author: BBETT, J.

text:
    LONZO DIXON v. STATE.
    No. A-10953.
    May 4, 1949.
    (206 P. 2d 231.)

      W. L. (Bill) Steger, of Durant, and Boy G. Baker, of Sherman, Tex., for plaintiff- in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BBETT, J.

This is an appeal by Lonzo Dixon, a negro, the defendant below, who was charged, tried and convicted by a jury that fixed his punishment at five years in the State Penitentiary and upon which verdict the trial court pronounced judgment and sentence accordingly..

The victim of the assault, J. C. Farrington, was a commissioned deputy sheriff, who, together with two other officers, saw the defendant and another person drinking whisky, in a public place, and after putting the defendant under arrest and while seeking to search him, the defendant shot the said Farrington with a pistol with the intent to kill the said officer. The defendant does not question the sufficiency of the evidence to sustain the conviction.

In his brief he presents three propositions-: First, that the court erred in overruling the defendant’s challenge to the array and motion to quash the panel of jurors. Second, he contends that the court erred in overruling his motion to suppress the evidence of his signed confession, and, third, he urges the court erred in denying his motion for a mistrial because of certain testimony produced by Cliff Keirsey, sheriff of Bryan county, a witness for the state. The first contention is predicated upon the proposition that defendant was a negro man from the adjoining State of Texas, and was tried in the district court of Bryan county, Okla., in the city of Durant. He contends that the record discloses that no ne-groes have been called for jury service in Bryan county and by reason thereof the defendant was denied his constitutional rights. To support this contention he relies upon Holland v. State, 61 Okla. Cr. 215, 67 P. 2d 58; Carrick v. State, 41 Okla. Cr. 336, 274 P. 896; Smith v. State, 4 Okla. Cr. 328, 111 P. 960, 140 Am. St. Rep. 688; Martin v. Texas, 200 U. S. 316, 26 S. Ct. 338, 50 L. Ed. 497, 498; Hollins v. State, 295 U. S. 394, 55 S. Ct. 784, 79 L. Ed. 1500, on appeal from this court, Hollins v. State, 56 Okla. Cr. 275, 38 P. 2d 36; Norris v. Alabama, 294 U. S. 587, 55 S. Ct. 579, 79 L. Ed. 1074. In Holland v. State, supra, 61 Okla. Cr. 215, 67 P. 2d 58, this court said:

“It is well settled that a denial to citizens of the African race solely on the ground of their race and color of the right or privilege accorded to white citizens of participating as jurors in the administration of justice is a discrimination contrary to the Fourteenth Amendment of the Constitution of the United States, which ordains that:
“ ‘Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ Carrick v. State, 41 Okla. Cr. 336, 274 P. 896; Smith v. State, 4 Okla. Cr. 328, 111 P. 960, 140 Am. St. Rep. 688.
“The Supreme Court of the United States has repeatedly held that discrimination against persons qualified to serve as jurors, solely because of their race or color, is a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment, and that such a discrimination entitles a person of the race against which it is practiced to interpose a challenge to the jury panel when he is a party to an action to be tried before a jury drawn from the panel. See Martin v. Texas, 200 U. S. 316, 319, 26 S. Ct. 338, 50 L. Ed. 497, 498.”

In Smith v. State, supra, this court said:

“(a) When a negro is charged with violating the criminal laws of a state, and when -under oath he challenges the panel of the jury upon the ground that the commissioners who selected such jury and the sheriff who summoned them had excluded from the jury all persons of African descent solely on account of their race and «color, and offers evidence to sustain this ground of challenge, the trial court should hear the evidence, and if it is of the opinion that as a matter of fact negroes were intentionally excluded from the panel, solely upon the ground of their race and color, said motion should be sustained. This has been repeatedly decided by the Supreme Court of the United States, and all state tribunals are bound thereby.
“(b) The mere fact that the jury was composed solely of white men will not be ground for challenge in such case. There is no law requiring that negroes shall be selected to sit upon juries. The only law upon this subject is they must not be excluded therefrom solely on account of their race or color.
“(c) Officers charged with the duty of selecting and summoning jurors can exercise their own discretion in selecting those persons who, in their judgment, are competent and qualified to serve as such jurors, provided, that they do not exclude competent persons who are ne-groes, solely on account of their race and color.”

This court has closely adhered to the Supreme Court’s pronouncements on this subject, as an examination the cases relied on by the defendant discloses. In the body of the opinion in Smith v. State, supra, 4 Okla. Cr. at page 332, 111 P. at page 961, 140 Am. St. Rep. 688, the court said:

“The ground upon which the decisions of the Supreme Court of the United States rest is not that negroes were not selected to sit upon juries, but that they were excluded therefrom solely on account of their race or color. In other words, there is no law to compel the jury commissioners or other officers of the court to select or summon negroes as jurors. They can select any persons whom they regard as competent to serve as jurors without regard to their race or color, but the law prohibits them from excluding negroes solely on account of their race or color. * p^ere is no law requiring an officer to place ne-groes on the panel simply because they were negroes. It is his duty to select the best jurors without regard to race or color. When this is done, the law is satisfied.”

In every such case the burden is upon the movant to sustain his motion to quash the jury panel, as was said in Hollins v. State, 56 Okla. Cr. 275, 38 P. 2d 36, 37:

“The burden is on defendant to show by competent evidence that negroes were actually excluded from the jury panel solely because they were negroes, and where the evidence fails to sustain this allegation it is not error for the trial court to overrule the challenge to the panel for such cause.”

See also Houston v. State, 63 Okla. Cr. 49, 72 P. 2d 526. Each such case must, therefore, be determined by its own facts.

In the case at bar the evidence in relation to this question reveals the following situation: The population of Bryan county is approximately 40,000 of which between 1,000 and 1,200 are negroes and of whose numbers some 20 or 30 are listed on the personal tax rolls. The testimony of Judge Paul, who was judge of the district court of Bryan county for some ten years prior to the present incumbent, reveals that he instructed his jury commissioners not to discriminate against people of color because of their color or race, and further instructed that some of them be included in the jury panel. His testimony further discloses that during the time he was judge two or three negroes were always included on the jury panel.

The testimony of Ollie James, the jury commissioner who selected the array, from which the panel was drawn herein, in part, was as follows, to wit:

“Q. You are a resident of Durant? A. Yes, sir. Q. Have you been for many years? A. Yes, sir. Q. If you are a jury commissioner here, when were you appointed? A. Yes, sir, I am on the jury commission. Q. Did you, with the other two commissioners, draw a jury on the ordér of the judge? A. Yes, sir. Q. In drawing that, did you draw any that you were informed were negroes, colored? A. We did. Q. How did you draw these? A. From the tax roll', personal tax roll. Q. Did you exclude any one on account of their race, color or nationality? A. We did not. * * * Q. How many negro jurors were placed on the panel you recently drew? A. I don’t know. I know there were three or four, or may be five. I don’t remember. Q. Did you aid in getting any negro on the list? A. I did. I assisted the other parties on the tax rolls, because I didn’t know the personal taxpayers in their districts; and I didn’t know of any one in district one that I could have selected, because there are not many in district one. Q. How many names were on the list? A. 200. Q. Why weren’t more negroes placed on the list? A. Well, in selecting these names, we just went down the list, and took them off the tax rolls; those that paid personal taxes, and after we made up the list, we didn’t go any further, after we got the amount of names were supposed to call. Q. How did you jury commissioners arrive at the number of three or four to be put on the list? A. We were told in our instructions that there should be negroes put on the list. * * * Q. Was it suggested how many to put on? A. No. That they were not to be discriminated against, and were to be chosen as jurors. Q. Do you know the' names of the negro jurors. A. No, I don’t. I could not give you the. names. Q. Who selected them? A. The two commissioners in districts two and three. They knew them personally, and knew they were qualified.”

Moreover, the. record reveals that the present judge, Sam Sullivan, instructed the jury commissioners not to exclude one negro from the rolls when they made up the jury lists and that on every panel there were from three to four to five negroes whose names were placed in the box from which the jury panel was drawn. The record further reveals that the array from which the jury was impaneled was taken from the tax rolls as provided by Title 38, O.S.A. 1941 § 1, without discrimination, design or plan to eliminate people of color from the jury panel; that the names were placed in a box and that the sheriff and the court clerk without regard to the identity of the names in the box drew the jury panel therefrom. In addition to the foregoing, the record is clear that the sheriff and court clerk drew the names of the jurors for the panel from the box containing the 200 names selected by the jury commissioners, without regard to identity, race or color. Finally, the record conclusively reveals that the court, the jury commissioners, the court clerk and the sheriff not only did not exclude persons of the African or negro race from the jury panel herein in question because of their race or color • but to the contrary they meticulously observed the law in an effort to avoid such objection to the panel by inclusion of three to five negroes on the panel of 200 names herein involved. On this, and other corroborative, evidence, the court overruled the motion to quash the array and the panel. In this connection we cannot but observe that when measured by the relative number of whites and colored in the county, the representation of colored to whites on the array and the panel Avas' fair. But in any event, as here-inbefore indicated, the burden of proving discrimination and prejudice, even in the total absence of colored persons on the jury is upon the movant. Peters v. State, 22 Okla. Cr. 245, 211 P. 427. To sustain the burden the defendant must show that negroes were excluded because of race or color. The evidence herein is wholly insufficient to support such a contention, in fact, it clearly establishes due process of law, not a denial thereof. The situation confronting us is not such as was presented in Holland v. State, supra, and urged as a parallel situation to the case at bar, but Holland v. State presented a situation wherein it appears that the jury commissioners over a long period of years consciously wrought discrimination through omission to put negroes on the panel. In that case it is disclosed that they deliberately selected only white jurors and ignored negroes who were qualified for jury service. Such conduct might be termed intentional ignorance but such is not the situation in the case at bar. The situation herein presented is one where a studied effort was made to comply with the requirements of the law. Under these conditions the trial court correctly refused to sustain the motion to quash the array and panel.

