text:
    ERNEST THOMAS et al. v. STATE.
    No. A-6194.
    Opinion Filed Dec. 29, 1927.
    (262 Pac. 503.)

      Nowlin, Spielman & Thomas, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and W. P. Morrison, Co. Atty., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Canadian county on a charge of conspiracy to violate the prohibitory liquor law, and were each sentenced to pay a fine of $500 and to serve a term of one year in the county jail.

The prosecution is based on section 1649, Comp. Stat. 1921, which, so far as pertinent here, is:

“If two or more persons conspire * * * to commit any crime * * * they are guilty of a misdemeanor.”

The foregoing provision of the statute was enacted by the territorial Legislature prior to statehood. In 1915 a further conspiracy law was enacted, defining a felony for two or more persons to conspire to commit an offense against the state of Oklahoma or to defraud the state of Oklahoma, being section 1652, Comp. St. 1921, as follows:

“If two or more persons conspire either to commit any offense against the state of Oklahoma, or to defraud the state of Oklahoma in any manner or for any purpose, and if one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars ($10,000.00) or to imprisonment for not more than two years, or to both fine and imprisonment in the discretion of the court or jury.”

This court, in the recent case of Taylor v. State, 38 Okla. Cr. 350, 261 P. 978, in substance, held that the act of 1915 (Laws 1915, c. 260) did not apply to a conspiracy to violate the prohibitory liquor law and the prohibition provisions of the Constitution (article 1, § 7), since the constitutional provision is self-executing and fixes a minimum punishment which cannot be impaired by any legislative enactment, citing the early case of Nowakowski v. State, 6 Okla. Cr. 123, 116 P. 351. Section 1649, supra, defines a conspiracy as a misdemeanor, and does not fix the punishment. Section 1508, Comp. St. 1921, provides that, where an act is defined as a misdemeanor, and no punishment is fixed, the punishment shall be— “* * * imprisonment in the county jail not exceeding one year or by a fine not exceeding five hundred dollars, or both such fine and imprisonment.”

It will be seen that the punishment provided for a conspiracy as defined by section 1649 may be less than that fixed by the Constitution, and, under the rule announced in the Taylor Case, supra, this section impairs the constitutional provision, and for that reason has no application to the prohibitory liquor law. Prosecutions for violation of this law cannot be had under the conspiracy statute, but must be under the statute and constitutional provision relating to prohibition enforcement.

This case is reversed and remanded with instructions to dismiss.

DOYLE, P. J., and DAVENPORT, J., concur.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    M. H. HYATT v. STATE.
    No. A-6213.
    Opinion Filed Dec. 30, 1927.
    (262 Pac. 215.)
    Brooks & Powell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, M. H. Hyatt, was convicted on a charge of unlawful possession of intoxicating liquor, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $160, and to imprisonment in the county jail for 60 days.

The errors assigned are, in substance, that the court erred in admitting incompetent evidence on the part of the state, which evidence was obtained by an illegal search of the private residence of the defendant, under a void search warrant.

The affidavit for the search warrant issued by Chas. W. McDonald, justice of the peace, recites “that intoxicating liquors are being kept by Hyte, on Hyte farm, and in possession in a certain building or premises situated on the N. W. % sec. 33 — 38—12 west,” and does not state that the same was a place of public resort.

The proof shows that the officers searched the private residence of the defendant.

The state rested, and the court overruled the defendant’s motion that all the evidence be stricken because the same was secured by an illegal search and seizure.

It is well settled that under the statute (section 7013) no officer is authorized to search a private residence occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort, and that no magistrate in this state has the power to issue a search warrant to search a private residence, occupied as such, unless it is made clearly to appear that such private residence comes within the exceptions stated in said section. Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Coatney v. State, 30 Okla. Cr. 270, 235 P. 942; Duncan v. State, 11 Okla. Cr. 217, 144 P. 629.

Other errors are assigned and argued, but it does not seem necessary that we should extend this opinion "by reference thereto. As shown by the record, the search and seizure in this case was an invasion of the constitutional and statutory rights of the defendant, and' "the evidence complained of was improperly admitted.

The judgment herein is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte M. B. ALTON.
    No. A-6824.
    Opinion Filed Dec. 27, 1927.
    (262 Pac. 215.)

      John J. Carney, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This case originates in this court upon an application for writ of habeas corpus on the part of Martin Alton against the warden of the State Reformatory at Granite, to secure his discharge from custody.

It appears that said Martin Alton, a minor, on the 5th day of May, 1927, in the district court of Noble county, upon arraignment,, pleaded guilty to the charge of larceny of a Ford coupe, the property of S'. E. Meyers, and on the following day was by the judgment of said court sentenced to serve a term of five years in the State Reformatory at Granite.

It is averred that neither of the parents of said petitioner were notified of said charge against their son, and that he did not have the benefit of counsel; that the age of said petitioner at that time was 15 years, and that no hearing was had before the juvenile court of said Noble county before the information was filed in the district court; that said petitioner has been confined in the reformatory from the 8th day of May, 1926.

It is further averred that the imprisonment is therefore unlawful, in that the district court of Noble county had no jurisdiction at the time judgment was pronounced and said sentence imposed on the said minor, Martin Alton. The return in this case shows that no proceedings were had before the juvenile court of Noble county.

The testimony of the father and mother of said petitioner shows that his age at the time the judgment was pronounced was 15 years.

By numerous decisions of this court it is held that, under the provisions of the statute establishing juvenile courts and prescribing their jurisdiction and control of delinquent children (sections 8070 to 8089, C. S. 1921), a child under 16 years of age cannot be guilty of the commission of a crime, except in cases wherein it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committed that such child knew the wrongfulness of his acts .at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of the district court to try a child under the age of 16 years upon an information charging a felony. Ex parte Bonitz, 30 Okla. Cr. 45, 234 P. 780; Ex parte Humphries, 31 Okla. Cr. 172, 237 P. 624; Ex parte Pyzer, 29 Okla. Cr. 156, 232 P. 962; Ex parte Hightower, 13 Okla. Cr. 472, 165 P. 624.

It follows that, on the undisputed facts, the district court of Noble county was without jurisdiction to render the judgment and sentence under which petitioner is now held in custody, and that said minor, Martin Alton, is imprisoned without due process of law. He is therefore by the judgment of this court discharged therefrom.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    LEE SANDERS v. STATE.
    No. A-6202.
    Opinion Filed Dec. 29, 1927.
    (262 Pac. 216.)
    Ash & Jones, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error,, hereinafter called defendant, was convicted in the district court of Washita county for the crime of burglary in the second degree, and sentenced to serve a term of two and one-half years in the state penitentiary.

The record discloses that on the night of February 12, 1925, the garage of W. A. Martin, in the town of Canute, was broken into, and a number of automobile tires stolen therefrom. Defendant was jointly charged with one Dug Barnett, a severance was taken, and the defendant was tried separately. The evidence is circumstantial. Witnesses for the state testified that defendant and Barnett were seen in the town of Canute a few days prior to the burglary, and an employee of the garage testified defendant was at the garage some time in the afternoon before the burglary. F. W. Hix, a deputy sheriff, testified he saw defendant and Barnett in the town of Canute about 12 o’clock of the night of the burglary. There is substantial evidence that a few days later defendant was connected with the sale of some of the stolen tires to a garage proprietor at the town of Willow. Defendant and Barnett were arrested at Electra, Tex. The defense was an alibi.

The principal contention argued by defendant is error in overruling his application for a continuance because of the abence of the witnesses Jack Henson, of Mangum, and Walter West, of Anadarko. Henson was served with subpoena, but did not appear, and there is an affidavit from a physician that he deemed it “unadvisable” for the witness to attend, as the wife of the witness was expected to be confined within a short while. It is less than 50 miles from Mangum to Cordell where the trial was had. There is no sufficient excuse for the witness not attending, and, if defendant very seriously desired his presence, it could have been had by attachment, but none was requested. An examination of the record also discloses that the testimony of Henson as set out was cumulative of the testimony of several other witnesses. It is ordinarily not error to deny a continuance on account of the absence of a witness whose testimony is cumulative. The affidavit does not allege defendant believed the testimony of the absent witness to be true.

As to the witness West, a subpoena was issued for him on September 25th, and delivered to the sheriff of Caddo county on the following day. It was returnea October 10th, unserved for the reason that the witness could not be found in Caddo county. The trial was not had until October 21st. The application does not show where the witness is; merely that he is absent from Caddo county. It does'not show any likelihood that the attendance of the witness could be had at any subsequent term of court. The testimony of this witness as set out in the application tends to support the defense of alibi, and in a general way is cumulative of several other witnesses. The proof on the part of the state is so convincing that there is no likelihood that the testimony of these witnesses would have affected the verdict. It has been many times held by this court that an application for a continuance is to be strictly construed against the applicant. They are addressed to the sound discretion of the trial court, and a judgment of conviction will not be disturbed because of the overruling of an application on account of the absence of witnesses, unless there is a clear abuse of discretion, which is not made to .appear here.

