text:
    HOMER KELLEY v. STATE.
    No. A-6686.
    Opinion Filed Aug. 3, 1929.
    Rehearing Denied Oct. 19, 1929.
    (281 Pac. 158.)

      F. H. Hurst and W. H. Hussey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of selling one-half gallon of whisky, and sentenced to pay a fine of $100 and imprisonment in the county jail for a period of 60 days, from which sentence the defendant has appealed to this court.

The defendant demurred to the information, which demurrer was overruled, and defendant excepted. From an examination of the information we hold that the information sufficiently states facts sufficient to charge the defendant with the crime of selling intoxicating liquor, and to advise him of the offense charged against him. When the case was called for trial, the defendant objected to the introduction of any testimony on the ground that the information did not state a cause of action. Objection overruled, and defendant excepted.

The state called Harve Rollins as a witness, who testified in substance he knew Homer Kelley; he got acquainted with him in the fall of 1926; he and a man by the name of Newsom went to defendant’s home, and Newsom asked the defendant for whisky; defendant told Newsom he could not have it; “we kept talking and arguing with him, and he brought out a little, and we drank it sitting on the car; before we left he brought out a half gallon, and Mr. Newsom purchased it from him; he told Newsom he wanted $6 for the half gallon, and Roy said he never had any money but be would pay bim later; Mr. Kelley accepted that and be brought the whisky out to the car and delivered it to Mr. Newsom, and we drove off. The defendant brought some whisky out in a fruit jar, I don’t know how much there was in the jar, and we drank it there. I had not had any whisky that morning; I knew what I was doing when I got in the car; when we left there I don’t know where we went; I came to my senses at home the next morning; I drank some of the whisky Newsom bought, I don’t know how much; I was arrested at Park’s filling station at Tipton; I cannot state what time of the month or what month it happened.”

On cross-examination the witness stated he left the country the next morning, instead of going back to town, and when he returned he came to town and made a complaint against the defendant on November 30, 1926; defendant had talked to him once or twice since he had been arrested as to what he was going to swear at the trial.

The defendant testified in his own behalf, and denied selling Roy Newsom any whisky when the prosecuting witness was with him at defendant’s home or any other time, and states he positively would not sell the-whisky to Newsom on a credit. Two or more witnesses testified as to his previous good character.

Mr. G. M. Cecil testified that the reputation of Harve Rollins for truth and varacity was bad, and knowing that reputation he could not give his testimony full credit.

The defendant alleges the court committed several errors in the trial of the case; the first being, the court erred in overruling defendant’s motion for a new trial; and, fifth, that the court erred in overruling motion of defendant for an instructed verdict of not guilty, at the conclusion of tbe evidence offered both by the state and the defendant.

The testimony in this case is conflicting. The only witness called by the state as to' the sale of the whisky stated he was with Roy Newsom at defendant’s home when Roy bought the whisky from the defendant, that he agreed to pay him $6 for the one-half gallon, that no money was paid, and that the defendant sold Newsom the whisky on credit. He also stated that defendant brought out some whisky in a fruit jar, and that defendant Newsom and himself drank some of the whisky; as they went away from there, he became intoxicated and did not know where he was arrested by the officers, and did not know what took place until next morning when he woke up at home.

He stated he started for town next morning, but left and was gone for some time, and came back and wanted to know where he was setting, and went to town on the 30th of November, 1926, and filed a charge against the defendant for selling whisky to Roy Newsom. The defendant denied he sold any whisky to Newsom. Newsom was not called as a witness. The state made an effort to show that Newsom was out of the jurisdiction of the court and» could not be found.

The defendant admitted he had a little whisky at his home, and that he gave Rollins and Newsom a drink of it, and that he took one himself, and they stayed around for some time and left. The testimony is positive as to the sale of the half gallon of whisky to Newsom, yet it seems incredible that a man engaged in the illicit sale of whisky would sell whisky on a credit.

The court properly declared the law to the jury, and the jury is the sole and exclusive judge of the witnesses* and their demeanor on the witness stand, and the weight it would give to their testimony. It has been repeatedly held by this court that where there was any competent testimony, though conflicting, this court would not disturb the verdict.

There are other errors assigned, but after a careful examination, we hold they are not of sufficient merit to justify a reversal of this case.

The judgment is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    H. A. FORTMAN et al. v. STATE.
    No. A-6593.
    Opinion Filed May 11, 1929.
    Rehearing Denied Oct. 19, 1929.
    (280 Pac. 1109.)

      O. H. Whitt and Frank Watson, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were found guilty of robbery with firearms, and each was sentenced to imprisonment in the state penitentiary for a period of five years. Motion for new trial was filed, considered, overruled, and exceptions saved, and the defendants have appealed to this court.

The testimony in this case shows that the defendants, who claim they were traveling from Hot Springs across the country, stopped in the town of McAlester, where they formed the acquaintance of a man by the name of William Wood; that William Wood took them to his apartment and let them sleep in the apartment; that his wife was away from home; some time thereafter William Wood advised them he knew where there was a poker game going on in the town of Krebs, and he was sent to find out the amount of money that was in the game, and about 1 or 2 o’clock in the morning the defendants accompanied Wood to Krebs where the poker game was in progress, and the defendants held up the parties in the game and secured quite a sum of money; they returned to Wood’s apartment and the money was divided; later they were all arrested, and William Wood turned state’s evidence and told of the plans of the robbery, the execution of the same, and the dividing of the funds. The state corroborated the testimony of Wood and showed where one of the defendants went to a business house in the town of Mc-Alester the afternoon of the robbery and bought a pistol; the pistol that was sold was identified by the party selling it; it was found on the person of one of the. defendants. When the robbery was executed the parties doing the robbery had their faces covered with a handkerchief, but the one who did the talking had a peculiar voice, and one of the parties in the game testified that this party’s voice was the same voice he heard while the robbery was going on. After the defendants were placed in jail, they turned over to some of the inmates a considerable sum of money; they had never known the parties before, but stated they did not want the money to be found upon them, as they were charged with robbery.

The defendants denied the robbery, but admitted they had been stopping at the apartment of the defendant William Wood, who had turned state’s evidence. They insisted that Wood went away from home at different times while they were there and that they did not take any part in the robbery of this poker game. The defendants were identified by other witnesses as being the parties who came to the Wood apartment and had left their car near the entrance of the apartment. This is in substance the testimony in the case. No one seems to have known these defendants or to have seen them until they came to Mc-Alester, where they claim to have spent the night in a rooming house, and the next day met William Wood who testified against them and detailed the planning of the robbery and the dividing of the money.

It is urged by the defendants that there is no corroboration of the accomplice William Wood. Under the provision of our statute a defendant cannot be convicted upon the uncorroborated testimony of an accomplice. This court has repeatedly held that in order to convict the defendant there must be some testimony corroborating an accomplice. Collins v. State, 28 Okla. Cr. 45, 228 Pac. 1001; Kirk v. State, 10 Okla. Cr. 281, 135 Pac. 1156; Davis v. State, 31 Okla. Cr. 109, 237 Pac. 471.

The record in this case shows that Wood is corroborated by the testimony of Briney Watson, who was conducting- the poker game, as to the fact of the robbery and the time thereof, and as to the money taken from him and the approximate amount taken from all the parties at the time the game was robbed, and the further circumstances that there were three men engaged in the robbery in the house.

Isaac Zabara also testified that while he could not positively identify Davis’ voice he believed he heard the voice of Davis that night at the time of the robbery. The testimony further tends to corroborate Wood as to the purchase of the pistol.

In Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, in the first paragraph of the syllabus, the court said:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.”

In the opinion the court said:

“It is well established that the evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only”—citing a number of authorities.

We reach the conclusion that the testimony of the accomplice in this case is sufficiently corroborated by in-' dependent evidence tending to connect the defendant with the commission of the offense. After a careful and full consideration of the record, however, we are convinced that the defendants had a fair and impartial trial according to law, and that the errors complained of and presented in their brief were not such as would authorize this court to reverse the judgment.

For the reasons given in this opinion the judgment of the court of Pittsburg county is affirmed.

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


text:
    J. O. PRUITT v. STATE.
    No. A-6377.
    Opinion Filed Feb. 23, 1929.
    Rehearing Denied Oct. 19, 1929.
    (280 Pac. 1105.)
    Newton & Pinson, 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 convicted in the district court of Wagoner county, of manslaughter, and sentenced to confinement in the penitentiary for 14 years. Motion for new trial was filed, considered, and overruled, and defendant duly excepted, and has appealed to this court.

The defendant demurred to the information on the ground that it did not state facts sufficient to charge an offense. The information states sufficient facts to advise the defendant of the charge against him, and the demurrer was properly overruled.

