author: PEE CUEIAM.

text:
    H. B. LONG v. STATE.
    No. A-9611.
    Feb. 8, 1940.
    (99 P. 2d 159.)
    . A. W. Billings, of Woodward, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PEE CUEIAM.

This appeal is from the county court of Woodward county, wherein H. B. Long was convicted of the unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $150 and imprisonment in the county jail for 60 days.

The main contention on the part of the defendant is that the verdict and judgment are not supported by sufficient legal and competent evidence.

The evidence on the part of the state is in substance as follows:

G. W. Lyon testified that he lives one mile east of Woodward; that defendant, H. B. Long, rented a place in the back room of his home wherein to place a box that was 12 feet long and three and one-half wide; that he did not know what was in the box; that was about a month and a half before the officers searched the place; that the evening the officers searched the place Mr. Long was out thei*e before the officers came.

D. T. Gregory, undersheriff, testified that on the evening of the day alleged he was at defendant’s filling station in Woodward, a car drove in, the defendant left, was gone about 20 minutes, and when he came back he handed a package over to this car, and the car drove away. .Sheriff Nelson was at the Lyon place at that time, and they were both at the time observing the movements of the defendant Long.

Elmer A. Nelson, sheriff, testified that on the evening before the search, he saw the defendant H. B. Long at the Lyon place east of town, and in executing the search warrant he found a box at the Lyon place containing 96 half pints, 624 pints and eleven four-fifths quarts of whisky, which was in a box in a back room at the Lyon place.

On cross-examination he identified the search warrant with the return thereon.

Cleve Hayes testified that he was deputy sheriff and jailor, and was with the officers when they searched the Long Filling Station and found two one-half pints of whisky, and it was the same brand of whisky that they found at the Lyon place.

The defendant moved the court to exclude the evidence relative to. the finding of the two half pints of liquor at the filling station, for the reason that the information does not include the two half pints in question, which objection was overruled.

The state rested and the defendant interposed a demurrer to- the evidence on the ground “that the same wholly fails to- prove the charge laid in the information, but on the other hand the evidence unqualifiedly shows that the liquor obtained by the search of the W. Gf. Lyon place was in his possession and not in the possession of defendant, H. B. Long,” which motion was overruled and exception allowed.

Thereupon the defendant called Elmer A. Nelson, sheriff, and asked if in his return on the search warrant offered in evidence by the defendant, as his exhibit “A”, the two one-half pints of whisky found at the defendant’s filling station are not included in the charge laid in the information. Objection sustained.

Thereupon, the following profert of proof was made: “The defendant offers to prove by the Avitness, Nelson, that he Avould state that the liquor returned in the search of the W. G. Lyon’s place is the identical whisky referred to in the information, sworn to by said witness, and said information does not include the two half pints found at the filling station of H. B. Long.” Objection sustained.

The defendant did not testify as a, witness in his own behalf.

Various errors are assigned and argued in the defendant’s brief.

Upon a careful consideration of the record, our conclusion is that the technical questions raised by the errors assigned are without substantial merit; the information is sufficient; and the instructions given by the court fully and fairly cover the law of the case. The uncontradicted evidence on the part of the state is conclusive of the defendant’s guilt. It is our opinion that on the undisputed facts, and the law as we understand it, the defendant was rightfully and legally convicted. The letter and spirit of the law is that if the defendant has had a fair trial, and if this court is satisfied the verdict against the defendant was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed.

Finding no substantial error in the record, the judgment of the lower court is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    GEORGE JAMES v. STATE.
    No. A-9694.
    Feb. 8, 1940.
    (99 P. 2d 161.)
    Joe Adwon, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PEE CUEIAM.

The information in this case charged George James, Ernest Lee and David Clark with having in their possession, in Oklahoma county, on the 18th day of January, 1939, 67 pints and one quart of whisky and gin, with the unlawful intent to sell the same. The defendants, George James and Ernest Lee, having waived a jury trial, were jointly tried and convicted. The defendant, George James, was sentenced to pay a fine of $75 and be confined in the county jail for 30 days.

An appeal from this judgment was taken by filing in this court July 12, 1939, petition in error with case-made and proof of notice.

No briefs have been filed and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction, and no. briefs in support of the petition in error are filed, and no' appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors, and, no fundamental error appearing, the judgment will be affirmed.

We have examined the record and find the information sufficient and the evidence is amply sufficient to sustain the judgment and sentence. On the record before us we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded. a fair trial. The judgment of the lower court is accordingly affirmed.


author: DOYLE, P. J.

text:
    GEORGE EARNEST DILLARD v. STATE.
    No. A-9689.
    Feb. 8, 1940.
    (99 P. 2d 530.)

      Robt. R. Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, George Earnest Dillard, was informed against for burglary in the first degree, after a former conviction of a felony. It was charged that he, in Oklahoma county, on the 8th day of August, 1938, burglariously broke into and entered, in the nighttime, a certain room No. 5, in a two-story brick rooming house No. 108% West Grand Ave., Oklahoma City, in the possession of J. C. Watson, in which room personal property, wearing apparel, money, and watch were then and there kept, with the felonious intent to take, steal and carry away the same, and that said defendant did take certain property belonging to the said J. C. Watson at said time and place, a certain yellow gold Hamilton watch, f 92 in cash, a white handle pocket knife and a billfold, with the felonious intent to deprive the said rightful owner thereof.

It was further charged that defendant had previously been convicted of the crime of larceny and of receiving stolen property on April 27, 1906, and served two years concurrently on each conviction in the U. S. penitentiary, Leavenworth, Kan., and of having been convicted of the crime of burglary at Boise, Idaho, December 18, 1928,. and of having been convicted of the crime of burglary in the second degree in the district court of Oklahoma county, July 2, 1934.

The trial resulted in a verdict of guilty of burglary in the first degree, after a former conviction of a felony and his punishment fixed at imprisonment in the state penitentiary for a term of 30 years.

From the judgment rendered in conformity with the verdict, April 27, 1939, an appeal was perfected by filing in this court on June 7, 1939, a petition in error with case-made attached.

No brief has been filed on behalf of the defendant nor was any appearance made to orally argue the case when it was finally submitted.

When an appeal is taken to this court upon conviction for a felony, and no briefs are filed in behalf of plaintiff in error, and no appearance for oral argument made when the case is called for final submission, this court will read the evidence- to ascertain if it supports the verdict, and will examine the record -for jurisdictional errors, and if none appear, the judgment will be affirmed. Northcutt v. State, 22 Okla. Cr. 410, 211 P. 521; Arthurs v. State, 35 Okla. Cr. 126, 248 P. 873; Poole v. State, 37 Okla. Cr. 59, 256 P. 67; Boles v. State, 62 Okla. Cr. 404, 72 P. 2d 403.

Upon a careful examination of the record we have failed to find that the defendant has been deprived of any substantial rights guaranteed to him under the law.

The instructions given by the court, to which no- objection was made or exception taken, correctly and fully advised the jury as to the law of the case.

From the whole record it appears that the defendant had a fair and impartial trial and was rightfully and legally convicted. The judgment of the district court of Oklahoma county herein is therefore affirmed.

BAREFOOT and JONES, JJ., concur.


author: BAREFOOT, J.

text:
    FAY CHILDS v. STATE.
    No. A-9623.
    Feb. 8, 1940.
    (99 P. 2d 539.)
    John T. Levergood, of Shawnee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Thos. C. Wyatt, Co. Atty., of Shawnee, for the State.
   BAREFOOT, J.

The defendant was charged in the district court of Pottawatomie county with the crime of attempt to kill; was tried, convicted, and sentenced to serve a term of two* years in the penitentiary, and has appealed.

It is first contended by defendant that the court erred in giving instructions Nos. 7 and 9, and in refusing to give requested- instructions Nos. 1, 2, 3, 4', and 5.

Defendant was charged with attempt to kill under Oklahoma Statutes 1931, § 1873, 21 Okla. St. Ann. § 652, which is as follows:

“Every person who intentionally and wrongfully shoots, shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process is punishable by imprisonment in the penitentiary not exceeding ten years.”

As an included offense, the court instructed the jury under the terms of Oklahoma Statutes 1931, § 1870, 21 Okla. St, Ann. § 645, which is the assault with a dangerous weapon statute, and is as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

The court, after instructing the jury with reference to Oklahoma Statutes 1931, § 1873, 21 Okla. St. Ann. § 652, as above quoted, on attempt to kill, then instructed the jury under Oklahoma Statutes 1931, § 1870, 21 Okla. St. Ann. § 645, by giving instruction No. 7, of which complaint is made. It was as follows:

“You are further instructed that should you find the defendant not guilty of the charge of assault with intent to kill, then it will be your duty to consider from the evidence whether or not the defendant is guilty of assault with intent to do bodily injury.
“In this connection you are instructed that the law provides that any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who without such cause shoots or attempts to shoot at another with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary for any period of time not to exceed five years, or by imprisonment in the county jail not exceeding one year.
“In this connection you are instructed that if you shall find and believe from the evidence beyond a reasonable doubt that the defendant, Fay Childs, on or about the 12th day of June, 1938, or within three years prior to the filing of the information herein, to wit, the 14th day of .September, 1938, in Pottawatomie county, state of Oklahoma, did unlawfully, willfully, intentionally, wrongfully and without justifiable or excusable cause commit an assault upon one Gene Bichie with the intent to do him, the said Gene Bichie, bodily harm, or with intent to injure him, although without intent to kill the said Gene Bichie or to commit any felony, you will find the defendant guilty of assault with a dangerous weapon, and assess his punishment at imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year.
“On the other hand, if, after a careful consideration of all the evidence in the case, you fail to so find, or if you have a reasonable doubt of the defendant having been proven guilty of an assault with a dangerous weapon, as defined in these instructions, you will find him not guilty.
“In this connection you are further instructed that if you believe beyond a reasonable doubt that the defendant is guilty, but have a doubt as to whether he is guilty of assault with intent to kill or assault with a dangerous weapon you should find him guilty of the lesser offense, to wit, assault with a dangerous weapon.”

