text:
    EDGAR PEARSON v. STATE.
    No. A-6601.
    Opinion Filed July 20, 1929.
    (279 Pac. 700.)

      W. T. Powell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, the defendant in the lower court, is under conviction for unlawfully transporting intoxicating, liquor, with punishment fixed at a fine of $250, and imprisonment in the county jail for' a period of 60 days. The defendant has appealed to this court from the judgment rendered against him.

To the charge in this information the defendant entered his plea of not guilty. A jury was selected, impaneled, and sworn, and the state, to sustain the allegations in the information, produced witnesses who testified in substance as follows:

S. E. Cook, called as a witness, stated:

“I am a deputy sheriff; I saw Edgar Pearson on the 23rd day of December, 1926, at the East Cache bridge east of town; I saw the defendant come from the direction of the creek bank to his car and then go out in the section line, and was standing there in the road talking to some one. He then came back to Ms car, and I drove up and asked him if he had a tag on his car, and he said no; I advised Mm I bad been instructed to arrest him for failure to have a tag, and he said he would come into town and pay the penalty; I told him I wanted to look into his car and he asked me if I had a search warrant, and I said no, I didn’t need it as he was under arrest, and I looked into the car and did not find anything. Defendant went to take the lady that was with him to Mr. Smith’s place; after he left I followed tracks under the bank of the creek on down the creek and to the left side of a cottonwood tree, where I found a shoe box and in the box there Avas a half gallon of whisky. The tracks went from the bank near the car to where the whisky was in the box.”

The state then offered its Exhibit A, which was shown to be a half-galIon jar claimed to have been found by the cottonwood tree near Avhere the defendant was seen. The state then asked who the woman was, and he answered, Majorie Sides. The witness was then asked questions with reference to going to defendant’s home Avith other parties and searching the same — all of which testimony was offered over the objection of the defendant, and the defendant duly excepted; the substance of the testimony being that under some kind of an agreement between the defendant and the county attorney they went to defendant’s home, and the witnesses were permitted to testify as to flnding empty beer bottles, flasks which witness stated were whisky flasks, a 16-gallon keg, some hops, a crock, box with tin cans in it, and a copper container which wit> nesses Avere permitted to designate as a part of a still. The defendant objected to the testimony of the witnesses and the introduction of the articles found at his home, on the ground that the testimony did not tend to prove the charge in the information of transporting Avhisky, and, after his objection was overruled and the testimony admitted, the defendant moved “to strike from the record the testimony about what was found at defendant’s home for the reason that it is incompetent, irrelevant and immaterial, most of the stuff the witness had testified about is used in the manufacture and not transporting of whisky. The defendant is charged with transporting and not the manufacture of whisky. Which motion was overruled and defendant duly excepted.”

The state was then permitted, over the objection of the defendant, to go into the question of the experience of the witness as to the confiscation of stills, and as to whether or not the things found at defendant’s home are ordinarily used for the making of whisky, and for the manufacturing of liquor — which objection of the defendant was overruled and exceptions allowed. Several pages of the record are taken up with the offering of different articles found at the defendant’s home; over the objection of the defendant, and the overruling of the objection by the court, and defendant’s exceptions. All of the testimony offered with reference to the things found at defendant’s home did not in any way tend to' prove the charge of transporting whisky against the defendant, but only tended to show they could be used for other purposes. Witness then detailed what he said to the defendant at the time he came to the car near the bridge, telling him, in substance, that he had been sent out to arrest him for driving his car without a license tag.

The next witness for the state was W. C. (Bart) Claibourne; he stated he was assisting the sheriff as a peace officer, and in substance testified to the same facts as the witness S. E. Cook, and stated that, after the defendant had taken the lady in the car with him to the home of Mr. Smith, they went down under the bank of the creek, and by a cottonwood tree they found a shoe box, in which was a half gallon of whisky. On cross-examination Mr. Claibourne stated that, when he saw the defendant starting out from town, he was coming from the south side of Walters, and did not come from his home. There was nothing peculiar about the cottonwood tree where he claims the whisky was found in the shoe box, setting against the tree on the west side; it was not covered with anything, and was in plain view; it was about 45 or 50 steps from the east end of the bridge.

The county attorney then testified at length that, after he learned the whisky had been found at the bridge, he asked permission to search the defendant’s home, going into detail as to what took place between him and the defendant as to the searching of the home of the defendant. Many statements of the county attorney were contradicted by the defendant in his testimony.

C. O. Hooper was then called, and the county attorney went into’ detail as to what they found at defendant’s home, having him identify the different articles, including, among other things, State’s Exhibit J, which seems to have been a small glass, and, over the objection of the defendant, witness was permitted to state that it was the kind of glass that was usually used as a whisky glass. Witness also stated as to a conversation between the county attorney and the defendant that his recollection was the county attorney told the defendant, if they did not find more than a pint or half pint at his home, there would be nothing to it. The greater part of the record is taken up with testimony about the defendant’s home and what they found, describing articles from glasses up to the keg they found out on a workbench in the yard. Upon the question of transporting, the only evidence offered was the evidence of the witness who claims to have followed the defendant out the road and saw Ms car parked where there was a parking place near the bridge. They drove up to the car, and told the defendant they had been sent to arrest him for driving, a car without a license tag, and he said all light, he would take the lady in the car to the home of Mr. Smith and come back to town, which the proof shows he did, and then they claim they went down the bank of the creek, and by a cottonwood tree they found a shoe box containing a half gallon of whisky. Over the objection of the defendant, many questions were asked regarding the character of the woman that was in the car and about his being a married man.

The defendant called E. P. Haynes as a witness, who testified to seeing the defendant on the 23d day of December, 1926.

“He stopped his car a little southeast of where my truck was parked; the ground was ■ not altogether bare around where the defendant stopped his car; after he went back to his car I saw Mr. Claibourne and Mr. Cook drive up; I did not hear the conversation but I saw them searching the car; there was quite a bit of timber along the.creek bank where the car was stopped; the big cottonwood tree near where the car stopped was about 40 or 50 feet from where the defendant stopped his car, and something like 60 or 70 feet from the end of the Cache bridge.”

W. M. McAlester was called, and testified he saw Mr. Claibourne and Mr. Cook out near the Cache bridge as he was returning to his home the day of the alleged offense.

“I saw them as they were carrying a half gallon of whisky up the bank of the creek.”

The defendant in his own behalf stated he lived four miles west of Walters. About noon, the date of the alleged offense, he left Walters to take a lady to the Smith home in the country.

“I put alcohol in my new car, and as I drove along I saw the motor was getting hot, and I stopped about thirty steps east of the bridge to get some water; I picked up a can and made about three trips to get water; Emmett Haynes drove up in a truck while I was there and I asked him where he was going; about this time Mr. Cook drove up and I went to see what he wanted; he said I was charged with driving a car without a license tag, and he Avas instructed by the county attorney to arrest me; when he started to search the car I asked him if he had a search warrant, and he said he did not need to have a warrant, as I was under arrest; I drove on east where I was going and when I returned Mr. Claibourne was at the edge of town, and we went to the county attorney’s office, where we had a conversation with reference to their suspicion that I had been violating the prohibition laws. The county attorney wanted to search my house, and I told him he would probably find a little whisky that I had at home for my wife’s medicine. The first knowledge that I had that officers claimed to have found any whisky down on the creek was when I came to the county attorney’s office where they had a half gallon of liquor setting on the desk; while in the county attorney’s office I talked with the county attorney about the officers being after me for two years and this was the first charge they had brought against me.”

On cross-examination the county attorney was permitted, over the objection of the defendant, to ask the defendant with reference to his relations with Majorie Sides, and defendant replied that his relation with Majorie Sides was just like any other friend; defendant was then asked if he was not a married man, and he answered he was; defendant was then asked, “How do you spell Majorie? This writing on the box is Marge. I do not know who wrote this.” Defendant was then asked if be knew what size shoe Majorie wore, and answered, “I could not tell, I never bought her any.” All questions along this line were objected to by counsel for the defendant, the objections overruled, and defendant duly excepted. Defendant stated that where he went to get the water was where there had been a ford; that he did not go south from where his car was; he did not know who made the tracks the officers claim they saw that led to where they claim to have found the half gallon of whisky. The defendant was then interrogated at length with reference to articles that had been found at his home.

The defendant has assigned several errors alleged to have been committed by the trial court, the first being:

“That the trial court erred in overruling the motion of plaintiff in error for a new trial.
“2. The court erred in admitting incompetent, irrelevant and immaterial testimony offered on the part of the State over the objection of the defendant, to which evidence the defendant at the time objected.
“8th.. The court erred in permitting the county attorney to make improper statements and ask irrelevant questions tending to discredit the reputation of the defendant, and to bring his character in repute. Which were objected to by the defendant.
“9th. The court erred in refusing to give the defendant’s instruction One, as to' the law on circumstantial evidence.”

The information in this case charges the defendant with transporting one half gallon of whisky from a certain designated point in Cotton county to another point. The defendant’s plea of not guilty put in issue the question as to the guilt or innocence of the defendant for transporting a specific quantity of whisky alleged to have been transported by the defendant. There was no other question involved in this specific allegation except the question of whether or not the defendant was guilty of transporting the whisky. The question then to be determined by this court is, Is the testimony sufficient to sustain the conviction, and, second, did defendant have a fair and impartial trial, to which he is entitled under the laws and the Constitution of the state of Oklahoma?