The testimony on behalf of the state is, in substance, as follows: Pete Pruitt, a son of the deceased, testified he was 11 years old; he was at home the night of the alleged trouble between his father and mother; his mother was Lena Pruitt; his father had been to Coweta the day before the trouble occurred at night; when he returned from Coweta, Jim Thomas aand Mr. Harris returned with him; they were colored men; that, after Thomas and Harris left, his father came in the house, and his mother told him he had better let the old horse stay out there and eat grass; he was intending to go to a picnic at the church-house;

“My mother asked my father about a hat or something, and he got mad, and they went to fighting, and he whipped and beat her, and tried to make her take it back; he got up and got the gun and hit her in the side and broke her down, and tried to make her take it back, what she said about the hat; he had bought a hat, and my mother asked how come he did not bring some milk for the baby, and he got mad. The hat was for Georgia Bland, a negro woman who lives in the community; he got the gun from the side of the wall, it was a Winchester rifle; before he got the gun he had hit her with his fists; when she fell to the floor, he began kicking her in the breast; I do not know how many times he kicked her; she got up and got to the bed some way; wanted some water to wash her face, and I got her a pan of water; her eyes were blooded, and blood about her face; there was blood on the side of her head; father then made me go back to bed; there are two rooms in the house. My mother was not up any time Monday that I know of; there was no washing done at our house on Thursday after my father had the trouble with my mother on Saturday; my mother was taken to Coweta about Friday after the trouble, in a wagon; she never got up any more after she came home from Coweta on Friday.”

The witness was asked in regard to many things not material to this case.

• On cross-examination, witness stated his father hit his mother with a gun; that he saw the gun in his father’s hands;

“He hit her on the side with the gun once; I saw him hit her five or six times with his fist, on the head and neck; I was not scared to bring the water; my father told me to bring the water; this was on Saturday night; my mother did not do anything the next morning, she did not let Mr. Flynn and grandfather in the next morning, the door was already open; my mother went to town Friday with my father and the baby, he took mother to a Doctor; I do not know when Dr. Riddle first came out to the house; my mother stayed in bed all the time after he first came out to the house until her death; I think Dr. Carter came out either Saturday or Sunday before mother died.”

Lee Trunnell was called, and testified she was living in Coweta in 1925, and remembers the case of Lena Pruitt being confined to her home about the 11th day of July, 1925, or some days afterwards; Lena Pruitt was beat up on the 11th of July; witness stated she was at her home the 13th, which was on Monday; Lena Pruitt was her niece;

“She was in bed, there was a big lump of blood in her eye, a gash on the side of her head, and there was prints, on her neck, seems like she had been choked; I was at her home about three hours.”

Several other witnesses were called by the state who testified as to the injuries on the body of Lena Pruitt, in substance, as did Lee Trunnell.

Dr. A. E. Carter, called on behalf of the state, in substance, stated his home was at Haskell, Okla.; that his name was A. E. Carter; prior to coming to Haskell he lived at Coweta; had been a practicing physician for 21 years; had practiced at Coweta about 18 or 19 years; he knew Lena Pruitt in her lifetime; he had visited her in a professional way; that he visited her just before she died; that it was on Saturday, about the 21st or 22d of July, and she died the Monday following the Saturday he visited her; when he first went to see her she had what you call bloodshot eyes, inflammation of the eyes, and a dark discoloration around the eyes; she was in a semiconscious condition; she seemed to be somewhat restless, and had very high temperature;

“After noticing this discoloration around her eyes, I tried to talk with her and could not get any information; there was two other ladies there; and as I could not get any information, I had the ladies move her to one side of the bed, in order to make a better examination, and I noticed her abdomen was distended, very tender, and then on the left side there seemed to be some rigidity there—a hardness to one side—she was semiconscious and in great pain, and in such condition that I could hardly examine her as I wanted to on my first visit; her fever was very high, and I was afraid it would go higher and she would have a shock, and I decided I would not do anything more, and left instructions to be carried out I said I would come back Sunday; I returned Sunday, and found her condition worse; I figured the rigidity on the left side must have been caused from an injury of some nature, judging from the condition of the discoloration, I figured there must have been some injury some way. I could not get any information at all; there are many ways whereby it might have happened; I could not say just what it was; it is possible the injury could have been inflicted by a heavy boot, or from a fall of some character.”

On cross-examination, Dr. Carter stated that the deceased was restless and had high temperature; that as a rule it was usually the condition of one nearing death, but not always; there are other causes of that condition;

“If my memory serves me right the injury was on the left side; the rigid condition may follow malarial or typhoid fever, but not of this nature or extent as I found on the deceased; I did not observe any bruises on her body that were in view except around her eyes I mentioned. I don’t remember stating in the death certificate her death was caused by concussion of the brain from a blow on the head and internal injuries.”

The above statement is, in substance, the testimony on behalf of the state.

The defendant called George Bland, who testified, in substance, he lived about a quarter of a mile from J. O. Pruitt; that he heard of the trouble between Pruitt and his wife on Saturday night; he went up to the Pruitt home on Sunday morning and when he first went up to the home he did not see Lena Pruitt but about two hours afterwards he saw her sitting on the bed;

“I' just saw her through the window and asked her where Doc was; she said James and Andrew are up there, and I turned around the house and went on up the road; I next saw her the first of the week, she brought the children some water out where they were working in the field; I went home, and the next coming Thursday I saw her at the washing tub and wash water, she had the wash tub out of doors; I don’t know whether she was doing the family washing, but she was washing over a tub; I know she went to Coweta on Friday; I know Dr. Riddle, I was at their home when Dr. Riddle first came I never talked to the deceased about this difficulty; Georgia Bland is my daughter; I heard his wife accuse Doc of buying a hat for Georgia, but they never had no racket.”

Andrew Flynn called as a witness, testified he was at defendant’s home on Sunday morning after the row on Saturday night:

“I saw the deceased on Sunday morning, she was not in bed when I seen her the last time; she was up and around Sunday morning after the difficulty; I did not pay any attention to the bruises at all; I did not see Georgia Bland at the home of defendant that morning.”

W. M. Marsh testified he saw the deceased in Coweta, she did not appear to be sick;

“I don’t know what she was doing there; I saw her going across the street and met her; I saw her sitting in a wagon, and saw Pruitt put groceries in the wagon, in front of Ira Nichols.”

Tobe Pruitt, called on behalf of the defendant, stated he was the father of defendant and lived about a mile from the defendant at the time of the trouble;

“I went up to the house the next morning, and Lena was standing up there, and I asked her what was the matter, and she said nothing, and I knowed she was not going to tell me no more, and I never said nothing more to her; I just turned around to Doc, and asked him to figure up what Andrew owed me; I saw her on Friday following, when she went to town; I did not see her any more after Friday until after she was dead.”

On cross-examination, witness stated he and Andrew Flynn were up to defendant’s home after the trouble on Saturday night; that he did not see Georgia Bland when he was up there on Sunday morning.

Defendant J. O. Pruitt, called as a witness in his own behalf, testified he had lived in and around Coweta for 16 years; that be had several children; his wife was named Lena; they had been married 12 or 13 years; their son Pete Prnitt was about 11 years old; that he was in Coweta Saturday, July 11th, 1925, he went to Coweta to buy groceries for a picnic they were going to have;.that when he came home another man and Mr. Harris drove up in the yard;

“I got off the horse at the door and met my wife, and she asked me if I brought the milk for the baby, and I said I did, and seemed like she ivas mad, and she said, 'No, you didn’t/ and I said, 'Yes, I did/ and went up to the dresser and laid it down and Avalked out in the yard, and she kept mumbling and going on, and so they left; this was about dark; I went out to the lot and tried to catch the horse, and he run and I went back to the house, and she still kept fussing and quarreling, and I went out and set down on the wood pile for a while and went back to go to bed, and started to pull off my clothes; she started about the milk again, and was not satisfied; I sat down on the cot, and she gets up and goes toward the dresser and started toward me and I told her not to come toward me; she went to where the razor-was, and we tussled around there, and I slapped her face and kindly got her loose. About two years before she attacked me with a hatchet. She came down to where I was with her hand under her apron, and I walked up and pulled her apron loose and got the hatchet and carried it and gave it to my father; she was about 28 or 29 years of age; I am 36; after I knocked her loose I layed down, and she did not bother me; I took the razor away from her; I did not kick her in the side; I did not beat her up with the Winchester, as stated by my son Pete; the Winchester was a big old-fashioned rifle, and belonged to my father-in-law; from the looks of it I suppose it weighed about 10 or 15 pounds; I was afraid she was going to use the razor if she got a chance; my children were in the other room; it was a custom to have the door closed between the children^ room and my wife’s room after we had gone to bed; the door was closed that night; if Pete was up any time that night I did not know it; he did not come into the room where me and my wife was; nobody brought any water in for my wife to wash her face; it was not very long after this trouble until I went to bed; my wife got up the next morning before I did, she prepared breakfast as she always did; after I had my breakfast I went to Mr. Thomas’; when I got back home my wife was out of bed as far as I knows; we were still doing some work in the field; my wife cooked the meals I suppose as usual the following Monday; the next day I noticed she was kindly purple around her eyes, and looked like scratches around the eyes; but not like any great big wounds, just scratches; I did not kick her in the side or in the breast, or hit her anywhere other than what I might have done on her face nor did I hit her with any hard substance of any kind; up until Thursday she was up and around doing the ordinary house duties; she went out and carried the children some water in the field where they were chopping cotton; she did a washing Thursday, and Friday she Avent to town; when we got back home I wanted to take the things we had bought up to the picnic ground; where she got out of the wagon Avas about a quarter of a mile from our house. On Sunday morning following she complained of having a chill like, this Avas a week and a day after the trouble, I goes to town to see Dr. Riddle, and get some medicine and brought it back for her; Dr. Riddle has been our family doctor for some time, ever since Dr. Carter left from here. I do not recall, but either Monday of Tuesday, she did not seem to be doing any better, and I called Doctor out there; Dr. did not make any examination, but prescribed for her; he came back in about a day and examined her and gave her some medicine; come again about the last of the week; she did not seem to improve any; I then went over to toAvn and asked about Dr., Carter, and Mrs. Nichols said he had been in Oklahoma City, but he had returned, and I told her to send for Dr. Carter,, and left a message for her to send and went home; Dr. Carter lived at Haskell at the time; Dr. Carter came out; he said her fever was so high he could not make a thorough examination, and said, ‘If she is better in the morning I will see if I can abate her fever; if I examine ber now I believe it would cause ber fever to go higher, maybe I can make an examination in the morning’; be said he could not really tell what was the matter with ber; be came back Sunday morning; I don’t think be gave ber but one dose of medicine; he said if he could not abate the.fever it would not be any use to make the examination as high as her fever was; she died Monday the 27th day of July, 1925; I did all I could to get medical assistance for her when she needed it; I was there while she was sick, doing all I could for her; when Dr. Carter came she did not seem to be in her right mind; I did all I could to assist in caring for her until they put me in jail; they would not allow me to assist in handling her, but I went to town and got the casket. Before she died she complained of her chest hurting, (indicating chest), and she said she had a hurting in her stomach. I was not trying to kill my wife the night the trouble occurred, I was just trying to keep her from hurting me; I had no intention of hurting her seriously.”

