text:
    BEN McKEOWN v. STATE.
    No. A-5554.
    Opinion Filed June 5, 1926.
    (246 Pac. 659.)
    D. E. Ashmore and A. W. Anderson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmulgee county on a charge of robbery by the use of firearms and was sentenced to serve a term of 25 years in the state penitentiary.

Briefly stated, the facts are about as follows: The defendant and his wife, Cleo McKeown, lived near the outskirts of Henryetta. Several times before the date of the offense charged, the prosecuting witness Sullivan had been at the residence of the defendant; one or two of these occasions was in the absence of defendant. On the date charged shortly after dark he went to the residence, either for the purpose of calling on defendant’s wife or to obtain liquid refreshments. It was a hot August night. Defendant and wife were at the rear of the house, and Sullivan seated himself, bought a bottle of “choc beer,” and proceeded to imbibe. Defendant stated he would go and get some ice, and went away, leaving his wife with Sullivan. He returned in a few minutes and accused Sullivan of insulting his wife, pointed a pistol at him, ordered him to put up his hands, and made threats. Sullivan prevailed on defendant not to injure him, and it was agreed he would pay $200 and'the matter would not be further mentioned. The wife procured a blank check and Sullivan executed it, payable to her, and then rode to town with defendant. The defendant cashed the check about 11 o’clock' the following morning. Before complaint was filed against the defendant and his wife charging robbery, the wife of the prosecuting witness Sullivan went to defendant and demanded a return of the $200 obtained on the check, which was refused, and soon after the prosecution was instituted.

It then becomes necessary that we determine whether or not the state of facts disclosed by the record constitutes robbery or whether it falls under some other provision of the Criminal Code.

Section 1784, Comp. Stat. 1921, defines robbery as follows:

“Robbery is. a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

Section 2133, Comp. Stat. 1921, defines extortion as:

“Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force or fear. * * *”

Section 2134 is, in part:

“Fear, such as will constitute extortion, may be induced by a threat, either: First. To do an unlawful injury to the person * * * of the individual threatened. * * *”

Section 2137 reads:

■ “Any person who, by any extortionate means, obtains from another his signature to any paper or instrument, whereby, if such signature were freely given, any property would he transferred, or any debt, demand, charge or right of action created, is punishable in the same manner as if the actual delivery of such property or payment of the amount of such debt, demand, charge or right of action were obtained.”

The case of Tipton v. State, 23 Okla. Cr. 86, 212 P. 612, 31 A. L. R. 1074, which holds the offense there proven robbery, is in some respects analogous to the case under consideration. In that case, as in this, the prosecuting witness was accused of insulting the wife of the defendant and offered a monetary settlement amounting to $1,000 cash, a Dodge automobile, and a note secured by a real estate mortgage in the sum of $5,000. But in that case, which wp think distinguishes it from the case at bar, the sum of $1,000 was actually procured and paid over, and an automobile delivered while the duress by means of firearms continued. In that case was cited the case of Rex v. Edwards, 6 Car. & P. 521, as holding.that, where a check or draft for the payment of money was drawn and delivered by one under imminent fear, the offense was robbery. This citation is an error. The case does not so hold, but, on the contrary, holds that the facts there proven were not robbery. In this case there was not a taking of property from the person or immediate presence of another, but a settlement of a claimed injury under duress, or an extortion by the defendant.

Under the statutes just quoted, the offense disclosed by the evidence is clearly an extortion based either on some improper conduct between the prosecuting witness Sullivan and the wife of the defendant, or an attempt by the defendant and his wife to take advantage of the visits of Sullivan to the home of the defendant for the purpose of extorting from him money — as commonly designated, blackmail. Conceding as true the evidence of the state, the conduct of the defendant is criminal; but the evidence does not prove the crime of the robbery.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: BESSEY P. J.

license: Public Domain

text:
    O. J. SMITH v. STATE.
    No. A-5605.
    Opinion Filed June 5, 1926.
    (246 Pac. 649.)

      John P. Hickam, for plaintiff in error.
    The Attorney General, for the .State.
   BESSEY P. J.

O. J. Smith, plaintiff in error, defendant in the court below, was charged with keeping a place on Boston avenue, in Yale, Payne county, where whisky was kept, sold, and distributed contrary to law. At the trial he was adjudged guilty, with his punishment assessed at a fine of $50 and confinement in jail for 90 days.

Ten witnesses testified for the state. All of them knew about a little green house, variously located on Boston avenue, West Chicago avenue, or the Albert Pike highway, in or near Yale, said to be occupied by Smith and his wife. None of the witnesses knew positively of any improper conduct there. One witness only said this house had a reputation of being a place where intoxicating liquor was kept for sale. Another witness testified that she saw a negro stop there and later saw him with a bottle of whisky, which she assumed he procured there. The testimony of the other state’s witnesses did not tend to support the charge, but, on the contrary, indicated that the defendant was a well-behaved laborer in the oil fields near Yale.

The defendant testified in his own behalf, and twelve other witnesses, including neighbors and fellow employes, testified that they visited at the defendant’s home, and know of his employment at different places, but never knew of his being implicated in the sale of whisky, and that his residence was not a place of public resort.

The evidence is clearly insufficient to support the verdict, and the judgment of the trial court is therefore reversed.

DOYLE and EDWARDS, JJ., concur.


author: BESSEY, P. J.

text:
    CURTIS LEARY v. STATE.
    No. A-5257.
    Opinion Filed June 5, 1926.
    (246 Pac. 662.)
    C. A. Coakley and Utterback & Stinson, for plaintiff in error.
    Geo. F. .Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Curtis Leary, plaintiff in error, here referred to as the defendant, was by verdict of a jury in the district court of Marshall county found guilty of the crime of seduction, with his punishment assessed at imprisonment in the penitentiary for a term of three years and to pay a fine of $250.

This prosecution was begun on the 27th day of September, 1923, by the filing of a criminal complaint signed by Lee Hicks, the prosecuting witness, with J. R. Hearn, a justice of the peace in Madill. This justice issued a warrant upon which the defendant was arrested and made bond to appear for an examining trial on the 30th day of November. On November 26th Bob Hicks, father of the prosecuting witness, filed an affidavit with said justice of the peace, asking for a change of venue for the state. Without notice to either the defendant or the state, as represented by the county attorney or other officer, this justice made an order transferring the venue to Marvin Neff, another Justice in the city of Madill.

Both parties, the state and the defendant, appeared before the justice to whom the venue was thus transferred and participated in an examining trial, at which trial the justice held the defendant to answer to the district court. An information was then filed in the district court charging the defendant with the crime of seduction. On January 28, 1924, the defendant filed a motion to quash the information, which motion was by the court overruled, and the cause proceeded to trial.

The assignments of error urged by the defendant may be condensed as follows: (1) That the preliminary hearing held before Justice of the Peace Neff was a nullity, and that the district court was therefore without jurisdiction. (2) Error to the court in refusing the defendant’s application for a new trial on the ground of newly discovered evidence. (3) That the evidence is insufficient to support the verdict.

Where co-ordinate courts within a city or county have identical jurisdiction over offenses committed within their territorial limits, a change of venue may ordinarily be had by consent of the parties. This may be true even where there are statutes prescribing when and under what conditions a change may be had. Oborn v. State, 143 Wis. 249, 126 N. W. 737, 31 L. R. A. (N. S.) 966; State ex rel. Schwabacher v Superior Court, 61 Wash. 681, 112 P. 927, Ann. Cas. 1912C, 814, and notes. While the facts in the cases just cited are not like those in the case at bar, the principle involved is the same.

There are many statutory and constitutional privileges which may be waived. The right to a change of venue or to object to a change is one of these, and where both parties appear before a tribunal which has jurisdiction of the offense and without objection the defendant submits to such jurisdiction, the court so sitting acquires jurisdiction of his person. Shuster v. Finan, 19 Kan. 114; Ex parte Davidson (C.C.) 57 F. 883.

This defendant had a preliminary trial before a justice of the peace who had jurisdiction as a committing magistrate in that district. The defendant was present with his attorneys, and, without objection, participated in the examining trial. The attorneys cross-examined the state’s witnesses, and after the justice of the peace found that the evidence warranted holding the defendant to trial, they agreed upon the amount to be named in the appearance bond.

The purpose of a preliminary complaint and a warrant based upon it, together with the subsequent apprehension of the accused under the warrant, is to get the defendant into court for an examining trial. Now, if he comes into an examining court voluntarily and interposes no objection to the court’s power to act, why should the statutory process to bring him there be invoked? Why require the issuing of a useless process to accomplish something which has already been accomplished?

