. To constitute an attempt to rape there must be more than a mere preparation. There must be some overt act, with the intent to commit the crime, coupled with an actual or apparent ability to complete the crime. Mere indecent advances, solicitations, or importunities do not amount to an attempt.

In the case of Carter v. State, 44 Tex. Cr. R. 312, 70 S. W. 971, it is held:

“To consitute assault with intent to rape a girl under 15, there must be a taking hold of the gild in such manner as to indicate the specific intent to have carnal knowledge of her, and the mere fact that an accused may have produced in the girl’s mind a sense of shame or other disagreeable emotion or constraint is not sufficient.” Garrison v. People, 6 Neb. 274; State v. Harney, 101 Mo. 470, 14 S. W. 657.

In Proctor v. State, 15 Okla. Cr. 338, 176 Pac. 771, this court said:

“A guilty intention, unconnected with an overt act or outward manifestation, cannot be made the subject of punishment under the law.”

In Weaver v. State, 16 Okla. Cr. 564, 185 Pac. 447, this court said:

“To sustain a conviction of attempt to have carnal knowledge of a female under the age of 16 years, there must not only be the intent, but some overt act in furtherance of such intent must be shown.”

In this case the evidence of the prosecutrix is uncorroborated and fails to establish the charge of assault upon her with intent to commit rape. It was error for the trial court to permit the case to go to the jury, since there was no competent evidence proving the charge beyond a reasonable doubt as required by law. For the reasons stated the cause is reversed.

EDWARDS, P. J., and DAVENPORT,'J., concur.


text:
    ALVA McCANDLESS v. STATE.
    No. A-7052.
    Opinion Filed Jan. 25, 1930.
    (287 Pac. 778.)

      Leedy & Leedy, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and confinement in the county jail for thirty days.

The evidence of the state was that some deputy sheriffs visited the home of the defendant, served a copy of a search warrant on him, and proceeded to search the premises. In the house they found three pints of whisky, eight or ten beer cases, ten or .twelve one-gallon jars with mash in the bottom of them, a sack with a jug and a bottle and fruit jars in it, all of which smelled strongly of alcohol and whisky. That as the officers left the house the defendant got on his horse and started west. They halted him and ordered him to remain at the house. That when they got farther away from the house they saw defendant on his horse again going toward a field. That he rode up to a shock of kaffir corn and broke a dozen bottles. That when they got up to him his hands were bleeding and there was a strong smell of home-brew and alcohol. That the defendant admitted the whisky and the broken bottles and the other bottles and paraphernalia in the house belonged to him. That he offered one of the officers $10 not to take the beer and whisky to town. That he kept beer there most of the time. That he had lots of relatives and they liked beer, and that he gave them a drink when they came.

The defendant claimed that he kept the whisky for his own use and that the bottles he broke contained home-brew which had spoiled.

The defendant first contends that this evidence is insufficient to support the verdict of the jury. This claim is without merit. The other objections of defendant go to the rulings of the court on the admission of incompetent, and rejection of what he claimed was competent, evidence. The information charged the defendant with the possession of intoxicating liquor, to wit, moonshine whisky and home-brew, with intent to barter, sell, give away, and otherwise furnish or dispose of the same. All of the evidence was competent for the purpose of establishing the possession and the intent of the defendant. A careful examination of the record discloses that the defendant had a fair trial.

The evidence is sufficient to support the verdict of the jury, and the cause is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    O. T. GRIDER v. CITY OF ARDMORE.
    No. A-7001.
    Opinion Filed Jan. 25, 1930.
    (287 Pac. 776.)

      Sigler & Jackson, for plaintiff in error.
    R. B. Brown, City Atty., for defendant in error.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of violating city ordinance No. 528 of the city of Ardmore, Okla., i. e., selling milk without a license, and his punishment fixed at a fine of fl and costs of the prosecution.

The defendant was engaged in the business of selling and distributing milk in the city of Ardmore. Ordinance No>. 528 of such city required the payment of a license fee of $1 per head for each cow whose milk was distributed in the city during the current year. The defendant refused to pay the license fee, and was arrested, tried in the police court of the city, and, from a judgment of conviction, appealed to the county court of Carter county, and, from a conviction in such court, he has appealed to this court.

Defendant in his brief states the issue as follows:

“It will probably be contended by the city that the city has the authority to levy this tax from its general police powers. That even if the authority is not conferred upon the city in so many words that by implication the city has a right to levy this license tax for the purpose of regulation only. We admit that the city has the right under its general police powers to regulate and to control the vending of milk to inhabitants of the city. Necessarily its power is an implied power, but it is our contention that the city 'has no right to levy an exorbitant tax upon the dairymen in order to regulate the dairies. The evidence showed in this case that the defendant complied with every provision of the milk ordinance with the exception of the payment of the fees of one dollar, and the only thing necessary for him to do to obtain a license or permit to sell milk in the city of Ardmore was the payment of that fee. We say that the city, not having the authority delegated to. it by the state, has no right to impose upon the defendant the tax of one dollar per head) each year on his cattle.”

The defendant offered no evidence to show that the license fee of $1 per head for the privilege of peddling milk furnished by his cows, was unreasonable.

37 Corpus Juris, p. 187, lays down the rule as follows:

“Presumption. In the absence of positive evidence to the contrary, however, such acts or ordinances are presumed to be reasonable, and the courts will not interfere unless their unreasonableness and oppressiveness is clearly apparent, the burden of proving their unreasonableness or invalidity being on the one who asserts it, usually the licensee.”

Section 1067, p. 414, of McQuillin Municipal Corporations (2d Ed.) lays down the rule:

“Milk Inspection and Adulteration. Reasonable ordinance regulations providing for the inspection of milk sold within the corporate limits and forbidding its sale when below a prescribed standard, and authorizing its summary destruction if found to be impure, in accordance with such standards, are uniformly held valid and constitutional, as manifestly within the police power.” Deems v. Baltimore, 80 Md. 164, 30 A. 648, 26 R. L. A. 541, 45 Am. St. Rep. 339; Witt v. Klimm (Cal. App.) 274 Pac. 1039.

In Ex parte Dickison, 138 Okla. 266, 280 Pac. 797, Mr. Justice Riley speaking for the court said:

“Held the manner of enforcement of Ordinance 3057 of Oklahoma City is not shown to have been so arbitrary and discriminatory as to warrant equitable relief.”

In the body of the opinion the court said:

“It is probable that, in the absence of any grant of power from the sovereignty, the city would have authority under police power to enact regulatory ordinances, restricted, as it would be, as to the amount of license fee to be charged, to the cost of issuance and regulation.” Ex parte Simmons, 5 Okla Cr. 399, 115 Pac. 380; Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537.