The second contention of the defendant is that the court erred in not sustaining his motion to suppress defendant’s confession when offered in evidence. This contention is predicated upon the proposition that, defendant testified that the confession in question was taken from him by Sheriff Keirsey, the sheriff of Bryan county, Okla., and Officer Robnett of Texas, while he was in custody of the Texas authorities in Denison, Tex. He testified he gave the confession solely because of fear,, fear engendered by a beating administered by a third Texas officer whose identity was unknown to him. He testified that the beating was given him about five minutes before the officers aboved named took his statement from him. He testified that the officers taking the statement did not beat him or threaten or seek to intimidate him in any way. He said, however, when he made the statement he was then in fear of his life, and that he signed the statement because he thought he had to, because he had been informed before he was confronted by Sheriff Keirsey and Officer Robnett that he would be beaten again if he did not sign it. At the time he gave his testimony, he said his face was still sore from the beating and said “I can’t hardly hear from that day until today.” He said he was hit all over the head. There was no attempt to refute the evidence of the defendant thus given other than the testimony of Sheriff Keirsey and Officer Robnett to the effect that when they took his statement “he appeared to be calm”. The state offered no evidence that he bore no marks of having sustained a beating. In fact, the record discloses a studied attempt only to show that the defendant was not abused by Sheriff Keirsey and Officer Robnett who took the statement after the alleged beating was administered by a third unidentified officer. Other than hereinbefore indicated, the record does not contain a single line of proof contrary to the defendant’s claim. It stands uncontra-dicted. We can only conclude that if he had not been beaten, as he testified, the state certainly would have directed some interrogation to the officers who took the statement of the defendant relative to his appearance and condition, but the record is silent thereto, other than that he was calm. The fact that he was calm when he made the statement was no indication of the fact as to whether he had or had not sustained a beating. He could have have been calm and still his head may have borne the marks of a severe beating. The fact that he was calm constitutes little or no refutation of his testimony. The state’s silence relative to the proposition that an undisclosed officer beat Mm while he was in jail at Denison, Tex., -cannot be charged to the ignorance of the defendant’s claim, for the state was clearly apprised of his charge in his testimony in chief. The state’s silence and studied efforts to avoid any reference thereto gives credence to his story. The court will take judicial notice of the fact that Denison, Tex., is only about a 30-minutes drive from Durant, Okla., where this case was tried. It would have been so unsurmountable obstacle or undue hardship or unnecessary delay in the proceeding for the state to have called the officers who were present in the jail in Denison, Tex., at the time the alleged beating was supposed to have been administered to refute the defendant’s evidence in relation thereto, but this was not done. Though outside the jurisdiction of the trial court and not subject to its orders, under the conditions, we are sure some of them would have responded to the call, and would have testified as to the treatment accorded the defendant while in their custody. In any event, his positive testimony in relation thereto stands, for all practical purposes, unchallenged. Under these conditions, we are bound to hold the confession was involuntarily obtained and inadmissible in evidence as a matter of law under the authority of Pressley v. State, 71 Okla. Cr. 436, 112 P. 2d 809; Lyons v. State, 77 Okla. Cr. 197, 138 P. 2d 142, 140 P. 2d 248, wherein this court said [71 Okla. Cr. 436, 112 P. 2d 810] :

“Where a defendant testifies in a hearing on the competency of a confession that he signed the confession because of threats of harm and blows which were struck him by an officer having him in custody, and the officer alleged to have committed the abuse is present in court and does not testify, and there is no testimony to refute the statements, of the defendant, the alleged confession is inadmissible as a matter of law.”

But under the record herein involved the admission of the said confession constitutes only harmless or technical error. It is harmless for the reason that the other evidence offered by the state clearly and sufficiently establishes the charge as laid against the defendant, without the aid of the confession. This evidence discloses that he was seen drinking whisky in a public place, that the officers placed him under arrest and he resisted arrest to the extent that he pulled his pistol and shot Officer Farrington. Under these conditions his assault with a dangerous weapon with intent to kill cannot be denied. In fact, the defendant himself does not question the sufficiency of the evidence of his guilt. Moreover the evidence offered by the defendant in chief establishes the fact of his guilt. He admitted that he was seen drinking in a public place and that when he was accosted by the officers, in the altercation that followed, he pulled his pistol and shot Officer Farrington. As was said in Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438, 443:

“It is not error alone that reverses judgments of conviction of- crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error.”

This rule is predicated upon the provisions of Title 22 O.S.A. 1941 § 1068, wherein the Legislature

“made it clear that no judgment of conviction shall be set aside or new trial granted ‘on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.’ ”

In Pressley v. State, supra, relied on by the defendant, Pressley stoutly denied the truth of . the confession given by him, while herein Dixon never at any time denied its truthfulness but in his defense in chief substantially corroborated the state’s evidence made without aid of the confession. Under these conditions the admission of the confession is wholly lacking in injury to this defendant. Its admission while clearly erroneous certainly was not prejudicial. Here there has been no miscarriage of justice. Moreover the confession in this case was merely cumulative of facts testified to by both the state’s witnesses and the defendant. In Wood v. State, 72 Okla. Cr. 347, 116 P. 2d 734, 735, it was held:

“Evidence which is merely cumulative will not be held reversible error, even though the evidence be inadmissible.”

See, also, Carr v. State, 22 Okla. Cr. 371, 211 P. 423. To sustain this contention would be to defeat the ends of justice, which in absence of prejudice the law does not require.

The third contention of the defendant is that the court erred in denying defendant’s motion for a mistrial, based upon the testimony of Sheriff Cliff Keirsey who testified for the state as follows:

“Q. What did you do with the defendant, Lonzo Dixon? A. What did I do with him? Q. Yes. A. I first brought him to Ardmore, Oklahoma, and put him in jail at Ardmore, and later— Q. Why? A. I was afraid to’ bring him here at that time — ”

The court overruled defendant’s motion to declare a mistrial, to which the defendant excepted. Whereupon the court admonished the jury:

“Yon, Gentlemen of the Jury, disregard that last .question and answer, entirely; disregard them in toto; don’t consider them.”

Under these conditions the court properly overruled defendant’s motion to declare a mistrial. In Morgan v. Territory, 16 Okla. 530, 533, 85 P. 718, 719, this court held that the general rule is “error in the introduction of incompetent testimony, which is afterwards excluded by the trial court, is not such prejudicial error as will entitled the defendant to a new trial.” Barnes v. State, 32 Okla. Cr. 383, 240 P. 758.

For all of the reasons hereinbefore set forth the judgment and sentence herein imposed is affirmed.

JONES, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: JONES, P. J. PER CURIAM.

license: Public Domain

text:
    W. A. (BILL) EVANS v. STATE.
    No. A-10966.
    May 11, 1949.
    (206 P. 2d 247; 214 P. 2d 970.)

      Meacham, Meacham, Meacham & Meacham, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, W. A. (Bill) Evans, was charged in the district court of Custer county with the crime of manslaughter in the first degree, was tried, convicted of manslaughter in the second degree, and pursuant to the verdict of the jury was sentenced to serve three years’ imprisonment in the State Penitentiary.

Three assignments of error are presented in the brief of defendant for reversal of the judgment of conviction: First, the trial court erred in admitting irrelevant and highly prejudicial testimony over objections of defendant ; second, the evidence is insufficient to support the verdict and judgment and sentence; third, the court erred in instructing the jury.

The defendant was chief of police of the city of Weath-erford and had been such chief of police for about four years when he shot and killed the deceased, Alfred Mc-Allister, on September 1, 1945.

The deceased was a young man; his wife lived at Luther in Oklahoma county, but the deceased was an enlisted man in the Army Air Corps, stationed at Frederick, Okla.

On the day of the fatal difficulty, the deceased came to Clinton where he met his brother-in-law, Bill Loman. Together with Loman and one Jack Duncum, the deceased went to a rodeo at Elk City. During the day, the deceased and his companions consumed some whisky. The evidence is disputed as to whether or not at the time of the homicide the deceased was under the influence of intoxicating liquor. After the rodeo had ended, the deceased, together with Loman and Duncum, started to Oklahoma City with the deceased driving the automobile. Near the town of Bridgeport, the automobile ran off the road, wrecking the car and causing serious injuries to Loman and Duncum, and minor injuries to the deceased. Loman’s back and shoulder were broken and he suffered internal injuries. Duncum was knocked unconscious and did not regain Ms consciousness for several hours. The deceased sustained a cut on the wrist and minor bruises to his head. After the wreck had occurred, L. P. Brown from Oklahoma City came along in a truck and brought the three men to Weatherford. The hospital at Weatherford refused to admit them for treatment, so Mr. Brown drove his truck into the main street of the city of Weather-ford and parked it near the city hall.

The deceased went into several stores and talked to many different people asking for someone to take the injured, to an Oklahoma City hospital and repeatedly stated that he would give $95 to anyone who would haul them to Oklahoma City. During the time that he was asking assistance to be taken to Oklahoma City, he would go back and forth to the truck where Loman and Duncum were lying.

