text:
    H. L. JONES v. STATE.
    No. A-9161.
    June 4, 1937.
    (69 Pac. [2d] 71.)

      Francis K. Trimble, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to- as the defendant, was by information charged with rape in the second degree; was tried and found guilty by a jury. The jury failing to agree upon the punishment the court sentenced the defendant to- be confined in the state penitentiary for a term of 7% years. Motion for new trial was filed, considered, overruled and the defendant has by petition in error with case-made attached appealed his case to this court for review.

J. L. Boyd, father of Thelma Boyd, the prosecuting Avitness in this case, stated he had lived near the city of Sayre for more than 22 years. He further stated:

“I know the defendant H. L. Jones; he picked cotton for me in the fall of 1928 and 1929, and has worked for me a greater part of this year; I think he worked about 35 days for me in 1935; he did not work steadily for me daring the spring of 1935; he quit my employ on the 12th day of July, 1935; I fix the date by a check I gave him.
“Thelma Boyd is my daughter; she was 16 years old on the 12th day of August of this year, 1935; the last time the defendant worked for me he commenced about the first of July, 1935, and worked steadily from then up to the 12th; he roomed in a house about 20 steps from my house and ate on the cabinet in the kitchen because the house where he lived was not equipped for serving his meals. I called him Dank. The defendant worked for Mrs. Martin the day before he came to my house the first of July to- work; his duties around the place was anything I had for him to do; he was a good hand, nice about the house and respected my family.
“I never inquired as to bis reputation in tbe community but so far as I know it was good; I never beard bim swear, and if he took a drink I do not know it; we did not have a stove in tbe little bouse where be lived and if it was very cold be stayed in tbe house; he helped my children with their lessons in school when be first came there. I had Dr. Windle examine my daughter.”

Dr. Windle testified:

“I am a practicing physician; I examined Thelma Boyd about the 30th day of September, 1935; they brought her to me and wanted me to- see if she had been ravished; I made an examination and found there was no hymen or what is commonly called maidenhead; from my examination I found she had had intercourse with a man.”

On cross-examination Dr. Windle stated:

“There was no bruises or abrasions, nothing but scar tissue all healed over that was caused by intercourse; the remainder of the female organs did not show any signs of violence.”

Ed West, testifying for the state, stated:

“My name is Ed West; I am sheriff of Beckham county; about the 30th day of September, or a little later I arrested H. L. or Dank Jones, on a charge of rape and brought him to jail; later I took him to' the county attorney’s office; when I got there with Jones, the county attorney, John Richardson, myself and the defendant were present. The defendant made a statement after he was informed of the charge against him. He stated he was not guilty of raping Thelma Boyd; he ivas asked if he had ever had intercourse with her and he said he had had intercourse with her on two occasions; that when he had intercourse with her they were in the kitchen.
“McCreery, I believe, asked him once if he knew Ruby Boyd; both Ruby and Thelma’s name was mentioned, the first one he asked about was Thelma; defendant denied he had raped Thelma Boyd; he stated there in our presence he had had intercourse with Thelma Boyd twice.”

'Thelma Boyd, the prosecutrix, stated:

“I live seven and three-fourth miles northwest of Sayre with my father and mother; there are two1 children in my family, myself and sister Buby Boyd; I was 16 years old on my birthday, which was on the 12th day of August, 1935; last July I was 15 years old. I know this colored boy, the defendant in this case; I first saw him in 1928, at that time I was eight years old; he was picking cotton for my father; he again worked for my father in 1929; when he worked for my father he stayed in a little house near our house; in the summer of 1935 he was working for my father part of the time; if we happened to be going to church my sister and I would ride as far as the church with him, we did not just ride up and down the section line, nor did we ride or associate with him unless it was while he was driving some place, either to church or to town;. he helped us with our lessons some, as he was an educated negro; he stated he had finished the eighth grade; he did not eat with my family, he ate on a cabinet in the corner of the room.
“About the first of July, 1935, about three o’clock in the afternoon I was in the bedroom lying down; my mother had gone to my grandmother’s a short distance from our home. The defendant was plowing in the field near the house; about three o’clock he came to the bedroom door and asked where my mother was; I told him she had gone to my grandmother’s; he came over to' the bed and pulled up my dress and got on the bed with me: 1 started hollowing and he told me to hush; he had intercourse with me. I did not consent, it was against my will and consent; he did not threaten me nor did he say not to say anything about what had taken place; I did not tell it because I was afraid to; the defendant left our place about the 12th of July following this incident. He returned the last of September. I never told my mother about what had happened until just about the time the defendant came back; the reason I told her then I learned he was coming and and I did not want him to1 come, I was afraid of him.
“The defendant held one of my hands, he had his other hand over my mouth. The defendant here is the man who came to my room and held me and had intercourse with me; during all the early years the defendant worked for my father he was with us children and was good to us, and never did anything wrong all that time; when we started to school he helped us with our lessons. So far as I know his reputation in the community as a colored man was good. When he was working in the field, close to the house he would come to the house and get water, and when he was away from the house we would drive the car and take water out to him; we did not feel afraid to take water to him, he had never done anything at that time to make me afraid of him; he never did threaten me, always acted gentlemanly when he was around sister and I.
“If the defendant happened to be going the way mother was, when she was going to a neighbor’s, he would drive her in the car. I don’t know the day he had intercourse with me; I don’t know that it was the first day of July, it was on Thursday; I don’t know whether it was the last Thursday in June or the first Thursday in July; I can’t get the idea of when it was as I don’t know; if the first of July was on Thursday it was the first of July; I told Mr. McCreery it was some time near the first, never set no date at the preliminary trial as to when the defendant had intercourse with me. The time he had intercourse with me I was lying on the bed in the southwest bedroom; I don’t remember where Ruby was that day, she could have gone to some of the neighbors, father was in the field working. Dank, the defendant, was plowing not very far from the house and not very far from grandmother’s house; the rows he was plowing ended between our house and my grandmother’s house.
“The first time I saw the defendant on that afternoon he came to the bedroom door; it was not his custom to come into the house; he could see the house from where he was plowing; when he came to the door he asked me where mother was and I told him she was at my grandmother’s; he did not say anything, he walked from the door across to the bed; when he reached the bed the first thing he.did was to pull up my dress and I hollowed; I don’t knOAV how loud I hollowed; I did not hollow as loud as I could, I don’t suppore. When I hollowed he told me to hush, and I hushed; he pulled do wn my underclothes to my knees and just proceeded; he had his hand over my mouth at that time; in a little while after he told me to hush he took my hand and then proceeded to consummate the act. All this time he held one of my hands and for a little Avhile he held one of my hands and the other hand was over my mouth. I don’t know when I did with my legs, I just layed there and did not make any effort or struggle to get loose; he talked in such a way and told me to hush that I was afraid of him; he did not threaten me or tell me he Avas going to hurt me, the only thing he said was he told me to hush; he did not treat me harshly. When the act was finished I was not in the same place on the bed I Avas AArhen he came in; there Avas no struggle or violence on the bed with my hands held; the bed was not torn up; there Avere no marks on my body, my clothes were not torn, they were Avrinkled; at the time of the act he hurt me; I had pains after it was over.
“I did not tell anyone what had happened until I told, my mother the latter part of September, 1935. My mother had been a good mother and always had confidence in me; my father has been a good father; I did not tell my sister, but it was not for the reason that I was afraid she would tell. I have not talked to the county attorney, but I have talked Avith Mr. Ivester; I told him what he asked me. My sister is at Plainview, Tex., at this time.”

The foregoing is the substance of the state’s testimony.

Dr. T. J. McGrath, called as a witness for the defendant, stated:

“I live in Beckham county; I am a practicing physician; I know Joe Boyd; I am not his family physician. On the examination of a female where the hymen is miss-mg or obliterated and there are no bruises or abrasions I could not determine what caused the obliteration.”

Dr. Stone, testifying for the defendant, stated he was a regular licensed practicing physician. He stated in substance the same as Dr. 'McGrath. Dr. Stone in answer to a hypothetical question stated where there were not any lacerations or abrasions he could not tell the cause of the missing hymen.