Upon the question of the sufficiency of the evidence to convict the defendant, aside from the condition of the record, the proof amounts to nothing more than a suspicion. The testimony of the state fails to show either active or constructive possession of the whisky by the defendant. The only evidence which tends to show that defendant might he the owner is that the defendant had stopped his car on the public highway, where people stopped at will, and had gotten out of the car and was seen by the officers coming from the direction of the creek some distance away where the officers claim they found the whisky. The state’s testimony tends to show that the tracks led from where the defendant’s car was down to the cottonwood tree where the whisky was found and hack up the bank. Defendant’s testimony, uncontradicted, explains why he was at the place designated; he was driving a new car, and had put alcohol in it, and found his motor was getting hot, and had gone to the creek to get water to put in his radiator. One or two other witnesses who knew the defendant stopped or passed by while defendant was there, and defendant testified that, when the officers came up to his car, he had made the third trip to get the water, and had the can about half full of water. The state witnesses show that the whisky was in a shoe box, and that it was not concealed or covered with anything, setting by the side of a cottonwood tree. The defendant denies any knowledge of the whisky they claim was found, denies he was down to cottonwood tree, or that he had anything to do with the placing of the whisky where the officers claim they found it. The proof further shows that, when the defendant left town that day, he came from a southern direction, and not from the direction of his home. It is claimed the officers went out to arrest the defendant on a charge of driving a car without a license tag. So far as this record discloses, when the officers claim they found the whisky down on the creek, and after they had searched the defendant’s car and found no whisky in it, the charge of driving without a license tag was abandoned.

The next question to be determined is, Did the defendant have a fair trial, and was any of the téstimony that the court admitted over the objection of the defendant, which related to searching defendant’s home and taking articles found there, and describing, them and permitting the witnesses to give their opinion as to what they could be used for, admissible against the defendant upon a charge of transporting intoxicating liquor? We do not think the testimony of the witnesses with reference to what they found in defendant’s home admissible against the defendant where he was charged with the specific charge of transporting whisky, and we hold that the court erred in permitting any of the testimony with reference to the searching of defendant’s home and of the articles found, and permitting the witnesses to give their opinion as to what the articles could be used for.

It is fundamental that, where the defendant is put upon trial for one offense, he is to be convicted, if at all, by evidence showing him guilty of the offense charged. The proof of separate and distinct offenses is incompetent and inadmissible unless such’ evidence is admissible to show motive, intent, or some recognized exception. Certainly, where the state charges a particular transportation of intoxicating liquors, it is error to admit proof of other facts which might tend to show the defendant guilty of a separate and distinct offense. Wyrick et al. v. State, 37 Okla. Cr. 115, 255 Pac. 163; Miller v. State, 13 Okla. Cr. 176, 163 Pac. 131, L. R. A. 1917D, 383; Stanfield v. State, 30 Okla. Cr. 82, 235 Pac. 256.

The court erred in admitting the evidence of the witnesses as to what they found at defendant’s home and in admitting the articles found at defendant’s home, over his objections. There is no competent testimony to sustain the conviction.

There are other errors assigned, but it is not deemed necessary to consider them. The case is reversed and remanded.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    MONROE MAHAFFEY v. STATE.
    No. A-6605.
    Opinion Filed July 20, 1929.
    (279 Pac. 704.)

      W. T. Dixon and L. M. Gensman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen-., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Comanche county on a charge of having in his possession one still without his having resigtered the same with the proper United States officer, and without having obtained from said officer a certificate of said registration and without having filed the said certificate or a certified copy with the county clerk of Comanche county, and was sentenced to pay a fine of $500 and costs, taxed at $45.50, and be imprisoned in the county jail for a period of 30 days. Motion for new trial was filed, considered, and overruled, and the defendant has appealed to this court.

The defendant filed a demurrer to the information alleging that it failed to charge the commission of an offense against the laws of the state of Oklahoma, which demurrer was overruled, and defendant duly excepted. After a careful examination of the information, we hold that the information states sufficient facts to place the defendant upon his trial for having possession of a still without having procured the proper certificate of registration from the United States and filed the same with the clerk of his county, and the demurrer was therefore properly overruled. Defendant also filed motion to suppress the evidence secured by the state, on the ground that the same was procured by illegal and unlawful acts of the officers and that the search made by the officers was void and of no force or effect. The motion to suppress the evidence was overruled by the court, and defendant duly excepted.

When the jury was impaneled the defendant objected to the introduction of any testimony for the reason that the information did not state a cause of action. The court overruled the same, and defendant excepted.

Jess Ansel was called as a witness for the state, and testified: He was sheriff of Comanche county; he knew the defendant; on the 6th day of February, 1927, the defendant lived about five miles southwest of Cache in Comanche county;

“We went to the Mahaffey place and asked Mrs. Ma-haffey if he was at home, and she said he was not; Mrs. Mahaffey said we could go ahead and search the house, and I told her we did not care to look in the house, so we started out and found a still on the place; it was in the blackjacks between 100 and 200 yards from the house; it looked like it had not been used for some time. It was clean and not black. The capacity was about 250 gallons. We destroyed it.”

On cross-examination witness stated that defendant lived on the southeast quarter of the section.

“There was a road on the south of defendant’s place; it was very sandy and not traveled much; I never traveled the road on the east side of the place. The blackjack and shenery is very thick. Mr. Mahaffey was not at home when we got there, but Mrs. Mahaffey told us to go through the house; we did not have a search warrant; I went west ofethe house around through the timber; the timber was .very thick. I could tell I was southwest from the house, but I could not see the house from where I found the boiler; could not see the road that run down from the house; the blackjack and shenery was so thick you could be right at the road before you could see it. I know I was southwest of the house about 100 or 200 yards; it might have been farther; after I found the boiler, I drug it to the open space before I chopped it up; when I found the boiler I marked the road from it and found the other boys and went back; I made the tracks so I could find the way back to where the boiler still was. I could not see in the thicket where I was until I stooped over and looked under the brush.”

Harry Summers testified to going to the Mahaffey home with the sheriff, Jess Ansel, and that they found some empty barrels somewhere on the place; he could not tell definitely where they found them. Many questions were propounded to this witness which were objected to by the defendant, some were sustained by the court and others overruled; the greater number of questions being in no way whatever questions that tended to establish the charge against the defendant. The witness further testified the still he claims they found was made of copper.

“The thicket was very dense; I believe the brush begun about 75 or 100 yards west of the house; we tracked Mr. Ansel’s tracks to the still when we went back out with him; could not see the road from the house where the still was found; could not see the house.”

A. W. Elrod, called as a witness, stated he knew where defendant lived, but had never known the defendant before he went out with Mr. Ansel and Mr. Summers to the defendant’s home. Questions were propounded to this witness and objected to by the defendant with reference to some barrels found in the neighborhood of this defendant’s farm;

“When I first saw the still it was in some shenery in the scrub oak timber; we drug it out through the shenery to the car and cut it up; I saw hogs and stock out there first one place and then another.”

On cross-examination witness stated there was some plowed ground on the place, but could not say where it was located;

“It was pretty close to the house; it was about 100 to 125 yards from the section line on the east side of the place up to where this road run around on the west side of the redeemed land; I never paid much attention to that; this was about a half mile from the house, the road east was a traveled' road, but it was wet and somewhat hard to travel, and the trail came down by the defendant’s house running east and west; we could see they were detouring, but we did not know if they were traveling by there; the remainder of the 160 acres not in cultivation is covered in shenery and scrub oaks; I could not tell you the number of acres.”

The defendant in his own behalf testified that he resided three miles south and 2 miles west of Cache, Oklahoma; he had resided on the place for about 24 years; that his business was raising mules, cattle, and hogs;

“I have an Indian quarter south of my house and a quarter northeast of my house, and 120 acres in cultivation; I have 20 acres of my own farm in cultivation; I reside on the southeast quarter; the 20 acres that is broke out is in the southeast comer of the place; there is 5 acres orchard and 1 acre garden spot that is 20 steps from the house.”

Witness then described a plat he had made of the place showing the relative land to the defendant’s part of the place; defendant stated:

“The 80 acres in hog pasture, and going west to where I fenced my hogs there, is 10 or 15 acres that you can see from the southeast corner of the pasture; all that is in there is practically blackjack or shenery; I was not at home Sunday when the officers came; I left home about 9 or 10 o’clock in the morning with Sidney Biles; he is a cattle buyer; when we left we first went down to where the cattle were; when we came home my wife advised me that the officers had been to my place, and she told me which way they went; Mr. Biles and myself started out, and I guess we were gone about an hour; we got away down in the southwest part of the place, and Mr. Biles called me, and when I went to where he was, we saw where something had been dragged out in the open, and looked like there was a print of an axe, and judge there is where they found the still. Then we come back out east of the road (indicating on the map that had been introduced) and up this road to the house; when we got to the road we were about 150 yards from the section line, and it was about 150 yards from this road to where they claim the still was found; Mr. Biles found the place; I did not know anything about the still being there, had nothing to do with it, and it was not my still.”

On cross-examination the defendant stated the still ■was found about 300 yards from his house; that he and his boys did most of the work.