Counsel for defendant, in very strong terms, criticizes this instruction, claiming that it is too long, confusing, contradictory, and contrary to the law of this state. We do' not see the force of this argument. This instruction, in a very fair way, presents the terms of the statute as an included offense. The evidence in the case and the many decisions of this court justified the giving of this instruction as an included offense. Hickman v. State, 32 Okla. Cr. 307, 240 P. 1097; Clark v. State, 6 Okla. Cr. 100, 116 P. 200; Crain v. State, 24 Okla. Cr. 343, 217 P. 888. The first paragraph, it is contended, virtually tells the jury to find the defendant guilty of assault with intent to do bodily harm. We do not so interpret it, and when read in connection with the other paragraphs there is nothing of which defendant can complain.

Defendant next complains that it was the duty of the court to inform the jury of every lesser offense included under said charge, and cites several cases from this court to substantiate this contention. And in this connection says that the trial court erred in failing to give requested instruction No. 2, which was a request for the court to submit the issue of simple assault and battery. Oklahoma Statutes 1931, §§ 1865, 1866, 21 Okla. St. Ann. §§ 641, 642; Campbell v. State, 14 Okla. Cr. 319, 170 P. 915.

In the first place tbe cases cited, while announcing, the doctrine that the court “should submit the case to the jury for consideration upon every degree of assault,” adds the further expression, “which the evidence in any reasonable view of it suggests.” By the terms of the information, and the evidence in this case, defendant was charged with attempting to kill the prosecuting witness, by shooting him with a pistol. There were no facts justifying the court in submitting the issue of assault and battery. Defendant’s defense was that the gun was fired accidentally. If this was true, he should have been acquitted if acting in a. lawful manner, and with reasonable care and due regard for the lives and person of others; but the jury thought otherwise. There was no error in the court refusing to give an instruction on “assault and battery,” under the evidence in this case. Jones v. State, 12 Okla. Cr. 255, 154 P. 689; Lane v. State, 65 Okla. Cr. 592, 84 P. 2d 807.

Complaint is also made of the last paragraph of this instruction. This paragraph is favorable to the defendant, informing the jury if they had a reasonable doubt as to whether defendant was guilty of “attempt to kill”, or “assault with a dangerous weapon”, to give him the benefit of the doubt and find him guilty of the lesser offense. We do not think there was any error in this paragraph. We do not think by this instruction the court told the jury that they “must” find him guilty of one or the other of the two offenses named.

It is next contended that the court erred in giving instruction No. 9, which was as follows:

“You are instructed that it is the theory of the defendant, Fay Childs, that the pistol in this case was accidentally discharged. You are instructed that an accident is an event which takes place without one’s foresight or expectation; an event that proceeds from an unknown cause, or is an unusual effect of a known cause.
“In this connection you are instructed that you may consider the question of whether the pistol herein used was accidentally discharged, to aid you in determining the intent of the defendant as herein mentioned in these instructions.
“In determining these questions you must take these instructions as a whole and not consider any of them separately.”

This instruction does not properly present the issue. The court should have informed the jury further that if they believed that the gun was accidentally discharged, they should acquit the defendant if he was -acting in a lawful manner, and with reasonable care and due regard for the lives and person of others. However, under the facts, the court evidently had in mind that the defendant having admitted that he had possession of the gun, and that he was therefore committing a misdemeanor, and if the same was accidentally discharged he would not be excused, this view might have justified him in charging the jury upon assault and battery as requested by the defendant. While this instruction cannot be approved as given, it is not every instruction which is error that would cause a reversal of the case. The instructions as a whole must be examined, and the evidence must be reviewed. There cannot be much doubt but that it was the intention of the jury to find the defendant guilty under instruction No. 7. The instructions as a whole gave the jury an opportunity to acquit the defendant if they had believed he was innocent. Under the evidence which will be hereafter stated, we do not think the case should be reversed by reason of the above instruction. Lane v. State, 65 Okla. Cr. 592, 84 P. 2d 807.

Requested instructions Nos. 1 and 2 have heretofore been discussed. Requested instruction No. 3 was a request to return a verdict of acquittal. This was properly overruled. Requested instruction No. 4 was given in substance by the court.

It is next contended that the court erred in overruling the demurrer to the information, and to the evidence, and that the court erred in receiving, filing and approving the verdict, and in passing sentence on such verdict.

The information Avas as folloAVs:

“With the unlawful and felonious intent and purpose then and there on the part of him the said Fay Childs, to kill and murder the said Gene Richie.”

It is contended that there is no such offense in this . state as to kill and murder. In support of this contention the case of Campbell v. State, 14 Okla. Cr. 319, 170 P. 915, 917, is cited. In this case the court stated:-

“In the first place, the information charges the common-law offense of assault with intent to kill and murder. There is no such offense knoAvn to our statute.”

That case .was reversed by reason of confession of error on the part of the Attorney General that the evidence did not justify a conviction, and the instruction by the trial court upon the question of mutual combat, which the court found Avas not an issue in the case. In the case of Miles v. State, 41 Okla. Cr. 283, 273 P. 284, 285, in an opinion by Judge Doyle, in a case directly in point, said:

“The information alleges that defendant shot Charley Mitchell, with the felonious intent to kill and murder. The common-law offense of assault with intent to murder is not in our Penal Code. There is a well-recognized distinction between an assault with intent to murder and an assault with intent to kill. However, we think the facts alleged are sufficient to charge the offense of assault with intent to kill by shooting with a revolver; that the words ‘and murder’ is a mere redundance. It follows that the court did not err in overruling the demurrer.”

So in this case the words “to murder” are mere re-dundance.

The verdict rendered on October 4, 1938, was as follows:

“We, the jury, drawn, impaneled and sworn in the above entitled cause, do upon our oath find the defendant guilty of assault with a dangerous weapon as charged in the information, and assess his punishment at two (2) years in the state penitentiary.”

No exception was taken at the time the verdict was rendered, nor was there any reference made to- the irregularity of the verdict in the motion to arrest the judgment filed on October 6, 1938. Kennedy v. State, 25 Okla. Cr. 306, 220 P. 61; Love v. State, 12 Okla. Cr. 1, 150 P. 913; Walker v. State, 11 Okla. Cr. 339, 127 P. 895; Pruitt v. State, 17 Okla. Cr. 434, 190 P. 894.

In his brief in this court defendant challenges the verdict, and says, that the verdict only finds defendant guilty of a simple assault, which is a misdemeanor, and that the court erred in pronouncing a penitentiary sentence upon such verdict. In support of this contention defendant cites four cases from this court as follows: Campbell v. State, 14 Okla. Cr. 310, 170 P. 915; Feaster v. State, 15 Okla. Cr. 366, 177 P. 124; Sanders v. State, 13 Okla. Cr. 134, 162 P. 676, and Polk v. State, 15 Okla. Cr. 324, 176 P. 538. The Polk Case is the case relied upon. It may be noted that in the case of Vineyard v. State, 22 Okla. Cr. 76, 209 P. 783, 784, the Polk Case is specifically overruled. The court says:

“Counsel cites and relies upon the case of Polk v. State, 15 Okla. Cr. 324, 176 P. 538, in support of this contention. While there is some language in the Polk Case which tends to support the contention of counsel, it is apparent from the reading of the entire opinion in that case the judgment in that case was reversed because of the indefiniteness of the verdict and the finding of defendant guilty on an issue not submitted to the jury. The first paragraph of the syllabus in the Polk Case is too broad in statement, in conflict with earlier decisions of this court, and is expressly disapproved. * * *
“The information in this case is based upon the second subdivision of section 2336, 21 Okla. St. Ann. § 652, and charges an assault and battery with intent to kill by cutting, stabbing, wounding, and injuring the prosecuting witness with a knife. That an assault and battery necessarily includes an assault needs the citation of no authority. That an intent to kill would necessarily include an intent to do bodily harm is equally apparent. It follows that, on a charge of assault and battery with intent to kill with a deadly weapon, or other means of force likely to produce death, as defined by section 2336, Eev. Laws 1910, one may be convicted of assault with intent to do bodily harm with any sharp or dangerous weapon, as defined by section 2344, Rev. Laws 1910, 21 Okla. St. Ann. § 645. The view here taken is supported by the opinion in the case of Russell v. State, 9 Okla. Cr. 692, 133 P. 475, and also by the opinion in Parks v. State, 14 Okla. Cr. 413, 171 P. 1129, wherein it was held: * *

The facts in this case were that the prosecuting witness, Gene Eichie, was truant officer for the colored high-school in Shawnee; that some time prior to the filing of the information in this case, and prior to June 12, 1938, the 14 year old brother of defendant had been sent to a reform school for colored boys at Boley, Okla., and while in said institution had died. Gene Richie was a witness at the trial and defendant formed an opinion that he was in some way connected with the sending of his brother to the institution. On the night of June 12, 1938, Richie, about 9:30 or 10 o’clock was going to his home from a picture show. He was passing the Baptist Church on South Bell street going south. Just as he passed a car that was standing in the street, the defendant walked out in front of him, and he said: “Hello, Fay,” and defendant said: “I have been looking for you, I have been waiting for you.” The prosecuting witness further testified :

“A. He said, ‘I have been looking for some of you guys to get even with some of you God-damned rats.’ I said, ‘What do you mean, talking to me like that?’ He said, ‘You killed my brother.’ I said, ‘What are you talking about, boy? Are you crazy?’ I said, ‘I had nothing to do with the boy being at Boley, and you know it.’ Q. Tell what he said to you. A. That is what he said to me; he told me what he intended to do. Q. What did he say he intended to do? A. He said, ‘I have intended to get even with some of you God-damned rats,’ he said.”

