text:
    J. H. COOK v. STATE.
    No. A-6225.
    Opinion Filed June 9, 1928.
    (267 Pac. 1045.)
    Crump & Seawel, for plaintiff in error.
    Edwin Dabney, Atty Gen., and J. Berry King, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Muskogee county on a charge of receiving stolen property, knowing the same to have been stolen, and was sentenced to imprisonment in the county jail for a period of six months. Motion for new trial was filed and overruled, and exceptions saved. From this judgment and sentence, the defendant brings his appeal to this court.

The evidence on behalf of the state, in substance, is as follows: That on the night of the 13th of August, 1925, the Clay Saddle Shop, in Muskogee, was entered and articles taken, including some bridles, suitcase, lines, blankets, purses, brief ease and man’s wide brimmed black felt hat; that on or about the 22d day of August, 1925, G. É. Corbin, sometimes called Ed Corbin, a deputy sheriff of Muskogee county, appeared before W. Ray Kirk, justice of the peace, and made affidavit and application for a search warrant, upon which application and affidavit a search warrant was issued, the charging part of which, omitting the caption, is as follows:

“Proof by affidavit having been this day made before me by G. E. Corbin, showing that affiant has probable cause to believe and does believe that intoxicating iliquors are being manufactured, sold, bartered, given away or otherwise furnished, or such liquors are being kept in storage for the purpose of selling, bartering, giving away or otherwise furnishing in violation of the law, in, upon, or about a certain building and premises, to wit, a 1%-story frame building and premises situated at 12 mi. SE of Muskogee, and now owned, controlled, or used by Jim Cook. And it appearing that there is probable cause for believing that such grounds are true, you are therefore commanded in daytime or nighttime to make an immediate search of the above-described property, and to seize and safely keep and to bring before the undersigned any and all of the above-described property, and to serve a copy of this warrant upon the defendants, and each of them, or any person or persons in whose possession, or under whose control, the above-described property may be found, and to arrest the said defendants, and each of them, and if no person found in the possession of said property, so state in your return, and post a copy of this warrant on the door of the building or room wherein the said property is found and make return of "this warrant within three days from the issuing thereof. Dated this 22d day of August, 1925.”

It appears from the record that after this search warrant was delivered to Ed Corbin, that Corbin in company with J. W. Ruble left Muskogee in.,a car and went to the home of the defendant, arriving there about 2 o’clock in the afternoon, the defendant not being at home; they found, in the house, two daughters about grown; the officers claim that under the search warrant they proceeded to search defendant’s residence and after going through trunks, dresser drawers, grips, the bedrooms, and the smokehouse, and all of the private places of the defendant’s home, including that of his family, they found certain articles they thought to be articles that had been stolen from the Clay Saddle Shop some days prior to this search. The officers’ return is silent as to whether they found any intoxicating liquors as described in the warrant they claim to have had to search the defendant’s premises.

It further appears from the record that after they made the search, in the absence of the defendant, they remained at defendant’s home for about five hours until he and his wife and smaller children returned, that they had the articles gathered together and called his attention to the articles they had, and the defendant told them where he had secured them.

Mrs. E. L. Clay testified, over the objection of the defendant, and identified a number of the articles as being articles of the same kind and character that had been taken from the Clay Saddle Shop, of which she was the owner and manager on or about the 13th day of August, 1925.

Sam Blaine, whom the record discloses as having been a former convict, was permitted to testify that he was at the defendant’s home on the morning the defendant stated that he had bought these articles from a negro by the name of John Berryman, and a Mexican, on the 14th day of August, 1925, and that he did not know they were stolen when he bought them.

Mr. J. W. Ruble, a witness for the state, testified that he was a special officer for the Frisco Railroad and had a commission as deputy sheriff, and as to having been with Ed Corbin when he searched the home of the defendant and found certain articles there that they believed had been stolen. The deputy made a most remarkable return on the search warrant which was introduced in evidence, and of which the defendant complained as being an illegal search warrant. The warrant, as shown by a copy introduced in evidence, specifically directed the officer to search the premises named in the warrant for intoxicating liquors, and if any were found to bring the liquor before the justice of the peace issuing the warrant. No provision in the warrant gives the officer authority to search for anything other than intoxicating liquor and to bring the same, if any were found, before the officer issuing the warrant. The record discloses, however, that when the deputy making the search made his return, omitting the caption, the return is as follows:

“Received this writ this the 22d day of August, 1925, and executed the same by searching the within described premises, and by seizing the following described properties, the same being covered by this warrant, to wit, 7 bridles, 1 grip, 7 pocketbooks, belts, and by arresting -, on the-"day of-, 192 — , and by bringing the defendant and said property before the court as commanded.
“J. F. Ledbetter, Sheriff,
“By G. E. Corbin, Deputy Sheriff.
“Mdse, only.”

We have set out in substance all the testimony of the state, which was procúred by reason of the search warrant, and the property seized by the officer when he was making the search of defendant’s premises, excepting the testimony of Mrs. Clay, who, over the objection of the defendant, identified some of the articles seized as being the same kind of articles that were kept in her store that had been burglarized on the night of August 13, 1925.

The defendant, in presenting his errors alleged to have been committed by the trial court, has discussed them under two propositions. We will consider them in the order in which they have been presented by the defendant. The first proposition urged is:

“The search of the private residence and premises of the plaintiff in error, without his knowledge or consent, and in his absence, and seizure of the articles discovered thereby was violative of his constitutional and statutory rights, and the evidence secured in such illegal and unconstitutional manner was clearly inadmissible, and the court committed reversible error in admitting it over the objection and exceptions of the plaintiff in error.”

Section 30, art. 2, of the Bill of Rights,- provides:

“The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 7012, C. O. S. 1921, provides:

“That no such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

Section 7009, C. O. S. 1921, provides:

“That when it shall be made to appear to any judge of any court of record, or any justice of the peace, that there is probable cause to believe that liquor is being kept for the purpose of violating the prohibitory laws, such officer may issue a warrant directed to any peace officer in the county, commanding him to search the premises described and designated in such complaint and warrant.”

ISection 70131, C. O. S. 1921, provides:

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

The defendant urges that the affidavit for the search warrant was not sufficient upon which to give the court jurisdiction to issue" a search warrant, and the search warrant under which the officers claim to have been acting was so indefinite and uncertain that it would not justify the officers in searching his private home and taking therefrom any articles that the officers might believe had been stolen, having no actual knowledge of the facts themselves.

The application for the search warrant in this case alleges that G. E. Corbin has probable cause to believe, and does believe, that intoxicating liquors are being manufactured, sold, bartered, given away or otherwise furnished, or that said liquor is being kept in storage for the purpose of selling, bartering, giving away or otherwise furnishing the same,in violation' of the law, in, upon, or about a certain building situated in Muskogee county, Okla., being more fully described as follows::

“A 114-story frame building and premises situated 12 mi. SE Muskogee, and used as a residence [or as a] private residence, some part of which is used as a store, shop, hotel, boarding house, place of public resort, or place of storage, and now owned, controlled, or used by Jim Cook.”

It will be noted that the affidavit does not charge that the premises was occupied by Jim Cook as a residence, only charging that it was owned, controlled, or used by Jim Cook. It will also be noticed that the- description in the application for the search warrant is indefinite and does not particularly describe any place to be searched, locating the building in Muskogee county, somewhere from Muskogee. The application does not describe the building as being located in township, section, or range, nor on any highway in the county. An examination of the search warrant discloses that it is more indefinite and uncertain as to the location of the building to be searched than the application for the warrant; the description given in the search warrant being as follows:

“A 1%-story frame building and premises situated at 12 mi. SE of Muskogee, and now owned, controlled, or used by Jim Cook.”

Under this description, no officer unfamiliar witfi the country could have located definitely the place to be searched. The court will take judicial notice that there have been proper surveys made in all the counties in Oklahoma,' and that the lands are described by section, township, and range, and subdivisions of sections; that the officers, if they had taken pains, could have ascertained and set forth in the affidavit and warrant the particular description of the place to be searched as well as the property to be seized.

It is not charged definitely as to whether the house they desired to search was owned by the defendant, controlled by him, or used by him. It was charged that one or the other of the conditions existed. It will be seen that no description whatever is contained in the warrant other than the place to be searched was “a 1^4-story frame building and premises situated 12 mi. SE Muskogee.” The place to be searched is not located in any town, township, county, upon any highway nor even within the county of Muskogee.

This court has repeatedly held that the description in the warrant should be sufficiently definite that no discretion is left to the officer making the search. Langham v. State, 35 Okla. Cr. 57, 248 P. 349; Turknett v. State, 36 Okla. Cr. 401, 254 P. 985; Wofford v. State, 40 Okla. Cr. 18, 266 P. 494.

In the prohibition act there is no form for a search warrant, but the general law as to search warrants, section 2881, C. O. ,S. 1921, does set out a form providing that a search warrant shall describe the place to be searched with reasonable particularity. The authority of the officer to make the search is derived exclusively from the provisions of the warrant. The description in the warrant of the place to be searched and the thing to be seized should be sufficient to show jurisdiction, and not so broad as to permit a general search, but should be limited by reasonable certainty to the particular place described to comply with the provisions of sections 2881, 7009, and 7012, Compiled St. 1921.

The search warrant under which the officers claim to have been acting when they searched the residence of the defendant was unlawful for want of proper description, and void, and any search made by the officers of the defendant’s premises was without authority of law. The objection of the defendant to the introduction of the testimony of the officers making the search under the search warrant was well taken and should have been sustained. The search wárrant being void, the seizure of any property found in defendant’s home was unlawful and without authority of law and was inadmissible in evidence against the defendant.