“I had some sows that was going to bring pigs on the land where they claim the still was found; the barrels they claim to have found was about 300 yards south of the house; it was south and west of where they claim they found the still; I have lived on this quarter about 24 years.”

This is in substance the testimony of the defendant.

Sidney Biles was called as a witness for the defendant, and stated he was a cattle buyer; he went to defendant’s home on the 6th of February, 1927, arriving there about 8 o’clock in the morning; he had been out to the place once or twice; that the land was sandy and blackjack land.

“The Sunday morning I went out Mr. Mahaffey went with me to Fred’s place to look at some hogs; I found the place where they claim the still was found, and it was about 150 or 200 yards out to the road, and it looked like a quarter of a mile to the house; you could not see the section line or the field from where they claimed the still was found; I would say of the 160 acres there is about 90 or 100 acres that is a jungle; the only part that is not brushy is in cultivation.”

On cross-examination witness stated they were about two hours looking for the place the officers claim they found the still; he lived 20 miles from the Mahaffey place; he lived six years in Lawton.

“When we started out, we went some yards together, and I turned around and got lost from him and found myself by calling Mr. Mahaffey.”

The defendant has assigned ten errors alleged to have been committed by the trial court. The seventh assignment is:

“That the evidence introduced fails to establish the commission of any public offense against the law of the State of Oklahoma by the defendant.”

The ninth assignment is:

“That the court erred in overruling and in not sustaining the motion for a new trial filed by the defendant.”

These two errors will be considered together, as they relate to the same question. The substance of the testimony as set out herein is that the officers went to defendant’s home Sunday morning, without any charge against the defendant, without any warrant for his arrest, or to search the premises. They contend when they arrived at defendant’s home his wife was at home, and the sheriff stated he wanted to look over the place, and she told him to go ahead and look, and as a result they claim down in the thicket some distance from the house they found the still; the officer claims that the woods and brush were so dense they could not see any distance, and he had to stoop down in order that he might get below the brush and see the still, which he claims he found and afterwards chopped up. Neither of the officers could definitely fix the distance they claim the still was located from defendant’s home, but all agree it was quite a distance in the thicket. The testimony further shows there was no indication that the still had been used; it was bright and clean., and there was no testimony showing any trace of a road leading to and from where the still was located, and no contention made by the state that indicated that the defendant or any one from his home had been going back and forth to where they claim the still was found.

Where a still is found on land owned or controlled by defendant, the presumption is it belongs to him; but, after a careful consideration of all the testimony in this case and circumstances surrounding the location of the still found, we do not believe the testimony sufficient to show beyond a reasonable doubt the defendant owned or had possession of the still. The only suspicious circumstance that has any tendency to connect the defendant with the still is that it was in the jungle on a tract of land owned or controlled by the defendant a distance from defendant’s home estimated by the witnesses all the way from 200 yards to a quarter of a mile; the house could not be seen from where the still was found, nor could the traveled road.

The question for this court to determine is: Is there sufficient testimony to sustain the conviction? In order to do so we must infer the still claimed to have been found by the officers was in the possession of the defendant, as the proof does not show it was. The indications are the defendant is guilty; at least, there is a strong suspicion of guilt; hut we hold the evidence falls far short of that convincing character that warrants a conviction of guilt. It will be observed that there is no direct evidence tending to show that the defendant had either actual or constructive possession of the still. The testimony in this case is circumstantial, and circumstantial evidence is legal, and if it is of such quantity and quality as to establish the defendant’s guilt beyond a reasonable doubt, it will sustain a conviction. It is a rule in this state, however, that where conviction is sought upon circumstantial evidence alone, the circumstances proved must not only he consistent with each other and with the hypothesis of defendant’s guilt, but inconsistent with any rational hypothesis other than his guilt. We hold the evidence wholly insufficient to support the judgment. Cooksey v. State, 34 Okla. Cr. 174, 245 Pac. 1001; Cook v. State. 32 Okla. Cr. 4, 239 Pac. 682; Davis v. State, 32 Okla. Cr. 436, 241 Pac. 500; Lemke v. State, 33 Okla. Cr. 34, 241 Pac. 833.

The evidence on the part of the state is insufficient to sustain the charge in the information, and the court should have sustained the demurrer to the evidence and advised the jury to acquit the defendant.

Other errors are assigned by the defendant, some possessing merit, others without merit; but, in the view we take of this record, it is not necessary to consider them.

The judgment of the lower court is reversed.

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


text:
    J. D. CHARLES v. STATE.
    No. A-6582.
    Opinion Filed July 20, 1929.
    (279 Pac. 708.)
    R. S. Howe, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of selling a soda pop bottle full of whisky to one Harry Morris, and was sentenced to pay a fine of $100 and he imprisoned in the county jail for 30 days. Record was perfected, and the defendant has appealed to this court.

Harry Morris testified he was a deputy sheriff; he came over to Hugo from Soper; Homer Maloney and he went down into what is known as negro town in Hugo, and defendant sold him a soda pop bottle full of whisky, for which he paid $1. Homer Maloney testified, in substance, to the same as did Harry Morris. They did not arrest the defendant at the time they claimed they purchased the whisky, but later on E. L. Ellis, the sheriff, went down to where they claim the defendant sold them the whisky, and they pointed the defendant out to the sheriff, and the sheriff arrested the defendant and placed him in jail.

In the trial of the case, when the state offered testimony as to what had been sold by the defendant, the defendant moved the court to require the whisky to be produced in court. When that was done, and while the testimony was being taken, the county attorney asked leave of the court to indorse the name of E. L. Ellis as a witness on the information, which was objected to by the defendant, on the ground that it was a surprise and that the county attorney had known all the time who the witnesses were and what he expected to prove by each of them. The motion of the county attorney was granted, and the name of E. L. Ellis indorsed on the information, and the defendant duly excepted. El L. Ellis as a witness produced in court four soda pop bottles claimed to contain whisky, one of which was the one witnesses claim they bought from this defendant but they could not state which one of the bottles they bought from this defendant. This testimony was introduced over the objection of the defendant. When the state closed its testimony, the defendant closed without offering any testimony.

Several errors have been assigned by the defendant, the first being:

“That the court erred in overruling the defendant’s motion for a new trial. To which the defendant excepted at the time and still excepts.”

The testimony as to the sale of whisky in this case is positive and sufficient to sustain a conviction. The defendant complains of the error of the court in permitting the name of E. L. Ellis, the sheriff of Choctaw county, to be indorsed on the information after the trial had begun and the greater part of the testimony had been taken. We do not think this is sufficient error to warrant this court in reversing the case, and especially in view of the record made by the defendant. If the defendant had asked time in- which to prepare his defense in view of the fact that the state asked to indorse the name of E. L. Ellis as a witness on the information after the trial had begun, or asked for continuance on the ground of surprise in order to meet the testimony of ■ the defendant and the court had refused to grant said motion of defendant, then the question as to the action of the trial court could be considered by this court, but the record does not disclose that the defendant made such a motion, and only objected to the court permitting the name to be indorsed on the information on the ground that it was a surprise to him. It would have been the better practice for the county attorney to have asked the court for permission to indorse the name of the witness Ellis on the information before the case was called for trial, as he should have known, if he did not, that the sheriff had the whisky alleged to have been purchased in his possession. The right of the state to have the name of the witness indorsed on the information after the trial has begun is within the sound discretion of the trial court, and, unless the record shows that thé court abused that discretion, this court will not disturb the verdict on that ground. The objection of the defendant to the indorsement of the name of the witness on the information was properly overruled.

It is further contended by the defendant, and there is some merit in his contention, that the court should not have permitted the introduction of the four bottles of whisky in evidence that it did, as the defendant was only charged with selling one bottle. Under the statute, it is the duty of the officers, when they seize whisky, or come into the possession of the same, to label it so as to identify it, and in this case the bottle they claim to have purchased from this defendant had not been labeled and preserved as provided by our statute. In view of the record in this case, we do not think this error sufficient to warrant a reversal of this case.

The defendant also complains of the action of the county attorney in his argument to the jury, in which he uses the following language:

“Nobody has told you anything to the contrary. We ask that the liquor be brought in and it has been brought in and showed to him. Witnesses have testified that it is liquor and there is not any denial of anything that has been said to you.”

We do not think the language used is such as could be literally interpreted to mean that the county attorney had reference to the defendant when he made the statement, yet inferentially we are bound to conclude that he had the defendant in mind when he made the statement. He was getting very near the dividing line where the court prohibits the question of the failure of the defendant to testify being mentioned in the argument. The county attorney should refrain from in any way whatever making any statement that would be prejudicial to the rights of the defendant where he failed to testify. However, in this case we do not think the statement made comes within the rule prohibiting the county attorney referring to defendant’s failure to testify, and the objection of the defendant was by the court properly overruled.

There are other errors complained of by the defendant. After a careful consideration of the record, we hold . they are without merit. In view of the record in this case, we believe the ends of justice would be properly met by a modification of the sentence from a fine of $100 to $50, and imprisonment in the county jail for 30 days, and, as so modified, the judgment is affirmed.

