text:
    CARL DAVID v. STATE.
    No. A-4696.
    Opinion Filed Dec. 10, 1924.
    (230 Pac. 941.)
    (Syllabus.)
    Larceny — Evidence Sustaining Conviction. In a prosecution for grand larceny, evidence held to sustain the conviction, and that no material error was committed on the trial.
    Appeal from District Court, Alfalfa County; James B. Cullison, Judge.
    Carl David was convicted of grand larceny, and he appeals.
    Affirmed.
    Titus & Talbot, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that Carl David and John Goertz, in Alfalfa county—

“on the 1st day of September, 1922, did then and there felon-iously, knowingly wrongfully, unlawfully, willfully, fraudulently, and stealthily take, steal, and carry away two sets of harness, the personal property of A. W- Dillon, and of the value of one hundred and twenty-five ($125) dollars with the unlawful, fraudulent, and felonious intent then and there, on the part of him, the said Carl David, and on the part of him the said John. Goertz, to deprive the said A. W. Dillon, the owner thereof, of said property, and to convert the same to the use and benefit of them, the said Carl David and the said John Goertz.”

A severance was granted, and upon his separate trial the defendant Carl Davis was found guilty; the jury leaving the punishment to be assessed by the court. Motions for new trial and in arrest of judgment were duly filed and overruled, and on the 23d day of November, 1922, the court rendered judgment on the verdict and sentenced the defendant to imprisonment in the penitentiary at McAlester for the term of one year.

From the judgment an appeal was taken, by filing in this court, on May 21, 1923, a petition in error with case-made. However, the defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed. To this information the defendant demurred, and the demurrer was overruled.

The first error assigned is based on this ruling. We deem it sufficient to say that the demurrer was properly overruled.

Several assignments of error are directed to the admission and rejection of testimony. We have carefully examined them, and find no error in the rulings of the court in this regard. We also find that the evidence is sufficient to sustain the verdict, and that the instructions fully state the law applicable to the ease.

A patient examination of the record has satisfied us that no error was committed on the trial prejudicial to the rights of the defendants, and the judgment of conviction is accordingly affirmed.

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


source: Caselaw Access Project

author: MATSON, P. J.

license: Public Domain

text:
    O. W. HUDSON v. STATE.
    No. A-4671.
    Opinion Filed Dec. 10, 1924.
    (230 Pac. 940.)
    (Syllabus.)
    Appeal andi Error — Province of Court on Appeal in Felony Case in Absence of Brief and Oral Argument. In an appeal in a felony case, where no brief is filed, and no appearance made to orally argue the cause at the time it is submitted, the court will examine the record, including- the transcript of the evidence in connection with the errors assigned, and if the evidence is sufficient to support the verdict and judgment, and no error of law occurred during the progress of the trial prejudicial to the substantial rights of plaintiff in error, the judgment will be affirmed.
    Appeal from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.
    O. W. Hudson was convicted of the crime of rape in the second degree, and sentenced to imprisonment in the penitentiary for five years, and appeals.
    Affirmed.
    O. P. Estes, for plaintiff in error.
    The Attorney General, for the State.
   MATSON, P. J.

The plaintiff in error, O. W. Hudson, was by information filed in the district court of Oklahoma county on May 17, 1922, charged with the crime of rape. Said crime according to the allegations of the information was alleged to have been committed on or about the 5th day of April, 1922, in Oklahoma county, by accomplishing an act of sexual intercourse with one Lillian Hudson, the daughter of plaintiff in error, a female under the age of 16 years.

The cause was tried to a jury in the month of November, 1922, resulting in a verdict of guilty, with punishment fixed as above stated. The trial court pronounced judgment on the verdict on the 23d day of November, 1922, from which judgment the plaintiff in error appealed to this court, by filing herein on the 8th day of May, 1923, his petition in error with case-made attached. The case was finally submitted on the record on October 9, 1924.

This being an appeal from a judgment of conviction for a felony, the court has carefully examined the entire record in connection with the errors assigned. The evidence is somewhat voluminous, and discloses that at the time of the commission of the alleged offense the prosecuting witness was living with her father and stepmother in a residence at 305 Chickasaw street in Oklahoma City. The prosecutrix testified that on the night of March 29, 1922, the plaintiff in error accomplished an act of sexual intercourse with her in his bed at said place. In this the prosecutrix was corroborated by two other witnesses. There was also evidence of the commission of a similar act by plaintiff in error on the prosecutrix in Wheeler Park, Oklahoma City, about six weeks previous to the act relied upon for a conviction in this case. There is also corroboration as to the commission of this act of sexual intercourse in Wheeler Park. The evidence of the state, therefore, if believed, is amply sufficient to sustain the verdict and judgment. The trial court’s rulings on the admission and rejection of evidence were fair to the defendant. The instructions correctly cover ■ the law of the case in a concise maimer. The plaintiff in error denied the commission of the offense, and, while it is hard to believe that a father would be guilty of so abusing his child, it was for the jury to say, where there is a direct conflict in the evidence, whom they will believe and whom disbelieve.

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

BESSEY and DOYLE, JJ., concur.


author: BESSEY, J.

text:
    TOM DOBBS v. STATE.
    No. A-4281.
    Opinion Filed Dec. 10, 1924.
    (230 Pac. 939.)
    (Syllabus.)
    Burglary — Evidence Insufficient to Sustain Conviction in Second Degree. The evidence held insufficient to support a charge of burglary.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    Tom Dobbs was convicted of second degree burglary, and he appeals.
    Beversed and remanded.
    E. J. Biddings, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, J.