The defendant, testifying in his own behalf, stated:

“My name is H. L. Jones; on the first day of July, 1935, I was employed by Mr. Martin and worked for her all day; started to work for Mrs. Martin on the 17th day of June; I came back to town Saturday night and went home; I worked at Mrs. Martin’s until Friday night, the 28th of June, and then went over to Boyd’s; I called out there before I left town to' see if there was anything to do; he said Howard Bowen wanted me to' work for him Saturday, which was the 29th. I worked for Mrs, Martin on the 30th of June, which was Monday, and went out to where I lived about 10:30 that night.
“'On the second of July I began plowing for Mr. Boyd and plowed until fifteen minutes until twelve, and Mr. Boyd got on the tractor and plowed until one o’clock; there is a little field up east of the house, about 12 or 14 acres of cotton; I plowed until about sundown. Wednesday morning I plowed south of the house, that was the 3rd of July, and went across the highway on the south side of the highway and west of the house and plowed until about six or seven o’clock. Mr. Boyd came up and was going to the pasture to get the cows, he asked me if I was tired and 1 told him no, and he told me to take the car and go back to the house and take the cows; that was on the 3rd of July; I took the car and Mr. Thresher’s son, he gets in the car with me and rides to where I turn this way — I let the boy out, and he drives the cows and I went on to the house.
“While I was plowing Mr. Boyd chopped cotton; I was plowing south of the Boyd home Wednesday morning; there are some short rows that ran kindly south and. west of the house; we were going to plow at night because Mr. Boyd wanted to catch up with his work.
“Wednesday morning the tractor oil had water in it and the oil would not burn; I was standing on the east end of the field and Mr. Boyd was going to town. On the 4th of July I was plowing on the east and south of the house, went to the house and ate dinner and went back to the field; the rows run right up against the fence to .Bonnifields place; I plowed until sundown and got over all of that piece. Mr. Boyd was chopping cotton. Thursday afternoon; I think Thelma chopped cotton; I am not positive whether Ruby chopped cotton, but I know Thelma chopped cotton while I was plowing. On the 5th I plowed cotton, and liked about 20 rows getting through; Ruby came to the field and brought me a half gallon of water; that was on the 5th of July. When I got to the house Mr. Boyd said I could come in and eat my dinner if I wanted to; I went on up and ate dinner and started back to' the field and plowed until about four, and had some trouble with the tractor and had to- go to the house.
“Mr. Boyd, Thelma,, and Ruby were chopping cotton; I had to take the tractor apart and take part of it to town. Mr. Bowen came and asked me if I intended to ■work for him that day and Mr. Boyd said yes, so, I did. That was the 5th of July. I did not go to town because my Bud had my can; Mr. Boyd and Ruby went to town and I told them to tell Bud to let them bring my car back. They saw John and told him about it, this was on .Saturday, the 6th. On Sunday morning just before daylight Bud brought my car; I left there in a few minutes after he came, and went to B. W. Washington’s and stayed a few minutes and came up to E. L. Martin’s place on the 7th. On the same day I came back and dressed, and went to Mangum; was gone all day.
“I was arrested on the 26th_day of September, which is the last Sunday in September. I was taken to Mr. Me-Creery’s office. I am not positive about the conversation, he asked me first did I know Thelma Boyd, and did I know Ruby Boyd, and did I know Mr. Boyd, and how long I had worked there. I told them I first picked cotton there in the fall of 1928. He then asked me if I remembered coming from the field and having intercourse with Thelma, and I told him I did not. He kept on talking a few minutes and asked me if I knew Ruby Boyd, and I said yes, and he asked me if I had ever taken them any place, and I told him I drove the car some times for them; he asked me if they ever told me about parties and I told him they did not. He kept talking about Ruby, and what kind of a girl she was, and I said so far as I knew I knew nothing about her; he asked me if I had intercourse with these girls, and I studied a few minutes and said, ‘Well, yes, I have.’ He did not say any more, and looked up and said that was all. I told him the intercourse was in the kitchen.
“I never did anything out there that would make these girls suspicious of me for one moment; I always respected the family and was permitted to drive the girls to different places; I tried to do everything I could to please them. On or about the 12th day of July, I left their place about 2:30 in the afternoon; I was going to Parksville, to Mr. Boyd’s brothers, E. W. Boyd; I had received a letter from Mr. Boyd on the 12th, telling me that if I intended to come down and pick cotton he wanted me to be there by the 15th. Ruby brought the letter to the field where I ivas plowing. I made preparations to leave, and they packed my clothes and wrapped them up in a piece of paper; they were all clean. Mr. Boyd was at home at the time and so' was Thelma.
“When I came back I came around to Oklahoma City and then to Sayre, and went out to Ben Richards and stayed a few minute® and went on to' Ralph Godfries filling station, and called Mr. Boyd’s and could not get anybody. That was the 30th of September. I went on out to Mr. Boyd’s place where I stayed and went to bed, and Mr. Boyd did not come in and I went over to' Mrs. Boyd’s mother’s and asked her if she knew where Mr. Boyd was, and she said she did not, and I went back to the little house and layed down and went to sleep; one of the boys that was intending to pick cotton wanted to know the place they were going to and I told them it was down the road at the next house on the west and I layed down and one of the boys told me there were two men out there who wanted to see me. Mr. West was in the car. He did not have a warrant; he wanted to take me to town and talk to me. They brought me down here and put me in jail. When I talked to Mr. McCreery he told me this crime I was supposed to have committed along about July first.”

The cross-examination of the defendant is materially the same as his direct examination, except the defendant stated he did not tell the sheriff he had intercourse with Thelma Boyd, nor did he tell the county attorney he had intercourse with Thelma Boyd.

“The sheriff did not ask me who I had intercourse with. In the conversation he asked about Ruby and I told him I had intercourse with her twice; I did not say it was Ruby or who; I told them I did not have intercourse with Thelma. I am 24 years old; I was born in Texas in 1910; I ate in the kitchen on a cabinet; they placed things on the cabinet and passed things from one to another; I did not sleep in their home. John Richardson, Ed West and Mr. McCreery were present in the county attorney’s office.”

Effie Salyer was called by the defendant, and testified she reported the testimony at the preliminary hearing, and stated it was a true, full and correct copy of the proceedings had at the preliminary.

Thelma Boyd was recalled to the stand by the defendant and questioned as to her testimony in the preliminary, and an effort was made to- show that her testimony in the preliminary was contradicted by the statements made at the trial.

John Richardson was called in rebuttal to testify to the statements of the defendant when he was interviewed in the county attorney’s office, and in substance his testimony is the same as that of Ed West.

The foregoing is the substance of the testimony for the defendant.

The defendant in his petition in error alleges eleven errors committed by the trial court, which he deems sufficient to warrant this court in reversing his case and granting him a new trial. The defendant has at length discussed his different assignments and urges that the case should be reversed for the errors assigned.

The testimony in this case on the part of the prosecu-trix, Thelma Boyd, is positive that the defendant against her will and consent came to her bedroom and there by force had sexual intercourse with her. The witness states she was afraid to hollow, and did not for some time after the crime was committed tell any one because she was afraid of the defendant.

The testimony of Ed West and John Richardson shows they were present at the county attorney’s office shortly after the defendant was arrested and heard a statement given by him in which the defendant denied that he had raped Thelma Boyd, but stated in their presence that he had had intercourse with Thelma Boyd twice.

Without extending this opinion to any great length or setting forth the argument of the defendant in full, we hold that the testimony of the prosecutrix, Thelma Boyd, is corroborated by the statement of the defendant made in the presence of Ed West and John Richardson, and the evidence, if believed by the jury, is sufficient to' sustain the conviction. The jury by its verdict decided against the defendant and evidently believed tbe statements of tbe prosecutrix true, that tbe defendant bad intercourse with ber against ber will and consent.

Tbe testimony shows conclusively that tbe defendant was working for tbe father of tbe prosecutrix, and bad been associated with tbe family, first and last for several years, and when be was working near tbe bouse he would go to tbe bouse and get water, and that on one occasion be stated the sister of Thelma Boyd and ber father went to town and be told them to get bis car from bis brother Bud, and tbe next morning before daylight tbe brother brought tbe car to where be was living. All of tbe circumstances, and the positive testimony of tbe prosecutrix, Thelma Boyd, and the confession made by the defendant in tbe presence of Ed West and John Richardson and tbe county attorney tend to establish tbe guilt of the defendant. Tbe prosecutrix, Thelma Boyd, was under the age of 16 years at the time of tbe commission of tbe alleged crime, and tbe defendant was much older. All of tbe circumstances as well as the evidence conclusively show tbe guilt of tbe defendant. Tbe evidence is sufficient to sustain tbe conviction.

After a careful examination of tbe record, without discussing the assignments of error separately and in detail, we bold tbe errors do not possess sufficient merit to warrant this court in interfering with tbe finding of tbe jury. Tbe jury is the sole and exclusive judge of the evidence and its weight, and tbe credibility of tbe witnesses. Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352; Humberd v. State, 56 Okla. Cr. 23, 32 Pac. (2d) 954; Coats v. State, 56 Okla. Cr. 26, 27, 32 Pac. (2) 955; Clemmer v. State, 56 Okla. Cr. 354, 40 Pac. (2d) 37.

The defendant was accorded a fair and impartial trial. The instructions of the court taken in their entirety correctly advised the jury as to the law applicable to the facts. The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


source: Caselaw Access Project

author: BABEFOOT, J.

license: Public Domain

text:
    FRED C. HOLZ v. STATE.
    No. A-9174.
    June 18, 1937.
    (69 Pac. [2d] 405.)
    A. J. Stevens and C. E. Wilhite, for plaintiff in error.
    Mac Q. Williamson, Atty.' Gen., Sam H. Lattimore, Asst. Atty. Gen., and L. Z. Lasley, Co. Atty., for the State.
   BABEFOOT, J.

The facts in this case reveal that the defendant and Buby Guthrie were married at Winfield, Kan., on the 6th day of January/ 1923. They were living in- Woods county, Ohla., at the time of the marriage, and. since that time have lived in Missouri, Chicago, and in Woods county, Okla. They had two children, Fred Carl Holz, Jr., age 12, and Herman Wade, age 7. The defendant, while said marriage was in full force and effect, deserted his wife in Tulsa, during the summer of 195'5, and on October 26, 1935, married one Juanita Kassack, at Medicine Lodge, Kan., and afterwards came to Woods county, Okla., where they were living with their infant child at the time the defendant was tried, convicted, and sentenced to serve a term of five years in the penitentiary and to pay a fine of $250.