He further testified that defendant said: “God damn you stand steady,” and that he threw up his hand and that when he saw what he had in his hand he made a lunge at him and he fired. That he grabbed defendant and they clinched and went to the ground. Both the defendant and prosecuting witness were shot through the leg.

Two other witnesses saw the difficulty. A. B. Cul-berson, a colored police officer, was standing about 200 or 250 feet south of the scene of the difficulty. He could see the parties by reason of an electric light burning in the street near the church. He heard them talking and started toward them. He heard the defendant say: “God damn yon, you killed my brother. I am going to get even with you. You and that damned little officer was the cause of my brother’s death, and I am going to get even with both of you.” He further testified: “So Eichie began to back off from him, and he said, “Stand still.” He further testified:

“Q. Who said, ‘Stand still’? A. Childs told Eichie to stand still, and I seen him raise his right hand and Eichie grabbed him and when Eichie grabbed him he grabbed him by the right hand with his left hand and started under him and picked him up, and as he picked him up I heard the shot fired.”

After the shot was fired he rushed in and caught the defendant, thinking he was going to shoot again. He struck the defendant with his club, and threw him down and Eichie Avent to the ground with them, and Avhile on the ground Eichie, the prosecuting witness, got possession of defendant’s gun, and about that time John Williams, a colored man, came up and took hold of Eichie, and he held defendant. He testified that he asked defendant, “What is the matter? What is the trouble Avith you two?” and that defendant said, “That man killed my brother.” He took defendant to the police station.

The Avitness, John Williams, was sitting on his front porch next to the church prior to the difficulty. He was about 75 feet from where the parties met. He corroborated the evidence of the witness Culberson in many details. He saw the defendant near the church for 15 or 20 minutes prior to- the approach of Eichie. He was walking up and down the street near the church. He heard the conversation between the defendant and Eichie when they met. He heard the defendant say: “You caused my brother to be dead and I am going to fix it with you.” He also heard him use the words, “You sons-of-hitches.” He heard Richie say, “I haven’t had anything to do with this,” and, “I am not the cause of your brother being dead, not the cause of him going to Boley.” He could not tell whether defendant had anything in his hands or not as he was holding them down by his side. He started toward the parties, and about that time officer Culberson came up, and about that time the gun fired. He saw something in defendant’s hand when the prosecuting witness grabbed him. He could not tell what it was. He grabbed hold of Richie, and he had the gun and was going to shoot the defendant, but he held him and prevented him from doing so.

The defendant testified that he was a married man, and that he was down at the Baptist Church on the night of the 12th of June, 1938, to meet a woman who was in the church and take her home; that he was a married man and could not go in the church and sit by her for this reason; that his meeting of prosecuting witness was accidental; that he spoke to- him, and told him he killed his brother, and prosecuting witness began walking toward him, and that he put his hand in his pocket and Richie grabbed him; that after he was struck by the witness Culberson, the gun got out of his pocket in some way he could not explain, and was discharged, and shot him through the leg and passed on into prosecuting witness’ leg. He further testified that the witness Williams grabbed him and this was the reason the pistol was discharged.

From the above statement it will be seen that the jury was justified in returning a verdict of guilty.

The punishment given by the jury is not excessive. But we cannot approve instruction No. 9, given by the court. From the facts in the case there is no question as to the guilt of the defendant, but the giving of the instruction above referred to may have caused the jury to become confused and give the defendant more punishment than they would have otherwise. While we do not believe that Ave would be justified in reversing this case upon the record, as a whole, we are of the opinion the judgment and sentence should be modified from two years in the penitentiary to one year in the penitentiary, and it is so ordered. Horton v. State, 44 Okla. Cr. 318, 280 P. 857; Alvarado v. State, 38 Okla. Cr. 360, 261 P. 983.

DOYLE, P. J., and JONES, J., concur.


author: PER CURIAM.

text:
    BILL WAGNER v. STATE.
    No. A-9641.
    Feb. 8, 1940.
    (99 P. 2d 161.)

      Sigler & Jackson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, A tty. Gen., for the State.
   PER CURIAM.

The information in this case charges that Bill Wagner, in Carter county, on the 27th day of July, 1937, did have in his possession four and one-half pints of whisky, with the unlawful intent to sell the same. Upon his trial the jury returned a verdict finding him guilty and fixing the punishment at a fine of |50 and imprisonment in the county jail for 30 days.

To reverse the judgment he appeals, and assigns as error that the trial court erred in admitting incompetent evidence over his objections, and in refusing to strike the same, and that the verdict is contrary to both the law and the evidence.

The state relied for this conviction upon the testimony of two witnesses, city officers, admitted over defendant’s objections, that it was obtained by an unlawful search. Their testimony shows that in executing a search warrant, they searched defendant’s place of business, and found four and one-half pints of whisky.

Ott Holden testified in part as follows:

“Q. I will hand you here state’s exhibit A and ask you to tell the court and jury what it is? A. A search warrant,. Q. Was this the search warrant that you executed in searching Mr. Wagner’s place of business? A. This is the search warrant complaint and the other is the search warrant served.”

Against the defendant’s objections, state’s exhibits A and B, the complaint and search warrant, were admitted in evidence.

He further testified that they found four and one half pints of whisky which was admitted in evidence.

E. R. Wrinkle testified that officer Holden laid the search warrant down on the counter in the restaurant. The defendant, Bill Wagner, runs the place.

The state rested and defendant moved the court to strike all the testimony as to what was found, for the reason that the search warrant was illegal and unlawfully issued upon complaint made on information and belief, which motion was overruled.

Thereupon the defendant moved the court to instruct the jury to return a verdict of not guilty, for the reason the evidence is insufficient to authorize a conviction, which was overruled and exception allowed.

There was no testimony offered on the part of the defendant.

It is urged that the court erred in admitting in evidence the complaint and search warrant issued thereon.

This court has repeatedly held that as the recitations of the affidavit and of the search warrant were with reference to the offense charged, admission of the affidavit and search warrant, as independent evidence, was prejudicial errort Williams v. State, 34 Okla. Cr. 359, 246 P. 895; Weeks v. State, 41 Okla. Cr. 95, 270 P. 858; Bruner v. State, 44 Okla. Cr. 425, 281 P. 319; Ford v. State, 45 Okla. Cr. 161, 282 P. 370; Barnes v. State, 56 Okla. Cr. 402, 41 P. 2d 126; Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131.

It is urged that the affidavit is insufficient in that it is made on information and belief, in that it recites: “that he, the said O. M. Holden suspects that said property is concealed in 219 A Street NE, One Store tin building, used as a restaurant in Ardmore, Oklahoma.”

The uniform holding of this court is that a search warrant- must be based upon an affidavit stating eviden-tiary facts and not mere conclusions, and sufficient to warrant a magistrate in making a finding of probable cause. Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Baker v. State, 28 Okla. Cr. 408, 231 P, 320; Kirk v. State, 30 Okla. Cr. 198, 235 P. 624; Hancock v. State, 35 Okla. Cr. 96, 248 P. 1115; Anderson v. State, 45 Okla. Cr. 380, 283 P. 588.

For the reasons stated, the defendant’s motion for a directed verdict should have been sustained. The judgment of the lower court is therefore reversed, and the case remanded, with direction to dismiss.


text:
    DAVE WILLARD v. STATE.
    No. A-9690.
    Feb. 8, 1940.
    (99 P. 2d 188.)
    Jess J. Todd, of Mangum, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

The information in this case charges that Dave Willard in Greer county, on the 12th day of December, 1938, did have in his possession five pints of whisky with the unlawful intent to sell the same. The trial jury returned a verdict finding him guilty as charged in the information, but were unable to agree on the punishment. Motion for new trial was duly filed and overruled on March 9, 1939. Thereupon the court sentenced the defendant to pay a fine of $100 and to be confined in the county jail for 30 days.

An appeal from the judgment was perfected by filing in this court June 27, 1939, petition in error with case-made.

The errors assigned question the sufficiency of the evidence to support the conviction.

No brief has been filed on behalf of plaintiff in error, nor was any appearance made to orally argue this case at the time the same was finally submitted.