On cross-examination defendant stated his wife was about his weight and size; he did everything he could that was necessary to keep her from getting to him with the razor—

“A lick with a gun would have been a pretty severe blow hit by a man of my size. After I got the razor I put it back where it was; I guess she saw me, and we talked it over, and she was all right. I slept on the cot in the same room with my wife.”

The cross-examination went into the question of the defendant trying to get his son Pete away from the parties between the death of his wife and the time of the trial.

On redirect examination witness stated when his wife died there was a large crowd of people around; that Pete was his boy, and he thought it proper to have him at home with him—

“I did not object to the women laying my wife out and dressing her. On re-cross-examination he said he did not know what they thought about the illness of my wife or as to there being anything wrong with her death.”

Dr. A. E. Carter recalled for further examination stated he did not state in the death certificate the words, “internal injury.”

The undertaker, Harry Trower, who prepared the body for burial, stated as well as he could remember there was a bruise on the face, but he did not pay much attention to it; it is common for blood clots to form on the side of a person after death, which are called post mortem stains; a kind of settling of blood.

Dr. H. K. Eiddle called, stated he was a legally practicing physician, and had been since 1913; that he knew J. O. Pruitt; had known him for 5 or 6 years; had practiced some in his family and was called to attend his wife on July 20th, 1925; he had prescribed for her prior to that time; it was on Sunday he first prescribed—

“J. O. Pruitt, the husband of the woman came to see me, and I gave him a prescription for the illness he described it, not having seen his wife; I was called out to the J. O. Pruitt home July 20th, that was the Sunday following.”

Dr. Eiddle was asked in what condition he found her, and stated she had quite a high fever, and was rather restless, tongue coated, and had vomiting spells, epigastric pains, and gave the history of having had a chill the day before; her temperature would subside and then would come up again—

“I made an examination, she had a black eye, and little scratched places on her head; that was all the bruises I saw on her; her eyes were a little red; she had been poked or hit in the eye; she could see all right. I did not notice any scratches or marks on her throat; if there had been any they had disappeared when I saw her. Bem.itting bilious fever is a malarial fever that starts with a chill, but the fever never subsides, it goes down lower and then comes right back. A fellow with intermittent fever will have a chill, and his fever will die down altogether, and maybe come back again, and he will have another chill, but remitting fever never subsides entirely. Bemitting fever is what we call continuous fever'. I next called on Lena Pruitt the 22d day of July, in the morning, about 10 o’clock; she was in about the same condition excepting she. had considerable temperature, with some constriction in the lower part of the right lung; I renewed my prescription, she was worse than she was on the 20th; I saw her again about midnight of the 22d, or early morning of the 23d; she had quite a little constriction of the lower lobe of the right lung, and her temperature was higher, and she was partially delirious at times; that was the last time I saw her, I understand she died on the 27th day of July; I am positive it was her right lung she complained of; I did not observe any bruises or abrasions or cuts on the body; I used a stethoscope in making the examination, and I discovered her lungs were affected.”

On cross-examination the witness stated that remitting fever was not considered fatal—

“There are some cases which are; the congestion in one of the lungs might have been caused by a kick or blow with a shoe, with the other trouble following it, but it looks like there would have been some external evidence if the person had been kicked hard enough to have caused that.”

This, in substance, is all the testimony, excepting some character witnesses that were called who testified as to the previous good character of the defendant. The state called some rebuttal witnesses, but the testimony brought out by them does not materially change the facts in this case. The testimony is conflicting, and, if the testimony of the state is true, the deceased, Lena Pruitt, never regained her physical condition after the fight she and her husband engaged in. The 11 year old boy of the parties testified that defendant struck the deceased in the side with a Winchester with sufficient force to break her down—being the expression of the witness. The defendant says he slapped the deceased sufficiently hard to get her loose from him and to get a razor away from her. There is no dispute in the record as to the fact that defendant and deceased had a row about a hat, it is claimed the defendant bought for Georgia Bland, a negro woman who lived near them, and that defendant struck the deceased with sufficient force to knock her loose from defendant. The defendant denies that he beat up the deceased, or that he struck her with the Winchester gun, as testified to by his 11 year old son. The deceased went to Coweta with the defendant on a shopping errand, and returned home, and the following Sunday defendant went to see Dr. Riddle and got some medicine for the deceased.

The testimony of Dr. Riddle, who was called as a witness by the defendant, shows that his examination disclosed that the deceased had a chill and that her temperature was very high, and that he had visited her on three occasions and found her with a congested lung; that later, a few days before her death, Dr. Carter, a negro doctor, was called in to see the deceased, and Dr. Riddle did not go back to see her any more. The testimony, on behalf of the state, brought out by Dr. Carter was to the effect that deceased showed bruises on her head and face, and that her eye was black, and that, when he called to see the deceased, he could not make a thorough examination, but that she had a protruded abdomen and seemed to be suffering from some internal injury. Dr. Carter gave as his opinion that the injury was caused by some blow received on the side by some kind of a weapon, the character of which he could not state.

The defendant denied striking the deceased with the Winchester but admitted he had the Winchester at the house.

Six separate errors have been assigned by the defendant, the first being that the court erred in overruling plaintiff in error’s motion for a new trial; the third, that the verdict of the jury is contrary to the evidence; and, fourth, that the verdict of the jury is contrary to both the law and the evidence. These three assignments may be properly considered together, as they relate to the only question argued and discussed by the defendant that the verdict in this case is contrary to the law and the evidence. Defendant in his brief says:

“We further state that the real competent evidence does not support the verdict, and that the same should be vacated, and the case remanded for a new trial.”

We cannot agree with the contention of the defendant. An examination of the record shows that the testimony is conflicting. It is only necessary to reiterate that this court has repeatedly held that the trial jury is the exclusive judge of the weight of the evidence, and that of the credibility of the witnesses, and that this court will not reverse a judgment of conviction, where there is competent evidence tending to support the same. Williams v. State, 17 Okla. Cr. 639, 191 Pac. 744.

The evidence in this case, on the part of the state, and that of the defendant, is'in direct conflict as to what occurred at the time defendant and deceased had their fight at their home, and also the evidence of the doctors as to the condition of the deceased prior to her death, and as to the cause of her death. The jury in this case settled the conflict of the testimony against the defendant, and this court will not disturb the verdict of the jury. After a full consideration of all points urged by counsel for defendant for a reversal of the judgment, we conclude that none of the errors complained of were such as to deprive the accused of that fair and impartial trial which is accorded under the Constitution and laws of this state.

The judgment is affirmed.

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


author: CHAPPELL, J.

text:
    HENRY ROMINES v. STATE.
    No. A-6691.
    Opinion Filed Sept. 28, 1929.
    Rehearing Denied Oct. 19, 1929.
    (281 Pac. 310.)

      L. M. Gensman and J. F. Thomas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Henry Romines, plaintiff in error, hereinafter called defendant, was convicted in the district court of Comanche county of the crime of manslaughter in the second degree, and his punishment fixed by the court at imprisonment in the state penitentiary for a term of four years after the jury had returned a verdict of guilty but failed to agree on the punishment.

This prosecution was the outgrowth of the killing on the 29th day of August, 1926, on B avenue in the city of Lawton, of one Margaret Stephens by running against and over her body with an automobile.

