text:
    JAMES W. LACEY v. STATE.
    No. A-4257.
    Opinion Filed April 15, 1924.
    (224 Pac. 994.)
    (Syllabus.)
    1. Witnesses — Wife not Competent Against Husband Charged with Incest. A wife is not a competent witness against her husband in a prosecution against him for incest, under a statute permitting her to testify in a prosecution for an offense committed by him against her.
    2. Same — “Crime Against the Other." Under Comp. St. 1921, 8 2699, providing “that neither husband nor wife shall in any case be witness against the other except in a criminal prosecution for a crime committed one against the other,” the wife is not a competent witness against her husband in a prosecution against him for incest.
    Appeal from District Court, Garfield County; J. C. Rob-berts, Judge.
    James W. Lacey was convicted of incest, and he appeals.
    Reversed.
    H. O. Glasser and H. J. Sturgis, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of convic-tion rendered on the verdict of a jury finding the defendant James W. Lacey guilty of the crime of incest, and sentence in accordance with the verdict of the jury for a term of four years in the penitentiary. In the view we have taken of the disposition necessary to be made of this case, it is neither important nor necessary to consider more than one of the questions presented by the record and briefs.

One of the grounds of the motion for a new trial ■ and assigned as error is that the court erred in admitting the testimony of Mrs. Bessie Lacey, wife of the defendant, as a witness for the state.

The record shows that the defendant was convicted of an alleged act of incest with his daughter, Margaret, committed on the 28th day of July, 1920, the state having elected to rely upon this act. The conviction was based upon the testimony of Mrs. Bessie Lacey, Who was the wife of the defendant. Defendant objected to the witness Bessie Lacey testifying for the reason that she was the wife of the defendant, and also moved to strike her testimony from the record, and moved the court to direct the jury to return a verdict of not guilty.

' The testimony of the witness Mrs. Bessie Lacey was substantially as follows:

That prior to the year 1920 she was living on a farm near the town .of Hillsdale, Okla., residing with her children, her former husband having died a year or two before. She was married to the defendant Lacey about the first of the year 1920, but by an agreement between herself and husband the marriage was- not made public until two or three months later. At the time of her marriage to the defendant he was residing in the village of Hillsdale with his daughter, Margaret, and his father, Capt. Henry D. Lacey. That a short time before her marriage to the defendant she loaned him $3,500, which was invested in a. hardware business, which he was then conducting in the town of Hillsdale. At the time of the announcement of the marriage the daughter, Margaret Lacy, became somewhat angered at her father, and particularly towards her stepmother. During the summer of 1920 the defendant conducted his hardware business and spent the major portion of his time at the home in Hillsdale he had provided for his father and his daughter. This “arrangement continued until about the month of September, when the defendant broke up housekeeping in Hillsdale and joined his wife on the farm.

She further testified that on or about the 20th of July, 1920, in the nighttime, she drove to the town of Hillsdale, and concealed herself near the house occupied by the defendant and his daughter, Margaret; that they were absent at the time of her arrival there, but came home later and entered the house, and she looked through a window and saw them undress in the same room and go to bed together. She returned to her home that night, and a day or two following her husband came out to the farm, spent the., day with her, remaining overnight, occupied the same bed with her, and that she did not mention to him what she had seen. She testified a few days later she made a like trip to the same place and saw substantially the same transaction; that within a day or two her husband appeared at her home in the country, and he again stayed all night, occupied the same bed with her, and she did not mention to him what she had seen. She further testified: That on the 28th day of July, 1920, she made another visit to the home occupied by the defendant and his daughter in Hillsdale, and there saw the defendant and his daughter remove all of their clothing, go to bed together, and have sexual intercourse. This is the act of in-. cest which the state elected to stand upon for a conviction in this case. That a few days after the defendant came out to her home and spent the day with her, and remained overnight, and occupied the same bed with her, and she did not mention what she had seen to him; that the defendant continued his weekly visits to her until about the middle of September, when he moved to the farm arid made his home there with her until their final separation in November, 1920. That his business was in a failing condition, and he became bankrupt some time in November, 1920, and that by reason of his failure she lost all of the money she had loaned him, except a small dividend. That she brought an action against him for divorce in the district court of Garfield county in the month of November, 1920, which action was still pending at the time of the trial, and that she did not set forth in her petition as a ground for divorce from the defendant any of the acts which she claims to have seen him commit during the month of July preceding, and that she did not and never did file a criminal charge against him, the record showing that the original complaint was verified by Mrs. Rex Lacey, her sister-in-law.

On the part of the defense, Margaret Lacey in substance testified: That she was the daughter of the defendant, James W. Lacey, and was just past the age of 21 years. That prior to the year 1917 she had lived with her mother in the state of Oregon. That in the spring of 1917 she came to Garfield county to live with her father. She denied categorically all of the testimony with relation to illicit intercourse with her father. That she submitted herself to an examination by three physicians for the purpose of showing that she was a virgin, and had not been guilty of sexual intercourse with any man.

As medical experts two. of these doctors testified that no physician could say that a woman had never had sexual intercourse. One stated as his opinion that Margaret Lacey had not been guilty of habitual sexual intercourse. ' The other stated that the hymen was present, and in his opinion she had not had sexual intercourse with any man.

As a witness in his own behalf the defendant denied having had any improper relations with his daughter.

The common-law rule was that neither husband nor wife could be a witness for or against the other in. any criminal proceeding, except in the prosecution of one for criminal injury to the other. With certain exceptions, it was, at common law, against public policy to allow the wife to be a witness for or against her husband in any action, civil or criminal, to which she was not a party. This rule is based upon considerations of public policy growing out of the marital relation, and the reason therefor is because the husband and. wife are regarded in law as one person, and that to allow one to testify for or against the other would be to subject him or her to great temptation to commit perjury, and it would endanger the harmony and confidence of the marital relation. The statute reads as follows:

“That neither husband nor wife shall in any case be á witness against the other except in a criminal prosecution for a crime committed one against the other, but they may in all criminal cases be witnesses for each other, and shall'be subject to cross-examination as other witnesses, and shall in no event on a criminal trial be permitted to disclose communications made by one to the other except on a trial of an offense committed by one against the other.” Comp. Stat. 1921, § 2699.

There is a decided conflict of authority as to whether or not -the statutes permitting one spouse to testify against the1 other in criminal proceedings for an offense committed by one against the other apply to sexual offenses, such' as adultery, bigamy, rape, and incest. The courts of a number of jurisdictions maintain that such statutes do not change the common-law rule that a husband or wife cannot testify against the other except in case of personal violence, and that a sexual offense with a third person is not a crime against the unoffending spouse within the meaning of such statutes, and the courts of other jurisdictions maintain with equal certainty that similar and often identical statutory provisions suspend the exceptions so as to permit one spouse to testify against the other in cases of. the character under consideration. See State v. Wilcox, 185 Iowa, 90, 169 N. W. 646, 4 A. L. R. 1066, and annotation, 1069.

It is the well-settled doctrine in this state that adultery by one spouse is a crime against the other spouse under the statute providing that no prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own husband or wife, as the case may be, or by the husband or wife of the other party to the crime (Comp. Stats. 1921, § 1852). Stone v. State, 12 Okla. Cr. 313, 155 Pac. 701. In Kitchens v. State, 10 Okla. Cr. 603, 140 Pac. 619, we held that:

“While adultery is a public offense under the statute, it is also a personal offense against the injured husband or wife, so that either becomes a competent witness to prove the offense.”

In Cargill v. State, 25 Okla. Cr. 314, 220 Pac. 64, we held that the wife is not a competent witness against her husband in a prosecution for rape • committed by him upon his stepr daughter. In that case the question was very fully considered by the court, and after a careful review of the authorities this court arrived at the conclusion that the weight of authority clearly sustained the view adopted by the court.

In State v. Burt, 17 S. D. 7, 94 N. W. 409, 62 L. R. A. 172, 106 Am. St. Rep. 759, the defendant was convicted of incest with his daughter. It was held that under a statute forbidding a wife to be a witness against her husband, except when he is prosecuted for the commission of a crime against her, the wife was not a competent witness. In the opinion it is said:

“With reference to this statute the husband’s crimes might be classified thus: (1) Those which are against persons other than his wife; (2) those which are against no particular person; and (3) those which are against his wife. It is only in actions for crimes belonging to the last-mentioned class that the wife can testify for or against her husband without his consent. Had the defendant, in the case at bar, been a widower when the acts were done for which he is being punished, his crime would have been the same. The existence of the marital relation between the witness and the defendant did not, in any legal sense, affect or constitute any element of the crime for which he was convicted. Should we hold that the crime charged in this action was one against the wife it would logically follow that the rape or murder of defendant’s daughter would have been a crime against her within the meaning of the statute. To hold that a wife may testify for or against her husband, without his consent, in cases of incest, would be, in effect, to establish the rule that either husband or wife may testify for or against the other, without consent, in all actions wherein either is defendant; and such was manifestly not the legislative intent. With the policy of this statutory rule the courts are not concerned. If the law should be changed the duty of changing it devolves upon the Legislature, not upon this court. As all the wife’s testimony should have been excluded because she was not a competent witness, assignments of error relating to particular portions of it need not be considered.”