In further support of this assignment of error, brief directs the attention of the court to the affidavit of certain jurors attached to the motion for a new trial, in substance that the jurors argued and considered the failure of defendant to produce the witness West in arriving at a verdict. The jurors may not impeach their verdict in this manner. Defendant in his testimony, if his counsel saw fit, might have explained his reason for not producing the witness West. These affidavits present nothing which affects the trial td the prejudice of defendant. Overton, v. State, 7 Okla. Cr. 203, 114 P. 1132, 123 P. 175; Craddock v. State, 13 Okla. Cr. 724, 167 P. 331.

It is apparent from an examination of the whole record that the guilt of defendant is clearly proven, and his trial free from prejudicial error.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    LANCE HILL v. STATE.
    No. A-4608.
    Opinion Filed Dec. 29, 1927.
    (262 Pac. 218.)
    McClendon &MeClendon, for plaintiff in error.
    Edwin Dabney, Atty., Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Lance Hill, was tried and convicted for having, under promise of marriage, seduced one Bettie Burton, an unmarried female of previous chaste character. His punishment was fixed by the jury at imprisonment in the state penitentiary for a term of 18 months. From the judgment rendered in pursuance of the verdict, September 28, 1922, an appeal was perfected by filing in this court, on March 20, 1925, a petition in error with case-made, but no brief has been filed, and no appearance made on behalf of appellant in this court.

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

The evidence shows that the prosecutrix and appellant, colored, lived near Shawneetown, McCurtain county, all their lives; that the age of the prosecutrix at the time was 22 years, and that of the appellant was 2 years older; that appellant began keeping company with the prosecutrix in the year 1921, calling upon her at her home, and accompanying her to and from the Spring Hill Church, in that neighborhood; that at the time 6f the trial she was pregnant.

She testified that appellant promised to marry her in August, 1921, on the way home from church, and relying on said promise, she permitted him to have sexual intercourse with her; that they continued to have intercourse until March, when she discovered she was pregnant, and she informed him at that time as to her condition ; that no other man had ever had sexual intercourse with her. Hér stepmother testified that appellant had been calling on her daughter regularly on Sundays, and often during the week, and that she did not discover that she was in a family way until August, this year, and she informed appellant of her daughter’s condition, and in his presence she said, “Bettie, you tell me who done this?” and her daughter said, “Mamma, Lance done it,” and he said, “I didn’t do it, and before I marry her I will lose my neck.”

Mose Smith testified that, in a conversation with appellant when he was going with Bettie, he understood him to say that he was engaged to marry Bettie.

Appellant testified in his own behalf, and denied that he had ever promised to marry Bettie Burton, or that he had ever stated to Mose Smith that he was engaged to marry her, and denied that he had ever had intercourse with her.

The evidence as to her character for chastity was conflicting. Three witnesses, including appellant’s brother-in-law, testified that they had intercourse vflith her before the time of her alleged seduction by appellant. This was denied by the prosecutrix.

The testimony appears to have been fairly presented, and, the jury, as triers of disputed questions of fact, having determined the same, we are not disposed to disturb their verdict.

It appears that the testimony of the prosecuting witness was sufficiently corroborated, and we find no sufficient reason for setting aside the verdict of the jury.

The judgment herein is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    WILLIE O’NEIL v. STATE.
    No. A-6311.
    Opinion Filed Dec. 29, 1927.
    (262 Pac. 218.)

      E. A. Bryce, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Oklahoma county of the crime of murder, and his punishment fixed at death.

The information was filed on December 19, 1925, charging O’Neil with the murder of Mark H. Hipsher, on the 27th day of February, 1925, in Oklahoma county, state of Oklahoma.

Mark H. Hipsher was a street car conductor at the time he was killed, and was operating a street car on the line of the Oklahoma City Railway running on East Eighth street, in Oklahoma City. Willie O’Neil, the defendant, is a negro man, about 26 years of age at the date of the alleged offense. The killing was alleged to have occurred on the 27th day of February, 1926, between 8:30 and 9 o’clock. The testimony shows that defendant got on the street car that Hipsher was operating at the corner of Fourth street and Broadway, in Oklahoma City, and rode out east on Eighth street to the intersection of that street with Missouri street, where after all the passengers had gotten off the car the defendant attempted to rob Hipsher. The defendant had taken a seat in the back of the car, walked up to the front of the car when it reached Missouri street, and there Hipsher stopped the car, and after stopping the car threw open the front door. The defendant leveled a pistol at him and told him to throw up his hands. Hipsher got out of the car, and defendant followed and shot him twice, from the effects of which wounds Hipsher died.

In the testimony introduced at the trial there is no conflict; it is shown conclusively that the defendant fired the shots that took the life of Mark H. Hipsher. In fact, the defendant himself went on the witness stand and told the circumstances of the attempted robbery and of his shooting the deceased.

Eight errors alleged to have been committed by the trial court are assigned by the defendant as reason why this case should be reversed. The only one that counsel for the defendant has argued or discussed at length is assignment 4, which is as follows:

“The court erred in admitting incompetent evidence on the part of the state prejudicial to the rights of the defendant therein.”

Under this assignment the defendant argues that the court erred in permitting state witnesses Ray Frazier, Clarence Hurt, and Ed Snelson, officers, to testify to the confession made by the defendant after his arrest and while in custody of the officers; arguing that the defendant was not advised of his rights to have an attorney, and was merely told that it would be better for him to make the statement, and the defendant was led by the officers to believe that in making a confession he was making the punishment lighter upon himself, and, believing that was an implied promise that he would get a lighter punishment if he would tell the truth, he made his confession. It is true that a confession, in order to be admissible or be considered, must be made voluntarily; that is, without anybody holding out any hope of reward or leniency or fear of punishment for not doing so. In this case, there is no evidence in the record to show that the defendant was promised by the officers any clemency, nor is there any evidence to show they used violence or duress to secure the statement from the defendant.

As shown by the record in the case, we deem it immaterial as to whether or not the confession was voluntarily given by the defendant. That confession can be dispensed with because of the fact that the defendant voluntarily took the witness stand and testified to the same facts as was disclosed in his confession. As a witness in his own behalf the defendant testified that he shot and killed the deceased while engaged in an attempt to rob the deceased. The defendant’s testimony was practically a plea of guilt to murder, leaving to the jury only the question to be decided, whether or not the death penalty should be assessed or should he receive life punishment. As disclosed by the record in this case, the defendant is guilty of vicious and wilful murder without extenuating circumstances, and while he was attempting to rob the deceased.

An examination of the entire record fails to disclose that error was committed by the court in admitting improper evidence. The instructions of the court as a whole were fair to the defendant, and the record otherwise shows that the defendant had a fair trial.

The argument presented by the attorney for the defendant is in the nature of a plea for a modification of the sentence in this case. This court does not feel that it would be justified in modifying a sentence imposed by the jury, as the jury saw the witnesses, their manner of testifying, and was in a position to arrive at a just conclusion as to the punishment to be inflicted in this case, and having arrived at the punishment, it will not be disturbed by this court. For the reasons herein stated, the judgment and sentence are affirmed.

The date set by the court for the execution of the death sentence having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Oklahoma county be carried into execution oil Friday the 9th day of March, 1928, and the warden of the penitentiary at McAlester is ordered and directed to causé the sentence to be executed according to law.


author: PER CURIAM.

text:
    LAFE HARDEN v. STATE.
    No. A-6254.
    Opinion Filed Jan. 7, 1928.
    (262 Pac. 1119.)
    Guy D. Talbot, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted . in the county court of Alfalfa county on a charge of selling whisky, and was sentenced to pay a fine of $200 and to serve a term of 180 days in the county jail. The judgment in this case was rendered on March 29, 1926. The appeal was lodged in this court on May 26, 1926. No brief in support of said appeal has been filed, and no appearance for oral argument wás made at the time the case was submitted. An examination of the record discloses that the information correctly charges the offense, the evidence sustains the verdict, the issues were fairly submitted, and no substantial error is apparent. The case is affirmed.


text:
    T. H. COLE et al. v. STATE.
    No. A-6236.
    Opinion Filed Jan. 7, 1928.
    (262 Pac. 712.)
    Wieck & Armstrong, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county of violating the prohibitory liquor law, and sentenced to serve 90 days in the county jail, and to pay a fine of $250.

The record discloses that defendant, his wife who was jointly tried with him, and one child, resided near the town of Tonka wa. In November, 1925, an affidavit for a search warrant for the search of the quarter section of land on which defendant resided was filed with a justice of the peace, as follows:

“-, being first duly sworn on oath, deposes and says: That .as to the following described premises to wit: S. E. ¼, Sec. 20, Twp. 25, R. 1 W., said premises being in the possession of John Doe, a true name unknown. That your affiant was told by a person who visited the premises that while there he smelt intoxicating liquor on the premises. That your affiant has been informed that a person who visited the premises saw a still in operation in the attic of the house. Your affiant says that the general reputation of the place and premises in the community and. neighborhood is that it is a place where intoxicating liquor is being kept, concealed, and sold. * * *”

An affidavit for a search warrant made on information and belief is sufficient only where it sets out the facts upon which the belief is based, and shows that such facts are within the personal knowledge of affiant or affiants, and the facts alleged are sufficient to constitute probable cause. Cornelius on Search and Seizure, § 85, p. 274.