The first assignment of error by defendant is that if guilty of any crime, he is guilty of bigamy and not adultery. He insists that there should be a merger of the lesser crime into the greater, and that he should have been charged with the crime of bigamy. He argues that, because there was not introduced in evidence the marriage certificate between him and Ruby Guthrie, under the law the presumption is that there was no valid marriage between them and that the presumption further is that his subsequent marriage with Juanita Kassack was lawful. The answer to this argument is the testimony in this case. Defendant’s wife testified that she and defendant were married at Winfield, Kan., on January 6, 1923; that the ceremony was performed by a justice of the peace; that the officer had a paper in his hand at the time of the service, and that the defendant handed him something after the ceremony was performed; that they had lived together as husband and wife until defendant deserted her in Tulsa in July, 1935; that they had two children; that they had lived in Missouri, Chicago, and Oklahoma during their married life. An insurance policy was introduced in evidence showing that Ruby Holz, the wife of Fred Holz, was the beneficiary. Letters from the defendant to her were introduced in. evidence, some of them as late as 1934, in which he referred to her as his “wife” and “their children.” Also certificates showing the christening of his children while they lived in Chicago. These rites were attended by him and his relatives; his grandfather and grandmother also being present. She testified that she had never seen the marriage certificate, but the defendant told her he had it, but could not find it. Other witnesses testified to his living with her and holding her out as his wife subsequent to their marriage. Under these facts, we think it Avas unnecessary to produce the marriage certificate. Under the law and. facts in this case, even though the defendant and Ruby Holz were not legally married, they Avould be common-law husband and wife, and the defendant would not be permitted to remarry unless that marriage had been dissolved in the manner prescribed by laAV. Draughn v. State, 12 Okla. Cr. 479, 158 Pac. 890, L.R.A. 1916F, 793; Nichols v. State, 50 Okla. Cr. 409, 298 Pac. 886. Being the lawful husband of Ruby Guthrie, he could not lawfully 'marry Juanita Kassack, and his living Avith her was living in adultery.

The evidence showed they were living together in Woods county openly and notoriously and also had a child. Under the law, defendant was guilty of both bigamy and adultery. These are two separate crimes, and the fact that the county attorney chose to prosecute the defendant for the lesser crime Avas not error.

In the case of Swaneoat v. -State, 4 Tex. App. 105, the court, in a case where the facts are very similar, said:

“We hold, then, that a man and Avoman who shall voluntarily live together, or cohabit together, they not being lawfully married to each other, but one of them * * * married to some other, person, would be guilty of the crime of adultery within the. meaning of the statute.”

Also, in the case of Hildreth v. State, 19 Tex. App. 195, the court, in almost an identical case, says:

“It is contended by appellants’ counsel that, as the evidence shows that defendants married each other, and lived together as husband and wife, if guilty of any offense, they are guilty of bigamy, and cannot be convicted under an indictment charging adultery. In Swancoat v. State, 4 Tex. App. 105, this court held to the contrary, and sustained a conviction for adultery in a case where the evidence established a marriage of the defendants.
“This ruling in the Swancoat Case we adhere to as correct in principle and supported by ample authority. (Bish. on Stat. Cr., § 662.)”

Also, in the case of Owens v. State, 94 Ala. 97, 10 So. 669, the court said:

“The defendants, Joe Owens and Prudence Beatty, were convicted on the charge of living together in a state of adultery or fornication. The cohabitation was not denied, but the defendants claimed that they had been duly married.”

The record showed they had been, just as the record reveals in this case. The court, in the opinion, says:

“The offense of bigamy is complete when the second marriage is complete, without proof of subsequent cohabitation. Beggs v. State, 55 Ala. 108. The offense of adultery is not necessarily involved in bigamy, and there may be a prosecution for living together in a state of adultery, although the parties may also be guilty of bigamy. There was no error in the charge of the court on this subject.”

Chief Justice Cooley, of the Michigan Supreme Court, in the case of People v. Brown, 34 Mich. 339, 22 Am. Rep. 531, says:

“Nor can we understand of what importance it can be that there are two elements of illegality in the case instead of one, or why the party should be relieved from the consequences of violating one statute because the act of doing so was a violation of another also. The authorities sanction no such doctrine.”

In Brill’s Cyclopedia of Criminal Law, par. 1046, the rule is stated as follows:

“Bigamy and adultery growing out of a void marriage between a man and a woman, one of whom is already legally married to another, are distinct offenses, and the fact that the parties are guilty of bigamy will not prevent their prosecution for adultery.”

See, also, 2 C. J. pp. 12 and 16, §§ 2 and 14.

Other errors argued by defendant are based upon the same proposition that he could not be prosecuted for adultery, but should have been prosecuted for bigamy. The authorities cited above show the error in this contention. We have examined the case of Draughn v. State, 12 Okla. Cr. 479, 158 Pac. 890, L. R. A. 1916F, 793, relied upon by defendant, and we find that it in no way conflicts with the rule announced above. This case does not hold that the defendant could not have been prosecuted for adultery. In his brief, counsel for defendant say:

“Adultery and bigamy are two distinct offenses, and a trial and conviction in the one is not a bar to a trial and conviction in the other.”

We think this is the law, and we find no error in the record.

We have examined the instructions and think they fairly state the law in accordance with the facts in this case.

It is finally contended that- the punishment inflicted in this case is too severe. The defendant was given a sentence of five years in the penitentiary and a fine of

$250. The defendant deserted his wife and children after living with them, for a period of 12 years; he made no pretense to secure a divorce, but premeditatedly married a young girl and caused her to become the mother of a child. He seemed to- have no regard for the law of the land, or no regard for the shame and disgrace he inflicted upon others. He brought this young girl to live close to the neighborhood where he had lived with his wife and children. The jury in his own county weighed these matters and assessed his punishment.

We do not think, under the circumstances, that the punishment was excessive, and the judgment of the district court of Woods county is therefore affirmed.

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


author: DOYLE, J.

text:
    CARL DEWEESE v. STATE.
    No. A-9340.
    June 18, 1937.
    (69 Pac. [2d] 404.)
    Watts & Watts, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and E. J. Broaddus, Co. Atty., for the State.
   DOYLE, J.

The plaintiff in error, Carl Deweese, was convicted in the district court of Wagoner county of assault with a dangerous weapon, and in accordance with the verdict of the jury was. sentenced to confinement in the county jail for a term of three months. From the judgment rendered on the 25th day of November, 1936, an appeal was perfected by filing in this court on May 25, 1937, a petition in error with case-made.

Since the appeal was taken'and before the final submission of the case the plaintiff in error departed this life, as shown by the motion of his counsel of record filed in this court June 3, 1937, averring that on May 27, 1937, he was killed in an automobile 'accident near Alice, Tex.

To which motion is attached the following:

“I hereby accept service of copy of the foregoing suggestion of death of plaintiff in error and agree that same states the facts.
“This the 2nd day of June, 1937,
“E. J. Broaddus, County Attorney,
“Wagoner County.”

In a criminal prosecution,’, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that the plaintiff in error died pending the determination of his appeal, the cause will be abated. Yota v. State, 10 Okla. Cr. 26, 133 Pac. 257; Martin v. State, 38 Okla. Cr. 309, 260 Pac. 780.

It is therefore considered, adjudged, and ordered that the proceedings in the above-entitled cause be abated; cause remanded, with direction to the trial court to enter its appropriate order to that effect.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    RAY DENTON v. STATE.
    No. A-9169.
    June 18, 1937.
    (70 Pac. [2d] 135.)

      Wilson & Porter, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and A. Clark, Co. Atty., for the State.
   BAREFOOT, J.

(after stating the facts as above). In this case a motion was made by defendant, before the trial, to suppress the evidence obtained by reason of the search warrant. This motion was presented and evidence offered thereon prior to the trial. The same was overruled and defendant excepted to the ruling of the court. It is contended by defendant: (1) That the affidavit was insufficient upon which to base the issuance of the search warrant, and the defendant having not waived his right to search his premises without a search warrant, the search was illegal and void; (2) that the search warrant was not served on the defendant as required by the statute; (3) that the search warrant was not addressed to an officer of Ottawa county as required by law; (4) that the search warrant was attempted to be executed in the nighttime and that the search warrant did not direct that it be so executed.

An examination of the opinions from this court, the federal courts, and the Supreme Courts of many states, reveals many seemingly conflicting opinions upon the issuance, service, and return of search warrants. Many of them are conflicting upon the very questions involved in this case.

It is our desire, in this opinion, to discuss the issuance and execution of search warrants so' that hereafter it may he possible for the officers in this state to know just what is necessary in the securing and execution of a search warrant. The cases from this and other states have many times called attention to the fact that the issuance and execution of a search warrant is far more sacred to the citizens of this state than the arrest and conviction of some one individual. This is especially true where the warrant is executed for the search of the home of the citizens of this state.