August 29, 1926, was Sunday, and on this day Mrs. Stephens, together with her husband, Rev. J. T. Stephens, a retired minister of the gospel, attended church at the First Baptist Church in Lawton, which church is located on the corner of Fifth street and B avenue. Fifth street runs north and south, and B avenue east and west. On the night in question church was held in the tabernacle which was located just east of the church facing north on B avenue. There were numerous cars parked all along B avenue both east and west of the tabernacle. It appears that Rev. and Mrs. Stephens had their car parked on the north side of B avenue about opposite to the entrance to the tabernacle. Church services were concluded that evening about 9:30,, and Rev. and Mrs. Stephens left the tabernacle by the north door, and started across the street to get into their automobile to go home. When they had reached about the middle of the street, they were run over by an automobile running rapidly and without lights. The car knocked Mrs. Stephens down, and ran over her body, crushing her lungs and causing injuries from which she died the day following. The driver of the car never stopped, and the circumstantial evidence shows that the driver of the car that ran over Mrs. Stephens and killed her was none other than this defendant. Defendant was arrested the next day in Snyder, Okla., where he resided. After his arrest, he was brought back to Lawton, and made certain statements and admissions, which admissions remain unexplained by defendant. Defendant did not testify. In view of the fact that this death was caused by a hit-and-run driver, the state had to rely upon circumstantial evidence for a conviction.

The main contention of defendant’s counsel is that such evidence is not sufficient to sustain the conviction. While the state’s evidence is circumstantial, it is of such a character that all the circumstances are consistent with the guilt of the defendant. The admissions of the defendant after his arrest, and his failure to take the witness stand to either deny the admission or explain, and his failure to take the witness stand and deny the charge, leaves the circumstances in the case and his admissions without any denial, and renders them sufficient on their face to support the verdict of the jury. There is evidence in the record that defendant was under the influence of intoxicating liquor at the time he was driving the car, and that defendant’s intoxicated condition had as much, if not more, to do with causing this death than any other one thing. The defendant could have been prosecuted for murder rather than for manslaughter in the second degree, and he was fortunate under the circumstances that the state elected to prosecute him for the lesser offense.

It is next contended that the trial court erred in overruling the demurrer to the information. The charging part of the information reads as follows:

“That at and within said county and state, on the 29th day of August, 1926, Henry Nomines then and there being, did then and there, wilfully, unlawfully, feloniously, recklessly, carelessly, unnecessarily and by culpable negligence, drive an automobile against and upon one Margaret Stephens who was on B avenue, a public highway and street running east and west in the city of Lawton in plain view of defendant who was driving said automobile west on said avenue at a. high rate of speed and without giving any warning and without looking to see if any persons were likely to be injured, and thereby said defendant, by his carelessness and culpable negligence inflicted mortal wounds in and upon the body of the said Margaret Stephens from which mortal wounds so inflicted by defendant as aforesaid she the said Margaret Stephens in said county and state on the 30th day of August, 1926, did die, which injury and death the said defendant, Henry Nomines, would have avoided by the use of that degree of care and caution which a man of ordinary prudence would have used under like circumstances.”

The reasons the defendant assigns why the information is insufficient are : First, because it does not state specifically the place on B avenue where the deceased was killed. The main purpose of stating the place where the offense was committed is to show venue in the county. No more accurate or specific statement or description of the place where the crime is alleged to have been committed is necessary, unless the place is an element of the offense as defined by the statute or such specific description is. necessary in order to found the jurisdiction of the court.

The general rule is thus stated in 22 Cyc. p. 308:

“Place must be charged in an indictment with such clearness and certainty as to afford full notice of the charge and enable the accused to make his defense with reasonable knowledge and ability, and to plead the judgment rendered in bar of any second indictment for the same offense.”

In a charge of manslaughter in the second degree, it is not necessary to the offense that it was committed in any particular place. It is only necessary to allege and prove that the offense was committed within the proper county. Section 2563, C. O. S. 1921; Flohr v. Territory, 14 Okla. 477, 78 Pac. 565; Antonelli v. State, 3 Okla. Or. 580, 107 Pac. 951.

The second reason urged that this information is insufficient is because it does not set out specifically the manner in which defendant was driving the car. It clearly appears from the face of the information that the culpable negligence relied upon did not consist wholly in the manner the defendant was driving the car at the time but also in his failure to look.and to observe deceased, who was alleged to have been in plain view of defendant. The negligence complained of was not only driving the car “at a high rate of speed,” but also the failure to operate the car in a careful and prudent manner with due regard to the traffic and with due regard to the safety of pedestrians; which sort of carelessness is specifically con•demned by section 2, chapter 16, Session Laws 1923. This was the culpable negligence alleged, and it is alleged with sufficient certainty to inform the defendant of the nature of the charge so as to defend fully against it.

Tbe defendant next complains of tbe admission of incompetent evidence. The state was permitted to show that iabout two and a half hours before the homicide in this case occurred the defendant ran his automobile into that of a man named Shepard, which latter car was parked near the First Baptist Church at the time. This evidence was admissible on the question of the identity of the defendant as the person who ran over Mrs. Stephens. In order to follow the defendant up from the time he ran into Shepard until the time he ran over Mrs. Stephens it was necessary to go into detail. Another witness, Mrs. John Scott, testified as to the movements of a car answering the description of the car defendant was driving on that night, immediately after the close of the services at the First Baptist Church and going west on B avenue within a block of the place of the homicide. This was a circumstance properly to be considered by the jury, both on the question of identity and also on the question of culpable negligence.

The defendant argues that this evidence was incompetent, and that his rights were prejudiced thereby. The only possible adverse effect the admission of this evidence could have had would have been to create a prejudice for increasing the punishment, but, since the jury did not fix the punishment, the defendant could not have been prejudiced thereby. The evidence was competent, and was properly admitted.

It is next contended that the trial court erred in refusing to permit the defendant to prove by the son of the deceased a certain alleged dying declaration in which the deceased requested, among other things, that the law take its due course. The defendant was attempting, to show that Mrs. Stephens was asking that the defendant be not prosecuted. Anything the deceased might have said occurred more than 24 hours after she had been struck by the car of the defendant and was clearly not part of the res gestae. The court sustained the objection. The ruling of the trial court was correct as disclosed by the following decisions of this court: Goss v. State, 24 Okla. Cr. 383, 281 Pac. 339; Wratislaw v. State, 18 Okla. Cr. 150, 194 Pac. 273; Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532.

The defendant next complains that instruction No. 3 was erroneous. This instruction reads as follows:

“Culpable negligence is the omission to do something which a reasonable, prudent person would do, or the doing of something which a reasonable, prudent person would not do, under like circumstances and conditions. It is the want or lack of that usual' or ordinary care and caution in the performance of an act usually and ordinarily exercised by a prudent person under similar circumstances.”

Instructions almost identical in form with the above were approved as containing a correct definition of culpable negligence in homicide cases in the following: Pamplin v. State, 21 Okla. Cr. 136, 205 Pac. 521; Clark v. State, 27 Okla. Cr. 11, 224 Pac. 738; Nail v. State, 33 Okla. Cr. 100, 242 Pac. 270.

Instruction No. 4 is also contended to be erroneous, although it is admitted that said instruction follows literally a part of section 2 of chapter 16, Session Laws 1923, but it is argued that said section was held to be void in the case of Missel v. State, 33 Okla. Cr. 376, 244 Pac. 462. Instruction No. 4 reads as follows:

“The laws of this state makes it the duty of every person operating a motor vehicle upon the streets of a city or town or the public highway of the state to operate in a careful and prudent manner and at a rate of speed not greater than is reasonable under the existing circumstances, having due regard to the traffic and use of the highway, and haying due regard for the safety of pedestrians on the highway; and a failure in the performance of this duty constitutes culpable negligence.”

A comparison of said instruction with the opinion of this court in the Missel Case demonstrates that the portion of sec. 2, chapter 16, Laws 1923, supra, held unenforceable in the Missel Case, has no bearing on the law as contained in the foregoing instruction.

The defendant had a fair trial; the evidence is sufficient to establish his guilt; and, the errors of law complained of not being sufficient to justify a reversal of the case, the cause is affirmed.

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


text:
    SAMUEL KUTZ v. STATE.
    No. A-6844.
    Opinion Filed Oct. 19, 1929.
    (281 Pac. 809.)
    Baskin & Buscy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of intoxicating liquor, to wit, home-brew, with the unlawful intent to barter, sell, give away, and otherwise furnish the same to others, and was sentenced to pay a fine of $50, and be imprisoned in the county jail for 30 days. From which judgement and sentence the defendant has appealed to this court.

The testimony on behalf of the state, in substance, is as follows: That the officer went to the defendant’s home and searched the same and did not find any intoxicating liquors, but something more than 200 yards across the section line on another farm found some home-brew in bottles. It was not analyzed; the only testimony about its intoxicating effect is a statement by one of the witnesses that he tasted it. There is no testimony to show that the defendant was ever in possession of this home-brew or had anything to do with it. The officer did not find him in possession. One of the officers testified that the defendant told him that the home-brew was his. The defendant testifying in his own behalf denied he made such a statement, said it was not his home-brew, but that it belonged to Dick Hale, who had been working with him at one time and had lived at his place. Defendant denied he had anything to do with the home-brew, or that he had any ownership in it. Several of defendant’s neighbors testified that the defendant’s reputation was good. One witness who claimed to live about five miles from the defendant testified that defendant’s reputation was bad. The only testimony offered by the state attempting to connect the defendant with the home-brew was the testimony of one of the officers who stated that the defendant told him, when they found several bottles, defendant said that was all he had. This is controverted by the defendant.