On the last of these occasions, the deceased had returned and was standing behind the truck. The defendant as chief of police of Weatherford had been notified that there was a disturbance going on near the truck where a crowd had gathered listening to the complaints of the deceased. The deceased appeared to be berating the crowd and cursing some of them for his failure to secure any assistance in the city of Weatherford.

The evidence is contradictory as to what was said by the defendant to the deceased when the defendant approached the truck where the deceased was standing. The witnesses for the state testified that the defendant said in substance to the deceased “come go with me,” and grabbed deceased’s shoulder; that deceased jerked loose from defendant and said “I am going to stay here and get some help for my friends who are hurt.” When deceased refused to go with defendant, the defendant called several men who were in the crowd to help him take deceased to jail, bnt when they attempted to move deceased, he hung on to the truck and refused to go. It is agreed that at that point defendant took a gun from the holster of Sam Taylor, constable, and struck the deceased with it on the head two or three times. After the deceased was hit with the pistol, he wrestled with the defendant and it was during this difficulty that defendant fired the pistol which he had taken from the constable into the right side of the neck of deceased. The bullet lodged near the left hip. The deceased died within a few minutes.

It was the contention of the state that the defendant evidently became enraged at the deceased or temporarily upset over the resistance being offered by the deceased and fired the shot which took the life of deceased. The theory of the defense was that the defendant was attempting to arrest deceased for being drunk or disturbing the peace, that he had no intention of shooting the deceased, but that the deceased grabbed the barrel of the pistol which defendant held in his hand and in the scuffle the pistol was accidentally discharged. Some of the state’s witnesses testified that when the deceased sought to grapple with the defendant, the defendant stepped back five or six feet and fired the pistol into his neck. The pistol which Avas used was a single action revolver which required that the hammer be pulled back to firing position before it could be discharged by a pull on the trigger. There was no testimony by the physicians who examined the deceased or by the undertaker who prepared the body for burial as to any powder burns on the body of deceased and the absence of these powder burns tends to substantiate the theory of the state that the defendant stepped back a few feet and fired the shot into the body of deceased after tbe deceased bad resisted tbe efforts of defendant to take bim to jail.

Tbe first assignment of error is directed at tbe testimony of bis brother-in-law, Bill Loman, tbe wife of tbe deceased, and tbe father of tbe deceased, concerning) whether tbe deceased was married; that deceased was enlisted in tbe Army; that be was on bis way to Oklahoma City to attend a family reunion; that tbe father was a farmer; that deceased bad been in an airplane wreck while in tbe Army and that be was very nervous subsequent to that wreck.

It must be borne in- mind that counsel for defendant made bis opening statement at tbe beginning of tbe case and did not reserve tbe making of bis statement until after tbe state bad closed its case in chief. For that reason, tbe issues were before tbe jury including tbe theory of tbe defense and any evidence which would go to any of tbe substantial matters in dispute or which bad a legitimate influence or bearing on the case was properly admissible. One of these issues was whether tbe defendant was drunk. Tbe trial court sustained many objections interposed by counsel for defendant to certain of tbe questions asked tbe relatives of tbe defendant. Among these questions, to which objections were sustained, were questions as to whether deceased bad any children, whether be and bis wife attended high school together, tbe length of time deceased served in tbe army, whether deceased was able to sleep at night, and whether be was a member of any chucrh. At one point in the interrogation by counsel for tbe state tbe court stated, “I would not go into that too far.”

We agree with counsel for defendant that some of these matters were immaterial, but we cannot agree that they tended to prejudice the jury against the defendant.

Counsel for defendant contend that this testimony of the relatives of the deceased constituted evidence showing the character or reputation of deceased as being a quiet, peaceable and law-abiding citizen, and that such evidence was not admissible on the part of the state in the absence of an attack on the character of deceased by the defendant.

It seems to be settled law in this state that evidence showing character and reputation of the deceased as a quiet and peaceable man cannot be given by the state in the first instance as a part of the state’s case in chief where such character is not attacked. Miller v. State, 63 Okla. Cr. 64, 72 P. 2d 520; Coulson v. State, 48 Okla. Cr. 206, 291 P. 152. However, thé evidence complained of was not in our opinion offered to prove the good reputation of the deceased as a peaceable and law-abiding citizen and was not construed by the trial court as such.

The next two assignments of error will be considered together. The law in Oklahoma as to the right of an officer to shoot a person resisting arrest for a misdemeanor is stated in Graham et al. v. State, 31 Okla. Cr. 125, 237 P. 462, as follows:

“A peace officer has no lawful right to shoot, or shoot at, a person who is attempting to escape arrest for a misdemeanor, unless the offender resists to such an extent as to place the officer in danger of loss of life or great bodily harm.”

In Sharp v. United States, 6 Okla. Cr. 350, 118 P. 675, it is held:

“A peace officer in. attempting, to arrest a person for an offense less than a felony cannot shoot or kill, unless the offender resists to such an extent as to place the officer in danger of loss of life or great bodily harm.”

See, also, Whitford v. State, 35 Okla. Cr. 22, 247 P. 424.

In Vaughn v. State, 54 Okla. Cr. 59, 14 P. 2d 239, this court held:

“Where a peace officer attempts to arrest a person for a petit offense and such person flees, such officer has no lawful right to shoot and kill such person, and, if he does so, he will be guilty of murder or manslaughter as the case may be.”

Warren on Homicide, volume I, section 145, sets forth the rule that an officer making an arrest for misdemeanor cannot take life unless the offender resists to such an extent as to place the officer in danger of loss of life or great bodily harm, which is the rule in Oklahoma, as shown by the above cases.

Under the evidence of the state as shown in the brief synopsis heretofore quoted, the killing of the deceased was unjustified. The testimony of defendant was contradictory to the evidence of the state, and his statement that the shooting was accidental raised a question for determination by the jury. The jury was justified in concluding from the evidence that the defendant fired the shot which took the life of deceased and that such force was unnecessary in view of the fact that the deceased was unarmed and was not attempting serious bodily harm to the defendant.

The most serious question with which we are concerned concerns the matter of the instructions to the jury. We have considered each of these instructions.

Among tbe instructions the court advised the jury as follows:

“4B. You are instructed that a peace officer may, without a warrant, arrest a person for misdemeanor, committed or attempted in his presence.
“A peace officer has no authority to arrest a person without a warrant, for misdemeanor, unless committed or attempted in his presence.
“You .are instructed that when arresting a person without a warrant, the officer must inform the person sought to be arrested of his authority and the cause of the arrest except when the person is in the actual commission of a public offense.
“It is a misdemeanor to be intoxicated in a public place. The public streets in the city of Weatherford, Oklahoma, in and near the business district of said city, is a public place.
“If a peace officer is attempting to make a lawful arrest in a lawful manner and the person sought to be arrested resists, the offficer has a legal right to use all force reasonably necessary to effect his arrest.
“One may resist an illegal arrest, but he may not kill the one attempting to make the arrest, unless there exists, or appears to exist, circumstances exciting the fear of a reasonable man that he is about to be injured, or that his life is in danger of being destroyed.
“6. You are instructed that homicide is excusable when committed by accident and misfortune in doing any lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent, or when committed by accident and , misfortune in the heat of passion, upon any sudden and sufficient provocation and is not done in a cruel or unusual manner.
“7. You are instructed that homicide is justifiable when committed by public officers when necessarily committed in over-coming actual resistance to the officers to the discharge of any legal duty.
“You are further instructed that homicide is also justifiable when committed by any person in . either of the following cases:
“1. When resisting any attempt to murder such person, or to commit any felony upon him; or,
“2. When committed in the lawful defense of such person, when there is a reasonable ground to apprehend a design to commit a felony, or to do him some great personal injury, and imminent danger of such design being accomplished; or,
“3. In lawfully keeping and preserving the peace.”
“10. You are instructed that a peace officer in attempting to arrest a person for an offense less than a felony cannot shoot or kill, unless the offender resists to such an extent as to place the officer in danger of loss of life or great bodily harm.”
“14. You are instructed that if you find and believe from the evidence in this case that the defendant at the time of the injury of the deceased was in the performance of his duty seeking to preserve and keep the peace and that it was necessary for the defendant in order to preserve and keep the peace to apprehend and arrest the deceased and that the deceased resisted arrest and that the defendant did not use more force than was necessary in order to effect such arrest, then you will find the defendant not guilty.”

In addition to these instructions, the court submitted the issue of self-defense -in three other instructions, by counsel for defendant reads:

The instruction to which complaint is specifically made

“The law of self-defense, however, is emphatically a law of necessity. It does not imply the right of attack and cannot avail in any case where the difficulty is sought for or induced by the slayer, by any wilful act of his own or where he voluntarily or of his own free will enters into it, no matter how hard he may be pressed or how great his danger may become during the progress of the difficulty, unless he, in good faith, abandons the contest and either by word or act makes that fact known to his adversary. If, however, the original aggressor does, in good faith, abandon the contest and does by word or act make that fact known to his adversary and if thereafter his adversary continues to combat, then such adversary himself becomes an aggressor and thereafter the original aggressor has the right of self-defense.
“A homicide is not justifiable on the ground of self-defense, however, unless it is actually or apparently necessary to save the life of the slayer or to prevent his receiving some great bodily injury at the hands of the deceased. The apprehension of no other danger will justify the resort to so extreme a measure as to the taking of human life.”