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


author: CHAPPELL, J.

text:
    GEORGE BENNETT et al. v. STATE.
    No. A-6477.
    Opinion Filed July 20, 1929.
    (279 Pac. 693.)
    Ben F. Williams and Crawford Cameron, for plaintiffs in error.
    J. D. Grigsby, Jr., Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, wTere convicted of manufacturing intoxicating liquor, and their punishment fixed at a fine of $100 each and each to be imprisoned in the county jail for 4 months. The defendant contends that the evidence is insufficient to support the verdict of the jury, and contend that the court erred in overruling their demurrer to the evidence and motion to instruct the jury to return a verdict of not guilty.

As to the defendant F. C. Cox, we are of the opinion that the court did err in overruling such motion. A careful reading of the record discloses no competent testimony connecting the defendant Cox with the possession of the still or the manufacture of liquor.

The evidence of the state as to the defendant Bennett is that when the officers were within about 50 yards of the still, the' defendant Bennett was seen to flee from the immediate vicinity of the still and escaped from the officers who were trying to arrest him at the time. A light rain had fallen the night before and fresh tracks led from the residence of the defendant to the still. After the officers had taken possession of the still, they saw the two defendants leave the residence of the defendant. The officers got in their car and pursued them for about 5 miles, where they overtook them and arrested them. The defendants, of course, denied that they knew anything about the still or had anything to do with it.

The defendants first contend that the court erred in admitting, over the objection of the defendants, the seárch warrant, liquor, and articles found on the land not described in the complaint and search warrant. The officers had a search warrant for a vacant quarter section of land supposed to be under the control of defendant Bennett. On this land they found a jug of whisky buried in the sand. On the adjoining quarter section of land, not controlled or in the possession of either of the defendants, the officers found a still in operation, with mash and whisky and jugs and glass containers for the same. . The officers claimed they found this still by following fresh tracks in a path leading from the defendant Bennett’s house to the still. It does not appear from the evidence who was the owner or in possession of the vacant land upon which the still was found. This court has repeatedly held that the immunity from an unlawful search and seizure is personal, and that the defendant cannot complain of the unlawful search of the premises of another. In addition to the fact that the defendants could not complain of the search, we are of the opinion the search was legal; no search warrant being necessary to search outlying and vacant premises.

The defendant next complains that the court erred in permitting the witnesses Bud Jennings and Cory Adams to testify that they searched the car of the defendant George Bennett and found therein a rubber hose and small tin funnel, for the reason that they searched the car without a search warrant.

While the evidence against the defendant Bennett is circumstantial, it is sufficient to support the verdict of the jury. This court has repeatedly held that, where the evidence is conflicting and there is any evidence in the record to support the verdict of the jury, the question of the sufficiency of the evidence comes to this court upon the question whether under the law there is any evidence to support the verdict. Burrows v. State, 43 Okla. Cr. 256, 277 Pac. 685.

The evidence being sufficient to support the verdict, the cause is affirmed as to George Bennett, and reversed as to F. C. Cox.

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


text:
    MACK GRAVITT v. STATE.
    No. A-6603.
    Opinion Filed July 20, 1929.
    (279 Pac. 968.)

      Hodge & Schenk, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of selling intoxicating liquor, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days. The cause is now on appeal in this court.

The defendant was indicted by a gi*and jury in Carter county, and on motion of the county attorney the indictment was transferred to the county court for trial, as provided by law. The first error complained of by the defendant is that the grand jury which returned the indictment against him was not drawn, impaneled, and sworn as required by law. On the 2d day of September, 1926, Hon. W. F. Freeman, district judge in Carter county, made the following order:

“In the District Court of Carter County, State of Oklahoma.
“Order.
“Whereas, a request has been filed with the district court in and for Carter county, state of Oklahoma, calling for the grand jury; and whereas, such request is presented by petitions signed by more than one hundred’ taxpaying voters of said county and state; and whereas, in accordance with the provisions of our Constitution providing for a grand jury, it is the mandatory duty of the district judge to convene the grand jury; Now, therefore, it is ordered and directed that the deputy clerk, Jesse Lasley, and the undersheriff, T. B. McLish, do forthwith proceed to draw from the jury box of said county and state the names of (24) jurors, and that the said deputy clerk, Jesse Lasley, summon said jurors to appear at the courthouse at 9 o’clock a. m. on Monday, the 13th day of September, 1926, said service to be made in accordance with the laws of this state in such cases made and provided; and it is so ordered. Done in chambers this the 2d day of September, 1926.
“W. F. Freeman.”

It appears from' the case-made that this order was duly filed in the office of the court clerk of Garter county on the day the same was issued. Fay Wallace, court clerk, testified that she notified Judge Freeman that she would be out of town, and requested the judge to issue the order to Jesse J. Lasley for the drawing of the grand jury, in case the judge desired to make the order in her absence. The question presented for the consideration of this court is: Does the order issued by the judge of the district court, and the proceedings had thereunder, substantially comply with section 3517, Comp. St. 1921, which reads as follows:

“* * * Prior to or during any term of court at which a grand or petit jury shall be required, the judge of the district court shall certify to the clerk of the district court the number of jurors that will be required for either a grand or petit jury and shall direct said jury to be drawn and summoned at such time as he may indicate. Upon receiving such order, the clerk of the district court, or his deputy, shall notify the sheriff, or his deputy, of the time of the drawing of such jury, and the sheriff, or one of his deputies, and the clerk of the district court, or one of his deputies. * * *”

Instead of the order for the calling of the grand jury being directed or addressed to the clerk of the district court, as the statute provides, it does not appear to have been addressed to anybody. The record does disclose however that the order was filed in the office of the court clerk on September 2, 1926, and recorded in the District Court Journal No. 22 at page 171. While this procedure was irregular, it constituted a substantial compliance with the provisions of the statute that the “district judge shall certify to the clerk of the district court the number of jurors required.” In this order the number was given as 24, and the direction as to the time said jurors were , to be summoned was given, and they were summoned to appear at the time directed in the court’s order, and did appear at that time. The question is: Did the direction that the deputy court clerk and the undersheriff draw this jury from the box render the panel void?

Section 3517, supra, expressly provides that the names of the jurors may be drawn from the box either by the clerk or his deputy, or the sheriff or one of his deputies. There is no provision that the deputies may only act in the absence of or because of the disqualification of their superiors. Section 3526, Comp. St. 1921, provides:

“A substantial compliance with the provisions of this chapter shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder, unless the irregularity in drawing, summoning or impaneling the grand jury resulted in depriving a defendant of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial. * * *”

These are salutary provisions of the law, designed to avoid expense to the taxpayers and delays in judicial procedure. It is not contended that any of those persons who served on the grand jury that returned the indictment in this case were not regularly selected by the jury commissioners, or that there was not a strict compliance with the law in the manner in which their names were drawn from the box by the deputy court clerk and deputy sheriff, nor is it contended that any of the grand jurors did not possess any of the legal qualifications as grand jurors; the contention of the defendant being that, since the provisions of section 3517 were not literally complied with, therefore the grand jury was not legally drawn, impaneled, and sworn as provided by law.

In the case of Hess v. State, 73 Ind. 537, that court in substance held that the statutory inhibition against the clerk issuing, without an order of the judge, a venire for the attendance of grand jurors, constitutes no restriction on the power of the court to organize the panel, if found in attendance, although they have come in response to a summons issued without prescribed order therefor.

In State v. Marsh, 13 Kan. 596, that court held in substance that, while a grand jury should only be called by order of the district court, yet when one has been called by order of a judge in vacation, and has been impaneled, charged, and sworn by the court, it is a de facto grand jury, and under the statutes no objection to an indictment can be raised on that ground, where the irregularity in the opinion of the court does not amount to corruption.

In State v. Connell, 49 Mo. 282, the court in,substance says that under the statute of Missouri the fact that no order of the court for the summoning of the grand jury was made was neither a ground for challenge nor for setting aside the indictment.

In the case of State v. Pollock, 5 Okla. Cr. 26, 113 Pac. 207, this court had before it the question of the validity of an indictment returned by a grand jury composed of two men first drawn and excused, and then recalled for service when it was necessary to repanel the grand jury, because it was discovered that one member was a minor. In commenting on the construction to be given our jury statute, this court in part said:

“The question which now presents itself is as to whether or not the court had the power to temporarily excuse B. E. Stone and B. L. Bobertson, and to place them on the panel of the reorganized grand jury. We fully agree with counsel for appellee that, under the common-law doctrine of a strict construction of penal statutes which prevails in most of the states of the Union, such action upon the part of the trial court would not only be illegal, but would also be ground for reversal, but the authorities cited by counsel for appellee are not applicable to the criminal jurisprudence of Oklahoma.
“Section 6487, Snyder’s Comp. Laws Oklahoma 1909, is as follows: ‘The rule of common law that penal statutes are to be strictly construed has no application to this chapter. This chapter establishes the law of this state respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to promote its objects, and in furtherance of justice.’
“Section 8995, Snyder’s Comp. Laws Oklahoma 1909, is as follows: ‘A substantial compliance with the provisions of this act shall be sufficient to prevent the quashing or setting aside of any indictment of a grand jury chosen hereunder unless the irregularity in drawing, summoning, or impaneling the grand jury resulted in depriving a defendant of some substantial right, but such irregularity must be specifically presented to the court on or before the cause is first set for trial.’
“Section 6957, Snyder’s Comp. Laws Oklahoma 1909, is as follows: ‘On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.’
“Under these sections, it is plain that the common-law doctrine of a strict construction of penal statutes lias no application to the criminal laws of Oklahoma, and, indeed, should have none. * * * When the law has been substantially complied with, and it is not shown that the defendant has been deprived of some substantial right, he will not be heard to complain. That this is the modern doctrine there can be no question.
“ ‘But statutes regulating, the manner of making jury lists and the selection and drawing of grand jurors are frequently held to be directory merely and not mandatory; and it may be laid down as a general rule that courts do not look with indulgence upon objections to irregularities in selecting or drawing grand jurors committed without fraud or design and which have not resulted in placing upon the panel disqualified jurors, and that mere irregularities not affecting the competency of any of the jurors, at least such as do not amount to a substantial departure from the statutory requirements, but show an honest intention to conform thereto will not affect the validity of their proceedings. 20 Cyc. p. 1306.
“The reasons for this rule of law are obvious. The grand juries do not try cases, but merely prefer charges against the accused. The manner of their selection is ordinarily of little consequence to a defendant, he being entitled to claim only fair and impartial grand jurors who possess the necessary qualifications, while, on the other hand, it is of great consequence to the administration of justice that it shall not be delayed by mere technical objections.”

