text:
    ISAAC SEARS v. STATE.
    No. A-4423.
    Opinion Filed July 19, 1924.
    (227 Pac. 899.)
    (Syllabus.)
    Homicide — General Threats Against Class Including Deceased, Admissible — Threats Shown in Chief, on Cross-Examination, or in Rebuttal. Threats of a general or indefinite nature, made by an accused person, where they tend to disclose general malice, may be shown, although not particularly directed against the deceased, but against a class of persons which includes the deceased.
    (a) In a proper case such 'threats may be shown as evidence in chief, or on cross-examination, or in rebuttal. -
    Appeal from District Court, Washington County; Chas. W. Mason, Judge.
    Isaac Sears was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    Bailey & Dillon, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

By verdict of a jury, rendered February 14, 1922, in the district court of Washington county, plaintiff in error, Isaac Sears, here referred to as the defendant, was convicted of manslaughter in the first degree, and by the judgment of the court subsequently rendered his punishment was fixed at confinement in the penitentiary for a term of four years.

The facts and circumstances leading up to and connected with the homicide, as disclosed by the record, show that Isaac ■ Sears was city marshal of the town of Ramona, and also a deputy sheriff of Washington county; that on the night of May 11, 1921, the telephone operator at Ramona received a message from the sheriff’s office at Pawhuska, in Osage county, to the effect that two men had killed an officer at Pershing and were fleeing towards Ramona in a stolen Dodge roadster, and requesting the telephone operator to communicate with the local peace officers to look out for this Dodge roadster and its occupants. This information was communicated to the defendant, and he, in company with a local constable, Bert Blythe, went to a bridge which spans a creek at the entrance to Ramona to intercept this Dodge roadster and capture the felons, if possible.

Some 30 minutes after the defendant and the constable had stationed themselves at this bridge a car came over the hill from the west, a short while after dark. The car was moving rapidly, with the lights burning. Defendant waved a flashlight as a signal to the occupants of the car to stop, and as the car approached the bridge he commanded them to stop. fThe car did not stop, and as it passed on over the bridge the defendant fired four shots from his revolver into and about the car. One of the bullets so fired entered the back of the head of the driver, Harry F. Cavis, killing him instantly. It was shown that Cavis was a man 42 years of age, a traveling salesman for a grocery house, and that he visited Eamona regularly to supply the grocery stores there, and traveling from town to town in a Dodge touring car. On this day Mrs. Betty Campbell, who lived in Eamona, had asked Cavis to take her out to a Mrs. Kizer’s house, a few miles distant in Osage county; this he had done, and he and these two women were returning to Eamona in his car when they were intercepted at the bridge by these two officers.

Blythe, the constable, testified that Sears, the defendant, called him up and told him he had had a telephone message from some place over in the Osage county, informing him that the marshal had been killed, and asked the witness Blythe to come with him and help watch for the car in which the felons were supposed to be coming that way; the witness agreed to assist, and met him at the public square, where the defendant told the witness they were instructed to intercept a Dodge roadster, occupied by two men; that the witness and the defendant went to the bridge just outside of Eamona, and had waited there 30 minutes or more when a car approached, eoming over a hill about one-fourth mile distant. Defendant said to the witness: “I’ll stand here at the bridge and you get further down and wave them down.” The witness then advanced 50 feet or more from the end of the bridge and waved his hand, indicating that he wanted the driver to stop. The car slowed down slightly and passed on np grade to the bridge where the defendant was standing, where defendant waved his flashlight and commanded the driver to halt. As the car approached the defendant, the witness shonted to him that it was a touring car. When the car had gone about 15 feet past the defendant, the defendant shot into the back of the car, and as the ear moved on, a few seconds later the defendant fired three more shots into and about the car, which then swerved and ran into the ditch, and stopped. The two women occupants became excited and hysterical. The witness, addressing the defendant, said, “Ike, I believe you killed your man,” and defendant replied, “Well, he ought to have stopped.”

Mrs. Betty Campbell testified that they were driving, in her judgment, about 15 miles an hour or a little faster, and that they did not see the defendant and Blythe until the car was about to cross the bridge, and that as the car passed them either the defendant or Blythe shouted, “Hold up!” that after the car had passed a few feet a shot was fired, the bullet penetrating the back of Cavis’ head, who slumped down and lost control of the car as it moved along under its own momentum. Almost immediately three more shots were fired, one of which passed through the wind shield, over witness’ head, as she sat bent over with her head on her knees. Witness asked the defendant what he shot for, and defendant replied, “Because he didn’t stop.” Mrs. Kizer then said, “You didn’t give him time to stop”; to which defendant made no reply.

Mrs. Kizer testified that she was excited; that as soon as the shooting began the speed of the car was checked, and that after the shooting was over she ran away for help. She assumed that the persons who did the shooting were robbers. She heard no command from the defendant or Blythe to stop or halt.

The defendant testified in his own behalf that the moon was shining; that it wasn’t very dark or very light; that as the ear approached, Blythe shouted, “Halt,” and the car passed Blythe without slowing up; that he stood in the road at the bridge, waving his flashlight, and that he was compelled to step out of the road to avoid being run over as the car passed; that as he stepped out of the road he shouted .“Halt,” and a moment later fired the first shot, when the car was about 30 feet distant. Defendant stated that he had no intention of killing any one; that he aimed high for the purpose of causing the driver to stop.

On cross-examination the defendant was interrogated as follows:

“Q. Do you know Mrs. Ora- C. Disch? A. Yes, sir.
“Q. Did you see her on the 11th day of May, 1921, at between 3’ and 4 o’clock in front of the Ross Mercantile establishment? A. No, sir.
“Q. The afternoon of the 11th of May, the afternoon of the shooting, between 3 and'4 o’clock? A. No, sir.
“Q. Didn’t you see her in front of the Ross Mercantile establishment at the time I have stated, and say to her, 'I have got my commission now; I have got the law back of me, and the first man that disobeys my command I am going to shoot him in two?’ A. I did not.
“Q. Didn’t you say that, or that in substance? A. I did not.
“Q. Did you say that any time and place that day? A. No, sir.”

In the rebuttal, for the state, Mrs. Disch testified in part as follows:

“Q. Mrs. Disch, are yon acquainted with the defendant, Isaac Sears? A. Yes, sir.
"Q. I wrill ask you if you saw him on the afternoon of May 11, 1921, between the hours of 3 and 4 in front of the Ross Mercantile establishment? A. Yes, sir.
“Q. Did you have a conversation with him there? A. Yes, sir.
“Q. I will ask you if he said this, or this in substance, to you: ‘I have got the law back of me, and the first man that disobeys my command, I am going to shoot him in two?’ A. He most certainly did.”

On cross-examination Mrs. Disch testified thus:

“Q. "Well, he (the defendant) had arrested your boy along about that time, hadn’t he? A. Yes, sir, some time before that.
“Q. Did you tell anybody that day? A. Well, nothing more than 'I just repeated it to my son, what he said.
“Q. Well, at the time you had the conversation to which you have testified, had Mr. Sears arrested your boy at that time? A. Yes, sir.
“Q. How long before? A. Well, I wouldn’t be able to state just exactly, but it happened a few days before.
“Q. I will ask you, Mrs. Disch, if it is not a fact that on this particular day — that is, on the 11th day of May, 1921— you didn’t have any conversation with Mr. Sears at all? A. Yes, sir; I had a conversation with Mr. Sears in the afternoon.
"Q. How is that? A. I started down town and met Mr. Sears in front of this store, and we were talking in regard to a fine that had been placed on the boy, and he was talking of bringing him to Bartlesville because the fine had not been paid — Mr. Seegar and Mr. H. B. Lowe had stood good for it — and in the meantime he made the remark as I have testified to.
“Q. And how is it that you fixed it in your mind that that was the same day, the 11th day of May? A. I know positively it was the same day he shot the man, that he said what I have just testified to.
“Q. Couldn’t have been the day before? A. No, sir; it was not the day before.
“Q. "Well, what is it that fixes it in your mind that this was the same day you had this conversation? A. Well, when this occurred, when the shooting occurred, my son came and told me that Mr. Sears had killed a man, and I said, 'Son, he done just what he told me this afternoon he would do.’ ”

The only assignment of error supported by argument in defendant’s brief is that the court erred in admitting the testimony of Mrs. Disch, as not being properly admitted for purposes of impeachment, because no sufficient foundation was laid; and that if it was admitted for the purpose of showing malice and intent it should have been introduced as evidence in chief; and that it was not admissible as evidence in chief or on rebuttal for the reason that the declarations or threats said to have been made by the defendant (“I have got my commission now; I have got the law back of me and the first man that disobeys my command, I am going to shoot him in two”) were too vague and indefinite, referring to no particular person or class of persons.