The statutory mode of taking a change of venue may be dispensed with or waived by the written or oral agreement of the parties. A change of venue, or an objection thereto, is a privilege which may be waived. It is a remedial right, and statutes governing that right should, be liberally construed. 16 C. J. 203; State v. Potter, 16 Kan. 80; Ex parte Moan, 65 Cal. 216, 3 P. 644; Warner v. State, 8 Okla. Cr. 497, 129 P. 76. It is well settled that where a statutory right may be waived by express agreement it may be waived by conduct of equivalent import.

Under the peculiar circumstances in this case, we think the defendant’s motion for a new trial on the ground of newly discovered evidence should have been granted, upon the showing made as to what such evidence would disclose. This was a very close case on the facts. The newly discovered evidence was that of a husband and wife, at whose house a social dance was held in December, 1922. They made affidavit that the prosecuting witness and her escort of the evening during the dance repaired to a place outside, near the house, where they indulged in an act of illicit intercourse which affiants witnessed. The state offered evidence, upon the hearing of the motion, of a number of witnesses who were at this dance to the effect that the prosecutrix, with three others, were at this dance for about an hour, that the four came there together and left together, and that at no time during their stay did the prosecutrix leave the room with only her escort.

It would seem that the newly discovered evidence, even with the controverting evidence of the state, considered in connection with the weakness of the state’s case upon some of the essential elements of the crime charged, might have been sufficient to change the verdict upon a retrial. Yoder v. State, 18 Okla. Cr. 637, 197 P. 848; Graham v. State, 12 Okla. Or. 84, 152 P. 136; Lynn v. State, 5 Okla. Cr. 115, 113 P. 989; 20 R. C. L. “New Trial,” § 72.

The 'defendant urges that the evidence is insufficient. He admits having had illicit sexual relations with the prosecutrix, but denies that it was under promise of marriage, or that he was responsible for her loss of chastity. The prosecutrix admits, and there is much evidence to show, that at about the same time, just before and just after, as her alleged seduction, often late at night she went automobile riding with other boys, went to dances, to parties, and to other social affairs with first one and then another of the boys of the neighborhood. The proof of her chastity and her claim that she yielded under promise of marriage rested practically entirely upon her own testimony. It is hard to reconcile the fact that she gave a Christmas present to another of her sweethearts on Christmas, and that without passing any tokens of endearment she was seduced under promise of marriage a few days later in the same December. The showing made on the- motion for a new trial, to the effect that she had been seen in a compromising situation with this third person about this time, casts some further doubt upon the verity of her testimony.

On rehearing and a careful re-examination of all the evidence, we have come to the conclusion that the evidence was insufficient to support the verdict. This conclusion is reached without any consideration of matters brought to the attention of this court, upon the petition for rehearing, outside the record proper.

The judgment of the trial court is reversed and the cause remanded.

DOYLE and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    W. F. BRITTON v. STATE.
    No. A-5591.
    Opinion Filed June 5, 1926.
    (246 Pac. 666.)
    F. W. Church, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county on a charge of illegally transporting intoxicating liquor, and was sentenced to serve a term of six months in the county jail and to pay a fine of $500.

The record discloses that on the date charged, the defendant in the nighttime with his wife in a Buick roadster drove into the city of Miami and had two one-gallon jugs of whisky near the front seat. He arrived at the City Park, got out, and left his wife in the car. Some officers were about 40 yards away and came up and searched the car, and found whisky. They had no warrant of arrest nor search warrant, and testified that they did not see the jugs until they were within three or four feet of the car, and did not know their contents until they made investigation. Timely objection was made that the evidence was obtained by an illegal search. The search was clearly illegal. The objection should have been sustained. The governing principle has been discussed in numerous cases of this court, particularly Gore v. State, 24 Okla. Cr. 394, 218 P. 545, and Keith v. State, 30 Okla. Cr. 168, 235 P. 634.

The case is reversed and remanded.


text:
    VOL COOKSEY v. STATE.
    No. A-5519.
    Opinion Filed June 5, 1926.
    (246 Pac. 1117.)
    Stewart & Williams, for plaintiff in error.
    Geo. F. Short,. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Greer county on a charge of having possession of intoxicating liquor with intent to violate the law, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $50. The cause was tried in December, 1924, and appeal was lodged in this court in April, 1925. No briefs have been filed in support of the appeal, and no appearance for oral argument made. An examination of the record discloses that the offense was properly charged, and that the evidence is sufficient to sustain the judgment and sentence. No fundamental error requiring a reversal is apparent. The case is affirmed.


text:
    HARRY FOLEY v. STATE.
    No. A-5520.
    Opinion Filed June 5, 1926.
    (246 Pac. 1117.)
    Stewart & Williams, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Greer county on a charge of having possession of intoxicating liquor with intent to violate the law, and was sentenced to serve a term of 60 days in the county jail and to pay a fine of $100. The case was tried in December, 1924, and appeal was lodged in this court in April, 1925. No briefs have been filed in support of the appeal, and no appearance for oral argument made. An examination of the record discloses that the offense was properly charged, and that the evidence is sufficient to sustain the judgment and sentence. No fundamental error requiring a reversal is apparent. The case is affirmed.


author: PER 'CURIAM.

text:
    VIRGIL A. WALKER v. STATE.
    No. A-5525.
    Opinion Filed June 5, 1926.
    (246 Pac. 1118.)
    R. C. Roland, for plaintiff in error.

      Geo. F. Short, Atty. Gen., for the State.
   PER 'CURIAM.

The plaintiff in error, hereinafter called defendant, with a codefendant, Edgar Eddington, was tried and convicted in the county court of Carter county on a charge of transporting intoxicating liquor, and sentenced to pay a fine of $50 and to be confined in the county jail for a period of 4 months, and there was a joint appeal. The appeal of the codefendant Edgar Eddington has heretofore been dismissed. The case was tried in November, 1924, and appeal was lodged in this court in April, 1925. No briefs have been filed, and no appearance for oral argument was made. We have examined the record and find that the evidence sustains the judgment. The defendant did not testify. No error requiring a reversal is apparent. The case is affirmed.


text:
    Ex parte ERNEST KEY.
    No. A-6249.
    Opinion Filed June 8, 1926.
    (246 Pac. 1118.)
    Sigler & Jackson and W. F. Bowman, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petitioner, Ernest Key, was arrested and brought before a justice of the peace of Carter county, charged with the murder of George Whitford. At the preliminary hearing the justice found that there was probable cause for believing that the petitioner was guilty of murder as charged, and ordered him held to answer in the district court, without bail. Thereafter an application was made to the district judge of Carter county for bail, and the same was denied. Upon consideration of the petition and the evidence adduced in support thereof, including the evidence taken at the preliminary hearing before the justice of the peace and upon the application for bail before the district judge, this court finds that the petitioner is not entitled to bail. Upon a consideration of the testimony and other proof, it appears that the petitioner has not met the burden of showing that the proof of his guilt is not evident nor the presumption thereof great. The application for bail is therefore denied.


text:
    RAY THOMAS et al. v. STATE.
    No. A-5644.
    Opinion Filed June 10, 1926.
    (246 Pac. 1118.)
    Patton & Adwon and Claude Nowlin, for plaintiffs in error.
    The’ Attorney General, for the State.
   PER CURIAM.

The plaintiffs in error were each sentenced to serve 30 days in jail and pay a fine of $50 for the unlawful possession of corn whisky. Jointly they move to dismiss the appeal from such judgment and sentence. The motion is allowed, and the appeal dismissed accordingly. Mandate to issue forthwith, ordering the trial court to excuse the judgment therein rendered.


author: DOYLE, J.

text:
    FRED SMITH v. STATE.
    No. A-5589.
    Opinion Filed June 10, 1926.
    (246 Pac. 1104.)
    W. L. Owen and Titus & Talbot, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

In this case the information charges that in Alfalfa county, January 22, 1925, Fred Smith did sell “two quarts of whisky to one Bert Slagle.” On the trial the jury returned a verdict finding him guilty, leaving the punishment to be assessed by the court. Motion for new trial was duly filed and overruled, and on February 17, 1925, the court sentenced the defendant to pay a fine of $500 and to be confined in the county jail for a term of six months.

The errors assigned question the sufficiency of the evidence to sustain the verdict and judgment, and are based on exceptions reserved to the rulings of the court in the course of the trial.

B. E. Slagle, complaining witness, testified that his' home was in Carman; that he had been working with the federal authorities, sheriff forces, and police departments in different counties of the state for the past year; that on the afternoon of January 22nd, he went to the home of Fred Smith, 12 miles west of Wakita, stopped his car in the yard, and Smith sold him two quarts of whisky, for which he paid $7; that he took the containers to Wakita and turned them over to a druggist there; “that when they got through with it, they turned it to the sheriff at Medford, and the sheriff there turned it to the sheriff at Cherokee.”

Counsel for the defendant in his cross-examination of prosecuting witness asked:

“Q. Have you ever been convicted of a crime?
“By Mr. Kirkendall: Objected to as incompetent, irrelevant, and immaterial, an improper question.
“The Court: Sustained. Exception allowed.”