The defendant has assigned four errors, designating them by A, B, C, and D, alleged to have been committed by the trial court. In his first assignment the defendant alleges:

“That the evidence was insufficient to warrant or justify the jury in returning' a verdict] of guilty, in that the corpus delicti was not established by the proof of state, however, admitting that the corpus delicti were established, which the plaintiff in error denies, the evidence wholly failed to connect the plaintiff in error with the alleged offense.”

In every criminal prosecution it devolves upon the state to prove the corpus delicti, that is, that the crime charged was committed by the accused; and this must be established as an independent fact, beyond a reasonable doubt, but it is not necessary that it be proven by direct and positive proof; it may be proven by circumstantial evidence, if from all the circumstances the jury is satisfied the defendant was guilty beyond a reasonable doubt. Corpus delicti cannot be.established by the confession of accused alone. Waide v. State, 13 Okla. Cr. 165, 162 Pac. 1139.

It is urged by the defendant in his second assignment of error:

“That the trial court committed error in not sustaining the demurrer of the plaintiff in error to the evidence offered by the state, and advising the jury to acquit the defendant for the reason that the state not only failed to prove that an offense had been committed but failed to connect the defendant in the lower court with such offense, if any were committed, as disclosed by the testimony of the state’s witnesses.”

After an examination of the testimony contained in the record we hold that the state wholly failed to connect the defendant with the possession of the home-brew claimed to have been found by the officers, and the demurrer of the defendant to the testimony should have been sustained.

There being no competent testimony to sustain the judgment, the cause is reversed.

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


text:
    THEO. TORGESON v. STATE.
    No. A-6845.
    Opinion Filed Oct. 19, 1929.
    (281 Pac. 812.)
    Sigler & Jackson, 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 convicted in the county court of Cleveland county of the crime of driving a Ford delivery automobile upon the public highway, on the hard-surfaced road north of the town of Moore, at a greater rate of speed than 35 miles an hour, and was sentenced to pay a fine of $25 and be imprisoned in the county jail for ten days. Motion for new trial was filed and overruled, and defendant has appealed to this court.

The testimony in this case is conflicting; the officer who saw the defendant driving the truck says he was driving at a rate of speed greater than 35 miles an hour, probably 45 miles an hour. The defendant testified he was coming to Oklahoma City about 7 o’clock in the morning; he had spent the night at Norman; there was very little traffic on the highway at the time; he was driving about 28 or 30 miles per hour. This is in substance the testimony. No one was injured, and there seem to have been no cars on the road at the time the defendant is charged with exceeding the speed limit. The only complaint is the complaint made by the officer who was a highway patrolman, and the.garage man at Moore, Okla.

The defendant has assigned three errors committed by the trial court; the second being that the punishment is excessive and unwarranted; and, third, that the court erred in overruling defendant’s motion for a new trial. This court has repeatedly held that, where there was a conflict in the testimony, it would not disturb the verdict of the jury, but where, from the record, it appears that the judgment is excessive, the court under the authority granted it by the statute would modify the judgment. The jury found the defendant guilty of exceeding the speed limit, and imposed a fine of $25 and ten days in jail. Under the record in this case we believe the judgment should be modified from a fine of $25 and ten days’ imprisonment in jail to a fine of $25.

The judgment as modified is affirmed.

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


author: CHAPPELL, J. DAVENPORT, J.

text:
    Ex parte JIM McCOY.
    No. A-7261.
    Opinion Filed Oct. 10, 1929.
    Dissenting Opinion Oct. 19, 1929.
    (281 Pac. 813.)
    W. N. Redwine, for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The petitioner herein, Jim McCoy, Avas regularly convicted in Ottawa county, Okla., in two cases for possession of narcotics, and was sentenced to the penitentiary to serve a term of five and four years, respectively, and to pay a fine of $5,000 in the first case and $2,500 in the second case. The petitioner has served the penitentiary portion of the sentence, but the fines have not been paid, neither have they been served in the penitentiary, and it is the contention of the petitioner in error, since the 1913 law, no fine can be collected in felony cases. This is the only point in the case at bar.

The petitioner contends that sections 5 and 6 of chapter 112, Session Laws of 1913, repeals all acts of the Legislature authorizing imprisonment for nonpayment of fines and costs, and that since the passage of the act of 1913 the state of Oklahoma is without any authority to confine the petitioner in the penitentiary for the nonpayment of the fine and costs assessed against him upon his conviction in the two cases in Ottawa county.

Section 13, article 2, Constitution of Oklahoma, provides :

“Imprisonment for debt is prohibited, except for the nonpayment of fines and penalties imposed for the violation of law.”

Under the provisions of this section of the Constitution, the Legislature undoubtedly has authority to provide for imprisonment for nonpayment of fines and penalties imposed for the violation of law.

The title of chapter 112, Session Laws of 1913, is as follows:

“An act to amend section 31 (a) of chapter 69 of the Session Laws of 1910; providing for the working of county, city and town convicts upon public highways, rock piles, or other public work; for the imprisonment and working of such convicts upon the public highways in lieu of payment of fines and costs, and regulating the time of such imprisonment and work; repealing, sections 2607 and 5290 of the Statutes of Oklahoma, 1893, and sections 41 and 42, of Article one (1), of chapter 32 of the Session Laws of 1909, and sections 885, 6917, 6918, 6921, 6922, 7068 and 7793 of Snyder’s Compiled Laws of Oklahoma, 1909, are hereby repealed; and declaring an emergency.”

This title provides: First, for the amendment of section 31 (a) of chapter 69 of the Session Laws of 1910 to authorize imprisonment for nonpayment of fine and costs in all criminal cases. Sesond, for the working of a certain class of prisoners, to wit, county, city, and town convicts upon public highways, rock piles or other public works in lieu of payment of fine and costs. Third, fixes rate of allo wanee on all fines and costs in all criminal cases. These subjects are all germane to the act.

It will be noted that chapter 112, supra, amended section 31 (a), chapter 69, Session Laws of 1910, which reads as follows:

“The fees herein provided for the clerk of the district court, the clerk of the superior court, and the clerk of the county court, the sheriff and the county attorney as provided in this act, and all costs in the prosecution whether of the grade of misdemeanor or felony, shall in case of conviction be taxed as costs in the case and a judgment rendered against the defendant therefor; and award execution for the collection of the same as on execution in civil actions.”

Section 31 (a), as amended by section 1, chapter 112, Session Laws of 1913, reads as follows:

“The fees herein provided for the clerk of the district court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison.”

Section 31 (a), chapter 69, Session Laws of 1910, provided for the collection of costs whether of the grade of misdemeanor or felony, only by execution. Section 31 (a), as amended by section 1, chapter 112, Session Laws of 1913, provided that the costs in all criminal actions should in case of conviction be adjudged as part of the penalty of the offense and for imprisonment until the fine and costs were paid at the rate of $1 per day.

This court, in the case of Ex parte Bowes, 8 Okla. Cr. 201, 127 Pac. 20, 23, had held:

“Under Bill of Rights, § 13, supra, permitting imprisonment for the nonpayment of fines and penalties imposed for the violation of law the Legislature of this state would have authority to provide as a part of the penalty for the violation of law the payment of costs and the enforcement of the payment by imprisonment. Under the provisions of our Penal Code and Procedure Criminal, the costs are not made a part of the penalty for the violation of law. The power to punish by fine does not include the power to add to such fine as may be deemed a proper penalty for the offense committed the costs of the prosecution also. Therefore the courts of this state have not the power to imprison a convicted defendant for the nonpayment of costs.”

Section 31 (a), c. 69, Session Laws of 1910, was amended by the Legislature evidently for the purpose of meeting the situation created by Ex parte Bowes, supra, wherein this court had held that there was no authority for imprisonment of convicts for nonpayment of costs.

Section 6917, Snyder’s Compiled Laws of Oklahoma (Comp, Laws 1909), provided for imprisonment for nonpayment of fine at not exceeding a day for every $2 of the fine. This apparently left the length of term of each prisoner to be fixed in the discretion of the trial judge. Some judges fixed the rate of imprisonment at $1 per day and others |2. Section 6, chapter 112, Laws 1912, supra, expressly repealed this act and by section 31 (a), c. 69, Laws 1910, as amended by section 1, chapter 112, Laws 1913, fixed a uniform rate for prisoners in all criminal cases at $1 per day for both fine and costs. The state had always had authority under the statute to imprison for nonpayment of fines, but had never had any authority to imprison for costs until after the passage of chapter 112, S. L. 1913. By this act the Legislature provided that the fine and costs should be part of the penalty in all cases; that defendants might be imprisoned in all cases for nonpayment of fine and costs; and that the allowance per day for nonpayment of fine and costs should be reduced from a maximum of |2 to $1 per day in all criminal cases whether misdemeanor or felony. It is evident from the reading of chapter 112, supra, that the Legislature intended to broaden the scope of the imprisonment act to include every class of criminal cases whether misdemeanor, felony, or quasi criminal, and further to broaden the act by including the costs as part of the penalty to meet the conditions created by the decision of this court in the case of Ex parte Bowes, supra.