The rule laid down in Pollock v. State, supra, has been followed by this court in Middleton v. State, 16 Okla. Cr. 321, 183 Pac. 626, and Herndon v. State, 16 Okla. Cr. 586, 185 Pac. 701. Under section 3517, Comp. St. 1921, it was the duty of the district judge to direct the order for the drawing of the grand jury to the court clerk, and to direct the court clerk and the sheriff to draw the needed jurors from the jury box. We can see no good reason for the judge failing to follow the provisions of section 3517, and are not approving this kind of procedure. We are only concerned with one question, and that is : Was the order of the judge and the doings of the deputy court clerk and deputy sheriff a sufficient compliance with the law to make the grand jury returning the indictment a legal grand jury? Since the defendant raises no question of the qualifications or the impartiality of the grand jurors, and relies solely on the objection that the order of the court did not comply with the provisions of section 3517, supra, we are of the opinion that there was a sufficient compliance with the law to make the grand jury a legal one. The motion of the defendant to quash the indictment on the ground that the grand jury was not drawn, impaneled, and sworn as provided by law was properly overruled.

The defendant next contends that the indictment is duplicitous, and that the court erred in not requiring the state to elect which offense they would seek a conviction upon. The charging part of the indictment reads as follows :

“That Mack Gravitt, in the county and state aforesaid, on the day and year aforesaid, did knowingly, willfully and unlawfully sell one drink of spirituous liquor, one drink of vinous liquor, one drink of malt liquor, one drink of fermented liquor and one drink of intoxicating liquor, to wit; one drink of com whisky, to one G. W. Tucker, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

Where the statute enumerates several acts disjunc-tively, Avhich separately or together shall constitute the offense, the indictment, if it charges more than one of them, which it may do, and that, too, in the same court, should do so in the conjunctive. Adams v. State, 5 Okla. Cr. 352, 114 Pac. 347; Hogan v. State, 42 Okla. Cr. 188, 275 Pac. 355.

The defendant next contends that the indictment is defective because it did not charge the price at which the liquor was sold. The gist of the offense is the sale of intoxicating liquor, and it is never necessary in an indictment to allege the price for which the liquor was sold. It is sufficient if the evidence offered by the state under a charge of sale shows that a consideration was paid. Fletcher v. State, 2 Okla. Cr. 300, 101 Pac. 599, 23 L. R. A. (N. S.) 581.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of not being fundamental, the cause is affirmed.

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


text:
    ALEX WILKERSON v. CITY OF LAWTON.
    No. A-6597.
    Opinion Filed July 20, 1929.
    (279 Pac. 972.)

      L. M. Gensman, for plaintiff in error.
    Black & Black, for defendant in error.
   DAVENPORT, J.

The plaintiff in error, Alex Wilkerson, was arrested in the municipal court of the city of Lawton, Comanche county, Oklahoma, upon a complaint that charged him with having violated a city ordinance, in that the said Alex Wilkerson did unlawfully and willfully run a joint, contrary to the ordinance of the city of Lawton, in such cases made and provided, and against the peace and dignity of the city.

On the 22d day of February, 1927, the defendant was tried in the municipal court, found guilty and his punishment assessed at a fine of $20. The defendant tendered his appeal bond within the time provided by law, which was by the court approved, and a transcript certified by the municipal judge to the county court of Comanche county. The transcript was filed on the 26th day of February, 1927, in the county court. On March 24, 1927, Owen Black, attorney for the city of Lawton, filed a motion to dismiss the appeal; the ground of his motion being that no written notice or demand for said appeal was filed, as required by law. The motion was considered by the court, and sustained, and the said Alex Wilkerson appeal was dismissed.

The only question in this case is, Did the said Alex Wilkerson comply with the statute, and give the proper notice in order to perfect his appeal? Sections 4654 and 4655, Comp. St. 1921. read as follows:

“4654. * * * Such appeal shall be allowed upon the filing of a written demand by the defendant, at any time within ten days after the rendition of such judgment, provided, that such appeal shall not stay the execution of such judgment unless within said ten days the defendant shall enter into recognizance payable to said municipality, to be approved as to amount, form and sureties by the trial judge in the penal sum double the amount of fine and costs, but not less than fifty dollars ($50.00).”
“4655. * * * Upon the filing of such written demand, as herein provided, such appeal shall be perfected, and upon the filing and approval of such recognizance, as herein provided, all other proceedings before such municipal judge shall cease and be stayed and it shall be the duty of such municipal judge within five days thereafter to deliver to the county court such written demand and recognizance, if given, and a transcript of the proceedings in such case and all of the papers and documents appertaining thereto; and such court shall file the same; provided, however, the failure upon the part of such judge or clerk to perform any duty provided shall in no manner affect or make invalid such appeal.”

There is nothing in the transcript to show that the plaintiff in error, Alex Wilkerson, filed any written demand at any time within ten days after the rendition of the judgment in the municipal court of his intention to appeal from the judgment. The transcript does show that he filed an appeal bond.

There are three errors assigned by the plaintiff in error as grounds for a reversal. From an examination of the record, the third is the only error we deem necessary to consider, which is as follows:

“That the court erred in sustaining the motion of the defendant in error, for the reason that plaintiff in error had perfected his appeal as provided by law. All of which are shown by the transcript and record herein-before referred to.”

Sections 4654 and 4655, supra, define what is necessary to be done to perfect an appeal from the municipal court to the county court. Upon an examination of the record, we find no demand in writing was filed by the plaintiff in error with the municipal court of his intention to appeal from its judgment to the county court. Statutes providing the manner by which an appeal may be taken are mandatory, and, unless complied with, the appeal will be dismissed. Everts v. Town of Bixby, 24 Okla. Cr. 176, 103 Pac. 621; Sarten v. State, 18 Okla. Cr. 107, 193 Pac. 743; Duncan v. State, 23 Okla. Cr. 387, 215 Pac. 218.

There being no written demand filed as required by the statute to appeal from the municipal court to the county court, the county court was without jurisdiction to consider the appeal, and the trial court did not err in sustaining the motion to dismiss.

For the reasons stated, the judgment of the trial court is affirmed. ,

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


author: EDWARDS, P. J.

text:
    BILL WILSON v. STATE.
    No. A-6725.
    Opinion Filed June 8, 1929.
    Rehearing Denied July 20, 1929.
    (278 Pac. 1117.)

      Amil H. Japp and O. O. Campbell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county of grand larceny and his punishment fixed at a term of one year in the state penitentiary.

The judgment was rendered in February, 1927, and the appeal was lodged in this court in August, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. The information charges defendant with the larceny of two hound dogs. The writer of this opinion being a native of the state of Arkansas, and knowing his hound dogs, approached the record with the dogmatic opinion that as an article of commerce, so far as paying dividends is concerned, the ownership of a hound dog is a distinct liability and not an asset, and that owning two hounds is inviting calamity. In these degenerate days the hound dog, like the poodle and the Pekinese, has become a luxury and not a necessity. It is shown by the testimony that defendant in one and the same transaction did take, steal, and entice away from the owner, two hound dogs, and he admits that a short time thereafter he sold them for $75, lawful money of the United States. Dogs have frequently been the subject of litigation in cases of both law and equity as well, as in criminal causes, and a considerable legal literature upon the subject has arisen. See Strong v. Ga., etc., Ry. Co., 118 Ga. 515, 45 S. E. 366; Patton v. State, 93 Ga. 111, 19 S. E. 734, 24 L. R. A. 732; State v. Harriman, 75 Me. 562, 46 Am. Rep. 423.

At common law a dog was not the subject of larceny. 3 C. J. p. 16, § 4; People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386. Sections 2117 and 2118, Comp. St. 1921, provide in substance that a dog when listed for taxation is to be considered personal property for all purposes, and that the degree of the offense for the larceny of a dog is determined by the amount for which such animal is listed for taxation.

No fundamental error being apparent, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JOE TAYLOR v. STATE.
    No. A-6755.
    Opinion Filed June 1, 1929.
    Rehearing Denied July 20, 1929.
    (278 Pac. 1117.)
    Curran, Sturgis & Hill, Jno. V. Roberts, and L. E. Roseboom, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, wras convicted in the district court of Garfield county of manslaughter in the first degree and sentenced to serve a term of eight years in the state penitentiary.