Tom Dobbs, plaintiff in error, defendant below, was by a verdict of a jury, rendered in the district court of Stephens county on October 14, 1921, found guilty of burglary in the second degree, with his punishment assessed at confinement in the penitentiary for a term of two years. The conviction rests upon circumstantial evidence, and the defendant urges as a reason why the judgment of the trial court should be reversed that the evidence is insufficient to support the verdict.

The record shows that on the last Saturday night of June, 1921 (June 28th), a general merchandise store, situated in the country about ten miles east of Duncan, was burglarized; the perpetrators carrying away a number of automobile tires, some pocket knives, and chewing gum. About three weeks later, at Lawton, some 35 miles distant from the scene of the burglary, the defendant Dobbs was found in possession of three Bevere tires, a part of the loot taken from the store. One of the tires'was found in defendant’s room, and the other two were on a Bnick car belonging to him. The defendant gave several accounts of how he came into possession of these tires. To one officer he said he purchased them in Amarillo, Tex.; to another he stated he bought them from a stranger in a pool hall in Lawton; at the trial he testified that he bought them from Lawton, driving south, two or three days after the bur-after the burglary. One witness testified that he saw the defendant and two other men in a large ear five or six miles from Lawton, driving south, two or three days after the burglary; that all three men were sitting in the front seat of the car; and that in the back' seat were some bulky articles, covered by a quilt.

The testimony of the defendant, corroborated by a number of apparently reputable witnesses, tended to show that he was not in Stephens county the night of the burglary. His explanation of his- possession of the tires was that, while his car was being repaired in a garage in Duncan, he purchased these tires for $75 cash from two men who came there, and who first tried to sell them to the owner of the garage. The owner of the garage corroborated the defendant in this regard. The court correctly instructed the jury upon the law of circumstantial evidence, and upon the effect of being in possession of property recently stolen.

The evidence in this case is far from conclusive of defendant’s guilt, and not sufficient to exclude every other reasonable hypothesis consistent with defendant’s innocence. The defendant may have participated in this burglary, or he may have received this stolen property, knowing it to be stolen, but these are mere surmises, not supported by sufficient proof. His conflicting stories told to the officers were well calculated to arouse suspicion against him, but that suspicion or the fact, even, that the defendant was palpably untruthful, coupled with his possession of the stolen goods three weeks after the burglary, unsupported by other testimony, is not sufficient to overcome his alibi established by a number of reputable witnesses, and the testimony of the garage owner that he saw the defendant purchase these tires.

Upon mature deliberation we believe that this was not merely a question of the weight of the testimony for the jury, but, on the contrary, it presents a want of proof connecting the defendant with the burglary and asportation of the property stolen. The fact that the defendant was seen two days or more after the burglary near Lawton, with others in an automobile in which there was something covered with a quilt, is too remote to establish the identity of the property or the defendant’s connection with its theft or asportation.

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

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


text:
    J. O. ALLEN v. STATE.
    No. A-4246.
    Opinion Filed Dec. 10, 1924.
    (231 Pac. 96.)
    (Syllabus.)
    1. Burglary — Doubt as to Whether Refrigerator is Part of Building or Trade Fixture to be Resolved in Favor of Accused. Where an employee in an ice and cold storage plant is charged with burglary by breaking into a refrigerator or cold storage vault, and the evidence is not clear as to whether the refrigerator was “a part of the building,” within the meaning of the penal statute on that point, or was a trade fixture only, that doubt should be resolved in favor of the defendant.
    2. Jury — Qualifications—Secret Order Membership. Mere membership in a secret order is no ground for a challenge of a juror for cause, but that fact may be a subject of inquiry, where a sufficient proffer is made, in good faith, showing that such membership may amount to bias, express or implied.

      Appeal from District Court, Muskogee County; Benj. B. Wheeler, Judge.
    J. 0. Allen was convicted of second degree burglary, and he appeals.
    Reversed and remanded.
    Disney & Wheeler, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, J.

J. 0. Allen, plaintiff in error, defendant in the trial court, was convicted in the district court of Muskogee county of the crime of burglary in the second degree. By the verdict of the jury his punishment was fixed at confinement in the penitentiary for a term of two years.

The evidence shows that Fred B. Reed, Kenneth Reed, Tom Reed, and K. K. Hendricks comprised the stockholders of an ice manufacturing and storage corporation; that Fred B. Reed was its president and manager, and that Kenneth Reed was an assistant manager; that this corporation, in addition to the manufacturing of ice, maintained a cold storage plant; that the ice, as it was taken from the containers in which it was frozen, was stored in built-in refrigerators or vaults constructed of insulated materials, cement, wood, and cork, made in sections; that one of these refrigerating compartments or vaults was equipped and used for the preservation of fish and oysters kept for sale.

The defendant was the night manager and night foreman of the ice manufacturing and ice storage departments, and, among other duties, was required each hour during the night to "pull the ice” from the freezing containers, and look after the running of the engine and machinery, and to sell ice during the night, at retail.

This business was carried on in leased premises, on the first floor of the convention hall building, a large structure extending from one street to another. The prosecuting witness Fred Feed, who was the managing president, claimed that the defendant had charge only of the engine room and machinery, the machinery and equipment used in- freezing the ice, and the storage vaults for the ice, not including the fish and oyster refrigerator or compartment. The defendant claims that he had supervision and was overseer, during the night of every part of the business excepting only the office, including the fish and oyster refrigerator compartment. The entrance door to this fish and oyster compartment was so constructed as to fit tightly by means of a wooden wedge or pin, forced into a hasp or staple.