The statements and testimony of the defendant, quoted, as well as other testimony not quoted, indicate that he had no conception of his duties as a peace officer, or of the sanctity of human life' — that he was an arrogant deputy sheriff who would shoot to kill or wound any person who failed to obey his “commands.” The record shows that the deceased came unwittingly within this .class. In this instance the defendant, without any right, excuse, or justification, instantly snuffed out the life of an innocent'man. Defendant’s conduct at the time, the physical facts shown, and the testimony of eyewitnesses indicate that he shot into this car intentionally, and that his claim that he shot high in order to frighten the deceased is not sustained by any evidence, direct or circumstantial, ffhe threat which he had made, as quoted, indicates a malicious mind, and an arrogant purpose to shoot on any pretext, regardless of human life. His conduct in this case is in keeping with the spirit of the declaration previously made on that day. The statement so made by him could have been introduced by the state as evidence in chief, as tending to show motive or intent; or on cross-examination of the defendant; or in rebuttal, as shown by this record. Under the circumstances, the order or manner of its introduction was of no consequence.

Threats of a general or indefinite nature made by an accused person, where they tend to disclose general malice, may be shown, although not particularly directed against the deceased, but against a class of persons necessarily including the deceased. 13 R. C. L. 925.

In the case of McDaniel v. State, 8 Okla. Cr. 209, 127 Pac. 358, the accused had made this statement: “ ‘They have got Henry in jail. That’s what they wanted all the time, but they swore damned lies to put him there, and I’ll kill the son of a bitch that put him there as sure as powder will bum.’ ” This court held that this was properly admitted as a threat against the prosecuting witness; that generic threats, or threats directed against a class, are admissible, and their weight is for the jury. On this point Prof. Wig-more says:

“It has been noted that the more specific a design is, the greater its probative value. There may come a point at which the design is too indefinite in its indications to be of any probative value; but the mere fact that it is generic— i. e., points towards a class, however broad — 'does not in itself destroy its relevancy, provided the purpose might naturally include the act charged.” 1 Wigmore on Evidence, sec. 106.

A late holding of this court to the same effect is Gross v. State, 26 Okla. Cr. 105, 222 Pac. 275.

All parts of the record indicate that the defendant had a fair trial.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE,' J., concur.


source: Caselaw Access Project

author: BESSEY, J.

license: Public Domain

text:
    VOLNEY DAVIS v. STATE.
    No. A-4777.
    Opinion Filed July 19, 1924.
    (227 Pac. 848.)
    (Syllabus.)
    1. Homicide — Instruction for Verdict of Murder or Acquittal Held not Erroneous. Where the evidence shows that the homicide was committed while the accused or his confederates were attempting to commit a robbery and there is no evidence tending to show that the offense was manslaughter or excusable or justifiable homicide, it was not error for the court to instruct' the jury they should either find a verdict for murder or acquit the defendant.
    £. Homicide — Evidence Sustaining Conviction for Murder. The evidence held sufficient to sustain the verdict.
    Appeal from District Court," Tulsa County; W. B. Williams, Judge.
    Volney Davis was convicted of murder, and he appeals.
    Affirmed.
    Luther James, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

Plaintiff in error, Volney Davis, defendant below, was on January 27, 1923, in the district court of Tulsa county, convicted of murder for the assassination of an aged night watchman in an attempted robbery of a safe in the watchman’s charge. This is a companion case to the case of Doc Barker v. State, 27 Okla. Cr. 305, 227 Pac. 846, recently affirmed by this court. The state’s evidence in the two cases, so far as it affects the important issues involved, was for the most part the same, or similar. Two important witnesses for the state may have been accomplices, but the trial court in apt language instructed the jury as to the necessity for corroboration of the evidence of accomplices. The record shows also that there were a number of facts and circumstances proven by other disinterested witnesses which sufficiently corroborated the accomplices, if indeed both were accomplices.

The assignments of error are that the evidence is insufficient to sustain the verdict, and alleged erroneous instructions to the jury.

(The facts and circumstances which were outlined in general in the Barker Case need not be here reiterated. "We find the evidence in the instant case sufficient to sustain the verdict rendered.

The defendant excepted to the following' instruction:

“You are instructed that homicide is the killing of one human being by another, and is divided into five degrees or classes, namely: Murder, first degree manslaughter, second degree manslaughter, excusable homicide, and justifiable homicide.
“Homicide is murder: First, when perpetrated without authority of law and with the premeditated design to effect the death of the person killed or any other human being; second, when perpetrated without design to effect death by a person engaged in the commission of a felony. You are instructed that there has been introduced in this case no evidence showing or tending to show that the alleged killing is first degree manslaughter, second degree manslaughter, excusable or justifiable homicide, as such terms are used in the statute. The issue thus formed as determined by the court for you to decide is only whether or not the defendant is guilty of the crime of murder.”

Under the evidence there was no showing of manslaughter in either degree, nor of excusable or justifiable homicide. The accused and his several confederates under the evidence were either guilty of murder or entitled to an acquittal. Lovejoy v. State, 18 Okla. Cr. 335, 194 Pac. 1087. This homicide was committed in the course of an attempt to rob a safe in the custody of Thomas J. Terrill, and old night watchman, by the use of deadly and dangerous weapons, evincing extreme moral depravity on the part of the perpetrators, and an utter disregard for human life. Defendant complains that instruction No. 8B in relation to those features of the evidence was erroneous because the court told the jury that, if they found that the homicidal act was perpetrated by the accused while in the act of committing a felony or under circumstances imminently dangerous to others, evincing a depraved mind, regardless of human life, “with or without a premeditated design to effect the death of Thomas J. Terrill,” the accused was guilty of murder. This was a correct statement of the law on premeditation, as embodied in subdivisions 2 and 3 of section 1733, Comp. Stat. 1921, defining murder in practically the language used by the court. Ray v. State, 10 Okla. Cr. 403, 136 Pac. 980; Lovejoy v. State, supra.

The other objections to instructions criticized are unimportant, and without merit.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    Ex parte JOHN Q. ADAMS.
    No. A-5069.
    Opinion Filed July 26, 1924.
    (227 Pac. 843.)
    Habeas corpus by John Q. Adams for release from custody.
    Writ denied.
    R. 0. Roland, for petitioner.
    The Attorney General, for respondent.
   BESSEY, J.

Petitioner says he is illegally restrained of his liberty by the warden of the penitentiary on an illegal judgment of conviction, for forgery, from the district court of Stephens county; that the court of Stephens county was without jurisdiction of the offense charged, the venue being in another county.

The warden has made return upon the rule to show cause, showing that the petitioner is held by the warden by virtue and authority of a judgment and commitment from the district court of Marshall county, issued on September 30, 1919, and affirmed by this court, wherein it was ordered that the petitioner be held by the warden -as a prisoner for a period of 10 years.

The proof of this judgment and commitment from the district court of Marshall county is confirmed by the records of this court as well as by the record of the commitment, as certified to by the warden, who shows that he is holding the petitioner by virtue of this commitment.

Whether or not the judgment of conviction from the district court of Stephens county was rendered without that court having jurisdiction is therefore at this time a moot-question, not proper for present consideration.

The application for the writ is denied, and the warden is directed to hold the prisoner in accordance with the terms of the commitment in case No. 452 from Marshall county.

MATSON, P. J., and DOYLE, J., concur.


author: PER CURIAM.

text:
    H. M. McDonald v. STATE.
    No. A-4442.
    Opinion Filed July 26, 1924.
    (227 Pac. 844.)
    Appeal from District Court, Pittsburg County; Hal Johnson, Judge.
    H. M. McDonald was convicted of the alteration of a written instrument, and he appeals.
    Appeal dismissed.
    Wilkinson & Hudson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

H. M. McDonald, plaintiff in error, defendant below, was convicted of the alteration of a written instrument, a bank cheek, with his punishment fixed at confinement in the state penitentiary for a term of four years. From this judgment he appeals to this court.

Pending this appeal defendant gave a supersedeas bond obligating himself to abide the 'decision of this court, and the execution of the sentence was in the meantime suspended. Lately it has been made to appear to the court that the defendant’s whereabouts is unknown, and that he is a fugitive from justice. The Attorney General has filed a motion to dismiss the appeal for that reason, and because he cannot now be compelled to perform and abide by any order or judgment that might be rendered by this court on appeal.