Only one assignment of error is argued, that the court erred in submitting to the jury the issue of manslaughter in the first degree.

The information contains the usual charge of murder by shooting without authority of law, and with a premeditated design to effect the death of one Alberta Williams, under the first subdivision of section 1738, Comp. St. 1921.

The record here discloses that at the time of the homicide, Jackson Jordan, a colored man, lived a short distance out of the city of Enid. Several people had gathered at his house probably to indulge in a crap game. In this party was Alberta Williams. Some time after the party had gathered, some men came to the south door of his house and demanded entrance. He directed them to the east door, and when he opened it they began shooting, one of the shots striking Alberta Williams, who fled from the scene and was found in a dying condition some 200 yards away. The state presented the theory that the party that did the shooting came there for the purpose of hi-jacking those at the house. One Thompson, who at the time of the trial was serving a term in the penitentiary for bank robbery, testified that he, one Jones, and the defendant went to the place for the purpose of holding up a dice game which they expected to be in progress, and when they attempted to do so the shooting followed in which Alberta Williams was killed, and Jordan, at whose house the trouble occurred, was seriously wounded, and defendant also was wounded. Defendant testified that he went to the place alone on the invitation of Jordan to get some beer, and as be arrived the robbers appeared and forced him into the house ahead of them, and in the shooting affray he was wounded in the shoulder by a shotgun in the hands of Jordan.

Defendant contends that, while the information does not set out the circumstances of the crime charged, the proof brings the case within the third subdivision of section 1733, Comp. St. 1921, that is: a homicide committed by one while engaged in the commission of a felony, and that under this subdivision there is no middle ground, the crime is murder or nothing; that the submission by the court to the jury of instructions covering manslaughter in the first degree permitted the jury to compromise and to dicker away the liberty of defendant and deprive him of a reasonable and well-founded doubt as to his guilt, citing: Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956; Lovejoy v. State, 18 Okla. Cr. 335, 194 Pac. 1087; Bandy v. State, 102 Ohio St. 384, 131 N. E. 499, 21 A. L. R. 594; Dickens v. People, 67 Colo. 409, 186 Pac. 277; Jordan v. State, 117 Ga. 405, 43 S. E. 747; People v. Schultz, 267 Ill. 147, 107 N. E. 833; Parker v. State, 102 Miss. 113, 58 So. 978; Pliemling v. State, 46 Wis. 516, 1 N. W. 278; Berry v. State, 122 Ga. 429, 50 S. E. 345. These cases in substance hold that, where the evidence raises no issue but that of guilt or innocence of the defendant of the crime of murder, presenting nothing to reduce the homicide to any of the lower degrees, it is reversible error to submit to the jury the lower degree of the crime; that to do so' permits the jury to compromise and fail to do justice by a conviction for murder or an acquittal. According to defendant’s theory, the only matter at issue was the identity of defendant as one of the participants in the attempted robbery; that if he was a participant he is guilty of murder, and, if not a participant, he is entitled to be acquitted. The Leseney Case, supra, was one in which the homicide was committed by the administration of poison. The Lovejoy Case, supra, was one in which the homicide, if committed, was in the perpetration of an abortion. The state insists that it is immaterial what .view the court may take of the evidence in the instant case; that even if defendant and those engaged with him were engaged in the commission of a felony, to wit, robbery, and while so engaged killed the deceased, he will not be heard to complain that the court erroneously submitted the issue of manslaughter in the first degree. For if the court does submit the issue of manslaughter in the first degree, it is error favorable to defendant. This is the issue presented by the record and briefs before us.

There is considerable force in the argument of counsel to support their contention. Where in the trial of an accused for a charge of murder by the administration of poison or where the crime is unquestionably perpetrated in the commission of a felony, so that under no view of the evidence or the law applicable could the accused be guilty of anything less than murder, the trial court should not submit the issue of manslaughter. But where under any view of the evidence the crime might be reduced to the lowed degree, the issue of manslaughter should be submitted. If the court out of an excess of precaution does submit the issue of manslaughter in a case where the crime is unquestionably murder, still, since the error in so doing is in defendant’s favor, he has no cause to complain.

Section 2740., Comp. St. 1921, provides:

“The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.”

The Leseney Case and the Love joy Case are not in line with the general trend of the decisions in this state both prior and subsequent to those cases. Lytton v. State, 12 Okla. Cr. 204, 153 Pac. 620, and authorities therein cited. The Leseney Case while not directly overruled was criticized in the case of Irby v. State, 18 Okla. Cr. 671, 197 Pac. 526, where it was said:

“The only remaining assignment is, ‘Error of the court in submitting to the jury the question of manslaughter.’ The record shows that the defendant reserved exceptions to the instructions submitting the issue of manslaughter in the first degree. It is contended that under the evidence the defendant should either have been convicted of murder or acquitted, and that no instructions for manslaughter in the first degree should have been given. In support of this contention we are cited by counsel for defendant to Leseney v. State, 13 Okla. Cr. 247, 163 Pac. 956, in which it was held reversible error to instruct on manslaughter in the first degree when the evidence tended to show that the defendant was guilty of murder alone, and there was no evidence to support the charge of manslaughter in the first degree. In all other cases it has been uniformly held by this court that, even if the evidence did not warrant an instruction for manslaughter, it is an error in the defendant’s favor of which he has no cause to complain.”

It was said in the case of Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519, that this court had refused to follow the Leseney Case. The rule herein announced is followed in principle in the following cases: Lazenby v. State, 18 Okla. Cr. 83, 192 Pac. 1103; Harper v. State, 20 Okla. Cr. 43, 200 Pac. 879; Smith v. State, 20 Okla. Cr. 301, 202 Pac. 519; Wilmoth v. State, 20 Okla. Cr. 453, 203 Pac. 1055, 21 A. L. R. 590; Inman v. State, 22 Okla. Cr. 161, 210 Pac. 742; Hallmark v. State, 22 Okla. Cr. 422, 212 Pac. 322.

In the Hallmark Case it was said:

“In this ease the defendant might properly have been convicted of rape in the first degree, and the trial court, without objection on the part of the defendant, and, evidently misconstruing his duty in the premises where there was no evidence tending to reduce the degree of the crime, authorized the jury by the instructions given to find the defendant guilty of a lower degree of crime than the evidence tended to disclose. There is considerable conflict in the authorities of the different jurisdictions as to whether or not such action on the part of the trial court amounts to reversible error. In this jurisdiction, however, it is held that such action constitutes error of which defendant will not be heard to complain upon appeal in cases where the crime is by statute distinguished into degrees and the defendant is convicted of a lower degree than the law and evidence warrant.
“This view is consonant with the further statutory provisions of this state (section 2822, Comp. St. 1921), substantially to the effect that on appeal no criminal judgment should, be set aside or a new trial granted, among other grounds, because of misdirection of the jury, unless in the opinion of the court after an examination of the entire record it appears that the error complained of has probably resulted in the miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right of the defendant.”

The evidence appears to establish conclusively that defendant or some one in the party in which he was acting in the commission of a felony killed the deceased, Alberta Williams, and that such killing was murder. The court should not have submitted the issue of manslaughter in the first degree, but having done so, and the defendant having been convicted of manslaughter in the first degree, the error was in his favor, and he will not be heard to complain.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    CHARLIE PATTERSON v. STATE.
    No. A-6568.
    Opinion Filed May 4, 1929.
    Rehearing Denied July 27, 1929.
    (279 Pac. 356.)
    Mathers & Renegar, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State..
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of "Washita county on a charge of robbery with firearms, and was sentenced to serve a term of five years in the state penitentiary.

On October 15, 1924, the First State Bank of Canute was robbed by two persons, who came to the bank in a Ford car between 8 and 9 o’clock in the morning, and when the vault was opened held up the three employees of the bank with firearms, took about $4,40.0 in money and made their escape, going out of the town in a northwesterly direction. It is the theory of the state that the actual robbery was committed by defendant and one Jim Cellen, alias Jim McGraw, and that they were met just after the robbery, a few miles north of Canute, by Tommy Patterson, a son of defendant, where they abandoned the Ford car in which they went to the town of Canute, and there got in the turtle-back of a Ford coupe driven by Tommy Patterson, who drove them to the home of one John Rupert, near Oklahoma City. Tommy Patterson had been charged as one of * the robbers, tried, and acquitted, and also one Ben Parks had been charged, tried, and acquitted prior to the trial of the defendant in this case.

The first assignment of error argued is the refusal of defendant’s requested instruction as to the law requiring corroboration of the testimony of an accomplice. The requested instruction is substantially correct; it varies very little from the court’s instruction No. 6, which is:

“You are further instructed that, if you find and believe from the evidence that any person who has testified in this case is an accomplice, then you would not be at liberty to convict the defendant on the uncorroborated testimony, of such accomplice. A conviction cannot be had on the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof, but should go further and tend to connect the defendant with the commission thereof. An accomplice, as the word is here used, means any one connected with the crime committed, either as principal offender, or as an accessory, or one who aids and abets in the commission of an offense; it includes all persons who are connected with the crime by unlawful acts or omissions on their parts committed, either before or at the time of the commission of the offense charged in the information.”