The prosecuting witness had sleeping quarters in an upper story room of the building, and had installed an electrical attachment connected to the door of this fish and oyster storage compartment and leading by wires to this room, as á burglar alarm. About 5 o’clock in the morning this alarm awoke the persecuting witness, and he went to this vault, and there found the defendant emerging with a can containing a quantity of fish. The defendant explained that he was in the act of selling and delivering the fish to some Indians who were about to leave on an early morning train; that he expected to collect the retail price of the fish from the Indians and place it in his cash register along with the money he had collected during the night for the ice he had sold. This explanation did not satisfy the prosecuting witness, who called the police, and caused the defendant to be placed under arrest.

The defendant at the trial claimed that his entrance into this storage compartment was authorized, and was accomplished without the breaking of locks or the use of any unlawful force, and that it was known to his employers that he sometimes entered this vault for inspection or other purposes; that at one time he had been commended by Kenneth Reed for going into this compartment and repairing some ammonia pipes which had broken. The prosecuting witness denied that defendant was authorized or permitted to enter this compartment. Kenneth Reed, the assistant manager, did not testify.

The defendant, in this appeal, claims that the evidence is insufficient to support the verdict. This prosecution was brought under the provisions of the second subdivision of section 2063, Comp. Stat. 1921, which is as follows:

“Any person who breaks and enters in the day time or in the night time, either: First. Any building within the cur-tilage of a dwelling house, but not forming a part thereof; or, Second. Any building or any part of any building, booth, tent, railroad car, vessel or other structure or erection in which any property is kept, with intent to steal therein or to commit any felony, is guilty of burglary in the second degree. ’ ’

Assuming that the defendant’s entrance into this fish and oyster compartment was unauthorized (and as to this issue the evidence was in direct conflict), and that he was apprehended in the act of stealing fish, the question arises, Was this storage compartment or refrigerator a part of the building, within the meaning of the statute? This compartment was constructed of wood, cork, and cement composition, against one of the walls of the leased premises. The evidence does not disclose whether it was a mere fixture, or whether it was so constructed as to be a part of the building.

It has been held that a servant may be guilty of burglary by entering a room in his master’s house by force, with felonious design, and the force necessary to effect the entrance need be no more than the lifting of a latch; but the intent to commit the felony must exist at the time of the breaking and entry. If the intent should be suddenly formed in the servant’s mind to steal some of his master’s property located in a portion of the house to which the servant has free and ready access in the usual course of his employment, he is not guilty of burglary if he takes such property. 4 R. C. L. 424, and eases cited; note, 139 Am. St. Rep. 1063; State v. Sullivan, 34 Idaho, 68, 199 P. 647, 17 A. L. R. 902. To break into trunks, cupboards, and the like, would not constitute burglary. 9 C. J. 1012. If the person entering has a right to do so, although he intend to commit and actually does commit a felony, and although he may enter in such a way as would be á breaking, if he had no right to enter, it will not be burglary. 9 Corpus Juris, 1016, and cases cited.

Since the evidence is not clear that this refrigerator compartment was a part of the building, within the meaning of the statute, that doubt should be resolved in favor of the defendant. As to whether or not he had been authorized to enter this compartment was a question of fact for the jury.

From the argument of counsel, and from the dialect used by the defendant in testifying, we assume that the defendant was a negro, although there is no positive testimony to: that effect in the record. On the examination of prospective jurors on their voir dire, a request was made for permission to interrogate them as to whether they were members of the Ku KLux Elan, in order that the defendant might intelligently exercise his peremptory challenges. This request was by the court denied. As was held in the case of Johnson v. State, 28 Okla. Cr. 254, 230 Pac. 525, the defendant, upon a proper showing, should be accorded that right. We are unable to determine from the record in this case whether the denial of that right operated to the prejudice of the defendant.

Because of the insufficient showing made, indicating that this fish and oyster compartment was a part of the building, as contemplated by statute, the cause is reversed and remanded.

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


author: DOYLE, J.

text:
    MARSHALL DICKSON v. STATE.
    No. A-4678.
    Opinion Filed Dec. 15, 1924.
    (231 Pac. 315.)
    (Syllabus.)
    1. Larceny — Title Laid in Ostensible Owner Having Possession. In an information charging larceny, the title to the alleged stolen property may be laid in the ostensible owner in whose possession it was when it was taken.
    2. Larceny — Possession in Person from Whom Property Stolen Sufficient Ownership. The actual status of the legal title to stolen property is no concern of the thief. Possession in person from whom property is stolen is sufficient ownership, in a larceny prosecution.
    3. Larceny — Name of Owner of Property Required to Identify Transaction. In a prosecution for larceny, the name of the owner of the property stolen is only required to identify the transaction, so that the defendant, by proper pleading, may protect himself against another prosecution for the same offense.
    Appeal from District Court, Choctaw County; G-. M. Barrett, Judge.
    Marshall Dickson was convicted of grand larceny, and he appeals.
    Affirmed.
    Warren & Welch, for plaintiff in error.
    George P. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction rendered on the verdict of a jury, finding the defendant guilty of grand larceny and fixing Ms punishment at imprisonment in the penitentiary for the term of one year.