. No attempt is made to comply with the provisions of section 7013, Comp. St. 1921, which is:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage or unless such residence is a place of public resort.”

There is no allegation that the residence or any part of it is used as a store, shop, hotel, boarding house, place for storage, or place of public resort. The warrant based on this affidavit does not disclose by whom the affidavit was made, and in this particular fails to conform to section 2881, Comp. St. 1921, which provides a form for search warrant setting out the name of the person or persons making the affidavit.

Under this affidavit a search warrant issued, the. residence was searched, and in the attic was found a still, mash and whisky. Motion to suppress the evidence so obtained and objection to the introduction of the evidence was duly made, to the overruling of which exceptions were saved.

The information upon which defendants were tried is in one count charging them with having the possession of a still, and with having the possession of mash and whisky. A demurrer for the reason that the information was duplicitous was interposed and overruled, with exceptions reserved. Clearly the information charges two offenses, the possession of intoxicating liquor with intent to sell, as in violation of section 7002, Comp. St. 1921, and the possession of a still in violation of chapter 42, Session Laws (Sp. Sess.) 1923-24. In the trial evidence of each offense charged was introduced on the part of the state. The court instructed as to each offense, and the jury returned the following verdict:

“In the County Court in and for Kay County, State of Oklahoma.
“State of Oklahoma, Plaintiff, v. Mr. and Mrs. T. H. Cole, Defendants. Case No. 5406.
“We, the jury impaneled and sworn to try the issues in the above-entitled cause, do, upon our oaths, find the defendant, T. H. Cole, guilty, and fix his punishment at a fine of $250 and confinement in the county jail for a period of 90 days. H. W. Mattox, Foreman.”

Upon this verdict the court rendered judgment as follows:

“Thereupon it is considered, ordered, and adjudged and decreed by the court that the defendant is guilty as charged in the information and as found by the jury; that he be confined in the county jail for a period of 90 days and pay a fine of $250, and the costs of this action. * * *”

In this state, both by statute (section 2558, Comp. St. 1921) and by numerous decisions of this court, it is well settled that a defendant cannot be placed upon trial for two offenses at the same time. When it appears from the record that a defendant was called upon to defend against two separate offenses over his objections and exceptions, a conviction cannot stand. Bonitzer v. State, 4 Okla. Cr. 354, 111 P. 980; Tunnard v. State, 5 Okla. Cr. 529, 115 P. 603; Kimbrell v. State, 7 Okla. Cr. 354, 123 P. 1027; Kime et al. v. State, 14 Okla. Cr. 111. 167 P. 1159; Williams v. State, 16 Okla. Cr. 54, 180 P. 559.

The proceedings are further erroneous, as the information is duplicitous, and the verdict is unintelligible, as it does not state for what offense defendant is guilty (Scott v. State, 4 Okla. Cr. 70, 109 P. 240,) and the judgment is no more enlightening.

For the reasons assigned, the case is reversed and remanded.

DOYLE, P. J., and DAVENPOET, J., concur.


text:
    E. K. COWAN v. STATE.
    No. A-6018.
    Opinion Filed Jan. 7, 1928.
    (262 Pac. 710.)

      Charles Skalnik, Jno. L. Ward, and L. O. Todd, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of larceny of a hog and was sentenced to serve a term of five years in the state penitentiary.

The charging part of the information alleges:

“* * * That E. K. Cowan on the 12th day of November, A. D. 1924, in Tulsa county, state of Oklahoma, and within the jurisdiction of this court, did unlawfully, willfully, wrongfully, stealthily and feloniously, take, steal and carry away, without the consent of the owner thereof, certain personal property, to wit, one Poland China hog, weighing about three hundred pounds, with crop and underbit in right ear, and split and underbit in left ear, and of the value of twenty-four ($24.00) dollars, in good and lawful money of the United States of America, the personal property of G. C. Grant, with the unlawful and felonious intent then and there upon the ,part of said defendant, to convert the same to his own us*e and benefit, and to deprive the owner thereof permanently. * * *”

The evidence is circumstantial, disclosing a state of facts about as follows: G. C. Grant was the owner of three large Poland China hogs, kept in a pen about 100 yards from his residence. On the night alleged, these hogs were in the pen, but on the following morning two of them were near the pen; the third was entirely missing. That afternoon in the sheriff’s office Grant was shown the head of a Poland China hog answering the description as to color, size, and earmarks of the hog missing from his premises. A short time before D. L. Nye sold three Poland China hogs to Grant. He was shown the head of the hog in the sheriff’s office, and testified it was the head of one of .the hogs sold by him to Grant. Previous to the night of the larceny, complaint had been made to certain officers that a felony had been, committed by defendant, the stealing of cotton. They went to his premises about 9 o’clock on that night. No one was there. They Waited near until about 4 o’clock in the morning, at which time defendant and his wife in a Dodge touring car passed them on the highway. They saw something in the back of his car and followed him to his premises. When defendant reached there, he took something out of the car and threw it under the floor of the house'. One of the officers looked under the house and discovered the hog’s head, later shown to the witness Grant and Nye at the sheriff’s office. The officers then looked in the back of the car and found half the carcass of a freshly butchered hog. Defendant did not take the stand and offered no evidence.

It is first argued that the information is insufficient; that it fails to clearly disclose whether the prosecution is based on the general larceny statute, or on the special statute (section 2116, Comp. St. 1921) making it a felony to steal any hog. In addition to the allegations of stealing, the information alleges a value of the hog stolen of $24. The allegations generally and the proof and instructions are all upon the theory that the prosecution is under the special statute, section 2116, supra. The allegation of value is mere surplusage and not prejudicial. The information sufficiently charges the requisites of the offense of larceny of live stock. Crowell v. State, 6 Okla. Cr. 148, 117 P. 883; Caido v. State, 7 Okla. Cr. 139, 122 P. 734; Bryan v. State, 11 Okla. Cr. 180, 144 P. 393.

Incidentally, it is made to appear, although the evidence was not presented to the jury, that the officers who went to the premises of defendant on the night in question had a search warrant which defendant insists is invalid. Before entering upon the trial, defendant moved to suppress any evidence obtained by the search warrant. The county attorney thereupon stated to the court in substance that the state did not rely upon the authority of any search warrant, but relied upon the right to search incident to a legal arrest without a warrant. All evidence in reference to a search warrant was then excluded.

Section 2471, Comp. St. 1921, authorizes an arrest without a warrant in certain cases as follows:

“A peace officer may, without a warrant, arrest a person: First. For a public offense, committed or attempted in his presence. Second. When the person arrested has committed a felony, although not in his presence. Third. When a felony has in fact been committed, and he has a reasonable cause for believing the person arrested to have committed it. Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

It is well settled that where one is legally arrested, his person and the immediate surroundings may be searched for property connected with the offense which may be used as evidence against him, or for weapons or things which might facilitate his escape. Gains v. State, 28 Okla. Cr. 353, 230 P. 946; Crossman v. State, 28 Okla. Cr. 198, 230 P. 291; Welch v. State, 30 Okla. Cr. 330, 236 P. 68; Davis v. State, 30 Okla. Cr. 61, 234 P. 787.

It appears from the record that a charge had been made on reasonable cause of the commission of a felony by defendant, that the circumstances were such that they had reasonable cause to believe defendant had committed a felony, and his arrest without a warrant was legal, and the search of his person and the immediate surroundings not within the inhibition of the constitutional provision on immunity. In connection with this assignment of error, defendant insists the court committed error in his remark in the presence of the jury excluding defendant’s qualifying questions relative to the possession of a search warrant by the arresting officer, and that the- county attorney in his argument also made improper remarks. Defendant throughout the trial contended that the evidence was obtained by an illegal search. In his objections and questioning he sought to develop this view of the case. There is no substantial prejudice in the remark of the court or in the argument of counsel.

Complaint is also made that the instructions as a whole are abstract and not sufficiently definite to fairly submit the issues. The only definite objection pointed out is that the court in instruction No. 6 does not follow the information, which charges an intent to convert the property taken and to permanently deprive the owner thereof, while the instruction does not use the word “permanently.” This is not important, since an allegation of intent to convert means substantially the same thing as an intent to permanently convert. There may be some technical inaccuracies in the instructions, but as a whole they are fair to the defendant and correctly submit the issues. The further contention that the evidence is insufficient is also without merit. The' reasonable inferences arising from the circumstances proyen conclusively establish the guilt of defendant. We see no reason to disturb the judgment.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


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    DOCK ECKHARDT v. STATE.
    No. A-5725.
    Opinion Filed Jan. 7, 1928.

    (262 Pac. 708.)
    Ralph Rawlings, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen.* for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as defendant, was by information filed in the county court of Murray county, Okla., charged with unlawful possession of intoxicating liquor with intent to sell the same. Defendant entered his plea of not guilty to the charge, a jury was impaneled, testimony taken, and the jury returned .a verdict finding the defendant guilty as charged in the information, and fixing his punishment at 6 months in the county jail and a fine of $500 and cost. Motion for a new trial was filed and overruled and exceptions duly saved, and from the sentence and judgment the case is brought to this court for review.