Dare Goss, sheriff, testified and identified Exhibits 1 and 2, the same being quart jars partly filled with whisky, and stated they were delivered to him by the sheriff of Grant county and Bert Slagle.

The defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

As a witness in his own behalf, Fred Smith testified that he lived 11 miles east of Byron, in Alfalfa county; that he homesteaded the place and had lived there with his wife and children 24 years; that the first time he ever saw Bert Slagle was this morning; that on the 22d day of January, 1925, he went to Wakita to have his car repaired, but because they wanted too much he went to Manchester and ha,d it repaired there and gave the mechanic a check for $2, and the old radiator was taken in for $3; that it was about 7 o’clock when he left Manchester for his home, 13 miles away; that he never did sell any whisky to Bert Slagle or any other person.

The defendant’s wife testified that she was at home on the 22d of January all day; that Mr. Locke was the only person that passed there that day in a car, and he stopped about 1 o’clock; that her husband left home about 9 o’clock, in the morning and did not return until about 8 in the evening; that she was just putting the children to bed when he came in.

One of the grounds of the motion for a new trial was—

“newly discovered evidence material to the defendant, which he could not with reasonable diligence have discovered before the trial, and surprise at the evidence of the prosecuting witness, Bert Slagle, in this, to wit: That said Slagle testified that he purchased two quarts of whisky from defendant on January 22, 1925, about 5 o’clock. That defendant since the trial has learned that the said Bert Slagle’s reputation for truth and veracity, and as a law-abiding citizen in the community in which he lives is bad. That this defendant never saw the said Bert Slagle until the day of the trial. That defendant was placed in jail on the 29th day of January, made bond on the 31st day of January, and was immediately arrested by the sheriff of Grant county, and removed to Medford, where he was held in custody until the 16th day of Februáry, and was unable to consult with his attorney herein until the day before the trial. All of which is shown by affidavits hereto attached and made a part of this motion for a new trial.”

Also, the affidavit of Joe C. Alley, operating a garage in Manchester, to the effect that on January 22nd, he installed a new radiator on defendant’s Ford car and worked on the same in defendant’s presence from about 5 o’clock in the afternoon on the said day until 7 o’clock, and received from defendant a check in part payment-for said work.

Our statute provides (section 585, C. S. 1921) that a witness may be discredited by showing his conviction, of a criminal offense, and the court erred in sustaining the state’s objection to the question asked on cross-examination of the prosecuting witness. Key v. State, 10 Okla. Cr. 206, 135 P. 950; Busby v. State, 10 Okla. Cr. 343, 136 P. 598; Graham v. State, 28 Okla. Cr. 266, 230 P. 763; Davis v. State, 15 Okla. Cr. 386, 177 P. 621.

The only evidence in the case against the defendant was the uncorroborated testimony of B. E. Slagle, who, as shown by numerous decisions of this court, has heretofore been successfully impeached and discredited as a witness.

In Prochneau v. State, 32 Okla. Cr. 210, 240 P. 1090, he was the prosecuting witness. We said:

“All good citizens have an interest in the vindication of public justice and maintaining the majesty of the law. It is a matter of common knowledge that the most potent factor of the dishonest dispensation of justice is the production of untruthful testimony upon the witness stand. Generally speaking, a private detective is not overscrupulous in the truthfulness of his testimony, and such evidence should be viewed with caution, as it may not be entitled to very much credence.”

While the cases are rare in which this court interferes to disturb the judgment of the trial court, and it is only in a case where a verdict is clearly contrary to the evidence, or when from the doubtful character of the evidence against the preponderance in his favor is such that it is evident that the jury were influenced by passion or prejudice, that a judgment will be reversed because the evidence is insufficient to sustain it. In this case we think that the evidence, unless we are to discredit entirely the testimony of unimpeached witnesses, falls within the rule laid down by these cases.

For the reasons stated, the judgment of the lower court is reversed, with direction to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    G. F. BRANDT v. STATE.
    No. A-5583.
    Opinion Filed June 10, 1926.
    (246 Pac. 1106.)
    J. N. Roberson and Homer Caldwell, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Appellant, G. F. Brandt, was convicted on an information charging that on November 19, 1924, he did have in his possession a compound mixture, commonly known as mash, and capable of being used for the distillation of intoxicating liquor, and in pursuance of the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. To reverse the judgment he appeals.

To understand the errors assigned it is necessary to refer to the evidence. It appears that A. W. Culp, deputy sheriff, and W. A. Spicer, city marshal of Yukon, under authority of a search warrant, visited the premises occupied by appellant, where they found two barrels of mash buried in the creek bank about a quarter of a mile from appellant’s house. They also found a keg of wine in the granary. They each testified that the bung came out of the keg, and the wine all spilled out on the way back.

Witness Culp testified that he made the affidavit upon which the search warrant issued, and produced the same, and, over appellant’s objections, the affidavit, search warrant, and return thereon were admitted in evidence. The testimony of W. A. Spicer, to which exception was taken, is substantially that given by the witness Culp.

The witness Culp was recalled, and the county attorney asked leave to withdraw Exhibits A and B, the same having been found to be a wrong description of the premises, and leave to introduce the correct affidavit and search warrant, which the court permitted over appellant’s objections.

The first affidavit and search warrant describes the premises as section 16, township 11, range 5, Canadian county, as a place where intoxicating liquors are received, manufactured, stored, and kept in violation of the prohibitory laws, but does not name any person as being in possession of said premises, and is made on information and belief. The second affidavit is the same in every respect, except it describes the land as section 26. Both affidavits verified on the same day by A. W. Culp.

Counsel for appellant moved that all the evidence be stricken and withdrawn from the consideration of the jury. The court sustained the motion to strike as to the affidavit, search warrant, and return thereon as to the evidence with reference to the finding’ of the wine, for the reason that it was obtained under an illegal search warrant, and overruled the motion as to all evidence with reference to the mash and allowed exceptions. Counsel for appellant then moved the court for a directed verdict of acquittal, which was overruled.

As a witness in his own behalf, G. F. Brandt testified that he knew nothing whatever about the mash found by the officers; that the place was 50 yards beyond his cornfield; that Joe Helm lived on the adjoining quarter and is now serving time in the federal jail for manufacturing whisky. There was evidence showing that three or four parties occupied the Joe Helm place as tenants that year.

T. J. Hunker, of the First National Bank at Wheat-land, and four or five other witnesses qualified as character witnesses, and each testified that the general reputation of G. F. Brandt in that neighborhood as to being a good and law-abiding citizen was always good.

It is well settled that a complaint for the issuance of a liquor search warrant is not sufficient if made on information and belief. 24 R. C. L. 708; 16 C. J. 292; Whitehead v. State, 28 Okla. Cr. 198, 230 P. 291; Hannan v. State, 29 Okla. Cr. 203, 233 P. 249.

In Wiese v. State, 32 Okla. Cr. 203, 240 P. 1075, we held that;

“Affidavit for search warrant, describing the place to be searched as a certain section of land, and without naming the owner, is insufficient to furnish the particular description of the place to be searched, where it appeared that the land so designated was owned and occupied by several persons, so that it was in fact several places.”

On the record before us we are convinced that the search and seizure in this case was an unauthorized trespass, and that all the state’s evidence was improperly admitted in violation of defendant’s constitutional and statutory rights.

The judgment of the lower court is accordingly reversed and the cause remanded, with direction, to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


author: DOYLE, 'J.

text:
    BILL McCLARY v. STATE.
    No. A-5592.
    Opinion Filed June 10, 1926.
    (246 Pac. 891.)

      F. W. Church, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, 'J.

The information in this case, filed in the county court of Ottawa county, December 1, 1924, charges that in said county, on December 8, 1923, Bill McClary, did have in his possession intoxicating liquor, to wit, whisky, with the unlawful intent to sell the same. A trial was had thereunder. The defendant was found guilty as charged in the information; the jury leaving the punishment to the court. Motion for new trial was duly filed and overruled. March 16, 1925, the court sentenced defendant to serve six months in the county jail, and to pay a fine of $500 and the costs.

To reverse the judgment, he assigns as error that the verdict is contrary to law and the evidence, and the insufficiency of the affidavit upon which the search warrant issued and the invalidity of the search warrant under which all the evidence offered by the state was obtained.

Before commencement of the trial, the defendant filed a motion to suppress the evidence on the ground that the officers had no authority to search for and seize the same. This motion was denied, and during the trial the question was saved for review by timely objections, motions to strike, and exceptions taken.

The state called A. A. Thomas, justice of the peace at Commerce, who produced an affidavit for a search warrant subscribed and sworn to by V. A. Gamble on November 24, 1923. He testified that on the same day he issued a search warrant thereon, but was unable to find it.