In the case of Ex parte Walker, 31 Okla. Or. 36, 236 Pac. 919, this court said:

“When a judgment in a criminal action imposes confinement, and in addition thereto a fine and costs, the fine and costs may, at the termination of the period of confinement specified, be enforced by further imprisonment until paid or satisfied at the rate of $1 per day. a. Upon this subject section 6332, Comp. Stat. 1921, supersedes section 2775 and earlier statutory provisions.”

In the body of the opinion this court, referring to section 1, chapter 112, Session Laws 1913, says of such section:

“This is the law as it now stands. Therefore that part of the judgment providing for the satisfaction of the fine and costs at the rate of $1 per day was in accordance with the express terms of the statute now, and then iri force and effect, and in harmony with the former decisions of this court. Smith v. State, 12 Okla. Cr. 513, 159 Pac. 941.'’

In Ex parte Bowes, 8 Okla. Cr. 201, 127 Pac. 20, this court said:

“ ‘In all cases of conviction when a fine is imposed,’ the court may ‘order the defendant committed to jail until the fine is paid, and * * * the power of the coürt to order a defendant sentenced to pay a fine to he committed is not confined to cases where a fine only is inflicted, but also extends to cases where both imprisonment and fine are inflicted’.”

It will thus be seen that the right to imprison for nonpayment of fine has always been upheld by this court, but that the right to imprison for nonpayment of costs was held not to exist prior to the passage of chapter 12, Session Laws 1913.

In the case of Ex parte Dunnavant, 41 Okla. Cr. 113, 271 Pac. 866, in paragraphs 2 and 3 of the syllabus, this court said:

“There is no statute requiring, a state convict, after he has served his term of imprisonment, to remain in the state penitentiary until he has satisfied the costs taxed against him at $1 per day.
“The restraint of a convict by the warden of the state penitentiary for the payment of costs is without authority of law.”

Upon a reconsideration of this whole question, the court is of the opinion that the statute authorizes imprisonment in felony cases for nonpayment of fine and costs. The case of Ex parte Dunnavant, supra, is therefore expressly overruled.

For the reasons stated the writ is denied.

EDWARDS, P. J., concurs.

DAVENPORT, J.

(dissenting). In dissenting from tlie opinion of the majority of the court, I deem it necessary to set forth the main allegations of the petition.

Petitioner alleges that he was convicted in the district court of Ottawa county, Okla., on two charges, and on the 21st day of May, 1923, was sentenced on the first conviction to five years at hard labor in the state penitentiary at McAlester, and to pay a fine of $5,000 and costs; that on the said 21st day of May, 1923, on the second conviction was sentenced by the court to imprisonment in the penitentiary for a term of four years, at hard labor and a fine of $2,500 and costs. This sentence to begin at the expiration of the term of the first sentence imposed in case No. 869.

Petitioner further alleges that he commenced serving his sentence in the penitentiary on said conviction and imprisonment on said sentence for the term of five years on the 21st day of May, 1923, and granting good time which had been given petitioner under the laws .of the state of Oklahoma, and the rules and regulations of the prison, the five years’ sentence expired on the 1st day of March, 1926. And under the terms of the sentence of the court in No. 872, the sentence provided that his term of imprisonment on the second conviction should begin at the expiration of his term in case No. 869, which was the first conviction and charge upon which petitioner was sentenced.

The petitioner further alleges that his imprisonment under the second sentence expired June 7,1928. Petitioner further alleges that he has served his full' time of imprisonment under the second sentence, and that he is now being held and imprisoned unlawfully and without authority of law.

It is contended by the petitioner that the state of Oklahoma, through its warden, has no authority under the law to hold said petitioner in the penitentiary to serve one day for each $1 of the fines and costs taxed against him; and that he is unlawfully restrained of his liberty by the warden, and is entitled to be discharged.

Section 13, art. 2, Constitution of Oklahoma, provides :

“Imprisonment for debt is prohibited, except for the nonpayment of fines and penalties imposed for the violation of law.”

Section 57, art. 5, of the Constitution, provides as follows:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length; Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof.”

Under the provisions of the Constitution it is mandatory that the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes.

It is admitted by the majority opinion that there was no statute authorizing the imprisonment of a state convict after he had served his term of imprisonment, to be held in the penitentiary until he had served out his fine and costs at $1 per day, prior to the passage of the act contained in chapter 112, Session Laws 1913. The provisions of the statute with reference to fine and costs being charged against convicts was found in section 31 (a), chapter 69, Session Laws 1910, which reads as follows:

“The fees herein provided for the clerk of the district court, the clerk of the superior court, and the clerk of the county court, the sheriff and the county attorney as provided in this act, and all costs in the prosecution whether of the grade of misdemeanor or felony, shall in case of conviction be taxed as costs in the case and a judgment rendered against the defendant therefor; and award execution for the collection of the same as on execution in civil actions.”

It is clear from reading that section of the statute that the Legislature did not intend to require state convicts who had been sentenced to the penitentiary for a number of years, and a heavy fine imposed upon them, to be held in the state prison after serving their term of imprisonment at $1 per day, or any other amount, until they had served out the fine and costs taxed against them; the provision of that section being that all costs in cases of prosecution, whether of a grade of misdemeanor or felony, shall in case of conviction be taxed as costs in the case and a judgment rendered against the defendant therefor, and award an execution for the collection of the same as on execution in civil actions.

This provision of the statute was a part of a general revenue bill, and the Legislature from the language used in the act had in mind that many persons might be convicted of either a misdemeanor or felony who had sufficient property to pay the costs in the case, and in a case of this kind, if they did not have property the Legislature did not intend they should be confined in jail or penitentiary after having served out their term of imprisonment, but that an execution should be awarded, and if sufficient property was found the costs should be collected. It will be seen that in this section of the statute no reference is made to fines. The next legislation we have upon the subject is the provision found in chapter 112 of the Session Laws 1913, at page 203, the title to which act reads as-f ollows:

“An act to amend section 31 (a) of chapter 69 of the Session Laws 1910; providing, for the working of county, city and town convicts upon public highways, rock piles, or other public work; for the imprisonment and working of such convicts upon the public highways in lieu of payment of fine and costs, and regulating the time of such imprisonment and work; repealing sections 2607 and 5290 of the Statutes of Oklahoma, 1893, and sections 41 and 42, of article one (1), of chapter 32 of the Session Laws of 1909, and sections 885, 6917, 6918, 6921, 6922, 7068 and 7793 of Snyder’s Compiled Laws of Oklahoma, 1909, are hereby repealed; and declaring an emergency.”

The first, second, third, and fourth sections of the Session Laws 1913, chapter 112, under the above caption, is as follows:

“The fees herein provided for the clerk of the district court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged á part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court, trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison.
“2. The board of county commissioners of any county in this state shall have authority to work any convicts in the county jail, either as punishment for crime or in lieu of payment of fine and costs, upon public highways in such county and to employ such guards and other assistants as may be required; and any guard, overseer or superintendent employed to work convicts upon any public work, who may deal or play any game of cards or participate in any other game with any convicts under his charge, shall be discharged by the county commissioners. It shall be the duty of the sheriff, upon the order of the board of county commissioners, to deliver, to any person authorized to receive them for work, upon public highways, any persons sentenced and confined in the county jail either as punishment for crime or in lieu of payment of fine and costs.
“3. When, in the judgment of the county commissioners, the expense of working the convicts upon the public highways is too great, on account of the small number thereof, or for any other reason, then they shall have authority to provide all necessary apparatus for the working of such convicts upon a rock pile, or rock crusher, for the purpose of providing material for use upon the public highways of said county. Said authority shall be exercised in the same manner as is provided in section 2, for the working of convicts upon the public highways, and the county commissioners shall have full authority as to how and where said materials shall be used; provided, they shall' use same for no other purpose than the betterment of the public highways in said county; provided, further, that in any. county where the working of convicts upon a rock pile, or rock crusher, is found impractical for any reason, then the county commissioners may provide for the working of said convicts upon any public work in which the county has an interest.
“4. Every county, city or town convict in this state, whether required to work upon the public highways of such county, city or town, in accordance with the laws of this state, or merely confined in the county, city or town prison, shall receive credit upon his or her fine and costs of one dollar for each day so confined in prison, or worked upon the public highways, rock pile, or rock crusher, or public work; provided that those prisoners or convicts doing and performing the most efficient work and making the best prisoners shall be entitled to an additional credit of' one day for every five days of work, the guard or custodian of such prison tO' determine at the end of each five days of such imprisonment whether or not such’ prisoner is entitled to such credit, and to make a record of such decision and notify the prisoner of the same.”

The fifth, sixth, and seventh sections relate to the repeal of the sections of the statute and declaring an emergency.