The record shows that the conviction is based on the undisputed testimony of the sheriff, Tom Owen, and two deputies, which shows that in executing a search warrant of the defendant’s house in Mangum, they found five pints of whisky in the false bottom of a drawer of a dresser.

The defendant did not testify as a witness in his own behalf. There was no testimony offered on the part of the defense.

It was for the jury to judge of the weight of the evidence, and the credibility of the witnesses. Finding no material error in the record, the judgment of the lower court is affirmed.


author: JONES, J.

text:
    LON HALL et al. v. STATE.
    No. A-9701.
    Feb. 8, 1940.
    (99 P. 2d 166.)

      Page & Spencer, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty.- Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant was charged in the common pleas court of Oklahoma county with the offense of operating a motor vehicle upon the public highway for transportation of passengers for compensation without first having obtained from the Corporation Commission a permit; was tried, convicted and adjudged to pay a fine of $500, and has appealed to this court.

The defendant urges two grounds for reversal of this case:

(1) .On account of the insufficiency of the evidence to sustain the conviction.

(2) Error of the court in permitting the state to reopen the case after both sides had rested for the purpose of taking additional testimony.

This is another of the so-called “Travel Bureau Cases.” We shall not review the evidence in this case other than to say that the county attorney made a much stronger case herein than he did in the case against the same defendant, wherein we upheld the sufficiency of the evidence in an opinion rendered on February 1, 1940. Hall v. State, 68 Okla. Cr. 367, 99 P. 2d 163.

Under the authority of the foregoing case, together with that of Herring v. State, 60 Okla. Cr. 449, 64 P. 2d 921, and Herring v. State, 68 Okla. Cr. 32, 95 P. 2d 128, we hold that the evidence herein is amply sufficient to sustain the conviction.

In Herring v. State, 60 Okla. Cr. 449, 64 P. 2d 921, the court stated:

“Defendant who conducted a travel bureau, and who contracted with passengers for transportation to intrastate and interstate points, and fixed rates to be charged, the places where the passengers would take the conveyance, and the payment of fare, held guilty of operating a motor vehicle on public highway without a permit from the Corporation Commission, where neither defendant nor party transporting passengers had a permit for operation as a motor carrier, since party transporting passengers was a class B motor carrier, as defined by section 3700, Okla. St. 1931, as amended by Laws 1933, c. 156, § 1, 47 Okla. St. Ann. § 161.”

At the close of the state’s case, the defendant rested without the introduction of any evidence, whereupon a short recess was taken while the court prepared the instructions to the jury.. Upon the reconvening of court, the county attorney asked permission to reopen the case for the purpose of taking the testimony of one witness who had been subpoenaed, but was not available during the presentation of the state’s case. The defendant strenuously objected to the introduction of this evidence, but the court overruled the objection and allowed the evidence to be introduced.

The witness was an employee of the Corporation Commission, who testified that neither the defendant nor J. Williamson, a codefendant, had any permit from the Corporation Commission to carry passengers in an automobile over the state highways for compensation.

This witness’ name was indorsed on the information, and he had been subpoenaed to testify for the state. His testimony concerned only the evidence disclosed by a public record, and there is nothing in the record to show that the defendant was surprised by his testimony or to show that the court abused its discretion in allowing this evidence to be introduced.

We have long adhered to the rule that it is discretionary with the trial court to reopen the case for the purpose of introducing further evidence after both sides have closed; and unless a clear abuse of such discretion appears, no question is presented for review on appeal. Keltner v. State, 52 Okla. Cr. 150, 3 P. 2d 451; Winfield v. State, 18 Okla. Cr. 257, 191 P. 609; Ivey v. State, 21 Okla. Cr. 182, 206 P. 257; Quinton v. State, 53 Okla. Cr. 194, 9 P. 2d 51.

We hold that the action of the court was not an abuse of its decretion, and since the guilt of the defendant is clearly established, that the judgment should be affirmed.

It is so ordered.

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


text:
    DENIS BARFIELD v. STATE.
    No. A-9688.
    Feb. 15, 1940.
    (99 P. 2d 544.)

      Prank Hickman, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State,
   DOYLE, P. J.

On information charging that in Tulsa county on the 7th day of December, 1938, Denis Barfield did unlawfully have in his possession 124 pints and 54 quarts of whisky, he was tried and convicted on a trial before the court, a jury having been waived. The judgment was rendered on April 24, 1939, and he was sentenced to confinement in the county jail for 30 days and to pay a fine of $50 and costs.

To reverse the judgment an appeal was taken by filing in this court June 2, 1939, petition in error with case-made attached.

The state relied for this conviction on the testimony of C. T. Raley and Harry Warren of the State Highway Patrol, admitted over the defendant’s objection that it was obtained by an unlawful search. Their testimony was to the effect that on the date alleged they saw a car headed west stop on the shoulder of the north side of Highway 33, four or five miles east of the city of Tulsa; they stopped and asked what the trouble was. The defendant said they had a flat and were changing the tire. That they noticed a cardboard carton beside the car that was labeled “John Paul Jones Whisky,” and they asked the defendant whose whisky it was; he said it was his. They asked him if that was all he had, and he said he had another carton up in front. The officers looked in the back of the car and saw several cases of whisky there. They arrested the defendant and his companion.

The state rested and the defendant moved for a directed verdict on the ground that the evidence was obtained illegally and unlawfully, and was not sufficient to sustain a conviction. Which was ovenmled.

On the part of the defense, Kelly Gilbert testified that he was with the defendant on Highway 33 when their car had a puncture, and the officers appeared and arrested the defendant and witness; that he had taken a case of liquor out of the car so he could get to the spare tire in the back end; that the whisky they had was a lawful purchase made from a liquor store at Siloam Springs, Ark., that the liquor was a part of a pool, belonging to some friends of his, that he was taking to them for Christmas; that seven of his friends put up $20 each to pay for it; that he met the defendant Denis Bar-field, at Siloam Springs, and he was returning to Oklahoma City with him; that the car belonged to a Mrs. Rogers, in Oklahoma City.

The defendant, testifying as a witness in his own behalf, stated that he was in Siloam Springs and there met Kelly Gilbert, and told him he was going to Oklahoma City, and would like to ride with him; that when the tire went flat he raised up the turtle back to get am extra tire, and that was the first time he knew there was any whisky there; that he did not have any interest in the whisky.

At the close of all the evidence, defendant moved for a dismissal on the ground that there is no evidence that this was an illegal purchase, which was overruled.

The assignments are that the trial court- erred in overruling defendant’s motion to suppress the evidence, and in overruling defendant’s demurrer to the evidence, and that the judgment and sentence is contrary to law and to the evidence.

Whether search of, and seizure from, an automobile upon a highway or other public place without a search warrant is reasonable is in its final analysis to be determined as a judicial question, in view of all the circumstances under which it is made.

The constitutional provision against unreasonable searches and seizures does not preclude the malting of a seizure, without a warrant previously procured, of intoxicating liquor, where there is no need of a search for the liquor because the liquor is fully disclosed to the eye. Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549.

An offense is committed or attempted “in the presence of an officer,” within meaning of the statute providing that a peace officer may, without a warrant, arrest a person for a public offense, committed or attempted in his presence, where such officer is apprised by any of his senses that a misdemeanor is being, committed by the person arrested prior to the arrest.

In the instant case the facts and circumstances as testified to by the officers were sufficient to warrant them in believing that intoxicating liquor was in the carton beside the automobile, and this was a sufficient showing of an offense committed in the presence of the officers, and their testimony is to the effect that defendant admitted that the automobile contained other cartons of whisky that belonged to him.

Upon the record before us, the proceedings leading up to the trial and judgment are all regular and suffi-dent in law to support this conviction, and it is not made to appear therefrom that any error prejudicial to the substantial rights occurred to authorize a reversal of the judgment. The judgment of the trial court is therefore affirmed.

BAREFOOT and JONES, JJ., concur.


text:
    CHARLES T. WILCOX v. STATE.
    No. A-9619.
    Feb. 15, 1940.
    (99 P. 2d 531.)

      John W. Tillman and Fred A. Tillman, both of Paw-huska, for plaintiff in error.
    Sim T. Carman, Co'. Atty., of Pawhuska, Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Charles T. Wilcox was charged in the district court of Osage county with the offense of murder; was tried, convicted and sentenced to serve a term of life imprisonment in the state penitentiary, and has appealed.

The record is voluminous, covering more than 700 pages.

The proof on behalf of the state was that about 4:30 a. m. on June 10, 1938, the fire department at Pawhuska was called to the home of Josephine Rogers in Pawhuska. Upon arriving at the home, the body of the deceased, Josephine Rogers, a woman about 75 years of age, was found lying in the doorway on a screened-in porch, the door being open. The defendant was there with the body. The body was badly burned and charred. There was a fire in the southwest bedroom of the house, from which room a door led to the screened-in porch on the south. A gas fire in a stove in the northeast corner of the bedroom was burning. A mattress on a bed in the southwest corner of the room was afire. There was a fire on the floor about a foot or foot and a half from the bed. A smoking cord was hanging from the doorsill about three feet above the stove. The defendant Wilcox had on a pair of house slippers, trousers and an undershirt. They were not burned, but Wilcox’s hands, neck and chest were burned. Two or three charred embers of some kind, of cloth material were found near the stove. There were two chairs in the room, a wheel chair and a wicker chair. The nearest bum on the rug was about one and. one-half feet from the bed. The north edge of the mattress was burned. The firemen sent for an ambulance for the deceased, which arrived in a few minutes; that there was no door between the room where the fire was and the north room where a bed was located, the head of which was about two feet from the stove; but there was an opening between the rooms; that bedspreads or blankets were hung over the windows in the room where the fire was, and that the lights were on in the room when they arrived. That based on the experience of the firemen, it would have taken the mattress from 40 minutes to an hour to be burned in the condition in which it was found and with the body lying on it, and that it would have taken 30 or 40 minutes lying on the mattress for the body to have been burned in the condition in which Mrs. ■Rogers was found. There was only a small piece of clothing left on the body of the deceased, her hair was burned off short, and there were no signs of life in, her body.