V. A. Gamble, night marshal at Commerce, testified that he made the affidavit and procured the search warrant, and gave it to Chief of Police Flye.

Against the defendant’s objections, he further testified that he was with Bill Sanderson, Frank Kitto, and Mr. Flye when they visited the B. F. McClary place; that they found two half pints of whisky in the washstand, one half pint under the sill of the house, and two in a garage; that the search was made on the night of the 8th day of December, 1923; that the search warrant issued November 24, 1923.; that the defendant’s father, B. F. McClary, owned the premises, and was there at the time.

The defendant moved to have the evidence stricken, because the search warrant was not served within three days, as required by law. The motion was denied. This was all the evidence in the case.

He then moved for a directed verdict of acquittal on the ground that all the testimony was obtained in executing a void search warrant, and that the evidence is insufficient to connect him with the offense charged, which motion was overruled.

Upon careful examination of the record we are satisfied that the evidence offered by the state tending to prove the guilt of defendant was incompetent, because the same was obtained by an illegal search under a void search warrant.

Section 7009 of the Enforcement Act provides that upon complaint or affidavit sufficient to show that there is probable cause, a search warrant shall issue, directed fo any peace officer in the county, commanding him to search the premises described in such complaint and warrant, and, after executing the same, “to make return of said warrant within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized, of the person or persons in whose possession the same were found, if any.”

It further provides:

“A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so seized, and if no person be found in the possession thereof, a copy of said warrant shall be posted on the door of the building or room wherein the same are found.”

Section 70Í0 requires that—

“The judge or magistrate shall fix a time, not less than ten days, nor more than thirty days thereafter, for hearing of said return, when he shall proceed to hear and determine whether or not the property and things so seized or any part thereof, were used, or in any manner kept or possessed by any person within this state, with the intention of violating any of the provisions of this act.”

Our Procedure Criminal provides (section 2886):

“A search warrant must be executed and returned to the magistrate by whom it is issued within ten days-After the expiration of these times respectively, the warrant, unless executed, is void.”

In view of these direct and plain provisions of the statute, and in view of the undisputed fact that the search warrant, which could not be found, was not served until 14 days after it was issued, it must be held that the same was void, and that the search and seizure thereunder was unlawful, and in violation of section 30 of the Bill of Rights, guaranteeing the security of the people in their right to be exempt in their persons, houses, papers, and effects from unreasonable search and seizure.

For the reasons stated, the judgment is reversed and case remanded for further proceedings consistent with this opinion.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    E. E. GIBBONS v. STATE.
    No. A-5594.
    Opinion Filed June 10, 1926.
    (246 Pac. 1107.)
    C. H. Madden, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

On information charging that in Harmon county, December 25, 1924, E. E. Gibbons did sell whisky to one Delmar Yoakum, he was convicted, and in accordance with the verdict of the jury sentenced to pay a fine of $50 and be confined in jail for 30 days.

A number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is that the court erred in its rulings on the cross-examination of the prosecuting witness.

The state relied for this conviction on the testimony of two witnesses.

Delmar Yoakum testified that he lived at Hobart, and was in the town of Gould on December 25, 1924, and that evening went to the home of Bedford Reville, and got a pint of whisky. .He further testified:

“I don’t know whether you would call it exactly buying or not; I pitched the money on the table, two and a half, and E. E. Gibbons handed me the whisky. When I started to leave to go back to town I saw Sheriff Smith in the yard. Bedford Reville and his wife and another man and woman, I don’t know their names, were there.”

On cross-examination, he was asked:

“Q. You are the same Delmar Yoakum who testified in the two cases against Mr. Blassingame, are you not? A. Yes, sir.
“Q. You testified that you sold whisky to (interrupted by state’s objection).
“Mr. Madden: The idea is to impeach the witness.
“The Court: I don’t think it is material.”

The jury excused. Defendant offers to introduce the testimony of this witness in a former case, State against W. W. Blassingame, wherein he testified that he sold whisky to E. E. Gibbons that evening and offers to prove by this witness that such is the fact.

“The Court: The objection of the state’s attorney sustained, and the offer of evidence refused. Exception allowed.
“Q. You were selling whisky around town that day, were you not, Mr. Yoakum? A. I was.
“Q. How much whisky did you sell that day? A. I sold a gallon.
“Q. Where did you get that whisky? A. I got it out in the country a ways.
“Q. You didn’t get this from the defendant? A. No, sir.”

E- T. Smith, sheriff, testified that he was out around Bedford Reville’s house on the night of December 25th, and along about 10 o’clock a car drove up and Delmar Yoakum left the car and went into the house and talked to defendant, who went out of his sight and came back with a half gallon fruit jar and handed it to Yoakum, who threw something that rattled like money on the table and walked out and got in the car and left.

For the defense, Bedford Reville, his wife, and two or three other witnesses testified that they were at the Reville home that night when Delmar Yoakum came there, and did not see him receive any whisky from the defendant, or leave any money on the table. One of the witnesses testified that he bought a half gallon of whisky from Delmar Yoakum at the bridge north of Gould, about an hour before.

As a witness in his own behalf the defendant testified that he bought a quart of whisky from Delmar Yoakum that evening about 9 o’clock; that Charley Boggs was with him. He denied selling any whisky to Yoakum.

As to what is the proper practice on cross-examination of witnesses, the general rule is that the party cross-examining should be confined to the matters concerning which the witness has been examined in chief; but this rule should be liberally construed so as to permit any question to be asked on cross-examination which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or to test his accuracy, memory, veracity, character, or credibility. This must necessarily include impeaching questions, although they may relate to matters independent of the questions testified to in chief.

In Gibbons v. Territory, 5 Okla. Or. 212, 115 P. 129, this court held:

“The cross-examination of a witness is not to be confined to the particular questions asked, nor the precise subjects called to his attention on direct examination. The correct rule is to allow the cross-examination to extend to any matter not foreign to the subject-matter of such examination and tending to limit, explain, or modify, the same.”

In Rogers v. State, 8 Okla. Cr. 226, 127 P. 365, this court held:

“Where the state places a witness on the stand, who testifies to a certain transaction, it thereby voluntarily opens a door which it cannot arbitrarily close, until the defendant on cross-examination has brought out all the facts within the knowledge of such witness material to a thorough understanding of that part of the transaction which the state has proven.”

And see Creek v. State, 16 Okla. Cr. 492, 184 P. 917; Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101.

While the extent of cross-examination of a witness is largely within the discretion of the trial court, we think that the exclusion of the testimony offered was a manifest abuse of such discretion. For that error the judgment must be reversed.

BESSEY, P. J., and EDWARDS, J., concur.


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    FLORENCE MOORE v. STATE.
    No. A-5570.
    Opinion Filed June 11, 1926.
    (246 Pac. 1112.)
    M. D. Hartsell, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, 'J.

The information in this case charges that on November 13, 1923, W. N. Hargrove and Florence Moore did sell one drink of whisky to J. P. Murray for 50 cents. On the trial, the court sustained the defendant Hargrove's demurrer to the evidence, the jury returned a verdict finding the defendant Florence Moore guilty, leaving the punishment to be fixed by the court. Motion for new trial was duly filed and overruled, and the court sentenced Florence Moore to serve 90 days in the county jail and to pay a fine of $150 and the costs. To reverse the judgment, she appeals.

The petition contains 12 assignments of error, supported by a brief of 70 pages.

The Attorney General very properly declined to offer anything in defense of the errors assigned.

J. P. Murray testified that some time during the fall 1923, he hauled cotton with J. D. Patton to Muskogee ; there they went to some place where he paid a dollar for something; didn’t know what it was, but supposed that it was whisky; that he received some change back; that the woman gave Mr. Patton something to drink; that Mr. Stubblefield and the man that lived there were present at the time, and three or four officers came in and searched the man.

J. D. Patton testified that with Mr. Stubblefield and Mr. Murray he went to a place on North Main street, and Mr. Murray asked a lady there if she had anything to drink, and she said, “Only one left,” and went and got a drink in a little glass, and he drank it, and about that time the raiding officers came in; that witness at the time was a special deputy sheriff.

R. D. Jones, undersheriff, testified that he saw Murray and Patton in Hargrove’s and Florence Moore’s place at 1.13 1-2 North Main street; that a man by the name of Stubblefield and Florence Moore were in the hallway upstairs ; that he did not have a search warrant at that time, but one of the other officers did serve a warrant.

Over the defendant’s objection, he was asked if he was familiar with the general reputation of that place as to being a place where whisky was sold, and answered, “Yes; the place bears a bad reputation from the standpoint of handling intoxicating liquors.”

The defendants moved for a directed verdict, which was overruled as to the defendant Florence Moore. As a witness in her own behalf,, she testified that she did not have any whisky there, and did not sell any man any whisky; that she lives there with her husband, W. N. Hargrove, in their five-room home.