Instruction No. 13 as an abstract proposition of law is substantially correct. However, the issue of self-defense on the part of an officer attempting to make an arrest of a person for committing an offense in his presence is not the same as that of an individual in combat with another individual. In view of the other instructions on self-defense and the instructions on the right of an officer to make an arrest which we have here-inabove quoted, we do not believe that this instruction complained of had the effect of misleading the jury. If the jury had believed that the shooting was accidental as testified to by the defendant, then under instruction No. 6, it would have been their duty to have acquitted defendant. If they had believed deceased was killed while resisting the officer in the lawful discharge of his duty, then instructions 4B, 7 and 14 would apply. Construing the instructions as a whole, we think they substantially presented the issues to the jury. The jury did not find the defendant guilty of manslaughter in the first degree, as they could have been justified in doing under the evidence of the state. Instead, they found him guilty of manslaughter in the second degree, which in effect meant that the jury found that the defendant was guilty of culpable negligence in the killing of deceased. The two requested instructions presented on behalf of the defendant, in so far as they embodied correct statements of the law, are included in the instructions which were given. A part of said requested instructions was erroneous and the court properly, refused to give the instructions in the form in which the request was made.

This case is comparable in many aspects to the recent cases of Feil v. State, 81 Okla. Cr. 138, 161 P. 2d 770, and Storer v. State, 84 Okla. Cr. 176, 180 P. 2d 202, in each of which cases officers shot and killed parties whom they were attempting to arrest. A person cannot read the record in this case with an unprejudiced mind without being impressed with the fact that the killing of the deceased was a regrettable and unnecessary act on the part of the defendant.

In Feil v. State, supra, in sustaining the conviction of the officer, this court held [81 Okla. Cr. 133, 161 P. 2d 771]:

“Where proof of defendant’s guilt is clear, any technical defect in an instruction will not be grounds for reversal unless it can be shown to have prejudiced the defendant.”

In Storer v. State, supra, we held that the killing of the deceased was without adequate provocation. We adopt part of the language used by the court in disposing of that case as applicable to the instant case [180 P. 2d 209]:

“All of the collateral elements of the case which are presented as grounds for reversal of the judgment of conviction were evidently taken into consideration by the jury in mitigation of the punishment as they only assessed the minimum punishment of four years’ imprisonment in the State Penitentiary. No record is appealed to this Court that is. perfect in every detail. It is sometimes easy to forget the living trial in the search for error in a dead record. The trial was conducted in substantial compliance with the law. Another trial judge might have handled the case differently in some details hut if there are any irregularities of procedure, they were not such as deprive the defendant of any substantial rights:”

The judgment and sentence of the district court of Custer county is affirmed.

BAREFOOT and BRETT, JJ., concur.

On Rehearing Feb. 8, 1950.

Meacham & Meacham, Clinton, Leon C. Phillips, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Fred' E. La Rue, Co. Atty., Arapaho, for the State.

PER CURIAM.

After hearing the argument of counsel on rehearing, and again fully considering the record and assignments of error, we have come to the conclusion that justice requires that the' judgment and sentence of the district court of Custer county be modified to a term of one year imprisonment in the county jail, and a fine of |300.

The judgment and sentence as thus modified is affirmed. '

Mandate will issue forthwith.


author: BRETT, J.

text:
    Ex parte JOHN NOBLE.
    No. A-11200.
    May 11, 1949.
    (206 P. 2d 226.)
    John Noble, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is a petition for a writ of habeas corpus brought by John Noble, an inmate of the penitentiary at McAlester, Okla., wherein he alleges that he is being unlawfully restrained of liis liberty by C. P. Burford, warden thereof. He alleges the cause of that restraint is the judgment, sentence and commitment from the district court of Tulsa county, Olcla., made and entered on the 14th day of June, 1946, wherein he entered a plea of guilty to a charge of murder, allegedly committed on March 10, 1946. On said charge he was sentenced to life imprisonment in the said penitentiary.

Accompanying his petition for a writ of habeas corpus is a transcript of the proceedings in the district court of Tulsa county, had in said cause, at the time the sentence complained of was imposed. Therein it appears he was charged by valid information, together with one Boblee Cartwright, with the murder of Fred M. Stahl. That at the time of the arraignment on June 14, 1946, he was represented by able and experienced counsel. That at the time of arraignment he waived time to plead. Whereupon the information was read to him in open court. In this connection the record discloses he then acknowledged and admitted his identity as the person named in said information. Thereafter his counsel in his presence, and with his consent, informed the court that he desired to enter a plea of guilty to the charge of murder. It further appears that thereupon the trial court advised him in detail of the nature and consequences of the crime, and that the penalty for murder might be a sentence to life imprisonment or to death in the electric chair. The court further advised him that it was the duty of the court to fix punishment, and only the court’s duty so to do, and that any understanding he might have had with reference to his plea as to punishment would not be binding on the trial court. To which be replied, “yes sir.” The court then, went further, and inquired “in the light of that statement of the court and your answers, do you still wish to plead guilty to this charge of murder,” to which the petitioner’s answer was, “Yes sir.” He was then asked if he had any statement to make, to which he replied in the negative, whereupon, his counsel.made a statement in his behalf which disclosed he was 23 years of age and was without prior criminal record. The county attorney was then asked for his recommendation, which he informed the court was a sentence of life imprisonment. Thereafter the court requested the county attorney to detail the facts of the case, which was done.

Though not essential to a determination of this proceeding, the same is included here only for the purpose of adding clarity to the opinion and to establish that the trial court had authority to pronounce the judgment and sentence rendered, and we include a condensation of the same herein. This detailing, disclosed, briefly, the vicious and brutal murder of Fred M. Stahl. It disclosed that the defendants determined to rob him of his automobile when they drove by in another car and saw his lights burning. An examination of the car disclosed that Stahl was in the automobile. He was rendered unconscious by a blow on the head with a heavy blunt instrument wielded by Boblee Cartwright, the petitioner’s accomplice. The two of them then stole Stahl’s Buick car, dumping what was thought to be Stahl’s lifeless body in a vacant house nearby. They drove away and returned a few minutes later and found Stahl gone, and in the headlights discovered him walking down the road a short distance away. They stopped the car, got out, and Cartwright struck Stahl with a blunt instrument several crushing blows, again felling him. They then put him in the Buick car and took him to Mohawk Park and there removed the body from the car. Cartwright left in the car and returned a few minutes later with a rope. They then put the body in the Buick car and drove to a coal pit, where the rope was tied to Stahl’s body and around a large rock and the body was thrown into the pit. Thereafter they drove to Galveston, Tex., where the automobile was destroyed.

The county attorney detailed that the petitioner had assisted the state in solving the crime. The petitioner contended he never struck any of the blows, which of course in habeas corpus is not an issue.

When the county attorney finished his statement of the killing and before judgment and sentence was pronounced, the court asked the defendant if he had any statement he wished to make, to which he responded, “No, sir.” The record before us discloses a most heinous and cold-blooded crime. It further discloses the defendant was accorded all of his constitutional and statutory rights not otherwise waived by him.

Under the record it is clear the court had jurisdiction of the subject matter, jurisdiction of the person, and authority under the law to pronounce the judgment and sentence rendered. This court has repeatedly held that in habeas corpus proceedings the inquiry is limited to those questions. Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Massengale, 67 Okla Cr. 181, 93 P. 2d 41; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; In re Swaim, 66 Okla. Cr. 30, 38, 89 P. 363; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Newman, 67 Okla. Cr. 401, 94 P. 2d 556; Ex parte Davis, 68 Okla. Cr. 29, 95 P. 2d 915; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129.

It has also been held that habeas corpus is not a substitute for appeal. Ex parte Critser, 87 Okla. Cr. 380, 198 P. 2d 228; Ex parte Broyles, 84 Okla. Cr. 47, 178 P. 2d 652; Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523; Ex parte Mayfield, 84 Okla. Cr. 158, 179 P. 2d 934, and numerous other cases.

Finally, this court has held that where facts alleged, even if established, would not warrant discharge by ha-beas corpus, the writ will be denied. Ex parte Whitson, 70 Okla. Cr. 79, 104 P. 2d 980; Ex parte Linam, 71 Okla. Cr. 155, 109 P. 2d 838. The petition herein wholly fails to state facts alleging cause for relief by habeas corpus.

For all of the foregoing reasons the writ of habeas corpus must be and the same is accordingly denied.

JONES, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J. JONES, P. J.

text:
    Ex parte ANN DOSER.
    No. A-11208.
    May 11, 1949.
    (206 P. 2d 228.)

      Brown, Darrough & Ball, of Oklahoma City, Joe Ralls, of Atoka, and Walter Billingsley, of Wewoka, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen H. Watts, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Ann Doser filed an application for writ of habeas corpus in this court, seeking reduction of her appeal bond.

Petitioner alleges that on or about January 26, 1946, a charge of murder was filed against her in the district court of Atoka county, Okla., and that the judge of said court fixed bail of said petitioner in the sum of $10,000, which petitioner made. . That in May, 1946, petitioner was tried in the district court of Atoka county on the charge of murder and her trial resulted in a hung jury and she was permitted to stand on her $10,000 bail previously granted. That thereafter, and in October, 1946, she was again placed on trial for said charge and found guilty of murder, and sentenced to life imprisonment in the State Penitentiary.

That petitioner appealed from said judgment of the district court of Atoka county, and on February 9, 1949, the Criminal Court of Appeals reversed said cause and granted petitioner a new trial, 88 Okla. Cr. 299, 203 P. 2d 451. That after the mandate was spread of record, petitioner made application to the district court of Atoka county for bail, and on March 8, 1949, the judge of said court fixed her bail at $25,000. That said bond is excessive; that petitioner is unable to make such bond, and prays that it be reduced, and she be granted bail in the sum of $10,000.