The information charged the theft of 375 pounds of seed cotton, alleged to be the personal property of one Trave Patt. It is contended, for appellant, that there is a fatal variance between the allegation of ownership and the proof, in that it is alleged that the seed cotton was the property of Trave Patt, when the proof upon the part of the state shows that it was the property of Jess Patt, his father.

Trave Patt testified that his father, Jess Patt, rented the land, and that the cotton belonged to his father, but that his father had turned it over to him; that he, himself, had about 10 acres of cotton, and the cotton that was stolen was raised on the 10 acres his father had given to him, but that a fourth of the cotton belonged to the landlord.

This cannot be held to constitute- a variance, because the actual status of the legal title to stolen property is no concern of the thief. 25 Cyc. 89. The possession of the property by the alleged owner, Trave Patt, was sufficient to make it the subject of larceny, and the title may be held either in the owner or the possession from whom it is taken. Here the proof tends to show ownership as ' alleged. Section 2560 (Comp. Stats. 1921), Procedure Criminal, provides:

“When an offense involves the commission of, or an attempt to commit, a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material.” Shires v. State, 2 Okla. Cr. 89, 99 P. 1100; Ponosky v. State, 8 Okla. Cr. 116, 126 P. 451; Gunter v. State, 16 Okla. Cr. 476, 184 P. 797.

In the case of Little v. State, 21 Okla. Cr. 1, 204 P. 305, it was held that:

“Tbe actual condition of the legal title of property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be taken as the owner who is in personal possession of the property, and whose possession was unlawfully disturbed by the taking. The possessor of the goods from whom the thief took them may properly be described as the owner of the property in the indictment or information. ’ ’

The evidence clearly establishes the guilt of the defendant, and the instructions fairly state the law applicable to the case.

Finding no error prejudicial to the substantial rights of the defendant, the judgment of the lower court is affirmed.

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


text:
    PETE COMMITTI v. STATE.
    No. A-4653.
    Opinion Filed Dec. 15, 1924.
    (231 Pac. 316.)
    (Syllabus.)
    1. Evidence — Evidence Obtained by Unlawful Search Warrant, Inadmissible. Evidence obtained by a search of the defendant’s home, under a search warrant issued without authority of law, for the sole purpose of obtaining evidence against him, in violation of Bill of Eights, § 30, guaranteeing the security of the people in their right to be exempt in their persons, houses, and effects from unreasonable searches and seizures, is inadmissible against him.
    2. Trial — Intoxicating Liquors — Instruction, Following Statute, Defining “Prima Facie” as Used in Law Making Possession of Excess Amount of Liquor Prima Facie Evidence of Inte.ntion to Sell, Held Erroneous — Whether Possession of Amount of Liquor in Excess of Statutory Allowance Sufficient to Overcome Presumption of Innocence and Establish Guilt, for Jury.. Under section 6999, Comp. Stats. 1921, declaring that the keeping in excess of a certain amount of intoxicating liquors “shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors,” it is error to charge that “the term ‘prima facie,’ as used herein, means that it is such evidence as in the judgment of the law is sufficient to establish the fact of unlawful intent, .if it be credited by the jury, unless rebutted, and the contrary proved, and remains sufficient to establish the unlawful intent,” because it places upon defendant the burden of raising a reasonable doubt of his unlawful intent to so convey, sell, or dispose of such liquor. Since the statute only means to make such evidence competent and 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 innocence of a defendant and establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, is considered, is for the determination of the jury.
    Appeal from County Court, Latimer County; L. B. Kyle, Judge.
    Pete Committi was convicted of a violation of tbe prohibitory liquor law, and he appeals.
    Reversed.
    H. T. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

On an information charging that he did have in his possession one gallon of whisky with the unlawful intent to sell the same, Pete Committi was convicted and his punishment fixed at confinement in the county jail for 30 days and a fine of $200. He has appealed from the judgment rendered upon such conviction.

The evidence shows that a search warrant was issued on the affidavit of Austin Parks, sheriff, made on information and belief. Austin Parks, sheriff, testified that he went to the home of the defendant with three special officers and in executing the search warrant found a gallon glass container, nearly full of corn whisky, which he seized and placed in the jail; that some one poked the floor in the place where the jug was and broke it. There was no direct testimony tending to show unlawful intent.

The record shows that before the trial the defendant moved that the warrant of arrest and information be quashed on the ground of the illegal issuance of the warrant and search and seizure, and that the defendant also moved that the evidence be withdrawn from the consideration of the jury, for the reason that said evidence was illegally procured by reason of said illegal search warrant.

At the close of the state’s evidence, there was a motion' by the defendant for a directed verdict of acquittal, for the reason that the testimony was insufficient to warrant a verdict of guilty, and for the further reason that the search warrant under which said testimony was procured was illegal, which motion was overruled.

The defendant as a witness in his own behalf testified that he was a man of family, having a wife and four children, .had resided near Wilburton six or seven years, and was a butcher by occupation; that he had this whisky for his own personal use, and did not have the same for any unlawful purpose.

Counsel for the defendant requested the court to give the following instruction:

“The court instructs the jury that the term ‘prima facie’ evidence as used in the statute, and as heretofore defined to you in these instructions, is such evidence as in the judgment of the law is sufficient to establish the fact, if it be credited by the jury, and evidence of such possession is sufficient to establish the unlawful intent, unless rebutted or the contrary proven, 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 innocence of the defendant and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, is considered, is for the determination of the jury, and the term ‘prima facie’ evidence as applied to the evidence does not shift the burden of proof. H. T. Church, Attorney for Defendant.
‘‘Refused and excepted to by defendant. L. B. Kyle, Judge.”