It is well-settled'rule that, before evidence is admitted of the general reputation of defendant’s home as a place where intoxicating liquors are kept for sale, it must be shown that the place itself was a place of public resort.

In Westfall v. State, 30 Okla. Cr. 115, 235 P. 270, we held that:

“Where, on a charge of selling intoxicating liquors at the place of residence of the defendant, proof on the part of the state that the general reputation of the residence as being a place where intoxicating liquors are sold is bad is not admissible.”

And see Yakum v. State, 30 Okla. Cr. 184, 235 P. 253; Lotta v. State, 30 Okla. Cr. 105, 235 P. 245; Coatney v. State, 30 Okla. Cr. 270, 235 P. 942; Williams v. State, 24 Okla. Cr. 284, 220 P. 667.

Having reached this conclusion we deem it unnecessary to notice the other alleged errors.

For the error indicated, the judgment is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    MONT MURRELL v. STATE.
    No. A-5617.
    Opinion Filed May 22, 1926.
    Rehearing Denied June 12, 1926.
    (246 Pac. 644.)

      Rummons & Hughes, for plaintiff in error,
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, defendant in the trial court, was by a jury in the county court of Kiowa county, found guilty of illegally transporting whisky, with his punishment fixed at a fine of $300 and 60 days in jail.

There is but one point involved in this appeal. It appears in the argument to the jury that the county attorney, touching, upon the question of whether or not the liquid found in the possession of the defendant, and which he was transporting, was whisky, said:

“The officers testified that the defendant stated at the time of his arrest, ‘You know that ain’t my whisky’; it hasn’t been denied.”

We hold that this statement does not come within the restriction found in the closing part of section 2698, Comp. Stat. 192Í, forbidding any comment upon the fact that the defendant failed to take the witness stand in his own behalf. The county attorney said, “It hasn’t been denied.” What has not been denied? He does not state that the defendant failed to testify, but merely that no evidence was introduced controverting the claim that the liquor was in fact whisky.

As was held in the recent case of Lula Parker v. State, 34 Okla. Cr. 254, 246 P. 493, this restriction in section 2698, supra, will not be enlarged by deductions and inferences so as to prevent a fair discussion of the evidence, even though the defendant did not testify and called no witnesses in .his defense. This statute will not be deemed to go to the extent of prohibiting comment upon inferences reasonably to be drawn from a failure to controvert the state’s showing by proof other than that which might be given by the defendant personally.

The comments of the court following the above remarks of the county attorney were provoked or invited by the defendant himself, on account of which he has no ground for complaint. The proof is conclusive that the defendant is guilty as charged.

,The conviction and judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    BERT DAVIS v. STATE.
    No. A-5531.
    Opinion Filed May 22, 1926.
    Rehearing Denied June 12, 1926.
    (246 Pac. 651.)
    B. C. Wieek, for plaintiff in error.
    The Attorney General and Houston B. Teehee, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

This cause was previously here on appeal, and the conviction reversed in case No. A-3647, reported in 20 Okla. Cr. 203, 201 P. 1001. In this second appeal, from the judgment rendered on the retrial of the case in the district court, sentencing the defendant to one year’s imprisonment in the penitentiary, practically the only ground urged for reversal is the alleged insufficiency of the evidence.

A stolen automobile was sold by the defendant to a farmer living near Ponca City, who later turned it over to its owner upon satisfactory identification. The theft of the car, its identity, and its sale toi the farmer were well established by the evidence. After the arrest of the defendant the farmer went to the defendant, in jail, to see if he would make restitution of the purchase price. The defendant denied having sold the car to him, and sought to shift the responsibility to one Killion, who had helped negotiate the sale. In his former trial the defendant by his own testimony sought to show that he had purchased the car in good faith. In the case here under consideration he failed to testify.

. Under all the circumstances we believe that the jury were justified in concluding that the defendant was implicated in the original taking of the car; that it was not purchased in good faith; and that he was not merely the receiver of stolen property knowing it to be stolen.

The instructions of the court were fair to the defendant, advising the jury that a conviction for larceny could not rest upon proof of knowingly receiving stolen property, also upon the inferences to be drawn from the possession of recently stolen property, upon the law of circumstantial evidence, and upon the statements and admissions of the accused against his interest.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    ORBIE POPE v. STATE.
    No. A-5535.
    Opinion Filed May 22, 1926.
    Rehearing Denied June 12, 1926.
    (246 Pac. 657.)
    E. H. Bond, W. C. Lewis, and Orbie W. Johnson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, defendant in the trial court, was found guilty of robbing P. G. Kinney of a sum of money, by force, and was sentenced to serve a term of 10 years in the state'penitentiary.

The prosecuting witness was well acquainted with the defendant and positively identified him as the person who came to his filling station about 10 o’clock at night, after he had retired for the night. There the defendant called the prosecuting witness from his bed to get him gasoline. After he had put five gallons in defendant’s car and talked to him for a few minutes, the defendant struck the prosecuting witness violently with his fist, seized his money bag, containing $10.15, and drove away. It rained-that night and the' officer, by reason of the peculiar tires on the car, followed the tracks of defendant’s car to where the defendant was found the next morning.

The only question involved in this appeal is the sufficiency of the evidence. The evidence on the part of the state indicates almost beyond a doubt that the defendant is guilty. The testimony of the defendant, and of two others, tended to establish an alibi. Under such circumstances this court would not be justified in disturbing the verdict of the jury for want of sufficient evidence.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    JENNIE BEATTY v. STATE.
    No. A-5567.
    Opinion Filed June 12, 1926.
    (246 Pac. 1103.)
    J. Hugh Nolen, J. V. Crawford, and O. A. Shaw, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty., for the state.
   DOYLE, J.

The information charges that in Okfuskee county, November 4, 1924, Jennie Beatty did have in her possession “about one gallon of whisky,” with the unlawful intent to sell the same. On the trial she was found guilty, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $100 and be confined in the county jail for 90 days.

To reverse the judgment, she appeals, and assigns as error the overruling of motion to suppress evidence; admission of incompetent and prejudicial evidence; refusing to direct a verdict of acquittal; and misconduct of the county attorney in his argument to the jury, which tended to deprive her of a fair and impartial trial. .

It appears that, under authority of a search warrant, a deputy sheriff, the chief of police, and two policemen visited the defendant’s residence, on North Seventh street in the town of Okemah, and searched the house, finding two half pints of whisky.

In ruling on the motion to suppress the evidence, the trial court held the affidavit insufficient and the search warrant void, but overruled the motion on the statement of the county attorney that “he has other evidence that will make the search legal.”

W. L. Payne, chief of police, testified:

“We went there about midnight; knocked on the door and spoke, and she came to the door; then stepped back and began to break fruit jars. I instructed some of the men to break in that door. I then went around the house and' pushed in that way. When we gained entrance, she rushed back in the front room and laid down on the bed, and pulled the stopper out of a bottle that was under her pillow. We found two half pint bottles that had stoppers under the pillow.”

Over the defendant’s objections he was asked:

“Q. At that time did you know the general reputation of the place where Jennie Beatty lived as being a place where intoxicating liquors were bought and sold? A. Yes, sir.
“Q. Was it good or bad? A. Bad.”

To the same effect was the testimony of Frank Gaghagen, deputy sheriff, and the same question was asked, and the same answer given, as to the reputation of defendant’s residence — to all of which exception was taken.

When the state rested, the defendant asked the court to instruct the jury to return a verdict of not guilty, which the court refused to do, and allowed exception.

As a witness in her own behalf, Jennie Beatty testified that the officers forced the locks off both the doors of her home and came in, “and S. V. White and Frank Gaghagen dragged her out of bed undressed.”

At the close of the evidence the defendant again moved for a directed verdict, which was overruled.

It appears that the defendant objected to the county attorney reading to the jury in his argument the affidavit for a search warrant. The court ruled:

“Counsel is admonished to refrain from the discussion of the affidavit for the search warrant, because the court has held that it is invalid and illegal, and that the search warrant issued thereon is illegal and void.
“Gentlemen of the jury, you are instructed not to consider the remarks of the county attorney with reference to the affidavit for a search warrant.
“By Mr. Catlett: It is evidence.”

It also appears that counsel for the defendant objected and moved the court to instruct the jury not to consider the argument of the county attorney touching the general reputation of the private residence of the defendant, which objection was overruled and the request denied.

It is hardly necessary to say that the statement of the county attorney that the affidavit “is evidence” was under the circumstances highly improper. The rule is universal that it is error to permit counsel, against objections, in argument before the jury, to make statements of, or comments upon, facts not in evidence. It is our opinion also that the overruling by the court of the defendant’s objections to the admission of evidence as to the general reputation of the defendant’s residence, and permitting the county attorney to argue the same, was prejudicial error. It is the well-settled doctrine in this state that proof that the defendant’s home had the general reputation of being a place where intoxicating liquors were sold is not admissible. Westfall v. State, 30 Okla. Cr. 115, 235 P. 270; Thompson v. State, 9 Okla. Cr. 525, 132 P. 695.