With the enactment of the prohibition laws the state and federal governments, have gone a long way by special statutory enactment in giving to officers the right of search and seizure, and have extended the same so that the home of the individual may be entered and searched. There were many years after the enactment of the federal Constitution that no such legislation could have passed the federal Congress, nor could it have been enacted by the Legislatures of the several states. The people knew of the uncalled for searches and seizures of the British government against the citizens of this country, hence the enactment of the Fourth Amendment to the Constitution of the United States. But with the passing of time a few of our citizens seem to forget the sacredness of their home and fireside, and, in their eagerness to make money and in an effort to defeat the law, they have degraded their homes by bringing liquor and other instruments of crime therein for the purpose of using, them in violation of the laws of this country, thereby hoping to receive protection through the sacred right of forbidding their, homes to be searched, under the terms of the Constitution. Recognizing this evil on the part of the few, our governments, both state and federal, have, as we stated before, gone a long way in permitting even the home to be searched, and especially where it is being used as a place of public resort, and for the storing of intoxicating liquor to be used for unlawful purposes. The rights of the many have been made to' suffer for the sins of the few. The courts of our country, although they have ever been the guardian of the personal rights of the individual, have upheld these laws. They have also gone a long ways in holding constitutional these laws to' the end that the criminal minded of this country might not go unpunished. But these same courts, not only in this state, but in the nation, have uniformly held that the law which took away these sacred rights should be strictly construed, and that the officer who was given the power to issue the search warrant and to him who executed it should do so only in the manner and form as provided by the statute. We think this is entirely proper, yet enthusiasts often criticize the court for doing the very thing that protects them in the most sacred principle vouched for in the federal and state Constitutions.

The law should not be so interpreted that an individual might be punished, yet by the same principle many innocent and law-abiding citizens suffer the humiliation and inconvenience of illegal search and seizure. The laws of this state and the decisions of the courts have afforded ample opportunity for the detection and punishment of those who violate the prohibition liquor laws. But at the same time these courts have ever kept in mind that certain inalienable rights of the individual citizen are to be regarded as the very essence of constitutional liberty and these fundamental, rights are as imperative in this country as are the right to trial by jury, the writ of habeas corpus, and due process of law. Especially are these rights due the citizens of this state in the protection of their homes and automobiles. There will be times when certain of our citizens will violate the law through this protection, and some may go unpunished, but it is better this than that a principle be established where many of our citizens may suffer the humiliation and hardship of having their home and automobile illegally searched by an overzealous officer. We do not mean to criticize the zealous officer in. the enforcement of this law. He is to be commended., He will follow the law. He will see that his search warrant is properly secured and properly executed, and there will be no desire on his part to turn this warrant, which is his protection, into an instrument to destroy the liberty of the law-abiding citizen which is guaranteed him by the state and federal Constitutions.

The officers of this state ought to be the first to uphold the courts in the enforcement of these fundamental rights. The procuring of a search warrant is an easy matter. It ought not to be secured in a haphazard way and served in a reckless disregard of the rights of the individual citizen. No more power or force should be used than is necessary to properly execute the warrant. Yet, if there is resistance, the officer should use such force as is necessary to carry out his mandate, and in doing this he is fully protected by his warrant if it is properly issued. It is, therefore, to his protection that the warrant be in proper form.

'The county attorneys of this state, and no doubt many of them have already done so, should bring before them the sheriff and his deputies and also other peace officers of their county and explain to them in detail the necessity of a search warrant, the proper manner for the issuance, and the manner in which it should be executed and returned. The terms of the statute should be followed. This practice would cause many cases to be affirmed instead of reversed and would save their counties additional costs and would at the same time protect the officer and the individual citizen in their respective rights.

The first question for consideration under the first assignment of error is: Was the affidavit sufficient to sustain the court in issuing the search warrant? It will be noted that the affidavit in this case is positive in its terms “that said building is a place of public resort, and said residence is used as a place for storing intoxicating liquors.” This court has heretofore held in several cases that, where the affidavit is positive in its terms, this is sufficient to give the court jurisdiction and that the defendant will not be permitted on a motion to suppress the evidence to go behind the positive statement contained in the affidavit and prove that the person making the affidavit had no personal knowledge of the facts alleged therein, but was acting on information and belief. Phillips v. State, 34 Okla. Cr. 52, 244 Pac. 451; Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785; Drummonds v. State, 45 Okla. Cr. 278, 283 Pac. 263; Bowen v. Commonwealth, 199 Ky. 400, 251 S. W. 625; Alvey v. Commonwealth, 199 Ky. 655, 251 S. W. 856; State v. English, 71 Mont. 343, 229 Pac. 727; People v. Haas, 79 Mich. 449, 44 N. W. 928; Potter v. Barry, Circuit Judge, 156 Mich. 183, 120 N. W. 586.

We are therefore of the opinion that the affidavit was sufficient for the officer to issue the search warrant for the reason that the statements made therein were positive. But in this connection and for future guidance we will say we think it is very much better practice to state in the affidavit the very facts upon which the information is based so the officer may have this information before the warrant is issued. The statute ( Okla. ¡St. 1931, § 3226 [22 Okla. St. Ann. § 1226]) gives the form of the search warrant which should be followed. -See, also, Cornelius on Searches and Seizures,- pp. 802, 303, and 307, where forms of both the affidavit and search warrant were approved from different states. It will be noted that in all of these forms the statement of facts is included in the affidavit to secure a search warrant. We also call attention to the case of McHenry v. State, 61 Okla. Cr. 450, 69 Pac. (2d) 90, in which there is set out an affidavit to procure a search warrant. It will be noted in this case the particular facts are set forth in the affidavit which justified the issuance of the warrant. In the instant case the officer, when testifying at the trial, testified to certain facts within his own personal knowledge which would have justified the issuance of the warrant. These facts should have been stated by him in the affidavit. Sec. 3224, Okla. Stats. 1931 (22 Okla. St. Ann. § 1224); Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629; Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545; May Vice v. State, 36 Okla. Cr. 18, 251 Pac. 509; Whitehead v. State, 28 Okla. Cr. 193, 230 Pac. 291.

The next question presented under the first assignment of error is : Did the defendant, when informed by the officers that they had a search warrant for the purpose of searching his premises, and his home, by making the statement, “That is fine and dandy, come right ahead,” waive his constitutional right and thereby permit the officers to search without a warrant? This question has been before this court many times, and, while there may seem to be some conflict in the decisions, we have examined all of the cases, and it is our conclusion that the states ment expressed in the case of Smith v. State, 34 Okla. Cr. 434, 246 Pac. 1109, 1111, best states the law as it should be when the court says:

“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 the above case the defendant, on being told by the officer he had a search warrant, replied: “Go ahead and search; there is no whisky here.” The court held that this did not constitute a waiver on her part of the right to have a search warrant issued before her premises were searched.

In the case of Herron v. State, 39 Okla. Cr. 346, 265 Pac. 147, 148, the officer said, “I have a search warrant,” and the defendant replied: “You don’t need it for me,” held not a waiver.

In the case of Thomas v. State, 40 Okla. Cr. 98, 267 Pac. 278, the defendant, upon being informed by the officers that they had a search warrant, replied: “All right, go ahead and search.” It was held that this was not a waiver of his constitutional rights and was not to be construed as an invitation to search his premises, but rather as a statement of the defendant that he did not intend to resist search under the search warrant.

See, also, Shockley v. State, 35 Okla. Cr. 437, 251 Pac. 514, where defendant said: “ ‘It was all right to go ahead/ and Ave did.” Wilkerson v. State, 37 Okla. Cr. 43, 256 Pac. 63; Wilson v. State, 38 Okla. Cr. 409, 262 Pac. 501.

Not only has this court held that such expressions as those made by the defendant in this case do not constitute a Avaiver, but federal courts have announced the same construction upon almost the identical language. In the case of United States v. Rembert (D. C.) 284 F. 996, 998, Judge Hutcheson, who is now on the Fourth Circuit Court of Appeals, 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 Con-titution (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 laAV 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 loath 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.”

In Salata v. U. S., 286 F. 125, 127, the Circuit Court of Appeals of the 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, Beil-stein, 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.” Amos v. U. S., 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; United States v. Kelih (D. C.) 272 F. 484; Dukes v. U. S. (C. C. A.) 275 F. 142.

Other courts have passed upon this question in a similar manner. Meno v. State, 197 Ind. 16, 148 N. E. 420; State v. Lock, 302 Mo. 400, 259 S. W. 116; Morton v. State, 136 Miss. 284, 101 So. 379; Smith v. State, 133 Miss. 730, 98 So. 344; People v. Reid, 315 Ill. 597, 146 N. E. 504; State v. Luna (Mo. App.) 266 S. W. 755.

We are therefore of the opinion that defendant did not waive his constitutional right to have his premises searched without a valid search warrant when he said, “That is fine and dandy, go right ahead,” but rather that this-statement on his part had the meaning that he didi not intend to resist the officer in the execution of the warrant under his official duty. Not having waived his right to have his premises searched without a valid search warrant brings us to the next question raised by the defendant in this case: Was the search warrant properly served? The evidence of the officer who secured and served the warrant was as follows: Percy Boyd, a witness for the state, testified:

“Q. Mr. Boyd, when you procured these search warrants for this Spanish Village, what did you do? A. Put them in my pocket. Q. What did you do then? A. I served them that night. Q. How did you serve them? A. I went down there and told Ray I had a search warrant and he said: ‘That is just fine and dandy, come right ahead.’ Q. You didn’t serve him with one? A. He didn’t want me to. Q. You didn’t give him one? A. I had it in my hand. Q. Did you put a copy of the search warrant around there any place? A. I had it in my hand. Q. Did you read it to him? A. Would have to catch him first. Q. You did catch him in the cafe? A. Yes, sir. Q.. But you are positive you did not deliver to him personally a copy of this warrant, or anyone else? A. No, I never delivered it to him. I could have. Q. You didn’t read this search warrant to him? A. He didn’t want it read. Q. Then you started to read it to him? A. He said ‘That is fine and dandy.’ Q. You just told him you had a search warrant? A. Yes, sir. Q. Did you show him it was a search warrant? A. He knew it was. Q. Did you show him it was? A. I could have. Q. Did you let him read it? A. I could have. Q. He just knew what you told' him? A. That was plenty for him.”