A hearing was had in this court on said application on March 23, 1949, and evidence introduced. The court, after due consideration, was of the opinion that the bond fixed by the district court of Atoka county is excessive, and that under the circumstances herein $10,000 would be a reasonable bond in the premises.

The application for writ of habeas corpus reducing the appeal bond of petitioner from $25,000 to $10,000 is granted.

BEETT, J., concurs. JONES, P. J., dissents.

JONES, P. J.

(dissenting). In my opinion this matter does not appear in the same circumstances as it did when bail was fixed in the sum of $10,000, after the first trial resulted in a hung jury. At the second trial the petitioner was convicted and given life imprisonment. This court after a review of the record found that her guilt of murder under the record was evident, but the cause was reversed because of certain errors in the proceedings.

Since this court after reviewing the record has held there was sufficient evidence to prove petitioner guilty of murder, I do not believe that the order of the trial court fixing appearance bond in the sum of $25,000 pending a new trial is manifestly erroneous. We are now passing upon a matter where all of the evidence has been presented to this court by record on appeal. By agreement, this complete record is to be considered as evidence in support of the state’s response to the petition for reduction of bail.

I think, under all the circumstances of the case, the trial court acted correctly in allowing bail to the petitioner, but in view of our conclusion that the evidence is ample to sustain a conviction for murder, I feel that a $10,000 bond is insufficient, and therefore I respectfully dissént to the order fixing bond in such amount.


author: BAREFOOT, J.

text:
    KARL WILSON BOHOT v. STATE.
    No. A-10943.
    May 18, 1949.
    (206 P. 2d 585.)

      See Bohot v. State, 89 Okla. Cr. 454, 210 P. 2d 379.)
    T. Jack Tellegen and John J. Carney, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst Atty. Gen., and Warren H. Edwards, Co. Atty., Oklahoma County, of Oklahoma City, for defendant in error.
   BAREFOOT, J.

Defendant, Karl Wilson Bohot, was charged in the court of common pleas of Oklahoma county with the offense of driving a motor vehicle while under the influence of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of $250 and to serve one year in the county jail, and has appealed.

For a reversal of this case, it is contended:

“1. Conduct of the prosecuting attorney, in persisting in cross-examining the accused by assumptions and insinuations as to previous unlawful acts and transactions, in spite of rulings against him is improper and prejudicial.
“2. In rebuttal, when the defendant has placed his character in issue, it is error for the state to introduce evidence of other criminal acts, unless such acts come within a common scheme or plan or other exceptions to the general rule which are set forth in this proposition.”
“3. That the court erred in overruling the demurrer to the evidence and the motion for a directed verdict.
“4. That the judgment and sentence is excessive.”

For a proper consideration of these assignments of error, it is necessary to give a short statement of the facts as revealed by the record.

The defendant was a duly elected constable from a district about one mile east of the Oklahoma City boundary. He was arrested on Sunday night, January 26, 1947, about 9:30, by two highway patrolmen, while he was driving a Ford automobile west on Reno avenue, in the eastern part of Oklahoma City. The patrolmen had followed defendant’s car for some distance as it proceeded north on Eastern avenue, across the North Canadian river bridge and turned west on Reno. During part of this time defendant’s car was on the wrong side of the street, and was weaving back and forth. He was driving at a rate of about 35 miles an hour, and while crossing the bridge, came near hitting an oncoming automobile. Two other automobiles pulled off the pavement to avoid a head-on collision with the car driven by defendant. After driving west about two blocks on Reno avenue, and running off the pavement, defendant was stopped by the patrolmen, arrested for drunk driving, and taken to the county jail where he was detained until about noon the following morning and charges filed against him, as above stated.

Both, patrolmen testified that defendant was drunk at the time he was arrested, and that he staggered as he attempted to walk, and they could smell whisky on his breath.

One of the officers testified to the following conversation with the defendant:

“I asked him, ‘Can’t you drive that car any better than that?’ He said, he didn’t see anything wrong with it. I said ‘What have you been drinking?’ He said ‘Whisky.’ I said, ‘How much?’ He said ‘I have had two or three drinks.’ ”

The officers found a pint bottle of Kentucky Tavern whisky about one-fourth full in defendant’s pocket, and a pint bottle containing a very small amount of whisky between the front and back seats. This whisky was turned over to the evidence officer of the county attorney and was introduced in evidence.

Deputy Sheriff Mike McG-rew, in response to a call, reached the scene just at the time of the arrest of defendant by the two highway patrolmen. He testified that he met the defendant and observed that his car “swerved from the regular line of traffic,” that he turned around and followed defendant and saw him get out of his car after it was stopped by the patrolmen. He testified:

“Q. What was the man’s condition as to being sober or otherwise, the defendant? A. He was under the influence of intoxicating liquor in my opinion. Q. Slightly, or otherwise? A. Well, beyond the point of slightly.”

Pearl Holland testified for the state. She testified that she owned a cafe at 114 Hudson, Oklahoma City. She met the defendant, whom she knew slightly, on Sunday afternoon, January 26, 1947, at “Pat’s Club,” a beer tavern near her place of business. She asked defendant to take her out on Eastern to see some friends of hers. It was her birthday, and she wanted to celebrate and told defendant she would buy a pint of whisky. They first went to Red Taylor’s place, and from there to Ben Hopkins’ tavern on southeast Twenty-Ninth Street. While there the defendant procured a pint of whisky. Witness offered to pay for it, but defendant would not permit her to do so. They then went to “The Derrick” which was operated by Norma Chief, a friend of the witness. While at these various places, they were drinking whis-ky and beer. Witness saw the defendant drink whisky at “The Derrick,” and beer at “Pat’s”.

Tom Wren worked at Ben Hopkins’ place on Southeast Twenty-Ninth Street. He testified that defendant came there on the night in question, and called for a pint of whisky. When the witness delivered it to defendant, defendant told him to charge it to Ben Hopkins. When told by witness he could not do that, defendant showed him his badge and his gun, and “He said I would, or, he said, he would take every damn one of us to jail.” The witness then gave defendant the pint of Kentucky Tavern whisky.

This witness was corroborated by the witness Ben Hopkins, who followed defendant into the tavern. On cross-examination counsel for defendant attacked the character of the witness Ben Hopkins and proved that he was in the liquor business, and had been a bootlegger for many years. That he had been convicted on numerous occasions and had served a term in the penitentiary. Also, that the witness Tom Wren was engaged in selling whis-ky. There was much irrelevant, incompetent evidence produced by the cross-examination by counsel for the defendant. Defendant attempted to show that there was a frame-up against Mm by reason of Ms participation in raiding places of business in Oklahoma City, outside of bis constable district.

Defendant denied much of the testimony offered by the state. He denied taking the whisky at the Ben Hop-Mns Tavern, or threatening, to put any one in jail. He also denied that he was under the influence of liquor at the time of his arrest, but did admit that he had taken “one drink, in order to be sociable.” He testified that the whisky bottle with a small amount of whisky found in the rear of his car had been secured by him in a raid. He also produced eleven witnesses, a number of whom were from his district, who testified that Ms reputation as a peaceable and law-abiding citizen was good, and that they had never seen- him under the influence of intoxicating liquor. The proof also showed that defendant was a veteran of World War II, and had been wounded, and that a number of the witnesses for the state were also veterans.

From the foregoing statement, it will at once be observed that there was a conflict in the evidence, but that the evidence of the state was amply sufficient, if believed by the jury, to sustain the judgment and sentence. Under the law and the facts the court did not err in refusing to sustain the demurrer to the evidence, and the motion for a directed verdict.

The first assignment of error is based upon the questions asked defendant on cross-examination by the assistant county attorney with reference to the boundary of his district and his work in Oklahoma City, which is outside of his district. We have carefully examined the record, and while many immaterial questions were asked, as were on the cross-examination of state’s witnesses by counsel for defendant, we do not find anything in the record which would justify a reversal of this case. We recognize the general rules that one can be convicted only for the crime with which he stands charged, that a witness may not be impeached on collateral matters, and that evidence of the commission of other independent crimes is inadmissible; but we also know there are many exceptions to these general rules. We do not find anything in the record which in our opinion was fundamental error and would justify this court in setting aside the judgment and sentence rendered.

Defendant’s second assignment of error is based upon evidence offered in rebuttal by the state after defendant had placed his character in issue by putting character witnesses on the stand. Each had testified that they had never seen defendant intoxicated and did not know of his drinking. The witnesses in rebuttal testified of defendant coming to the place of business of Ben Hopkins on the night of January 26, 1947, the night on which he was charged with driving while under the influence of intoxicating liquor.

Leon Foster Downs testified that he was a bootlegger and delivered whisky. That on Sunday morning, about 1 o’clock, January 26, 1947, he was called to deliver a pint of whisky at the Moonlight Cafe. He did not know who had ordered it. He walked into the cafe and bought a package of cigarettes, and the defendant followed him out to the car, and said to him: “I am the man.” The witness' then testified:

“He pulled back his coat, and of course his gun and his badge showed, and he said: ‘Do you want to go to jail, or do you want to give me the whisky?’ So I gave him the whisky, which consisted, I believe, of two or three pints and a fifth.”