The defendant filed seven assignments of error alleged to have been committed by the trial court in the trial of his case. We have carefully examined the record. The testimony on behalf of the state tends to show that defendant was handling whisky, the witness for the state testifying that within about one-fourth mile of the defendant’s house they found several jars of whisky and a place where a still seems to have been operated; that when the officers came to the defendant’s home, or a short distance from the home, he and two other parties were at a car, and in the car was a half-gallon jar of whisky. When questioned as to whose whisky it was, defendant admitted that it was his whisky, this being the only whisky found in possession of the defendant.

The defendant in his own behalf testified and admitted the half gallon of whisky found by the officer in his possession was his and claimed that a negro man had advised him the day previous that at a certain place he would leave him the half gallon of whisky; that the parties that were at his home when the officers came to his house asked about a drink, and he told them what the negro had said, and they went out to the place where the negro said he would leave it, and they found the whisky there. The defendant denied any connection with the whisky or the still found in the canyon about one-fourth mile from his house and denied any connection whatever, or any ownership or knowledge that it was where the officers claim to have found it.

The record in this case is voluminous, but upon careful examination of the record we find that the evidence of the state witnesses is sufficient to sustain the verdict of the jury; while there is conflict in the evidence, this court will not set aside a verdict of guilty or judgment where there is credible evidence, which, if believed by the jury, is sufficient to uphold the verdict, and the testimony of the defendant alone under the laws of this state is sufficient to sustain the verdict of the jury.

An effort was made on behalf of the state to show that the defendant had been engaged in handling whisky previous to this time, but the effort was a failure, there being no competent testimony to show that the defendant had-ever had anything to do with the making or sale of whisky previous to this arrest, and there is no competent testimony in the record to show the defendant to have ever been engaged in either making or the sale of whisky. The quantity he had in his possession was small.

Complaint is made in the record that the court erred in permitting the jury to separate previous to the final submission of the case to the jury, but there is no showing that any of the jurors were influenced or that they violated their oath and instructions of the court while they were separated, and the record fails to disclose that the defendant requested that they be kept together. Under the circumstances in this case, it is the opinion of the court that the ends of justice would be best subserved by modifying the judgment from 6 months in jail and $500 fine to imprisonment in the county jail for 30 days and a fine of $50.

For the reasons stated, the judgment is so modified and, as modified, is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


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    JOHN PHILLIPS v. STATE.
    No. A-6690.
    Opinion Filed Jan. 7, 1928.
    (262 Pac. 702.)
    W. Shearer Brown, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of larceny from the person, and was sentenced to serve a term of one year in the state penitentiary.

Since the appeal was taken, it has been made to appear to this court by the county attorney of Muskogee county that the defendant has departed this life.

In a criminal prosecution, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that the accused has died pending the determination of the appeal, the cause will be abated.

It is therefore ordered that the above-entitled cause do abate, with directions to the trial court to enter appropriate order to that effect.

DOYLE, P. J., and DAVENPORT, J., concur.


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    PERRY WATSON v. STATE.
    No. A-6241.
    Opinion Filed Jan. 7, 1928.
    (262 Pac. 700.)
    Mauntel & Spellman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woods county on a charge of selling whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The only assignment of error argued is that the evidence is not sufficient to sustain the verdict and judgment. The principal evidence on the part of' the stare is that of two persons employed by the sheriff and county commissioners to discover violations of the prohibitory liquor law. They testified that at the time charged they purchased whisky from the defendant. This is denied by defendant, who offers some slight corroboration and some evidence of good character. This presents a question of fact for the jury. They saw and heard the witnesses, and it is for them to say whom they - will believe or disbelieve. There is no complaint of any error in the proceeding. The trial seems to have been orderly and free from error. No reason to disturb the verdict and judgment is apparent.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


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    T. A. WILSON et al. v. STATE.
    No. A-6003.
    Opinion Filed Jan. 7, 1928.
    (262 Pac. 501.)
    W. R. Withington, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The appellants were jointly tried and convicted on an information charging that in Oklahoma county, on the 15th day of April, 1925, they did have in their possession intoxicating liquor, “to wit, 20 gallons of beer, a substance - containing more than one-half of one per cent, of alcohol, measured by volume, and capable of being used as a beverage,” with the unlawful intent to sell the same. The jury fixed the punishment of each at imprisonment in the county jail for six months and a fine of $250. They prosecute this appeal for a reversal of the judgments rendered on the verdicts on the grounds that the court erred in admitting evidence that was illegally obtained by an unlawful search of their residence, and that the evidence was not sufficient to sustain the vérdicts.

The testimony on the part of the state, which was all the testimony offered in the case, tends to show that on the date alleged three deputy sheriffs visited the residence of the defendants and found a keg of so-called “home-brew.” When the case was called for trial the defendants filed a motion to suppress the evidence obtained at their residence under a purported search warrant for the following reasons: (1) That said search warrant was issued without affidavit; (2) that said search warrant was a John Doe, and no one is named in it as being responsible for its issuance; (3) that there is no such a place In existence as described in such’ search warrant — which motion was overruled and exception allowed.

The first witness for the state, H. 0. Brown, deputy sheriff, on cross-examination testified as follows:

“Q. Where is that search warrant? A. I don’t know.
“Q. Have you made a search for this search warrant? A. Yes, sir; and Hawkins, who issued it, said there was no application and that the search warrant was never returned, but he has a notation on the docket that he issued it.”

Here the assistant county attorney stated:

“We contend in this case that we didn’t need a search warrant.”

The next witness, Crossley, deputy sheriff, testified that he went out to the defendants’ place on May avenue, about two miles west of Classen Boulevard, in Oklahoma City; that they were sitting down to supper, and one of them came to the door, and he told them that they were officers, and that he had a search warrant and they wanted to look them over; that after he made the return on the search warrant he probably returned it to the court; then he was informed that Deputy Sheriff Brown made the application for the search warrant.

One or two of the officers testified that when they informed the defendants that they had a search warrant and were going to search the place, the defendant Beaty said, “All right, go ahead.”

At the close of the evidence for the state the defendants moved to strike the evidence, which was overruled, and then moved for a directed verdict of acquittal in the form of a demurrer to the evidence, which was overruled.

A search warrant issued without an affidavit showing probable cause is a nullity, and evidence procured by a search under such warrant should, on timely objection, be excluded. Wingfield v. State, 33 Okla. Cr. 342, 244 P. 53. The admitted acts of the officers show that they acted without authority of law, and that all the state’s evidence was procured by an invasion of. rights guaranteed by section 30 of the Bill of Rights, and that the same was admitted over the defendants’ objections, in violation of section 21 of the Bill of Rights.

The search and seizure was made under the authority of a purported search warrant, a copy of which was delivered to the defendants there present at the time. What these defendants might have said could not have prevented the search. It is the well-settled doctrine in this state that a defendant does not waive his constitutional right by freely and voluntarily consenting to a search made under the authority of a search warrant. Smith v. State, 34 Okla. Cr. 434, 246 P. 1109; Hancock v. State, 35 Okla. Cr. 96, 248 P. 1115; Whitford v. State, 35 Okla. Cr. 187, 249 P. 430; Shockley v. State, 35 Okla. Cr. 437, 251 P. 514; Jones v. State, 36 Okla. Cr. 180, 253 P. 310. It .follows from what has been said that the court erred in overruling the defendants’ motion to suppress, and their motion for a directed verdict of acquittal should have been sustained.

Because all the evidence offered by the state was obtained illegally and in violation of the constitutional rights of these defendants, the judgments of the lower court are reversed and the causes remanded, with direction to dismiss.

,EDWARDS and DAVENPORT, JJ., concur.


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    LINCOLN WOLFE v. STATE.
    No. A-6594.
    Opinion Filed Jan. 7, 1928.
    (262 Pac. 505.)

      Williams & Martin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith Ci Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, referred to in this opinion as defendant, and Tom White, John Duncan, and George Leach, were jointly charged with the murder of Sam Leach. A severance was taken, and the state placed the defendant Lincoln Wolfe on trial first. At the trial of this defendant a verdict of guilty of manslaughter in the first degree as charged in the information was returned by the jury and the punishment left to the court. Motion for a new trial was filed and overruled, and exceptions duly saved. The court sentenced the defendant to the penitentiary at McAlester for a term and period of 15 years. From the judgment of the court on the verdict, defendant appeals.

Defendant assigns numerous errors committed by the trial court; but the only assignments we deem necessary to consider are assignments 3 and 5, which are as follows:

“(3) The court erred in admitting the testimony of Dan Smith, a witness for the state, over the objection of the plaintiff in error.”
“ (5) The court erred in admitting the testimony of Stan Christie, a witness for the state, over the objection of the plaintiff in error.”

These two assignments relate to alleged conversation that Dan Smith claims to have had with George Leach and John Duncan, who w'ere codefendants jointly charged with the defendant in this case, and also to alleged conversation Stan Christie claims to have had with the codéfendants George Leach and John Duncan.