Ordinance No. 528 of the city of Ardmore being within the police power of the city is constitutional and is a valid regulation of the business of producing and distributing milk in such city. The defendant having made no showing that the license fee required is unreasonable, the presumption is that such fee is reasonable and necessary for issuing such license and regulating such business.

For the reasons state, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    EFFIE WATSON v. STATE.
    No. A-6998.
    Opinion Filed Jan. 25, 1930.
    (287 Pac. 816.)

      See, also, 38 Okla. Cr. 268, 260 Pac. 787.
    Wells & Greer, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C.. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county on a charge of manslaughter in the first degree, and her punishment fixed at a term of four years’ imprisonment in the state penitentiary. •

The defendant and the deceased were negroes. The killing occurred on the public streets of Seminole, and wasi evidently caused by jealousy which the defendant felt toward was deceased because of the attentions of the husband of the defendant toward deceased. On the evening of the killing the defendant and deceased had attended a religious meeting of the Negro Holiness Church in the city of Seminole. At the conclusion of the services the deceased and some relatives and friends, who were with her, went to the Simpson Cafe, which was on the north side of one of the main streets of Seminole.

The deceased and her stepbrother, Leoi King, left the rest of the party at the Simpson Cafe, and went across to the south side of the street to the Oklahoma Cafe to get some chewing gum. King, testifying in the case, said that, as they were returning across the street to the Simpson Cafe, the defendant approached the deceased from the rear, and began to carve her with a knife, inflicting some 17 or 18 wounds in the b’ack, face, neck, and arms. The deceased was taken to a doctor’s office, where she died) some forty minutes after the cutting from loss of blood. The theory of the state was that the crime was murder, the motive being jealousy. The defendant defended on two grounds, self-defense and emotional insanity.

The defendant contends, first, that the court erred in excluding material and competent evidence of the defendant’s temporary insanity. In connection with this assignment of error, counsel for defendant incorporate in their brief several excerpts from the record relative to the examination of the defendant wherein it is disclosed that the trial court sustained some objections made by the state’s counsel to the questions asked, to which ruling counsel for defendant excepted, but made no showing whatever as to 'what could be proved by the witness if she were permitted to answer the questions asked and excluded by the court. This court has repeatedly held that it is necessary that there be some showing as to what the testimony of the witness would have been had he or she been permitted to answer the question before error may be predicated on the trial court’s action in sustaining objections to questions propounded. Price v. State, 1 Okla. Cr. 358, 98 Pac. 447; White v. State, 4 Okla. Cr. 143, 111 Pac. 1010; Stouse et al. v. State, 6 Okla Cr. 415, 119 Pac. 271.

Failure to show what the evidence would have been had the answer been permitted prevents defendant from raising the question of the improper exclusion of evidence. Before this court can pass intelligently and safely upon a question of this kind, it would have to know just what the witness would have testified to. Furthermore, it appears from the record that counsel for defendant got before the jury all the evidence they had available on this question, since the defendant was permitted to testify about her trouble with deceased going with her husband and what deceased said about it, and was permitted to sta te that the effect of these conversations and these relations between deceased and her husband was that “it just worried me so that I got to talking to him about it.” The contention of the defendant that she was injured by the failure of the court to permit her to answer the questions complained of is without merit.

The defendant next complains that the court erred in refusing to give defendant’s requested instruction on temporary insanity. It is contended by the defendant that it is the duty of the court to instruct on any theory of the defense which the evidence tends reasonably to support, when requested to do so. As a principle of law, this statement is correct, but the difficulty about this case is that there is no competent evidence in the case tending to support a defense of insanity as such defense is defined by the statutes of this state. All the evidence of insanity is that of the defendant that her memory failed her during the heat of combat, and that the alleged relationship of deceased with her husband is that “it just worried me so that I got to talking to him about it,” and further that on several occasions she had told the deceased to “leave her husband alone.” If such evidence as this demands an instruction on the defense of insanity, then every killing in the heat of passion would demand it. The trial court is only required to instruct on the theory of the case which the evidence reasonably supports. Newby v. State, 17 Okla. Cr. 291, 188 Pac. 124; Smith et al. v. State, 22 Okla. Cr. 383, 212 Pac. 1012; Turner v. State, 43 Okla. Cr. 380, 279 Pac. 525.

The refusal to give the requested instruction on temporary insanity in this case, therefore, was not error, because there is no evidence in the record reasonably tending to support such theory.

The defendant next contends that the court erred in giving instruction No. 14, which reads as follows:

“Gentlemen of the Jury: In view of the argument which has been made the court instructs you as follows: Illicit relations between the deceased and the husband of the defendant, if such existed, would not warrant or justify the defendant in assaulting or taking the life of the deceased. No one in this state has the right to take the law into their own hands and take the life of another for vengeance only, for a real or fancied wrong.”

Defendant admits that as an abstract proposition of law this instruction is correct, but it is argued that, because the trial court had already stated the law contained in this instruction, in instruction No. 8, it was prejudicial and argumentative for the court to emphasize the propo-' sition after defendant’s counsel had argued the ease. It appears from the face of instruction No. 14 that it was given because of some argument made by defendant’s 'counsel. It appears that counsel in his argument undertook to instruct the jury as to the law of the case instead of considering the jury bound by the court’s charge. The jury is the sole arbiter of the facts, but must take the law as the court gives it to them. Section 2690, O. O. S. 1921; Kent v. State, 8 Okla. Cr. 188, 126 Pac. 1040; Frazier v. State, 34 Okla. Cr. 375, 246 Pac. 652.

It appears that following the opening argument of the state that defendant’s counsel said, “This woman was' crazy.” The court said, “I will not permit you to make that argument.” Counsel for defendant said, “We have shown by the evidence that she was crazy and did not know what she was doing and the state had not shown that she was not crazy.” Thereupon the court said in the presence of the jury, “The court refuses to instruct upon the question and it is not in this case.” The court then gave the instruction complained of. Defendant contends that the argument which the court had with defendant’s counsel in the presence of the jury and the giving of instruction No. 14 ¡were prejudicial to the defendant. Under the circumstances in this case the court could not well maintain its self-respect and dignity by letting such conduct go on unnoticed and the jury be misled as to whether it should follow the law given by the court or that contended for by counsel in his argument. Since counsel did not except to a single instruction before they were given to the jury, they were in no position to criticize them in argument, and the trial court is to be commended rather than rebuked in trying to' keep the jury from being misled in its duty.

This is a conviction in which a jealous negro woman cut the rival for her husband’s affections 17 or 18 times, killing her, and yet got off with four years in the penitentiary. The evidence being sufficient to support the verdict of the jury and the defendant having had a fair trial, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    ART OVERBY v. OKLAHOMA CITY.
    No. A-7586.
    Opinion Filed Jan. 25, 1930.
    (287 Pac. 796.)
    See, also, 43 Okla. Cr. 400, 279 Pac. 523.
    Hall & Thompson, for plaintiff in error.
    M, W. McKenzie and G. B. Fulton, for defendant in error.
   DAVENPORT, J.