This instruction sufficiently states the law upon this point. Section 2701, Comp. Stat. 1921; Moss v. State, 4 Okla. Cr. 247, 111 Pac. 950; Fisher v. State, 18 Okla. Cr. 541, 196 Pac. 724.

It is next argued, and in fact the main contention is, that the evidence is insufficient to sustain the judgment. The star witness for the state was Jim Cellen, alias Jim McGraw, who by his own testimony participated in the robbery and was an accomplice of defendant. Cellen at the time was an inmate of the penitentiary at Granite, having been convicted of the robbery of a bank at Sharon, Oklahoma. See Patterson v. State, 42 Okla. Cr. 255, 275 Pac. 387. Also he had been convicted of robbing a bank at Avard, Oklahoma, and had pleaded guilty to an Oklahoma City pay roll robbery.

This witness testified in substance: That he came to Oklahoma City some three weeks before the robbery. That he learned defendant wanted some one to rob banks, and they got together and discussed the robbery,) and that Tommy Patterson also was a participant. That a week before tbe robbery tbe two Pattersons went with him to the town of Canute to look over the situation with a view of selecting a bank to rob. That the two Pattersons remained near the depot, while the witness Cellen went in the bank, posed as a cotton buyer, and talked to the employees of the bank and two other persons, to whom the bankers introduced him. That two days before the robbery he and defendant stole a Ford coupe, which Tommy Patterson drove to the place of M. M. Smith, near Foss, a few miles from Canute. The following day he and defendant stole a Ford car, and also went to the Smith place, and early on the following morning went to Canute and arranged for Tommy Patterson to meet them with the coupe a mile or two northwest of Canute. That he and defendant then went to; the bank; witness went inside and engaged the employees in conversation, while defendant waited across the street. As soon as the vault was opened, defendant also came in the bank and by the use of firearms they forced the employees to deliver the money in the bank, and, after locking the employees in the vault, left in the car which they had parked outside. That the money was put in a sack, which had been furnished by M. M. Smith. They then drove northwest and rejoined Tommy Patterson, and there abandoned the car in which they were riding, got in the turtle-back of the coupe, and Tommy Patterson then drove them in the direction of Oklahoma City. After passing the town of Bridgeport, they got out of the turtle-back and rode in the seat. Late in the afternoon they reached the residence of John Rupert,, where they divided the money and made a small contribution to Rupert, and then went to Oklahoma City. There are various circumstances and details not recited.

The employees of the bank, in the trial of Parks, had previously testified that Ben Parks was the person who came to the bank, posed as a cotton buyer, and who later participated in the actual robbery. There is, however, strong evidence that the employees of the bank were mistaken in identifying Parks as one of the participants, and that Cellen was in fact an active participant as he testified. There are various details of Cellen’s testimony, corroborated by other witnesses, which it seems extremely unreasonable he could know, unless actually present as he testified. For instance, Ab Gunter, living near Canute, testified that on the morning the bank was robbed he saw a man go into the bank; that the witness then got a sack of flour and walked by the bank with it on his shoulder. This detail is the same as the testimony of Cellen, who testified to this circumstance. Z. S. Riggs, who was at the bank on the day Cellen claims to have first appeared there, posing as a cotton buyer, a week before the robbery, and was at that time introduced to him, positively identified Cellen. G. J. Lee, a farmer with Riggs, also identified him, but not so positively. A. L. Lawson testified in substance that on the occasion of the robbery he was picking cotton 2 1-2 miles northwest of Canute; that he saw a car headed north, and also a Ford coupe a little north of it; that the coupe came up to where the other car had stopped, and turned around, and he saw a couple of men catch on the running board of the coupe; that one of them had something in his hand, which he put in the turtle-back of the car, which looked like a sack. Oscar Nobles, with Lawson at the time, testified and substantially to the same effect as Lawson. The testimony of these witnesses closely corroborates that of Cellen. John Rupert and his son, Ed Rupert, in substance testified that about 3 o’clock in the afternoon of the day of the robbery Charlie Patterson, his son Tommy Patterson, and Mc-Graw (Cellen) came to his place southwest of Oklahoma City; that Tommy Patterson came to the house, asked for food, and they took some 150 or 175 yards from the house, where defendant and MeGraw or Cellen were; that when he took the basket back to the house it contained 21 $1 bills. This also closely follows the testimony of Cellen.

It is exclusively within the province of the jury to weigh the evidence, determine the credibility of the Witnesses, say whom they will 'believe or disbelieve, and settle the issues of fact. When the jury have seen the witnesses, heard their testimony, observed their manner of testifying, their candor and frankness, or the lack thereof, and by their verdict have settled the issues of fact, and the trial court, who also has seen the witnesses, approves the verdict, it comes to this court, not upon the proposition that the verdict is against the weight and credibility of the evidence, but upon the proposition that it is contrary to the evidence. In such case, unless we can say there is no competent evidence in support of the verdict and judgment, or that the jury were influenced by prejudice or other improper motives in arriving at their verdict, this court will not reverse a conviction for insufficiency of the evidence. It appears to us that the jury had ample evidence, although it is conflicting, from which they might legitimately draw the conclusion of defendant’s guilt. We ■ are not at liberty to reverse the case for insufficiency of the evidence.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    L. N. (NEWTON) CAMP v. STATE.
    No. A-.
    Opinion Filed July 27, 1929.
    (279 Pac. 692.)
    Bass & Hardy, for plaintiff in error.
    Marvin Shilling, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of mash, wort, and wash, and his punishment -fixed at fine of $50 and imprisonment in the county jail for a period of 30 days.

It is contended that the verdict is contrary to the evidence and is insufficient to sustain the conviction. The state produced Jess Salyers and Sid Jackson, who testified that they found two 50-gallon barrels of what you call mash to make liquor out of; that the defendant and his father lived about one-half mile apart, and that the barrels were located about halfway between the two houses; that they watched the barrels at night for a week and never saw the defendant near the barrels nor having anything to do with them. There is no evidence in the record to show that the defendant knew any barrels were there or that he had any interest in them or control over them. The connty attorney should never have permitted the case to go to trial. When the evidence of the state was introduced it was the duty of the trial court to advise the jury to return a verdict of not guilty. It would save expense to the state and expediate the business of the courts if county attorneys and trial judges would dismiss such cases as this without permitting them to come to trial.

For the reasons stated the cause is reversed.

DAVENPORT, J., concurs.

EDWARDS, P. J., not participating.


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    JOHN PALMORE v. STATE.
    No. A-6613.
    Opinion Filed July 27, 1929.
    (279 Pac. 694.)
    Clayton Carder, for plaintiff in error.
    C. G. Bass, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of selling intoxicating liquor, and his punishment fixed at a fine of $150 and to be imprisoned in the county jail for a period of 60 days.

The defendant complains that the jury believed the evidence of the complaining witness rather than the defendant. The complaining witness testified positively that he purchased liquor from the defendant. The defendant positively denied that he sold the complaining, witness any liquor. Where the evidence is conflicting, this court will not weigh it to determine the weight and credibility to be given to it. The jury saw the witnesses, heard them testify, observed their demeanor while on the witness stand, and were in a better position than this court to determine the credibility of the witnesses and the weight to be given their testimony. This court never reverses a case where the evidence is conflicting and where there is competent evidence supporting the verdict of the jury.

The defendant next complains that the county attorney asked improper questions in the cross-examination of the defendant. In his direct testimony the defendant said, in answer to a question from his counsel:

“Q. Have you ever sold any whisky to anybody down there? A. No, sir. It has been talked; Jack Ball and Sam Standerfer. always says hello what you doing; peddling little whisky and shooting craps; some people take it to heart, thought I was a notorious bootlegger.”

On cross-examination, the county attorney had a right to particularly inquire what the defendant meant by that answer and as to whether he really was a bootlegger. When a defendant takes the witness stand, he then stands upon the same footing as any other witness, and he cannot be heard to complain of the cross-examination by the state, where the state stays' inside of the record and conducts the cross-examination according to the rules of evidence.

The errors complained of being without merit, the cause is affirmed.

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


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    CHARLIE DAVIS v. STATE.
    No. A-6668.
    Opinion Filed July 27, 1929.
    (279 Pac. 913.)
    Wieck & Armstrong, for plaintiff in error.
    Roy R. Carver, Co. Atty., for the State.
   CHAPPELL, J.

Charlie Davis, plaintiff in error, was informed against, tried, convicted, and sentenced to be confined in the county jail of Kay county for a term of 30 days and pay a fine of $200 for unlawfully having possession of intoxicating liquor with intent to sell the same.

The judgment and sentence was pronounced on the 9th day of April, 1927, from which judgment and sentence an appeal was attempted to be taken by filing with the clerk of this court on June 25, 1927, a petition in error with case-made attached and proof of the services of notice of appeal. On the 19th day of September, 1928, the cause was submitted on the record and brief of plaintiff in error.

Section 2808, Comp. St. 1921,, provides in part as follows:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. * * *”

In this case the time for filing the appeal expired on the 9th day of June, 1927. This cause was not filed in this court until the 25th day of June, 1927. This court has uniformly held that, in order to give this court jurisdiction, the appeal must be filed with the clerk of this court within the time in which an appeal may be taken, as prescribed by section 2808, Comp. St. 1921.