Upon the proofs submitted and notice of service of this motion to dismiss as of July 7, 1924, the appeal is dismissed. In the event of the subsequent apprehension of the defendant, he shall be remanded to the trial court for execution of the sentence in accordance with the terms of the judgment therein rendered against him.


text:
    CECIL EMMETT v. STATE.
    No. A-4466.
    Opinion Filed July 26, 1924.
    (227 Pac. 894.)
    (Syllabus.)
    1. Disturbance of Public Assemblage — Evidence Supporting Conviction for Disturbing Religious Worship. The evidence amply supports the verdict of disturbing a religious meeting.
    2. Same — Refusal of Instruction as to Who Was Aggressor in Combat Held not Erroneous. There was no error in the court’s refusing defendant’s proffered instruction on the question of who was the aggressor.
    3. Same — Instruction on Self-Defense Held Proper. The instructions given were fair, and covered every issue raised by the evidence.
    Appeal from County Court, Pittsburg County; S. P. Brown, Judge.
    Cecil Emmett was convicted of disturbing religious worship, and he appeals.
    Affirmed.
    Cad Mathis, for plaintiff in error.
    The Attorney General and J. Roy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

Cecil Emmett, plaintiff in error, here referred to as the defendant, was by verdict of a jury rendered June 13, 1922, in the county court of Pittsburg county, found guilty of the offense of disturbing religious worship, with his punishment fixed at a fine of $75.

On the 26th day of November, 1921, a revival meeting was in progress at a Methodist church in Adamson, Okla. As nearly as we can ascertain from the record, it seems that a number of people were assembled at this meeting in the church, listening to the sermon and exhortations of the minister. There were also a number of people outside the church who were apparently not there for purposes of worship, among whom was the defendant. A boy 14 years old, by the name of Crisp, who had ridden to ehnrch on horseback, and whose horse was tied near the church, went out of church two or three times, as he and others testified, to look after his horse. The defendant asked this boy for permission to take his horse and go get some cigarettes, but the Crisp boy refused to let him ride the horse. The evidence is conflicting as to just how the disturbance commenced, some witnesses testifying that the Crisp boy in addressing the ¡defendant called him an insulting name, and that the defendant then approached and struck him in the face. /The Crisp boy staggered into the church, during the service, with his face bleeding, muttering and moaning that he had been hit. The services were halted, and the minister in charge came to the boy and rendered such services as he could.

The record shows, by the testimony of one or more witnesses, that the assault made upon the Crisp boy was unprovoked and wholly without justification; according to the testimony of other witnesses, and of the defendant himself, it was mutual combat, a sort of hoodlum fight. According to either theory of the case the facts proved sufficiently supported the verdict of disturbing religious worship.

The ¡defendant in his brief argues that the court erred in refusing to give requested instructions numbered 1, 2, and 3, relating to the question of which of the two combatants may have been the aggressor. According to the testimony of the defendant himself it would seem that the affray, at best a mutual affair, raised no issue of self-defense, aside from the mere statement of the defendant that he was apprehensive that the Crisp boy would strike him. And the defendant’s own testimony was that he was eight or more feet from the platform at the church entrance when the Crisp boy used the opprobrious epithet, and that he went to the platform and struck him, from where the boy staggered into the church, bleeding.

The court, liberally construing the evidence in the light most favorable to the defendant, submitted an instruction, which sufficiently covered this feature of the ease, as follows:

"Self-defense is a right guaranteed to every individual at all times. Therefore, you are further instructed that, since there has been evidence introduced tending to prove that the difficulty from which the disturbance in this case is alleged to have occurred, in the event you find such disturbance took place, but you further find that the only participation of the defendant in such disturbance was in his actual and necessary self-defense, then you should find the defendant not guilty.”

It may be that both parties to this difficulty were guilty of disturbing religious worship, but only the question of the guilt of the defendant is before this court. The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


text:
    CHRIS WIEDERKEHR v. STATE.
    No. A-4441.
    Opinion Filed July 26, 1924.
    (227 Pac. 893.)
    (Syllabus.)
    Evidence — Proof of Distinct Offense at Another Time Inadmissible. Where one is charged with a single, specific offense of the possession of a particular quantity of intoxicating liquor, at a place not used as a public resort, proof of a separate, distinct offense at another time is inadmissible. The accused cannot be compelled to defend against other offenses having no connection with the offense charged.
    Appeal from County Court, Noble County; E. W. Jones, Judge.

      Chris Wiederkehr was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    J. Earle Smith, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

Chris Wiederkehr, plaintiff in error, defendant below, was on April 25, 1922, in the county court of Noble county, convicted of the illegal possession of one quart of whisky, with the unlawful intent to sell or dispose of the same. IEs punishment was assessed at a fine of $100 and confinement in the county jail for a period of 100 days.

No briefs have been filed by either party. Ordinarily, where the defendant fails to support his appeal by filing a brief in this court the court will affirm the judgment of the trial court, unless a cursory examination of the record discloses fundamental error, prejudicial to the rights of.the defendant. In this ease the reason assigned for not filing a brief is the poverty of the defendant.

This conviction was based upon evidence showing that the defendant had lately moved to the farm where the whis-ky involved was found, hidden in the ground in a freshly cultivated potato field, that a short while previous another tenant had been in possession -of this land, and that he had gathered the potatoes and harrowed the ground afterwards. At the time of the discovery of the whisky by the officers the defendant was not at home. Later, when apprised of its discovery and seizure, the defendant denied knowing anything about the whisky, disclaimed its ownership or any intent to sell.

The state, over the objection of the defendant, to show illegal intent, was permitted to establish by two young men, brothers, that they together some time previous to the time of the offense here charged, had purchased from the defendant a gallon of corn whisky; the county attorney admitted this evidence of prior possession and sale was obtained from these witnesses by promises to them of immunity from prosecution on a liquor charge.

Under no rule of evidence was such testimony admissible in this case. The proof of defendant’s possession was circumstantial, making the admission of this incompetent, hired evidence highly prejudicial. The jury may have convicted the defendant for the offense charged, or for the other offense as narrated by these two brothers, or upon general principles, as being a person who was in the habit of violating the prohibitory laws.

Where one is charged with a single, specific offense of the possession of a particular quantity of intoxicating liquor, at a place not used as a public resort, the general reputation of the person charged, or the place where such liquor is seized, it is not admissible to show intent, or for any other purpose. Much less, then, would proof of a separate, distinct offense be admissible. Every defendant has a right to be confronted with a definite accusation in writing, charging but one offense; and when placed on trial he cannot be compelled to defend against other offenses having no connection with the offense charged. This is fundamental, requiring no citation of authority to support it.

Nor do the circumstances in this ease bring it within any exception to the rule above stated. Unless some prior offense is directly connected with or explanatory of the offense charged, the proof of the former offense cannot be introduced as tending to show motive. To require a defendant to thus defend himself against one or more offenses not named in the accusation would be in violation of the provisions of the bill of rights of the Constitution. It would be manifestly unfair if the rule were otherwise, because in that event the accused could not know in advance what charge he would be called upon to meet, and there would be no opportunity to make a defense concerning a charge of which he had no knowledge prior to that time and no advance knowledge of its scope or nature.

It has been held by this court that in cases like this the general reputation of the place or the person involved in a single transaction (a specific sale or a single act of possession) cannot be shown, unless the place be a place used as a public resort. Glover v. State, 25 Okla. Cr. 227, 219 Pac. 725; Hurst v. State, 25 Okla. Cr. 102, 219 Pac. 151.

In these cases the court points out when evidence of general reputation may be admitted. Here no attempt was made to prove such reputation. Such proof would not have been admissible, under the circumstances, and much less were specific, separate acts.

It seems apparent that the verdict in this ease must have been, in part at least predicated upon the testimony of these hired witnesses — testimony manifestly incompetent.

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

MATSON, P. J., and DOYLE, J., concur.


text:
    JOHN V. HARRIS v. STATE.
    No. A-4478.
    Opinion Filed July 26, 1924.
    (227 Pac. 845.)
    Appeal from District Court, Oklahoma County; Jas. I. Phelps, Judge.
    John Y. Harris was convicted of murder, and he appeals.
    Appeal dismissed.