In State v. Beltner, 60 Wash. 397, 111 Pac. 344, it was held that, under a statute providing that a wife should not be examined against her husband without his consent, except in a prosecution for a crime committed by one against the other, a wife is incompetent to testify against her husband in a prosecution for incest. .

In Compton v. State, 13 Tex. App. 271, 44 Am. Rep. 703, the defendant was convicted of incest with his stepdaughter, and the court held that his wife was not a competent witness against the defendant under a statute the same as ours, overruling Morrill v. State, 5 Tex. App. 447, and Roland v. State, 9 Tex. App. 277, 35 Am. Rep. 743.

And see Vickers v. State, 69 Tex. Cr. R. 628, 154 S. W. 578.

After much investigation and deliberation we have reached the conclusion that, the commission of incest by a man. is not a crime against his wife. It follows that the wife is not, under the statutes of this state, a competent witness against her husband in a prosecution for the crime of incest.

In the argument for the state it was urged that the rule in the Cargill Case, if adhered to, will prevent such crimes from being punished. As to the policy of this statutory rule we simply say that we must construe the law, and not attempt to make it. If the law should be changed, the duty of changing it devolves upon the Legislature, not upon this court.

For the error of the trial court in permitting the wife of the defendant to testify against him, the judgment herein is reversed.

MATSON, P. J., and BBSSBY, J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    Ex parte WILLIAM CLEMMONS.
    No. A-5101.
    Opinion Filed April 15, 1924.
    (225 Pac. 184.)
    Habeas corpus by William Clemmons for release from custody.
    Writ denied.
    Minter & McClendon, for petitioner.
    The Attorney General, for the State.
   BESSEY, J.

The petitioner, William Clemmons, was on January 10, 1924, convicted of the crime of receiving stolen property, with his punishment fixed by the court at confinement in the county jail of Marshall county for a period of 30 days beginning January 10th, and to pay a fine of $200 and the costs of the prosecution. On the same day the trial judge issued a commitment against the petitioner to enforce the judgment, ordering the sheriff to keep petitioner confined in jail until the fine of $200 and the costs of the prosecution, taxed at $66, were paid. Petitioner claims that he should now be released from such confinement because he has served the term of imprisonment named in the primary judgment rendered against him, which did not recite that in addition to the term of imprisonment named therein he be confined for the nonpayment of fine and costs, and that the commitment, in so far as it relates to confinement for fine and costs, is void and inoperative, and for that reason petitioner is entitled to be released on habeas corpus.

The statute first enacted providing for imprisonment for nonpayment of a fine and costs (section 5958, R. L. 1910) provides as follows :

“A judgment that the defendant be imprisoned and pay a fine and costs may also direct that at the end of the prison sentence he be imprisoned until the fine and costs are satisfied. * * *”

The judgment in this ease made no such provision, but the commitment simultaneously issued did provide for imprisonment for failure to pay the fine and costs.

In the case of Ex parte Roller, 3 Okla. Cr. 384, 106 Pac. 548, in an opinion written by Judge Owen, the court said:

“The Legislature could provide for imprisonment for the nonpayment of fines and penalties imposed for the violation of law. * * * The judgment of the court * * * does not provide that the defendant be imprisoned until the fine and costs are paid.”

It was adjudged that the petitioner for that reason should be discharged.

In Ex parte Bowes, 8 Okla. Cr. 201, 127 Pac. 20, in an opinion written by Judge Doyle, the court again said:

“The Legislature of this state would have authority to provide as a part of the penalty for the violation of law the-payment of costs and the enforcement of the payment by imprisonment. Under the provisions of our penal code and procedure criminal, the costs are not made a part of the penalty.”

See 25 C. J. “Fines and Penalties,” §§ 19, 21, 22; 8 R. C. L. 269.

The Legislature in 1913 (section 6332, Comp. Stats. 1921), probably following the suggestions made by the court in the Roller and Bowes Cases, provided that the fine and . costs “shall” be enforced by imprisonment. This statute in part reads as follows:

“All costs in the prosecution of all criminal actions shall in ease of conviction of the defendant be adjudged a part of the penalty * * ■ * and costs in addition to the *' * * fine assessed, shall be enforced by imprisonment.”

This section specifically repeals prior statutes making a fine and costs a civil liability; the statutes so repealed are sections 885, 6917, 6918, 6921, 6922, 7068, 7793, Snyder’s Comp. Laws 1909, also sections 2607, 5290, Stats. 1893; and it amends section 31a, c. 69, Sess. Laws 1910.

A fair construction of this, statute impels us to hold that since its enactment its provisions relating to fines and costs automatically become a part of every criminal judgment imposing a fine or imprisonment, or both, and that a failure to make a recital in the judgment that the defendant be held until the fine and costs are satisfied in the manner provided by law will not on habeas corpus relieve the person so convicted from satisfying the fine and costs in the manner designated by this statute. Jackson v. Boyd, 53 Iowa, 536, 5 N. W. 734; Foster v. Territory, 1 Wash. 411, 25 Pac. 459; Murphy v. State, 38 Ark. 514; In re Luezler v. Perry, Sheriff, 18 Ohio Cir. Ct. R. 826; In re Carrie McAdams, 21 Ohio Cir. Ct. R. 450; Farris v. Dozier (Ky.) 82 S. W. 615. Section 6332 also provides how the fine and costs shall be satisfied. They may be satisfied by the payment in money of the amount named, and if the person convicted fails to make such payment the statute directs that the fine and costs “shall be enforced by imprisonment until the same shall be satisfied at the rate of one dollar per day.” This brings the duration of the convicted person’s imprisonment under his own control. ' By payment of the fine and costs he can at any time secure his release.

It is the better practice to recite in the judgment that the defendant stand committed until the fine and costs named are paid, at the rate $1 per day, but under our statutes a failure to incorporate such a recital in the judgment will not operate to give the petitioner relief on habeas corpus. So far as fine and costs are concerned both the accused and sheriff are bound by the provisions of the statute which, by its terms, gives no discretion to the trial court to render a judgment other than that designated by the statute.

We conclude therefore that to all intents and purposes the fine and costs provisions of the statute automatically become a part of the judgment without any specific recital to that effect. Such recitals in the judgment are commended, however, in order that the convicted person and the sheriff may by an examination of the judgment and commitment avoid any misunderstanding as to the duration of the confinement.

The application of the petitioner for his release upon habeas corpus is denied.

MATSON, P. J.,' concurs.

DOYLE, J., dissents.


author: MATSON, P. J.

text:
    E. A. WILDER v. STATE ex rel. SEAVER, County Attorney.
    No. A-4332.
    Opinion Filed April 17, 1924.
    (225 Pac. 557.)
    (Syllabus.)
    1. Injunction — Temporary Writ not Operative Until Service of Summons — Obligatory Subsequent to Issuance of Summons, Though Served Previously.' On September 13, 1921, on a duly ' verified petition, the district court of Tulsa county issued a temporary writ of injunction against this plaintiff in error, based on section 7022, Compiled Statutes 1921, relating to the abatement of liquor nuisances. The temporary writ was served on plaintiff in error personally on September 14, 1921; on September 28, 1921, a summons was issued, and on the 4th day of October, 1921, the summons was served on a codefendant. On the 21st day of October, 1921, a verified accusation for contempt of court for violating the terms of said temporary injunction was filed, charging violations thereof by this plaintiff in error on the 15th arid 16th days of October, 1921. Citation was immediately issued and served on plaintiff in error to appear and show cause why he should not be held in contempt of court for violating the terms of said temporary injunction. On October 26, 1921, plaintiff in error appeared, was arraigned in open court, and entered a plea of “not guilty” to said accusation. Thereafter on November 8, 1921, after a change of judge had been granted to plaintiff in error, the cause proceeded regularly to trial before the court and a jury. Thereafter the jury returned into court a verdict of guilty, and fixed the punishment at the maximum provided by the statute. The plaintiff in error on appeal contends that because no summons was issued in the action on September 13, 1921, the date on which the temporary writ of injunction was issued, the court was without jurisdiction to issue an order of attachment based on a violation thereof. Held, that the issuance of the temporary writ of Injunction without issuance of summons was an irregularity and that the writ did not become operative until the action was commenced by the issuance of summons. Held further, that the temporary writ of injunction, having been issued and served upon plaintiff in error prior to the issuance of summons, it became and was obligatory upon him from the time of the issuance of summons, until dissolved, as to all violations of the order of injunction occurring subsequent to the issuance of summons.
    2. Discussion of Law of Injunction. For a full discussion of the reasons for the holdings in syllabus No. 1, see body of opinion.
    Appeal from District Court, Tulsa County; Albert C. Hunt, Judge.
    E. A. Wilder was convicted of contempt of court, and he appeals.
    Affirmed.
    On the 13th day of September, 1921, the state of Oklahoma, on the relation of W. F. Seaver, county attorney of Tulsa county, commenced an action against the above-named plaintiff in error and one Otto Greenwood by filing in the district court of Tulsa county, Okla., a petition for an in-injunction against the said. Wilder and the said Greenwood as owners and proprietors of a certain frame building used as a residence and dance hall combined, located about one mile north and a little east of Oakhurst, in said county, and known as Pistol Hill. The petition for the writ of injunction is lengthy and is based on section 7022, Compiled Statutes 1921, providing, among other things, for the abatement of what is commonly called a liquor nuisance. Among other allegations of the petition are these: That the place is kept and operated for the purpose of manufacturing, selling, bartering, giving away, and otherwise furnishing intoxicating, spirituous, vinous, fermented, and malt liquors, and that said premises are and have been a place where divers persons are permitted to congregate, assemble, and resort, for the purpose of there drinking intoxicating liquors, that the premises are fitted up with all the necessary vessels and appurtenances for such purposes, and that the defendants jointly keep, carry on, and maintain said premises to the common nuisance of the public, etc.
    The petition further asks that upon filing the petition a written notice shall be served upon defendant and that a hearing before said court will be had within three days, at which time said defendants may appear and show cause why a temporary writ of injunction should not be issued against said defendants on the property above described.
    The petition was verified by the affidavits of W. L. Coffey, assistant county attorney, E. H. Robins, a police officer, and A. M. Langley, another police officer of Tulsa county.
    Petitioner further demanded judgment that the said building and premises described be declared a common nuisance, and that the sheriff or his lawful deputy, or a peace officer of the state of Oklahoma, be directed to abate and suppress such place by immediately and forthwith entering into and retaining possession thereof and closing and shutting up the same, and by securely padlocking the doors and entrances thereto and retaining the keys of such padlocks and by taking possession of all intoxicating liquors found therein and all other property and paraphernalia used in maintaining and operating such common nuisance, etc.