In lieu thereof the court gave the following instruction:

‘‘V. You are instructed, gentlemen of the jury, that the keeping in excess of one gallon of whisky,' or one gallon of wine, or one cask of beer in any private residence by any person is prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors, and in this connection you are instructed that the term ‘prima facie,’ as used herein, means that it is such evidence as in the judgment of the law is sufficient to establish the fact of unlawful intent, if it be credited by the jury, unless rebutted and the contrary proved, and remains sufficient to establish the unlawful intent.
‘‘Given and excepted to by defendant.
‘‘Exception allowed. L. B. Kyle, County Judge.”

By numerous decisions of this court it is held that evidence obtained by officers of the court by an illegal search and seizure is inadmissible. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Allen v. State, 25 Okla. Cr. 31, 218 P. 896; Langham v. State, 25 Okla. Cr. 33, 218 P. 897; Foster v. State, 24 Okla. Cr. 36, 218 P. 898; Ashbrook v. State, 92 Okla. 287, 219 P. 347; Foley v. State, 25 Okla. Cr. 112, 219 P. 179; Magin v. State, 25 Okla. Cr. 361, 220 P. 666; Clark v. State, 25 Okla. Cr. 403, 220 P. 974; Dooley v. State, 25 Okla. Cr. 437, 221 P. 112; Russell v. State, 25 Okla. Cr. 423, 221 P. 113.

The instruction given by the court in connection with the statutory definition given of ‘‘prima facie evidence” is faulty, in that it places on the defendant the burden of rebutting the unlawful intent.

The instruction requested on the question of the presumption arising from possession of intoxicating liquor should have been given. Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071; Weirman v. State, 12 Okla. Cr. 100, 152 P. 141; Caffee v. State, 11 Okla. Cr. 485, 148 P. 680; Huff v. State, 12 Okla. Cr. 138, 152 P. 464; Beal v. State, 12 Okla. Cr. 157, 152 P. 808.

In the case of Butler v. State, 12 Okla. Cr. 530, 159 P. 1090, it was held that under section 6999, Comp. Stats. 1921, declaring the keeping in excess of a certain amount of intoxicating liquor “shall be ‘prima facie evidence' of an intention to convey, sell, or otherwise dispose of such liquor, ” it is error to charge that “the keeping in excess of one gallon of spirituous liquor constitutes prima facie evidence of intent to convey, sell, or otherwise dispose of such liquor, and places upon the defendant the burden of raising a reasonable doubt of his guilty intent to so convey, sell, or dispose of such liquor,” since the statute only means to make such evidence competent and 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 presumptions of innocence of a defendant, and to establish his guilt beyond a reasonable doubt, when all the evidence, including the presumptions, is considered, is for the determination of the jury.

Under the evidence in this case the instruction given almost amounts to directing the jury to find the defendant guilty.

For the reasons stated, the judgment of the lower court is reversed.

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


text:
    PETE COMMITTI v. STATE.
    No. A-4654.
    Opinion Filed Dec. 15, 1924.
    (231 Pac. 317.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence Insufficient to Sustain Conviction for Unlawful Possession. In a prosecution for unlawful possession of alleged intoxicating liquor, evidence held insufficient to sustain a conviction.
    2. Evidence. — Conviction on Evidence Obtained Under Illegal Search Warrant, Reversed. Where a conviction is based solely on evidence obtained under a search warrant, issued without authority of law, in violation of Bill of Rights, § 30, and the statute, §§ 7012 and 7013, Comp. Stats. 1921, and admitted over defendants’ objection and exception, the conviction will be reversed as contrary to law and the evidence.
    Appeal from County Court, Latimer County; L. B. Kyle, Judge.
    Pete Committi was convicted of a violation of the prohibitory liquor law, and he appeals.
    Reversed.
    H. T. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that the defendants, Pete Committi and Anna Committi, did in Latimer county on the 24th day of December, 1923, have and keep in their possession about 30 gallons of intoxicating liquors, to wit, beer, a malt and fermented liquor, with the unlawful intent upon their part to sell the same. They were tried together, the defendant Pete Committi was found guilty, and his punishment fixed at a fine of $100 and 30 days’ confinement in the county jail. He has appealed from the judgment rendered on such conviction.

The evidence shows that a search warrant was issued by H. E. McLarty, justice of the peace, on the affidavit of Claud Briggs, county attorney, made on information and belief, and the county attorney, the undersheriff, and another officer acting under the authority of this search warrant went to the home of the defendants to search for intoxicating liquors.

Claud Briggs testified:

“I had been informed that the defendants had a considerable quantity of beer. I filed an affidavit and obtained a search warrant. We went there Sunday morning. Mrs. Com-mitti was there, and Mr. Wright gave her a copy of the search warrant. Mr. Wright went through the house. Mr. Crenshaw and myself after going through the kitchen then went into the cellar and found a keg; it was nearly full. We drew out about a gallon of this beer. He tasted it, and I drew qut two or three tablespoons full. Then we carried the keg out, and Mr. Crenshaw picked up an axe and knocked the end out and spilled the contents. It was Choctaw beer.
“Mr. Crenshaw said: ‘Anna, this is pretty good beer.’ Mrs. Committi said: ‘Yes, we don’t make anything but good beer; we make it for our own use and make good beer.’ All along she insisted that they made this for their own use. I labeled a half-gallon fruit jar full and turned it over to the jailor, but no analysis was made of it.”