It will thus be seen that there was no attempt on the part of the officer to deliver a copy of the warrant to the defendant. He, no doubt, was relying on the statement of the defendant to “go ahead” and the fact that they were officers, to search the premises of the defendant. The statute of this state, section 2635, Okla. Stats. 1931 (37 Okla. St. Ann. § 84), provides:

“A copy of said warrant shall he 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.”

It will be noted from the above testimony that no effort was made by the officer to comply with this section of the statute. The purpose of the statute is that the defendant may have a copy of the warrant so he may examine the same and know that it has been issued by one who has authority and that it is in proper form as shown by the authorities heretofore cited. The defendant is entitled to this right and is entitled to have the law complied with by the officer making the search.

Some cases have held that a statement such as made by the defendant in this case is a waiver of the right to have a copy of the search warrant delivered ü> him, but we believe that the best reasoning and a great majority of the cases hold that when the statute provides that a copy shall be delivered to the defendant, that it means what it says, and that the officers should deliver to the defendant a copy of the warrant when the search is made. If there be a conflict in the testimony as to whether a copy was delivered, this should be decided by the trial court on motion for new trial, and his decision in passing upon the question of fact would be final.

In 56 Corpus Juris, p. 1242, it is said:

“■Statutory provision for delivery of copy of warrant and receipt for property after seizure of property under the warrant to the person, from whom the property was taken or in whose possession it was found, has been construed both as a directory requirement, and as a mandatory requirement.”

The cases cited under this heading are all federal cases and have to do with the construction of the National Prohibition Act (27 U. S. C. A.). In the Search Warrant Act it is provided :

“Sec. 12. When the officer takes property under the warrant, he must give a copy of the warrant together with a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose possession it was found; or, in the absence of any person, he must leave it in the place where he found the property.
“Sec. 13. The officer must forthwith return the warrant to the judge or commissioner and deliver to him a written inventory of the property taken, made publicly or in the presence of the person from whose possession it was taken, and of the applicant for the warrant, if they are present, verified by the affidavit of the officer at the foot of the inventory and taken before the judge or commissioner at the time, to the following effect: % R. S., the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on the warrant.’ ” 18 U. S. C. A. §§ 622, 623.

It will be noted that the provisions of our statute and that of the federal statute are somewhat similar, but the Oklahoma statute says:

“A copy of said warrant shall be served upon the person or persons found in possession of any such liquors,” etc.; while the federal statute provides: “When the officer takes property under the warrant, he must give a copy of the warrant together with a receipt of the property taken * * * by him.”

The Oklahoma statute uses the word “serve”; the federal statute “give.” If there is to he any distinction, we would certainly say that the word “serve” would be stronger than the word “give.” The federal cases are in conflict in construing the statute.

The case of Giacolone v. United States (C.C.A.) 13 F. (2d) 108, 109, says:

“If the search warrant was valid and the original entry lawful, we cannot agree with the contention that the search was rendered unlawful by the mere failure of the officers to leave a copy of the warrant and a receipt for the property taken, or by the destruction of a large portion of the property found on the premises. United States v. Clark (D. C.) 298 F. 533 [535]; United States v. Old Dominion Warehouse (C.C.A.) 10 F. (2d) 736.”

This case cites the case of United States v. Clark (D. C.) 298 F. 533, which supports the position taken in the Giacolone Case, but deals mostly with the return of the officer and the giving of the receipt. The case of United States v. Old Dominion Warehouse (C.C.A.) 10 F. (2d) 736, cited does not discuss the matter of the service of the search warrant. In the case of Gandreau v. United States (C.C.A.) 300 F. 21, the officer testified that he gave a copy of the warrant to the defendant at the time of the search. The government was permitted to amend the return of the officer at the time of the hearing showing this fact. We think this might be done under our statute upon a proper showing. In the case of United States v. Gaitan (D. C.) 4 F. 2d 848, from the Southern District of California, the court says that he sees no error by failure to deliver a copy of the warrant after a valid entry into the premises and search of the same. In the case of United States v. Kaplan (D. C.) 286 F. 963, there is a full and complete discussion of the different provisions of the federal act, and while the court says that he does not think that a failure to comply with sections 12 and 13 would invalidate the warrant, that these acts are merely ministerial and only the officer would be liable in damages for a failure to comply with them. The argument in this case was that every section of the statute should be complied with and then, when the court made the above statement, he was thinking mostly of the return of the officer on the receipt and not the service of the copy of the warrant on the defendant.

In the case of Giles v. United States, 284 F. 208, 215, the Circuit Court of Appeals of the First District said:

“The return was also defective, inter alia, in that it does not show that ‘a copy of the warrant together with a receipt for the property taken (specifying it in detail)’ was given to the person from whom the property was taken as required by section 12, supra.”

In the case of Murby v. United States, 293 F. 849, 852, the same court says:

“While in this warrant, supra, there is no express direction to the officer to give (or leave) such copy and receipt (plainly the better practice, Giles v. United States (C.C.A.) 284 F. 208, 215), there is a direction to the officer ‘to do and report concerning the same as the law directs.’ This direction was enough, but the return does not ‘report’ that the officer did ‘as the law directs.’ If, in fact, this provision (section 12) was complied with, the return should have shown it — affirmatively. If it was not complied Avith, the search warrant proceedings were void, and the evidence obtained thereby inadmissible. Paine v. Farr, 118 Mass. 74; Kent v. Willey, 11 Gray (Mass.) 368, 373; Gibson v. Holmes, 78 Vt. 119, 121, 62 A. 11, 4 L. R. A. (N. S.) 451; Turner v. Lowry, 2 Aikens (Vt.) 72, 75; Tubbs v. Tukey, 3 Cush. [Mass.] 438, 440, 50 Am. Dec. 744.
“Nowhere in this record, is there anything to indicate compliance Avith this essential requirement of the statute. The presumption from the omission in the return is that it was not complied with. Besides, at the trial, although seasonable objection was made that the record failed to show compliance with section 12 — no motion was made to amend the return in this respect. United States v. Kraus [D. C.] 270 F. 578; Rose v. United States [C.C.A.] 274 F. 245.
“The result is that the district court erred in admitting evidence of proceedings under the search warrant and concerning the liquor and containers seized. Cf., also, Hussey v. Davis, 58 N. H. 317; State v. [Spirituous] Liquors, 68 N. H. 47, 40 A. 398; State v. Whalen, 85 Me. 469, 472, 27 A. 348; Guenther v. Day, 6 Gray (Mass.) 490; Robinson v. Richardson, 13 Gray (Mass.) 454, 456, 458.
“This is enough to dispose of the case. It is therefore unnecessary, and Ave think undesirable, for us now to discuss and state conclusions on the other points argued as to the search warrant proceedings. It is enough to express our disapproval of the loose and careless practice out of Avhich these questions arise, and to repeat — what in effect we have already stated' — that if commissioners perform their duty of careful and conscientious compliance with the plain provisions of the Espionage Act [18 U. S. C. A. § 611 et seq.], no such problems as are now presented will hereafter arise in this circuit.”

In the case of United States v. Yuck Kee (D. C.) 281 F. 228, 231, the court says :

“In view of the foregoing, it would seem unnecessary to determine whether the issuance, service, and execution of the search warrant in the case at bar were governed by title 11 of the Espionage Act, or by the common law. The requirements of both are the same. Examining the facts in the case at bar in the light of these requirements, we find that there was no foundation laid for a search warrant allowing a search in the nighttime, yet the warrant so directed and the search and seizure were in fact so made-We find, further, that no copy of the search warrant was left with the person in possession; that no receipt was given for the goods taken. We find, further, that no inventory under oath was returned to the United States commissioner. Under this state of facts I am forced to the conclusion that the search warrant in the form in which it was issued was unauthorized and that, even if it had been issued in proper form, yet it was not legally served and executed.”

See, also, Evans v. State, 54 Okla. Cr. 83, 14 Pac. (2d) 691; Key v. State, 43 Okla. Cr. 450, 279 Pac. 931; Seizure of Russo’s Liquors, 189 App. Div. 109, 178 N. Y. S. 303; In re Ingalls, 77 Misc. 447, 137 N. Y. S. 780; People v. Wicka, 117 Misc. 364, 192 N. Y. S. 633.

The next question: Is it necessary that the search warrant be directed to an officer “in the county” where the search was made, or may it be addressed to any sheriff, constable, marshal or policeman in this state? The statute of this state, section 3225, O. S. 1931 (22 Okla. St. Ann. § 1225), provides:

“If the magistrate be thereupon satisfied of the existence of grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him, with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate, and also to arrest the person in whose possession the same may be found, to be dealt Avith according to law.”

Section 3226, O. S. 1931 (22 Okla. St. Ann. § 1226), provides:

“The warrant must be in substantially the following form:
“County of-.
“In the name of the State of Oklahoma. To any sheriff, constable, marshal or policeman in the county of -”

It will thus be noted that the statute specifically states that the warrant should be directed to an officer of the county.- If it is to be, then why should it not be directed to an officer of the county in which the search is to be made as the statute directs? Why should this clear provision of the statute be held to- be directory? If it is to be so held, why should this provision have been placed in the statute? If the warrant is directed to- any officer in the state it would be possible for the sheriff, constable, marshal, or policeman of one county to search the premises of a distant county, a people wlm had not elected him to office and to whom he owed no obligation.