A careful reading of section 1 of the act clearly shows by the closing sentence that it was not intended by the Legislators, nor was it included in the title of the act, that state convicts should remain in prison at f 1 per day until the cost and fine was satisfied; the closing part of the sentence of section one being,

“whether the defendant shall perform labor on the public road or highway, or remain in prison.”

From a reading of sections 2, 3, and 4, it is clearly shown there is no provision whatever in the act providing for the working of state convicts upon the highways, and that the attempted amendment could not relate to any other class of convicts than county, city, and town convicts.

An examination of the title of the act above referred to convinces me that the title refers only to county, city, and town convicts and makes no reference to state convicts; all the laws relating to state convicts for fine and costs are repealed by this act.

13 Corpus Juris, at page 912, defines the different kind of convicts as follows:

“State convicts embrace all that class of persons convicted of crime and sentenced to hard labor in the penitentiary, within or without the walls.
“County convicts embrace all those sentenced to hard labor in the county, whether in or out of the county.”

This definition is approved in Ex parte Gayles, 108 Ala. 514, 19 So. 12.

It is urged by the Attorney General that the law providing for imprisonment in the state penitentiary until the fine and costs are paid at $1 per day has not been repealed, and in support of his contention cites Ex parte Smith, 33 Okla. Cr. 175, 242 Pac. 284; Ex parte Clemmons, 27 Okla. Cr. 50, 225 Pac. 184; Ex parte Bell, 34 Okla. Cr. 354, 246 Pac. 893.

An examination of the cases cited by the Attorney General discloses that in the Smith and Bell Cases the petitioners were confined in the county jail of Carter county, serving a sentence for a misdemeanor. In the Clemmons Case petitioner was confined- in the county jail of Marshall county, serving a sentence imposed for a misdemeanor. I do not think these cases are in point for the reason that the defendant in this case was sentenced to serve a term in the penitentiary and to pay a fine and costs, and as alleged in the petition has served the sentence in both cases, and is being restrained of his liberty by the warden of the penitentiary until he has served sufficient length of time at $1 per day to satisfy the fines and costs imposed in his cases.

I still insist that the conclusion reached by this court in Ex parte Dunnavant, 41 Okla. Cr. 113, 271 Pac. 861, is the law and that there is no statute requiring a state convict, who has served out his term of imprisonment to remain in the penitentiary until he has served out fines and costs taxed against him at f 1 per day. In this case if the petitioner has to remain in prison at $1 per day until he has served out the fines assessed against him totaling $7,500 and costs, it means that after he has served his term of imprisonment he will have to remain in the penitentiary for more than 7,500 days. This, in my judgment, was never intended by the Legislature, and I insist that the title to the act is not sufficiently broad to include state convicts, and that it only relates to county, city and town convicts, and defines in the body of the act the method of working such convicts on the highways or keeping them in jail until the fine and costs are paid.

If the law as declared by the majority opinion is the correct law, I insist that it would be a violation of article 2, § 9, of the Constitution, which section provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”

Prior to the passage of the act found in chapter 112, Session Laws 1913, supra, there was no authority for holding a state convict in the penitentiary for the fine imposed against him and costs taxed in the case, and I cannot place any legal interpretation upon that act that will convince me that the title to the act is broad enough to cover state convicts. If it had been intended by the Legislature to restrain state convicts in the penitentiary at f 1 per day until their fine and costs had been satisfied, it would have unquestionably have said so, as it did in the act with reference to county, city, and town convicts. The policy of tiie law has always been , to punish all parties equally for the same offense, and if the law is correctly stated in the majority opinion, it means that where a person is sent to the penitentiary for a number of years and fined, as in this case, the convict is practically sentenced to life imprisonment. This was not intended, in my opinion. The United States government has wisely provided that where a convict was sent to the penitentiary and fined, if the convict was unable to pay the same, he may serve a sentence of 30 days, and then make an affidavit to show he is unable to pay the fine, and secure his release.

I regret that I cannot interpret the law as it has been interpreted by the majority opinion, but after a careful study and reading of the statutes I reach the conclusion that the title to the act is not broad enough under our Constitution to include state convicts, and that the law as announced by this court in Ex parte Dunnavant, supra, is the correct interpretation of the law relating to state convicts on the question of cost, and that the state has no authority to hold in the penitentiary any convict, after he has served his term of imprisonment, at $1 per day until the fine and costs taxed against him have been satisfied, and I insist that the petitioner was entitled to be released, and the writ should have been granted.


text:
    LIGE HOWELL et al. v. STATE.
    No. A-8871.
    Opinion Filed Oct. 19, 1929.
    (281 Pac. 818.)

      Rummons & Hughes and E. V. Eakestraw, for plaintiffs in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Kiowa county on a charge of having unlawful possession of nine barrels of mash, and their punishment fixed at a fine of $100 and imprisonment in the county jail for 30 days for each of them.

The evidence of the state was: That the officers found a still and nine barrels of mash and hid nearby to watch for the owners or operators. Just about daylight a man came with a galvanized iron tank and deposited the same near the still and left. Just before sunrise the defendants appeared and went right up to where the still was and began working on it. Defendant Lige Howell had something in his arms and went to working around the still. The still was hooked up and ready for operaation. That the defendants had been there about 30 minutes, and, when the witness, Standerfer rose up and commanded them to throw up their hands, defendant Lige Howell ran, but was captured, and defendant Hall escaped. The officers destroyed the mash and took the still and went with defendant Howell to his father’s place. Howell went through the house and started to run through the cotton patch when the officers recaptured him. The defendant Hall later surrendered and admitted that the still and mash belonged to himself and Howell.

The first contention of the defendant is that the court erred in refusing to instruct the jury on circumstantial evidence. An instruction on circumstantial evidence is not necessary unless the testimony of the state is entirely circumstantial. Thomas v. State, 84 Okla. Cr. 288, 246 Pac. 658; Zeligson v. State, 43 Okla. Cr. 24, 276 Pac. 791.

In this case the admission of the defendant Hall as to the ownership and possession of the still and mash, and the fact that the defendants were in the actual possession of the still and working on the same when the officers attempted to arrest them, took the case out of the rule requiring instructions on circumstantial evidence.

The defendants next contend that the. verdict is contrary to the law and is not sustained by the evidence. The evidence being sufficient to support the verdict of the jury and the errors of law complained of not being fundamental, the cause is affirmed.

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


author: PER CURIAM.

text:
    W. R. TUCKER v. STATE.
    No. A-7251.
    Opinion Filed Oct. 19, 1929.
    (281 Pac. 818.)
    Ray & Thomas, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of unlawful manufacture of intoxicating liquor, and. was sentenced to pay a fine of $250 and be confined in the county jail for 90 days.

The record discloses that, at the time charged, a constable and a federal prohibition officer procured a search warrant to search a building and premises at 1213 Sheridan avenue, in said county and state. It is not stated in the search warrant of what town, if any, Sheridan avenue is a part. The warrant in that particular is insufficient, under article 2, § 30, of the Bill of Bights.-

The affidavit upon which the search warrant was obtained was insufficient, under section 7013, C. O. S. 1921, to authorize the issuance of the warrant. The only evidence in the case being obtained by an illegal search of the residence of the defendant, it was error for the trial court to overrule the motion to- suppress the evidence.

For the reasons stated, the cause is reversed.


text:
    E. D. COOK v. STATE.
    No. A-6812.
    Opinion Filed Oct. 19, 1929.
    (281 Pac. 819.)

      Hugh A. White, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, E. D. Cook, hereinafter called the defendant, has appealed to this court from a judgment of conviction and sentence of imprisonment in the county jail of Hughes county for a period of 30 days and a fine of $50 and costs, rendered on a charge of unlawful possession of whisky, with the intent to barter, sell, give away, and otherwise furnish the same to others, contrary to' the form of the statute in such cases made and provided, and against the peace and dignity of the state.

The information was filed on the 14th day of July, 1927; the case was called for trial on the 6th day of September, 1927, when defendant entered his plea of guilty. On the 9th day of September, 1927, and before sentence was pronounced, the defendant filed his properly verified motion asking that he be permitted by the court to withdraw his plea of guilty and enter his plea of not guilty. After hearing said motion, the court overruled the same and pronounced judgment and sentence. The testimony taken in support of the motion of defendant to withdraw his plea of guilty and enter his plea of not guilty tends to show that defendant was a law-abiding citizen; that he entered his plea of guilty without consulting his attorney, under a misapprehension of the law applicable to his case, believing at the time that the mere possession of any quantity of intoxicating liquor was sufficient to constitute guilt of the offense charged.

Section 2621, C. O. S. 1921, is as follows:

“The court may, at any time before judgment, upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.”

In this case it appears from the record that the defendant’s plea of guilty was entered unadvisedly without consulting his attorney. The information in this case charges the defendant with having possession of a quantity of intoxicating liquor, to wit, whisky, with the unlawful intent on the part of the said E. D. Cook to barter, sell, give away, and otherwise furnish the same to others.