      Plaintiff further demands that, until a final hearing be had, a temporary writ of injunction be issued against defendants, and each of them, against their agents, employes, etc., enjoining and restraining them, their employes, etc., and each of them from permitting persons to resort, assemble at, in, or upon said premises for the purpose of drinking intoxicating' liquors and for the purpose of manufacturing, bartering, and selling the same, etc., and further demanded that upon'final hearing the writ be made permanent and perpetual, and that said building and premises be declared a common nuisance and ordered abated and suppressed pursuant to the statutes, etc.
    Thereafter, on the 14th day of September, 1921, a temporary writ of injunction was served, and the premises securely locked up and fastened, as prayed for.
    Thereafter on the 28th day of September, 1921, a praecipe for the issuance of a summons to the defendants was filed and summons issued and placed in the hands of the sheriff for service and returnable on the 7th day of October, 1921, requiring the defendants to answer said petition on or before the 27th day of October, 1921. Thereafter on the 6th day of October, 1921, the sheriff made a return of said summons as follows: Served the same upon Otto Greenwood October 4, 1921, by delivery personally, a true and certified copy of the within summons, with all indorsements thereon. Defendant Shorty Wilder not found in said county.
    Thereafter on the 21st day of October, 1921, there was filed in said cause an accusation for contempt of court, which accusation, among other things, alleged: That on the 13th day of September, 1921, a temporary injunction was issued against the defendants, and each of them, by the Honorable W. B. Williams, one of the judges of the district court of Tulsa county, and that the said temporary writ of injunction was, on the - day of September, 1921, duly and regularly served on said defendants, and a copy of said temporary writ so issued and the return of the sheriff of Tulsa county indorsed thereon showing service thereof, being attached and marked Exhibit A, and made a part of the accusation. That after- issuance and service of said temporary writ of injunction, as aforesaid, the said defendants, and each of them, did on and prior to the 17th day of October, 1921, and especially on the 15th and 16th days of October, 1921, violate the terms, mandates, and conditions of said temporary writ of injunction in the manner and form as follows, to wit: That defendants after the service of said temporary writ and prior to the filing of the accusation, and especially on the 15th and 16th "days of October, 1921, did then and there reopen the said building and permit persons to resort and assemble at, in, upon, and about said premises, and did permit numerous and divers persons, unknown to informant, to congregate and resort at, in, upon, and about said premises for the purpose of drinking, purchasing, trafficking, and dealing in intoxicating liquors as a beverage, etc., and that on the morning of the 16th day of October, 1921, said premises were raided by the deputy sheriff and other officers and whisky was found in and upon said premises, and a large number of men and wom.en was assembled in and upon said premises in an intoxicated condition and engaged in gambling games, etc., and that the said defendant Shorty Wilder was then and there present in person, in and upon said premises, ostensibly in charge thereof as proprietor, all of which was then and there in violation of the terms, mandates, and conditions of said temporary writ of injunction, and in flagrant contempt of this court. Wherefore plaintiff prayed that an attachment issue, directed to the sheriff, ordering and commanding him forthwith to attach and bring the bodies of the said Shorty Wilder and Otto Greenwood before the court to show cause why they should not be adjudged guilty of contempt and dealt with as by law provided in such cases.
    Said accusation was positively verified.
    Thereafter on the 21st day of October, 1921, the court made an order that attachment issue for said defendants as directed.
    The case-made contains no record of the issuance and service of the writ of attachment, but it appears from the minutes of the court clerk in said cause that on the 26th day of October, 1921, the defendants were arraigned in open court and each entered a plea of not guilty to said accusation, and that the cause was set for hearing for Tuesday, November 8, 1921, at 9 a. m., and defendants were each furnished with a copy of the accusation and their bonds fixed at $1,000 each; that thereafter this plaintiff in error, Wilder, was released on bond; that thereafter on the 8th day of November, 1921, there was filed in said action by the defendant E. A. Willd'er, or “Shorty” Wilder, a motion for a change of judge; that thereafter on said day the motion was heard and sustained; that thereafter the proceedings in this case were had before the Honorable Albert C. Hunt, one of the district judges of Tulsa county; that immediately thereafter the cause proceeded regularly for trial, and a jury was called and examined and sworn, and the state introduced its evidence, and the defendant introduced his evidence, and both rested. The court instructed the jury, and the jury returned a verdict of guilty, and fixed the punishment at six months in jail and a fine of $500.
    It is unnecessary to enter into a discussion of. the evidence. It is not contended that the evidence on the part of the state does not disclose a clear violation of this temporary writ of injunction on the 15th and ,16th days of October, 1921.

      George W. Boone, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

(after stating the facts as above). It is first contended that because no summons was issued in this action on the 13th day of September, 1921, the date on which the temporary order of injunction was issued, the court was without jurisdiction to issue an order for attachment based on a violation thereof.

This proceeding is based upon section 7022, Compiled Statutes 1921, which reads as follows:

“All places where any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any malt liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; is manufactured, sold, bartered, given away, or otherwise furnished in violation of any provision of this act; and all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances, and upon the judgment of any court of record finding such place to be a nuisance under this section, the sheriff, his deputy, or undersheriff, or any constable of. the proper county, or marshal or police of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and destroying all liquors found therein, the keeping or sale of which is prohibited by this act, together with all signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining said nuisance; and the owner or keeper, thereof shall, upon conyiction, be adjudged guilty of maintaining a public nuisance, ■ and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months. The Attorney General, county attorney, or any officer charged with the enforcement of any of. the provisions of this act, of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required. Any person violating the terms of any injunction granted in such proceeding, shall be punished, as for contempt, by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment.”

This court had occasion to consider the foregoing statute in so far as it relates to contempts of court in the case of Martindale v. State, 16 Okla. Cr. 23, 180 Pac. 385. The first paragraph of the syllabus in such case is as follows:

“Section 13, c. 70, Session Laws 1911 [section 7022, supra], construed, and held to authorize a trial court at the commencement of the action to issue a temporary order of injunction. Where the trial court has jurisdiction of the original subject-matter and obtains jurisdiction of the parties to the injunction proceedings, and issues such temporary order of injunction, it has jurisdiction to punish by contempt proceedings those parties guilty of willful disobedience of the order of injunction.”

It is contended in the instant case that the holding in the Martindale Case is to the effect that jurisdiction to issue the temporary writ of’ injunction at the commencement of the action was obtained in the Martindale Case by the contemporaneous issuance of a summons to the parties, and that the issuance of such summons is a necessary prerequisite to the issuance of the temporary writ, and that the failure to issue the summons at the time of the issuance of the writ, or prior thereto, rendered the issuance and service of the writ a nullity, and that the proceedings for contempt, therefore, were without jurisdiction and void as against this plaintiff in error.

In the case of Key et al. v. State ex rel. Hodge, County Attorney, 101 Okla. 211, 224 Pac. 549, the Supreme Court of this state, in considering section 7022, Compiled Statutes 1921, held as follows:

“Section 7022, Comp. St. 1921, in relation to the enforcement of prohibitory laws, authorizes the state, on relation of the county attorney, to sue and obtain injunctive relief, but the same is a civil action and not a special proceeding, and must, be commenced by the filing of a petition and causing a summons to be issued thereon, as required by section 231, Comp. St. 1921, and the procedure is governed by the general Code of Civil Procedure relating to suits in equity.”

Section 231, Compiled Statutes 1921 (Code of Civil Procedure), provides:

“A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon.”

Section 404, Id., provides in part:

“The injunction provided by this Code is a command to refrain from a particular act. It may be the final judgment in an action, or may be allowed as a provisional remedy, and, when so allowed, it shall be by order.”

Section 406, Id., provides:

“The injunction may be granted at the time of commencing the action, or any time afterwards, before judgment by the district court, or the judge thereof, or, in his absence from the county, or disqualification, by the county judge, upon its appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or his agent, that the plaintiff is entitled thereto. ’ ’

Section 409, Id., provides:

"The order of injunction shall be addressed to the party enjoined, shall state the injunction, and shall be issued by the clerk. Where the injunction is allowed at the commencement of the action, the clerk shall endorse upon the summons ‘Injunction allowed,’ and it shall not be necessary to issue the order of injunction, nor shall it be necessary to issue the same where notice of application therefor has been given to the party enjoined. The service of the summons so endorsed, or the notice of an application for an injunction, shall be notice of its allowance.”