The plaintiff in error, hereinafter •referred to as the defendant, was by complaint filed in the municipal court of Oklahoma City charged with the violation of a city ordinance by maintaining a nuisance by operating a mechanical device known as a slot machine. The defendant was convicted, and appealed from the municipal court to the county court of Oklahoma county, tried and convicted, and Ms punishment fixed at a fine of $19 and cost. Motion for new trial was filed, considered, overruled, and exceptions saved, and the defendant has appealed to this court.

The ordinance upon which the complaint is found is No. 3608. The portion under which said charge is laid reads as follows:

“It shall be unlawful and an offense for any person, firm or corporation to operate or be in control of the operation of any mechanical device, contrivance or instrumentality, ordinarily known as a ‘slot machine’, or wherein or whereby, upon a deposit therein of a coin, slug, or token, there is received in exchange, depending upon chance, any money, or any card, paper, check, token, slug or other evidence of winning is, or may be exchanged or redeemed for anything of value or may he deposited in such device and exchanged thereby for merchandise, money or cards, papers, checks, tokens, slugs or other additional evidence of winning, or which slot machine shall vend any merchandise in varying quantities, such quantities in anyway depending upon chance. Such slot machine is hereby declared to be a public nuisance as being a gambling device and unlawful and against the welfare of the city of Oklahoma City, and may be abated as hereinafter provided.”

The charging part of the complaint is as follows:

“John Von Elm, of lawful age, being duly sworn, on oath, deposes and says that on the 3rd day of June, 1929, in the city of Oklahoma City, in Oklahoma county and state of Oklahoma, one Art Overby did then and there unlawfully and contrary to the ordinance of the city commit the offense of operating a public nuisance, that is to say, the said Art Overby did have under his control the operation of a mechanical device, ordinarily known as a ‘slot machine,’ to wit: A Mills O. K. Mint Vending Machine, wherein upon a deposit therein of a coin, there is received in exchange, depending upon chance, checks, or other evidence of winnings, which may be exchanged for anything of value, or which may be deposited in such device and exchanged thereby for merchandise, to wit: Mints. The said offense was committed at No. 1 West California avenue and is contrary to Oklahoma City ordinance No. 3608.”

The case was tried to the court, a jury having been expressly waived, upon the following statement of facts:

“Come now the city of Oklahoma City, by Malcolm McKenzie, city counselor, and Art Overby, by Hall & Thompson, his attorneys, and hereby agree upon the following statement of facts in the above styled and numbered cause:
“That the defendant Art Overby was charged in the city court of Oklahoma City with violating a city ordinance of the city of Oklahoma City, Oklahoma, by operation of a mechanical device, contrivance or instrumentality ordinarily known as a ‘slot machine,’ in which complaint it was charged that said Art Overby then and there unlawfully and contrary to the ordinance, did commit the offense of operating a public nuisance, that is to say, the said Art Overby did have under his control the operation of a mechanical device, ordinarily known as a ‘slot machine,’ to wit: A Mills O. K. Mint Vending Machine, wherein upon a deposit therein of a coin, there is received in exchange, depending upon chance, checks or other evidence of winnings, which may be exchanged for anything of value or which may be deposited in such device and exchanged thereby for merchandise, to wit: Mints.
“That he !was tried in the city court and convicted and fined the sum of nineteen dollars and costs, from which conviction and sentence the said Art Overby appealed to the county court of Oklahoma county, Oklahoma.
“That said machine was the property of the Superior Confection Company of Columbus, Ohio, and leased or rented to the said Art Overby under written contract, in which contract it was provided that: ‘The party of the second part further agrees that he will not redeem any tokens from the Superior automatic salesman for either cash or merchandise and he will not buy or suffer anyone else to buy or obtain any of these tokens in any manner whatsoever in trade. In event, he does, this contract does hereby become null and void, and this party of the first part has the right to enter the premises and remove the machine therefrom.’ .
“That the said Art Overby, at his place of business, was operating said machine in conformity to his contract, and that the metal tokens were not redeemed by him in any manner. That the machine so operated by the said Art Overby is described as follows:
“That said machine, by design and operation, is intended to be a merchandise vending machine with an amusement feature, designed for the purpose of attracting the attention of customers to the machine and, by amusing them to stimulate the sale of mints. Said machine consists of a rectangular metal box of a convenient size and suitably ornamented. In the front part thereof there are several vertical' racks for holding the packages of mints to be vended. The mints are put up in cylindrical packages and are placed in said racks horizontally and, immediately behind the glass windows with which the front of said machine is provided, so that the customer can see the kind and character of packages offered for sale, Said machine is provided with a slot so constructed as to exactly fit and accommodate a nickel (five-cent piece), and with machine so designed and constructed that said machine will deliver to the customer or operator a package of mints only upon the deposit of a nickel in said slot, and each time a nickel is so deposited. In the upper part of said metal box, behind a glass window in the front thereof, is placed an advertising or amusement feature designed to attract attention to said vending machine and to amuse the customers thereof and to thereby stimulate the sale, by said machine, of the mints contained in said' machine. Said amusement feature consists of three metal discs or reels, upon the outer surface of which are pasted, at intervals, bits of paper, variously and brightly colored1 and cut in various fantastic shapes, so that when said reels are spun, in the manner herein below described, they cause a flash or flare of rapidly moving and contrasting colors, intended to attract the attention of the passing public to said vending machines. To further attract and to amuse the customers of said vending machine and others whose attention has been attracted thereto, each of the bits of paper on the outer surface of said reels has printed upon it words depicting, in an amusing manner, the character, talents or fortune of the observer. The design, use and operation of said reels are purely an advertising feature, intended to be operated solely to attract attention to said machine and to amuse its customers and others attracted thereby and to stimulate trade, namely, the purchase of mint candy from said vending machine.
“That said machines are operated as follows: The patron deposits a nickel in the slot provided therefor on the machine, pulls a lever attached to the side of the machine and then turns a knob below, which operations release into an open slot or tray at the bottom of the machine one standard five-cent package of mints (which are candied confections). At the same time, by the same operation, the three reels on the front of said machine are caused to spin, creating a flash of color, which are designed to attract attention of others to> said machine. Said reels quickly come to rest, displaying to the observer the amusing sentences depicting his or her character, talents, prospects of marriage or other prognostications concerning his or her future.
“At intervals, when the machine is thus operated, it causes to drop into a receptacle at the bottom of the machine metal slugs, or tokens, varying in number from two to twenty, which are colored to resemble brass, but which, in fact, are intended to have no monetary, merchandise or exchange value, and are not redeemable in money, merchandise or other thing of value, according to the terms of the contract hereinabove set forth, but 'may be used solely for the purpose of amusement by the purchaser of said package of mints, so far as the machine is concerned, in the following manner, namely: They may be dropped into the slot on said machine, and then, when the lever on said machine is pulled, the three reels on the front of said machine are caused to spin and to exhibit to the observer each time, new or additional ‘fortune’ depictions of character, and other amusing sentences printed on the numerous bits of paper pasted on the outer surface of said reels.
“Said vending machine is so constructed that, in no instance, when it is being operated by said metal slugs or checks, does the operator receive, nor will the machine deliver, any mints, merchandise, money or anything other than the operations of the fortune telling device, and, at intervals, metal slugs or checks of the same kind and character. The only operation of said machine that can be obtained or caused by the use of said metal slugs or checks is the spinning of the reels above referred to and at intervals, the delivery of said machine into said open tray of other additional slugs or checks of identically the same kind, for the same identical use. The purpose of this being to stimulate the operator to continue the reels to spin, thereby making flashing of moving color that are intended to attract attention of the passing public to said; machine, and to amuse the operator and other observers thus attracted, as above set forth.
“Said metal slugs or checks, when delivered by said vending machine, are intended to have no money or property value and are intended to be of use only for the purpose of operating the amusement feature of said machine, as above set forth. Said metal checks have, stamped on one side thereof, the words, ‘No cash or trade value whatsoever,’ and, in similar lettering, on the other side thereof, the words ‘Loaned for amusement only.’
“On the top of said vending machine, in an ornamental frame, said machine displays a sign, printed in large black type, the following information, namely:
“ ‘The tokens received from this vender are of no value. Tokens may be used to replay this vender for the customers’ sole amusement.’
“In another metal frame, immediately below the three amusement reels and set at such an angle as to naturally meet the eyes of the customer when and before operating-said machine, is displayed in large, plain type the same words above quoted, and, in addition thereto, the following words, to-wit:
“ ‘A package of confectionery vends with each five cents. Confectionery not vended with amusement tokens.’
“In every instance, when the machine is operated with a nickel (which is the only coin that operates it), when it delivers mints, the purchaser or operator thereby receives a standard five-cent package of mints, which package has a universal, fixed commercial value of five cents. In no instance does the operator fail to receive for his five-cent piece full compensation in mints.
“Either party reserves the right to offer and introduce any additional evidence upon any other fact or facts not set out herein.
“That Art Overby filed petition for writ of habeas corpus in the Criminal Court of Appeals, and is the same person as defendant in this case.”