The theory of the state, as disclosed by the record, is that the defendant, acting with the other defendants named in the information, administered blows to the deceased, Sam Leach, from the effects of which he died. The evidence of the witnesses Dan Smith and Stan Christie in substance were that George Leach, while in jail and after the death of deceased, and in the absence of the defendant on trial, stated to the witnesses that defendant struck deceased one or more times with some kind of a club or blunt instrument before defendants left the place where the car was wrecked. Counsel for the defendant objected to the statement of the witnesses Smith and Christie on the ground that the statement of the conversations claimed to have taken place between the witnesses Smith and Christie and G'eorge Leach took place after the death of Sam Leach and in the absence of the defendant on trial. The court overruled the objection of the defendant and permitted the witnesses to testify to alleged conversation they had with the codefendants of this defendant after the defendant was in jail and his codefendants were in another jail, all of which alleged conversation, if it took place at all, was separate and apart, and not within the hearing of this defendant.

This question has been before the court so often that it seems useless to discuss the question at length and it would seem that the courts should be perfectly familiar with the question involved.

Underhill on Criminal Evidence (3d Ed.) § 719, p. 963, lays down the principle that acts declared by a conspirator cannot be admitted as against a coconspirator unless such acts were performed or such declarations made in aid or in execution of the conspiracy, so the acts or declarations must occur during the life of the conspiracy, that is, after the formation of the corrupt agreement and before consummation or abandonment of the object of the conspiracy. 8 Cyc. 680.

In Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57, the court said:

“If Holmes and McKinley were concerned with the defendant in the commission of the offense charged in the information, then all were principals, and anything said or done by either of them in pursuance of the common design to commit the offense would be competent evidence not only against the person making such statement or doing such act, but also against the defendants concerned in the commission of the offense. This would be true as long as said parties were concerned with each other in the commission of the offense, but it would not include any acts done or statements made after the completion of the offense unless the person against whom it was offered in evidence was present and saw or heard the act done or the statement made, and assented thereto or acquiesced therein.” Wells v. State, 5 Okla. Cr. 22, 113 P. 210; Burns v. State, 8 Okla. Cr. 554, 129 P. 657; Washmood v. State, 20 Okla. Cr. 254, 136 P. 184; Smith v. State, 20 Okla. Cr. 362, 202 P. 1046.

In Ramsey v. State, 35 Okla. Cr. 347, 250 P. 936, the court states:

“Where two persons are jointly charged with the commission of a, crime, and only one of them is put upon trial, statements made by the codefendant after the termination of the conspiracy between the defendant and codefendant, if any existed, are not admissible against the defendant on trial, and where such statements are clearly prejudicial their admission is reversible error.”

The statement of the witnesses Dan Smith and Stan Christie would have been admissible if George Leach or John Duncan had been on trial. The conspiracy, if any existed, between George Leach, John Duncan, and the other defendant on trial, terminated on the death of the deceased. A statement made thereafter by George Leach or any other one of the codefendants in the absence of the defendant was not binding on the defendant; they were not competent, and their admission was prejudicial to the rights of this defendant. We can understand the difficulty under which the state was placed in not being- able to present the testimony of these witnesses; but rules of evidence cannot be broken down to meet the exigencies of any particular case. The circumstantial evidence was not strong, and without this combined evidence the verdict might have been different.

The view we take of this case it is not deemed necessary to consider the other assignments of error.

The case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


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    WILLIAM T. SMITH v. STATE.
    No. A-6777.
    Opinion Filed Jan. 7, 1928.
    (262 Pac. 507.)
    C. R. Reeves, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of attempting to steal an automobile, and was sentenced to serve a term of two years in the State Penitentiary.

The information charges that defendant attempted to steal an automobile, the property of one Mrs. William Pheiffer. The information is rather indefinite in alleging conclusions, but, under the liberal rule adopted by this court, it is sufficient.

The evidence discloses that, at the time charged, two policemen observed defendant on the streets of Oklahoma City getting into various cars, and apparently attempting to start them. He entered an inclosed car alleged to be the property of Mrs.. William Pheiffer, but, on account of the wheel being locked, was unable to start it, and, on seeing the officers approaching, he left the car, and went into an alley where he was apprehended. On his person was found a stick with a nail formed as a hook, which he used to reach inside and open the door. The evidence seems clear that he was trying to steal this automobile. The state failed to prove clearly the corpus delicti in this, it did not clearly prove the ownership of the car in question. Mrs. Pheiffer, a witness for the state, and the alleged owner of the car, testified that she did not even know that her car was parked at the place described, and had no information of any attempt to steal it, if such occurred, until some weeks later, when she was subpoenaed as a witness. No other witness for the state testified that the car belonged to Mrs. Pheiffer, nor was there direct proof that, if Mrs. Pheiffer owned the particular car charged, she had not given consent to defendant to drive it. She was not questioned on this point. At the close of the state’s case, defendant was called as a witness, and was asked by his counsel if he had any intentions of stealing this automobile. Upon objection, the court excluded this evidence. This was prejudicial error. It is well established that a defendant charged with a crime whieh~has as one of its ingredients an unlawful intent may explain his intent and mental purpose, and may deny the specific intent required to constitute the offense. Wig-more § 581, says, with the exception of Alabama, the rule is absolute in the United States. See Snow v. State, 3 Okla. Cr. 291, 105 P. 572; Cosby v. State, 30 Okla. Cr. 294, 236 P. 51; 8 R. C. L. § 174, p. 181, authorities cited.

For the reasons assigned, the case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


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    T. H. CALLOWAY v. STATE.
    No. A-5863.
    Opinion Filed Jan. 9, 1928.
    (262 Pac. 696.)

      Brown, Brown & Williams, for defendant in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information, in substance, charging that in Carter county, on or about the 5th day of September, 1924, T. H. Calloway did shoot and kill one Alfred Wells with an automatic pistol, he was tried and convicted of manslaughter in the first degree; the jury by their verdict fixing his punishment at confinement in the penitentiary for a term of 20 years. Motion for a new trial was duly filed and overruled, and from the judgment pronounced in pursuance of the verdiet, he appeals.

For a proper understanding of the question raised a brief statement of the facts will be necessary.

It appears that the deceased, Alfred Wells, was an Indian, who with his wife and children lived on a farm in Carter county, about a mile from the home of the defendant. On the day previous to the one on which the deceased was killed the defendant had gone to the home of Alfred Wells, during his absence, and had taken the sideboards of a wagon belonging to Wells, but which wagon was in the possession of the defendant. Shortly afterwards Alfred Wells appeared, and there was a difficulty between the two men over the wagon in question. During the difficulty the defendant knocked Wells down two or three times.

The evidence shows that on the following evening, near sundown, the defendant and his wife and a neighbor named Scanlan were at the defendant’s place, when Mrs. Calloway observed Alfred Wells coming towards the house driving a team with the harness on, evidently for the purpose of taking away his wagon. The defendant took his gun, and went out to the gate. Wells put his hand on the gate, whereupon the defendant drew his pistol and fired one shot. The bullet struck Wells on the right temple, midway between the ear and eye, killing him instantly.

Julia Davis testified that Alfred Wells lived on her place in a tenant house, about 20 steps from her home; that the defendant was there the day before Wells was killed, and at that time she saw him knock Alfred Wells down with his fist; that when Wells got up, defendant knocked him down again; that he was there on the ground about an hour, and she went over to see if he was living or dead, and found that he was still breathing; that some other parties came up, and she went back to the house.

W. E. Scanlan testified that he lived about three-quarters of a mile from the defendant, and was present when Alfred Wells was killed; that he vsias in the house talking to defendant, and his wife said, “There comes Alfred.” The defendant walked to the door, came back, then went in the adjoining room, then came back, put his hat on and walked out, and he followed him. At that time Alfred Wells was about 50 yards down the road, coming towards them, driving a team with the harness on. That he drove up to the gate, and dropped his lines. The defendant said, “Alfred, what are you going to do?” and he said, “Get that wagon”; the defendant said, “What about my hog wire?” and he said, “If you want your damn hog wire go get it.” The defendant was standing with his right hand in his jumper pocket. Mr. Wells was standing about three steps away. They were directly face to face. The defendant said, “Alfred, you open that gate, and I will kill you.” The defendant said that three or four times. Alfred pulled the latch, and defendant jerked his pistol and fired. Alfred Wells turned completely around and fell on his back.

As a witness in his own behalf, the defendant testified that he lived a little less than a mile from the place that Alfred Wells farmed; that he had given some hog fence wire to Wells for an old wagon; that with Mr. Scanlan he went to Wells’ place to get the sideboards of the wagon; that Wells was not at home; that he took the sideboards, and as they were leaving they met Wells; that they had an altercation; that Wells became impudent, and he knocked him down; that he knew that Wells had a Winchester and a six shooter in the house, and he was trying to keep him from going to the house. Then he told Mr. Scanlan to hold Wells until he could get: away, and he drove rapidly away. About 3b minutes later Mr. Scanlan came to his home, and told him of threats made by Alfred Wells against him. The next day, with Mr. Scanlan, he went to the sheriff’s office; then they returned to his home. About 5 o’clock that evening he was talking to Mr. Scanlan, when his wife said, “Yonder comes Alfred Wells.” He looked out, and saw him coming. Then he put his pistol in his pocket, and walked out to the gate. Mr. Scanlan followed him; that Wells stopped at the gate, and he said, “Alfred, what do you want?” Wells said, “I am after my wagon.” He told him, “Alfred, you are not going to get the wagon until you bring my wire back, and then I will take it to you.” That Wells started to open the gate, and he said, “Alfred, don’t go in there, I will hurt you,” and he told Wells that three times. Wells put his hand on the gate, and said, “When I get through with you, you will not need a wagon;” at the same time threw his other hand back toward his hip pocket; then he shot Wells. Asked, “Why did you shoot him?” he answered, “I was afraid I was going to get killed.”