A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. Upon the record in this case we are convinced that the defendant did not have that fair and impartial trial to which she was entitled under the law.

For the reasons stated, the judgment of the lower court is reversed, with direction to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    FRANK MYER v. STATE.
    No. A-5590.
    Opinion Filed June 12, 1926.
    (246 Pac. 1105.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   BESSEY, P. J.

Frank Myer, plaintiff in error, defendant below, was found guilty of the unlawful possession of one gallon of corn whisky with his punishment fixed at a fine of $200 and 60 days in jail.

This conviction rests upon evidence procured by means of a search and seizure predicated upon a search warrant based upon an affidavit naming or describing no person, but described the place to be searched as a building located at 138V2 Chickasha avenue in the town of Chickasha in Grady county, Okla. The defendant, his wife, and a sick daughter, for a period of three weeks occupied a room equipped for light housekeeping in the building designated by this number. They had moved into these quarters from a farm some miles in the country in order to be near a physician who was treating the sick daughter. This search was made in the nighttime over the protests of the defendant and his wife, resulting in the recovery of two half-gallon fruit jars full of whisky, which the defendant and his wife claimed they were using as an alcoholic rub or bath in treating the sick daughter. The physician had prescribed alcohol; but admitted' that corn whisky could be used as a substitute. Manifestly the jury did not believe that the defendant had this whisky for that purpose.

This evidence, if competent, considered with the statutory presumption as to quantity, was probably sufficient to support the verdict; but the defendant complains that the evidence produced was obtained by an illegal, and therefore unreasonable, search and seizure, contrary to the federal and state Constitutions, and was erroneously admitted over his protest.

Where the place to be searched is described in the affidavit and in the search warrant by a single street number without naming the owner or any of the occupants, where two or more families reside in separate apartments, a-search warrant directing the officers to search the premises designated by such single number is void because in legal contemplation it describes more than one “place,” within the meaning of the Constitution. One of several light housekeeping apartments, however humble or unpretentious, when occupied as a home, is just as sacred and entitled to the same constitutional protection as a separate mansion used as a home. Wiese v. State, 32 Okla. Cr. 203, 240 P. 1075; U. S. v. Innelli (D. C.) 286 F. 731; Search & Seizure by Cornelius (1925) § 126 et seq., and cases cited.

The state admits that the affidavit and search warrant described the “place” as the building at 138% Chickasha avenue, that the defendant resided there with his family in' light housekeeping apartments, and that he had no other home; that he did not consent to the search and seizure. The proof is clear that other tenants, permanent and transient, also resided there. This writ was intended to operate and did operate as a blanket search warrant covering the private places of abode of several people, and was therefore void. The officers who made the seizure were trespassers, and the evidence obtained by that means was inadmissible. Where there is no joint interest apparent, a showing of probable cause against one tenant confers no right to search the home of another tenant in the same building.

The conviction is reversed, with instructions to dismiss.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    L. F. WHITE v. STATE.
    No. A-5207.
    Opinion Filed June 12, 1926.
    (246 Pac. 1114.)
    Matson & Mathers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county upon a charge of stealing an automobile and was sentenced to serve a term of five years in the state penitentiary. The record discloses that on May 25, 1923, Hattie Berry, who lived in Carter county, drove a new Ford automobile to Ardmore to attend a carnival. It was parked near the carnival grounds and soon thereafter she discovered it had been stolen, and she immediately reported the loss to the police. The car was found in Ardmore in September following, in the possession of one “Red” Davis. There had been a change in the engine number and some other changes in identifying marks. It was identified by Hattie Berry and her daughter by certain marks and scratches upon the car with explanation of how they came to be there. There was found in the pocket of the car a small comb and a baby’s stocking, positively identified as belonging to the infant child of Hattie Berry. The automobile at the time of its discovery bore a false license number, which had been stolen from another automobile at Goree.

The defendant introduced evidence of an alibi in that he did not attend the carnival at Ardmore. He also offered evidence that he purchased the automobile for $375 under a bill of sale from Richard Roe, an oil field worker who had since left the country, and that he sold it on July 31 for $250 to “Red” Davis, in whose possession it was found. He testified that the factory numbers were not disturbed by him. He admitted on cross-examination that at least one other automobile claimed to have been stolen had passed through his hands that summer. He offered a bill of sale executed by Richard Roe before a notary public for the sale of the car on May 15th. Its admission was excluded.

It is first argued that the court erred in not permitting the jury to inspect the automobile in question. During the cross-examination and before the state closed, defendant’s counsel stated that he would like to have the jury look at the car then in the possession of the sheriff. The county attorney objected at that time, which was sustained, and no further request was made at any time during the trial. The viewing of the place or the retiring from court for the purpose of viewing any object or things too bulky or otherwise incapable of being brought into court is within the discretion of the trial judge. Section 2714, Comp. Stat. 1921. It would require a clear showing of abuse of discretion before a failure to permit a view of place or property would be held prejudicial. Here the question of identification of the car was fully developed, and a mere view of the car would not, we think, have aided the jury.

It is next contended that the court erred in admitting a statement by the witness Kearsey that he had wired the factory to ascertain the block or engine number in the car in question. The witness was questioned on this point, and stated that he sent a telegram to the factory, and he was asked if he got an answer, which was objected to without assigning any reason. He answered that he had, and that it was shipped to Columbus, Ohio, and that it was the same number as on the car in question. This was gone over by counsel in cross-examination as follows:

“Q. The Ford people have a branch at Columbus, Ohio? A. I don’t know.
“Q. All they told you, they told this engine was shipped to Columbus, but didn’t say when? A. No, sir.”

This evidence was trifling and proves nothing material, and, if erroneous, was not prejudicial. A similar question was disposed of in the case of Harrod v. State, 93 Tex. Cr. R. 518, 247 S. W. 1091, wherein it was held that a statement under somewhat similar conditions was not error. Graham v. State, 28 Okla. Cr. 266, 230 P. 763.

Complaint is next made that two of the witnesses who testified for the defendant were asked on cross-examination if they had charges of larceny of automobiles pending against them. It was stated by counsel for the state at the time that the questions were asked for the purpose of showing interest of the witnesses. One of the witnesses admitted that he had two cases pending against him, and the other, one. The cases had no connection with the defendant. After the admission of this evidence, the court on motion struck it out and admonished the jury not to consider it for any purpose. If the point testified to by these witnesses was the only evidence, the striking out of the testimony might not correct the error, but several other witnesses testified to the same matters without impeachment, and this error does not require a reversal.

It is also contended that the court erred in excluding the bill of sale dated May 15th, ten days before the larceny of the Berry car, offered by the defendant, purporting to cover his purchase of the car. On that date the defendant and Bill Roe went before a notary public and executed a bill of sale which defendant claimed passed the title to the car identified by the prosecuting witness and others. The car purporting to be transferred by the bill of sale was not present at the time of the making of the bill of sale, and the fact that the bill of sale was made was not denied. A number of witnesses, including the defendant, the notary-public, and his wife testified to this fact without restriction. It was the theory of the state that this was a mere preparation for the larceny. The contents of the bill of sale was not an issue. There was no prejudice to the defendant in this ruling. Addington v. State, 8 Okla. Cr. 703, 130 P. 311.

There was. a direct conflict between the evidence of the state and that of the defendant. The state established the theft of the automobile at the time charged, and that it was found some three months later and its possession traced to the defendant. It was clearly identified by the owner and others. The defendant endeavored to show that the car found was not the car of the prosecuting witness, and that the defendant came by its possession lawfully. If the jury believed the evidence for the state, the defendant was properly convicted. If they believed that of defendant, he should have been acquitted. Janes v. State, 17 Okla. Cr. 688, 189 P. 201.

The credibility of the witnesses and the weight and value to be given their testimony was for the jury. We find no error that warrants a reversal.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    A. M. BOYER v. STATE.
    No. A-5585.
    Opinion Filed June 12, 1926.
    (246 Pac. 1111.)

      J. B. Drennan and Sam P. Ridings, for plaintiff in error.
    Geo. F- Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grant county on a charge of embezzlement, and sentenced to serve a term of six months in the state penitentiary.

The information is in two counts and charges that defendant was the agent in charge of an elevator at Lamont belonging to the Consolidated Flour Mills Company. In the first count it is alleged that he embezzled 3,000 bushels of wheat, the property of said company of the value of $3,000. In the second count it is alleged that he was intrusted with the sum of $3,000 for the purchase of wheat and did appropriate and embezzle said sum.