The defendant has assigned eight errors alleged to have been committed by the trial court. In the view we take of this record, they may be considered together, as they all relate to the question of the sufficiency of the evidence to sustain a conviction. The only question to be determined by this court is the question as to whether or not the proof in this case is sufficient to sustain a conviction of the violation of the city ordinance under which the defendant in this case is charged. There is no controversy between the city and the defendant as to the facts in this case. It will be seen that the defendant is charged with the violation of a city ordinance which defines what it takes to constitute gambling, in the following language:

“The operation of any mechanical device, contraption, or instrumentality ordinarily known as a ‘slot machine’ or wherein or whereby, upon a deposit therein of a coin, slug or token, there is received in exchange, depending upon chance, any money, or any card, paper, check, token,slug or other evidence of winning is, or may be exchanged or redeemed for anything of value or may be deposited in such device and exchanged thereby for merchandise, money or cards, papers, checks, tokens, slugs or other additional evidence of winning, or which slot machine shall vend any merchandise in varying quantities, such quantities in any way depending upon chance. Such slot machine is hereby declared to be a public nuisance as being a gambling device.”

The defendant contends that the slot machine operated by him in the manner in which it is constructed, and in the manner in which he operated the same, is not a gambling device. This defendant was before, this court, In re Application for Writ of Habeas Corpus of Art Overby, 43 Okla. Cr. 400, 279 Pac. 523, 524, in which case this court said:

“A slot machine is not per se a gambling device. 12 R. C. L. 729; 27 C. J. 968; Nelson v. State, 37 Okla. Cr. 90, 256 Pac. 939. It is only when a slot machine comes within a definition of a gambling device, as where it delivers some commodity in a varying quantity, or where the player may receive, depending on chance, something of value or a token of some kind redeemable for something of value, or where there is some other element which appeals to the gambling instinct, that it is a gambling device. 27 C. J. 989; 2 Bouvier, Law Dict. (Bawle) Gambling, p. 1330; 4 Words and Phrases, First Series, p. 3029 ; State v. Johnson, 15 Okla. Cr. 460, 177 Pac. 926; Nelson v. State, supra. Where the commodity vended by a machine is unvarying, where no cheek or token of any value or redeem-. able or playable for anything of value in addition to the commodity vended is received, it is not a gambling device.”

It is contended by the representative of the city that the machine as operated by the defendant was a violation of the city ordinance, and in support of his contention cites the case of State v. Apodaca, 32 N. M. 80, 251 Pac. 389. An examination of this case shows the stipulation of facts is as follows:

“Every time you put a nickel in the slot machine the indicator shows exactly what you get with the nickel, in the way of chips as well as gum. Each time * * * the indicator will show the number of additional chips you get with the particular nickel you put in, and if you deposit chips in the machine you may get additional chips if the indicator so shows, but do not get gum; the indicator at all times showing what you get whether playing a chip or money, each chip having a purchasing power of five cents at the place only where the slot machine is operated.”

And in the body of the opinion we find that the proprietor not only risks the loss of checks of value in trade, but that the said checks were redeemable at the place where the said machine was being operated. We do not think the facts in the Case of Apodaca, supra, are applicable to the facts in this case.

The attorney for the city cites the case of State v. Woodman, 26 Mont. 848, 67 Pac. 1118, in which case, in the second paragraph of the syllabus, it was held:

“That a nickel in a slot machine, involving in its operation the element of chance as to whether the player obtained in cigars more or less than the value of his money, was prohibited thereby.”

This Montana case is not applicable to the facts in this case, as there is no testimony tending to show that, when the customer placed his nickel in the slot machine in question, he expected to receive anything further than a package of mints of the value of five cents.