This witness testified that he was a bootlegger, selling for himself. That he had been convicted and served a term in the penitentiary, and that he had been convicted of a violation of the liquor laws in Oklahoma county and had forfeited at least 30 fines in the city court. This evidence, of course, was for the purpose of affecting the credibility of the witness, and was brought out on cross-examination. It may be noted that this purported transaction was on Sunday morning, 'January 26, 1947, at 1 o’clock, and that defendant was charged by infor'mation with driving while under the influence of intoxicating liquor on Sunday night, January 26, 1947, at about ■9:30.

The assistant county attorney on cross-examination attempted to question defendant with reference to his knowledge of a law passed by the Legislature which provided that constables could not make arrests outside of their own districts, but the trial court sustained an ob-. jection to these questions, and instructed the jury not to consider them. These questions were immaterial, but in view of the fact that objections were sustained to same by the trial court, were not sufficient to cause reversal of this case.

No exceptions were taken to the instructions of the court, and no requested instructions were asked.

Defendant also contends that the judgment and sentence is excessive.

The statute under which defendant was charged and convicted is Tit. 47 O.S. 1941 § 93, which provides that the first offense under said statute shall be a misdemeanor with punishment by imprisonment in the county jail of not to exceed one year, or by a fine of not more than $500, or by both such fines and imprisonment.

The jury in its verdict found defendant guilty and assessed bis punishment at a fine of $250 and one year in jail, but the verdict contained the statement: “We the jury recommend that the jail sentence only be suspended.” This recommendation, under the law, was not binding on the trial court, and he refused to follow the recommendation.

From our examination of the entire record, and the admission of the evidence of the. witness Downs with reference to the episode on the early morning prior to the arrest of defendant that night, and the recommendation of the jury, we are of the opinion’ that justice would best be served by a modification of this judgment from a fine of $250 and one year in the county jail, to a fine of $250 and 60 days in the county jail.

There is one phase of this case which we deem it important to discuss in this opinion. We again desire to call attention to Tit. 37 O.S. 1941 § 89, which provides:

“When a violation of any provision of this Chapter, shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging so unlawfully used, and to take the same immediately before the court or judge having jurisdiction in the premises, and there make complaint, under oath, charging the offense so committed, and he shall also make return, setting forth a particular description of the liquor and property seized, and of the place where the same was so seized, whereupon the court or judge shall issue a warrant commanding and directing the officer to hold the property so seized in his possession until discharged by due. process of law, and such property shall be held and a hearing and adjudication on said return had in like manner as if the seizure had been made under a warrant therefor.”

It will be noted that this statute sets out the procedure to be followed by officers who seize intoxicating liquor without the aid of a search warrant. It imposes the duty upon the officer who seizes or takes possession of the intoxicating liquor “to take the same immediately before the court or judge having jurisdiction in the premises” and “also make return, setting forth a particular description of the liquor and property seized, and of the place where the same was so seized.”

We are of the opinion that it is meant by the above statute that the “return” be made to the court having “jurisdiction” to try the defendant for the offense committed. In the present instance this would be the court of common pleas of Oklahoma county. Ordinarily it would mean the county court of the county where the intoxicating liquor was seized. ~ The above statute provides:

“The court or judge shall issue a warrant commanding and directing the officer to hold the property so seized in his possession until discharged by due process of law, and such property shall be held and a hearing and adjudication on said return had in like manner 'as if the seizure had been made under a warrant therefor.”

It will be observed that there is no specific mention made in the above statute as to where the intoxicating liquor shall be kept during the time pending the hearing as to its adjudication or forfeiture. It seems that it would be important for the Legislature to make this statute more specific in view of the fact that there is always immediate danger of loss of the intoxicating liquor so seized. Many officers are not so situated that they have a safe place for the keeping of intoxicating liquor. We know that generally this liquor is turned to the sheriff of the county, who is usually prepared to keep the same pending the proper order of the court; and in our opinion this statute should be so amended, if the Legislature deems advisable.'

We also refer to Tit. 37 O.S. 1941 § 90, wbicb is as follows :

“All liquors, property and things seized under the provisions of this act shall, upon being adjudicated forfeited to the state, be forthwith destroyed by the officer in whose custody the same is at the time of adjudication. Provided, however, that the judge or magistrate may, in his discretion, appoint a special officer for the purpose of executing the judgment of forfeiture by destroying said liquors, property and things; provided, further, that if in the opinion of the judge or magistrate, such forfeited property and things, other than liquor, is of value and adapted to any lawful use, such judge or magistrate shall as a part of the order and judgment in the case, direct that such property or things of value be turned over to the board of county commissioners to be by said board of commissioners sold and disposed of for the benefit of the court fund of the county; provided, further, that twenty five (25 per cent) per cent of all the proceeds, including all moneys and cash seized, with the other things of value, shall be paid to the party who prosecuted the search and seizure proceedings.”

This section gives the court the authority, in his discretion, to “appoint a special officer for the purpose of executing the judgment of forfeiture by destroying said liquors, property and things.” Under this authority granted the court, we are of the opinion that the court has the inherent right to appoint the sheriff of the county as a proper person to have the custody and possession of the intoxicating liquor, pending the determination of the adjudication or destruction of the same, if in his discretion he desires to do so.

The evidence in the instant case reveals that defendant, who was a constáble, had seized liquor under the statute above quoted, without the aid of a search warrant. Reference to the above sections of the statute is here made so that all officers may clearly know that it is their official duty to make the return provided by the statute immediately, and that the intoxicating liquor so seized cannot be appropriated to their own individual use. It is their duty under the law to make immediate return “setting forth a particular description of the liquor and property seized * * In the instant case the evidence revealed, if true, that defendant had seized intoxicating liquor without the aid of a search warrant. No return was made as provided by the statutes above set forth. There is not much doubt but this evidence was of material aid in causing the conviction of this defendant, and the assessment of the heavy penalty imposed by the jury. The juries of this state demand strict adherence to the law upon the part of the officers of the law. The defendant in this case, an officer of the law, was visiting different taverns in company with a woman whom he hardly knew, and they were drinking beer and whis-ky during the time just preceding his arrest. . The fine and imprisonment sentence rendered in this case should be a warning to those similarly situated in this county, and the other counties of this state. Under the law the first offense is a misdemeanor, and a second offense is a felony. The proof of defendant’s good reputation by a number of citizens of this county, and his record as a veteran of World War II, no doubt was the cause of the jury making the recommendation in the verdict that the jail sentence be suspended.

The judgment and sentence of the court of common pleas of Oklahoma county is modified from a fine of $250 and one year in the county jail, to a fine of $250 and 60 days in jail; and as so modified, the judgment and sentence is affirmed.

JONES, P. J., and BRETT, J., concur.


text:
    Ex parte DAVID LEON O’HARA.
    No. A-11198.
    May 18, 1949.
    (206 P. 2d 592.)
    David Leon O’Hara, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original petition for a writ of habeas corpus brought by David Leon O’Hara. In his petition O’Hara alleges that he is being unlawfully imprisoned in the penitentiary at McAlester, Okla., by the warden, O. P. Burford. He alleges that his imprisonment is by virtue of his conviction in the district court of Grady county, Okla., judgment and sentence of him to the penitentiary for 20 years for the crime of robbery with firearms. As grounds for the writ of habeas corpus he makes, in substance, the following allegations, that he was committed purely as a result of a criminal conspiracy, that he was unlawfully deprived of a large sum of money by a spurious search warrant and seizure, which sum of money was never established as having been lost in a robbery case, that he was not accorded a speedy preliminary hearing and arraignment on the information, that the trial of the case wherein he was convicted was lacking in fairness and impartiality, that the court erred in not granting a new trial, that in consequence of the foregoing the trial court lost jurisdiction to pronounce the judgment and sentence. ■

This court has repeatedly held that inquiry in ha-beas corpus is limited to the questions, did the trial court have jurisdiction of the subject matter, of the petitioner’s person and authority under the law to pronounce the judgment and sentence rendered. Ex parte Noble, 89 Okla. Cr. 231, 206 P. 2d 226; Ex parte Matthews, 85 Okla. Cr. 23, 186 P. 2d 840; Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550; Ex parte Massengale, 67 Okla. Cr. 181, 93 P. 2d 41; Ex parte Barnett, 67 Okla. Cr. 300, 94 P. 2d 18; In re Swaim, 66 Okla. Cr. 30, 38, 89 P. 2d 363; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Newman, 67 Okla. Cr. 401, 94 P. 2d 556; Ex parte Davis, 68 Okla. Cr. 29, 95 P. 2d 915; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129. In the Keel Case supra [62 Okla. Cr. 277, 71 P. 2d 314], this court said:

■“On habeas corpus to determine legality of imprisonment where detention is under the.judgment of a district court, the court is limited to a determination of whether the facts stated in the information constitute an offense, and whether the judgment and sentence imposed was warranted by law and was within the jurisdiction of the court.”

Clearly the facts stated in the information herein define the crime of robbery with firearms, therefore, the court had jurisdiction of the subject matter. The petitioner was present in person and with counsel during the trial, and the court did not exceed its jurisdiction in pronouncing judgment and sentence. The latter is true because the petitioner was found guilty by the jury which fixed his penalty at 20 years in the penitentiary and the court sentenced him accordingly. A penalty of death might have been imposed. Moreover, as to the contention relative to the delay in the preliminary hearing and arraignment on the charge laid in the information it does not appear that the petitioner raised any objection to the delay in the preliminary proceedings or on-his arraignment but proceeded to trial without making the same. In Ex parte Wilkerson, 73 Okla. Cr. 32, 117 P. 2d 172, it was held that the right to a speedy trial is waived by proceeding to trial without objection. This objection is not timely made.