Section 411, Id., provides:

"An injunction binds the party from the time he has notice thereof, and the undertaking required by the applicant therefor is executed.”

Section 417, Id., provides:

"If the injunction be granted without notice, the defendant, at any time before the trial, may apply, upon notice, to the court in which the action is brought, or any judge thereof, to vacate or modify the same. The application may be made upon the petition and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer. The order of the judge, allowing, dissolving or modifying an injunction, shall be returned to the office of the clerk of the court in whieh the action is brought, and recorded and obeyed, as if made by the court.”

It is section 409, supra, of the statute on which plaintiff in error relies to sustain his contention that the court obtained no jurisdiction of the subject-matter of this action by reason of the issuance alone of the writ of temporary injunction. In other words, it is contended that, this being a' civil action, the same was not commenced until the summons was issued, and that, although the statute provides that the injunction may be issued at the commencement of the action and without bond, it means that the injunction may be issued when the summons is issued and not prior thereto and that the issuance of the temporary injunction prior to the issuance of the summons was coram non judice and void.

If it be admitted, as was held by the Supreme Court of this state, that this is a civil action and not a special proceeding, and that the action is not commenced until the summons is issued, we still think the contention of plaintiff in error as to the jurisdiction of the trial court over the subject-matter of this action at the time of the issuance of the writ .of attachment on the accusation for contempt is not well founded.

The record in this case discloses that the petition for the writ of injunction was filed on the 13th day of September, 1921, and that on the showing made a temporary writ of injunction was issued, and that the same was served on both of the defendants to the action on the 14th day of September, 1921, that on the 28th day of September, 1921, a summons in such action was issued and on the 4th day of October, 1921, it was served on one of the defendants. Therefore, under the Code of Civil Procedure the action was commenced on the 28th day of September, 1921, by the issuance of the summons.

Was the temporary writ of injunction theretofore issued and served an absolute nullity, or was it a mere irregularity? Plaintiff in error contends that by reason of the provisions of section 409, supra, it must be held that the issuance and service of the temporary order of injunction prior to the issuance of the.summons was absolutely void and as to the defendant the temporary injunction had no force and effect, although the summons was afterwards issued. With this contention we cannot agree. We think it apparent from the provisions of section 409, supra, that the Legislature by the statements therein contained were providing the circumstances under which the issuance and service of the writ of injunction, if allowed at the commencement of the action, might be dispensed with. In other words, it would not be necessary to issue the temporary writ of injunction and serve same with the summons, provided the summons was indorsed “Injunction Allowed,” and further it would not be necessary to issue and serve an order of injunction allowed at the commencement of the action, provided notice of the application therefor had been given to the party enjoined. In either of such instances the statute provides that such shall be notice of the allowance of the writ. In all other instances, we think it was intended that the writ of injunction, if allowed at the commencement of the action, shall be served on the parties to be enjoined.

This being a civil action, it may be conceded that the trial court acquired no jurisdiction over the subject-matter of the action until the summons was issued, but as soon as the summons was issued the action was commenced. Did the issuance and service of the temporary writ of injunction prior to the issuance of the summons constitute a mere irregularity, or was such action void? We think this query may be answered in this wise: That the issuance of the temporary writ of injunction without the issuance of the summons was an irregularity, and that the same did not become operative; in other words, that the action was not commenced until the summons had been issued and that thereafter the writ of injunction was obligatory upon the defendants until the same was dissolved.

Section 406, supra, provides: “The injunction may be granted at the time of commencing the action, or any time afterwards, before judgment,” etc., and section 231 declares that an action is commenced “by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon.”

Under these provisions we think it is clear that an injunction order cannot become operative until the summons in the action has been issued, and that the service of an injunction upon the defendant prior to the issuance of the summons would be irregular and ineffectual.

It does not follow, however, that the injunction order may not be signed by the judge preparatory to the issuance of summons and to be delivered and served with the summons, although until the summons is issued it would have no operative effect.

The language in section 406, supra, “the injunction may be granted at the time of commencing the action, or any time afterwards, before judgment,” is meant to define two periods. If the summons must in all cases be issued before the judge has jurisdiction to grant the order, then no injunction can issue until after the action has been commenced, and the words, “at the time of commencing the aetion,” used both in section 7022, supra, and 406, supra, would be superfluous and apparently without meaning; but this section meant that a plaintiff may not only have an injunction after his aetion is cómmeneed, but that he may also have it at the time of the commencement of his aetion. In this connection these words mean while the process of commencing the action is going on and not after it is finished. These words import that the injunction may be obtained so that it shall operate at the time when, and so soon as, an action is commenced and not alone after it is commenced.

We think this view is in accordance with sound reasoning, as it is of vital importance sometimes to a plaintiff to enjoin a defendant at the very instant that an action is commenced against a defendant, and in which a. defendant would, were it not for such an injunction, defeat the object of the suit.

Counsel for plaintiff in error have cited no authority in support of this contention. The writer has taken occasion to make a thorough examination of the decisions of this and other states where similar statutes are in force. The decision of the Supreme Court of the territory of Oklahoma in the case of Reddick v. Webb et al., 6 Okla. 392, 50 Pac. 363, is a decision nearest in point tending to sustain the contention of plaintiff in error’s counsel. But the Reddick Case is distinguishable from this case in that in the Reddick Case the statement of facts discloses that no summons was issued at any time. In the body of the opinion appears the following comment :

“A civil action is commenced ‘by filing in the office of the clerk of the proper court a petition and causing summons to be issued thereon.’ Section 57, Procedure Civil. And I am of the opinion that, at least, the first of the two necessary steps in the commencement of an action must have been performed before the time of the commencement thereof could possibly be held to have arrived, and no court has authority to grant an injunction prior to ‘the time of commencing the action’; hence, if an in junctional order is granted and a bond executed to protect the defendant named therein from damages resulting because of the granting of said order, before either of these necessary steps in the commencement of an action has been taken, and neither of said steps are, subsequently thereto, taken, both the order and bond are, in my judgment, nullities and no right of action can ever accrue upon the latter.”

It will be noticed, therefore, that the opinion in that case was based largely upon the proposition that the action was at no time commenced. And by inference it may be inferred that, if the necessary steps for the commencement of the action had been taken subsequently to the issuance of the writ, a contrary view might have been expressed.

In the instant case all the steps necessary to the commencement of the action were taken before the issuance of the order of attachment for contempt and the violation of the injunction order, and the conviction is for acts committed by the defendant subsequent to the taking of these necessary steps in the commencement of the original action. Lash v. McCormack, 14 Minn. 482 (Gil. 359); Leffingwell v. Chase, 19 How. Prac. (N. Y.) 54; Drummond v. Drummond et al., 49 Okla. 649, 154 Pac. 514; State ex rel. v. Pierce, 51 Kan. 241, 32 Pac. 924.

The conclusion is reached, therefore, that the trial court acquired jurisdiction of the subject-matter of this contempt proceeding prior to the issuance of the order of attachment herein, and that jurisdiction of the person of the defendant was obtained when the defendant appeared and entered his plea of not guilty without questioning the jurisdiction of the court over his person.

The further assignment, ,of error that the court erred in admitting secondary evidence of the contents of the purported temporary injunction is not sustained by the record and is without merit.

For the reasons stated, the judgment of the district court of Tulsa county is affirmed.

BESSEY and DOYLE, JJ., concur.


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    WILLIAM CAMPBELL v. STATE.
    No. A-4116.
    Opinion Filed April 19, 1924.
    (224 Pac. 722.)
    (Syllabus.)
    Homicide — Conflicting Evidence Insufficient to Sustain Conviction. The evidence as a whole is insufficient to support the verdict, for the reason that the facts proved were inconsistent with each other and not inconsistent with several reasonable deductions pointing to the innocence of the accused.
    Appeal from District Court, Cotton County; T. P. Clay, Judge.
    William Campbell was convicted of manslaughter in the first degree, and he appeals.
    Reversed and remanded with instructions.
    D. M. Bridges and Lon Morris, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment and sentence of conviction for the crime of manslaughter in the first degree, upon an information charging plaintiff in error with the murder of J. L. Dobbs on the 4th day of August, 1920.

The conviction rests largely upon circumstantial evidence of human foot tracks made by a person wearing tennis- shoes, and the showing that the accused wore such shoes and was the owner- of a .38 caliber pistol. The accused, by the testimony of disinterested neighbors, established a reasonable, good alibi; the accused and the deceased were good friends, and no impelling motive was shown why the accused would have committed the homicidal act.

The record of the testimony comprises about 400 typewritten pages. The accused, among other things, says that the evidence as a whole is insufficient to support the verdict, for the reason, that the facts proved were inconsistent with each other and not inconsistent with several reasonable deductions pointing to the innocence of the accused.

This court, under the circumstances here, is justified in dispensing with a tedious recital of the evidence. It is sufficient to say that a careful, painstaking analysis of all the evidence does not exclude every other reasonable hypothesis than the guilt of the accused. Assuming .that all of the state’s evidence is true, the deceased may have been' slain by persons who had been in the habit of stealing watermelons from the field where his body was found; he may have been killed by another neighbor; or the killing may have been accidental.