This court in the case of State v. Johnson, 15 Okla. Cr. 460, 177 Pac. 926, stated what kind of a-machine is a gambling device. The facts in the Johnson Case not being the) same as the facts in this case, it is the contention of the defendant that the machine he was charged with operating in no instance or under no circumstances is played as a game of chance; that, when a player of the machine deposits a nickel in the slot, he receives for his five cents a package of mints of the retail price of five cents; that sometimes, in addition to the mints, he receives metal slugs of no value, which may be played back into the machine for the amusement of the customer, but which checks or slugs are not redeemable for anything whatsoever, and in playing them back in the machine no merchandise is ever delivered by the machine—in such ease the reel revolves, and the pointer comes to rest at some sentence pasted thereon purporting to depict character, or to tell the fortune of one. Under the stipulation of facts, this is all the machine does, and all plaintiff in error ever did with it, and, under the facts in' this case, the machine he was operating was not a gambling device and operated in violation of the city ordinance.

In Nelson v. State, 37 Okla. Cr. 90, 256 Pac. 939, 940, this court defined the kind of a machine that is not a gambling device, in the following language:

“It is evident that a mere vending machine, by which merchandise is dispensed in a uniform quantity to each purchaser, although the price may be deposited in a slot in such machine, is not what is meant. The use of a vending machine is not unlawful. Such a machine cannot be played for money, property, checks, credits, or any representative of value as the terms are used in this statute.”

The court, in the case of Ex parte Fuller, 31 Okla. Cr. 289, 238 Pac. 512, 513, in the body of the opinion, held:

“The vending of mints, chewing gum, and candy by a coin machine is no more detrimental to the good order of society than is the vending of such merchandise by a salesman. It may be that such machines compete unfairly with established merchants or fail to bear their just share of public burdens by way of taxation. But to cure such a fault, if it exists, is not an exercise of the police power, nor is there any regulation provided by the act in question.”

It is contended by the defendant that the machine he was operating was a machine in character the same as the machine involved in the case of Ex parte Fuller, supra. In this case the court held that it was not a violation of the law and was not a gambling device.

The defendant, in support of his contention that the machine is not a gambling device, cites an opinion of the Attorney General of the state of Ohio, vol. 10, p. 2546, in which opinion the question was as to whether or not a machine of the same kind and make as the machine the defendant in this case was operating was a gambling device, in which the Attorney General held that the machine was not a gambling device, and, among other cases, cited with approval the case of Nelson v. State, supra.

The ordinance which the defendant is alleged to have violated requires that a slot machine must be a gambling device before it can be declared a public nuisance. We hold that a mere vending machine by which merchandise is dispensed in á uniform quantity to each purchaser, although the price may be deposited in a slot in suchi machine, is not what is meant; the use of a vending machine is not unlawful where such machine cannot be played for money, property, check, credits, or any representative of value as the terms are used in the ordinance.

It is well settled that this court will not disturb the judgment on account of the evidence when there is any competent evidence to support it. It is equally well settled that it is not only the province but the duty of the court to set aside such a judgment when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled when put upon trial for an offense.

After a careful examination of the testimony contained in the record, we hold that the testimony is insufficient to sustain the judgment. The demurrer of the defendant to the evidence was well taken, and should have been sustained. For the reasons herein stated, .the case is reversed and remanded, with directions to dismiss and discharge the defendant.

EDWARDS, P. J., concurs.

CHAPPELL, J., dissents.


text:
    Ex parte CHARLES F. SNEED.
    No. A-6853.
    Opinion Filed Jan. 25, 1930.
    (287 Pac. 1062.)

      Frank H. Griggs, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The petitioner, Charles F. Sneed, was found guilty in the district court of Tulsa county of the crime of murder, and sentenced to life imprisonment in the state penitentiary at M'cAlester.

On December 22, 1927, petitioner filed his petition in this court praying the issuance of a .Writ of habeas corpus. On presentation of the petition, a rule to show cause was issued to the respondent, John Q. Newell, warden of the state penitentiary, returnable January 9, 1928. On January 16, 1928, the respondent filed his response to the rule.

The petitioner contends that the trial court never acquired jurisdiction of the case because the information filed on July 26, 1923, charged that the offense was committed on November 15,1923, and November 17,1922, and further that the information did not state facts sufficient to charge the petitioner with any crime under the laws of this state. These questions cannot be considered by this court.

An examination of the record discloses that the information did charge the petitioner with the commission of the offense for which he was convicted. The district court of Tulsa county did. have jurisdiction to try the defendant upon such charge, and the judgment and sentence are within the jurisdiction of said court and in conformity to law.

This court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure or errors in law on questions over which the court had jurisdiction. The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, and should be limited to eases in which the judgment and sentence of the court attacked is 'clearly void. Ex parte Justus, 3 Okla, Cr. 111, 104 Pac. 933, 25 L. R. A. (N.S.) 483; In re Talley, 4 Okla. Cr. 399, 112 Pac. 36, 31 L. R. A. (N.S.) 805; Ex parte Rupert, 6 Okla. Cr. 90, 116 Pac. 350; Ex parte Lair, 29 Okla. Cr. 282, 233 Pac. 789; Ex parte Dunn, 33 Okla. Cr. 190, 242 Pac. 574; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486.

Where petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment and the judgment is void and not merely voidable, relief cannot be had by habeas corpus, however numerous and gross may have been the errors committed during the trial or in the proceedings preliminary thereto. Ex parte Ambler, 11 Okla. Cr. 449, 148 Pac. 1061; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486.

A judgment by a court of competent jurisdiction, valid on its face, is an unanswerable return to a writ of habeas corpus issued for the relief of a prisoner imprisoned by virtue of such judgment. In re McNaught, 1 Okla. Cr. 529, 99 Pac. 241; Ex parte Caveness, 3 Okla. Cr. 205, 105 Pac. 184; Ex parte Hanners, 28 Okla. Cr. 203, 230 Pac. 281.

Tbe state bas filed a demurrer to petitioner’s application on tbe ground that the petition does not state facts sufficient to entitle tbe petitioner to tbe relief prayed for.

Tbe petition not stating facts sufficient to entitle tbe petitioner to tbe relief prayed for, tbe writ is denied.

EDWARD8, P. J., and DAVENPORT, J., concur.


text:
    CHARLIE HILL v. STATE.
    No. A-6981.
    Opinion Filed Jan. 25, 1930.
    (287 Pac. 1080.)

      Lunsford & Windham, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith >0. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged with the crime of seduction under a promise of marriage, was tried and convicted, and his punishment fixed at two years in the state penitentiary. Motion for new trial was filed, considered, and overruled, exceptions saved, and the defendant has appealed to this court

The testimony of the prosecutrix, Dalphfan Barlow, tends to show that the defendant in this case began keeping company with her, taking her out to shows, church, and other places in and around the town of Heavener, the home of the defendant and prosecutrix; that some time after they began keeping company they became engaged' and were to be married some time during the fall or winter; that the defendant began to persuade the prosecutrix to have sexual intercourse with him, and upon a promise of marriage the prosecutrix consented, and the defendant had sexual intercourse with the prosecutrix several times, until the prosecutrix says she advised, the defendant that she had become pregnant.