The record discloses that defendant was an agent of the Consolidated Flour Mills Company for more than three years, running its elevator at Lamont, purchasing and shipping wheat on commission; that, contrary to the orders of his employer, he stored a quantity of wheat in the elevator and at times made settlement 'for a portion of this stored wheat by drawing drafts against the company in his own name showing that he had sold wheat to the company; and that he drew drafts in like manner for wheat which he did not deliver. His accounts became very much involved, and in August, 1923, he went to the office of the company at Hutchinson, Kan., and fully disclosed the situation of affairs and admitted that he had appropriated to his own use a considerable sum of money belonging to the company- A portion of this statement was taken down in shorthand, transcribed and signed by the defendant. He did not testify upon the trial.

The prosecuting attorney evidently was in doubt whether the evidence disclosed that defendant had appropriated wheat or had appropriated money of the company procured ostensibly, for the payment of wheat or in payment for wheat. If the facts developed at the preliminary and the order of commitment warranted, it was proper to charge in the first count the embezzlement of wheat and •in the second count the embezzlement of money received from the sale or for the purchase of wheat, and the state could not be required to elect upon which count it would rely for conviction. Hughes v. State, 7 Okla. Cr. 117, 122 P. 554.

A motion to quash the second count of the information charging embezzlement of money was interposed, for the reason that the defendant had not had a preliminary on such charge, and the overruling of such motion is assigned as error- The motion is verified and sets out what purports to be a copy of the preliminary complaint which alleges the embezzlement of wheat. It does not set out the order of. the committing magistrate holding the defendant for trial as required by section 2497, Comp. Stat. 1921, nor was any proof of the contents of the order made. The record does not contain any evidence offered in support of the motion to quash. The county attorney was authorized to charge the offense according to the facts developed at the preliminary hearing and according to the order holding the defendant for trial, and had a right to vary the allegations of his information to meet the contingencies. Little v. State, 21 Okla. Cr. 1, 204 P. 305; Payne v. State, 30 Okla. Cr. 218, 235 P. 558. The motion to quash was properly overruled-

The jury were instructed that, while the information charged the defendant with embezzlement of wheat and also the embezzlement of money, he could be convicted upon one count only, and in the case they should find him guilty they should say by their verdict whether the embezzlement was of wheat or money. The verdict as returned found him guilty of embezzlement of money.

Complaint is next made that the court erred in refusing defendant’s requests for instructions numbered 16 and 18. Requested instruction No. 16 is, in substance, .that the jury must find defendant embezzled wheat as charged or' the proceeds of the wheat in order to convict, and No. 18 is that the jury must find that the defendant had actual possession of the wheat in order to sustain a conviction for embezzlement. The material part of instruction No. 16 is covered by the court’s charge; and, since the jury by their verdict found the defendant embezzled money and not the wheat, the failure to give instruction No. 18 is not prejudicial.

Upon an examination of the entire record, we find the evidence sustains the verdict, and no error which would require a reversal is apparent

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    GUY FAULK v. STATE.
    No. A-5550.
    Opinion Filed June 12, 1926.
    (247 Pac. 112.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Guy Faulk, plaintiff in error, defendant in the trial court, was charged with the unlawful keeping of a place where intoxicating liquor was kept, bartered, sold, and given away, kept and operated in such manner as to constitute a public nuisance. By verdict of a jury he was found guilty as charged, with his punishment fixed at a fine of $100 and confinement in the county jail for a period of four months.

The first point urged in this appeal is that the evidence is insufficient to support the verdict- The testimony shows that the defendant and nine other members of his family resided on leased premises, comprising 15 acres of tillable land and a house; the latter being situated at the intersection of two highways about six miles east and one mile north of Edmond. Complaints had been made by persons residing in that neighborhood about the character of the place, and certain deputy sheriffs went at night to the vicinity to make observations. They saw that many automobiles were coming and going to and from the place, and on the following day four deputies searched the premises. They found no intoxicating liquor in the house or on other portions of the leased place, but did find large quantities of corn whisky directly across the highway on the premises of another, with well-beaten paths and tracks between the residence of the defendant and the places where the whisky was found. The testimony of these deputy sheriffs would indicate that the defendant’s residence was the place where the liquor was distributed. The testimony of the defendant and members of his family was that they had never had any whisky on the place and knew nothing about the whisky found just across the highway, some of it as near as 100 yards from the front door of the residence. Several of the witnesses testified that the place bore the reputation of being a place where intoxicating liquors were kept and sold. One neighbor testified that he had opportunity to observe and never knew or heard of the defendant being implicated in the sale or distribution of liquor- Upon this state of the proof, the weight of the evidence and the credibility of the witnesses was for the jury.

The defendant next complains that the whisky found on the adjoining premises was erroneously admitted in evidence, over the objection of the defendant, for the reason that it was found on the, premises of another and that defendant’s connection therewith had not been sufficiently shown. The showing was sufficient to - permit the introduction of this evidence. As before stated, the question as to whether the defendant was responsible for its being there was for the jury.

It is further urged that the penalty assessed was excessive. If this place was kept and operated as indicated by the evidence for the state, it constituted a grave menace to the welfare and morals of the community, deserving severe punishment. The penalty assessed was not the maximum under the law.

Judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur-


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    MINNIE SMITH v. STATE.
    No. A-5563.
    Opinion Filed June 14, 1926.
    (246 Pac. 1109.)
    J. Hugh Nolen and Guy L- Trimble, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

In this case the information charges that in Okfuskee county, August 11, 1924, Minnie Smith “did then and there have and keep in her possession lx/2 pints of whisky with the unlawful intent” to sell the same. On the trial she was found guilty and her punishment fixed at a fine of $100 and confinement in the county jail for 90 days. From the judgment rendered on the verdict she appeals.

The state relied for this conviction upon the testimony of Frank Gaghagen, deputy sheriff, and W. L. Payne, chief of police, admitted over the defendant’s objection that it was obtained by an unlawful search, was to the effect that they searched the defendant’s place of business, in Okemah, and failed to find any whisky there or in her living room, but did find three pop bottles containing whisky among a stack of pop cases and empty bottles behind the building. The witness Gaghagen testified that the defendant did not make any objection to the search. He was then asked and answered as follows:

“Q. What did she tell you about it? A. I think she said it was all right — I won’t be positive about that.”

The witness Payne, over the defendant’s objection, was asked the following question:

“Q. Shate whether or not she consented to you searching the premises? A. She said, ‘Go ahead and search; there is no whisky here.’ ”

It appears that the affidavit was made on information and belief, describing the place to be searched as lots 19 and 20 in block 15 in Okemah, but fails to name any person as owner or occupant of the same, and was sworn to by the witness W. L. Payne.

The search warrant described the premises as occupied by John Doe. The court sustained the motion to strike out the evidence because obtained under an illegal search warrant and directed the jury to return a verdict of not guilty. The county attorney objected on the ground that the testimony showed that the defendant waived her constitutional rights. The jury were excused, after the argument of counsel the jury were returned, and the court made the following order:

“The remarks of the court with reference to instructing the jury to return a verdict of not guilty are withdrawn. The court was under an erroneous belief as to the law.”

Minnie Smith in her own behalf testified that the officers came into her place of business with a search warrant, .which was handed to her, and while she was reading it they searched the place and did not find any liquor there; that she did not have any liquor there; that there was an alley alongside the place and a vacant lot behind where they had shows at times; that the reason she did not object to the search was on account of the search warrant.

A number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is that the court erred in setting aside its order striking out all the evidence in the case and setting aside its instruction to the jury to return a verdict of not guilty, and then submitting the cause to the jury on the theory that the defendant had waived her constitutional rights.

The trial court properly held the affidavit upon which the search warrant was issued insufficient, and that the search warrant was void, but in our opinion the court’s finding that the defendant waived her constitutional rights is not sustained by the evidence.