In our opinion, this was the very reason that caused the Legislature of this state to enact this statute directing that the search warrant should be directed to an officer of the county where the search was to1 be made. It is not sufficient to say that the warrant was executed by a proper officer, as in the instant case. All of the authorities hold that the warrant should be executed by the officer to whom it is directed. Section 8227, O. S. 1931 (22 Okla. St. Ann. § 1227), provides:

“A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer, on his requiring it, he being present, and acting in its execution.”

This court, in the case of Bishop v. State, 47 Okla. Cr. 249, 288 Pac. 368, 364, passed upon this identical question and held that, where a search warrant was directed: “The state of Oklahoma, to any sheriff [constable], marshal or policeman,” and was not directed to an officer in the county where the search was to be made, was error and) the case was reversed. The court seemed to base this opinion upon the fact that the statute requires the search warrant to run in the name of the state and is process under the statute. While this may not be the best reason for the rule, yet we think the conclusion reached is proper and that the warrant was not in proper form because it was not directed to an officer of Ottawa county. As directed, any officer in the state could have served this warrant and made return thereon. We do' not think the lawmaking power of this state so intended.

It is next contended that the search warrant nowhere provided that it should be served in the nighttime. Section 3280, O. S. 1931 (22 Okla. St. Ann. § 1230), provides :

“The magistrate must insert a direction in the warrant that it be served in the daytime, unless the affidavits be positive that the property is on the person, or in the place to be searched. In which case he may insert a direction that it be served at any time of the day or night.”

It will be noted that the search warrant in the instant case had the words “in the daytime” in the printed form and these words were stricken by the justice of the peace who issued the warrant, but it nowhere directed that it be served “in the nighttime.”

If this was the only error, we would not reverse this case for the reason that by striking out the words “in the daytime” shows an intention that it be served in the “nighttime,” and the affidavit, being positive, gives the right under the statute for it to be served in “the nighttime,” but we will say that it is certainly the best practice for the officer issuing the search warrant to give the direction therein that it be served in the “daytime” or “nighttime,” where the affidavit is positive. This is in accordance with the authorities of all courts, both federal and state. 24 R.C.A. p. 708, § 11; Cornelius on Search and Seizure, p. 369, § 148; 56 C. J. p. 1240, § 159; Giles v. U. S. (C.C.A.) 284 F. 208; U. S. v. Yuck Kee (D. C.) 281 F. 228; U. S. v Borkowski (D C.) 268 F. 408; U. S. v. Kaplan (D. C.) 286 F. 963.

For the reasons above stated, it is our opinion that the court should have sustained the motion to suppress the evidence obtained under the search warrant, and the same is reversed.

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


author: BESSEY, P. J.

text:
    G. L. ESTES v. STATE.
    No. A-5310.
    November 16, 1925.
    (239 Pac. 606.)
    Arrington & Evans, for plaintiff in error.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

G. L. Estes, plaintiff in error, defendant below, was convicted in the superior court of Pottawatomie county of a violation of the Blue Sky Law, with the punishment assessed at a fine of $250.

The record discloses that the defendant, at a preliminary examination before a justice of the peace on November 13, 1922, was ordered held for trial in the district court of Pottawatomie county, on a charge of violating the Blue Sky Law; that the justice of the peace prepared and filed with the clerk of the district court a transcript of this preliminary examination; that the defendant thereupon gave bond for his appearance in the district court to answer to said charge. No information was filed in the district court, or in any court, until more than 16 months thereafter, -when an information was filed in the superior court of Pottawatoihie county. Thereafter, on April 8, 1924, the defendant filed a motion to quash this information, stating that he had been placed under bond to answer the charge in the district court, and that no order of transfer had been made and that the superior court was therefore without jurisdiction, and further stating that no information had been filed for more than 16 months, and that more than one term of court had elapsed in the interval, and that the prosecution based upon the preliminary hearing had been abandoned.

This motion to quash was by the court overruled, and the defendant was put'upon trial, convicted, and sentenced as before stated.

The Attorney General, with the approval of the county attorney of Pottawatomie county, has filed a confession of error in this court to the effect that the superior court was without jurisdiction to try the cause, under the circumstances set out. This confession of error is well taken. Section 3116, Comp. Stat. 1921. Wilson v. State, 5 Okla. Cr. 367, 114 Pac. 1126.

The cause is therefore reversed, with instructions to dismiss.

DOYLE and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    HENRY MACK, JR., et al. v. STATE.
    No. A-6643.
    April 13, 1929.
    (274 Pac. 903.)
    D. K. Cunningham, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the 'State.
   PER CURIAM.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Kingfisher county on a charge of grand larceny and were each sentenced to serve a term of three years in the state penitentiary.

The judgment was rendered in April, 1927, and the appeal lodged in this court in June, 1927. NO' briefs in support of the appeal have been filed and no appearance for oral argument was made at the time the case was submitted.

The defendants are charged with the larceny of wheat of the value of $23.80. This wheat, the property of the Oklahoma Milling Company, was taken from their elevator in the town of Kingfisher. Defendant Mack was not present at the time of the taking, hut assisted in the asportation of the wheat from Kingfisher to the town of Dover and shared in the proceeds. One Roger Menfield, a youth of 20 years, also a party to the larceny, pleaded guilty and testified for the state. There is ample corroboration of his testimony. No reason to disturb the judgment is made to appear.

The case is affirmed.


text:
    VERNON SMITH v. STATE.
    No. A-9277.
    June 18, 1937.
    (69 Pac. [2d] 671.)

      John W. Whipple, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Vernon Smith, was convicted upon an information charging him with the unlawful possession of five gallons of whisky, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 60 days and to pay a fine of $75.

The undisputed facts are that Sheriff Bocock, together with three other officers, on October 17, 1936, in executing a search warrant, searched the house of the defendant in the city of Stillwater and found a 5-gallon keg of whisky buried in the ground under the floor of a bedroom in the house. Attached to the keg was a half-inch gas pipe, coming up through a two 'by six under the' floor, and inside this pipe there was a rubber hose. The sheriff asked the defendant to tell him how he got it in there, and that he would try to keep from destroying the property, the defendant answered: “He did not know it was under there” and “To get it out the best way you can.”

The 5-gallon keg and the iron gas tube were offered in evidence as exhibits.

This was all the testimony in the case.

No testimony was given by tbe defendant or by any witness in Ms behalf.

At the close of the testimony on the part of the state, counsel for defendant interposed a demurrer thereto, and moved the court to instruct the jury to return a verdict of not guilty for the reason there was not sufficient proof of the commission of the offense charged.

It is urged that there is error in instruction No. 7 in which the court instructed on the presumption arising from possession of intoxicating liquors and stated “that the having and keeping in excess of one quart of any spirituous, vinous, fermented or malt liquor, shall be deemed prima facie evidence of an intention to convey, sell, or otherwise dispose of said liquor.”

Counsel in his briefs says:

“This was not the law at the time this case was tried and to attempt to define the law as the court did in instruction No. 7, was misleading and prejudicial to the legal and constitutional rights of the defendant,” quoting section 2625, O. S. 3931 (37 Okla. St. Ann. § 32). Citing Crowdis v. State, 59 Okla. Cr. 297, 58 Pac. (2d) 154.

Instruction No. 7, given by the court, was based upon section 3, chapter 153, Session Laws 1933 ( 37 Okla. St. Ann. § 82), entitled:

“An Act defining Intoxicating and Non-intoxicating Beverages; amending sections 2618, 2626, 2627, Oklahoma Statutes, 1931; * * * repealing all Laws in conflict therewith and ordering a Special Election to be held on the 11th da.y of July, 1933, for the express purpose of referring said Bill to a vote of the People and prescribing the procedure therefor.” 37 Okla. St. Ann. § 151 note. At which election said act was approved.

Section 3 of said act (37 Okla. St. Ann. § 82) provides:

“Section 2626. The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, or any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contain more than three and two-tenths (3.2%) per cent, for alcohol,, measured by weight and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States, or in any manner permitting any other person to have or keep any such liquors in or about his place of business or his residence, or any place of amusement, or recreation, or any public resort, or any club room; provided, however, that the foregoing provision of this section shall not apply to bonded apothecaries, druggists, or pharmacists, as to alcohol purchased by them pursuant to the rales and regulations promulgated by the government in accordance with the provision of the laws of this state; or the keeping in excess of one quart of spirituous, or one quart of vinous, or more than one quart of any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contain more than three and two-tenths (3.2%) per cent.- of alcohol, measured by weight, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors; provided further, that this section shall not be construed in any way to legalize the keeping of any liquors for unlawful purposes irrespective of the amount.”

The courts hold that existing rules of evidence may be changed at any time by the lawmaking power when exercised within constitutional limitations. The Legislature has frequently changed the rules of evidence and declared that certain facts when shown shall constitute prima facie evidence of guilt. -With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon a consideration of the evidence. In the determination of that question, they are required by the statute to- consider the keeping of a certain amount of intoxicating liquors as prima facie evidence of an unlawful intent. But that evidence may be rebutted by other evidence in the case, whether shown by evidence on the part of the defense, or by the state in connection with the evidence proving the possession. With such evidence, the jury musk also take into consideration the presumption of the innocence of the accused until the contrary is proved beyond a reasonable doubt. It does not change the rule in all criminal cases that, “before- a conviction can be had, the jury must be satisfied from the evidence beyond a reasonable doubt of the affirmative of the issue presented in the accusation that the defendant is guilty in the manner and form as charged in the indictment or information.” 3 Rice on Ev. par. 259, and cases cited; Caffee v. State, 11 Okla. Cr. 485, 148 Pac. 680; Sellers v. State, 11 Okla. Cr. 588, 149 Pac. 1071.