The half-gallon sample of the contents of the keg was offered in evidence.

The evidence for the state was all admitted against the defendants’ objection and exception.

When the state rested, the defendants asked for a directed verdict of acquittal.

The testimony of the defendants in their own behalf was in substance that Mrs. Committi made the beverage, using hops, karo, and bran, and did not use any malt. Both testified that it was not Choctaw beer, and that it was not intoxicating.

It is contended for appellant that all the evidence offered by the state was incompetent because said evidence was obtained through an illegal search warrant.

An examination of the record discloses that the affidavit is on information and belief only, and the search warrant was issued in violation of the provision of the Bill of Rights 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 in violation of the statutes providing:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.” Comp. Stats. 1921, § 7012.
“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.” Section 7013, Comp. Stats. 1921.

These provisions safeguard the citizen in his person, his home, and his property against unreasonable and unlawful search and seizure. The search of the defendants’ home, as shown by the record in this case, was an unauthorized trespass and an invasion of the constitutional rights of the defendants. See companion case of Committi v. State, 28 Okla. Cr. 380, 231 P. 316, for authorities collated on this question.

It follows that all of the evidence on the part of the state should have been excluded on the defendants’ objection, and the motion for a directed verdict should have been sustained. Having reached this conclusion, it is unnecessary to consider the other errors assigned.

The judgment of the lower court is reversed.

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


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    EDDIE GEORGE et al. v. STATE.
    No. A-4688.
    Opinion Filed Dec. 15, 1924.
    (231 Pac. 318.)
    (Syllabus.)
    1. Indictment and lnformatipn — Directness and Certainty as to Offense Charged. An information must be direct and certain as to the offense charged.
    2. Indictment and Information — Constitutional Requirements as to Prosecutions. Under Const, art. 2, § 17, criminal prosecutions in courts of record must be by indictment or information, and prosecutions not in courts of record upon a duly verified complaint.
    3. Intoxicating Liquors — Uncertainty of Verdict Finding Joint Defendants “Guilty.” On a trial of two defendants, charged with violations of the prohibitory liquor law, a verdict merely finding the defendants “guilty” is not sufficiently certain to enable the court to pronounce judgment.
    Appeal from County Court, Pawnee County; L. N. Kim-rey, Judge.
    Eddie George and another were convicted of keeping a place where intoxicating liquor was received and kept for the purpose of sale, and they appeal.
    Reversed and remanded, with «direction.
    George W. Goodwin, for plaintiffs in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Eddie George and Hattie George, plaintiffs in error, were convicted and each sentenced to be confined in the county jail for 30 days, and pay a fine of $100, on an accusation which, omitting title, is as follows:

‘ ‘ Complaint.
“Complaint for Maintaining a Place for the Unlawful Sale of Intoxicating Liquor.
“State of Oklahoma, Pawnee County — ss:
“Before me. L. N. Kimrey, county judge of Pawnee county, State of Oklahoma, appeared John Strosnider, who, being first duly sworn, upon oath- deposes and says: That in the county of Pawnee, state of Oklahoma, on the-day of February, 1923, Eddie George and Hattie George, persons then and there being did then and there knowingly, willfully, unlawfully keep and maintain a place in the city of Cleveland where intoxicating liquor, to wit, whisky capable of being used as a beverage was received and kept for the purpose of bartering, selling, giving away, and otherwise furnishing same to others, contrary to the form of the statutes and the Constitution of the state of Oklahoma in such eases made and provided, and against the peace and dignity of the state of Oklahoma. Wherefore he prays that a warrant may issue for the arrest of the said Eddie George and Hattie George that he may be dealt with according to law.
“‘John Strosnider.
“Subscribed and sworn to before me this 14th day of February, 1923.
“Lewis Eabe, Court Clerk,
“By Nelle Sloan, Dep.”.

Upon their trial, the jury returned the following verdict:

“We, the jury, duly impaneled and sworn to try the issues in the above-entitled cause, do upon our oaths find the defendants guilty and assess the amount of- 30 days in jail-at $100 fine.”

They have appealed from the judgment rendered upon such conviction. 'A demurrer to the information was overruled, and this ruling is the first ground urged for a reversal.

It is insisted that the demurrer should have been sustained for the reason that said county court did not have jurisdiction of the person or of the subject-matter of the action, because, under the Constitution and the statutes, prosecutions for crimes in courts of record must be either by indictment or information.

The bill of rights provides:

“No person shall be prosecuted criminally in courts of record far felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint.” Const, art 2, § 17.

The statute provides that the county attorney shall subscribe his name to informations filed in the county, superior, or district court. Section 2511, Comp. Stats. 1921.

The record shows that the complaint in this case was verified by the oath of John Strosnider, who was at the time county attorney of Pawnee county, and for this reason we are inclined to think that the objection to the jurisdiction of the court is not well taken.

It is also urged that the demurrer should have been sustained because the accusation is not sufficiently direct and certain as to the offense charged. It will be observed that the complaint designates the charge as “Complaint for maintaining a place for the unlawful sale of intoxicating liquor;” and in the charging part of the complaint it is alleged:

“Did then and there knowingly, willfully, unlawfully keep and maintain a place in the city of Cleveland where intoxicating liquor, to wit, whisky, was 'received and kept for the purpose of bartering, selling, giving away, and otherwise furnishing same to others.”