      Moman Pruitt, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from the district court of Oklahoma county, wherein the plaintiff in error was adjudged guilty of murder, with his punishment fixed at imprisonment for life. Pending this appeal the plaintiff in error effected his escape from the penitentiary and is now a fugitive from justice, so that he cannot be made to respond to any order that may be made by this court. The appeal may therefore be considered as abandoned, and the appeal dismissed. In the event of his subsequent apprehension, the plaintiff in error shall be incarcerated in the penitentiary, to be dealt with in accordance with the terms of the judgment of the trial court.


text:
    CLAUD RYLANT et al. v. STATE.
    No. A-4476.
    Opinion Filed July 26, 1924.
    (227 Pac. 1119.)
    Appeal from County Court, Roger Mills County; E. E. Tracy, Judge.
    Claud Rylant and Ray Bland were convicted of illegal transportation of intoxicating liquor, and they appeal.
    Affirmed.
    W. H. Mouser, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

This is an appeal from a judgment based upon the verdict of a jury rendered in the county court of Roger Mills county on the 15th day of August, 1922, in which plaintiffs in error, defendants below, were found guilty of the illegal transportation of intoxicating liquor, and the punishment as to each fixed at confinement in the county jail for a term of 30 days and a fine of $200. The record discloses that the defendants were not represented by counsel at the trial, but that the court magnanimously acted as attorney for them, reserving proper exceptions, including exceptions to all of the instructions given by the court. Subsequently an attorney did appear and filed a motion for a new trial, setting up all the reasons that could be urged, based on the record. No briefs have been filed by either party in this court, and in accordance with the rules of the court we may assume that the appeal has been abandoned. An examination of the record discloses that the evidence amply supports the verdict, that the instructions of the court to the jury were fair, and that the defendants were otherwise accorded a fair trial. It is therefore ordered that the judgment of the trial court be and the same is affirmed.


text:
    W. H. CORNELIUS v. STATE.
    No. A-4481.
    Opinion Filed Aug. 9, 1924.
    (227 Pac. 845.)
    (Syllabus.)
    1. Forgery — Falsely Impersonating Another in Signing Name to False Document. Falsely impersonating another in signing a name to a false document is forgery, even though the perpetrator may have had authority from the person whose name he affixed to the document.
    2. Same) — False Pretenses — Facts Constituting Both Forgery and False Pretenses — Election by County Attorney on Which of Two Offenses Defendant Should Be Tried. Under the circumstances shown one might be guilty of both forgery and false pretense. The county attorney has the right to elect for which of the two offenses he should be tried.
    3. Same — Accused not Permitted to Show Separate Instances of Authority to Sign Name of Another. The court committed no error, under the circumstances here, in refusing to permit the accused to show other separate instances where authority was given him to sign the name of another.

      Appeal from Superior Court, Okmulgee County; H. R. Christopher, Judge.
    W. H. Cornelius was convicted of forgery in the second degree, and he appeals.
    Affirmed.
    L. A. Wallace, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

W. H. Cornelius, plaintiff in error, for convenience here denominated the defendant, was by information filed in the superior court of Okmulgee county charged, in substance, with having on the 14th day of March, 1921, uttered a forged and fraudulent written instrument, by signing the name of James Hall to a note and chattel mortgage securing the same, falsely purporting to be the acts and signatures of James Hall, with the fraudulent intent to cheat and defraud James Hall and the ITenryetta State Bank.

The proof is uncontroverted that the defendant represented himself to be James Hall, and that he was the owner of the property described in the mortgage which he purported to convey to the Henryetta State Bank. The proof shows and the defendant admits that he signed the name “James Hall” to these instruments and that he (the defendant) was not the owner of any of the property described in the mortgage, the execution of which was acknowledged before a notary public, and that he did not disclose his identity to the agents of the mortgagee bank.

Defendant’s defense is that his stepson, James Hall, an Indian boy 17 years of age, gave him authority to use his name in executing this note and mortgage to procure money from this bank for their joint use. The claim of the defendant in this regard was confirmed by the testimony of this Indian boy. There was testimony tending to show that this same property, or at least the major portion of it, had been previously mortgaged to another bank by the defendant under the name of W. H. Cornelius. He does not claim that he disclosed his identity to the agents of the bank or informed them that he executed the instruments as agent for James Hall.

The defendant now claims that under this state of facts he was not guilty of forgery, but if guilty of any offense it was the offense of false pretense; that where an accused is charged with affixing the signature of another to a written instrument it is a complete defense to a charge of forgery to show that he had authority to do so. Under some circumstances this contention might be upheld. Let us consider whether that rule should apply to the facts shown here.

The record discloses that this Indian boy was under a double disability: First, he was intellectually incapable of making such contracts; and second, he was under the legal disability of minority. He was legally incapable of entering into commercial transactions except for present necessities, not in the nature of an investment or for future advantage. If this mentally immature boy, without education or business acumen, could not himself enter into a legal contract of this nature, it follows that he could not delegate this power to this defendant, or to any other person. Waiving the mental and legal disability of James Hall, and assuming that the power to make these instruments might have been delegated to the defendant, the manner of his making them by deceitfully impersonating another might still be forgery. On this feature of forgery the rule is stated in 26 O. J. 898 and 899, thus:

“An agent for some purposes may commit forgery by making or signing an instrument in disobedience of his instructions or in the improper exercise of his authority. Although a person is authorized' to sign the name of another to certain documents, yet if he signs such name to a false document it is forgery. Falsely personating another and signing his name is forgery.”

One may, under such circumstances, be guilty of both forgery and false pretense. A person having a power of attorney, by fraudulently concealing the fact and assuming to be the principal and representing himself as such, may commit forgery by signing the name of his principal. Notes, 26 C. J. supra. The offense of forgery may exist even though tfhe name used was an assumed name or a fictitious name, when used to perpetrate a fraud. Lyman v. State, 136 Md. 40, 109 Atl. 548, 9 A. L. R. 401, and eases annotated.

The instruction requested by the defendant on this phase of the ease was properly refused. The court might, in his discretion, have instructed the jury upon that feature more fully; but a full and correct statement of the law on the point would have been detrimental to the interests of the defendant. The accused cannot take advantage of an omission in his favor.

The defendant complains that the court refused to permit him to show specific instances where he assumed to act and did act in transactions relating to the property belonging to this Indian boy. Holding, as we do, that the boy was mentally and legally incompetent to transact this kind of business for him, other instances of the assumption of such authority were not admissible. Even waiving the disability of minority and immature intelligence the deception practiced in falsely impersonating James Hall would, as before pointed out, render such testimony incompetent.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


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    R. A. STOKES v. STATE.
    No. A-4491.
    Opinion Filed Aug. 9, 1924.
    (227 Pac. 903.)
    (Syllabus.)
    1. Evidence — Testimony of Accomplices Sufficiently Corroborated. Tbe testimony of two accomplices was sufficiently corroborated to sustain the verdict.
    2. Evidence — Proof of Separate Offense Admissible, When. Proof of a separate offense is admissible, where there are, as in this case, two conspiracies, one to rob a store, and the other to make whisky, and the two are so connected and interlocking that proof of each was necessary to explain the other.
    3. Conspiracy-Circumstantial Evidence. In most cases a conspiracy to commit a crime must of necessity be established by circumstantial evidence.
    Appeal from District Court, Cleveland County; W. L. Eagleton, Judge.
    E. A. Stokes was convicted of burglary, and he appeals.
    Affirmed.
    J. B. Dudley, for plaintiff in error.
    The Attorney General and J. Eoy Orr, Asst. Atty. Gen., for the State.
   BESSEY, J.

The record contains evidence tending to show that E. A. Stokes, Ed Meshew, and Jewel Fleming entered into a conspiracy to manufacture whisky, and that incidentally the three conspired together to rob a store in order to procure meal, sugar, and other things to be used for that purpose. On the 31st day of December, 1920, the store of J. A. McKiddy was burglarized in the nighttime, and a.quantity of merchandise taken, which was found the next day hidden in a brush pile about three-quarters of a mile from the home of Stokes, which was also the temporary home of Meshew and Fleming. Meshew was a brother-in-law of Stokes. On the day following the burglary these three men were arrested, and at first Meshew and Fleming confessed that they alone committed the burglary. Later they implicated Stokes, who was in a separate trial, by verdict of a jury rendered in the district court of Cleveland county on April 7, 1922, found guilty of burglary, with his punishment fixed at confinement in the penitentiary for a term of two years.

It was shown that there was a dug-out or storm cave, lately constructed, about 50 or 60 yards from the residence occupied by these three, and that whisky was being manufactured there at that time, and that the odor of the fermenting substances used for the whisky making could be detected yards away. At the preliminary and at the trial in district court Meshew and Fleming confessed that the robbery of the store was planned and executed by the three men, in order to obtain materials for making whisky; that the merchandise obtained was for the most part not suitable for that purpose, and was at first stored in the garret of the Stokes home, and later removed to the brush pile, where it was found on the day following the robbery. The Stokes home was five or six miles from the store that was robbed, and these three men were at once suspected of the robbery, because of wagon tracks and peculiar mule tracks leading from the store to the home of the defendant, and thence in the direction of the spot where the stolen merchandise was hidden. It was shown that the wagon and mules belonging to Stokes made such tracks, and that the tracks were easily traced early the next morning, before others passing along that route had obliterated such tracks.