In support of the contention of counsel that the judgment should be reversed and a new trial awarded, several errors are assigned, only two of which are argued. The first is alleged misconduct of the trial court. The record shows that John W. Ginn, deputy sheriff, as a witness for the defendant, testified that he was in the sheriff’s office when the defendant and Mr. Scanlan came there on the day of the homicide. He was then asked:

“Did he ask or seek protection there? What were they doing there? (The state objected.)
“By the Court: Sustained; I will let you make your record, Mr. Brown, but I will send the jury put before I do it.
“Counsel for defendant: We want the record to show what we expect this witness to testify. Further, we want the record to show the conduct of the court in laughing at defendant’s counsel, and we except both to the action of the court and the demeanor of the court.
“By the Court: The court is not laughing at defendant’s counsel, and, if you make that statement again, you will find yourself in contempt of court, and the court will fine you. Do you want the jury withdrawn?
“Counsel for defendant: We do. We except to the conduct of the court and the ruling of the court. (Here the jury retires to their room.)
“Counsel for defendant: The defendant expects the witness to testify, and such testimony is true, that the defendant came to the sheriff’s office in the city of Ardmore at a time when this witness was a deputy sheriff, and the defendant tried to get protection, at which time this witness informed defendant he could not give him protection, but that he would have to go back and protect himself.
“The Court: Which offer and tender of proof is rejected, for the reason that it is incompetent, irrelevant, and immaterial, and is a self-serving declaration. (Here the defendant again objects to the action and demeanor of the court and the statement of the court.)
“By the Court: Mr. Brown, the attorney who was making the objection, jumped up and attempted to make the statement as to what he expected the witness to testify in the presence of the jury, without the jury being withdrawn, and Mr. Brown persisted in stating in the record his statement in the presence of the jury.”

The record contains a further statement by the court, in the absence of the jury, wherein the court expressly makes a finding that the statement of counsel as to the alleged improper conduct of the court was not true, and wherein the court offered to permit counsel for the defendant to file in the record any affidavit or other proof that he may have, either now or at any time during the progress of the trial, showing, or tending to show, that the court acted in any improper manner. The record fails to show that any such proof was offered, and the question argued is not presented by the objection as made.

What the defendant said to Deputy Sheriff Ginn, and what said Ginn said to him, would be merely self-serving declarations, and the objections thereto were properly sustained.

The remark of the court that, “If you (referring to defendant’s counsel) make that statement again, you will find yourself in contempt of court, and the court will fine you,” may have been improper, having been made in the presence of the jury. However, the rule is well settled that it is not every improper remark of a trial court that will justify a reversal. If the remarks are such as might reasonably influence the jury against the defendant, a new trial should be granted; but, if after a full consideration of the entire record, it is clear that the verdict is right, and that, even if the remarks had not been made, the jury could not have reasonably returned a different verdict, the judgment will be affirmed.

Our Code of Criminal Procedure (section 2822, C. O. S. 1921) provides that no judgment shall be set aside or new trial granted unless it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.

By this provision this court is forbidden to reverse a judgment of conviction for error, unless, after an examination of the entire record, it is of the opinion that the error has probably resulted in a miscarriage of justice. It thus makes it the duty of this court in considering the questions of law presented to examine the entire record, including the evidence. It follows that this court is necessarily vested with a large discretion in determining the effect of errors, and each case must depend upon its own circumstances, since it is the opinion of the court, upon a full consideration of the particular record, including the evidence, that is to control upon the question whether the error complained of has resulted in a miscarriage of justice.

In Jones v. State, 20 Okla. Cr. 154, 201 P. 664, it is said:

“The remarks of the court were unf ortunate, but the attitude of the attorneys was in some measure responsible for this. The defendant and his attorneys cannot be heard to complain of matters brought on by their own wrong. If the rule were otherwise, any defendant in a criminal case would have it within his power to inject reversible error into his case, and so defeat the ends of justice.”

And see Wilson v. State, 17 Okla. Cr. 47, 183 P. 613; Harper v. State, 20 Okla. Cr. 43, 200 P. 879; Pusley v. State, 22 Okla. Cr. 192, 210 P. 306; Shields v. State, 32 Okla. Cr. 344, 240 P. 661.

Considering all that transpired as shown by the record, we are of opinion that the defendant has no just ground of complaint.

The only remaining assignment of error argued is that the court erred in overruling his motion to set aside and vacate the judgment rendered herein upon the ground of newly discovered evidence. The judgment was rendered on June 12, 1925. The motion to set aside was filed on July 6, 1925.

The alleged new evidence is in substance to the effect that the deceased had purchased a gun a long time before the killing. There is no dispute about the deceased owning a gun of that type. The alleged new evidence was to the effect that a gun of this character was found 50 or 60 feet from the scene of the homicide, nearly five months after the killing.

The court, in overruling the motion, in part stated:

“The pants worn by the Indian at the time of his death were exhibited to the jury and the court, and the pockets in, the pants were called to the attention of the court and jury. The testimony shows that at the time the Indian was facing north and the defendant, Tom Cal-1'oway, was standing southeast of the Indian in a plain line of vision with the right hip pocket. Tom Calloway refused to testify that the Indian had a gun, and no gun was found at the scene of the homicide. The hip pocket such as was in these pants could not have concealed a .41 pistol. That would have been a physical impossibility. Especially when the defendant was standing in plain view of that hip pocket and saw no gun. * * * That this testimony at its best shows that the gun was dropped 50 or 60 feet from the homicide. If he had a gun, and dropped it on the way, that would not give this defendant the right to kill him.”

It is a well-settled rule that a motion for a new trial upon the ground of newly discovered evidence, made before judgment or after the judgment was rendered and sentence pronounced, is addressed to the discretion of the trial court, and its ruling thereon will not be disturbed, except for an abuse of discretion; the presumption being that the discretion was properly exercised.

The motion here, we think, is wholly without merit, and was properly overruled.

Upon the record as a whole, we think, after a careful survey of the facts in evidence, that there was no element of self-defense in this case. Considering the testimony of all the witnesses in the case, excepting that of the defendant, it seems clear to us that the defendant should have been convicted of murder. No person has the right to kill another through unfounded fear or cowardice, and while the defendant’s account of the killing differs somewhat from that given by the other eyewitness, he is, we think, guilty of murder upon his own statement. However, the court submitted the question of manslaughter in the first degree, and the jury found the defendant guilty of this lower degree.

It is the province of the jury, if the defendant is found guilty, to determine and fix the degree by their verdict, and it has been uniformly held by this court that, if the jury in a homicide case find the defendant guilty of a lower degree, where the law and the facts make it murder, it is an error in favor of the defendant, of which he cannot complain. Juries frequently render just such verdicts, and this can only be accounted for upon the theory that the verdict was the result of a compromise of opinion.

It appearing that the defendant had a fair and impartial trial, and that no error was committed prejudicial to his substantial rights, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    TAD BUFFINGTON v. STATE.
    No. A-5972.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 699.)
    James S. Davenport, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that in Craig county, January 25, 1925, John Bean, Lewis Bean, Isaac Bean, Henry Trott, and Tad Buffington did unlawfully transport about one quart of intoxicating liquor from a point unknown to a point 31/4 miles southeast of Vinita. Upon arraignment, said defendants each entered a plea of not guilty. A severance was granted and appellant was placed on trial, which resulted in a verdict of guilty, fixing his punishment at a fine of $50 and con*finement in the county jail for 3'0 days. He has appealed from the judgment rendered on the verdict.

The main question presented is whether the evidence was sufficient to sustain the verdict.

It appears that all of the defendants excepting Henry Trott are negroes; that immediately after the verdict in this case was returned, the state dismissed the case as to the defendants John, Lewis, and Isaac Bean.

The undisputed facts are that appellant had gone with Henry Trott in Trott’s truck about 17 miles from Vinita to deliver a death message, received by the Western Union, at Vinita, addressed to the defendant Isaac Bean and he hired the defendant Trott to drive to the home of John Bean and deliver to him the telegram, and asked appellant, Buffington, to go with Trott and appellant on the trip to help to drive the truck. After the message was delivered they, together with the Bean brothers, started back to Vinita in the truck.

Henry J. Campbell, sheriff, testified that he first saw the defendants that evening in a Ford truck east of Vinita, about 10 miles, and that he came on to Vinita and then with his deputy, Powell Smith, went out about 3 miles and there waited for the defendants to come along, that he saw them coming something like a quarter of a mile; the truck stopped and he took his flash light and looked them over; Henry Trott was drunk, and he arrested them, brought them to Vinita, and put them in jail; that Tad Buffington was driving the truck; that there was a fruit jar in the truck near Henry Trott that smelled of whisky; that he understood it was Henry Trobt’s truck.