It follows that instruction No. 7 given by the court based upon the foregoing section correctly stated the rule applicable to this statute.

It was urged below, and is insisted here, that the evidence on the part of the state was not sufficient to support the verdict.

Under the provision of the act, section 3 above quoted declaring that the keéping in excess of one quart of any spirituous, vinous, fermented, or malt liquors, “which contain more than three and two-tenths (3.2%) per cent, of alcohol, measured by weight and which is capable of being used as a beverage, * * * shall be prima facie e-vi-deuce of an intention to convey, sell or otherwise dispose of such liquors,” evidence of such possession is sufficient to establish the unlawful intent, unless rebutted, or the contrary proved, yet it does not make it obligatory upon the jury to convict after the presentation of such proof, whether or not such evidence is sufficient to overcome the presumption of innnocence of a defendant, and to establish his guilt beyond a reasonable doubt, when all the evidence including the presumptions are considered, is for the determination of the jury.

The term “prima facie evidence,” as used in the statute, is that degree of proof which, unexplained or uncon-tradicted, is sufficient in the absence of evidence to the contrary, to establish the unlawful intent if it be credited by the jury.

It is obvious that this case was one for the jury, as the uncontroverted testimony was that five gallons of whisky were found in the possession of the defendant, and the presumption of unlawful intent was undisputed.

The motion for a directed verdict of not guilty was properly denied.

Finding no error in the record, the judgment is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    CARL PRUITT v. STATE.
    No. A-9132.
    June 25, 1937.
    (70 Pac. [2d] 129.)

      Brett & Brett, or plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Ralph K. Jenner, Co. Atty., for the State.
   BAREFOOT, J.

The defendant and Ernest Hankins were charged jointly with the larceny of two mules in Choctaw county. A severance was taken and the defendant tried separately. He was convicted and sentenced to serve a term of eight years in the penitentiary, and has appealed.

The record reveals that A. L. Calfee was the owner of two mules; one an iron gray mare mule, the other a black mare mule; that just prior to the 20th. day of November, 1934, his mules were turned into a pasture adjoining his home in Choctaw county. When he went to look for them, they were gone. After several days of searching, he found where the mules had been loaded into a truck or trailer at a sand pit in an adjoining pasture. The proof showed that the mules were transported by the defendant, in a trailer, in the nighttime, and sold in the town of Stigler. The defendant was accompanied by a negro boy on this trip, and the defendant admitted that he helped to load the mules and transported them to the town of Stigler where they were sold.

It is useless to give all the circumstances surrounding the larceny of the mules. It was the contention of the defendant that he had purchased them from his code-fendant, Ernest Hankins, and did not know they were stolen. The jury heard his defense, but did not believe it, and the defendant was convicted.

The only error complained of by defendant is that the judge who tried this case was prejudiced against him and refused to disqualify, for the reason that the defendant had hired his son to defend him and some controversy had arisen between them and the son had refused to defend him, and that there was enmity existing between the defendant and the son of the presiding judge, and that by reason thereof the presiding judge should have disqualified himself in this case.

The record discloses that the information was filed against the defendant on March 13, 1935, and he was arraigned April 2, 1935, and entered a plea of not guilty. The son retired from the case during the summer of 1935, and the motion to disqualify the presiding judge was not filed until the case was called for trial on November 7, 1935, and this was done by the attorney for the defendant dictating into the record the following motion:

“Comes now the defendant, Carl Prnitt, and moves the Court that the Honorable Geo. E. Childers, presiding as District Judge, certify his disqualification in this action on account of his prejudice against this defendant, Carl Pruitt, and in support thereof states that heretofore the Honorable Wayland Childers, the son of the Honorable Geo. E. Childers, ivas employed by this defendant as his attorney, and that a serious controversy arose between the said Wayland Childers and this defendant, Carl Pruitt, concerning! the fee and the payment of the same, and that thereby arose a considerable hard feeling between them, and that they have had considerable discussion and controversy over those facts, and this defendant feels on account of those facts that the Honorable Geo. E. Childers has a feeling of ill will towards him and should certify his disqualification in this case. It is agreed that the oral motion may be considered and that the filing of written motion is waived. It is agreed that the dictated motion may be considered as written and filed.”

Defendant, testifying in support of this motion, says:

“Q. Did any controversy come up between you and Mr. Childers after that? A. Yes, sir. Q. How long after this? A. It was this summer. Q. Did you have any argument with him about your fee? A. Yes, sir. Q. Did he later quit your case, or was discharged by you? A. He quit me and quit speaking to me. Q. Did you have words about it? A. Yes, sir. Q. Had a heated argument? A. Yes, sir. Q. And ill feeling between you? A. Yes, sir. Q. You now feel that on account of that Judge Childers should not try-your case? A. Yes, sir. Q. Wayland Child-ers is the son of Judge Childers? A. Yes, sir. Q. And a practicing lawyer at Idabel? A. Yes, sir., By the Court: The motion is overruled for the reason that I knew nothing of the argument. Exception allowed.”

What is necessary to disqualify a trial judge under the law is set forth in Oklahoma Statutes 1931, § 2915 (22 Okla. St. Ann. § 575), which is as follows:

“Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure SO' to do within three days before said cause is set for trial,, application may be made to the proper tribunal for mandamus requiring him so to do.”

From a reading of the above statute, it will be noted there was no attempt to comply with its terms. The statute requires the filing of a written application setting forth the facts upon which the claim is made, that the judge is disqualified, and if the judge so finds, he should so certify. The opposite side is to be given reasonable notice. If the judge fails to make his certification within three days before the cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do. It has been held by this court that the Criminal Court of Appeals is the proper court for such application in criminal cases. See Brown v. State, 6 Okla. Cr. 442, 119 P. 447.

In the instant case, there was no attempt to give the notice required by the statute. The application was not made to the trial court until the very day the case was set for trial, although the record shows that the son of the presiding judge withdrew as counsel in the case during the summer prior to the trial in November. The application was by dictating orally into the record, and at no time was application made to this court asking for a writ of mandamus.

Prior to the passage of the above statute, which was effective from June 10, 1909, the uncorroborated affidavit of the accused was all that was necessary to file, alleging the bias and prejudice of the presiding judge, and this within itself operated to disqualify him. The truth of the affidavit, or the motive of the defendant in making it could not be denied. A change of judge was imperative with the filing of the affidavit. With the coming of statehood, the courts found this statute very much abused. Dockets would be set and the affidavit would often be filed when the case was called for trial, and after witnesses had been subpoenaed and were in attendance on the court. It not only caused additional costs to the county and continuance of cases, but it often delayed, obstructed, and finally defeated justice.

After citing these injustices under the old statute, and after the enactment of the new, Judge Richardson, in an early case before this court, Lewis v. Russell, Judge, 4 Okla. Cr. 129, 111 Pac. 818, 819, in construing the above statute, said:

“Under this section it is necessary that the application for a change of judge be filed with the clerk of the court below; that it set forth the grounds: — that is to say, the facts upon which the claim is made that the judge is prejudiced' — and that the same be presented to such judge, reasonable notice thereof being first given to the prosecution. If the application is in compliance with the statute, and the judge concedes that he is prejudiced, he certifies his disqualification as requested. On the other hand, if the application be in proper form, but the judge does not admit his disqualification, and therefore refuses to make the certificate, a petition may be filed for a writ of mandamus to require him to do so; and the question of his disqualification will then be tried out and determined in the appellate court upon the petition, the response, and such proof as may be there offered. But the filing of an application with the clerk below in full compliance with the section above quoted is a prerequisite to the procuring of the writ. The facts upon which the claim of prejudice is made must be set out in the application so that the judge and the other side may know what is claimed and upon what the claim is based; and it is not sufficient to set those facts out for the first time in the petition for the writ. Myers v. Bailey, 26 Okla. 133, 109 Pac. 820; Mayes v. Pitchford, 26 Okla. 129, 132, 109 Pac. 821; Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540, 107 Pac. 735. In the present case no pretense was made of complying with the statute in this respect, and therefore there was nothing upon which to base the petition for the writ of mandamus. The writ is therefore denied.”

See, also, the later cases following this. Kelly v. Ferguson, 5 Okla. Cr. 316, 114 Pac. 631; Whitfield v. Walden, Judge, 31 Okla. Cr. 332, 239 Pac. 266; Ingram v. McNeill, 42 Okla. Cr. 291, 275 Pac. 660; Holloway v. Hall, 79 Okla. 163, 192 Pac. 219.