Defendant Stokes denied any knowledge of the whisky plant near his house, denied that he entered into any conspiracy to rob this store, and denied participating in the robbery or having any knowledge of it before or after its commission. It was the theory of the defense that the other two men robbed tbe store, and later sought to implicate the defendant in order to mitigate their own punishment. Under the testimony Meshew and Fleming were both accomplices and Stokes claims, first, that their testimony implicating him was not sufficiently corroborated by other witnesses; and, second, that the testimony concerning the whisky plant related to an independent offense not connected with the crime here charged.

The record does not support either of these claims of the defendant. Independent facts and circumstances, shown by witnesses not connected with the offense, here a little and there a little, justified the jury in finding that defendant Stokes was implicated in the two conspiracies — one to rob the store, and the other to make whisky — and that the two were so connected and interlocking that proof of each was necessary to explain the other. In most cases a conspiracy to commit a crime must of necessity be established by circumstantial evidence.

It would serve no good purpose to state the reasons for this conclusion. The circumstances are so .numerous and. complex that it would require a review of a great volume o£ testimony. To do so in cases like'this would unnecessarily incumber the published reports of this court, without in any manner clarifying the law previously interpreted by this court relating to conspiracy, accomplices, and the admissibility of testimony concerning a connected contemporaneous offense to explain the particular crime charged. Moreover, the defendant and some of his witnesses were successfully impeached. Considering all the testimony, the verdict of guilty accords with our own view, deduced from all the evidence in the record.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYUE, J.,. concur.


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    ARTHUR GRIFFIN v. STATE.
    No. A-4511.
    Opinion Filed Aug. 9, 1924.
    (227 Pac. 908.)
    Appeal from District Court, Muskogee County; Benjamin B. Wheeler, Judge.
    Arthur Griffin was convicted of grand larceny, and appeals.
    Affirmed.
    P. A. Gavin, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Arthur Griffin, plaintiff in error, defendant below, was on the 26th day of May, 1922, in the district court of Muskogee county, convicted of grand larceny. The jury fixed his punishment at imprisonment in the penitentiary for a term of three years. From the judgment rendered in accordance with the verdict, defendant appeals.

No brief has been filed supporting the appeal, indicating that the appeal has been abandoned. After long delay the case has been submitted on the record, which shows that it is a companion case to Webb v. State, 27 Okla. Cr. 339, 227 Pac. 907, this day affirmed by this court, to which case reference is made for further particulars. The facts and circumstances and the law involved in these two eases are similar. Griffin, like Webb, was a trusted employe of a furniture company in Muskogee, who took advantage of his access to the warehouse of his employer to steal and purloin the merchandise charged in the information, together with other goods not specifically described, showing a systematic series of larcenies, accomplished by means of a violation of his trust as an employe of this person, from whom the goods were taken.

There being no fundamental error apparent, the judgment of the trial court is affirmed.


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    WILLIE WEBB v. STATE.
    No. A-4512.
    Opinion Filed Aug. 9, 1924.
    (227 Pac. 907.)
    Appeal from District Court, Muskogee County; Benj. B. Wheeler, Judge.
    Willie Webb was convicted of grand larceny, and appeals.
    Affirmed.
    P. A. Gavin, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Willie Webb, plaintiff in error, defendant in the trial court, was on the 27th day of May, 1922, in the district court of Muskogee county, convicted of grand larceny. By the verdict of the jury his punishment was fixed at confinement in the penitentiary for a term of five years.

The time for filing a brief supporting this appeal has long since passed, and the cause has been regularly submitted on the record. This fact, together with an examination of the record, indicates that the appeal has been abandoned. The defendant was an employe of a furniture company at Muskogee, and the evidence indicates that from time to time he secretly took from the warerooms of his employer pieces of furniture and other valuable merchandise, some of which he took to his own home for his own personal use, and other portions of which he sold to different persons, retaining the money received from such sales; a systematic series of thefts from his employers, accomplished by means of his trusted access to the warerooms of these employers. ¡This plan and system was shown by the taking of other articles not described in the information. Under the circumstances, the proof of other thefts, explanatory of the system and manner of taking the things specifically charged, was admissible.

Finding no fundamental error in the record, the judgment of the trial court is affirmed.


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    JOHN RATZELL v. STATE.
    No. A-4513.
    Opinion Filed Aug. 9, 1924.
    (228 Pac. 166.)
    (Syllabus.)
    1. Searches and Seizures — Search of Unfrequented Premises Remote from Home not Unreasonable. A search for liquor or appliances for whisky making in woods, thickets, unfrequented ravines, or pastures, not near the place of abode, where the search would in no way invade or disturb the privacy of the home or the legitimate business of the suspected violator of the law, is not an unreasonable search, within the 'meaning of our Constitution.
    2. Same — Constitutional Protection Invokable Only by One Whose Private Rights Disturbed. The constitutional protection against unreasonable search or seizure can be invoked only by the person whose private rights have been or may be disturbed.
    3. ■ Intoxicating Liquors — Evidence Sustaining Conviction for Attempt to Manufacture. The dipping of mash from one vessel into another, where a still and other appliance for making whisky, including 16 or 18 barrels of mash, are also present, constitutes sufficient overt act to support a conviction of attempting to manufacture whisky.
    Appeal from County Court, Cauadiau County; W. M. Wallace, Judge.
    John Ratzell was convicted of an attempt to unlawfully manufacture whisky, and he appeals.
    Affirmed.
    E. T. Barbour, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

John Ratzell, plaintiff in error, defendant in the trial court, was on November 9, 1922, by a verdict of a jury rendered in the county court of Canadian county, convicted of an attempt to illegally manufacture whisky on October 17, 1922, with his punishment fixed at confinement in the county jail for a period of three months, and to pay a fine of $250.

Harry Smith, a laborer, in traveling from his place of abode to the northwest section of Canadian county in search of work, passed near a distillery which was in operation and around which there were some three or four people. After having worked for several days for a man by the name of Rollins he started to return to El Reno and in doing so passed through the premises where the still was located, as he had done on the previous occasion. In passing through these premises the second time he came upon some one whom he supposed to be the owner of the premises and who abused and berated him for passing that way and instructed him to stay off the premises.

This man was so vicious and violent in his abuse of Smith that Smith came on to El Reno and informed the officers of the existence of this distillery and about where it was. Smith was taken before a justice of the peace and made affidavit concerning the location of the still and a search warrant was issued and delivered to the officers, authorizing them to search certain premises described as section 35, 15 north, 10 west, alleged to be the premises of H. W. Powell. Smith then accompanied the officers and pointed out to them the distillery, located in a brushy, timbered, unfrequented, ravine on a different tract of land from that described in the search warrant. When the officers approached the distillery they found the defendant, who was not the owner of the land, dipping out mash and pouring it from one barrel to another. There were 16 or 18 barrels full or partly full of mash. They also found a complete distillery set up and in running order, a gasoline heater, and all other paraphernalia necessary for the manufacture of whisky.

As explanatory of the attitude of the defendant when apprehended-at the still we quote a portion of the testimony of the arresting officer:

“Q. Did you have a search warrant with you? A. Yes, sir.
“Q. Execute the search warrant? A. Yes, sir. He said he didn’t have no use for it when I gave it to him.
“Q. All right; what else was said? A. Well, I don’t remember. We had quite a conversation. He told us how he come to be in there. He moved in there with another fellow that had it already set up. Other party moved out; the: iparty that had possession wanted him to move off as soon as he got the batch run off. I don’t remember just exactly the words. The reason he hadn’t filled up any other barrels, they intended to move off. He said they hadn’t made anything since they moved in there; that if we hadn’t bothered them they would have made a little out of the run, but the way it was they would not make anything.
“Q. What was he doing? A. He had a half bushel, taking some mash out of a barrel when we walked up on him.
■ “Q. What was the condition of this? A. Well, it was all set up, this in a barrel with water in it.
(“Q. When you refer to this name it, if you please. A. Condenser.
“Q. The condenser was in a barrel of water? A. Yes, sir. One of'the pipes was up, I don’t remember which one; he said the cows or horses had knocked the other pipe down.
"Q. What I am getting at — was this still set up or partly set up? A. All up, but one pipe had been knocked off.
“Q. What was the condition of the barrels you spoke of around there? The barrels, the 16 or 18 barrels that were full of mash, what kind? A. Com chops, and I don’t know what all. Sugar, yeast.
“Q. Did you taste it to see if it was sweet? A. No, I didn’t taste it. And then there was quite a number of barrels that just had corn shops in them, had been wet and the liquor had been taken out of the barrels.
“Q. You say there was yeast there? A. Yes, sir.
“Q. "What quantity of yeast? A. Several cakes in a small box they come in.
“Q. What else was there other than the still, the barrels of chops, and the yeast? A. There was a gasoline stove and the gasoline pressure tank and quite a few tools, pliers, half bushel, bucket or two; there was a well there, pulley and ropes.”