The testimony of the mother of the prosecutrix shows that she had a talk with the defendant, and that he told her he was going to marry her daughter, that he knew no one else had ever had anything to do with her, and that he was the only one that had ever had sexual intercourse with her. The proof further shows the corroboration of the prosecutrix as to the defendant being in company with the prosecutrix at different times along about the time it is claimed by the prosecutrix that she had sexual intercourse with him under a promise of marriage.

The defendant admits he had sexual intercourse with the prosecutrix on several occasions, but denies it was under promise of marriage. He states she willingly consented. The defendant then offers testimony of a number of parties tending to show that the prosecutrix had been out with other men during the time the defendant was having sexual intercourse with her. The defendant called several witnesses who testify to having had sexual intercourse with the prosecutrix.

The prosecutrix testified that she had never had sexual intercourse with any one excepting the defendant. The testimony is voluminous, and it would serve no useful ^purpose to set it out in detail.

The defendant has assigned fourteen errors alleged to have been committed by the trial court. We will first consider the fifth assignment of error, which is:

“That the said trial court erred in that after the jury had been impaneled and sworn to try said cause and the state placed a witness on the stand the defendant objected to the introduction of any testimony on the part of the state upon the ground that the information did not state facts sufficient to constitute a public offense which objection was overruled and exceptions saved but the court immediately thereafter • reconsidered said objection and it was sustained, whereupon the county attorney requested and was granted over the objection of the defendant permission to amend the information in a matter of substance; the material portion of the original information being in words and figures as follows, to wit:
“That is to say that he, the said Charlie Hill did then and there wilfully, unlawfully and feloniously under and by virtue of a promise of marriage have sexual intercourse with and carnally know Dalphfan Barlow, a female, not the wife of him, the said Charlie Hill and of previous chaste and virtuous character.”

The amendment the court permitted the county attorney to make after he had sustained the objection to the information, and after the jury had been impaneled and some testimony taken, is as follows: Following the word “Barlow,” the court permitted the amendment to read, “an unmarried,” and before the word “female” the county attorney was permitted to strike out the letter “a” and insert “unmarried,” so that the information, instead of reading “a female” would read, “an unmarried female”; the only amendment being the prosecutrix was an unmarried female. The defendant Objected to the court permitting the state to make the amendments shown, and in his brief he argues the first, second, third, and fourth assignments in connection with the fifth assignment, and presents the question that the court committed an error forcing him to trial, over his objections and exceptions, on the amended information upon which he had never been arraigned, and to which he had never been afforded an opportunity to plead; and, further, that the court erred in denying the defendant’s request for a reasonable time in which to investigate the allegations contained in the amended information and prepare for trial thereon. The defendant urges that the action of the court in denying his request deprived him of that fair and impartial trial guaranteed to him by the Constitution and the statutes of the state of Oklahoma.

Section 2512, Comp. Stat. 1921, provides:

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

Under the provisions of this section of the statute, an information may be amended in matter of substance or form any time before plea without leave of the court, and may be amended after plea on order of the court, where the same can be done without material prejudice to the rights of the defendant; and it is specially provided in said section that no amendment shall cause any delay of the trial, unless for good cause shown by affidavit. Nowhere in the record does it appear that the defendant filed an affidavit showing good cause for a delay of the trial. He does not show by affidavit that he was taken by surprise when the amendment was made by stating the prosecutrix was an unmarried female. The only question urged by this defendant is that the amendment was an amendment in substance, and for that reason without any showing on his part that he was entitled to have a continuance or a delay until he could investigate and prepare for trial. He does not contend that the information, as amended, charged a different offense than that in the original complaint upon which he had a preliminary trial.

Section 17, art. 2, of the Constitution, provides:

“No person shall he prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

It will be seen from this section that, in a prosecution for a felony in the district or superior court, there must first be had a preliminary examination. At this preliminary examination the defendant is entitled to be heard by himself and counsel, and is accorded all the rights afforded him in a final trial, except it is not necessary for the statei to establish guilt to a greater extent than to sho w probable cause. The state must show at the preliminary examination that a crime has been committed and that there is probable cause to believe that the defendant committed it. The preliminary hearing is prior to the filing of the information in the trial court, and this examination must be given the defendant and filed in the district or superior court in order to give the trial court jurisdiction of the case.

In Little v. State, 21 Okla. Cr. 1, 204 Pac. 305, in the - first paragraph of the syllabus the court said:

“In prosecutions for felony by informations, no amendment to the information in the trial court is permissible, either before or after plea, which has the effect of charging an offense for which no preliminary examination had been given or waived by the defendant.”

In this case the record shows that the defendant had waived arraignment and entered his plea of not guilty, and made no objection to the information until after the jury was impaneled, sworn, and the state called a witness; them for the first time he objected to the information. The record discloses that, after the request of the defendant was made for a delay to prepare his defense, the court directed the trial to proceed, and the defendant proceeded to trial, and the trial was conducted the same as any other trial, and the defendant had every opportunity to present his defense. The prosecuting witness testified she was an unmarried woman, and the defendant did not offer any evidence to contradict this fact. We held that the rights of the defendant were not prejudiced by reason of the case proceeding to trial without the defendant entering a formal plea of not guilty to the information as amended; there being no competent showing that the defendant was prejudiced in any way whatever by the action of the court in permitting the amendment and ordering the trial to proceed. Hammons v. State, 46 Okla. Cr......., 287 Pac. 1076.

It is further urged by the defendant that the court erred in his instruction No. 5, to the jury, which was prejudicial to the rights of the defendant. This instruction has been carefully studied, and, while it is not artistically drawn, it does not impose any burden upon the defendant to establish any fact, but leaves the jury free to acquit him, if it had a reasonable doubt that the prosecuting witness consented to said act of sexual intercourse for any other reason than by a promise of marriage by the defendant. Taking the instructions in their entirety, the court, correctly instructed the jury as to the law in this case.

It is further argued by the defendant that there is not sufficient corroboration of seduction under promise of marriage of the prosecuting witness. With this contention we cannot agree. The testimony of the prosecuting witness shows that, after she became acquainted with the defendant, he accompanied her to different places, and they became engaged to marry, and that she yielded to the pleadings of the defendant upon a promise of marriage. The testimony further shows that she was unmarried, and that the cause of her consenting to have sexual intercourse with the defendant was his promise of marriage. The mother of the prosecuting witness testified that the defendant told her he would marry the prosecutrix; the prosecuting witness also testified she had never had sexual intercourse with any other man. The only controverted facts in the evidence, which under the law are required to establish a case of seduction under a promise of marriage, is the fact that she was of previous chaste character. Upon this question the defendant offered several witnesses who say they had had sexual intercourse with her prior to the time it is alleged the seduction took place. This controverted fact was considered by the jury, and the jury by its verdict determined that question in favor of the state. This court has repeatedly held that, where there is any competent evidence to sustain the verdict, though the evidence was conflicting, it would not disturb the same.