In the case of Saddler v. Crump, Judge, 30 Okla. Cr. 157, 235 Pac. 263, 264, the court says:

“The Constitution (article 2, § 6) guarantees to every person charged with an offense a trial without ‘prejudice.’ As applied to' a judge, this, is properly construed to mean personal prejudice or bias on the part of the judge against the defendant. It does not mean that the judge may not have an opinion of the guilt or innocence of a defendant or may not be prejudiced against the crime with which he is charged, but shall not entertain a personal prejudice against him. In order to disqualify, it must be shown as a matter of fact, and not as a conclusion, that the judge does entertain such personal prejudice. Lewis v. Russell, Judge, 4 Okla. Cr. 129, 111 Pac. 818, supra; State ex rel. etc. v. Lockridge, Judge, 6 Okla. Cr. 216, 118 Pac. 152, 45 L. R. A. (N. S.) 525, Ann. Cas. 1913C, 251; State v. Brown, Judge, 8 Okla. Cr. 40, 126 Pac. 245, Ann. Cas. 1914C, 394.”

We have examined the authorities, cited by defendant in his brief to support his contention. The first case cited of Ex parte Ellis, 8 Okla. Cr. 220, 105 Pac. 184, 25 L.R.A. (N. S.) 653, Ann. Cas. 1912A, 863, is a habeas corpus case construing section 8, article 1, chapter 27, pag,e 285, of the Session LaAvs of 1908, Avhich provides:

“No judge of the county court shall sit in any cause or proceeding pending * * * after any party thereto' * * * has filed an affidavit in writing, corroborated by two credible persons residing in the county, stating that affiant has good reason to believe, and does believe, that the judge is so prejudiced against him that he cannot have a fair and impartial trial if such judge continues to preside in such cause.”

This case does not attempt to construe the statute passed in 1909, the same being Oklahoma Statutes 1931, § 2915 (22 Okla. St. Ann. § 575), being the section now in force in this state. The facts in the instant case are very much different from the case of State ex rel. Mayo v. Pitchford, 43 Okla. 105, 141 Pac. 433, cited by defendant.

The case of Stephens v. Stephens, 17 Ariz. 306, 152 Pac. 164, is based wholly upon a statute which required that the certificate be made upon the mere filing of the affidavit of belief of bias or prejudice. This statute was the same as the early Oklahoma statute, and, therefore, has no application under the statute now in force in this state.

We realize that it is a fundamental rule that courts of justice should be open to every person and speedy remedy afforded for every injury to person, character, or property, and as expressed by our Constitution (article 2, §6), that “right and justice shall be administered without sale, denial, delay, or prejudice.” But from an examination of the record in this case, we find that not only the statute above quoted has not been complied with, we further find nothing to show that the presiding judge in this case was prejudiced against the defendant. The evidence given by the defendant himself was a mere conclusion, and no facts were shown which would entitle one to believe that any prejudice existed. Nothing in the trial of the case occurred which would indicate that the trial court was in any way prejudiced against the defendant.

Finding no prejudicial error, we are of the opinion that the judgment of the district court of Choctaw county should be affirmed, and it is so ordered.

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


text:
    BILL STOUSE v. STATE.
    No. A-9269.
    June 25, 1937.
    (70 Pac. 2d 145.)

      Billingsley & Kennerly, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

The information in this case in substance charges that in Seminole’ county, on August 21, 1936, Bill Stouse did have in his possession 3'0 pints of whisky with the unlawful intent to sell the same.

On the trial the jury returned a. verdict finding him guilty and fixing his punishment at a fine of $300 and confinement in the county jail for six months.

To reverse the judgment rendered on the verdict he appeals and assigns as error: The overruling of his motion to suppress the evidence; the admission of evidence obtained by an unlawful search of his home; the overruling of his motion to strike such evidence; and that the verdict is contrary to the law and the evidence.

This, conviction rests upon the testimony of Deputy Sheriff George Snider, the only state’s witness who testified on the trial, and upon the evidence procured by a search and seizure in executing a search warrant which describes the place to be searched as follows: “by the following named persons, namely:

“One Stout
“and upon the following described premises, located as follows:
“Starting at iStrother St. in the city of Seminole, Olda. going two miles north on Highway No. 48 thence west about % mile to Good Hope schoolhouse, thence south about 300 yards, to a small unpainted house, in Section 16 Twp. 9 Range 6 East. “in Seminole County, Oklahoma.”

When the case was called, for trial, counsel for defendant filed a motion to suppress the evidence of the finding of the whisky in his home, because the same was obtained by means of an unlawful and unreasonable search and seizure in violation of his constitutional rights. The motion challenged the sufficiency of the affidavit for the search warrant as well as the warrant issued thereon.

The undisputed evidence in support of the motion to suppress shows that there are 17 two-room houses along the west side of the road south of the Good Hope schoolhouse, all facing east; that all of these houses, with the exception of one or two, were unpainted oil field shacks, and all of similar appearance and design.

The defendant testified that he spelled his last name “S-t-o-u-s-e”; that his house is 400 yards or more south of the schoolhouse, and 12 of these houses are between his house and the schoolhouse. He produced the copy of the search warrant served by Officer Snider and it was admitted.

George Snider, deputy sheriff, called as a witness for the state, testified that in executing a search warrant with Charley Cannon they searched the defendant’s home.

He further testified:

“Q. How did you locate Bill’s house with this search warrant which reads: 'From Good Hope schoolhouse thence south about 300 yards to a small unpainted house’? A. I judged by the distance which we drove down the road; when we got to this particular place we noticed the traffic stopped there and we said this must be the place. Mr. Cannon knocked on the front door. A lady came to the door and we asked her if this was where Bill Stouse lives and she said 'yes.’ By the Court: Q. If there had been but one single traffic track down that little road there and you had this search warrant with this description, which house would you have stopped at? A. I can’t say about that, I judge by the distance there in the search warrant, I can’t say which one I would have stopped at. Q. Which did you pay more attention to, the distance or the traffic? A. I can’t say, one about as much as the other I guess.”

The motion to suppress is overruled; exception reversed.

It is contended that the search warrant was void, because of the variance between the name alleged “One Stout” and the defendant’s name, and that neither affidavit nor warrant based thereon particularly describes the place to be searched, therefore, the same were void because in conflict with the provision of the Bill of Bights, declaring that:

“The right 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.” Const, art. 2, § 30.

And that said warrant was issued in violation of the statute which authorizes the issuance of such warrants. Section 2638, St. 1931 (37 Okla. St. Ann. § 87).

Section 2635 (37 Okla. St. Ann. § 84) provides that the warrant shall command a search of “the premises described and designated in such complaint and warrant.”

In cases of this kind the name of the owner or occupant is employed to designate or describe the place; it particularizes the place, for a person may own many places, but as a usual thing occupies only one.

It will be observed that the name of the person occupying the place to be searched is described in the search warrant as “One Stout.” The defendant’s name is spelled “S-t-o-u-s-e.” This variance is a misnomer. When a name which is material to state in a) complaint and search warrant is wrongly spelled, yet, if it be idem sonans with that proved, it is sufficient. The rule seems to be that, where two names are spelled differently but sound alike in their pronunciation, they are regarded as the same, under the doctrine of idem sonans.

Obviously, the names “Stout” and “Stouse” are not idem sonans.

Upon the undisputed facts and the state’s testimony, it is evident that the description of the place to be searched was so indefinite that the officers might have searched any one of five or six similar small unpainted houses about 300 yards south of the Good Hope schoolhouse.

In Shanafelt v. State, 38 Okla. Cr. 345, 261 Pac. 380, it is said:

“It is well settled that the description must be sufficiently definite that no discretion is left to the searching officer as to wdiat place he is authorized to search. It will be observed from the foregoing affidavit that the location of the place to, be searched is made no more definite than ‘a mile northeast of Leonard in sec. 26.’ The mere section number is not sufficiently definite as a numerical description. The description may be made definite by particularly describing the location of the house in such manner that it could not be confused with any other house, as by describing the owner of the house, the occupant of the house, or the particular place or location of the house in its relation to natural objects. In the case of Brandt v. State, 34 Okla. Cr. 400, 246 Pac. 1106, this court said:
“ ‘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.’ ”

In Bryson v. State, 59 Okla. Cr. 130, 58 Pac. (2d) 1198, this court held:

“Affidavit for search warrant and search based thereon must so particularly describe place to be searched that searching officer has no- discretion, but many determine from warrant particular place to be searched.” And see Wofford v. State, 40 Okla. Cr. 18, 266 Pac. 494; Dobbins v. State, 40 Okla. Cr. 146, 267 Pac. 678; Clanton v. State, 59 Okla. Cr. 365, 60 Pac. (2d) 415.

'The fundamental law of the United1 States and of the state of Oklahoma alike guarantee to the people security of their persons, houses, and possessions from unreasonable search and seizure. The courts have ever protected the sanctity of the home, and will always guard with zealous care the citizen’s indefeasible right of personal security, personal liberty, and private property, wbere that right has not been, forfeited by his conviction of some public offense. Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Wiese v. State, 32 Okla. Cr. 203, 240 Pac. 1075; Jones v. State, 36 Okla. Cr. 180, 253 Pac. 310; Buxton v. State, 37 Okla. Cr. 402, 258 Pac. 814.

It was the boast of Lord Chatham that, though the wind, and rain might enter the cottage of the English peasant, the king could not enter.

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 word, 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. Smith v. State, 34 Okla. Cr. 434, 246 Pac. 1109; Denton v. State, 62 Okla. Cr. 8, 70 Pac. (2d) 135.

It follows from what has been said that the search and seizure in this case was an unauthorized trespass, and that the state’s evidence was improperly admitted over the defendant’s objections and in violation of his constitutional and statutory rights.

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

DAVENPORT, P. J., and BAREFOOT, J., concur.