The statute requiring appeals in misdemeanor cases to be taken within 60 days and permitting the trial court or judge for good cause shown to extend the time not exceeding 60 days is a reasonable statute calculating to promote swift and sure justice. Where no extension of time in which to file the appeal is granted by the trial court or judge, and where the petition in error is not filed in this court until 76 days after tbe rendition of judgment of conviction, this court does not acquire jurisdiction of tbe appeal, and sucb appeal will be dismissed.

Tbe cause is therefore dismissed, and tbe cause remanded to tbe county court of Kay county, with directions to enforce tbe judgment and sentence.

DAVENPORT, J., concurs.

EDWARD'S, P. J., not participating.


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    TIP BAILEY et al. v. STATE.
    No. A-8670.
    Opinion Filed. July 27, 1929.
    (279 Pac. 912.)
    Brown Moore and Guy L. Horton, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for tbe State.
   CHAPPELL, J.

Tbe plaintiffs in error were convicted in tbe county court of Payne county on a charge of manufacturing intoxicating liquor, and their punishment fixed at a fine of $300 and imprisonment in the county jail for 60 days as to each of them.

The appeal was lodged in this court June 9, 1927, and plaintiffs in error were at large upon an appeal bond. The Attorney General has filed a motion in this court, supported by the affidavits of H. H. Isham, sheriff of Noble county, and of A. D. Williams, undersheriff of Payne county, and John B. Calderhead, former sheriff of Payne county, that the plaintiff in error, Tip Bailey, is now a fugitive from justice and without the jurisdiction of this court. ■

It has been uniformly held by this court that, where a person is convicted of a crime, and has prosecuted an appeal to this court, and thereafter becomes a fugitive from justice, or is otherwise beyond the jurisdiction of this court, and cannot be made to respond to any judgment or order that might be made in this case, the appeal will be dismissed.

For the reasons assigned, the appeal is dismissed as to the plaintiff in error Tip Bailey.

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


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    TIP BAILEY v. STATE.
    No. A-6669.
    Opinion Filed July 27, 1929.
    (279 Pac. 913.)

      Brown Moore and Guy L. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Payne county on a charge of selling” intoxicating liquor, and his punishment fixed at a fine of-' flOO and imprisonment in the county jail for a period of 30 days.

The appeal was lodged in this court June 9, 1927, and plaintiff in error was at large .upon an appeal bond. The Attorney General has filed a motion in this court, supported by the affidavits of H. H. Isham, sheriff of Noble county, and of A. D. Williams, undersheriff of Payne county, and John B. Calderhead, former sheriff of Payne county, that the plaintiff in error is now a fugitive from justice and without the jurisdiction of this court.

It has been uniformly held by this court that, where a person is convicted of a crime, and has prosecuted an appeal to this court, and thereafter becomes a fugitive from justice, or is otherwise beyond the jurisdiction of this' court, and cannot be made to respond to any judgment or order that might be made in this case, the appeal will be dismissed.

For the reasons assigned, the appeal is dismissed.

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


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    PAUL SANDFORD v. STATE.
    No. A-6751.
    Opinion Filed June 15, 1929.
    Rehearing Denied July 27, 1929.
    (279 Pac. 520.)
    Leedy & Leedy, for plaintiff in error.
    T. R. Blaine, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ellis county on a charge of having possession of intoxicating liquor, to wit, wine, with intent to barter, sell, give away, or otherwise furnish the same to other persons contrary to law, and was sentenced to pay a fine of $300 and to be imprisoned in the county jail for 30 days. Proper steps were taken by defendant, and the cause is now on appeal to this court. Defendant in his brief states:

“The facts as disclosed by the record only raises one issue, and that is, whether the grape juice or wine found by the officers and destroyed by them was in fact wine.”

The evidence on the part of the state is that the officers found two 50 or. 55 gallon barrels full of wine, three 16-gallon kegs, five 5-gallon jugs, three 2-gallon jugs, and one or two gallon jugs. The under sheriff, Black, testified that in a conversation with the defendant upon reaching the place to be searched, the defendant said he had some wine down in a little building and pointed out the building; that the witness tasted of the contents of the barrels and they were wine; that they found two other barrels of wine in the making and they had grapes in them and were fermenting. The witness further testified that hogs came up and drank from the contents of the bottles, barrels, kegs, and jugs poured out on the ground and that after drinking the wine they staggered around and got down and could not get up and were intoxicated. The evidence of the witness, Black, was corroborated by the evidence of the witnesses, Devenney and Hanley, who assisted in the raid. Officer Black further testified that buried under some hay he found a still, and. that outside on the premises was a haystack, hollow in the center, with a small room in the center of the stack. The defendant and his witnesses testified that this was homemade wine or grape juice for home consumption and was not intoxicating.

The jury evidently believed the evidence of the state on the question of fact by finding the defendant guilty. There being a conflict in the evidence and the jury having found the issues in favor of the state, the verdict of the jury will not be disturbed unless errors of law appear upon the record which deprive the defendant of a statutory or constitutional right.

The only other question raised by the defendant is the sufficiency of the instructions given by the court. The defendant, if he desired additional or different instructions, should have presented them to the court in writing and requested that the same be given by the court. The defendant complains particularly of instruction No. 4 given by the court, which instruction is as follows:

“You are instructed that when facts are so well known and fixed in the public mind that the courts take notice of them, without proof, this notice is generally spoken of as judicial knowledge or judicial notice. Among this class of facts of which the courts take judicial knowledge, without proof, is that wine, when proven to be such beyond a reasonable doubt, contains a large per cent, of alcohol and is intoxicating.”

This court in the case of Skelton v. State, 81 Okla. Cr. 343, 239 Pac. 189, Judge Edwards, says:

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

While some of the instructions are not skillfully drawn, they fairly state the law of the case and were as favorable to the defendant as the facts shown by the evidence would warrant. The evidence being sufficient and no substantial errors of law appearing upon the record, the cause is affirmed.

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


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    DEWEY PRUITT v. STATE.
    No. A-6713.
    Opinion Filed August 3, 1929.
    (279 Pac. 971.)
    Brown & Williams, for plaintiff in error.
    P. M. Dudley, Co. Atty., and M. Shilling, Asst. Co. Atty., for the State.
   CHAPPELL, J.

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

The action is based upon an indictment returned by the grand jury of Carter county, charging the defendant with the crime of selling intoxicating liquor as follows:

“That Dewey Pruitt, in the county and state aforesaid, on the day and year aforesaid, did knowingly, willfully, and unlaAvfully sell one drink of spirituous liquor,, one drink of vinous liquor, one drink of malt liquor, one drink of fermented liquor and one drink of intoxicating liquor to one G. W. Tucker, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

The indictment charging a misdemeanor, the cause was transferred to the county court for trial. The only question presented to the court by this appeal is the sufficiency of the indictment. This court had under consideration the precise question involved in this case in the case of Hogan v. State, 42 Okla. Cr. 188, 275 Pac. 355. In paragraph 1 of the syllabus this court said:

“Where a statute defines an offense, and enumerates disjunctively the different acts or things which constitute the offense, all of such acts may be charged in a single count conjunctive, since, though each by itself may constitute the offense, all together do no more, and constitute but one and the same offense.”

In the recent case of Gravitt v. State, 44 Okla. Cr. 45, 279 Pac. 968, this court reaffirmed the rule laid down in Hogan v. State, supra. Where the statute enumerates several acts disjunctively, which separately or together shall constitute the offense, the indictment, if it charges more than one of them, which it may do, and that, too, in the same count, should do. so in the conjunctive. The indictment being sufficient, the trial, court did not err in overruling the demurrer of the defendant.

For the reasons stated, the cause is affirmed.

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


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    SLY GIBSON v. STATE.
    No. A-6695.
    Opinion Filed August 3, 1929.
    (279 Pac. 908.)
    S. B. Harper, for plaintiff in error.
    W. T. Dixon, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error was convicted in the county court of Comanche county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $250 and to be confined in the county jail for a period of 60 days.

The plaintiff in error, hereinafter called defendant, objected to the introduction of the evidence seized by the arresting officers because the officers had no search warrant for the premises where the liquor was found. The officers testified that the police department received a call in the afternoon of the 30th day of January, 1927, to go to 201 Arlington avenue, on account of a drunken disturbance occurring at that place. The officers responding to the call found a half dozen soldiers there, the defendant, together with some liquor which the defendant requested the soldiers to destroy, and he himself attempted to destroy until restrained by the officers. He testified in his own behalf as follows:

“Q. Where do you live? A. 201 Arlington.
“Q. Did you live there on the 30th day of January, 1927? A. No, sir.
“Q. Were you there on the 30th day of January, 1927? A. I was.”

It will thus appear from the defendant’s own testimony that he did not reside in the place searched, and consequently cannot complain that the search was unlawful. Hardy v. State, 35 Okla. Cr. 124, 248 Pac. 874; Williams v. State, 35 Okla. Cr. 171, 249 Pac. 433; Klaber et al. v. State. 35 Okla. Cr. 238, 250 Pac. 142; Penrod v. State, 38 Okla. Cr. 46, 258 Pac. 1052.

The defendant next complains that the court erred in giving instruction No. 2, but defendant took no exception to this instruction, and tendered no substitute for the same. Taken as a whole, the instructions fairly stated the law applicable to the case, and the court did not err in overruling the defendant’s motion for new trial because of the giving of such instruction.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of not being fundamental, the cause is affirmed.

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