Section 7007, Comp. St. 1921, provides:

“Every person who shall within this state, directly or indirectly, keep or maintain by himself, or by associating or combining with others, any clubroom or other place in which any liquor, the sale of which is prohibited by this chapter, is received or kept for the purpose of selling, bartering, giving away, or otherwise furnishing * * * shall be guilty of a misdemeanor.”

And section 7022 provides that all places where any such liquor is kept or possessed by any person in violation of any provision of this act aire hereby declared to be public nuisances. The record shows that the .court instructed the jury under the provisions of section 7022.

Our Code provides that an information must b.e direct and certain as it regards the offense and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense (section 2556), and that the information is sufficient, if it can be understood therefrom that the act or omission charged as the offense is stated with such a degree of certainty as to enable the court to pronounce judgment upon the conviction according to the right of the case (section 2563). The accusation in this case not being sufficiently direct and certain, the demurrer thereto should have been sustained.

In the brief for the defendants it is argued that the verdict is insufficient to support the judgment, in that it is not sufficiently definite and certain to enable the court to properly pronounce judgment. The record shows objection made and exception reserved to the receiving of the verdict. The verdict finds “the defendants guilty,” and stops there, and fails to designate the punishment as to each of the defendants. We are inclined to think the objection to the verdict was well taken.

The evidence shows that the city marshal and two assistants went to the home of the defendants, in Cleveland, about 8 o’clock in the evening; two entered the front, and the other entered the back, door. Only the two defendants were there; they being husband and wife. They did not have a search warrant. The marshal testifies he found the defendant, Eddie George, with a pitcher in his hand containing whisky— almost two pints. There was some testimony tending to show that the home of the defendants had the reputation of being a place where intoxicating liquor was kept for sale.

Considering the evidence as a whole, we think it was insufficient to show a violation of any provision of the prohibitory liquor laws. The Attorney General concedes that the judgment in this case should be set aside. It will not do for courts to sanction such loose practice in criminal proceedings as is shown by the record in this case.

For the reason stated, the judgment is reversed and the cause remanded, with direction to sustain the demurrer to the complaint filed in this case.

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


text:
    D. H. BARR et al. v. STATE.
    No. A-4996.
    Opinion Filed Dec. 15, 1924.
    (231 Pac. 322.)
    (Syllabus.)
    1. Evidence — Judicial Notice — Nature of Morphine Sulphate. The court -will taRe judicial notice that morphine sulphate is a narcotic drug within the definition of that term as contained in section 88S6, Compiled Statutes 1921 and that an ordinary dose of this substance is from one-twelfth to one-half of a grain.
    2. Poisons — Possession of Narcotics — Insufficient Evidence Against One Defendant. The evidence examined and found sufficient as to one of the defendants, but insufficient as to the other.
    Appeal from District Court, Kay County; Claude Duval, Judge.
    D. H. Barr and J. Howard were convicted of the illegal possession of narcotic drugs, and they appeal.
    Reversed as to Barr, and modified and affirmed as to Howard.
    C. R. Reeves, for plaintiff in error D. H. Barr.
    E. J. Giddings, for plaintiff in error J. Howard.
    The Attorney General, for the State.
   BESSEY, J.

On the 19th day of September, 1923, these plaintiffs in error, defendants in the trial court, were by separate verdicts of a jury found guilty of the unlawful possession of narcotic drugs. Defendant Howard’s punishment was fixed at confinement in the state penitentiary for a term of seven years and to pay a fine of $500; defendant Barr’s punishment was assessed at confinement in the penitentiary for a term of seven years and to pay a fine of $1,000. From separate judgments rendered on these, verdicts defendants filed separate appeals in this court; upon stipulation of parties and by order of this court the two appeals are here consolidated.

The evidence shows that defendant Barr and one John Roberts had, before the time of the alleged offense, been staying in a rooming house at Webb City, in Osage county; that on June 22, 1923, these two drove together to Blackwell, in the adjoining county of Kay; that" Roberts had with him a black hand bag; and that upon their arrival at Blackwell defendant Barr went to the Modern Rooms and engaged a room for the two of them. Barr left the rooming house and went to a restaurant and other places in Blackwell and, meeting Roberts, informed him of the location of the room. Roberts then took his hand bag to the room and went out to find some persons to engage in a game of poker in this room. At this time, or shortly prior thereto, he met defendant Howard, whom he had known slightly in the harvest fields in Kansas. Roberts told Howard to go to this room and that he would get others to join them there in a game. Accordingly, Howard went to the room and found Barr there alone, lying across the bed. It seems that Howard and Barr had never met before.

After waiting awhile, Howard also lay down on the bed. In a short time a policeman knocked on the door and was invited in. Two other officers entered with this policeman. The policeman who entered first said that Howard had a little box in his hand and that he hurriedly placed it at the edge of the mattress opposite the officer, in an effort to conceal it. The other officers did not profess to have seen this box in the hand of Howard but did see the first officer go around to the opposite side of the bed where he recovered the box. This box was found to contain two five-grain cubes of morphine sulphate.

One of the officers then examined the contents of Roberts’ hand bag and found therein, among other things, a small pasteboard box containing 290 grains of morphine sulphate in crystalline form. Unknown to these defendants, Roberts had been previously arrested and searched, and the officers had taken from his person a hypodermic syringe and some needles. At the time of the arrest of these defendants, no questions were asked by the officers and no statements or explanations were made by either defendant.