In United States v. Rembert (D. C.) 284 F. 996, Judge Hutcheson, delivering the opinion of the court, said:

“The principle invoked by the defendant is so fundamental, and the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures is so clearly guaranteed by the Constitution (Amendment 4),. that it would seem that the limits of the rights of an officer in the enforcement of law, and of a citizen in the enjoyment of his liberties, ought to be as well understood and as well observed as copybook maxims, for there can be no liberty except where there is a just and proper law enforcement, and there can be no proper law enforcement where liberty is unlawfully infringed.
“The fact, which is all too evident, on the one hand, that overzealous officers are not nice to find these limits and live within them, and, on the other hand, that the peaceable and law-abiding citizen is loth to enter upon a dispute with officers of the law when his guaranteed rights are infringed, makes it not only permissible, but desirable, that the court now briefly state the legal principles which control the matter of arrest and searches in such clear and definite form as that no federal officer can hereafter claim the excuse of ignorance when he violates a fundamental law, in order to secure evidence of the violation of some other law, and that well-disposed and law-abiding citizens may be advised of their obligations in the premises.
“It must be first promised that, where an officer politely and decently, and without physical threat has assumed to act in his official capacity, he is acting de facto, if not de jure, and a peaceful citizen should not forcibly resent the action, even though he knows the officer is, as to the act, greatly exceeding his authority, resting confidently upon the belief that this submission will not impair any of his constitutional rights; for, as the courts have repeatedly1 held, such action will not be taken to be a consent to an unlawful search or arrest, but merely a peaceful submission to officers of the law. United States v. Slusser (D. C.) 270 F. 819; Youman v. Commonwealth, 189 Ky. 152, 224 S. W. 864, 13 A. L. R. 1303; Amos v. United States, 255 U. S. 317, 41 S. Ct. 266, 65 L. Ed. 654.
“Any other course on the part of the citizen would place him in the difficult and dangerous position of undertaking to protect by force the rights which in his opinion the officers are seeking to impair, when it may turn out that the officer in fact has the authority, and his action may, in fact, be legal. This principle, that the courts of the United States will not put the citizen to the alternative of contesting by force with officers, or waiving his constitutional rights, runs through the federal decisions, and gives character and meaning to their emphatic holding that evidence illegally obtained cannot be used, and that the submission of a citizen to the officer cannot deprive him of his constitutional rights, unless the evidence clearly shows that the submission was really voluntary and with a desire to invite search, and not done merely to avoid resistance.”

In Salata v. U. S., 286 F. 125, the Circuit Court of Appeals, Sixth circuit, used the following language:

“The further claim of the United States, that- the plaintiff waived any constitutional right he might have had, and gave to these officers full permission to search his premises, regardless of the validity of the search warrant, is not sustained by the evidence. The witness, Beilstein, testified that, when he handed this search warrant to Salata and told him it was a search warrant to search his premises, Salata said: ‘Go ahead; you have full liberty to go all through the place.’ I do not say that he used the word ‘liberty,’ but he did say, ‘Go ahead.’ ”
“Upon the presentation of what appeared to be a valid search warrant Salata had no choice other than to permit the officers to make the search that the warrant purported to authorize. At that time and under those circumstances neither the words ‘go ahead,’ nor ‘Go ahead; you have full liberty to go all through the place,’ can be construed as an invitation on the part of Salata to search his premises without a search warrant, but rather that it was not his intention or purpose to offer any resistance to the officers in the performance of their duty under what he believed, and had a right to believe, was a valid search warrant issued by competent authority on a proper showing of probable cause.”

There is much conflict of authority as to what constitutes a waiver of defendant’s constitutional rights in search and seizure cases. We think the rule supported by reason and the weight of authority requires the state, where objection is properly made, to show that defendant waived his constitutional rights by freely and voluntarily consenting to the search. The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has' for centuries been protected by every court in the English speaking world, from Magna Charta down to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.

The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.

In People v. Glennon, 37 Misc. Rep. 1, 74 N- Y. S. 794, after pointing out that policemen have no right to invade and search private houses without a warrant and on mere suspicion or hearsay that some sort of crime may have been committed therein, or that such house contains some evidence that a crime has been committed, Judge Gaynor said:

“If it were so that we are all open to have our houses invaded, ransacked and searched by policemen on nothing except what they may chose to call their suspicions, and that we may be arrested in the same way, we would not be living under a free government, but under a most intolerable despotism, the like of which former generations struggled against until they obtained those guaranties of individual rights and liberties which made them free, the chief of which were that their houses should not be invaded and searched, and that they should not be seized except by due warrant and process of law.”

It follows from what has been said that the evidence challenged in this case was taken by the officers by unlawful search and seizure, and contrary to section 30, Bill of Rights.

The defendant’s conviction, having no sufficient foundation to support it without the use of evidence which had been unlawfully obtained, is reversed, with directions to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


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    LAWRENCE LYTTON v. STATE.
    No. A-5602.
    Opinion Filed May 29, 1926.
    Rehearing Denied June 16, 1926.
    (250 Pac. 538.)
    Bicking & Wilson, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information charging that January 9, 1925, Lawrence Lytton did transport 5 gallons of whisky from a point unknown in the city of Tulsa to a point about Eleventh and Quaker, in said city, he was tried and convicted, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $500 and be confined in the county jail for 6 months. From the judgment he appeals, and assigns as error that the evidence is insufficient to support the verdict, and that the court erred in admitting incompetent evidence obtained by an illegal search.

The evidence for the state supports the allegations of the information, and the competency of the testimony was not raised by timely objection. However, it appears that the officers observed a 5-gallon carton containing whisky in the car, and defendant admitted that it contained whisky.

As a witness in his own behalf, he testified that the whisky belonged to Jim Hough, who was sitting in the car with him.

Finding the evidence sufficient and no prejudicial error appearing, the judgment appealed from is affirmed.


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    DAN METZ v. STATE.
    No. A-6116.
    Opinion Filed June 19, 1926.
    (246 Pac. 1108.)
    J. Q. A- Harrod, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, Dan Metz, was convicted of manslaughter in the first degree, upon an information filed in the district court of Caddo county, February 2, 1925, charging that in said county, on or about the 15th day of January, 1925, he did kill and murder one Walter Seat by shooting him, and in accordance with the verdict of the jury he was sentenced to imprisonment in the penitentiary for a term of ten years. From the judgment rendered, October 2, 1925, an appeal was perfected by petition in error and case-made, filed in this court on March 15, 1926.

While his appeal was pending and awaiting decision before this court, his counsel of record filed a motion to abate the proceedings, supported by his duly verified affidavit, that “on June 16, 1926, at a point about 15 miles north of Anadarko, at the home of the above-named plaintiff in error, said plaintiff in error received two gunshot wounds, which caused his death; that said wounds were inflicted by a man by the name of Higgins; and that the plaintiff in error died almost instantly after he was shot.”

In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceedings in the above-entitled cause, and especially under the judgment therein rendered, have abated, and the cause is remanded, with direction to the trial court to enter its appropriate order to that effect.


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    WALTER WELCH et al. v. STATE.
    No. A-5544.
    Opinion Filed June 19, 1926.
    (246 Pac. 1113.)

      G. A. Holloway and W. C. Hall, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information charges that in Hughes county, May 18, 1924, Walter Welch and Paul Combs did have in their possession “intoxicating liquor,” to wit, Choctaw beer, with the unlawful intention of selling the same. On the trial the jury returned a verdict finding them guilty and fixing the punishment of each at a fine of $100 and 60 days in jail. From the judgments rendered on the verdict, they appeal and assign various errors-

Jim Blankenbaker, assistant chief of police in Wetum-ka, testified that with Roy Reed he went to the home of the defendant Combs and Reed found a gallon of “Choc”; that the defendant Welch was staying there. He was then asked if he knew the reputation of the place as to being a place where intoxicating liquors were sold, and, over the defendant’s objections, answered, “Yes,” and that the reputation was bad.

Roy Reed, deputy sheriff, testified that he searched around the house and across the alley about 10 or 15 steps found a gallon jug of Choc; that it was the negro part of town, “and it is very bad over there for the reputation of selling liquor.”

At the close of the evidence for the state, the defendants moved for a directed verdict in the form of a demurrer to the evidence. Motion was overruled, and exception taken.

As witnesses in their own behalf, each defendant d<8-nied the ownership or the possession of the jar found by the officers.

Error is assigned because the court permitted evidence to show that the defendants’ home bore a bad reputation, and that the court erred in overruling defendants’ motion for a directed verdict, and in giving the following instruction:

“You are further instructed in this case that it is not necessary that any proof of the intoxicating qualities be given or to have the same analyzed, and any lawyer who knows any law at all knows that that is not the law.”

This court has repeatedly held that the courts do not take judicial notice that Choc beer is intoxicating when a violation of the prohibition laws is based on alleged possession of intoxicating liquor, to wit, “Choc beer,” and that it is necessary that the state prove that at or near the time of the offense charged the liquor in question contained as much as one half to 1 per cent, alcohol, measured by volume. Williams v. State, 30 Okla. Cr. 39, 234 P. 781; Rambo v. State, 31 Okla. Cr. 214, 238 P. 869; Skelton v. State, 31 Okla. Cr. 343, 239 P. 189.

It is also held by repeated decisions of this court that evidence of the general reputation of defendant’s home as being a place where intoxicating liquors were sold is admissible only upon the laying of the proper predicate showing that his home was a place of general resort. Lotta v. State, 30 Okla. Cr. 105, 235 P. 245; Yakum v. State, 30 Okla. Cr. 184, 235 P. 253.

As shown by the record and for the reasons stated, we think the defendants did not have that fair and impartial trial to which they were entitled under the law.

The judgment of the lower court is accordingly reversed.

BESSEY, P. J., and EDWARDS, J., concur.