A negro servant, Bill Williams, testified that he lived in the servant’s quarters, north of the Rogers house; that the defendant called him. just before daylight to come and help him; that he went to the screened-in porch and saw the body of Mrs. Rogers lying there as it was found by the firemen; that Wilcox told him that the fire started from the heater; that he looked in the room, and that there was no fire on in the heater at that time; that before the firemen arrived Wilcox went in the house, but the witness did not see what he did.

A neighbor, Hazel Sponsler, together with other witnesses, testified that the deceased was partially paralyzed; that she could move both of her arms; that neither of them was entirely paralyzed; that she saw Mrs. Rogers the afternoon before she died the following morning, and that she could move her arms that afternoon, and demonstrated to the jury the manner in which she could use her arms.

Walter Johnson, the funeral director, answered the ambulance call to the Rogers home. The body was still lying in the doorway with the head just over the door-sill. She was dead. The body was burned considerably on the left side; the hair on her head had been burned short; but neither hand, on front or back, was burned; that the body on the left side showed that it had had long heat to' have been burned so badly. The tip of the tongue was badly burned where it protruded through her teeth.

The defendant was taken to the county attorney’s office for investigation, and he made a statement there to the officials that he had been staying at the deceased’s home for several months; that on November 13, 1937, he and the deceased were secretly married at Deering, Kan.; that the marriage was kept secret because the deceased did not want her son, George Hood, a narcotic addict, to learn of the marriage because he might kill them; that Wilcox stated that the first he realized anything was wrong was that he was awakened by an outcry or smoke; that he jumped up and started in the bedroom where the deceased was lying; that she said, “Charley, get me out of here; I am burning up.” That Wilcox picked her up off the bed and started out of the room, and ran over the wheel chair and dropped the deceased; that he moved the chair, and picked her up and started to the door; that he was able to partially hold her up with one hand and open the door with the other; and that after getting her out on the porch, he had to let her completely down and open the door, as he had to use both hands to unlock the door; that after opening the door, he picked the deceased up and dragged her to the door where her head was protruding at the time the firemen arrived; that Mrs. Rogers had not smoked that evening, but that the fire started because some clothes which he had taken off of Mrs. Rogers and hung on the cord had caught fire from the stove which was turned too high; that only he and the deceased were in the house at the time of her death.

Witnesses were produced from Kansas who verified the fact of the marriage of the defendant to the deceased. The marriage license was obtained by the defendant on November 12, 1937, at Independence, Kan.; they were married the following night at Deering, Kan., in an automobile. The defendant explained to the minister who performed the marriage ceremony that Mrs. Rogers was an invalid and could not get out of the car.

The evidence showed that the deceased had been previously married and was the owner of one and one-third Osage Indian headrights; that she owned about 700 acres of land, the residence property at Pawhuska, and about 60 shares of stock in the American Telephone & Telegraph Company; that she had only one child, a grown son by the name of George Hood.

The state introduced the evidence of five physicians who testified concerning the condition of the body of the deceased as disclosed by examination made by them.

Dr. Daly testified that he made X-rays of the neck of the deceased; that the X-ray pictures disclose that the deceased had a broken and dislocated neck which was sufficient to produce death; that there was an upward displacement toward the chin, and that the neck was twisted.

Dr. Hemphill and Dr. Walker testified that they saw the body of Mrs. Rogers at Johnson’s Undertaking Parlor on June 10, 1938. The body was severely burned on the left side of the face and left side of the chest; the hands were not burned; the eyes were closed; the lids had second degree burns and blisters so that the skin had sloughed off the eyelids, but the eyes showed no irritation. The tip of the tongue where the tongue was sticking out from the teeth was burned black, the teeth were clamped down on the tongue, and there- were no- burns nor inflammation in the mouth. An autopsy was performed; they removed the larynx, the thyroid gland and brain. They opened the chest and examined the chest, abdomen, lungs, heart, and took these organs out for examination by a pathologist at Oklahoma City. There was a discolored area about three inches long and an inch wide on the right side of the neck, which had been caused prior to death by some hemorrhage into the skin; that this discolored area fit the fingers of a hand; that the thyroid cartilage, or what is called the Adam’s apple, was fractured; that to fracture this Adam’s apple it takes a bending motion; that rigor mortis had already set in at the time of the examination; that they noticed the head was free and flopped around, and they had Dr. Daly take X-rays for that reason; that they had examined the X-ray pictures taken hy Dr. Daly, which showed a dislocation of the third cervical vertebra; that from all of the conditions they found on the body, it was their opinion that death had occurred before the deceased had been burned. That from the condition of the body, it would have been impossible for her to have said at the time that she was removed from the fire, “Charley, get me out of here.” That in their opinion the dislocation of the neck could not have been caused by the defendant permitting the deceased to fall after he had dragged her off the bed.

Dr. L. A. Turley testified about his examination of the vital organs of the deceased: That the blood vessels were all congested with blood in the central part of the brain, and there was blood tinted fluid in the lateral ventricle of the brain; that the condition that he found in the brain had been caused by an interference with the outflow of blood from the brain by shutting off the jugular vein; that it could not have been caused by a blow, but it could have been caused by choking; that this condition of the brain was before death, and in his opinion that it had occurred before the deceased was burned; that if a person had even a partial use of either of her hands, the hands would have had some burns on them because of the use of the hands in fighting the fire.

The proof on the part of the defendant was a denial that he had choked or struck or in any other way caused the death of the deceased, but that during all of the time he had stayed with the deceased he had given her unusual care and attention; that her physical condition was such that the defendant had to change her clothing several times every night; that their marriage had occurred at the suggestion of the deceased; that her physical condition was such that she had no use of her hands or arms at the time of her death; that on the night of her death the defendant had been up with the deceased three times, the first time around 10:30, at which time he changed her clothes and hung the wet clothes over the stove, which was not lighted at that time. About 11:30 she called him again, and he changed her clothes again. About 2:30 she called him again, at which time she told him to light the fire. The bed in the east room was wet, so he wheeled her into the west room and changed her clothes. That they both smoked a few minutes, after which he laid her on the bed and went into his room and lay across the bed with his house slippers, undershirt, and pants on. The fire was burning in the stove. He was awakened about an hour after he went to bed. He thought she called him. He ran into her room; the bed was on fire, and the flames were all over her. That she said, “Charley, come and get me out.” That he grabbed hold of her and jerked her away from the fire as quick as he could. He didn’t know how he grabbed her; the bed was blazing, and her clothes were on fire. He stumbled and they both fell; that he raised her up and tried to make the door, but ran into a chair and dropped her. That some part of her hit the dresser. He finally got her out on the porch and laid her head outside the screened-in porch door, at which time he ran to the telephone and called the fire department; that he was engaged by Mrs. Rogers in October, 1934, to look after her business, and at that time he was making about a $100 a month selling cars and some $50 to $100 a month on marble machines; that she agreed to give him $100 per month for his work; that they quit keeping books after they married, and that she owed him about $3,200 at that time. He admitted giving the deceased a $500 mortgage on a Chrysler coupe on Decern-ber 10, 1987, payable December 10, 1938, and that tbe note was payable to Josephine Rogers.

.Several witnesses testified that the defendant had severe burns on various parts of his body when they saw him shortly after the fire.

Paul Comstock, an attorney at Pawhuska,, testified that he was told of the marriage of the defendant with the deceased in December, 1937, when he drew up some papers for the defendant.

The defendant introduced medical testimony in which the doctors testified that in their opinion the fracture of the vertebra could have been caused by the defendant falling with the deceased in the manner which he described.

By agreement of both the counsel for the state and the defendant, the jury was permitted to go to the Rogers home and view the premises.

At the request of the defendant all of the furniture in the bedroom in which the fire occurred was brought into the courtroom and arranged in the courtroom as nearly like it appeared in the bedroom as could be done.

The defendant, for reversal of this case, makes several assignments of error which may be grouped under these headings:

(1) Misconduct of the jury.

(2) That the jury received evidence in the absence of the defendant.

(3) Error in the giving of instructions.

(4) Error of the court in his ruling upon the admissibility of evidence during the trial of said cause.