This court has further held that, in a prosecution for seduction under a promise of marriage, it is not necessary that the promise should be expressed in any set form or any particular language. Doughty v. State, 33 Okla. Cr. 94, 242 Pac. 1059.

After a careful study of the record, we hold that the defendant was accorded a fair and impartial trial; that the court substantially declared the law applicable to the facts in the case.

Finding no fundamental or prejudicial errors in the record sufficient to justify a reversal, the case is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    MARY BARKER v. STATE.
    No. A-7028.
    Opinion Filed Jan. 4, 1930.
    Rehearing Denied Jan. 28, 1930.
    (283 Pac. 1036.)
    Earl A. Brown, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of selling one pint of com whisky, and her punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was that one Gilbert Green was in an intoxicated condition on the public streets in the city of Ardmore; that the officers followed him to the residence of the defendant; that Green went into the house and left the door open; that the defendant was seen to pass a bottle of whisky to Green; that the officers went into the house, arrested Green, took a pint of whisky off of him, and arrested the defendant. Some of the facts and circumstances detailed by the defendant and her witnesses corroborate this story of the officers.

The defendant first contends that the court erred in overruling, her motion for a new trial based upon testimony which she alleged would have been given by Green. The only showing the defendant made tending to excuse her failure to have the witness Green subpoenaed was that the deputy sheriff told her that he was in jail and would be at the trial. The defendant had no subpoena issued for Green and used no diligence to procure his testimony. The court did not err in overruling her motion for new trial. The evidence being sufficient to support the verdict of the jury and the errors of law complained of not being fundamental, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    W. M. SCHWEDES v. STATE.
    No. A-7658.
    Opinion Filed Dec. 21, 1929.
    Rehearing- Denied Jan. 28, 1930.
    (283 Pac. 1035.)
    Walter Mathews, for plaintiff in error.
    J. Berry King,. Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county on a charge of having unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

Judgment was rendered on August 31, 1929, and the appeal was lodged in this court on November 20, 1929, 81 days after the rendition of the judgment. The only extension of time within which to file the appeal was made on September 23, allowing 20 days additional. The appeal was not filed within the time fixed by law, nor within the extension of time made by the court. This court does not acquire jurisdiction.

The attempted appeal is dismissed.


text:
    MARY LILACKER v. STATE.
    No. A-7657.
    Opinion Filed Dec. 21, 1929.
    Rehearing Denied Jan. 28, 1930.
    (283 Pac. 1034.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of having the unlawful possession of intoxicating liquor, and her punishment was fixed at a fine of $50 and imprisonment in the county jail for a term of 30 days.

Judgment was rendered August 31, 1929. By section 2808, Comp. Stat. 1921, an appeal from a conviction for a misdemeanor must be taken in 60 days from the rendition of the judgment. By that section the court is authorized to extend the time for a further period not to exceed 60 days. On September 23, 1929, the trial court extended the time for filing the appeal a further period of 20 days, which, with the time fixed by law, allowed 80 days in which to file the appeal. The appeal was filed in this court on November 20,1929, 81 days after the rendition of the judgment. The appeal not having been filed within the time fixed by law, nor the extension of time made by the court, this court does not acquire jurisdiction.

The attempted appeal is dismissed.


author: EDWARDS, P. J.

text:
    JACK WARREN v. STATE.
    No. A-6995.
    Opinion Filed Sept. 21, 1929.
    Rehearing Denied Jan. 28, 1930.
    (283 Pac. 1034.)
    Phillips & Huggins, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county on a charge of shooting with intent to kill, and was sentenced to serve a term of five years in the state penitentiary.

The record discloses that at the time charged the defendant was married to Beatrice Warren, who was 17 years of age. They had been separated about 10 days, and apparently the shooting was because of this marital difficulty. Defendant shot his wife twice in the breast, one of the bullets going entirely through the body and lodging under the skin in the back. Defendant did not testify, but offered evidence of good character and evidence tending to establish that he was insane or mentally irresponsible at the time. This issue was submitted to the jury.

The evidence amply sustains the judgment. No briefs have been filed by defendant in support of the appeal. No material error is made to appear.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    BAILEY OVERSTREET v. STATE.
    No. A-6973.
    Opinion Filed Dec. 21, 1929.
    Rehearing Denied Jan. 28, 1930.
    (283 Pac. 1032.)
    Sigler & Jackson, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and to be confined in the county jail for 30 days.

The defendant first complains that the description of the premises was insufficient to authorize the search of the premises. The description is as follows:

“First house south of Ball Park at southwest corner of park in a certain building described as follows, one-story frame building used as a residence in Ardmore, Carter County.”

In the case of Mitchell v. State, 43 Okla. Cr. 63, 277 Pac. 260, this court said:

“The description of the premises to be searched is sufficient, if it enable the officers executing the search warrant to locate the premises to be searched without the aid of any other information save that contained in the searchl warrant.”

It frequently happens that buildings on the edge of the city are so located that it is impossible to give the lot and block number or the exact location of the property. The description is sufficient if it enables the officer to locate the premises from the information contained in the warrant itself.

The defendant next contends that the court erred in permitting the state to introduce evidence of the reputation of the premises without first showing that the premises are a place of public resort. The record does not support this contention of the defendant.. When the state started to introduce its evidence, the defendant made the usual objection that the affidavit and warrant were insufficient. The trial court thereupon excused the jury and properly heard the objections to the sufficiency of the affidavit and warrant. At that hearing certain state witnesses did testify before the court as to the reputation of the place. After the objections had been overruled, the jury was returned to the court-room, and the state offered no evidence to the jury concerning the reputation of the place.

The evidence of the state was that they went to defendant’s home to make the search. The defendant was not there, and there was some delay on the part of his wife in opening the door. During the delay, corn whisky ran out of the drainpipe from the sink, and some of it was caught by the officers. The evidence of the state further showed that when they got in the house they found a half-gallon jar with some whisky in it and several other jars and containers with a small amount of whisky in them and others having a strong smell of liquor. The defendant did not take the stand, and offered no evidence upon the charge.

There was sufficient evidence before the jury to justify the returning of the verdict of guilty.

The cause is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    JACK LEASURE v. STATE.
    No. A-7038.
    Opinion Filed Jan. 11, 1930.
    Rehearing Denied Jan. 28, 1930.
    (283 Pac. 1023.)

      Geo. W. Buckner, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county on a charge of having violated the prohibitory liquor laws of the state of Oklahoma a second time, and his punishment fixed at a fine of $500 and imprisonment in the state penitentiary for a period of 2% years.