The judgment and sentence are therefore set aside, and a new trial ordered, in the event that the state is able to produce additional evidence, otherwise the prosecution should be dismissed.

The causé is reversed and remanded, with instructions to proceed as outlined above.

MATSON, P. J., and DOYLE, J., concur.


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    T. F. GORDON v. STATE.
    No. A-4317.
    Opinion Filed April 19, 1924.
    (224 Pac. 734.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence Supporting Conviction for illegal Manufacture. The evidence, in part circumstantial, held sufficient to support the verdict.
    2. Trial — Instruction on Circumstantial Evidence Held Sufficient An instruction that the circumstances pointing to the guilt of the accused, taken together,, must be of a conclusive nature, producing a reasonable moral certainty that the accused and no other committed the offense, under the circumstances- proved, was sufficient.

      Appeal from County Court, Cotton County; J. C. Norman, Judge.
    T. F. Gordon was convicted of the illegal manufacture of intoxicating liquor, and he appeals.
    Affirmed.
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

This is an appeal from a judgment of conviction rendered against plaintiff in error on the 22d day of February, 1922, in which he was sentenced to pay a fine of $300 and serve a term of 110 days in the county jail of Cotton county.

A number of officers, under authority of a search warrant, went to the farm and premises of plaintiff in error, hereinafter referred to as the defendant, and there made a search for whisky and the means and implements of manufacturing whisky. In a straw stack, some 300 or 400 yards from defendant’s house, these officers found a hidden room constructed of lumber, about 8 by 12 feet in dimensions, covered and surrounded by straw in such manner as not to be noticeable from the outside except upon careful examination. In this room they found a wooden vat in which there was a quantity of grain mash in the process of fermentation, about two gallons of whisky in an 8-gallon container, an oil stove, and other appliances. Not far from the house of defendant, near the hogpen, they found two barrels partly full of old-mash.

The straw stack was in a field which had been recently seeded to wheat, not far from a division fence adjoining a pasture. There were wagon tracks leading from defendant’s house to tTTe straw stack and also tracks leading to the fence opposite the stack in the pasture.

It appears that when the officers arrived to make this search they found the defendant, his son, and a Mr. Starky working on an automobile some distance from the house. During the search Starky disappeared and has not been since apprehended. Starky had been staying at defendant’s home at intervals for some weeks.

The defendant denied that he manufactured whisky or had anything to do with the hidden plant in the straw stack, or j that he knew anything about it, and sought by his testimony to show that Starky or some other person was responsible for the plant being there.

The defendant claims that this conviction rests on circumstantial evidence, and ■ that the evidence, as outlined above, is not sufficient to support the verdict, in that it is not inconsistent with defendant’s innocence and not incapable of any other reasonable explanation except upon the ground that he is guilty.

The record does not support this claim. The testimony of the officers was that they detected the presence of fermenting mash by its odor long before they reached the straw stack, and the defendant, in seeding the surrounding field to wheat, must have known of the presence of the mash and and must himself have been responsible for its presence, or else have co-operated with some other person in placing it there. All the circumstances point conclusively, as we sée it, to the defendant’s connection with the mash and the operation of the hidden plant.

The defendant complains of some of the court’s instructions to the jury, particularly of the instruction upon circumstantial evidence, which was as follows:

“You are instructed that, in order to warrant a conviction on circumstantial evidence, each fact necessary for the conclusion sought to be established must be proved by competent evidence beyond a reasonable doubt. All the facts— that is, the necessary facts to the conclusion — must be consistent with each other and with the main fact sought to be proved, and the circumstances taken together must be of a conclusive nature, leading on the whole to the satisfactory conclusion and producing in effect a reasonable and moral certainty, that the accused, and no other, committed .the offense charged.”

This instruction sufficiently stated the law applicable to circumstantial evidence, and the concluding sentence is equivalent to instructions approved by this court, to the effect that the facts proved must be consistent with each other and with the main fact sought to be proved, so as to exclude, to a moral certainty, every reasonable hypothesis- except the guilt of the accused.

Furthermore, the objection urged is not of such a grave nature as might arise under other circumstances. The facts proved, strictly speaking, were not wholly circumstantial. The deductions of the jury, as shown by their verdict, might reasonably flow from the direct evidence before them.

The instruction given relating to aiding and abetting, under the circumstances proved, was sufficient.

Defendant complains that the court excluded certain testimony of a witness for the defense concerning traces of old roads and wagon tracks leading from the defendant’s premises and passing from the section line into the pasture adjacent to the straw stack; the witness testifying from observations made a month or more after the defendant’s arrest. The exclusion of this testimony, under the circumstances, could have worked no prejudice to the defendant.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


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    TOM HILL v. STATE.
    No. A-4507.
    Opinion Filed April 19, 1924.
    Rehearing Denied May 10, 1924.
    (224 Pac. 736.)
    (Syllabus.)
    Intoxicating Liquors — Evidence—General Reputation of Place of Offense. The general reputation of a public place as being a place where intoxicating liquors are kept and sold may be shown, as tending to establish the intent of the person maintaining the place, where such person is charged with illegal possession at a place of business. The rule would be otherwise where the accused is charged with a specific illegal sale.
    Appeal from County Court, Nowata County; R. M. God-frey, Judge.
   Tom Hill, plaintiff in error, was, by information filed in the county court of Nowata county, on October 24, 1921, charged with having in his possession certain intoxicating liquor, with the unlawful intent to sell, barter, or give away the same, contrary to law. At the trial he was found guilty as charged.

In this appeal three reasons are urged as grounds for setting aside the verdict of the jury: First. Incompetency of certain testimony. Second. That the evidence.is insufficient to support the verdict. Third. Irregularity in the selection of jurors.

As touching the alleged incompetency of evidence, the state’s witness was asked these questions:

“Q. Do you know anything' about the reputation of Tom Hall’s place up there, as to whether it is a place where intoxicating liquor can be obtained? A. Yes, sir.
“Q. What is that reputation, is it good or bad? A. Bad.”

Under former holdings of this court this character of inquiry has been held to be proper in a case where one is charged with illegal possession at a place of public resort. In the case of Glover v. State, 25 Okla. Cr. 227, 219 Pac. 725, it was held that the general reputation of a place as being a place where intoxicating liquors are kept and sold may be shown as tending to establish the intent of the person maintaining the place, where such person is charged with illegal possession at a place of business or public resort. To the same effect is the case of Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557.

But one witness was introduced on the part of the state, and no evidence was' introduced on behalf of the accused. The witness for the state testified that he was a deputy sheriff in Nowata, and that he, in company, with two federal officers went to the place of business of the accused in South Coffeyville, located near the Kansas-Oklahoma line; that as they approached-this place of business the accused was standing in the door with his hands behind him; that witness commanded him to hold up his hands; that the accused threw a bottle containing whisky over his head; that the witness recovered the bottle and a portion of the contents and knows that it was whisky; that the accused admitted that the place of business belonged to him.

It was shown that this place of business was fitted up as a short order lunch room, with bar fixtures on one side and a lunch counter on the other. The officers found two other bottles containing traces of whisky, and on and behind the bar they found some whisky glasses, empty bottles, and a funnel; other bottles were found lying about the place which, upon examination, showed that they had contained whisky. These facts, together with other circumstance's shown, indicate that the charge was sufficiently supported by the testimony.

The claim that the jury was irregularly impaneled is not borne out by the record.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    D. GIBSON v. STATE.
    No. A-4334.
    Opinion Filed April 19, 1924.
    (224 Pac. 736.)
    (Syllabus.)
    1. Appeal and Error — Harmless Error — Error of Procedure. By express provisión of statute (section 2822, Comp. St. 1921), no error of procedure shall result in the reversal of a criminal judgment, unless it resulted in material prejudice to the substantial rights of the defendant.
    2. Criminal Law — Refusal of Additional Time to Plead after Amendment of Information Held not Prejudicial. Where an information is amended after plea and before trial in a misdemeanor case on order of the court, and where the defendant and his counsel had 13 months within which to become familiar with the nature of the amendment to the original information before defendant was arraigned thereon, the refusal of the trial court to grant an additional 24 hours in which to plead, without showing of good cause therefor by affidavit, was not error prejudicial to defendant.
    3. Same — Statute Allowing 24 Hours to Plead Cannot be Used Solely for Delay. The statute allowing a defendant 24 hours in which to plead may not be used solely for purposes of delay.
    4. Appeal and Error — Harmless Error — Permitting Evidence Before Proper Foundation Laid. The action of the trial court in overruling objections to questions propounded to witnesses before proper foundation had been laid for the admission of the evidence that would naturally flow from such questions becomes harmless, where, subsequent to the rulings of the court, proper foundations were laid before the qustions were in fact answered.
    Appeal from County Court, Woodward County; H. B. King, Judge.

      D. Gibson was convicted of the offense of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    L. F. Robertson and S. M. Smith, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

On the 6th day of December, 1920, the county attorney of Woodward county filed an information in the county court against D. Gibson and John Fallis, charging them with having unlawfully in their possession a large quantity of intoxicating liquor called choctaw beer. The defendants were arrested, and thereafter demurred to the information, and on the 27th day of December, 1920, the county attorney by leave of court filed an amended information which charged the defendants Gibson and Fallis with the unlawful possession of one-half gallon of whisky, and more than a gallon of fermented and malt liquor commonly called choc-taw beer, which contained more than one-half of 1 per cent, of alcohol measured by volume, and was then and there capable of being used as a beverage. The amended information charged the offense to have been commmitted on the same date as the original information; the amendment to the original information going only to the allegation of whisky in addition to the possession of choctaw beer.