The defendant claimed that he accidentally discovered the whisky plant and was there examining the outfit out of mere curiosity, and that he had no interest in the still or its operation.

Portions of this whisky making outfit were, over the objections of the defendant, introduced in evidence. The defendant in his brief claims that this conviction should be set aside. First, because the introduction in evidence of the containers and other apparatus was improper, because such exhibits were obtained by an illegal search and seizure; and, second, that there was no overt act proven sufficient to sustain the charge of an attempt to make whisky illegally.

In this state one engaged in the manufacture of intoxicating liquor or in its sale or transportation can claim no property rights in the outlawed, contraband liquor, as against the state, which has a paramount right to its possession. A seizure of such liquor or the utensils used in making it, by a peace officer, is not a seizure of private property belonging to the person in whose possession it is found, like a seizure of private papers or other things of value owned and controlled by the person in possession, which may be used for legitimate purposes. This deduction is made on authority of section 7014, Comp. Stat. 1921, as follows:

“When a violation of any provision of this chapter shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging so unlawfully used, and to take same immediately before the court or judge having jurisdiction in the premises, and there make complaint, under oath, charging the offense so committed, and he shall also make return, setting forth a particular description of the liquor and property seized, and of the place where the same was seized, whereupon the court or judge shall issue a warrant commanding and directing the officer to hold the property so seized in his possession until discharged by due process of law, and such property shall be held and a hearing and adjudication on said return be had in like manner as if the seizure had been made under a warrant therefor.”

However, the section of the statutes just quoted must operate in harmony with the provisions of our Constitution relating to search and seizure (section 30 of the Bill of Rights) as follows:

"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 up,on 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.”

The question now confronts us: Was this an "unreasonable search and seizure”?

In U. S. v. Bateman (D. C.) 278 Fed. 231, and in People v. Case, 220 Mich. 379, 190 N. W. 289, 27 A. L. R. 686, it was said:

" ‘Not all searches nor all seizures are forbidden, but only those that are unreasonable. Reasonable searches, therefore, may be allowed, and if the thing sought be found, it may be seized.’ * * * Our Constitution contains both a provision against intoxicating iiqnor and against unreasonable search and seizure. Every constitutional provision, as well as statutory, should be construed where possible to give effect to every other constitutional provision in the instrument.”

Taking the plain meaning of all words employed in their natural sense, there is no occasion for strained construction in dealing with the two separate prohibitions in the law. Each is clear, independent, and complete by itself. (The first recognizes search and seizure regardless of process, but restricted by the word "reasonable,” a comprehensive, master adjective compelling in performance the exercise of moderation and good judgment, to the exclusion of prejudice, temper, and passion. The second deals with warrants where time and circumstances permit or in reason require them, specifying restrictive essentials which protect the officer serving them, if fair on their face, even though ultimately shown unfounded and unreasonable — a wise precaution for his protection, as well as the public’s.

Our constitutional provision with reference to search and seizure relates to "persons, houses, papers and effects.” Another part of the Constitution, with the statutes designed to make the prohibition of the manufacture, sale, and transportation of intoxicating liquor effectual, might be construed as not within the term "effects.” A bootlegger has no right of possession of whisky as part of his effects; the right of possession, under section 7014 of our statutes, has been transferred to the state. True, the state has no right to unreasonably invade the privacy of the "person” or the "house” or "papers” of the bootlegger to obtain that possession. The figure of speech, "Every man’s house is his castle,” implies that it shall not be unreasonably invaded without the owner’s consent; and it has been held that "house,” "home,” or “premises” includes the curtilage surrounding it. "Curtil-age” is defined as a yard, courtyard, or piece of ground included within a fence surrounding a dwelling house; the area of land surrounding a house, and actually or by legal construction forming one inclosure with it. Webster’s International Diet. The word “premises” has practically the same meaning, unless manifestly of a more comprehensive meaning to be deduced from facts or circumstances indicative of some other meaning. Words & Phrases, First- and Second Series.

We think it would be stretching the meaning and purpose of this provision of our Constitution too far to hold that these terms include a place in an unfrequented ravine or pasture, not near the place of abode, where a seizure would in no way disturb the privacy of the home or the business or occupation of the suspected violator of the law. These constitutional and statutory provisions were not designed to protect bootleggers, rum runners, or other law violators. They were designed for the protection of innocent persons against arbitrary and unreasonable searches that invade the privacy of the ordinary affairs of life. One,who goes into the woods, thickets or pastures of sparsely settled communities in search of contraband goods is not necessarily a trespasser, and a search for outlawed goods in such places may be “reasonable” with the meaning of the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23.

In People v. Case, supra, the court said:

“These constitutional restrictions like others of that type are concisely stated in general but apt terms, and it was left for the courts of the country to determine in each case or class of cases what under the conditions shown constituted ‘excessive bail,’ ‘excessive fines,’ ‘cruel and unusual punishment,’ ‘unreasonable search and seizure,’ ” etc. “The generally recognized rule is fairly stated in the following annotation to 11 Fed Stat. Ann. (2d Ed.) p. 354: ‘The question whether a seizure or a search is unreasonable in the language of the Constitution is a judicial and not a legislative question; but in determining whether a seizure is or is not unreasonable, all of the [facts and] circumstances under which it is made must be looked to.’ ”

The conclusion herein stated is not intended to modify in any particular the holdings of this court in Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545.

There is still another reason why this defendant has no right to complain of an unreasonable search and seizure. There was no showing that the defendant was the owner of this thicket or ravine, nor that his home, permanent or temporary, was adjacent thereto. This constitutional protection may be invoked only by the person whose private rights have been or may be disturbed.

Construed along with other parts of the testimony, the part of the evidence quoted shows a sufficient overt act to support a conviction for an attempt to make whisky. A mere spectator, wholly disinterested except for curiosity, would hardly be engaged in transferring mash from one container into another, with a still close at hand and other appliances for making whisky likewise there. This fact together with defendant’s declarations as to what he had done in furtherance of the purpose to make whisky and what he was expecting to do, when intercepted, was sufficient. State v. Thomason, 23 Okla. Cr. 124, 212 Pac. 1026; Neivar v. State, 26 Okla. Cr. 112, 222 Pac. 279.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


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    ELMER GREEN v. STATE.
    No. A-4504.
    Opinion Filed Aug. 9, 1924.
    (227 Pac. 907.)

      (Syllabus.)

    1. Appeal and Error — Where no Briefs Filed, Appeal Assumed Without Merit. Where no briefs are filed, the court may as- . sume that the appeal is without merit.
    2. Intoxicating Liquors — Evidence Sustaining Conviction of Unlawful Manufacture. The evidence is sufficient to support the verdict, and the record shows that defendant was in all essential particulars afforded a fair trial.
    Appeal from County Court, Canadian County; W. M. Wallace, Judge.
    Elmer Green was convicted of the unlawful manufacture of whisky, and he appeals.
    Affirmed.
    E. T. Barbour and E. C. Patton, for plaintiff in error.
    The Attorney General and Baxter Taylor, Asst. Atty. Gen., for the State.
   BESSEY, J.

Elmer Green, plaintiff in error, defendant below, was by information charged with manufacturing whis-ky illegally. At the trial, by the verdict of a jury, he was found guilty as charged, with his punishment fixed at confinement in the county jail for a period of six months and to pay a fine of $fi00.

. The testimony indicates that on the night of October 8, 1922, at a secluded spot on a farm in Canadian county, the defendant and Ed Neivar and another were operating two stills. A rural mail carrier, some neighbor farmers, and an officer, seven persons in all, watched the operation of these stills for a period of two or three hours, and at about 1 o’clock a. m. they surrounded the place and effected the arrest of the accused.

According to the state’s witnesses the defendant offered to pay them money if they would give him his liberty. At that time 'defendant declared that he had no connection with the operation of the stills, and that he had just arrived to have a business conference with Ed Neivar; that Neivar’s wife had directed him where to find Neivar, and that he ha'd gone to the spot where he was arrested for that purpose. At the trial the defendant, testifying in his own behalf, denied that he ever made the statement concerning his presence at the still as stated by the state’s witnesses, and denied that he had offered them money to let him go. He stated at the trial that he went to this place early in the evening to buy a gallon of whisky, and remained there awaiting the process of distillation until past midnight and up to the time of his arrest.