In support of assignments Nos. 1 and 2, the testimony of W. A. Burkhart, foreman of the jury, Abe Clifton, juror, and George Fisher, bailiff, was taken. This proof showed that while the jury were in the jury room, Burk-hart’s wife called him, and he was taken by the bailiff to a telephone; the other jurors were locked in the jury room. That Burkhart’s wife wanted to tell him how her mother was; that no mention was made of the case in any way; that at no time did he hear or see any one attempting to- communicate to the jury; that as foreman of the jury, Burkhart asked permission for the jury to be permitted to return to the courtroom and view the articles of furniture which were arranged in the courtroom and which had been admitted in evidence as exhibits in the trial of this case; that when the jurors were taken to' the courtroom, the bailiff and sheriff unlocked the door and allowed them to go in; that the bailiff and sheriff remained outside of the door, and the door was closed while they were inside examining the exhibits; that they did not see or examine anything except that which they had been permitted to see and which had been admitted in evidence at the trial; that neither the judge nor the county attorney nor the defendant- nor his lawyer nor any other person was present in the courtroom while they were making this examination; that the exhibits were in the same location as they had been placed by the witnesses in the courtroom. The evidence is not clear, but it appears that the telephone conversation occurred before the final submission of the case.

The bailiff testified to substantially the same state of facts as did Burkhart.

Abe Clifton was called by the defendant, admitted being called to the telephone, but denied talking over the telephone as the party had left, and denied having any communication whatsoever with any person, and stated that he did not know of any juror receiving any information at any time other than what was received in the courtroom during the trial of the case.

This court has had occasion many times to construe section 3081, O. S. 1931, 22 Okla. St. Ann. § 857. We have held that on proof of a violation of this section by permitting the jury to separate after the case has been finally submitted to them, the defendant is entitled to the presumption that such separation has been prejudicial to- him, and the burden of proof is on the prosecution to show that no injury could have resulted therefrom to the defendant. Sealy v. State, 59 Okla. Cr. 104, 56 P. 2d 903; Crow v. State, 39 Okla. Cr. 145, 263 P. 677; Chance v. State, 5 Okla. Cr. 194, 113 P. 996; Goins v. State, 9 Okla. Cr. 35, 130 P. 513.

This court has also uniformly held that before the final submission of a case, the legal presumption is that jurors perform their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact that during an adjournment of the trial the jurors were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial or that his substantial rights were prejudiced thereby. Forester v. State, 36 Okla. Cr. 111, 252 P. 861; Womble v. State, 50 Okla. Cr. 108, 296 P. 515; Sanders v. State, 46 Okla. Cr. 298, 287 P. 842; Weatherholt v. State, 9 Okla. Cr. 161, 131 P. 185; Smith v. State, 19 Okla. Cr. 14, 197 P. 514; Lemke v. State, 56 Okla. Cr. 1, 32 P. 2d 331.

In the Lemke Case, supra, the following rule was adopted:

“Where, in a capital case, after final submission, the jury are held together by the bailiff overnight at a hotel and after they have retired to their rooms one juror is permitted to answer a proper telephone call from his family and is accompanied by the bailiff to the telephone on the next floor, such brief departure from the other jurors is not the separation contemplated by the statute. * * *??

We find that the proof affirmatively discloses here that the defendant was not prejudiced by reason of the fact that one of the jurors talked over the telephone and that another was called to' the telephone but did not talk, and that such action did not deprive the defendant of a fair and impartial trial or deprive him of any of his substantial rights.

The defendant next complains of the action of the jury in coming to the courtroom and inspecting the exhibits which had been admitted in evidence by both the state and the defendant in the trial of the case, and contends that such action of the jury is receiving evidence in the trial of a case in the absence of the defendant.

The record shows that various articles of furniture which were in the bedroom of the deceased the morning of her death were arranged in the courtroom in the presence of the jury during the trial of the case. After hearing the evidence concerning the actions of the jury in this matter, the court made the following finding:

“So far as the jury being permitted to be brought into the courtroom for the purpose of viewing these exhibits which had been offered in evidence and which had been placed in certain positions by witnesses who were acquainted with the manner in which these exhibits were located in the room prior to the fire, it appears to me that these exhibits, being bulky and hard to- move and take upstairs to the jury room — it occurs to me that the jury should have been permitted to view them in this courtroom in the same positions that they were placed by the witnesses. I can see possibly where if the jury had sent down to the courtroom and had these exhibits brought np to them for the purpose of examining them and placing them in certain positions in the jury room, that it might have been prejudicial to' the rights of the defendant, for they could not probably have been placed there in the same manner and in the same condition that they were placed by. the witnesses. I do not think there is anything in the point that they took evidence outside of the presence of the defendant; they merely examined exhibits which had been offered in evidence and which had been examined by the jury previously in the presence of the defendant, maybe not so minutely as they examined them when they came in here after they were deliberating on the case, but a juror certainly has the right or the jury certainly has the right to view exhibits brought to them in the jury room for their inspection and examine and read, in case they were written, and as I have stated, since these were bulky exhibits, it seems to me it would have been much better for them to have been permitted to make their examination in the courtroom while they were in the same position as they had been placed by these witnesses, rather than to have them brought to the jury room and put in different places.”

We agree with the view of this matter which was taken by the trial court. These articles had been properly identified and received as evidence in the case. They had been arranged in the courtroom at the request of the defendant. They were too bulky to be taken to the jury room. It does not appear that they were used or handled in a manner not consistent with the evidence.

Error is never presumed; but every presumption favors the regularity of proceedings had upon the trial, and to be available error must be affirmatively shown. No injury is pointed out, and no prejudice to the substantial rights of the defendant appears; and we are of the opinion that there was no- error in that regard. Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912B, 766; Keeney v. State, 53 Okla. Cr. 1, 6 P. 2d 833; Brown v. State, 52 Okla. Cr. 307, 4 P. 2d 129; White v. State, 20 Okla. Cr. 182, 201 P. 522; Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736.

As a general rule the findings, of the trial court upon an issue of fact, arising upon affidavit and evidence introduced on a motion for a new trial, will not be disturbed where the evidence reasonably tends to support such finding. The evidence here reasonably supports the finding of the trial judge on this question. Horton v. State, 10 Okla. Cr. 294, 136 P. 177.

The defendant sets up as one of the grounds for reversal, without arguing the same, the giving of instructions Nos. 7, 8, 9, and 10.

The instructions complained of read as follows:

No. 7: “If you find from the evidence, facts and circumstances in proof, beyond a reasonable doubt, that in the county of Osage, state of Oklahoma, on or about the 10th day of June, 1938, the defendant Charles T. Wilcox did then and there wrongfully, willfully, unlawfully and feloniously, and without authority of law, and with a premeditated design to effect the death of one Josephine Rogers, make an assault in and upon said Josephine Rogers with his hands by applying pressure to the neck and body •of said Josephine Rogers with such force as to choke and strangle the said Josephine Rogers, or with such force as to. break the neck of said Josephine Rogers, and that as a result of said injury so received the said Josephine Rogers, •came to her death, then and under such circumstances it would be your duty to find the defendant guilty as charged .in the information;.
“Unless you should so- find, it would be your duty to find the defendant not guilty.”
No. 8: “In case you should find the defendant guilty, it would be your duty to fix his punishment at imprisonment in the state penitentiary for life or by death.”
No. 9: “You are instructed that the state relies for a conviction in this case upon what is known as circumstantial evidence; and in this connection you are instructed that, to warrant a conviction upon circumstantial evidence, each fact necessary to the conclusion sought to be established — that is, the guilt of the defendant — must be proved by competent evidence, beyond a reasonable doubt; and that all the facts and circumstances proven should not only be consistent with the guilt of the accused, but consistent with each other, and inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and sufficient to produce in your minds a reasonable moral certainty that the accused committed the offense charged, against him. And you are instructed that when the circumstances are sufficient under this rule herein given you, they are competent, and are to be regarded by the jury as competent for your guidance as direct evidence.”
No'. 10: “You are instructed that the defendant herein claims that the deceased came to> her death as the result of being burned. And in this connection, you are told that if you find from all the evidence, facts and circumstances in proof that the deceased met her death from any causes other than those alleged in the information herein, or if you entertain in your minds a reasonable doubt thereof, it would be your duty to acquit the defendant.”

We have carefully read these instructions, together with all of the other instructions given by the court. No requested instructions ivere submitted by the defendant. The instructions given above are such instructions as have been approved many times by this court. The trial court is to be commended upon the instructions given in this case. They thoroughly cover the law on all points raised, and we fully approve all of them,

Lastly, the defendant contends, without argument or citation of authorities, that the court erred in his rulings during the trial of said cause upon certain evidence offered by the state to which objection was made by the defendant and to the rejection of testimony offered by the defendant to which objection was made by the state.

It would have been exceedingly unusual if the trial court had gone through five days of testimony and had committed no error in his various rulings upon questions asked different witnesses. This case was ably and energetically presented by both the counsel for the state and the defendant. Many times during the trial of this case objections were made by one side or the other. A careful review of the record discloses that the court’s rulings on these objections were practically all correct. In those few instances in which the court was mistaken upon his ruling, the mistakes were about evenly divided between the state and the defendant; and it is apparent to us that the defendant has not been prejudiced by any ruling of the court during the trial of this cause.

A judgment will not be reversed on account of the exclusion of evidence or for the improper admission of evidence unless upon an inspection of the entire record the court is of the opinion that there has been a miscarriage of justice, and that the errors are a substantial violation of a constitutional or statutory right. Ray v. State, 35 Okla. Cr. 322, 250 P. 438; Knox v. State, 34 Okla. Cr. 300, 246 P. 665; Newman v. State, 35 Okla. Cr. 296, 250 P. 554; Offitt v. State, 5 Okla. Cr. 48, 113 P. 554.