On the 14th day of February, 1921, the cause was continued for the term on the application of the defendant for the reason that his counsel was a member of the Legislature.

The cause was not again set for trial until the 16th day of January, 1922, at which time the defendant Gibson appeared in person and by counsel, and it was discovered that he had never been arraigned on the amended information, and when called for arraignment the defendant asked 24 hours in which to plead to the amended information. The trial court overruled the motion of the defendant for a leave of 24 hours in which to plead, and the defendant thereupon filed a demurrer to the amended information, which was overruled and excepted to, and the defendant thereupon entered a plea of not guilty to the amended information, and announced ready for trial.

In overruling the motion for a leave of 24 hours in which to plead to the amended information, the trial court caused to be entered on the journal the following journal entry:

“Now on this 16th day of January, 1922, comes D. Gibson, defendant aforesaid, in person and by his attorneys S. M. Smith and L. F. Robertson, and the plaintiff, the state of Oklahoma, appearing by L. A. Foster, county attorney in and for Woodward county, state of Oklahoma, and the said defendant being duly arraigned on the amended information filed herein, asks that he be allowed 24 hours in which to plead to the said amended information; and it appearing to the court that the original information was filed herein on the 6th day of December, 1920, and that the said defendant, D. Gibson, was on said day duly arraigned on said information and then and there on said day filed herein his demurrer to the said information, which said demurrer was then and there overruled, to which said ruling said defendant made and saved his exceptions; whereupon said defendant on said 6th day of December, 1920, duly entered herein his plea of not guilty to the offense charged in said information; thereafter, by leave of court first had, the said county attorney filed herein an amended information on the 27th day of December, 1920; that thereafter on February 14, 1921, a duly called and convened jury term of said court being then duly in session, and the said cause being then and there regularly assigned for trial at said term, the said cause was continued on motion of the said defendant; and it further appearing to the court that the said cause has been regularly set down on the trial docket of this court for trial on this date, and the defendant having failed and declined to point out in his motion for 24 hours in which to plead to said amended information any reason for such delay, or that he has been taken by surprise by any allegation contained in said information, or to point out or show to the court that he is not prepared for trial on the charge contained in said amended information, or that the motion is not for the purpose of delay merely, and no sufficient cause appearing to the court for granting said motion, the said motion or request for 24 hours in which to plead is refused and denied; to which ruling of the court the defendant excepted and saved his exception. Thereupon the defendant entered his plea of not guilty. IT. B. King, County Judge.”

The chief contention of counsel for reversal of this judgment is based upon the alleged error of the trial court in refusing to allow the defendant 24 hours in which to plead on the 16th day of January, 1922, nearly 13 months after the amended information had been on file, and more than 11 months after the defendant appeared in court in defense of this charge and had obtained a continuance of the trial on the statutory ground that his counsel was a member of the Legislature.

Section 2512, Compiled Statutes 1921, relating to the amendment of informations, in part provides:

“An information * * * may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause shown by affidavit.”

While the statute provides that on arraignment the defendant, if he requires it, shall be allowed 24 hours in which to plead to an indictment or information, the purpose of such statute is to give the defendant’s counsel ample opportunity to become acquainted with the nature of the charge and to take such steps preliminary to the plea as counsel may believe Ms client entitled to. It was never intended that the statute allowing 24 hours in which to plead should be used as an agent solely for the purpose of delay. Furthermore, it is provided in the statute above quoted, permitting informations to be amended, that an amendment to an information shall not cause any delay of the trial, unless for good cause shown by affidavit. In this case it appears that the request for 24 hours in which to plead to the amended information was made approximately 13 months after the amended information had been filed. During the interim between the filing of the amended information and the request for 24 hours in which to plead, the cause had been set for trial and continued on the motion of the defendant. This action occurred more than 11 months before the case was finally called for trial. There is nothing in this record which would indicate that it was with material prejudice to the rights of the defendant to require him to plead to the amended information on the 16th day of January, 1922. The defendant had theretofore pleaded to the original information. He was familiar, without question of doubt, with the substance of the allegations of both the original and the amended information. Apparently under the circumstances the motion for time to plead was entered solely for the purpose of delay. Counsel in their brief do not undertake to indicate how the defendant was prejudiced by requiring him to plead on the 16th day of January, 1922, instead of on the 17th day thereof, and, if they are not able to point out any substantial right denied the defendant or any prejudice to him, certainly this court would not be expected to assume that the trial court erred in requiring the defendant to enter a plea to an amended information some 13 months after the same had been filed. The defendant wholly failed to show any good cause for such delay by affidavit or otherwise. This alleged error of procedure being such a one as did not materially prejudice the substantial rights of the defendant under the record in this case, this court, under the provisions of section 2822, Compiled Statutes 1921, is not authorized to reverse the judgment of conviction on this ground.

It is further contended that the trial court erred in overruling certain objections interposed by counsel for defendant to questions propounded by the county attorney to the state’s witness, Taber, and also in admitting in evidence a certain jar containing corn whisky without connecting the possession of the same with this defendant.

These assignments are without merit. Proper foundation was laid for the admission of this evidence. After the objections interposed had been overruled, the questions objected to were not answered until other questions were subsequently propounded and answered which destroyed the force and merit of the original objections and established a basis for the admission of answers to the questions here objected to. Had this not been done, there might be merit in this assignment, but the error was cured by the subsequent laying of the proper foundations for. the answers before the questions objected to were in fact answered.

The judgment is affirmed.

BESSEY and DOYLE, JJ., concur.


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    R. V. PRINCE et al. v. STATE.
    No. A-4418.
    Opinion Filed April 19, 1924.
    (224 Pac. 996.)
    (Syllabus.)
    1. Receiving Stolen Goods — Variance Held not Established. In a prosecution for unlawfully receiving stolen property, the information charged the property received to have been previously stolen from George Deck. George W. Deck, a witness for the state, testified that the property received had been stolen from him; that said property was wearing apparel, bought and paid for by him for the use and benefit of his wife. Held, no fatal variance between the allegation and the proof.
    2. Same — Not Necessary to Allege Facts Going to Constitute Larceny Against Original Takers. To charge the crime of receiving stolen property knowing it to be stolen, the information need not allege the facts going to constitute larceny against original takers from whom it has been received.
    3. Same — Information Held Sufficient. F'or form of information, held to sufficiently charge the crime of receiving stolen property, knowing the same to have been stolen, see body of opinion.
    4. Same — Penitentiary Sentence Modified. Where the evidence against one of the plaintiffs in error is slight, and the jury by the verdict returned recommended leniency as to such plaintiff in error, and the court assessed a penitentiary sentence against such plaintiff in 'error, who is the wife of the other plaintiff in error, the judgment as to such plaintiff in error, in the opinion of the court, should be modified.
    Appeal from District Court, Tulsa County; W. B. Williams, Judge.
    R. V. Prince and Dorothy Prince were convicted of the crime of knowingly receiving stolen property, and they appeal.
    Affirmed as to R. Y. Prince, and modified as to Dorothy Prince.
    Ed Crossland, for plaintiffs in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   MATSON, P. J.

Plaintiffs in error were jointly tried and convicted in the district court of Tulsa county on an information, the charging part of which is as follows:

“That R. V. Prince and Dorothy Prince, on or about the 23d day of September, A. D., 1921, in Tulsa county, state of Oklahoma, and within the jurisdiction of this court, did unlawfully, wilfully, knowingly, and feloniously, upon a consideration, obtain and receive from Will Carden, Claude Chamberlain, and Joe Morris certain personal property, to. wit, one green coat with skunk skin fur collar and cuffs of the value of $125; one black velvet afternoon gown of the value of $65; one pink evening gown of the value of $150, all of the aggregate value of $470, good and lawful money of the United States of America, said clothing and property had been'previously stolen from George Deck, and said defendants and each of them did, then and there at the time know that said clothing and .property had been stolen, and did obtain and receive same with the felonious intent then and there upon the part of said defendants and each of them to convert the same to their own use and benefit and to deprive the owner thereof permanently, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The facts on the part of the state disclosed that the property which plaintiffs in error were charged with having received was stolen from the residence of one George W. Deck, at No. 1517 South Newport street in Tulsa, Okla., in the latter part of July, 1921.

.William Carden testified that he, in company with Claude Chamberlain and Joe Morris, burglarized the Deck home and stole this property, and that some time in the month of September, 1921, they, by appointment, met the defendants on a public highway about five miles northeast of the city of Tulsa, at about 11 o’clock at night, and there sold to thé defendants some of the stolen property for . the sum'of $60.

Joe Morris, another witness'for the state, testified substantially to the same effect.

Claude Chamberlain, who was being held to answer to the larceny charge, refused to testify, and was excused.

■ Certain officers .of Tulsa county testified that the stolen property was found in the home of the defendant R. V. Prince.