Deputy Sheriff Smith testified:

“We saw the truck coming towards us. We stopped our car, and they stopped. Sheriff Campbell went to one side of their car and I went to the other. Sheriff Campbell picked up a jar from the floor of the car with some whisky in it.”

As a witness in his own behalf appellant testified:

“Ike Bean got a telegram — he was living in town — that John and Lewis’ sister was dead, and he gave it to me, and I delivered it down there. Telegram is offered in evidence. I went with Henry Trott out there and I delivered the telegram to John Bean, and John went with us a mile further to where his brother Lewis lived, then we all started back to town in Trott’s truck; when we crossed Cabin creek bridge our lights went out, and I had a lantern and put it on the truck, and it went out; I got out to light the lantern when Mr. Campbell and Mr. Smith came up; I drove the truck for Mr. Trott; if there was any whisky there I did not know it; I didn’t have anything to do with the jar or any whisky that was in it, and I did not drink any whisky. Ike Bean employed Mr. Trott to drive his truck down there.”

In a criminal action the weight and credibility of the evidence is for the jury only if there is sufficient evidence of guilt.

The court failed to instruct on the law applicable to circumstantial evidence.

It is a well-settled rule in this jurisdiction that a conviction for violating a criminal law of the state may be had upon circumstantial evidence alone, when it is of such force as to reasonably exclude every hypothesis of the defendant’s innocence.

Appellant did not own the truck and by driving it was only performing an accommodation to the owner. The trip was at night, and he testified positively that he did not know of the fruit jar being in the back of the truck.

Upon a careful consideration of the record, our conclusion is the evidence is not sufficient to sustain a verdict of guilty.

It follows that the conviction should be set aside, and the judgment of the lower court reversed.

EDWARDS, J., concurs.

DAVENPORT, J., disqualified.


text:
    JOE SULAMA v. STATE.
    No. A-5999.
    Opinion Filed Jan. 14, 1928.
    (263 Pac. 163.)
    Parkhurst & Grant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information in the county court of Kay county, Okla,., with having in his possession two gallons of whisky, “the same being a spirituous and intoxicating liquor, with the unlawful intent on the part of him, the said Joe Sulama, to barter, sell, give away, and otherwise furnish the same to persons whose names are to your informant unknown, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state of Oklahoma.”

He was tried and convicted and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. To reverse the judgment the defendant has appealed to this court, and has assigned four errors alleged to have been committed by the trial court. From an examination of the record we deem it necessary only to consider assignments 1 and 3, which are as follows:

“(1) Said court erred in overruling motion of plaintiff in error for a new trial.”
“(3) Said court erred in admitting evidence on the part of defendant in error.”

Errors i and 3 may be considered together, as they relate to the action of the trial court in not sustaining defendant’s objection to the evidence of the state on the ground that the same was unlawfully procured. The testimony on behalf of the state is, in substance, as follows:

B. Easterday, called as a witness, testified:

That he was a deputy sheriff and traffic cop at Blackwell ; that on or about the 18th day of April, 1925, he went to the Smelter Hotel, which is near the smelter in Blackwell, and went to the room of the defendant about 10 or 11 o’clock at night; when he first went to the room and knocked at the door, it took quite a while for the defendant to wake up. “We finally got him awake; we could hear him moving around the room; we told him to hurry up that we wanted to come in, and he answered that it would take time for him to dress, and about that time we heard a window go up; just as quick as I heard the window go up, I turned and ran down the hall; we found the whisky under the window of the room of defendant on the ground right under the window; there was two gallon jugs; we did not find any whisky in defendant’s room, but we did find an empty jug.”

E. J. Wells and a Mr. Tomlison, in substance, corroborated B. Easterday in his testimony as to what had taken place at the hotel or rooming house when they went to it.

The defendant interposed an objection to the testimony on the ground that they came in and searched his room without having a search warrant. The state witnesses all' admitted that they did not have a search warrant, but claimed that the proprietor of the house gave them permission to search. Defendant’s objection to the testimony was overruled by the court, and defendant reserved his exceptions.

The testimony on behalf of the defendant was that this was where he lived while working at the smelter; that he had his room rented; that he had his window up the night these officers came in and was asleep when they came and knocked on his door; that he had a water jug in His room; and that is the only thing the officers in their search found in his room. He denied any knowledge of the whisky, and showed there was no whisky found in his room. The record in this case fails to show that the defendant had any connection with the whisky alleged to have been found on the outside of the building on the ground under the window of the defendant, except by remote circumstances. The state offered no testimony other than the testimony of B. Easterday, E. J. Wells, and Mr. Tomlinson, which testimony was procured unlawfully, neither of the officers claiming to have a search warrant, and neither to justify their acts except to testify that the proprietor of the room-ing house or hotel gave them permission. The proprietor was not called, and if the proprietor had been called, under the proof in this case, he could not orally have given the officers permission to search the private room of one of his guests who had a room rented for a definite period of time* The officers entered the private room of this defendant and searched the same without a search warrant. Their action in so doing was unlawful, and the objection of the defendant to the admission of the testimony on the ground that they had procured the evidence unlawfully was well taken. This court has passed upon this question many times. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Foley v. State, 25 Okla. Cr. 112, 219 P. 179; Dooley v. State, 25 Okla. Cr. 437, 221 P. 112; Stogsdill v. State, 36 Okla. Cr. 194, 253 P. 309; Jones v. State, 31 Okla. Cr. 77, 237 P. 468; Williams v. State, 30 Okla. Cr. 39, 234 P. 781.

There being no evidence to support the verdict and judgment without the use of the evidence which was unlawfully obtained to convict the defendant, the judgment is reversed and remanded, with directions to dismiss.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    H. P. BOWDEN v. STATE.
    No. A-6354.
    Opinion Filed Jan. 14, 1928.
    (263 Pac. 162.)
    Morgan, Osmond & Morgan, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information charging in substance that in Caddo county, on the 28th day of January, 1925, H. P. Bowden did sell and dispose of two; mules, valued at $160, and one wagon and harness, valued at $50, and when said property was so sold there was a valid and existing chattel mortgage given by the said H. P. Bowden to the First National Bank of Anadarko, to secure payment of the sum of $210, wholly unpaid, said property was so sold without the written consent and without the knowledge of said mortgagee, and that said H. P. Bowden so sold said property with the unlawful and felonious intent to then and there cheat and defraud said bank out of said sum of $210.

On the trial the jury returned a verdict finding him guilty as charged and fixed his punishment at imprisonment in the penitentiary for the term of one year and one day. On March 17, 1926, judgment was rendered in pursuance of the verdict. An appeal therefrom was taken by filing in this court, on August 24, 1926, a petition in' error wfth case-made.

On November 9, 1927, the Attorney General filed a motion to dismiss the appeal as follows:

“The appeal was prosecuted as that of a poor person and the plaintiff in error failed to give a supersedeas bond, and was immediately transported to and received into the State Penitentiary on March 20, 1926.
“Counsel for plaintiff in error states in his brief which was filed in this court on October 20, 1926, that the plaintiff in error was at that time serving his term in the State Penitentiary.
“Allowing good time and work time the term of this plaintiff in error would have been served by the^ last of November, 1926. In any event the full term of one year and one day from March 20, 1926, would have expired on and with March 21, 1927, without the allowance of either good time or work time.
“It is apparent, therefore, that plaintiff in error has served the term of imprisonment provided in the judgment of conviction in this case and thus has satisfied the judgment.
“The questions involved in this appeal for such reason have become moot and the appeal should be dismissed.”

Upon the record before us we are convinced that the motion to dismiss should be sustained.

Under the rules of this court counsel for plaintiff in error could have the cause advanced for submission by directing the attention of the court to the fact that no supersedeas bond had been given and by filing a brief or by asking that the cause be submitted on the record.

If plaintiff in error was given the benefit of good time and work time, seven months confinement would satisfy the sentence, and it is made to appear that about that time plaintiff in error received an expiration pardon.

For the reasons stated, the motion to dismiss the appeal is sustained, and it is so ordered.


text:
    OSCAR WINGFIELD v. STATE.
    No. A-5692.
    Opinion Filed Jan. 14, 1928.
    (263 Pac. 158.)
    Chester H. Lowry, Brown Moore, and R. J. Shive, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as defendant, was, by information filed in the county court of Payne county, Okla., charged with larceny of about 112 yards of 32-inch hog wire fence. Defendant entered Eis plea of not guilty to the charge. The testimony on behalf of the state is, in substance, as follows:

George Carrothers testified:

That on the 22d day of February, 1925, some one drove up near his house in a Ford car, and took his wire from his fence; there being about 112 yards of his wire taken. That the amount taken was worth about $11 or $12. That the wire was about twO’ years old. That it had some vines upon it and a special mark on the wire. “I marked it Because there was so much thieving going on down there that a man had to mark his stuff. I found the wire on Oscar Wingfield’s fence, right close to the house, right by the yard fence. After Wingfield was arrested down at Ripley, I asked Oscar where he got the wire, and he said, T will tell you the day of the trial.’ ”

On cross-examination the witness stated:

He had known the defendant for about twelve~yBars; that there was no bad blood between them. “I did not see Oscar Wingfield remove it. I did not see anybody. My wife drew the picture of the tires. She does my writing for me. I filed a replevin suit before a justice of the peace to get the wire.” The case is still pending; it has never been decided whose wire it is. Oscar Wingfield and his wife live with his mother on the old J. J. Wingfield homestead.