The defendant’s theory of the case was fairly presented to the jury, but the physical facts were so overwhelmingly contrary to the contentions of the defendant that it is clear that the jury could have arrived at no other verdict than the guilt of the defendant. This is one of the most heinous and outrageous crimes ever committed in this state, and one in which a jury would have been fully justified in giving the extreme penalty. Because of the age of the defendant and his previous good reputation, the jury has seen fit to give the defendant a sentence of life imprisonment rather than the extreme penalty.

Upon consideration of the record as a whole, we are of the opinion that the defendant has had a fair and impartial trial, with every right accorded him that the law requires or justifies; and it would have been a miscarriage of justice, as we think, if upon the evidence any other verdict had been rendered.

The judgment of the district court of Osage county herein is accordingly affirmed.

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


text:
    WALKER LEE SMITH v. STATE.
    No. A-9562.
    Feb. 15, 1940.
    (99 P. 2d 527.)

      J. G. Austin, of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Wm. E, Poteet, Co. Atty., of Miami, for the State.
   BAREFOOT, J.

Defendant, Walter Lee Smith, was charged in Ottawa county with the crime of robbery with a dangerous weapon; was tried, convicted and sentenced to serve a term of 15 years in the penitentiary, and has appealed.

For reversal of this ease it is urged: First, that the court erred in permitting the state to introduce the witness Walter James Myers for the reason that the post-office address given for this witness at the time of the service of the list of witnesses was Picher, Oída., and that his proper post-office address was Angora Reformatory, Jefferson City, Mo. The record reveals that the list of Avitnesses and their post-office addresses was served on the defendant on the 10th day of November', 1937. The name of Walter James Myers was given as Picher, Okla. This was seven days before the trial was set in the fall of 1937.

An amended information was filed on the 17th day of November, 1937, and the name of this witness appears indorsed thereon. This information was filed several months prior to the trial, Avhich was on March 31, 1938. The witness’ home was in Picher. His parents lived at Picher. He had pleaded guilty in Missouri to the theft of an automobile, which was stolen at the time of the robbery of which defendant stands charged, and in which defendant was riding at the time of his arrest in Missouri. This witness was sentenced to the reformatory from Lamar, Barton county, Mo., and had been there for nine months when the case was tried, but stated that his home was Picher, Okla., and his parents resided there. Defendant and his attorney could not have in any way been misled by this post-office address. Upon inquiry the parents of this witness could have supplied the information as to where he was. The defendant was personally aware of his address and whereabouts.

Defendant announced ready for trial, and made no objection that he was unable to locate the witness, nor did he file a motion for continuance. Under the decisions of this court, his failure to do this constituted a waiver of this constitutional right. In the case of Denton v. State, 58 Okla. Cr. 275, 53 P. 2d 1136, 1138, this court said:

“The purpose of the requirement that a list of witnesses be served is to apprise defendant who the witnesses are, where they may be found, and to enable him to investigate their testimony, their character, and credibility; it was never intended the provision should operate as a means to defeat justice by a too strict or technical construction. State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Galbert v. State, 12 Okla. Cr. 571, 160 P. 332.”

The following cases fully support the rule above announced : State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Galbert v. State, 12 Okla. Cr. 571, 160 P. 332; Walker v. State, 10 Okla. Cr. 533, 139 P. 711; Strong v. State, 46 Okla. Cr. 167, 287 P. 1091; Little v. State, 25 Okla. Cr. 190, 219 P. 424; Franklin v. State, 9 Okla. Cr. 178, 131 P. 183.

In the second place, it is contended that the court erred in overruling the demurrer to the amended information. The charging part of the information was as follows:

“Said defendant then and there being, did then and there, on or about the said date, within.the county and state aforesaid, did willfully, unlawfully, wrongfully, forcibly and feloniously make an assault upon and against the person of Albert Van Dome with a dangerous weapon, to wit: a piece of iron pipe approximately eight inches long and one and one-half inch in diameter, on one end of which was screwed or fastened a reducer and into which reducer was screwed or fastened another piece of iron pipe approximately eight inches long and one and one-fourth inches in diameter, said pipe being then and there held in the hand or hands of the said defendants, and said defendants did strike and beat the said Albert Van Dorn with the aforesaid dangerous weapon on and about his head and body and did then and there willfully, unlawfully, wrongfully, forcibly and feloniously take, steal and carry away from the immediate person and presence of the said Albert Van Dorn personal property, to1 wit: one .41 caliber Colts revolver and one flashlight, with the willful, unlawful, wrongful, fraudulent and felonious intent on the part of the said defendants to deprive the said Albert Van Dorn thereof and to convert the same to their own use and benefit, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

This information was based upon Oklahoma Statutes 1931, sec. 2543, 21 Okla. St. Ann. § 801, which is as follows :

“Any person or persons who, with the use of any firearms or any other dangerous weapons, attempts to. rob or robs any person or persons, or wlm robs or attempts to rob any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the state penitentiary, for a period of time of not less than five years, at the discretion of the court, or the jury trying the same.”

The general statute defining robbery is Oklahoma Statutes 1931, section 2542, 21 Okla. St. Ann. § 791, which is as follows:

“Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.”

This general statute defining robbery is the statute upon which all robbery cases are based. The' statute under which the information in this case was filed is what is known as a statute of classification, and not definition. It does not supersede the statute defining robbery, but it only increases the punishment. The essential elements of robbery are as defined by the original statute. Randall v. State, 33 Okla. Cr. 262, 243 P. 983; Wells v. State, 34 Okla. Cr. 179, 245 P. 1007; Wissinger v. State, 39 Okla. Cr. 324, 264 P. 631; Kernell v. State, 53 Okla. Cr. 259, 10 P. 2d 287.

It is contended that the “nature of the weapon is not sufficiently described to bring it under this statute, but only alleges assault and battery.” We cannot agree with this contention. It will be noted that the amended information particularly described the instrument used as “a piece of iron pipe approximately eight inches long and one and one-half inches in diameter,” and on one end of which “was screwed or fastened a reducer and into which reducer was screwed or fastened another piece of iron pipe approximately eight inches long and one and one-fourth inches in diameter.” This piece of iron was introduced in evidence and inspected by the jury. The jury was carefully instructed by the court that, if they did not find the instrument used to be a dangerous instrument, as provided by the statute, they could not find the defendant guilty under the statute. The court also submitted to the jury as an included offense robbery in the second degree; giving tbe jury the opportunity to find the defendant guilty of a crime the punishment of which could have been not to exceed ten years in the penitentiary. Oklahoma Statutes, 1931, section 2551, 21 Okla. St. Ann., § 799.

The evidence discloses that the prosecuting witness was struck on the head by the iron above described. That his head was cut and it was necessary for him to remain in the hospital for several days by reason thereof. He was robbed of his pistol and a flashlight. The evidence further revealed that defendant believed at the time of the assault and battery that the prosecuting witness had upon his person a considerable sum of money, and that it was the intention of the defendant at the time of committing, the assault to rob the prosecuting witness. He was frightened away only when the pistol of the prosecuting witness was discharged and people were attracted to him. Under the above statement we do not believe the court erred in overruling the demurrer to the information. While the iron pipe may not be a dangerous weapon “per se”, the description and manner of its use in this case convinced the jury that it was. Cotton v. State, 22 Okla. Cr. 252, 210 P. 739; James v. State, 47 Okla. Cr. 164, 286 P. 912; Spencer v. State, 49 Okla. Cr. 208, 293 P. 278.

The contention that the phrase in the statute, “any other dangerous Aveapon,” is governed and controlled by the Avords immediately preceding it, and those general words being • “firearms,” that when the term “any other dangerous Aveapon” was used it was intended to have reference to a “firearm” of some description, cannot be sustained. It was the evident intention of the Legislature by the use of the term “any other dangerous weapon” to mean any instrument which one might use, and with which bodily harm could be inflicted to the extent of injuring or putting one in fear of their life, or great bodily harm. The question of whether the instrument nsed was of that character was for the consideration of the jury under proper instructions of the court, as was done in the instant case.

We hare carefully examined the instructions given by the court and the requested instructions offered by defendant. Defendant in his brief does not point out any error in the general instructions, nor does he cite any authorities in reference thereto. These instructions presented to the jury the issues in a fair manner. Every right of the defendant was protected. As an included offense the court submitted the question of robbery in the second degree. Under this charge it would have been possible for the jury to have assessed the punishment at any time not to exceed ten years in the penitentiary.

This defendant conld have been charged under the statute known as conjoint robbery, two> or more having participated therein. Oklahoma Statutes 1931, section 2552, 21 Okla. St. Ann. § 800. The punishment under this statute is not less than five years in the penitentiary nor more than 50 years.

The court charged the jury that the witness Walter James Myers was an accomplice as a matter of law, and that it would be necessary for his evidence to be corroborated. The evidence clearly corroborated this witness. He was positively identified by the prosecuting witness as the party who assaulted and robbed him.