The law has wisely provided how the home of an individual may be entered by officers for the purpose of making a search, and has particularly described what is necessary to be done by the officers before procuring a search warrant to search the home of a citizen of the state of Oklahoma. This law must be strictly complied with, in order that our laws may ,be properly enforced and the rights of our citizens upheld. Those charged with the enforcement of the laws must comply with the law before seeking to secure testimony against those they believe to be violating the law. It serves no good purpose for a sworn officer of the law to fail or neglect \to comply with the law in making an effort to securer evidence against some one whom be believes is violating the law. Unless our officers obey and respect the law, we cannot hope for the faithful observance of the same by its citizens.

It is urged by the state that the officers while making the search for intoxicating liquors found articles that had been stolen, and that the action of the officers in seizing the articles so stolen was legal and the testimony was admissible,' and the court committed no error in permitting them to testify as to the articles they found at defendant’s home and to identify the same when brought into court. To sustain this contention, our attention is invited to 86 Corpus Juris 951, § 591. Upon examination of the authorities cited in that case, we find ¡that it is not applicable to the facts in this case, as the search made by the officers in this case was without authority and was a trespass upon the sacred rights of defendant’s home.

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

All the evidence procured by the officers, having been unlawfully procured, was inadmissible. There being no competent evidénce to sustain the verdict, the case is reversed and remanded.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    DODD CASTOR et al. v. STATE.
    No. A-6142.
    Opinion Filed June 9, 1928.
    (267 Pac. 1044.)
    C. B. Leedy, for plaintiff in error Castor.
    Ruble & Collier, for plaintiff in error Crow.
    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 convicted of petty larceny, and each adjudged to pay a fine of $10 and the costs of this action. After conviction the proper record was made, and each have appealed to this court for a review of their case.

The testimony on behalf of the state in substance •is: That C. A. White attended church at a schoolhouse near where he was living, driving his Ford car; that he saw the defendants before thfey left the schoolhouse; the defendants left the schoolhouse about the time they were? singing to dismiss church; they were traveling in a Ford touring car; they started north, then west, then north, and stopped; “I did not see what they stopped for: they went in the direction of Vici, when I started to leave, I tried to start my car and it would not start; upon investigation I found the coils were gone; I borrowed Herb Lang’s coils, and then I said if any of you boys are game we will get the coils, and my brother W. ,W. White, Harold Cunningham, and Kenneth, went with me; when, we got to Vici I saw a car in the street; it was the same car the boys left in, a Ford touring car without any top, and the only car on the streets in Viici when we got there; I went up to the car to see if my stuff was in the car, and there it was in the car, in the front seat; we did not have to make any search for the coils; I did not touch the coils; when Mr. Clem, the deputy sheriff, came I told him what had happened and that the coils were in the car, and I went back and sat down on'the steps and did not return to the car until the defendants came out of the restaurant where they had been eating; when I returned to the car the defendants went with me; I asked them about the coils, and they said: ‘If them coils is what you want, they was in their car, that some one throwed them in there, and if I wanted them, there they are.’ I am sure the coils are mine land I never gave any one permission to take them out. the value of the coils are about $5 or $6.”

Mr. W. W. White and H. L. Cunningham testified in substance to the same facts as did the witness C. A. White.

E. Clem, the deputy sheriff, testified that he was called downtown May 17, 1925; that he was acquainted with the prosecuting witness, C. A. White, and also both the defendants; that he saw the property in the defendants’ car, but did not have to make a search to find it; was lying where he could see it; the property was in a Ford touring car in the middle of the street; the coils were up in the front seat; the defendants said some one put them in there to play a trick on them; Dodd Castor turned around and said, “These boys are accusing me oí stealing them coils.” He said, “They are in my car, but I did not put them there.” “I did not take the coils out until the defendants told me I could take them.” Claud White claimed the property at that time. This is in substance all the testimony on behalf of the state. The defendants offered no testimony.

Ten errors have been assigned by the defendants, alleged to have been committed by the trial court. The first error assigned is: “The overruling of plaintiff in error’s motion for a new trial.”

A careful examination of the entire record discloses that the coils from the car of the prosecuting witness were removed while he was attending church; that he and the other witnesses saw the defendants there at the church and saw them about the time they left church, which was a short while before the services closed; that the defendants left in a Ford touring car and drove in the direction of Vici; as soon thereafter as they could get coils for the prosecuting witness’ car, the owner of the car, his brother, and other parties pursued the defendants, and when they reached the town of Vici they saw the car parked in the middle of the street, and the defendants were in a restaurant eating; when the prosecuting witness went to the car the coils, identified by the prosecuting witness as his, were lying on the seat of the car. The defendants make no claim to the coils as being theirs but claimed that some one threw them in their car.

All the circumstances, as well as the positive testimony, tend to point to the guilt of the defendants. The jury heard the testimony, and the instructions of the court, and argument of counsel, and returned a verdict of guilty. Under the testimony in this case it could not have done otherwise than return a verdict of guilty. The instructions of the court were fair to the. defendants, and the motion for a new trial was properly overruled.

The other errors assigned we do not deem necessary to discuss. The evidence is sufficient to sustain the verdict.

No prejudicial errors appearing in the record, the case is affirmed.

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


author: EDWARDS, J.

text:
    J. O. DAVIS v. STATE.
    No. A-6004.
    Opinion Filed March 24, 1928.
    Rehearing Denied June 9, 1928.
    (267 Pac. 674.)

      McKeever, Moore & Elam, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Blaine county of violating the state banking laws, and was sentenced to serve a term of five years in the state penitentiary.

The prosecution is under section 4178, Comp. St. 1921, which, in substance, provides that every officer of any bank who embezzles, abstracts, or willfully misapplies the moneys or property of any bank with intent to injure or defraud or to deceive any officer of the bank or the bank commissioner is guilty of a felony. The section further provides that the principal offender and those aiding and abetting may be charged in the same count, and that separate offenses may be charged in separate counts in the same indictment.

It appears from the record that defendant at and for a long time prior to the time charged was cashier of the American State Bank of Geary. He was also a partner with one P. P. Krehbiel, doing business as Krehbiel & Co., engaged in the drilling of oil wells and dealing in leases and acreage. Krehbiel & Co. had considerable business transactions with the bank, and, through one T. P. Little, borrowed money from the bank at different times. These transactions were merged, and, on November 28, 1921, Krehbiel & Co. obtained $4,000 of the bank’s funds by combining and closing two items represented by two notes executed prior thereto by T. P. Little, acting for Krehbiel & Co. This banking transaction is somewhat involved, and we deem it unnecessary to state it at length. The prosecution was commenced by filing a complaint on October 13, 1924, on which a preliminary was had and the information was filed in the district court on November 14, 1924. Defendant did not take the stand, and offered no evidence except to previous good reputation.

The information contains two counts, each pleading fully the procuring from the bank the sum of $4,000 by Krehbiel & Co. through a loan represented by two notes signed by T. P. Little in the sum of $2,000 each. The first count alleges the moneys were procured with the unlawful, willful, and felonious intent to injure and defraud the American State Bank, with the intent on the part of said J. O. Davis to loan said money to the partnership of which he was a member. The second count makes substantially the same allegation, but that same was done with the felonious intent to deceive the bank commissioner of the state of Oklahoma. A demurrer challenging the information in all its phases was interposed and overruled. The verdict found defendant guilty on each count, and fixed his punishment on each count at imprisonment for a term of five years, and by a fine of $2,500. The judgment followed the verdict and assessed the punishment on each count as stated in the verdict, and provided that the punishment assessed on each count should run concurrently.

It is argued that the prosecution is barred by the statute of limitation. This contention is predicated upon the fact that the two notes signed by Little, by Which the funds of the bank were procured for the partnership, were dated, one September 10, 1921, the other October 10, 1921. If on those dates the transactions were complete, the prosecution would be barred. But it is clearly shown by the evidence that the moneys procured by Krehbiel & Co. from these two notes was in the form of a draft for $3,100, and a credit for $900 on the bank’s books, The credit Was entered on November 28, 1921, and the draft was paid on November 30, 1921. The prosecution is therefore not barred by limitation.

The contention is made that the information is insufficient; that, if it charges any offense, it charges more than one. Bach count charges defendant did abstract and misapply the funds, money, etc., of the American State Bank. The statute provides that every officer of any bank who embezzles, abstracts, or willfully misapplies the moneys, etc., of the bank, is guilty of a felony. Defendant contends that, under the statute, an abstracting is one offense, and a willful misapplying is another offense, and that they cannot be joined in the same count, citing 7 C. J. § 714, p. 804; U. S. v. Cadwallader (D. C.) 59 F. 677; U. S. v. Smith (D. C.) 152 F. 542; U. S. v. Breese (D. C.) 131 F. 915; Donegan v. U. S. (C. C. A.) 296 F. 843; 7 C. J. § § 798, 799, and other authorities.

All the authorities cited are from the federal courts, and all apply to decisions under the National Banking Act. The statute here (Comp. 'St. 1921, § 4178), is directed against the diverting or dissipating the money of the bank by embezzling it, abstracting it, or willfully misapplying it. It is the depriving the bank of its money either by embezzling it, abstracting it, or willfully misapplying it that the statute denounces as a felony. Whether the particular manner in which the bank parts with its money constitutes an embezzlement and abstracting or a willful misapplying is not important — the offense is the same. It may be committed by diverting the funds of the bank in any one of the three ways enumerated. It is immaterial that there may be some difference in the techical or legal definition between the terms “abstracting” or the “willful misapplying,” as used in the information. These terms are not defined by the statute, but the information alleges fully the acts of defendant in diverting and depriving the bank of the $4,000 of its funds. The statute enumerates disjunctively the acts which constitute the offense. Either one of them may constitute the offense, and all together they constitute the offense. It Was entirely proper to allege the different ways in which the offense may be committed in the conjunctive in the same count, and to do so does not render the information duplicitous.