The defendants claimed that they had in good faith purchased all of this property from a man who claimed to be a traveling silk salesman, and who was at that time going out of business, and was disposing of his samples; that the man appeared at the defendant’s drug store, on East Second street in the city of Tulsa, some time in the month of August, 1921, and there offered these dresses for sale, and that the defendants purchased them in good faith, believing that they were the property of such salesman, who stated his name was Kennedy; that the defendant’s wife was present at the time, and selected some of the dresses, and that the amount paid for them was $145.

Clyde Maddox, a clerk for them in the drug store, testified that he remembered of somebody coming into the store along about that time and showing some wearing apparel to the defendants, but testified that he was busy working in other parts of the store, and was unable to identify any of the property. William McDaniel, a patron of the store, also testified that he remembered seeing somebody in the store showing the defendants some wearing apparel, but could not identify any of the property.

The property found in the defendant’s home was identified by the witness George W. Deck as his property, and it consisted of one green coat with skunk skin fur collar, one black afternoon gown, one pink evening gown, one pink • charmeuse gown; that the property was of the aggregate value of $400.

The errors assigned are as follows:

“First. That the verdict is contrary to law.
“Second. That the verdict is contrary to the evidence.
“Third. Errors.of law arising during the course of the trial.
“Fourth, (a) That the court erred in matters of law in refusing to direct the jury to find a verdict for the defendants at the close of the state’s testimony, (b) Because the information herein alleged no ownership of the property said, to have been stolen, (c) Because there was a variance between the parties from whom said property is said to have been stolen as alleged in the information and the name of the party to whom the testimony showed the property belonged, (d) Because of a failure of sufficient proof upon which to sustain a conviction.
“Fifth. Because the court erred in overruling the demurrer of the defendant interposed to the evidence of the state at the time the state rested its ease, and for the reason that the court erred in not sustaining the demurrer to the evidence introduced by the state.”

Under the third assignment of error it is contended that the trial court’s refusal to direct the jury to return a verdict of not guilty as to each defendant at the conclusion of the testimony of the witness George W. Deck, by reason of a variance between the allegations in the information and the proof adduced as to the ownership of the property stolen, was reversible error.

The information charged that the property stolen, which each of these defendants were alleged to have knowingly received, was stolen from one George W. Deck, and it is contended in this connection that Deck testified that the stolen property belonged to his wife, and that therefore there was a fatal variance between the allegations of the information and the proof.

An examination of the testimony of the witness Deck does not support this assignment of error. Deck testified, in substance, that the property stolen was the wearing apparel of his wife, but that it was property that he had bought and paid for himself for the use and benefit of his wife. This proof is sufficient to support the allegation that the property had been previously stolen from George W. Deck.

In the case of McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297, this court held:

“To charge the crime of receiving stolen property, knowing it to be stolen, the information need not allege the facts going to constitute larceny against the original takers from whom-it has been received.” -

In the body of the opinion it is said:

“But two of the various errors assigned are relied upon in plaintiff’s brief: First. That- the information is insufficient. Second. That the evidence is insufficient to sustain the verdict and judgment.
“In support of the first assignment, it is contended by the defendant’s • counsel that the-information is fatally defective, for the reason that it does not allege the ownership of the property stolen. We are inclined to believe that the ownership of the property stolen is sufficiently stated. Substantially the language of the statute is used in charging the offense. To charge the crime of receiving stolen property, knowing it to be stolen, the information need not allege the facts going to constitute larceny against the original takers, from whom it has been received. The demurrer was properly overruled.”

See, also, White v. State, 23 Okla. Cr. 195, 214 Pac. 202, and authorities cited.

The allegation in the information as to the ownership is sufficient to negative any possibility of ownership in the defendants, and the proof on the part of the state is amply sufficient to support the - allegation that the property had previously been stolen from George W. Deck prior to the time that the defendants are alleged to have knowingly received the same. Under the proof in the record the property stolen was, in contemplation of law, the property of George W. Deck and not that of his wife, although the garments were used and worn by her.

There is no merit in the contention that the information is insufficient to state the crime of receiving stolen property. The information was evidently copied after the form approved by this court in the case of McGill v. State, supra. The allegations in the instant information are ■ identical with those in the information approved by this court in the McGill Case. . The information is sufficient.

The jury returned the following verdict:

“We, the jury,, drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendants guilty, as charged in the information herein, and ask that leniency be shown Dorothy Prince by the court. [Signed] J. J. Larkin, Foreman.”

On- the verdict returned the court fixed the punishment as to R. Y. Prince at two years’ imprisonment in the penitentiary, and as to Dorothy Prince at imprisonment for one year in the penitentiary. Dorothy Prince was the wife of R. V. Prince, and R. V.' Prince was present when’this property was bought and received.

The punishment fixed by statute for the crime of receiving stolen property is by “imprisonment in the penitentiary not exceeding five years, or in the county jail not exceeding six months, or by a fine not exceeding two hundred and fifty dollars, or by both such fine and imprisonment.” Section 2119, Compiled Statutes 1921.

Witnesses for the state all testified that R. Y. Prince made all the arrangements leading up to the buying and receiving of this stolen property. The defendant Dorothy Prince had nothing whatever to do with it, and it is only by inference from the circumstances under which the stolen property was bought and received that it can be said that she had guilty knowledge of the fact that it had previously been stolen. The jury was unable to agree upon the punishment to be assessed against either defendant. However, the jury did request the court to extend leniency to Dorothy Prince. We are of the opinion that a penitentiary sentence as to the defendant Dorothy Prince under such circumstances is too severe and not such as the jury believed should be assessed against her under the evidence in this case and the verdict returned.

It is the opinion of the court that as to Dorothy Prince the judgment should be modified to provide imprisonment in the county jail for a period of thirty days and to pay a fine of $100. The judgment, therefore, as to the defendant Dorothy Prince is modified to provide imprisonment in the county jail for a period of thirty days and to pay a fine of $100, and .as so modified the judgment is affirmed. As to the defendant R. V. Prince the judgment is affirmed..

BESSEY and DOYLE, JJ., concur.


text:
    J. M. DEUPREE v. STATE.
    No. A-4211.
    Opinion Filed April 19, 1924.
    (224 Pac. 993.)
    (Syllabus.)
    1. .Appeal and Error — Objections Unintelligible. A -defendant will not be permitted to take advantage, on appeal, .of veiled objections couched in such language that the court cannot determine from the objection the real ground upon which such objection was based.
    2. Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Possession. Evidence, though conflicting, held sufficient to support the verdict.

      .Appeal from County Court, Oklahoma County; W. R. Taylor, Judge. . .
    J. M. Deupree was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Affirmed.
    W. P. Kelley, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiff in error, here referred to as the defendant, in the trial was designated by different names. In the caption of the information the name appears “J. M. Deupree”; in the body of the information, “James Deupree”; in other parts of the record, “Jim Deupree.” The defendant, as one of his assignments of error, maintains that this discrepancy in names is fatal to a sustaining of the conviction.

Defendant now claims that in the court below he interposed an objection because of this discrepancy at the beginning of the testimony of the first witness for the state. The objection so interposed was as follows:

“Comes now the defendant and objects to the introduction of any testimony in this case for the reason that the information fails to charge an offense against him under the laws of the state of Oklahoma.”

The objection so made was insufficient to call the court’s attention to this discrepancy. The defendant will not be permitted to take advantage of veiled objections, couched in such language that the court- cannot determine from the objection the real ground upon which such objection is based.

There can be no controversy, from the entire record and testimony, that J. M. Deupree, James Deupree, and Jim Deupree were One and the same person; no showing was made that there were other Deuprees having illgal possession of intoxicating liquor at or near this time, or at anytime.

The testimony discloses that at the,time alleged1 in the information, February 18, 1921, certain peace officers, acting under authority of a search warrant, went to the residence of the defendant in- Capitol Hill and there found, under the back steps leading up to a porch, three gallons of corn whisky. The officers, or some of them, testified that a snow had fallen the night previous; that an automobile belonging to defendant stood in the driveway near the house; and that tracks in the snow indicated that some person had passed to and from the automobile to the front door of the house and that there were tracks on the back steps leading to the side of steps where the whisky was found.

The defendant testified in his own behalf that he had left the Kingkade Hotel at midnight the night previous; that at that time no snow had fallen; that when he awoke, late the next morning, there was about six inches of snow on the ground; that there were no tracks in the snow made by his automobile; and that the tracks leading from the front door of the house to the car were made by him and an officer when the search was in progress, in an effort to start the engine of the car. Defendant denied that he knew anything about the whisky found by the officers, and claimed that it had been placed there by some person or persons unknown to him; he claimed further that certain persons in that neighborhood were making an effort to get him to remove from the community and that some one of them might have placed the whisky there for the purpose of causing his arrest. Defendant stated that the whisky found was a poor quality of whisky, containing dregs and particles of drugs held in solution; that he drank whisky habitually, but not whisky of that character; that he did not at that time, or at any time, sell or keep for sale this or any other whisky..

On rebuttal the officers denied defendant’s explanation as to the tracks.

Upon this conflicting evidence the jury rendered a verdict of guilty, assessing the minimum punishment. The sufficiency of the evidence was challenged by defendant in his motion for a new trial, which was by the court overruled.

Applying the rule often announced, that verdict of a jury will not be disturbed where there is direct evidence of a probative character tending to sustain the verdict, and that the weight of the evidence and the credibility of the witnesses are questions for the jury, the judgment of the trial court must' be affirmed; and it is so ordered.