Mona Carrothers, wife of George Carrothers, testified, in substance, the same as her husband. She also testified that she saw the wire on the Wingfield fence. “I suppose the fence belonged to Mrs. Wingfield. Oscar Wing-field lives with his mother. The fence was along the road. We found it at the place where Oscar lives. Exhibit A was drawn by me about two months after the wiré was taken. It is a good representation of the mark made by the tires. Oscar drove a Ford car part of the time.”

The evidence on behalf of the defendant was ás follows: Mrs. J. J. Wingfield stated:

“I am the mother of Oscar Wingfield; Oscar lives with me. I have lived there ever since the country was opened. The probate court gave the farm to me as a homestead. After my death, the place goes to the children. I was at home when Carrothers and the constable come and got the wire. They got it off my hog pasture. It was my wire. It had been there for seven years.”

On cross-examination Mrs. Wingfield testified:

“My husband bought that wire; I was with him when he bought it.. A colored boy put the wire on the fence. I can’t remember the time he put it on. I had this negro boy to roll this wire up, and, after a while, when the boys were busy on the other fence, I told him to take the wire and stretch it on the hog fence. I know the wire that 'Carrothers and the constable took off my fence had been there six or seven years; my husband bought it.”

Gene Messcre testified that he sold wire to J. J. Wing-field prior to his death.

In rebuttal, the state called J. G. Combs and Mrs. Josie Combs, his wife, who in substance, testified that they lived on the Wingfield place at one time. They did not know how much wire was on the Wingfield place, but they did not remember having seen any 32-inch hog wire on the place.

Mrs. J. J. Wingfield was recalled, and testified that the wire had been on the place five, six or seven years, she could not just say when she bought it. This in substance, being the testimony of both the plaintiff and defendant.

The defendant, at the close of the state’s testimony, demurred to the evidence of the state upon the following grounds:

“(1) That the evidence of the state wholly failed to support the material allegations of the information filed in said cause.
“(2) For the reason and upon the grounds that the evidence of the state has not shown anything, only shown the recent possession of the property, the subject of larceny, and that such evidence unsupported and uncorroborated is not sufficient to sustain the verdict of guilty against the defendant.
“(3) For the reason that the evidence of the state does not show that this defendant has committed any public offense against the laws of the state of Oklahoma.”

The demurrer was overruled, and defendant reserved an exception. A jury was impaneled, and, after hearing the evidence and receiving the instructions of the court, retired to consider its verdict, and thereafter returned into court the following verdict:

“In the County Court of Payne County, State of .Oklahoma. Oscar Wingfield, Plaintiff, v. State of Oklahoma, Defendant. No. 4341. Verdict. We, the jury duly impaneled and sworn to try the issues in this cause, do upon oath find the defendant guilty as charged in the information, and fix his punishment at........or by the court.
“D. C. Freeman, Foreman.”

The defendant objected and excepted to the verdict as returned by the jury. Motion for a new trial was filed, considered, and overruled. Defendant duly excepted. Defendant was sentenced to pay a fine of $50 and costs of the action, and to serve a period of ten days in the jail of Payne county, Okla. From the sentence and judgment the case is brought to this court for review.

We will consider first defendant’s second assignment of error, which is as follows:

“(2) The court erred as a matter of law in receiving the verdict of the jury in said cause.”

Defendant contends that the verdict in this case is not sufficiently clear and in proper form to sustain the sentence imposed by the court on him. It is necessary then to consider the form of the verdict returned, and to ascertain whether or not the verdict is in such form as would justify the court in imposing a sentence on the defendant, or is it too vague and uncertain to support the judgment?

In Rea v. State, 6 Okla. Cr. 366, 118 P. 815, the jury returned the following verdict:

“We, the jury, drawn, impaneled, and sworn in the above-entitled cause, do upon our oaths find the defendant guilty as charged in the indictment herein and impose a fine of $50, and recommend that the court suspend the jail sentence.”

The court, in considering the form of the verdict, says:

“The verdict in form returned is insufficient to support a judgment of conviction and sentence. Under the law, in a verdict of guilty, the jury may assess and declare the punishment, which must, in cases of this kind, be both fine and imprisonment, or if they fail to agree on the punishment, or do not assess the punishment, the court shall assess the punishment. Having returned an erroneous and informal verdict, it was the duty of the court to direct them to reconsider the verdict. * * *
“ ‘If the jury rendered a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.’ ”

In Campbell v. State, 14 Okla. Cr. 319, 170 P. 915, this court said:

“A verdict finding the defendant ‘guilty as charged in the information and submit his punishment to the court’ is insufficient as to form and is too vague and uncertain to support a judgment for the highest degree of the offense charged.”

In the case of George et al. v. State, 28 Okla. Cr. 388, 231 P. 318, this court says:

“On a trial of two defendants, charged with violations of the prohibitory liquor law a verdict merely finding the defendants ‘guilty’ is not sufficiently certain to enable the court to pronounce judgment.”

The verdict in this case is too indefinite, vague, and uncertain in form; not being sufficiently clear for any one to understand what the jury intended. It was clearly the duty of the court, when the defendant objected to the verdict being received, to have, under proper instruction, directed the jury to return to the jury room and prepare a proper form of verdict explaining clearly what the intent ■of the jury was.

We hold that the objection of the defendant to the receiving of the verdict was well taken, and the court should Rave sustained the same, and that the court committed an error in overruling the objection of the defendant to the receiving and recording of the verdict.

There are other errors assigned and argued by the defendant, but in the view we take of this record, as to the form of the verdict, we do not deem it necessary to consider them.

The case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    HORACE GILSTRAP et al. v. STATE.
    No. A-5957.
    Opinion Filed Jan. 14, 1928.
    (263 Pac. 155.)
    M. D. Hartsell and W. W. Cotton, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants,- were convicted in the county court of Muskogee county on a charge of having the unlawful possession of mash fit for distillation, and were each sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that one Louis Gilstrap owned a rough farm about 5 miles from the town of Braggs. This farm was leased to defendants, who resided thereon, and who are brothers-in-law. At the time charged, two officers and another person went to this place, and about 240 or 250 yards from the residence house, in an exceedingly rough and secluded place in a woodland pasture, found a cave or dúgout fitted up, containing about 200 gallons of whisky mash in four barrels, a stove, and some other paraphernalia. About 50 yards distant was a large spring from which water for use in distilling was evidently procured. A foot trail led from the residence house out through a cotton patch to a garden which was about 40 or 50 yards from this cave, and there is evidence, although it is conflicting, that a foot trail led from this garden in the direction of the spring and passed near the cave. No one else lived near.

It is argued that the evidence is insufficient to sustain the judgment. The evidence is entirely circumstantial, but the circumstances are consistent with the guilt of defendants and inconsistent with their innocence. It is not reasonable that any other person would have come upon the premises occupied by defendants and within 250 yards of their residence have prepared the cave, placed mash therein, and have installed the fixtures found by the officers. In many respects the facts in this case are similar to those in Kelso v. State, 38 Okla. Cr. 342, 261 P. 377, wherein the circumstantial evidence was held sufficient.

The further complaint is made that the court admitted incompetent testimony which materially prejudiced the substantial rights of defendants. This contention is on the theory that the officers making the search were without a valid search warrant. This court has many times held that a search warrant is not necessary for the search of woodlands, canyons, pastures or fields not in the immediate proximity of a dwelling house, and that a search without a warrant, of such places, is not unreasonable. Penney v. State, 35 Okla. Cr. 151, 249 P. 167; Merck v. State, 35 Okla. Cr. 160, 249 P. 163; Cummings et al. v. State, 37 Okla. Cr. 47, 256 P. 70; Mitchell v. State, 38 Okla. Cr. 167, 259 P. 661.

The case is affirmed.

DOYLE, P. J., and DAVENPOET, J., concur.


author: DAVENPOET, J.

text:
    ANDY COOKSON v. STATE.
    No. A-6286.
    Opinion Filed Jan. 14, 1928.
    (262 Pac. 703.)
    W. E. Douglas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPOET, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of conjoint robbery and sentenced to serve a term in the State Eeformatory at Granite, for a term of five years at hard labor. An appeal was filed in this court on J une 28, 192,6. No briefs have been filed on behalf of defendant in support of his assignment of errors, and no appearance has been made for the defendant.

Under the rules of this court, where an appeal is not supported by briefs and no appearance is made for the plaintiff in error, it is assumed that the appeal has been ■Abandoned or is without merit.

We have carefully examined the record, and find that the information sufficiently charges the offense; that the evidence supports the charge; that the instructions of the court were reasonably fair to the defendant; that there was no error in the introduction of the testimony prejudicial to the rights of the defendant; that the defendant was accorded a fair and impartial trial.

The judgment is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.