The information failed to state any definite amount of whisky. The application of the defendant shows that his plea of guilty was entered upon a misapprehension of the law applicable to his case. This court, in Turner v. State, 33 Okla. Cr. 97, 242 Pac. 1053, in the first syllabus, said:

“A motion in a misdemeanor case to withdraw a plea of guilty and substitute therefor a plea of not guilty, either before or after judgment, is addressed to the sound discretion of the trial court.”

It has been repeatedly held by this court that a defendant in a criminal action should be permitted to withdraw his plea of guilty given unadvisedly, before or after judgment, where any reasonable ground is offered for going to a jury.

In this case the allegations of the defendant in his motion to be permitted to withdraw his plea of guilty and enter a plea of not guilty, and testimony taken in support of the same, are sufficient to show that the plea of guilty was unadvisedly entered under a misapprehension of the law, and we hold the court should have permitted the defendant to withdraw his plea of guilty and directed the county attorney to file an amended information showing the quantity of whisky it was alleged the defendant had in his possession in violation of law.

For the reasons herein stated, the judgment is reversed and remanded, with directions to the court to proceed further in accordance with this opinion.

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


text:
    SAM ALLEN v. STATE.
    No. A-7241.
    Opinion Filed Oct. 19, 1929.
    (281 Pac. 822.)
    Clayton Carder, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, who for brevity will be referred to as defendant, was convicted in the county court of Kiowa county on a charge of having the unlawful possession of beer with intent to violate the prohibitory liquor law, and was sentenced to pay a fine of $300 and to serve 30 days in the county jail.

The record discloses that certain officers went to the dwelling house of defendant with a search warrant and discovered a quantity of choc beer or home brew in bottles. The search warrant does not describe the place to be searched other than the private reesidence of defendant. It does not state where the residence is located, even that it is in Kiowa county. There is no proof that the concoction found was intoxicating. No analysis was made. Cortea Thompson, who procured the search warrant, testified:

“* * * Q. Did you examine that to tell whether or not it was intoxicating? A. Nothing only breaking a few bottles.
“Q. You did not taste it did you? A. No, sir. * * *”

Lee Watson, a deputy sheriff who assisted in the search, testified:

“* * * q Djd you open any of the bottles and examine any of it? A. I never. * * *”

Bill Humble, another deputy sheriff, testified:

“* * * Q. State what you found there, Mr. Humble? A. 76 bottles of home brew.
“Q. Did you examine that to see what it was? A. Nothing only just saw it in the case. I never tasted it.
“Q. You never tasted any of it? A. No, sir.
“Q. Could you tell whether or not it was beer or home brew? A. Home brew. * * *”

Joe Cornelius, another deputy sheriff, testified:

“* * * Q. Do you know what was found there? A. Yes, sir.
"Q. State to the court what it was? A. We found sixty-seven bottles of home brew. * * *
“Q. Can you tell whether home brew or beer is intoxicating? A. I imagine I can.
“Q. State to the court whether or not that bottle was intoxicating? A. I did not drink enough to get intoxicated, but it has got a kick to It. * * *”

In order to sustain a conviction for having the possession of intoxicating liquor, such liquor must be of the class of which the court takes judicial notice that it is intoxicating, or there must be proof that it is intoxicating or contains as much as one-half of 1 per cent, of alcohol, measured by volume. This may be proved by an analysis or the testimony of some person who is shown to be qualified and can testify that such liquor is intoxicating. The proof in this case is insufficient.

The case is reversed.


text:
    MINERVA LETT v. STATE.
    No. A-6835.
    Opinion Filed Oct. 19, 1929.
    (280 Pac. 728.)
    C. F. Gowdy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of choctaw beer with intent to sell, barter, give away, and furnish the same to others, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days. The record was perfected and the defendant has appealed to this court. ■

The testimony on behalf of the state tended to show! that a number of pints of home brew were found near the home of the defendant, who lived with her husband and family. In the taking of the testimony on behalf of the state, when witness G. A. Taylor was on the witness stand, the following questions were propounded and the following answers given:

“Q. On or about that time and prior thereto, did you know the reputation of this place as being a place where intoxicating liquor could be purchased? Mr. Gowdy: We object to that as incompetent, irrelevant, and immaterial, and for the further reason he said it was not in any place. The Court: Overruled. Mr. Gowdy: Exceptions. Mr. Chappell: Did you know, Mr. Taylor? A. Yes, sir. Q. Was that reputation good or bad? A. Bad.”

The state was further permitted, over the objections of the defendant, when Henry Lowery was testifying, to ask the following questions, and the witness gave the following answers:

“Q. Did you know, or do you know the general reputation of the place where she lived, on or about the 22nd day of September* 1927? A. Yes, sir. Q. As to whether or not intoxicating liquors could be purchased or obtained there? A. Yes, sir. Q. You may state it to the court? Mr. Gowdy: Object to that question as incompetent, irrelevant, and immaterial, and it is not shown that the place has any connection with the place where the liquor was found. The Court: Overruled. Mr. Gowdy: Exceptions. Q. What was that reputation? A. Bad.”'

In view of the record in this case we do not deem it necessary to refer at length to the testimony. The defendant bag assigned several errors alleged to have been committed by tbe trial court in tbe taking of tbe testimony and in its instructions. Tbe only error we deem necessary to' consider is assignment 6:

“Tbe court erred in admitting incompetent, immaterial, and irrelevant testimony to be introduced by tbe state, over tbe objection of tbe defendant, tbe plaintiff in error here.”

This assignment relates to tbe calling into question of tbe reputation of tbe place of tbe defendant as being a place where intoxicating liquors could be purchased. Tbe witnesses Taylor and Lowery, both of whom claim to be officers, over tbe objection of the defendant, were permitted to testify that tbe reputation of tbe place where tbe defendant lived was bad. This question has been before this court so often that it is hardly necessary to cite authorities. In Welch v. State, 35 Okla. Cr. 2, 246 Pac. 1113, this court in the second paragraph of tbe syllabus, said:

“Before evidence of tbe general reputation of tbe place may be received as evidence in a case of unlawful possession of intoxicating liquors, it must be shown that tbe place itself was a place of public resort, not merely that it bore such reputation.”

Welch v. State, supra, was cited with approval in Conley v. State, 40 Okla. Cr. 128, 267 Pac. 491; and Leigh v. State, 41 Okla. Cr. 332, 273 Pac. 280.

Tbe testimony offered by tbe state, over the objection of the defendant, as to tbe general reputation of the defendant’s home was inadmissible. Before evidence on behalf of the state is admissible on tbe question of the general reputation of the defendant’s home, it must be shown that tbe place itself was a place where intoxicating liquors could be purchased or obtained, not merely that it bore such reputation. The objection of the defendant to the introduction of the testimony of the state upon the question of the reputation of her home was well taken, and the court erred in not sustaining the same.

It is not necessary to consider the other errors assigned. The case is reversed.

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


author: EDWARDS, P. J.

text:
    WALTER MOONEYHAN v. STATE.
    No. A-6764.
    Opinion Filed Oct. 21, 1929.
    (281 Pac. 986.)
    S. R. Harper, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county of having unlawful possession of intoxicating liquor, and his punishment was fixed at a fine of $200 and. confinement in the county jail for a term of 30 days.

Judgment was rendered on June 18, 1927. At that time, the defendant was allowed 40 days in which to make and serve a case-made, to be filed in the Criminal Court of Appeals within 60 days. On July 25, an order as follows was made:

“On this the 25th day of July, 1927, it appearing to the court upon application of the defendant that the time heretofore granted within which said defendant could make and serve a case-made on appeal to the Criminal Court of Appeals in said cause, which time expires on the 28th day of June, 1927, has been insufficient; it is hereby ordered by the court that a further extension of sixty days from July 28, 1927, be granted to said defendant to make and serve a case-made and to file his petition in error with said case-made in the Criminal Court of Appeals in said cause.”

The case-made was not filed in the Criminal Court of Appeals until September 27, 1927. This was more than 60 days from July 28. By section 2808, Comp. St. 1921, an appeal from a conviction in a misdemeanor case must be filed in this court within 60 days unless the court shall grant further time not exceeding 60 days additional.

The case not having been filed within the time fixed by the order of the court, this court does not acquire jurisdiction, and the appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    W. E. SEALS v. STATE.
    No. A-7153.
    Opinion Filed Oct. 26, 1929.
    (281 Pac. 990.)

      Prentiss E. Rowe, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pawnee county on a charge of violating the prohibitory liquor law, and his punishment fixed by the verdict at a fine of $100 and imprisonment in the county jail for 30 days.

This verdict was returned in May, 1928, and a case-made for appeal was fixed in this court in August, 1928. No briefs in support of the appeal have been filed. An examination of the record discloses that the case-made contains no copy of the judgment referred to in the petition in error, nor the journal entry of judgment and sentence from which an appeal is attempted to be made.

When an appeal is taken from a conviction, and the record or case-made does not contain a copy of the judgment, no question for review by this court is, presented, and the appeal will be dismissed. Harjoe v. State, 14 Okla. Cr. 187, 169 Pac. 659; Smith v. State, 18 Okla. Or. 166, 193 Pac. 744.

Por the reasons stated, the appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.