In Cole v. State, 15 Okla. Cr. 361, 177 P. 129, it is held:

“An information for a violation of section 2204, Rev. Laws 1910, may properly charge in one count in the conjunctive the several acts prohibited by said section, and a legal conviction had upon proper proof that the defendant did either one of the several acts interdicted by said sections.”

In the body of the opinion the court reasons as follows:

“* * * Said section 2204 makes it unlawful knowingly to feed, or lodge, or clothe, or arm, or equip in whole or in part, or harbor, or aid, assist, or conceal in any manner any person guilty of a felony, or a fugitive from justice, and upon a proper information charging each of said prohibited acts in the conjunctive the defendant may be legally convicted of doing any one or more of the said several acts interdicted. * * *”

In Sherman v. State, 19 Okla. Cr. 269, 200 P. 262, it was contended that an information which charged a defendant with both buying and receiving stolen property was duplicitous. The court said:

“* * * The demurrer was properly overruled. The statute defines but one offense, and enumerates disjunc-tively the acts which, either committed separately or together, constitute the offense. The rule is well established that where a statute enumerates a series of acts, either of which or all together may constitute the offense, all such acts may be charged in a single count, since, though each by itself may constitute the offense, all together do no more and constitute but one and the same offense, and the indictment or information, if it charges more than one of such acts, which it may do and that in the same count, should do so in the conjunctive. * * *”

See, also, Adams v. State, 5 Okla. Cr. 347, 114 P. 347; Boucher v. State, 6 Okla. Cr. 387, 118 P. 1102; Hayes v. State, 4 Okla. Cr. 377, 111 P. 1020.

It is also argued that the information is duplicitous, in that each count sets out two separate transactions. The information does describe two notes of different dates for $2,000, each made by T. P. Little, payable to the bank. This, however, but pleads the manner in which the funds of the bank were loaned to Krehbiel & Co., for following the description of the notes is the allegation that they were entered on the books of the bank and credit given to Krehbiel & Co. in the sum of $4,000; that is, each count pleads that $4,-000 was obtained by Krehbiel & Co. by means of the two notes. The obtaining of the money is the fact constituting and concluding the offense, and is but one transaction, although it was obtained by means of two notes bearing different dates.

Defendant also insists that the information is indefinite and insufficient for failure to allege that the acts done were without the consent of the board of directors. Several authorities are cited in support of this contention, but all refer to the National Banking Act, which contains a clause “without authority of the directors.” 12 U1SCA § 592. Our statute does not contain this clause, and the definition of the charge is different from the definition contained in the federal act.

Defendant also insists that the information is insufficient in failing to allege the bank suffered any loss. That allegation is not expressly made, but a state of facts is set out by which the bank made a loan to Krehbiel & Co. through the use of the name of T. P. Little, and that said partnership “did then and there accept, receive, and use said sum of money from said bank for the benefit of said partnership.” This sufficiently alleges the loan and the receiving of the funds of the bank by the partnership.

It is also argued that the court erred in instruction No. 9. This instruction informs the jury of the punishment for the offense charged, and- that they should assess the punishment, and further informs them that a verdict should be returned upon each count. Pursuant to this instruction, the jury returned a verdict finding defendant guilty on each count, and assessing the punishment on each count at five years in the state penitentiary, and at a fine of $2,500. Defendant -insists this is error, and argues that under the statute an intent to injure or defraud or to deceive any officer of the bank or to deceive the bank commissioner constitutes but one offense, citing Boone v. U. S. (C. C. A) 257 F. 963; McKnight v. U. S. (C. C. A.) 97 F. 208.

This contention is correct. In the reasoning of the court in the Boone Case, supra, it is said:

“* * * Is this count of the indictment duplicitous by reason of the allegations that the false entry in the report was made with the intent to injure and defraud the bank and to deceive the Comptroller of the Currency, or any agent appointed to examine the affairs of the bank?
“Counsel rely on what they presume was decided by Judge Adams, speaking for this court, in Billingsley v. United States, 178 F. 653, 101 C. C. A. 465, and United States v. Norton (D. C.) 188 F. 256, decided by Judge Campbell, who was of the opinion that the Billingsley Case sustained the contention now made.
“A careful reading of Judge Adams’ opinion does not warrant this construction. The issue in that case was whether the indictment charging a false entry in the books of the bank, with the intent to deceive any agent appointed to examine the affairs of the bank, without charging that the false entry was made with the intent to defraud the association, or any other bank or person, was sufficient to charge an offense. The court held the indictment sufficient, saying:
“ ‘There are apparently two separate intents contemplated by this section, either of which, when accompanying a forbidden act, constitutes an offense.’
“It was not held that the making of a false entry to defraud and to deceive constituted separate offenses. The intents were separate, but they might both concur in the making of a single false entry and thereby constitute a single crime. That allegations in an indictment charging both intents in one count are not duplicitous has been decided in McKnight v. United States, 97 F. 208, 215, 38 C. C. A. 115, 123, in which the opinion was delivered by Judge (now Mr. Justice) Day, and was concurred in by Judge (later Mr. Justice) Lurton and Circuit Judge Taft. In United States v. Britton, 107 U. S. 655, 665, 2 S. Ct. 512, 27 L. Ed. 520, a count charging the acts of the defendant to have been with the intent to injure and defraud the said association and certain persons to the grand jurors unknown was held good and not duplicitous. The same conclusion was reached in Morse v. United States, 174 F. 539, 548, 98 C. C. A. 321 [20 Ann. Cas. 938], in Richardson v. United States, 181 F. 1, 8, 104 C. C. A. 69, and in effect in United States v. Corbett, 215 U. S. 233, 30 S. Ct. 81, 54 L. Ed. 173.
“In Crain v. United States, 162 U. S. 625, 636, 16 S. Ct. 952, 40 L. Ed. 1097, a similar question was before the court. A count in the indictment charged three acts, made separate offenses by section 5421, Rev. St. (U. S. Comp. St. § 10193 [18 USCA § 73]), and was held that a motion in arrest of judgment on that count, on the ground of duplicity, was properly denied. The court said:
“ ‘We perceive no sound reason why the doing of the prohibited thing, in each and all of the prohibited modes, may not be charged in one count, so that there may be a verdict of guilty upon proof that the accused had done any one of the things constituting a substantive crime under the statute.’ ”

The two counts of the information here charge but one offense. A general verdict is all that is required. Section 21, art. 7, State Const. This court, in the case of Fooshee v. State, 3 Okla. Cr. 668, 108 P. 560, held:

“Where a conviction is had upon an indictment containing more than one count, but each count charging the same offense in a different form, the law does not require that the jury state in their verdict upon which count the conviction is had.
“Where the same act constitutes two or more different offenses and such different offenses are charged in separate counts of the same indictment, the law requires that a verdict of conviction state upon which count the conviction is had.”

The acts alleged to have been done are charged in separate counts with having been done with different intents. Both intents might have been charged in the same count, and a general verdict returned. The jury, however, by their verdict found the acts were done with both intents, and assessed a double punishment. The court in the judgment assessed the punishment fixed in each count, and provided they should run concurrently. The defendant has been at liberty on a supersedeas bond, and has suffered no part of the penalty assessed. Under this state of facts is a reversal required? May not this court correct the judgment leaving in force only one penalty? Section 2820, Ocmp. St. 1921, gives this court power to reverse, affirm, or modify a judgment. In People v. Ryan, 74 Cal. App. 125, 239 P. 419, under an identical statute, it is said:

“Where several sentences for forgery were erroneously imposed on different counts, and there is no doubt of defendant’s guilt, and punishment on all counts was of equal duration, a new trial will not be granted, but judgment of conviction will be reduced under Pen. Code, § 1260, giving court power to modify judgment by striking sentences so as to make one sentence for one crime.”

In reasoning in that case, the court said:

“In view of the equality in penalties as between the different offenses, the defendant cannot be substantially interested in the selection of the judgment which shall stand if the remaining sentence or sentences for the same offense are set aside. The superior court might have made that selection, and the defendant would not have been prejudiced thereby. Lovejoy v. State, 40 Tex. Cr. R. 89, 48 S. W. 521. See note of that and other cases in 16 L. R. A. (N. S.) 561 et seq.
“The court below pronounced a separate sentence on each count under which the defendant was convicted, and provided that the sentences run consecutively. Appellant has treated these separate sentences as constituting, which they do, in substance, a single judgment, and has appealed 'from the final judgment of conviction,’ in the action. It is ordered that the judgment be, and the same hereby is, modified as follows: By striking from said judgment the sentence imposed and based upon conviction under counts 18, 18, 25, 29, and 30 of the indictment. In all other respects and with reference to all other portions of said sentences and judgment, the same are hereby affirmed.”

This court in many decisions has exercised the power to modify judgments.

Upon a consideration of the entire record, we are of the opinion that the- judgment should be modified to strike from the judgment the punishment assessed under the verdict rendered on the second count; in all other respects the judgment should be affirmed. As modified, there is no miscarriage of justice, and such errors as appear are without substantial prejudice to the rights of defendant. As modified, the case is affirmed.

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


text:
    B. J. BRADY v. STATE.
    No. A-6162.
    Opinion Filed June 9, 1928.
    (267 Pac. 317.)