, Defendant’s explanation was contrary to reason and contrary to the facts as related by the several state’s witnesses; it is not surprising that the jury did not believe him. Defendant admits, and the records of this court show, that this was not his first violation of the prohibitory law.

Defendant has filed no brief supporting his appeal. We assume, therefore, that the appeal has been abandoned. However, we glean from the record that he was afforded a fair trial, and that the penalty assessed by the jury was under the circumstances justified.

The judgment of the trial court is affirmed.

MATSON, P. J., and DOYLE, J., concur.


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    RICHARD BIRKES v. STATE.
    No. A-4990.
    Opinion Filed July 7, 1924.
    Rehearing Denied Aug. 11, 1924.
    (227 Pac. 895.)
    (Syllabus.)
    1. Homicida — Evidence of Theft of Automobile Used by Defendants. Evidence of the theft of an automobile used by the defendants in conveying themselves to the bank where the homicide occurred, and later used in their attempt to escape from the scene of the crime, was admissible, notwithstanding the fact that such evidence showed that another crime had been committed by the defendants.
    2. Trial — Instruction as to Burden of Proof and Reasonable Doubt Held Cured. The instructions as a whole held fair to the defendant; any vice that may have existed in instruction 10a relating to the burden of proof and reasonable doubt was cured by the other instructions given.
    Appeal from District Court, Craig County; A. C. Brewster, Judge.
    Richard Birkes was convicted of murder, and he appeals.
    Affirmed.
    E. M. Probasco and Jess L. Ballard, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Richard Birkes, Allison Ivey, and Raymond Thomas were, by information filed in the district court of Craig county September 15, 1923, jointly charged with having murdered Frank Pitts, cashier of a bank at Ketchum, Okla., on August 9, 1923. .Thomas took a severance, and Birkes and Ivey were tried jointly, resulting in a verdict of guilty, with the punishment of Birkes fixed at death and of Ivey at imprisonment in the penitentiary for the term of his natural life. From the judgment rendered on the separate verdict against him Birkes alone appeals.

These three defendants on the day of the crime came to the bank in a stolen automobile, and by force of arms attempted to rob the bank. Birkes and Ivey entered the bank, and Thomas remained outside in the automobile. Birkes, with a loaded pistol pointed at the bank cashier, Mr. Pitts, commanded him to hold up his hands. This the cashier either failed or refused to do, or else did not comply promptly with the demand. Birkes thereupon fired his pistol, mortally wounding the cashier, who died within a few minutes. Two more shots were fired, and the bandits then fled in the waiting automobile driven by Thomas. The participants in the crime were soon afterwards captured and placed in jail.

This was a case of vicious, unprovoked murder, without extenuating circumstances. There was no doubt about the identity of each of the three persons named and their participation in the crime. Neither Birkes nor Ivey offered any evidence in his own behalf at the trial, and under the circumstances it would seem that there was none that could be offered. From these circumstances and others appearing in the record we assume that the appeal by Birkes to this court is taken in the hope that the court will modify the death sentence as to him to life imprisonment or remand the cause for a new trial, and that another jury might assess the lighter punishment.

The defendant complains that the court erred in permitting proof of the stealing of the automobile just prior to the attempted robbery and the homicide. The proof shows that this automobile was taken by force from two young men a short time before the attempted robbery of the bank; that the bandits used this car to convey themselves to the bank, and afterwards used it again in their attempt to get away from the scene of the crime. The evidence was admissible as explanatory of the commission of the crime charged, notwithstanding the fact that the proof showed that another crime had been committed by the defendants. Vickers v. U. S., 1 Okla. Cr. 452, 98 Pac. 467; Littrell v. State, 21 Okla. Cr. 466, 208 Pac. 1048.

The defendant complains of several of the instructions to the jury, particularly of instruction numbered 10a, which is as follows:

“You are instructed that upon a trial for murder, where the commission of the homicide by the defendants is proven beyond a reasonable doubt, the burden of proving circumstances of mitigation or that justify the homicide devolves upon the defendants, unless the proof upon the part of the prosecution amounts only to manslaughter, or that the defendants were justifiable; but where such burden of proving circumstances that mitigate or justify a homicide devolves upon the defendants, under this instruction, you are instructed that the amount of evidence necessary for that purpose is fixed by law as being such as is sufficient to create in your minds a reasonable doubt upon that issue, and if the evidence offered by the defendants, where it is the duty of the defendants to do so under this instruction, is strong enough to create in your minds a reasonable doubt as to their guilt of the crime charged in the information, then it would be your duty to acquit them.”

At the trial no exception was taken to the giving of this instruction; it was urged as error for the first time in defendant’s motion for a new trial.

Section 2719, Comp. Stat. 1921, reads as follows:

“Upon a trial for murder, the commission of the homicide by the defendant being proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

It will be seen that the court in this instruction adopted the language of the statute, following it by a qualifying clause, “that the amount of evidence for that purpose (evidence showing justification or mitigation) is fixed by law as being such as is sufficient to create in your minds a reasonable doubt upon that issue, and, if the evidence offered by the defendants, where it is the duty of the defendants to do so * * * is strong enough to create a reasonable doubt, * * * it will be your duty to acquit them.”

This instruction might have been improved by using for the words in italics (under scored) the words “upon all the issues involved.” However, jurors are not inclined to indulge in fine distinctions of syntax, and this instruction relating to the burden of proof and reasonable doubt must be considered and construed in connection with all the other instructions given. The court in other instructions told the jurors that the presumption of innocence of the defendant existed' throughout the trial until every material allegation of the information was proved beyond a reasonable doubt; that the death of the person alleged to have been killed and the fact that the accused did the killing must be established beyond a reasonable doubt; that a felonious motive or design to effect death is inferred from the fact of the killing, unless the circumstances are such as to raise a reasonable doubt as to whether such design existed. Over and over again the jury were admonished that the state must prove the various issues beyond a reasonable doubt. We therefore hold'that under the circumstances here the vice pointed out in instruction No. 10a was cured and rendered harmless by the other instructions given.

For a more exhaustive treatment of the subject of correct instructions on proof of mitigating circumstances or circumstances indicative of justification in a homicide case sec the case of Dorris v. State, 27 Okla. Cr. 208, 226 Pac. 590. We here reiterate the rule and the reasoning supporting the rule stated in the Dorris Case, which should be read and analyzed to fully comprehend the rule established by this and other courts.

The instructions of the court to the jury as a whole were fair to the defendant, and the record otherwise shows that the defendant had a fair trial. Other alleged errors urged by the defendant have been carefully examined and found to be without merit.

The day set by the trial court for the execution of the death sentence having passed, owing to the pendency of this appeai, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Craig county be carried into execution on Friday, the 5th day of September, 1924. The warden of the penitentiary at McAl-ester is ordered and directed to cause the sentence to be executed according to law.

MATSON, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    C. E. NICKENS v. STATE.
    No. A-4484.
    Opinion Filed Aug. 15, 1924.
    (227 Pac. 904.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Unlawful Manufacture. In a prosecution for manufacturing whisky, evidence considered, and held sufficient to sustain a verdict and judgment of conviction.
    Appeal from County Court, Tillman County; W. H. Hus-sey, Judge.
    C. E. Nickens was convicted of the unlawful manufacture of intoxicating liquors, and appeals.
    Affirmed.

      Wilson & Roe, for plaintiff in error.
    George F. Short, Atty. Gen., and. J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that on or about the 17th day of March, 1922, C. E. Nickens and Raymond Moore did commit the crime of manufacturing whisky. It appears that Raymond Moore pleaded guilty to this information.

Upon his trial the jury found appellant Nickens guilty and fixed his punishment at confinement in the county jail for three months and ‘a fine of $250. He has appealed from the judgment rendered on the verdict.

The assignments of error question the sufficiency of the evidence to sustain the verdict.

It appears that appellant, an oil field worker, some time in December, 1921, rented about 40 acres of land on the Dan Sutherland farm; another party was in possession of the tenant house on the premises, and appellant, Nickens, assisted by his codefendant, Moore, constructed a dugout 18 by 24 feet, walled up by 2 by 12 planks and with roof of 2-ineh planks, and an opening 3 by 4 feet in the roof.

Appellant and his wife occupied the dugout for about ten days, then moved into the tenant house. In March appellant left the farm and went back to the oil fields in Texas. He had been gone five or six days when the officers searched the premises and found in appellant’s dugout a 50-gallon still and a smaller still, both equipped as a double run still with gasoline burners beneath, also a barrel of gasoline, 20 barrels of mash, and a small amount of whisky in a jug. The proof showed that the stills had been in operation in this dugout; the large still was on a brick foundation.