The other allegations of the petition relate to irregularities of procedure and errors of law on matters over which the trial court had jurisdiction, and are not a subject of inquiry in habeas corpus. In habeas corpus this court will not look beyond the judgment and sentence as to such irregularities. Ex parte West, supra. Such matters can only be raised on appeal. It has repeatedly been held that the writ of habeas corpus cannot be substituted for an appeal. Ex parte Critser, 87 Okla. Cr. 380, 198 P. 2d 228, Ex parte Broyles, 84 Okla. Cr. 47, 178 P. 2d 652, Ex parte Darr, 84 Okla. Cr. 352, 182 P. 2d 523, Ex parte Mayfield, 84 Okla. Cr. 158, 179 P. 2d 934, Ex parte Thomas, 56 Okla. Cr. 258, 37 P. 2d 829; Ex parte Miles, 56 Okla. Cr. 69, 33 P. 2d 636; Ex parte Faber, 56 Okla. Cr. 177, 35 P. 2d 741; Ex parte Bobinson, 56 Okla. Cr. 404, 41 P. 2d 127. In the latter case this court said:

“Habeas corpus cannot be used to correct errors or irregularities of procedure, where there is jurisdiction.”

Furthermore, where the facts alleged even if established would not warrant discharge by habeas corpus the writ will be denied. Ex parte Noble, supra; Ex parte Whitson, 70 Okla. Cr. 79, 104 P. 2d 980; Ex parte Linam, 71 Okla. Cr. 155, 109 P. 2d 838. Such is the situation confronting us in this petition. For all of the foregoing, reasons, the writ herein sought is accordingly denied.

JONES, P. J., and BABEFOOT, J., concur.


author: JONES, P. J.

text:
    Ex parte BILL KIRK.
    No. A-11207.
    May 18, 1949.
    (206 P. 2d 594.)

      Bill Kirk, pro se.
    Mac. Q. Williamson, Atty. Gen., for respondent.
   JONES, P. J.

This is an original action in habeas corpus instituted by the petitioner, Bill Kirk, to secure his release from confinement in the penitentiary.

The verified petition alleges that petitioner was charged by information filed in the district court of Tulsa county with the-crime of robbery; that he entered a plea of not guilty upon arraignment in the district court, was tried, convicted, and sentenced to serve 35 years’ imprisonment in the State Penitentiary.

He further alleged that the district court of Tulsa county did not have jurisdiction to pronounce sentence against the petitioner for the following reasons:

1. No complaint or preliminary information was filed to support the information in the district court.

2. No warrant was ever issued for the arrest of petitioner.

3. Petitioner was never accorded a preliminary examination and did not waive a preliminary examination.

4. Petitioner was denied sufficient time to prepare a defense and to subpoena witnesses in his behalf.

5. That the principal witness for the defendant was in a hospital at the time said cause came on for trial; that defendant’s counsel requested the trial judge to grant him a continuance until said witness might be able to attend court, but said request for continuance was denied; that counsel for petitioner was appointed by the court, but said petitioner was only allowed to consult with said counsel for about ten minutes before a jury was impaneled and petitioner placed upon trial; that your petitioner prepared the record for appeal in due time but said record was destroyed by one of the prison officials for the purpose of preventing -the petitioner from filing his appeal.

Almost all of the grounds set forth in said petition are not matters which may be heard in a habeas corpus action after judgment has been pronounced. They are questions which could have been heard on appeal. The writ of habeas corpus cannot be substituted for appeal but will be limited to cases in which the judgment and sentence attacked are clearly void. Ex parte Jones, 80 Okla. Cr. 172, 157 P. 2d 916; Ex parte Smith, 84 Okla. Cr. 448, 184 P. 2d 118.

'When this cause was set for hearing there was no proof offered on behalf of the petitioner to substantiate the allegation in his petition that an official of the prison had destroyed his record to prevent an appeal. The ques-. tion of the alleged failure to have a preliminary examination and the other questions raised are matters which may not be heard in a habeas corpus proceeding. The accused by entering his plea of not guilty upon arraignment in the district court and proceeding to trial upon the information which was filed against him, waived any right he may have had to have presented the question that no preliminary examination was accorded him.

Eighteen years have elapsed since the judgment and sentence was pronounced. Courts view with suspicion allegations in a habeas corpus petition filed many years after judgment is pronounced, where issues of fact are raised dependent upon the memory of man. The most charitable view that we can take of - this proceeding is that petitioner has wholly failed to sustain one issue which would entitle him to the relief prayed.

The writ of habeas corpus is denied.

BAREFOOT and BRETT, JJ., concur.


text:
    JASPER VIRGIL COX v. STATE.
    No. A-10995.
    May 25, 1949.
    (206 P. 2d 1005.)

      Hughes & Hughes, of Hobart, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Plaintiff in error, Jasper Virgil Cox, was charged by information in the county court of Kiowa county, Okla., with the crime of unlawful possession of intoxicating liquor, tried, convicted and sentenced to a term of 30 days in jail and to pay a fine of $50.

The offense was allegedly committed on July 13,1947. The record discloses that he was in possession of 38 pints of whisky, 21 4/5 quarts of whisky, 2y2 pints of whis-ky, 3 pints of gin and 2% pints of alcohol.

The liquor was seized under and by virtue of a search warrant issued out of the justice of the peace court of Fred Reinmiller, acting as justice of the peace of the city of Hobart, Okla. The validity of the seizure was attacked in a motion to suppress in the trial court which was overruled. The facts are not in dispute. The basis of this attack is that on May 5, 1947, Fred Reinmiller was justice of the peace of the city of Hobart, Okla., Kiowa county; that on said date in a re-organization session of the city council of Hobart, Okla., the mayor, P. J. Oosner, appointed the. said Fred Reimniller police judge. The record discloses that thereafter on July 1st he assumed the duties thereof, having tendered his resignation to the county commissioners effective from and after July 7, 1947. The record discloses the county commissioners accepted his said resignation on July 10, 1947. The record further shows he made claim for pay against the city of Hobart, Okla., for services rendered as police judge and was paid for said services for the entire month of July, 1947, the sum of $65. The record further shows that he never relinquished the office of justice of the peace but that he acted in said capacity up to and including July 7th, the date on which the aforesaid search warrant was issued. It further appears that the said warrant was received by the sheriff on July 7th at 2 p. m., and was served on the defendant on July 13, 1947.

On the basis of the foregoing facts it is contended by the defendant that upon the said Reinmiller assuming the office of police judge of the city of Hobart on July 1, 1947, he ipso facto abandoned the office of justice of the peace, and that the search warrant involved in this case, and the search made thereunder, were absolutely void and of no effect, and that the trial court erred in overruling defendant’s motion to suppress the evidence obtained by virtue of the search. In support of his contention the defendant relies upon the following authorities: Gibson v. Crowder, 196 Okla. 406, 165 P. 2d 628; Wimberly v. Deacon, 195 Okla. 561, 144 P. 2d 447; Riley v. Cordell et al., 200 Okla. 390, 194 P. 2d 857, 861. The foregoing cases were all direct actions against the office holder himself to determine his right to hold one of two offices he sought to fill. In all such cases the Supreme Court announced the rule to be:

“* * * when a public officer occupying one office enters upon the duties of another office, when under the law he cannot hold both offices, the acceptance of the second office operates ipso facto to vacate the first office.”

This rule is a correct statement of the law as applied in a direct proceeding seeking to determine the right of the holder to one of two offices he assumes to fill. Such proceedings affect only the officeholder himself. No such situation confronts us in the instant case as to make the foregoing rule applicable. The attack here is not direct but collateral. The right to hold the office is not directly in issue, but instead the acts of one claiming to exercise authority- under color of office is being attacked in a collateral proceeding. Therefore, the decisive question involved here is, in accepting the office of police judge and at the same time not relinquishing the office of justice of the peace, and while acting in the people’s interest, are the acts of Fred Eeinmiller so acting, valid as to third persons, and can such acts be attacked collaterally?

Under these conditions, under what character and right and upon whom would the acts of Fred Eeinmiller be binding? There can be no question before his assuming the office of police judge but what he was a justice of the peace de jure, who in all respects was legally appointed and qualified to exercise the duties of the office. There can be no question but where he was. personally concerned, after he assumed the duties of police judge under the authorities of this state, his acts as justice of the peace would personally avail him nothing, that is, it would be of no advantage to him in the matter of collecting fees, etc. But the facts disclose after he assumed the duties and responsibilities of police judge he did not cease the performance of the duties as justice of the peace under the belief he could lawfully so continue to act. Thus, in performing the duties and responsibilities of the office of justice of the peace, what was his character? He was in possession of the office. He had the reputation of exercising the judicial functions he assumed. He was not a usurper. He acted under color of lawful right. Therefore, he was what the law defines as an officer de facto. In Sheldon v. Green, 182 Okla. 208, 77 P. 2d 114, 115, it was said:

“In Layne v. State, 23 Okla. Cr. 36, 212 P. 328, it was said that a judge de facto is one acting with color of right, and who is regarded and has the reputation of exercising the judicial functions he assumes. A judge de facto differs on the one hand from a mere usurper of the office who undertakes to act without any color of right, and on the other from a judge de jure who is in all respects legally appointed and qualified to exercise the duties of the office. 33 C.J. 925. While mere possession of the office is not sufficient to make the incumbent a de facto judge, possession plus color of title to the office, if the office actually exists, is considered sufficient.”