      Morris & Tant, for plaintiff in error.
    George Short, Atty. Gen., and J. Berry King, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of maintaining a nuisance in a building located at 1019 East Seventeenth street, in Oklahoma City, by operating a building in the manner and form as follows, to wit:

“That is to say, that the said defendant in the county and state aforesaid, on the day and year aforesaid, then and there being, did then and there willfully unlawfully, and wrongfully maintain and operate the west apartment of a duplex frame building located at 1019 East Seventeenth street, in Oklahoma City, said county and state, where intoxicating liquors, to wit, whisky, was kept, bartered, manufactured, sold, given away, and otherwise furnished to divers persons unknown, and where divers persons unknown were permitted to congregate for the purpose of buying, drinking, and otherwise receiving intoxicating liquors — all to the common nuisance of the public, contrary to the form of the statutes in such cases made, and provided, and against the peace and dignity of the state of Oklahoma.”

—and his punishment fixed at a fine of $500 and confinement in the county jail for 180 days. Motion for new trial was filed and overruled; exceptions saved; and the defendant has appealed to this court.

The testimony on behalf of the state is in substance as follows: Harry Gerson, called as a witness, stated:

That on the 29th day of October, 1924, he owned a duplex building located at 1019 East Seventeenth street, Oklahoma City, Okla. That he had only met one man by the name of Brady who occupied the building. “I went out to see who collected the rent, and learned that a man by the name of Gilliland had collected the rent a day or two before. I talked to Brady about that part of the building he occupied, and he said the other man worked at night. I afterwards went there. The month I got possession of it a real estate man went out there to show it, and could not get in, and came to me, and said he could not sell it because it had a peculiar odor; and to investigate it I went out with Mr. Mee. I went to the back of the apartment, and found it had a horrible odor.”

Mr. Morris objected to the testimony, for the reason that he did not have a search warrant, and that he had no more authority as a private citizen than an officer had to enter the premises, and for that reason they moved that the testimony be excluded. The court overruled, and Mr. Morris excepted.

“Q. Go ahead. A. Victor Mee and I went out there, and discovered this odor, and Walked in the back room, and the back door was locked. (Mr. Morris then objected to the witness testifying on the ground that they were trespassers and had no authority to go in to a private home any more than a state, county, or federal officer would have without a search warrant.)
“The Court: I am inclined to believe this is true.
“Mr. H'errod: This man did not go to search the house, but to find out why he could not show it to prospective buyers. He had it for sale. He went there to see why he could not sell his property like is done all over town. He wasn’t searching the place; he wasn’t asking permission to search.
“The Court: You might ask a further question:
“Q. What did you go out there for? A. The agent who had this house for sale reported to me that he could not get in, and that it had a peculiar odor, and that he could not show it or sell it for that reason.”

The witness further testified:

“I said I went out there to investigate and see what was the matter.
“Mr. Morris: The same objection. Does the court want to hold that a private citizen can go on another private citizen’s premises and make an investigation when an officer cannot do the same?
“The Court: The evidence is that he or his agent could not get admission out there, and that he went out there to see what was the matter. The objection is overruled.
“Mr. Morris: Exceptions.”

Witness testified further:

That in a little back room called a breakfast room there were four or five barrels of mash; about 50 gallon barrels. In the kitchen they discovered a still. There was a worm, acetylene lamp, or gas burner, and copper still. It was a pretty good sized one. “I don’t know, it held 20 gallon or more, something like that. The mash was whisky mash. The odor of whisky was pretty strong. We could not get in from the front to where the mash and whisky was. We got in from the back porch on the duplex to where the whisky was. I notified the officers, and they came out and took possession. I only saw Mr. Brady twice after that. After this I served notice on his wife to vacate the premises.”

On cross-examination the witness stated:

“It was com mash. We did not find any whisky there. I went into the west side of the apartment. The duplex is 1017 and 1019 East Seventeenth street. It faces south. There is a partition running through the center and on the front porch. The apartments are separate also from the back porch. I went in from the back way. The still and things were in the kitchen. We could not go from the kitchen into the dinning room on account of the barrels. We did not go into the east apartment at that time: later we did. We never saw anything in there. The east apartment is the apartment occupied by Mr. Brady. That is what he paid rent on. Brady was not there that day. J. D. Johnson was not there that night. I saw Mrs. Johnson. Mrs.' Johnson came ' in that night, and said she occupied the house, and we asked if it was her liquor, and she said that it was. She did not come in the room where the whisky was.”

T. H. Gilliland testified:

That he owned the duplex at 1017-1019 East Seventeenth street; that his receipt showed that on September 30, 1924, he rented 1017 East Seventeenth street to Joe Brady. “Mr. Brady did not pay the money at all. A Mr. Sprague brought the money up to me, and I wrote the name ‘Joe Brady’ in the receipt. I did not see Mr. Brady at all that time. B. J. Brady on the same afternoon rented 1019 East Seventeenth. He came in person. 1019 is the east apartment. The other man who brought the money up was a cripple. He said he was renting it for Jce Brady. I never saw the man who claimed to have been renting it, only the man who brought the money. I never did see the defendant before he come up and paid me the money for the east apartment.”

J. D. Johnson testified that he was prosecuted for maintaining a public nuisance at 1017 East Seventeenth street, and the jury returned a verdict against him, fining him $300 and imprisonment in the county jail for six months; that he only occupied two of the front rooms at 1017 East Seventeenth street; that it was in the west apartment that he had rooms rented, only two rooms; that he could not get from his apartment back to the dining room and breakfast room. The doors between the breakfast room and dining room and the room he occupied were locked. He stated:

He could smell the odor of whisky strong. He did not know what defendant Brady, was doing at that time. He did not talk with him after the raid; did not see him until they had him arrested down at Dodge Bros. “My wife and I drove up to the apartment that night while the officers were there. She went in the house, and I ran off. I later came in and surrendered.”

On cross-examination witness Johnson testified that, when the door was opened, and he saw the light and saw the officers, and he saw where they were, he knew they would arrest him for having a still and mash in the building. He admitted he had been tried and convicted for the same offense as was charged against the defendant; that he had not been sentenced on the verdict of the jury; that they were waiting until the Brady matter was tried, and then to pass on them. Later he said there was not anything said about waiting until the Brady Case was tried before passing on the motion.

Witness Johnson stated that he did not have the use of the toilet in the apartment he occupied; used the Brady toilet; did not have a key to the Brady apartment, but they were always home at night. Witness stated that Brady used his car the afternoon previous, and that Brady bought a car and left witness’ car at the garage; that the the witness did not know there were any bottles in the car.

Defendant called witness J. F. Burks, who testified: That he was deputy sheriff. That he had a phone call to come out to a certain place, and that he found Bill Shelton in charge of the house. There was a lady there supposed to be Johnson’s wife. She gave her name as Johnson. This lady said that the still and mash were hers — hers and her husband’s. That he testified in the ease against J. D. Johnson and his wife. Mrs. Brady was in the east apartment. There was a solid wall between the apartments.

On cross-examination witness stated:

That Mrs. Johnson came in where the mash was, “and, somehow, I don’t know just how it was, I found out it was the woman of the house, and she said it was their .still and, if my memory serves me right, she said it was the third time they run it. She mentioned no one else excepting her husband.”

U. S. Grant, a deputy sheriff, testified as to the same facts as J. F. Burks; also:

That they found five or six empty bottles and two packages of yeast in the Johnson car. He went through the Brady apartment, and saw nothing to indicate liquor. Mrs. Johnson came into the room, and was talking to Mr. Gerson and his wife. “I asked whose stuff it was, and she said it was ours; she said, ‘Mr. Johnson’s and mine.’ I testified in the case against Mr. Johnson.”

On cross-examination he was positive Mrs. Johnson said the still and mash was her husband’s.

The defendant, called as a witness in his own behalf, stated:

That he did not remember the date he was arrested, but when he was arrested he lived at 1019 East Seventeenth street, which was a duplex apartment. That his apartment was the east apartment of the duplex; that he had nothing to do with the still or mash found in 1017, which is the west apartment, nor did he know anything about it. That Mr. Johnson never paid him any money to pay for the gas meter, nor did he pay for the same. He rented apartment 1019 from Mr. Gilliland. Mr. Gerson left a notice with his wife to vacate. At the time his wife was working at Classen Junior High. That the children were going to school. There was no way for him to go from his apartment to the west apartment without going outside the building. There was a partition wall running all the way across the porch. “Johnson did not use any part of my apartment, and I did not use any part of his. They did not use my car, nor did I use their car. I never did drive his car. I did not run off the night of the raid. I was at Cromwell, Okla., at that time. I did not tell Mr. Gerson that I rented the whole house. I told him I rented the east apartment. I am now working in Guthrie.”

Several pages of the record are taken up with the state in cross-examination of the defendant. Considerable time is consumed in asking the defendant as to what he had been doing prior to the date of his arrest and for some time thereafter. Many of the questions are incompetent and immaterial, and had a tendency to lengthen the record unnecessarily. However, none of the questions propounded are of such a character as to prejudice the rights of the defendant before the jury.

The defendant has assigned twelve errors alleged to have been committed by the court in the trial of his case. 'The only errors we deem necessary to consider are 5 and 12, which are as follows:

“(5) That the verdict of the jury is contrary to the law and to the evidence.”
“(12) Because the court erred in overruling the motion for nev trial.”

These two assignments of error cover all the questions raised by the defendant. The information in the case charges the defendant with having maintained a nuisance at apartment 1019 East Seventeenth street. All of the proof shows conclusively that there was no nuisance of any kind or character committed at apartment 1019 East Seventeenth street. The only testimony introduced tends to establish that a nuisance, if any committed, was committed at 1017 East Seventeenth street, which was the adjoining apartment, there being only a wall between 1017 and 1019 East Seventeenth street. The testimony tends to show that the defendant in this case personally rented from the party having the authority to rent the building at 1019 and paid the rent. The testimony is not clear as to who rented the apartment at 1017; the witness for the state saying that some one who was crippled applied to rent it, and paid the rent, and he wrote the receipt in the name of Joe Brady; that he had never seen Joe Brady; and that he did not know who he was. There is no testimony to show that such a person as Joe Brady existed, but the testimony does show that B. J. Brady applied in person and rented apartment 1019' East Seventeenth street.