There was no reason for the court under the facts to submit the question of simple assault and battery as requested by defendant. The jury assessed the punishment at 15 years in the penitentiary, finding the defendant-guilty of robbery by use of a dangerous weapon. The evidence revealed a robbery by tbis defendant and others of a man 60 years of age, who was a watchman for a mining company near Picher in Ottawa county. He was assaulted and struck on the head with a piece of iron, and robbed of his pistol and flashlight. The defendant believed he was carrying a. large sum of money at this time, and this was the reason for the robbery. Defendant and his companions escaped into' Missouri, where they were apprehended. They used a stolen car to make their retreat. It does not occur to1 us that the punishment of 15 years as assessed by the jury is excessive, as urged by counsel for defendant.

We are justified in saying that counsel for defendant was appointed by the court. He has discharged his duty in a capable and highly efficient manner. Every right of defendant has been protected.

The judgment of the district court of Ottawa county is affirmed.

DOYLE, P. J., and JONES, J., concur.


text:
    THIAS CROUSE v. STATE.
    No. A-9618.
    Feb. 23, 1940.
    (100 P. 2d 467.)

      L. Z. Lasley, of Alva, for plaintiff in error.
    Mac Q. Williamson, Atty Gen., and Bill Gruber, Co. Atty., of Alva, for the State.
   BAREFOOT, J.

The defendant, Thias Crouse, was charged in the county court of Woods county with the crime of unlawful possession of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail, and has appealed,

It is urged that the court erred in refusing to quash the search warrant by reason of the insufficiency of the affidavit upon which it is based. This affidavit was as follows:

“Comes now Neis Nelson, of lawful age, who being first duly sworn, on his oath states:
“That he has personal knowledge of the facts hereinafter stated, and of the fact that intoxicating liquors are being manufactured, sold, bartered, given away or otherwise furnished, and are now being kept for the purpose of selling, bartering, giving away or otherwise furnishing the same in violation of the laws of the state of Oklahoma, by certain person, on certain premises and buildings thereon, to-wit:
“East half of the south 70 feet of lot 8 of S. B. Share’s subdivision to lots 29, 80, 31, and 32 of block 29 of the Original Town, now City of Alva, Oklahoma, and more particularly the ground floor portion of said described premises.
“That said premises are now occupied; that said premises are a place of public resort, occupied as a barber shop and as a private residence, and that they are in the possession of and under the control of one Thias Crouse.
“That this complaint and affidavit is made on account. of and based on the following facts, to wit: That affiant has been watching said premises, and has observed persons and conveyances going to' and from them and has observed the business, habit and condition of those persons. That affiant has seen a person who is known to affiant to be a person engaged in the illegal distribution of intoxicating liquor drive up to' the rear entrance to íCbay u tpns ni paq.iura: suopreo pnojun pun sosiuioad ptus as to plainly indicate that they contained intoxicating liquor; has seen the driver of said car and the said Thias Crouse carry said cartons into said building; that affiant is familiar with the markings and brands inscribed upon said cartons containing intoxicating liquors and knows of this own personal knowledge that these cartons contained intoxicating liquor, and that the seals placed thereon by the manufacturer were unbroken when SO' delivered to the said Thias Crouse; that he has seen men enter the front door of said premises in a perfectly sober condition and emerge therefrom shortly thereafter with the odor of intoxicating liquor upon their1 breath; that these men would be taken to' the rear room of said premises by Thias Crouse; that he has seen other men leave said premises with packages in their hands, that Thias Crouse, when not in said premises, has been seen frequently about town delivering packages to- various individuals; that the quantity of intoxicating liquor delivered to said premises is far in excess of the quantity necessary for personal use; that these facts are within the personal knowledge of said affiant and are not based on hearsay.
“Wherefore, affiant prays that the judge of said court issue a search warrant, in accordance with law, directing that the sheriff, or his deputy, of Woods county, Oklahoma, or any constable, marshal, or policeman of said county and state, search the premises and places hereinbefore described, either in the day or the nighttime, and seize all liquors, vessels, implements, fixtures and other property used in the violation of the laws of the state of Oklahoma.”

The search warrant contains the same allegations as the affidavit. A motion was made to suppress the same, but no evidence was offered prior to the trial to sustain said motion. The same was overruled by the court and exceptions taken.

It is contended that the search warrant did not properly describe the premises, and that it described premises over which the defendant had no control, and that the affidavit was insufficient upon which to base the issuance of a search warrant. A reading of the affidavit refutes the statement that it was insufficient upon which to base the issuance of a search warrant. It was positively sworn to by the officer and stated facts that were personally known to him, and which amply justified the magistrate in issuing the search warrant. It fully complied with the statutes, Oklahoma Statutes, 1931, section 2639, O. S. A. title 37, § 88 (McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Thomas v. State, 64 Okla. Cr. 265, 79 P. 2d 625) providing for the issuance of a search warrant to search a private residence.

The evidence at the trial revealed that defendant was operating a barbershop in the city of Alva, in Woods county; that in the same building, and with only a partition and door between, was the residence of the defendant. The intoxicating liquor, nine pints of whisky and one bottle half full of alcohol, was found by the officers stored in a box under the bed, in the portion of the building used as the residence. It is claimed that a portion of the premises described in the affidavit, and in the search warrant, Avas upstairs and occupied by other parties. The officers made no attempt to' search any part-of the building other than the place of business and residence of the defendant. The affidavit and search warrant described the premises and stated that they were being occupied as a place of public resort, and as a barbershop and as a private residence, and that they were in the possession of and under the control of Thias Crouse, the defendant here charged.

The two officers who made the search of the premises testified that when the liquor was found under the bed defendant came back and asked if “he couldn’t take the whisky down to the river and break it.” He said, “If you’ll do that, I promise I’ll never sell another bottle.” The defendant and his wife denied making this statement. The jury passed upon this conflict in the evidence and found the defendant guilty.

At the trial the court permitted the county attorney to offer in evidence the nine pints of whisky and the pint bottle half full of alcohol taken in the search. Two- of the bottles and the alcohol were opened and the deputy sheriff testified he had tasted of them, and smelled of them, and that they contained whisky. That the other bottles were labeled whisky but had not been opened. They were all offered in evidence, and the defendant had an opportunity to open any of them if he so desired. It is contended that the whisky should have been analyzed, and that the officer could not testify that they contained whisky because they had never been opened. The court takes judicial notice that whisky is an intoxicating liquor. This objection, in view of former decisions of this court, is without merit and does not need further discussion. Crouse v. State, 39 Okla. Cr. 127, 263 P. 681; Patton v. State, 20 Okla. Cr. 52, 200 P. 878; Johnson v. United States, 6 Cir., 46 F. 2d 7.

The defendant took the witness stand in his own behalf. He was asked by his attorney if he had ever before been in trouble of any kind. On cross-examination the county attorney asked him, “Isn’t it a fact that back in 1923, you robbed a certain schoolhouse and then brought back the stuff, and turned it over to the teacher?” This question was improper, but the court sustained an objection to this question, and admonished the jury to not pay the slightest attention to the question, and to dismiss it from their minds completely. Under these circumstances, and the evidence in this case, we do' not believe the defendant was prejudiced in any way.

We have carefully examined the instructions given by the court. No exceptions were taken thereto. They fairly stated the law covering this case, with the exception that instruction No. 2, in which the court charged the jury with reference to the possession of one gallon of whisky in his home, the same being Oklahoma Statutes 1931, sec. 2625, O. S. A. title 37, § 32. This instruction is based upon a section of the statute which is no longer in force in this state. In the case of Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757, this court has fully discussed the history of the quart and gallon law, and came to the conclusion that the gallon law was no longer in force and effect in this state, being, superseded by section 3, chapter 153, Session Laws of 1933, O. S. A., title 37, § 82. Under this statute the possession of in excess of one quart of intoxicating liquor is prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors, and this was the statute that was in force and effect at the time of the trial of this case. The defendant could have in no wise been prejudiced by this instruction, and no exception was taken to the giving of the same, and no requested instruction offered by defendant.

The evidence in this case was clear and convincing that defendant was using his place of business and his residence in connection therewith as a place for the operation of the business of unlawfully selling intoxicating liquor, and attempting to hide behind the just provisions of the Constitution and statutes of this state that the home of a citizen of this state cannot be searched unless it is being used as a place of storage or public resort. In the case of Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, 138, we stated:

“But with the passing of time a few of our citizens seem to forget the sacredness of their home and fireside and, in their eagerness to make money and in an effort to defeat the law, they have degraded their homes by bringing liquor and other instruments of crime therein for the purpose of using them in violation of the laws of this country, thereby hoping to receive protection through the sacred right of forbidding their homes to be searched, under the terms of the Constitution. Recognizing this evil •on the part of the few, our governments, both state and federal, have, as we stated before, gone a long way in permitting even the home to be searched, and especially where it is being used as a place of public resort, and for the storing of intoxicating liquor to be used for unlawful purposes. The rights of the many have been made to suffer for the sins of the few.”

This case comes clearly within this description. This defendant was using his home, which was connected with his business, as the place for the unlawful sale of intoxicating liquor. He was permitting his home to be used as a. place of storage so that he could carry on the business ■as above indicated. He had forfeited the rights which were given and guaranteed to him by the Constitution and ■statutes of this state.

We are, therefore, of the opinion that the judgment of the county court of Woods county should be affirmed.

DOYLE, P. J., and JONES, J., concur.