Under the facts presented herein Reinmiller was clearly acting as justice of the peace de facto. In acting as an officer de facto, what was the effect of his acts as to the interests of the people and third persons? This court has passed squarely upon that question. Where one is acting as an officer de facto, in Morgan v. State, 66 Okla. Cr. 205, 90 P. 2d 683, 685, this court said in the body of the opinion:

“Beginning with the early opinions of this court, it has been repeatedly held and defined that an officer de facto is one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid so far as they involve the interests of the people and third persons, where the functions of the office are exercised by one who is in the actual possession of it under color of title.
“In Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L.R.A., N.S., 1036, the court re-affirmed the doctrine set forth herein, that the acts of the officer rightly in possession of the office and under color of title are valid as against third persons and cannot be questioned in a collateral attack.
“In 15 Corpus Juris 875, Section 215, is stated the ' following :
“ ‘The legality of the existence of a de facto court and its right to exercise its functions cannot be inquired into collaterally, but only in a direct proceeding at the instance of the state.’ ”

The Supreme Court of the State of Oklahoma held the acts of a de facto officer valid as to the public interest and third persons in the early case of Morford v. Territory, 10 Okla. 741, 63 P. 958, 54 L.R.A. 513. In the latter case it was held:

* * * although a person acting as county judge was not qualified (not having the number of years practice required by the statute), still his orders rendered during his de facto tenure were valid, and that his judgment rendered 'in the case, though the question of his competency was presented, would not be reversed.

To the same effect is Mid-Continent Building Co. v. Board of Equalization, 184 Okla. 525, 88 P. 2d 626, wherein in syllabus 3 the Supreme Court of Oklahoma said:

“Alleged fact that member of county board of equalization had forfeited his right to office by accepting another and incompatible office would not render board’s order fixing value of taxpayer’s property invalid, since member, if he had forfeited office, was still a de facto member of board.”

In the body of the opinion the Supreme Court cited the case of Privett v. Board of Education of Slab Fork School District, 104 W. Va. 35, 138 S. E. 461, at page 463, wherein it was said:

“ ‘One who forfeits his right to an office of which he is the incumbent, by accepting another which is incompatible with it, and afterwards performs the functions of the office forfeited, is an officer, de facto, and his acts, done before removal from such office, are valid as to persons other than himself.’ We need not decide here whether or not the president of the board of education forfeited his office by accepting, that of justice of the peace. It is admitted that at the time of the act here complained of, he was exercising the powers and performing the duties of a member of the board of education. He was a de facto officer, under the statute and the decisions aboye cited.”

The Privett case is clearly in point herein. In light of the foregoing authorities, it is clear that Fred Rein-miller in assuming to act as justice of the peace in issuing the warrant for the search and seizure in the case at bar was not a usurper, was rightly in possession of ..the office, was acting under color of right, on a matter .of public interest affecting a third person, the defendant herein, and as hereinbefore indicated upon principles of policy the acts of such officer de facto were valid. For the foregoing reasons the trial court did not commit error in overruling the motion to suppress the evidence obtained under the search and seizure herein in question, and the conviction predicated upon the evidence thus obtained and the judgment and sentence rendered therein is therefore valid, and the same is accordingly affirmed.

JONES, P. J., and BAREFOOT, J., concur.


text:
    A. C. ROTHROCK v. STATE.
    No. A.-10982.
    May 25, 1949.
    (206 P. 2d 1009.)

      Raymond A. Trápp, of Blackwell, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A Wallace, Asst. Atty. Gen., and Raymond O. Craig, Co. Atty., Kay County, of Newkirk, for defendant in error.
   BAREFOOT, J.

The defendant, A. C. Bothrock, was charged in the county court of Kay county with the offense of being drunk in a public place; was tried and found guilty by the jury and his punishment left to the court. The court fixed the punishment at 30 days in the county jail, and the costs of the action, and defendant has appealed.

The state relied for a conviction upon the testimony of two police officers of Ponca City. They testified that about 4 o’clock in the morning of April 30, 1947, they observed an automobile on the streets of Ponca City, weaving from one side of the street to the other, and followed the car several blocks before stopping it. A man by the name of Anderson was driving the car, and the defendant and a man who gave his name as Jones were in the front seat with Anderson. As the officers walked up to the car after stopping it, one of the men, they did not know which one, poured out part of a bottle of whisky. The officers took the three men to the police station. They did not know the defendant was in tbe car until it was stopped, and tbe occupants were making no disturbance. They did not know tbe defendant was drunk until they asked bim to get out of tbe car. Both officers testified that defendant was “very drunk.” They released the man who gave bis name as Jones, and charged the defendant, tbe charging part of tbe information being:

* * that on or about the 30th day of April, A.D. 1947, in said county of Kay and state of Oklahoma, one A. C. Rothrock did then and there unlawfully, wilfully, wrongfully be and appear drunk in a public place, to-wit: in the streets and avenues of the city of Ponca City, Kay county, Oklahoma.”

Defendant was charged and prosecuted under 37 O. S. 1941 § 8, which provides:

“* * or if any person shall be drunk or intoxicated in any public or private road, or in any passenger coach, street car, or any public place or building, or at any public gathering or if any person shall be drunk or intoxicated and shall disturb the peace of any person, he shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than ten dollars, nor more than one hundred dollars, or by imprisonment for not less than five days nor more than thirty days, or by both such fine and imprisonment.”

The defendant did not take the witness stand, and offered no testimony on his behalf.

For a reversal of this case, defendant sets out two propositions, as follows: •

“I. Evidence proving defendant intoxicated while passenger in a private automobile and not creating any disturbance is not sufficient to convict person charged with being intoxicated in a public place.
“II. Sentence of 30 days in county jail for being intoxicated in a public place is excessive and oppressive where evidence shows no disturbance or aggravation or any evidence of defendant’s having threatened or attempted injury to person or property.”

Counsel for defendant raises no question as to whether the evidence was sufficient to prove the defendant drunk at the time of his arrest, but confines his argument to the proposition that proof of the fact that he was intoxicated while riding in an automobile being driven by some other person, and while not disturbing the peace of any person, was not sufficient evidence that an offense had been committed under the statute making drunkenness in a public place a misdemeanor. After quoting the above section of the statute, defendant attempts to distinguish between being drunk or intoxicated “in” a public or private road, and “on” a public or private road, arguing that a person in a vehicle may be “on” the street, but not “in” the street.

From a reading of the statute it will be noted that it is a violation of the same for one to be drunk in numerous places; including any “public” place; and, also “if any person shall be drunk or intoxicated, and shall disturb the peace of anyone.”

The charge in the instant case is with being drunk in a “public place,” which is an offense under the statute. There was no evidence of a disturbance of the peace, and it was unnecessary to make this proof under the charge. It was sufficient to prove that defendant was drunk in a “public place.” The fact that defendant was in a private automobile would not be a defense under the above statute where the evidence revealed that he was upon the public streets of the city of Ponca City. The argument that a person may be “on” the street, but not “in” the street is very technical, and does not appeal to the court.

The ease of Bristow v. State, 67 Okla. Cr. 355, 94 P. 2d 254, cited by the defendant, has no application, and the facts in that case are very different from the facts here presented. The officers in the instant case both testified that defendant was drunk at the time of his arrest, and one of the parties was pouring whisky out of a bottle at the very time the arrest was made. There was no. evidence to the contrary.

The facts in the case of Hodge v. State, 36 Okla. Cr. 126, 252 P. 854, relied upon by defendant, have no application to the case here under consideration.

As to the second proposition, we are inclined to agree with the Attorney General when he states, in his brief:

“The contention of defendant’s counsel that the evidence did not justify the maximum sentence of thirty days in the county jail, is not wholly without merit.”

There is no contention that the defendant here made any disturbance, and the officers admitted that they did not know the defendant was in the car, or drunk, until after they had stopped the car driven by another party. The court is, therefore, of the opinion that under the facts and circumstances of this case, the maximum jail sentence imposed upon the defendant was too severe.

Under our Code of Criminal Procedure, 22 O.S. 1941, § 1066, this court has the power to modify the judgment appealed from. Deskins v. State, 62 Okla. Cr. 314, 71 P. 2d 502; Pooler v. State, 70 Okla. Cr. 199, 104 P. 2d 733, 105 P. 2d 553. Without this power we would feel constrained to reverse the judgment for the reason that the punishment imposed was excessive.

It is, therefore, ordered that the sentence of 30 days in the county jail he and the same is hereby modified by reducing said sentence to a fine of $10 and costs.

The judgment of the county court of Kay county, as so modified, is affirmed.

JONES, P. J., and BRETT, J., concur.


text:
    JACK FRANKLIN v. STATE.
    No. A-11027.
    May 25, 1949.
    (206 P. 2d 1011.)
    Herbert K. Hyde and Carroll Samara, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Warren H. Edwards, Co. Atty., of Oklahoma City, for defendant in error.
   JONES, P. J.

The defendant, Jack Franklin, was charged by information filed in the court of common pleas of Oklahoma county, with the unlawful possession of 93 pints of whisky; a jury was waived, the defendant was tried, found guilty, and sentenced to. serve 30 days in the county jail, and pay a fine of $50 and costs, and has appealed.

There was no appearance on behalf of the defendant at the time the case was assigned for oral argument and no briefs have been filed.

We have examined the record; the evidence is sufficient to sustain the conviction. The defendant presented' a motion to suppress the evidence, but failed to sustain the burden of showing that the search by the officers was invalid.

The judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

BAREFOOT and BRETT, JJ., concur.