The record further discloses that there is no proof showing that the defendant in this case knew of there being a still and barrels of mash in the apartment No. 1017, except the testimony of J. D. Johnson, who, together with his wife, had been tried and convicted of having maintained a nuisance at 1017 East Seventeenth street. The testimony further discloses that, while the officers were at 1017, and while Mrs. Johnson, the wife of J. D. Johnson, was present, she stated that the still and the mash belonged to her and her husband, and that this was the third time they had run it; that she and her husband had been getting something to eat, and they drove up to the house and saw the officers in there, and her husband ran off; that in his car were found some bottles and yeast..

The record further discloses from the witness J. D. Johnson that his motion for a new trial in the case of himself and his wife, where they had been convicted for maintaining a nuisance at 1017 East Seventeenth street, had not been disposed of; that he had been told that it would not be until after the trial of Brady. He then later changed his statement, and says nothing of that kind had been said to him.

The only evidence in the record which tends to show that the defendant was in anyway whatever connected with apartment No. 1017 East Seventeenth street and the still and mash they found in the apartment is the statement of J. D. Johnson, who has been convicted of the same offense charged against this defendant. There is no other testimony tending to show that the defendant had any thing to do with 1017, excepting the uncorroborated testimony of J. D. Johnson, whose statement shows he is an accomplice with the defendant. All of J. D. Johnson’s evidence tends to show that it was given against the defendant for revenge.

The court in its sixth instruction advised the jury as to the witness J. D. Johnson being an accomplice, and correctly instructed the jury upon the law as applied to an accomplice.

Section 2701, C. O. S. 1921, is as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This court, in McKinney v. State, 20 Okla. Cr. 134, 201 P. 673, says:

“It is not sufficient corroboration to merely connect the defendant with the accomplice in a crime. The evidence, independent of the testimony of the accomplice, must tend to connect the defendant with the crime itself, and not simply with the perpetrators.”

In Kirk v. State, 10 Okla. Cr. 281, 135 P. 1156, it is held:

“There cannot be a conviction unless there is proof of substantial facts tending to connect the defendant with the commission of the offense aside from and without the aid of the accomplice testimony.” Wever v. State, 22 Okla. Cr. 414, 211 P. 1062.

This question has been before this court in so many cases that it is not deemed necessary to cite further authorities upon that question. The court is of the opinion that the evidence of J. D. Johnson is that of an accomplice, and, if this conviction is allowed to stand, it is necessary to find in this record evidence independent of the witness J. D. Johnson, which connects the defendant with the commission of the offense.

After a careful examination of the entire record, the court is of the opinion that there is no evidence independent of that of the accomplice which tends in any way to 'connect the defendant with the commission of the offense charged. Therefore it is our opinion that the evidence is legally insufficient to sustain the conviction.

For the reason stated, the judgment is reversed and remanded.

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


text:
    LUTHER THOMPSON v. STATE.
    No. A-6479.
    Opinion Filed June 13, 1928.
    (268 Pac. 314.)

      H. A. Stanley and J. B. Ogden, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was informed against by the county attorney of Carter county, Okla.; the information, omitting the caption, being as follows:

“Now comes F. M. Dudley, the duly qualified and acting county attorney in and for Carter county, state of Oklahoma, and gives the district court of Carter county, state of Oklahoma, to know and to be informed that Luther Thompson did, in Carter county, and in the state of Oklahoma, on or about the 16th day of February in the year of our Lord, one thousand, nine hundred and twenty-six, and before the presentment hereof, commit the crime of perjury in the manner and form as follows, to wit:
“That Luther Thompson, in the county and state aforesaid, on the day and year aforesaid, in the county court of Carter county, Okla., sitting at Wilson, Hon. A. J. Hardy, the regular elected, qualified, and acting judge for said county then and there presiding and acting, wherein the case of the State of Oklahoma v. U. S. Connelly, charged with selling intoxicating liquor, being No. 180 on said court docket, was then and there being tried and heard before the court aforesaid, and that the said Luther Thompson was then and there produced as a ’witness in said case on behalf of the state, and was then and there duly sworn to testify truly and the truth to tell in said case by Fay Wallace, the duly elected and qualified court clerk of Carter county, Okla., who was then and there duly authorized and empowered to administer oaths in such cases, and administer said oath in that case, and that then and there it became a material question in said case whether the said Luther Thompson bought intoxicating liquor from the said U. S. Connelly, and that then and there the said Luther Thompson, being a witness duly sworn and testifying as aforesaid, did then and there knowingly, willfully, unlawfully, falsely, corruptly, feloni-ously, and contrary to said oath, testify, depose, and say, in substance and effect, that he did not buy intoxicating liquor from the said U. S. Connelly, whereas in truth and in fact the said Luther Thompson did buy intoxicating liquor from the said U. S. Connelly, and in all particulars the testimony, statements, and declarations so testified and deposed unto by the said Luther Thompson were then and there material matter in and to the said case of State of Oklahoma v. U. S. Connelly, charged with selling intoxicating liquor, as aforesaid, and were then and there not true, but were false and corrupt, and were then and there by said Luther Thompson not believed to be true, but were then and there believed and known by said Luther Thompson to be false; contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state.
“F. M. Dudley, County Attorney.”

Defendant demurred to the information, which demurrer was by the court overruled, and defendant duly excepted. The defendant was tried upon the information, and convicted and sentenced to serve a term of five years at hard labor in the state penitentiary at McAlester. Motion for new trial was filed and overruled; exceptions duly saved; and sentence imposed on the defendant. From the judgment and the verdict defendant appeals.

Fay Wallace was called and testified:

That she wras court clerk in February, 1926, and as such court clerk was clerk of the county court. That the county court was in session on the 16th day of February, 1926, Judge A. J. Hardy presiding. On February 16, 1926, there was a case pending, State of Oklahoma v. U. S. Connelly, No. 180, charged with selling intoxicating liquor. The charging part of the information was “selling intoxicating liquor to Luther Thompson and Joe Carnes.” Luther Thompson was called as a witness in the case, and was sworn to tell the truth. “I administered the oath to Luther Thompson. I was authorized by law to administer oaths. That Luther Thompson to whom I administered the oath is the same Luther Thompson that is defendant here.”

The state then offered to introduce Exhibit A, which was alleged to be a copy of the information upon which U. S. Connelly had been tried. Defendant objected, and the objection was overruled and exceptions duly saved.

Florry Cunning was called as a witness in behalf of the state and testified she was court reporter on February 16, 1926; that she reported the testimony in the case styled State of Oklahoma v. U. S. Connelly, No. 180, charged with selling intoxicating liquors. The Luther Thompson called as a witness in case No. 180 is the same Luther Thompson in this case. “I am able at this time to read my notes taken in the trial of State of Oklahoma v. U. S. Connelly, No. 180.” She read the questions and answers as follows:

“Q. What is your name? A. Luther Thompson.
“Q. Where do you live, Luther? A. Healdton, Okla.
“Q. How old are you? A. I will be 23 in March.
“Q. Did you go with Joe Carnes last August, 13th day of August, 1925, to any place? A. I did.
“Q. Where? (¡Counsel for the defendant objected; the court overruled his objection, and defendant duly excepted.)
“By the Court: Go ahead. Give him his exceptions.
“Q. Where? A. South of Healdton.
“Q. What did you do when you got down there? A. Well, I went down there.
“Q. Just what did you do? Did you buy anything? A. Yes, sir.
“Q. What was it? A. Mostly whisky.
. “Q. How much? A. Quart.
“Q. Who from? A. Well, I don’t know for sure. I don’t know.
“Q. Tell the jury whether it was this defendant here (referring to U. S. Connelly) ?
“Mr. Ogden: We object to this. He says he don’t know.
“Q. Was it this man, this defendant (Referring to Mr. Connelly) ? A. I don’t think that was the man.”

On cross-examination by Mr. Ogden:

“Q. You don’t think that is him?
“A. No, sir.”

Motion was then made by the defendant to strike the testimony of the witness on the ground that it was incompetent, irrelevant, and immaterial, proves no issue in the case. The motion was overruled, and defendant allowed an exception.

Hale Dunn, called as a witness, stated:-

He was deputy sheriff on the 13th day of August, 1925. That he was present at the county court at Wilson on the 16th day of February, 1926, when the case of State v. U. S. Connelly was being tried. Prior to this, on or about August, 1925, “I saw Luther Thompson at U. S. Connelly’s, right in front of the house, Joe Carnes was with him. They drove in toward the barn, and I waited, and, when they came back, I stopped them and searched them. They had a quart of whisky. They said they got it from U. S. Connelly, the old gentleman. I arrested them, and brought them into Ardmore and put them in jail. They stated they wanted to talk to the county attorney. I told them we wasn’t after the boys so much, but I told them if they would tell who they bought it from I would dismiss the case. I brought them to the county attorney’s office at their request. The assistant county attorney and myself was present when this statement was made. The statement was written out and read to these two men, and they signed it.”

The statement, purported to be signed by the defendant and Joe Carnes, was offered in evidence and objected to by the defendant, which bbjection was overruled by the court and exceptions allowed. Witness further testified:

That he saw the defendant and Joe Carnes drive up to the Connelly house, and saw the old man get on the car. “I did not know who it was, but I saw him. I don’t know who it was, but I asked these boys, and they both told me it was U. S. Connelly.”