"When the state rested, defendant moved the court to instruct the jury to return a verdict of acquittal. Overruled. Exception allowed.

The testimony of the defendant in his own behalf was all that was offered on the part of the defense. He testified:

“I rented this place from Mr. Sutherland and told him I would dig a dugout to live in until I could get possession of the house. I had been at work three or four days when Raymond Moore showed up, and he said, ‘I will help you,’ and he helped me finish. I had it floored and had a ladder fixed up and made it as convenient as I could for a dugout. Then my wife came. We lived in the dugout about ten days, then moved into the house, which was about a quarter of a mile from the dugout. Raymond Moore said he believed he would stay in the dugout for a while. I was never down there again. I did not know that the stills were in the dugout, and I did not manufacture any whisky there.”

It is the province of a jury in a criminal case to try the issue joined by a plea of not guilty, and if the evidence of the state will support a conviction this court will not ordinarily interfere. In this case the evidence as to the commission of the offense and as to the guilt of this defendant was in our opinion sufficient to support a conviction, and, it appearing that the defendant had a fair trial, the judgment of the lower court is affirmed.

MATSON, P. J., and BESSEY, J., concur.


text:
    JESSE TAYLOR v. STATE.
    No. A-4483.
    Opinion Filed Aug. 15, 1924.
    (227 Pac. 905.)
    (Syllabus.)
    Appeal and Error — Disposition of Cause Where Appellant Violates Stay Bond. When a person who has been convicted of a crime appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the condition of his bond by leaving the state without leave of court, it' is within the discretion of the court whether it will proceed to a decision of the cause, or dismiss the appeal.
    Appeal from County Court, Tillman County; W. H. Hus-sey, Judge.
    Jesse Taylor was convicted of the unlawful manufacture of intoxicating liquor, and he appeals.
    Appeal dismissed.
    P. Mounts, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Jesse Taylor, was convicted on an information charging that on or about the 1st day of April, 1922, he 'did eommit the crime of manufacturing intoxicating liquor, to wit, whisky, and his punishment fixed at confinement in the county jail for six months and a fine of $500. From the judgment rendered on the verdict on the 9th day of September, 1922, an appeal was duly perfected.

On March 14, 1924, the Attorney General filed a motion to dismiss the appeal for the following reasons:

“First, plaintiff in error has voluntarily and without leave of court first obtained moved without the jurisdiction of this court and is now residing in the state of Texas, where the execution of the judgment pronounced in the court below cannot and could not be enforced against him. As evidence thereof, see attached affidavit of E. J. May, sheriff, and J. R. Huggins, county attorney of Tillman county, Oklahoma.
“Your petitioner respectfully states to the court that he has been informed by the county attorney of Tillman county that after the conviction herein of the plaintiff in error and after his appeal thereon was lodged in this court plaintiff in error deserted his wife and children and took up with and fled from the jurisdiction of this court in company with a woman other than his wife, and that from the best information that can be obtained he is now residing in the state of Texas in open adultery with said paramour.
"Wherefore, your petitioner prays this court to dismiss this appeal pending herein.”

This motion is supported by the affidavit of E. J. May, sheriff, and J. R. Huggins, county attorney of Tillman county. No response has been filed to said motion.

It is the settled rule in this state that when a person has been convicted of crime and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the condition of his bond by leaving the state without leave of the court, it is within the 'discretion of the court whether it will proceed to a decision of the cause or dismiss the appeal. Bryce v. State, 14 Okla. Cr. 456, 172 Pac. 976; Holden v. State, 14 Okla. Cr. 463, 172 Pac. 977.

We are of the opinion that the motion to dismiss the appeal should be sustained as coming within the rule declared by this court in numerous decisions that this court will not consider an appeal unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered or entered in the case.

It follows that plaintiff in error has waived the right to have his appeal in this case considered and determined. The appeal is therefore dismissed. Mandate forthwith.

MATSON, P. J., and BESSEY, J., concur.


text:
    JIM VANN v. STATE.
    No. A-4433.
    Opinion Filed Aug. 16, 1924.
    (227 Pac. 905.)
    (Syllabus.)
    Larceny — Evidence Insufficient to Support .Conviction of Larceny of Hog. la a prosecution for larceny of a hog, evidence considered, and held insufficient to support the verdict and judgment of conviction.
    Appeal from District Court, Adair County; J. TI. Jarman, Judge.
    Jim Vann was convicted of larceny of live stock, and he appeals.
    Reversed.
    Frye & Frye and Arnold & Woodruff, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Jim Vann was convicted on an information charging him with stealing one black barrow, the personal property of Strawd Price, and his punishment fixed at imprisonment in the penitentiary for the term of two years. He has appealed from the judgment rendered on the verdict. It is insisted that the verdict of the jury is not sustained by sufficient evidence.

The prosecuting witness, Strawd Price, testified that he lived in Sequoyah county, about four miles from Jim Vann’s place, in Adair county; that during the month of October, 1920, he owned about 40 hogs which were running on the open range; that some time in the month of October he missed one black barrow, weight about 175 pounds; that about the 10th of November he found it at Wash Beaver’s, and John Beaver was claiming to be the owner; that said hog was black and marked with crop and underbit in right ear and crop and slit in the left ear, which mark was duly recorded in the office of county clerk of Sequoyah county; that he did not give consent to Jim Vann to take said hog.

John Beaver testified that Price, the prosecuting witness, came to his house and claimed the hog that he had bought from Jim Vann about the 23d day of October for $14; that he was living about three miles from Jim Vann’s place; that when he bought the hog he took it out of a pen at Vann’s place, and put it in a pen at his brother’s place.

J. M. Barnes and Noah Barnes each testified that they were making molasses at Strawd Price’s in the fall of 1920, and noticed three barrows running around the sorghum mill, all marked crop and underbit in right ear and crop and slit in the left ear, and one was a coal black barrow.

Otto Price testified that one of his father’s hogs, a coal black barrow, was missing in October; that he assisted his father in hauling this hog home from Wash Beaver’s.

For the defense, Andrew Vann testified that he had lived three miles east of Buch, in Adair county, for 20 years; that the hog with which his brother Jim is charged with stealing belonged to Jim Vann, was about two years old, and was marked with crop and underbit in right ear and crop and slit in left ear, which was Jim Vann’s mark; that Jim Vann had used this mark about 20 years; that he had noticed that particular hog at Jim Vann’s place off and on for more than a year, and was present and helped John Beaver put the hog in the wagon; that Jim Vann had about 12 head of hogs running around his mother’s place, about one mile from where witness lived.

Lizzie Lob testified that she knows the hog which Jim Vann sold to John Beaver, and it belonged to Jim Vann; that she had seen this hog often and it had Jim Vann’s mark.

Joe Lob testified that he had known Jim Vann about 15 years, knew his hog mark, and knows that Jim Vann owned this black barrow; that it was two years old and he saw this barrow often for more than a year running around his house with Jim Vann’s hogs.

Susie Vann, Jim Vann’s wife, testified that her husband raised this black barrow, that it was about two years old marked with crop and underbit in right ear and crop and slit, in left ear, Jim Vann’s mark, one that he had used since they had been living together, about 12 years.

Jim Vann testified that he was a full-blood Cherokee, that he owned the hog in question, had raised it from a pig, that it was marked with his mark, weight about 180 pounds, that he had been using that mark for about 15 years; when he heard Mr. Price claimed this hog he went to Stillwell and consulted Judge Windsor, justice of the peace, about getting out replevin papers to get this hog from Price, and Judge Windsor told him that suit would have to be brought in Se-quoyah county by John Beaver; that Wash Baldridge helped to mark this particular hog, that he had about 12 head of hogs on the range at that time, consisting of black, and black and white hogs; that John Beaver paid him $14 for this hog.

Wash Baldridge testified that he had known this black barrow, and knew it belonged to Jim Vann; that he had helped Jim Vann mark it.

A careful consideration of the evidence satisfies us that it is insufficient to sustain a verdict of guilty. It appears without conflict that the mark on the alleged stolen hog had been used by the defendant for about 15 years. ¡The prosecuting witness is the only witness for the state who identifies the hog in question as his property. Five witnesses testified positively that the hog in question was the property of the defendant. These witnesses were not impeached in any way. We think that when the evidence is all analyzed and given its proper force, it cannot be said that it would satisfy any fair minded man of the defendant’s guilt beyond a reasonable doubt, and for this reason we think the verdict of the jury was the result of passion, prejudice, or partiality. Other questions are raised in the brief, but in view of the conclusion already reached, which is decisive of this appeal, we do not consider them.

Because the evidence is insufficient to sustain the verdict, the judgment of the lower court is reversed.

MATSON, P. J., and BESSET, J., concur.