MATSON, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    JAMES E. BEACH v. STATE.
    No. A-4532.
    Opinion Filed April 20, 1924.
    (225 Pac. 187.)
    (Syllabus.)
    1. Appeal and Error — Affirmance—Absence of Briefs and Argument. In a homicide case where the defendant appeals from a judgment of conviction and no briefs are filed or argument presented, this court will make an examination of the case-made, and, if no error is apparent, will affirm the judgment.
    2. Homicide — Evidence Sustaining Conviction of Manslaughter in Second Degree. In a prosecution for murder, evidence held to sustain a conviction of manslaughter in the second degree..
    Appeal from District Court, Kiowa County; Thos. A. Edward, Judge.
    . James E. Beach, was convicted of manslaughter in. the second degree, and he appeals.
    Affirmed.

      Keys & Rakestraw, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was convicted of manslaughter in the second degree and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of three years, for having shot and killed William E. Sexton. He has appealed from the judgment rendered upon such conviction to this court, but there has been no appearance in his behalf on his appeal.

The assignments of error relate to rulings of the court in the admission and exclusion of evidence, instructions given to the jury, and the sufficiency of the evidence to sustain the verdict.

The evidence shows that James E. Beach, defendant, and William E. Sexton, deceased, occupied farms in the same neighborhood in Kiowa county; that deceased, his wife, and two sons, with other neighbors, attened a dance at defendant’s home on the evening of April 21, 1922; that about midnight some refreshments were served. What took place from that-time is related by the wife of the deceased substantially as follows:

Mr. Beach was sitting at the table; my husband was standing by the table and remarked to Mr. Beach, “Don’t eat all of those doughnuts, I want one of them.” Mr. Beach said, “I don’t know whether you will get a damn one of them or not,” and he held his gun up in his hand; my husband took his gun out, and I took hold of him and said, “Come on; let’s go home,” and I pushed him off into the other room and his gun fired. Within two o* three minutes Mr. Beach followed us and fired three shots; my husband fell to the floor. Mr. Beach kicked my husband, and he said, “Don’t pour it on me Jim because you got me down.” Mr. Beach said, “Raise up, Ed, and take it like a man; you are not hurt; I have seen lots of people worse hurt than you are get well.” We undressed him and put him on the bed and phoned for a doctor; after the doctor arrived we got Mr. Beach’s team and wagon and Mr. Beach, his wife, and his niece helped us to put him on the wagon and they went home with us and helped us to take him out of the wagon and carry him into the house. My husband and Mr. Beach were both intoxicated.

Dr. J. A. Land testified:

“I am a practicing physician at Lone Wolf; James E. Beach, defendant, called me over the phone to come to his house; I went there and found Sexton lying on the bed; when I examined him I found that he had been shot in the left side; the wound penetrated the spleen; he was also shot in the middle of the thigh and the bone broken about four inches below where the bullet entered; I dressed the wounds and put a splint on his leg and helped remove him on a cot to a wagon. I was present the next day when he made a statement at the request of the county attorney; I had told him that I thought he was going to die; I wanted him taken to the hospital; he said there was not any use in going to the hospital, that he was going to die anyhow.”

A signed statement of deceased, witnessed by the county attorney and others was introduced in evidence, in part as follows:

“Jim Beach phoned me about 6 o’clock to come over that night and we would have some whisky and dancing; we were the best of friends for six or seven years; I went down to the dance and my wife and two sons went with me; we had a good time until about 1:30 a. m., and then I joked him about some doughnuts; I said, ‘ Don’t eat all those doughnuts; ’ then he jumped up and pulled his gun, a 38 automatic; I walked into the front room near the dresser and Jim Beach followed me and shot at least three times; I am not sure whether I shot or not, but if I did I must have shot after I was down. It seems my leg gave away and I fell to the floor. I then told him to finish up the deal; he had killed me. He said, ‘Oh, God damn you you are not dead; I saw them in worse shape than that get well,’ or that in substance.”

The officers testified that they found 11 one-half gallon jars, containing whisky, in the cellar of the defendant the next day after the shooting.

On the part of the defense, B. C. Walker testified:

“I was sitting by the side of Mr. Beach at the table; I heard a shot fire in the west room;'Mr. Beach wént to the middle door and as I went out I heard four, five, or six shots.”

Annabelle Wilson testified:

“James E. Beach is my uncle; uncle James was sitting at the table drinking buttermilk; Mr. Sexton told him to drink sweet milk and he said he would not; he would have what he wanted in his own home. Mr. Sexton got mad, and I helped Mrs. Sexton take Mr. Sexton into the other room. I held his left arm and Mrs. Sexton the right. I saw the flash of the gun and grabbed his hand and pushed it down as the gun fired then somebody pushed me out the south door; just as quick as Mr. Sexton fired another gun was fired four times.”

The testimony of the defendant in his own behalf as to the circumstances attending the shooting is as follows:

“Well, we were talking about the milk; he wanted me to drink sweet milk and I wanted buttermilk. I never saw him draw any gun, if he had a gun I did not know it and I did not draw any gun at that time; I was sitting at the north end of the table; I heard the shot .and saw the flash of the pistol; my gun was in the top drawer of the cabinet right behind me; I pulled this drawer out, grabbed my gun and stepped to the door, just about the time I got to the door he was standing with his gun drawn on me and he fired again and I shot four times; I fired them all before he fell; I was trying to protect myself, but I .did not aim to kill him; I went to the dresser in that room and lit the lamp; as I walked back by him he was raising his gun up and I kicked his hand; he dropped the gun then picked it up, and Mrs. Sexton took it away from him; while he was down he said, ‘You got me down, Jim, but if I ever get up my time will come;’ and he said, ‘You have shot me, Jim; I wish you would finish me up,’ or something like that. I says, ‘Ed, maybe you ain’t hurt as bad as you think you are; maybe you will get all right.’ I went to the phone and called Dr. Land, and the doctor came and dressed his wounds; I helped to lay him in the wagon and take him home; I was drinking that night, but I could not say that I was really drunk. Mr. Sexton brought the whisky there in a half gallon jar, almost full.”

The testimony in this case is very voluminous, covering several hundred pages, but the foregoing statement is sufficient for the purpose of this opinion.

"While the defendant is not represented by counsel in this court, we have with much care examined this voluminous record and find no error justifying a reversal.

It appears that some exceptions were taken to the rulings of the court in the admission and conclusion of evidence, but we are of the opinion that none of them were well taken. Upon a consideration of the instructions given we are of the opinion that the law of this case was fairly and fully presented.

In conclusion we simply add that, while there is a direct conflict in the testimony for the state and that for the defense, it was for the jury to judge of the weight of the evidence and the credibility of the witnesses.

Upon the whole case it appears to us that the defendant had a fair trial, and the evidence is abundantly sufficient to warrant the verdict of the jury.

The judgment of the lower court is accordingly affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    E. A. KILGORE v. STATE.
    No. A-4768.
    Opinion Filed April 23, 1924.
    (225 Pac. 186.)
    (Syllabus.)
    Appeal and Error — Appeal Dismissed Where Appellant Pardoned. When the pardoning power extends clemency and the same is accepted, pending the determination of an appeal, the appeal will be dismissed.
    Appeal from District Court, McCurtain County; B. C. Logsdon, Special Judge.
    E. A. Kilgore was convicted of rape, and he appeals.
    Appeal dismissed.
    IT. P. Hosey and I. C. Sprague, for plaintiff in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, E. A. Kilgore, was convicted of rape in the second degree, and in pursuance of the verdict of the jury was on the 25th day of January, 1923, sentenced to imprisonment in the penitentiary for a term of one year.

While his appeal was pending and awaiting decision before this court, the Attorney General filed a motion to dismiss the appeal for the reason “that J. C. Walton, then Governor of the state of Oklahoma,” on the 15th day of October, 1923, granted, issued, and delivered to the said E. A. Kilgore, a full and complete pardon from said conviction and sentence,” which instrument duly authenticated was filed in the office of the secretary of state October 23, 1923.

The uniform holding of this court is that when an appeal from a judgment of conviction is pending in this court, and plaintiff in error is granted a pardon and has accepted the same, and the fact that a pardon has been granted and delivered is brought to the attention of this court, the appeal will be dismissed.

It follows that the motion to dismiss the appeal is well founded. It is therefore considered and adjudged that the appeal herein be dismissed and the cause remanded to the trial court.

MATSON, P. J., and BESSEY, J., concur.


author: PER CURIAM.

text:
    Ex parte FLOYD MILLER.
    No. A-5130.
    Opinion Filed April 23, 1924.
    (225 Pac. 184.)
    Habeas corpus by Floyd Miller for release from custody, to which the Attorney General filed a demurrer.
    Demurrer sustained, and cause dismissed.
    E. C! Patton, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

On behalf of Floyd Miller, a duly verified petition for writ of habeas corpus was filed in this court on April 16, 1924, alleging that petitioner is illegally restrained of Ms liberty by tbe sheriff of Oklahoma county, on three separate commitments issued upon judgments rendered in the county court of said county.

The Attorney General filed a demurrer thereto on the ground that upon the facts stated petitioner is not entitled to have the writ of habeas corpus issued, in that it appears therefrom that said judgments of conviction have not been fully satisfied.

The demurrer is sustained and the cause dismissed.