Marvin Shillings, a witness on behalf of the state, testified that he knew the defendants Luther Thompson and Joe Carnes; that he prepared the statement that had been offered in evidence purported to have been signed by Carnes and sworn to and approved by Thompson. His signature was attached before Mr. Shillings, and sworn to before him as notary public. The witness further testified that both of the defendants told him the facts incorporated in the affidavit of Joe Carnes; that Thompson said his statement would be the same.

At the close of the state’s testimony the defendant demurred to the testimony offered in behalf of the state, and moved the court to discharge said defendant because the testimony was insufficient in law to sustain the allegations alleged in the information, and the state wholly failed to prove facts sufficient in law to constitute any violation of the laws of the state of Oklahoma.

The jury was excused from the courtroom and the demurrer was argued. The jury then returned to the courtroom, and the court entered an order overruling the demurrer, and allowed an exception. This is in substance all of the testimony introduced by the state. The defendant introduced no testimony.

The defendant has assigned six errors alleged to have been committed by the court in the trial of his case'; the errors alleged being as follows:

“(2) For the reason that the verdict was contrary to the law applicable to the case.
“(3) For the reason that the court committed error in overruling defendant’s demurrer to the information.
“(4) Because of admission of incompetent, irrelevant, and immaterial testimony in the trial of the case over the objection of the defendant.
■ “(5) Because of errors in paragraphs 4 and 5 of the court’s instructions to the jury, exceptions to "vhieh were saved and excepted to at the time by thf defendant.
“(6) Because the instructions of the court as a whole did not fairly give the law applicable to the facts in this case.”

The second, third, and fourth assignment of errors will be considered together, as they each in substance relate to the same question argued by the defendant. From the record it will be seen that Hale Dunn, a deputy who claims to have seen the defendant at the home of Connelly, and claims to have seen the man get on the car with the defendant and Joe Carnes, in which Joe Carnes was riding and go away, did not testify to the fact that it was U. S. Connelly. He stated positively that he did not know who it was.

The only other person claimed to have been present by the state, at the time the defendant is alleged to have been at the Connelly home, with Joe Carnes, who was not called as a witness in the case. Over the objection of the defendant, what was purported to be a statement of Joe Carnes made in the county attorney’s office, and sworn to before the assistant county attorney, who prepared the statement, was introduced in the record against the defendant on trial in this case, which was an ex parte statement of Joe Carnes, and shows ■ upon its face by the language incorporated in the statement it must have been drafted by the assistant county attorney. This statement was not competent in the trial of the defendant in this case, it being a statement where the party making it was surrounded by the county attorney and sheriff, and not material to the allegations in this case, and being nothing more than an ex parte statement which would not be admissible. The objection of the defendant to the introduction of this statement should have been sustained.

A statement of the defendant, pui-ported to have been signed by mark by the defendant, and sworn to before the assistant county attorney, was introduced. There is nothing in this statement to corroborate the charge in the information, as the information is based upon the false swearing of the defendant in a certain trial in which the state of Oklahoma was plaintiff and U. S. Connelly was defendant, No. 180, in the county court of Carter county. The state offered no testimony showing, or attempting to show, that the defendant in this case, at the time he was seen by the deputy sheriff, was acquainted with U. S’. Connelly. There is ho testimony to show that the defendant in this case knew U. S. Connelly, or had ever seen him to know him. No testimony to ¡show that prior to the time of the trial of U. S. Connelly in the county court that the defendant had ever met U. S. Connelly, or had an opportunity to know who he was, and the only statement upon which this prosecution is predicated is the statement of the defendant, when they asked the defendant if the U. S. Connelly on trial was the man from whom they bought the whisky, and the defendant answered, “I don’t think that was the man.” On cross-examination the question was asked, “You don’t think that is him?” and the defendant in this ease answered, “No, sir.”

The examination of the witness as shown by the record was not followed up; there being no effort made to show that the witness prior to the alleged purchase of the whisky was acquainted with U. S. Connelly, nor is there any testimony in the record to show that the defendant, when he said that he did not think U.. S, Connelly was the man, knew he was testifying falsely. It is an elementary proposition that knowledge of the falsity of the alleged perjured testimony is essential, and an indispensable element to the claim of perjury. Corrupt motive is an indispensable element of perjury, and one having knowledge respecting the fact who testifies, however positively, only what he believes to be true, can be guilty of no crime, although he was mistaken. Pilgrim v. State, 3 Okla. Cr. 49, 104 P. 383. “To constitute perjury the statement made must not only be false, but the party making it must know it to be so.” Cutler v. Ter., 8 Okla. 101, 56 P. 861; Nelson v. State, 32 Ark. 192.

This court, in the case of Shoemaker v. State, 29 Okla. Cr. 184, 233 P. 489, held:

“A conviction for perjury cannot be had upon proof alone that accused made contradictory statements under oath. The state must prove by extrinsic evidence that the statement upon which the prosecution is founded is false.” Blakemore v. State, 39 Okla. Cr. 355, 265 P. 152.

In the view we take of this record it is not necessary to consider the fifth and sixth assignments of errors. We hold there is sufficient evidence to satisfy the requirements of law and to sustain the verdict and sentence.

The ex parte statement of Joe Carnes was inadmissible, and the demurrer o.f the defendant to the evidence should have been sustained.

For the errors above stated, the case is reversed and remanded.

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


author: PER CURIAM.

text:
    LEE LUNCEFORD v. STATE.
    No. A-619.
    Opinion Filed June 16, 1928.
    (267 Pac. 1118.)
    E. C. Patton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and W. P. Morrison, Co. Atty., for the State.
   PER CURIAM.

This was an information in the county court of Canadian county against Lee Lunceford, Bob Dunlap, Albin Dunlap, and John Doe, in which the defendants were charged with conspiracy to violate the provisions of the prohibitory liquor law. On his separate trial, appellant, Lee Lunceford, was found guilty, the jury leaving his punishment to be fixed by the court. Motion for new trial was duly filed and overruled, and the court pronounced judgment and sentenced the defendant Lee Lunceford to pay a fine of $500 and confinement in the county jail for six months.

The information in substance charges that in Canadian county, on or about 10th day of August, 1925, the said defendants did unlawfully and corruptly combine, confederate, and agree together and with each other to manufacture corn whisky, and further alleges overt acts in pursuance of said conspiracy. In this case the facts and questions of law are substantially the same as in the case of Thomas v. State, 38 Okla. Cr. 379, 262 P. 503, wherein it is held: “The prohibition provision of the Constitution (article 1, § 7), forbidding the manufacture and sale of intoxicating liquor and declaring a violation of the provision punishable by a fine of not less than $50 and imprisonment for not less than 30 days, is self-executing. Section 1649, Comp. St. 1921, defining a misdemeanor for two or more persons to conspire to commit any crime, is not applicable to a conspiracy to violate the prohibitory liquor law, for the reason that the minimum punishment provided in sections 1649 and 1508, Comp. St. 1921, is less than the minimum punishment fixed by the. Constitution.” Upon the authority of that case, the judgment is reversed, and cause remanded, with direction to dismiss.


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    SAM SCHRADER v. STATE.
    No. A-5711.
    Opinion Filed June 16, 1928.
    (268 Pac. 325.)

      Ben F. Williams, for plaintiff in error.
    George Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was charged .by information in the district court of Cleveland county with the crime of assault with intent to kill. A jury was impaneled, . and, after hearing the evidence, returned a verdict of guilty of assault to do bodily harm, and his punishment fixed at imprisonment in the state penitentiary for two years. Motion for new trial was filed, considered, and overruled, and defendant reserved his exception. From the judgment and sentence the defendant appeals.

The testimony on behalf of the state is in substance as follows: Verne Chadwell testified:

That he knew the defendant. That he did not know whether or not he was married. That Mr. Schrader had been coming occasionally and talking with his sister of about 15 years of age. The afternoon of the alleged trouble he received information that some one was out in front and wanted to see him. “When I came out of the house, I saw Schrader and another fellow in a car; I went out, and when I got up to the car close enough to see he had a gun in his hand, and I asked him what he had the gun for. He said, T heard you were going to kill me’; and I said, “If I had made any threat like that I would have got me a gun and done it’; I said, ‘If you are. a man, you will come out on the road somewhere and we will fight it out’; he said that he did not want me to beat him up. After I said that I told him, ‘Now I am going to make a threat’; that if I ever saw him down at the house or talking to my sister I would kill him; he said, ‘How about working down at the work; you can’t stop me down there’; I said, ‘ I could not hold him,’ but if I caught him talking to her or coming down there I would kill him; he said, T don’t believe you can,’ or, T don’t believe you will stop me,’ and he raised up his gun then. The gun was pointed toward me when he raised his arm. Before he raised it he was holding it in his hand. I was leaning on the car door. I took the gun out of his hand and turned it over to the officers. The pistol was loaded with two 45 automatic shells. The defendant looked to me like he was drunk. I think he was drunk. I don’t know whether defendant had received information not to come to my house any more; I never talked to him myself.”