Immediately after the issuance of a search warrant, the sheriff of Garfield county, two of his deputies, and the prohibition enforcement officer of that district visited the premises of the defendant and found in his' possession, in his residence, a quantity of whisky in excess of one quart. At the time of making this search the officers left their automobile on the public highway and walked to defendant’s house. When they arrived there was an automobile standing in defendant’s yard near his house with several people in it. The officers watched and saw a man approach the automobile, and when they started toward him he threw out at the side of the car a pint bottle of whisky. The officers proceeded to the car and found on the person of this man another pint bottle of whisky. This man had come immediately from defendant’s house, and upon seeing this, two of the officers went into defendant’s house. The sheriff had knowledge of the fact that the defendant had previously been convicted of a violation of the prohibitory liquor laws in that county. On entering the house and searching the premises and finding the whisky in the house, the officers arrested the defendant and started to arrest a boy about 20 years of age who was sleeping in one of the rooms, when the defendant said to the officers: “I will take the blame for all this whisky. None of it belonged to this boy.”

Upon the trial, the witness who was found in the yard in the possession of two pints of whisky testified that he had bought the whisky from defendant. In this testimony he was corroborated by another witness, who was also in the automobile at the time, to the effect that they went out to defendant’s place for the purpose of buying whisky and had given this witness money with !which to buy two pints of whisky, and that the defendant had been at the car and told them that he had whisky, and that he and witness had left together and gone into the house, and that shortly thereafter the witness returned to the automobile with two pints of whisky and threw one of them away just as the officers came up.

In addition to the proof of possession by the defendant of this whisky, there was proof of the fact that the defendant liad pleaded guilty in the county court of Garfield county to the possession of whisky, and that in such case the defendant had been sentenced to a term of 30 days in the county jail and to pay a fine of $50, and that such judgment had become final before the institution of this prosecution.

The defendant first contends that the court erred in overruling his motion to suppress the evidence, for the reason that the same was secured through an unlawful search of the defendant’s premises. It is contended that the search warrant under which the search was made was void because not signed by a justice of the peace. The sheriff testified that he made out the warrant and the copy ready for the justice of the peace to sign, and inadvertently signed the name of the justice of the peace; that he erased that signature, and the justice of the peace signed the warrant before the sheriff started to execute it.

It is next contended by the defendant that the description in the search warrant was insufficient to authorize a search of defendant’s premises. The place to be searched is described in the warrant as follows:

“In the building located on the N. E. % of sec. 32, twp. 23, range 6 and known as the Leasure place in Garfield county, Okla.”

This court has held in a number of cases that the description of the premises to be searched is sufficient if it enable the officers to locate the premises by the information contained in the description. Mitchell v. State, 43 Okla. Cr. 63, 277 Pac. 260; Herring v. State, 43 Okla. Cr. 190, 277 Pac. 683; White v. State, 43 Okla. Cr. 140, 277 Pac. 946.

The search of defendant’s premises could be sustained upon another ground. The sheriff knew that the defendant had been convicted of a prior offense. The fact that an automobile was parked in the yard, and that as the sheriff approached whisky was thrown from the car, and that a search of the party throwing the whisky out disclosed the possession of a pint of whisky on the person of the purchaser, and the fact that the purchaser told the sheriff that they had gotten the whisky in the house, gave the sheriff sufficient information to advise him that a felony had probably been committed and that the defendant had committed the offense. Under section 2471, C. O. S. 1921, of the statute, the sheriff was authorized to arrest the defendant and make the search.

It is next contended that the court erred in overruling the demurrer to the information because the information fails to contain an allegation that the court in which the first conviction was had was a court of competent jurisdiction. The information alleges that the defendant was convicted in the county court of Garfield county of the crime of having possession of intoxicating liquors with the unlawful and wrongful intent to barter, sell, or otherwise furnish the same to others. This court takes judicial notice that the county court of Garfield county has jurisdiction to try persons charged with the violation of the prohibitory liquor laws of the state of Oklahoma when such offenses are committed within Garfield county. Since the record discloses that the charge against the defendant was filed in the county court of Garfield county, it was not necessary to allege that the county court was a court of competent jurisdiction. State v. Windell, 14 Okla. Cr. 77, 167 Pac. 640.

Defendant next contends that the district court of Garfield county had no jurisdiction for the reason that the county court of Garfield county was not actually in session on the -25th day of June, 1924, and therefore had no power at such time to try and convict defendant, and that any purported judgment rendered by such court on said date was void. The following entry appeared on the journal of the county court: “Now, on this 5th day of April, 1924, the same being one of the regular days of the April, 1924, term of the county court, court adjourned sine die.” This contention might have some force if it were a fact that on the 5th day of April, 1924, the April, 1924, term of the county court of Garfield county was adjourned sine die. But the fact is that on that date the January, 1924, term of the county court was adjourned. This court will take judicial notice of the fact that the April terms of the county courts in this state convene on the first Monday in April, and that the first Monday of April, 1924, was on the 7th day, and therefore the April term of the county court of Garfield county did not convene until the 7th day of April. Furthermore, the record in this case shows that the county court did open a term of court on the 7th day of April, 1924. It appears from the record that the clerk of the county court, in entering the sine die order of adjournment, wrote the word “April” instead of “January,” and that in truth and in fact the April, 1924, term of the county court was not adjourned as contended by the defendant.

Finally, it is contended that the judgment and sentence of the court is excessive. We are of the opinion that the end of justice will be met by reducing the punishment from 2% years’ imprisonment in the state penitentiary and a fine of $500, to 1% years’ imprisonment in the state penitentiary and a fine of $500.

For the reasons stated, the cause is affirmed, and the judgment modified to imprisonment in the state penitentiary at McAlester for a period of 1% years and a fine of $500.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    HENDERSON LEWIS v. STATE.
    No. A-7660.
    Opinion Filed Dec. 21, 1929.
    Rehearing Denied Jan. 28, 1930.
    (283 Pac. 1029.)
    Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of having the unlawful possession of intoxicating liquor, and. was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The judgment was rendered August 28’, 1929. The appeal 'was lodged in this court November 16, 1929, 84 days after the rendition of the judgment. By section 2808, Comp. Stat. 1921, an appeal from a conviction for a misdemeanor must be taken in 60 days from the rendition of the judgment. By that section the court is authorized to extend the time for a further period, not to exceed 60 days. On September 23, 1929, the court extended the time for filing an appeal an additional 20- days, which, with the time allowed by law, allowed 80 days within which to file the appeal. The appeal not having been filed within the time fixed by law, nor the extension of time made by the court, this court does not acquire'jurisdiction.

The attempted appeal is dismissed.