On cross-examination witness stated:

He lived outside the corporate limits of Norman. He knew defendant was a soldier located over in Norman ; never had any words with the defendant before this afternoon. “I saw the car after I stepped out of the door onto the porch. My mother told me some one wanted to see me. The car was on what was called the parking space. Some one was in the car with him. I don’t know his name. They were in a Ford roadster. My sister was standing behind me when I went up to the car; was probably about five feet from the car when I saw the gun. I spoke first, and said, ‘What you got that gun for?’ He said, T heard you had been talking, making threats to kill me;’ and I told him if I had I would have got me a gun and done it; I said that if he were a man with anything to him he would come out somewhere and fight it out, leaving the gun at home. When I talked to him, I was leaning on the car door close to him. He said he did not want me to beat him up; still had the gun in his hand. I told him I would make a threat if he ever come down to the house, if I ever caught him talking to my sister, I would kill him; I was referring to my youngest sister. He said, T don’t believe you can stop me,’ and raised his gun. He had the gun in his hand all the time. Defendant was sitting on the right-hand of the car when I come out to it. Defendant said he did not want me to come down to where he was working on the road and beat me up. Mr. Schrader got back to the wheel as the other fellow said he could not drive a car and drove away. In about 15 minutes they come back. Defendant was setting in the car about 100 yards from our house. Later on the officers come and arrested him. Hoard came down to the house and wanted us to give the pistol back to him, saying it belonged to the army.”

Velma Chadwell, called as a witness, stated:

That she was a sister of Verne Chadwell. That the evening of the alleged trouble defendant drove up and honked his horn and “I got up and went to see who was there; I went out of the house and talked with him. He said he heard I wanted to see him, and I told him yes, I wanted to tell him what I thought about him; and he replied it would do no good for me to bawl him out, ‘Tell Verne to come out here.’ I went in and told my mother. Verne was informed he was out there and came out to the car. I saw the controversy over the pistol. When I first saw it, Mr. Schrader had it in his hand out to his side. When my brother came out, Mr. Schrader said, ‘Remember what I got my hand on; I heard you were making threats against me’; Verne said, T haven’t made any; I will tell you what I will do. I will make one now to your face, if I ever catch you coming around here again or talking to my sister I will kill you’; Mr. Schrader said, ‘I am not even supposed to speak to her.’ He wasn’t supposed to go out of his way to speak to her, and, ‘If you do I will kill you.’ Mr. Schrader said, ‘You are not going to keep me from going with her.’ Just then he pulled his pistol, and Verne grabbed it. I was right up to the car, resting on the running board. When I first saw Mr. Schrader, he was setting under the steering wheel, but when I come back from the house he had moved to the right side; the car was facing north. About fifteen minutes after they left they drove back. The defendant was drunk, I know. The other man with him was drunk. When he was arrested, the car was across the street from our house, and defendant was asleep.”

On cross-examination witness stated:

She had known Mr. Schrader since about October. “I had gone to the barn that day to see Mr. Schrader. I told him, when he asked me if I had been there, I went to tell him what I thought about him. Mr. Schrader, when he was talking to my brother, had his pistol in his hand, and told Verne, ‘You will not keep me from going with her’; he raised it up, and just as he did so Verne grabbed it. I don’t know whether he pulled the trigger, I was so scared. I heard my brother tell him he would kill him if he ever come back again. We found out, the night before Mr. Schrader was out there, he was a married man.
“Question by Mr. Holland: Some time before the night of this trouble some of the family sent word to Mr. Schrader to stay away from there?
“By Mr. Williams: Object; incompetent, irrelevant, immaterial, not sustaining any issues in the case.
“By the Court: If you know that is a fact. Exceptions allowed.
“By Mr. Holland: Q. Do you know whether that was done or not? A. Yes, sir; it was.
“By Mr. Williams: Move to strike out answer for the reason that no evidence shown that the defendant in this case ever received such information, and prejudicial to the rights of this defendant.
“By Mr. Holland: Defendant can go on the stand and testify to that.
“By Mr. Williams: Counsel objects to the county attorney’s statement that the defendant can go on the stand and testify to that.
“The Court: Yes; it may be stricken. Gentlemen of the jury, you needn’t consider it for any purpose.
‘By Mr. Williams: Now move the court to return a verdict of not guilty as prejudicial error under the rule of the Criminal Court of Appeals.
“By the Court: Overruled. Exceptions allowed.”

The foregoing is in substance the testimony introduced by the state, except some testimony touching upon the actions of the defendant as to having been intoxicated on several occasions, and all the testimony we deem necessary to set out, in view of the facts as disclosed by the record in this case.

The defendant urges as one of the grounds for reversal the overruling of his motion for a new trial, and in his fifteenth assignment of error argues at length that the county attorney committed an error sufficient to entitle the defendant to a reversal upon the question of the statement of the county attorney made in open court, and in the presence of the jury, while Velma Chad well was testifying as a witness for the state, and when she was being questioned by the county attorney as to her knowledge of certain facts, and the defendant objected to the questions, and the county attorney made the following statement: “Defendant can go on the stand and testify to that,” which statement was objected to by the defendant, and the objection sustained by the court, and the court advised the jury not to consider the statement for any purpose. The defendant then moved the court to direct the jury to return a verdict of not guilty as prejudicial error under our rule of the Criminal Court of Appeals. The court overruled the objection of the defendant, and exceptions were allowed.

In the view we take of this record, it is neither important nor necessary to consider more than one of the questions presented to this court. It is insisted by the defendant that the court erred in refusing to grant a new trial because of the remarks of the county attorney during the trial when he made the statement, “Defendant can go on the stand and testify to that,” referring to the fact as to whether or not the defendant had received notice to stay away from the prosecuting witness’ home.

Section 2698, C. O. S. 1921, is as follows:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

The question to be determined by this court is the proper interpretation of the statement of the county attorney during the trial of this case. This court has repeatedly held that the trial begins when the jurors are called into the box for examination as to their qualifications. Caples v. State, 3 Okla. Cr. 72, 104 P. 493, 26 L. R. A. (N. S.) 1033.

In reply to the motion of defendant for a new trial, the county attorney admitted he made the statement complained of by the defendant, and attempted to justify the same on the ground that, when he made the statement, “Defendant can go on the stand and testify to that,” it was before the state rested, and during the examination of Velma, Chadwell, the second witness for the state.

In the brief of the state, it is argued that the statement made by the county attorney was justified, and the case of Moody v. State, 13 Okla. Cr. 327, 164 P. 676, is cited in support of the state’s contention that the statement of the county attorney was not prejudicial to the rights of the defendant, and was not such as to entitle him to a reversal of the case, and the state insists that the Moody Case is exactly in point with the facts in this case. With this contention we cannot agree. In the Moody Case the court says:

“Counsel for defendant saw fit to make the statement that defendant had denied his guilt to Newby. In answer to this argument the county attorney in effect stated that there was nothing unusual in the fact that he had denied his guilt; that under the circumstances any man would deny his guilt. The record discloses that this argument was not a comment upon the failure of the defendant to testify, but was a comment upon certain evidence introduced in the case. It was made in reply to argument along similar lines by counsel for the defendant. If this argument is to be held reversible error, then all argument of a prosecuting attorney must resolve itself into a mere statement of facts. He would be stepping on dangerous ground at any time he undertook to answer the argument of opposing counsel. And, where opposing counsel invite reply as shown by the record in this case, and such reply may sting, this court cannot say that it is reversible error such as would authorize the granting of a new trial unless from the record itself it is made clearly to appear that the argument complained of constitutes an infringement of the defendant’s statutory right not to testify. And, where the argument, when considered and construed in reference to the evidence, shows clearly that the county attorney was confining his argument to the evidence introduced and making certain comments thereon, especially will this court not reverse the judgment on this ground when these comments legitimately followed from the argument of the defendant’s counsel and in answer thereto.”

In this case it is admitted that the state had not closed its testimony; that in taking of the testimony the defendant interposed an objection to the questions they -ha.d been asking the witness, and the county attorney made the statement complained of by the defendant. Section. 2698, supra, specifically provides that a person charged with an offense can at his own request be a competent witness, but not otherwise, and his failure to make such a request shall not create any prejudice against him nor be mentioned on the trial. If commented on by the counsel, it shall be grounds for a new trial. What the county attorney had in mind when he made the statement complained of we cannot say, but the statement indicated that it was a challenge to the defendant to take the stand as a witness.

Similar questions to the one in this case have been before our court many times. In Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57, in the syllabus the court made the following statement:

“Our statute is mandatory, and, when the defendant has failed to become a witness in his own behalf, this fact must not, directly or indirectly, be mentioned or in any manner referred to or called to the attention of the jury. If such an attempt is made by counsel for the state, the court must at once intervene and reprimand the counsel making such an attempt, and see that it is not repeated. If such an attempt is made by the prosecuting attorney and a conviction follows, a new trial must be granted to the defendant.”

In the case of Nowlin v. State, 7 Okla. Cr. 27, 121 P. 791, Judge Furman, speaking for this court, says:

“It is shown that the County Attorney in his argument to the jury said that, if appellant had not left the barn as testified to by the state’s witness, he (appellant) would have been the best witness as to that fact. Section 6833, Comp. Laws 1909.”
“It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or .spirit.”

In the case of Wilson v. Terr., 9 Okla. 331, 60 P. 112, the court quotes with approval the opinion of Justice Valentine, in State v. Balch, 31 Kan. 465, 2 P. 609, and says further:

“We think that this provision of our Criminal Code is mandatory, and leaves no discretion in the trial court to refuse to grant a new trial upon the application of the defendant. Neither do we think that such highly prejudicial remarks by the prosecuting officer can, be cured or remedied by the withdrawal of the statements from the consideration of the jury by the court and admonishing them that they must not consider the same.”

In Holmes v. State, 13 Okla. Cr. 113, 162 P. 446, the court says in part:

“Without going into the facts, we will say the evidence is abundant to justify and sustain the verdict. But the defendant did not take the stand in his own behalf or offer any evidence whatever. And in the closing argument the assistant county attorney said, ‘Not a single bit of evidence introduced by the state has been contradicted by the defendant.” ’

The court further says:

“The remarks of the assistant county attorney, in view of the fact that the defendant had not gone upon the stand himself, nor offered any testimony whatever, we think, were clearly calculated to direct the attention of the jury to the fact that the defendant had not testified in his own behalf; for it is immaterial what particular words are used by counsel, if it is eleár that those words have this effect. Had the defendant introduced any evidence, the remarks might then have been construed as having been made with reference to the futility of the testimony introduced; but, in the absence of any evidence on his part, we think the remark could not be construed in any other light than as a reference to the failure of the defendant to testify in his own behalf. And it has been repeatedly held that this statute is mandatory; and, whether the comment is made inadvertently or intentionally, the effect is the same, and the statute requires that a new trial be granted.”

In Cokely v. State, 28 Okla. Cr. 431, 231 P. 330, the court in its opinion said:

“The defendant did not take the witness stand in his own behalf. Special counsel employed to prosecute in his closing argument to the jury remarked, T wish it were possible that we could have heard what the defendant had to say about the case.’ This remark constituted a comment upon the failure of the defendant to testify, and, under section 2698, Compiled Oklahoma Statutes 1921, is ground for a new trial.”

In Brown v. State, 16 Okla. Cr. 155, 181 P. 318, the court in the syllabus said in part:

“Code Cr. Proc. sec. 5881, Rev. Laws 1910, prohibits any comment by a prosecuting attorney in a criminal case on the failure of the defendant to testify, and such comment constitutes reversible error, even though it be made in disclaiming any intention of referring to the failure of the defendant to testify in his own behalf.”

In the case of Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160, the court said:

“The statute is in accordance with the constitutional guaranty that ‘no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.’ The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms of the statute, the trial court has no discretion, but must grant a new trial. Every person accused of crime is entitled to a fair trial under the forms of law before he may be convicted.”

In Williams et al. v. State, 30 Okla. Cr. 171, 249 P. 433, this court held:

“The trial Had commenced when the jury were called into the box for examination.”

In this case the jury had been impaneled, and testimony was being taken when the county attorney made the statement complained of by the defendant in this case. The statement made by the county attorney, which is complained of by the defendant, was not only a mention of the defendant in the trial, 'but, when strictly-analyzed and interpreted, amounted to a challenge to the defendant to take the stand for the purpose of contradicting the state’s testimony. Certainly the calling attention of the jury to the defendant and mentioning the fact that he could testify to the question involved would be the same upon the minds of the jurors as if called to their attention by the argument of the county attorney later in the trial. The testimony in this case is conflicting as to the actions of the defendant at the time the alleged offense occurred, and is such that the verdict of the jury might have been for acquittal or conviction had the trial been conducted properly and no errors committed during the trial.

There are various assignments argued by the defendant in which there is considerable merit. It is not clear from the record in this case that the defendant is guilty of the charge of which he was convicted or any other assault upon the prosecuting witness. We cannot say that it is apparent from the record that defendant is guilty and that the jury could have arrived at no other verdict than the verdict returned by it. We think the statement of the county attorney, complained of by the defendant, was improper, and probably resulted in the verdict of guilty being returned against him, in view of the fact that the defendant did not take the witness stand in his own behalf. It is difficult to understand why the county attorney made the remark he did, but we think, under our statute, it was prejudicial to the rights of the defendant.

The case is reversed and remanded.

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


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    Ex parte I. J. YOUSTLER.
    No. A-6926.
    Opinion Filed June 16, 1928.
    (268 Pac. 323.)
    Geo. W. Fields, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the 'State.
   EDWARDS, J.

This is an original action in ha-beas corpus by petitioner, I. J. Youstler. Upon such petition, a rule to- show cause was issued, directed to the warden of the state penitentiary at McAlester, to which rule a return has been filed. From these pleadings ancl exhibits, the following state of facts appears: In May, 1922, petitioner, on a charge of burglary, was convicted in the district court of Ottawa county, and was sentenced to serve a term of three years in the state penitentiary. From this judgment he duly appealed and gave a supersedeas bond, and while at liberty on such bond was apprehended by state officers upon request from the state of Missouri, for an offense against the laws of that state. A requisition from the Governor of Missouri was honored by the Governor of this state, and petitioner ,was transported to Missouri, there tried, convicted, and served a term of two years in the ¡penitentiary. After serving his sentence there, he was arrested at Joplin, and upon requisition returned to this state and resentenced under the conviction in Ottawa county, which conviction in the meantime had been affirmed by this court. 27 Okla. Cr. 151, 225 P. 566. He ie incarcerated in the state penitentiary at McAlester under a commitment issued by the district court of Ottawa county.

It is the theory of petitioner that the act of the Governor in honoring the requisition from the state of Missouri, pending the appeal of petitioner, is a waiver of the jurisdiction of this state at that time, and any future time over the person of petitioner for the purpose of carrying out the sentence imposed. That the act of the Governor in fact operated as a pardon, and the incarceration of petitioner is illegal, citing in support of his contention: People ex rel. Gallagher v. Hagan, 34 Misc. Rep. 85, 69 N. Y. S. 475; State v. Allen, 2 Humph. (Tenn.) 258; Eley v. State, 9 Okla. Cr. 76, 130 P. 821; Matter of Briscoe, 51 How. Prac. (N. Y.) 422; Kelly v. Mangum, 145 Ga. 57, 88 S. E. 556; Opinion of Justices, 201 Mass. 609, 89 N. E. 174, 24 L. R. A. (N. S.) 799; Ex parte Hobbs, 32 Tex. Cr. 312, 318, 22 S. W. 1035, 40 Am. St. Rep. 782; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287; In Re Charles Hess & Reuben Orr, 5 Kan. App. 763, 48 P. 596; Saunders v. State, 288 Mo. 640, 232 S. W. 973.

It may be conceded that, where a person is convicted in this state and pending his appeal, while at liberty on the supersedeas bond, is delivered by the Governor under requisition to a sister state, such delivery amounts to a waiver of the jurisdiction of this state over his person, and when, under such requisition, he is taken out of the state, he is not a fugitive, and this state would not have the right thereafter to extradite him from another state as a fugitive. State v. Allen, 2 Humph. (Tenn.) 258. If cannot be said, however, that this act of the Governor constitutes a pardon under the Constitution and laws of this state. A pardon is an act of grace, in effect a private deed of the executive, delivery of which is essential to its validity. It exempts the individual upon whom it is bestowed from punishment which the law imposes for the crime for which he is convicted, and the crime is forgiven and the punishment remitted. Ex parte Crump, 10 Okla. Cr. 133, 135 P. 428, 47 L. R. A. (N. S.) 1036; Stewart v. State, 11 Okla. Cr. 400, 146 P. 921; Ex parte Ray, 18 Okla. Cr. 167, 193 P. 635; Ex parte Jones, 25 Okla. Cr. 347, 220 P. 978, 34 A. L. R. 206; Ex parte Collins, 32 Okla. Cr. 6, 239 P. 693.

To be effective as a pardon, the instrument purporting to be such must be authenticated under the great seal of the state as the official act of the Governor. Ex parte Jones, supra.

The honoring of the requisition from the state of Missouri by the Governor of this state is not a pardon. As stated, it is a waiver of the jurisdiction of the state to demand his return to the state. It does not satisfy the judgment of conviction. This can be satisfied only by the serving of the sentence imposed or by its remission by pardon. The expiration of time without imprisonment is not an execution of the sentence. Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Bernstein v. U. S. (C. C. A.) 254 F. 967, 3 A. L. R. 1569, notes.

'Since the rendering of petitioner to the authorities of the state of Missouri was a waiver of the right of this state to return the petitioner to this state after his release there, he could have successfully resisted any attempt by the authorities of this state to return him here. But, if he be brought into this state or return and be apprehended so that the jurisdiction of his person is again obtained, he may be required to satisfy the judgment of conviction against him. Where there is a valid conviction and the court has jurisdiction of the person, this court will not inquire by habeas corpus into the manner by which jurisdiction was obtained. Cook v. Hart, 146 U. S. 183, 13 S. Ct. 40, 36 L. Ed. 934; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544; In re Miles, 52 Vt. 609; Ex parte Brown (D. C.) 28 F. 653; In re Miller (C. C.) 23 F. 32; In re Newman (C. C.) 79 F. 622; In re Moyer, 35 Colo. 159, 85 P. 190, 12 L. R. A. (N. S.) 979, 117 Am. St. Rep. 189.

This court on the appeal of petitioner settled the question of the validity of the judgment under which he is incarcerated. In Ex parte Harry, 6 Okla. Cr. 168, 117 P. 726, and in Ex parte Ambler, 11 Okla. Cr. 449, 148 P. 1061, this court held that, under the statutes of this state providing that no court or judge shall inquire into the legality of any judgment or process whereby the party is in custody or discharge him when the term of commitment has not expired, where the process is issued on a final judgment, the court would only examine the record to determine whether the term of commitment had expired, and, if not, the writ will be denied. Section 432, C. O. S. 1921.

The inquiry here is: Has the term of imprisonment expired? This court has repeatedly held that the term begins from the date of the reception of the prisoner in the place of confinement, that the date named in the sentence is not a material part of the judgment. Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967; Ex parte McClure, 6 Okla. Cr. 241, 118 P. 591; Ex parte Oliver, 11 Okla. Cr. 536, 149 P. 117; Ex parte Exelton, 16 Okla. Cr. 111, 180 P. 868; Ex parte Smith, 17 Okla. Cr. 578, 190 P. 1092; Bernstein v. U. S. (C. C. A.) 254 F. 967, 3 A. L. R. 1569, and notes beginning on page 1572.

Under the admitted facts, we are of the opinion that petitioner is not entitled to his release.

The rule is discharged, and the writ denied.

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