At the trial both defendants claimed that they did not know that Boberts used or distributed narcotic drugs, and claimed that they knew nothing about the contents of the hand bag. Howard denied having had in his possession the box containing the two morphine cubes. There was no evidence showing that Barr ever had physical possession of either of the boxes in which morphine was found. Barr was a miller by trade and claims that he had started out going from town to town where there were mills, to search for employment. Howard was an oil field worker and engaged in any kind of employment he could procure. There was no showing that either of the defendants was a narcotic drug addict, and no showing that either of them had ever before been convicted of crime.

These defendants are represented here by different counsel, and each claims that the judgment as to him should be reversed

First! Because the information is insufficient.

Second. Because the evidence is insufficient to support the verdict!

The information states that — .

“D. H. Barr and J. Howard, then and there being, did then and there unlawfully and feloniously have in their possession and under their control, more than one dose of narcotic drugs, to wit, 350 grains of morphine sulphate, the same being a salt of morphine, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.”

Defendants contend that the-information is insufficient because it does not state that morphine sulphate is a narcotic drug, as defined by section 8886, Comp. Stat. 1921. This claim is without merit. This court will take judicial notice that morphine sulphate is a narcotic drug, within the meaning of that statute.

Judicial notice will be taken of scientific facts which are universally known, or which may be found in standard dictionaries, encyclopedias, and the United States pharmacopoeia. 15 R. C. L. 1127, with long list of cases cited. The United States pharmacopoeia, a standard publication used by pharmacists and physicians, indicates that morphine sulphate is a narcotic drug and that the dose varies from one-twelfth to one half of a grain.

An analysis of the testimony leads us to the conclusion that the testimony is insufficient to support the verdict against defendant Barr. There is no showing that Barr was a drug addict; no showing that he had possession of any of the drugs found. He may have been implicated with Roberts in the possession or distribution of the drugs seized, or he may have been an innocent man in bad company. The verdict as to him is predicated upon suspicion only.

As to defendant Howard, there is the testimony of one officer to the effect that he saw Howard with the little box containing the two cubes of morphine sulphate, and that as he entered the door Howard placed this box at the edge of the mattress; and two other officers saw this officer go directly to the spot and find the box. Although the evidence indicates that Barr and Howard had no previous acquaintance with each other and that the acquaintance of Howard with Roberts was of only a casual nature, there is this evidence indicating that Howard had something to do with the possession of this drug. The weight of the evidence was therefore for the jury, and this court, under the circumstances, would not be justified in setting aside the verdict as to him.

But in. view of the fact that Howard was a young man of industrious habits and presumably of good character, who had never before been convicted on a charge of this or any other character, it would seem that the maximum penalty imposed was excessive. The judgment as to Howard will therefore be modified to the payment of a fine of $500 and imprisonment hi the penitentiary for'a term of three years.-

The judgment as to Howard, as so modified, is affirmed.

The judgment as to Barr is reversed.

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


text:
    O. R. LEE et al. v. STATE.
    No. A-4385.
    Opinion Filed Dec. 15, 1924.
    (231 Pac. 324.)
    (Syllabus.)
    1. Adultery — Prosecution to Be “Commenced” Only by Injured Spouse In construing section 1852, Comp. Stat. 1921, defining adultery, the word “commenced” and' the words “and carried on” should he construed to harmonize with the general provisions of criminal procedure. The word “commenced” implies that the injured spouse, and none other, may start the prosecution by signing a complaint.
    2. Trial — Prosecution by Individual and by County Attorney Distinguished — Statutory Duties of County Attorney. A private individual cannot become a public prosecutor, nor can a county at- - torney act as a purely private prosecutor. Our statutes make it the duty of the county attorney to appear and prosecute and defend, on. behalf of the state or county, all actions or proceedings, civil or criminal, in which the state or county is interested or a party.
    3. Adultery — After Commencement of Prosecution, Offense Quasi Public. After a prosecution for adultery has been commenced the offense has become at least a quasi public offense — an offense which the aggrieved party may have a special interest in continuing to prosecute, but one in which the public is also interested in some degree.

      4. Same — Right of Injured Party to Have Prosecution Carried on Notwithstanding Divorce. If, after the prosecution has been commenced, the offense has been condoned by the injured party, it may be to the interest of the parties, as well as to the best interests of society, that the prosecution be discontinued; but where the act has not been condoned, the injured party may still insist that the prosecution be carried on, notwithstanding the fact that pending the prosecutton the martial relation has ceased because of a divorce procured by the offending spouse.
    Appeal from District Court, Oklahoma County; Edward D. Oldfield, Judge.
    O. R. Lee and another were convicted of adultery, and the punishment of each was fixed at confinement in the penitentiary for a term of three years, and they appeal.
    Modified and affirmed.
    A. H. Meyer and J. S. Lewis, for plaintiffs in error.
    The Attorney General, and John Barry, Asst. Atty. Gen., for the State.
   BESSEY, J.

The information charges that these plaintiffs in error, here referred to as the defendants, did on or about the 25th day of May, 1921, in Oklahoma county, voluntarily and feloniously have sexual intercourse with one another; that Clemmie Daves was a married woman, the wife of G. 5. Daves, and not the wife of 0. R. Lee, her codefendant. On the. 23d day of January, 1922, the defendants were tried jointly, resulting in a verdict of guilty as to both defendants, with the punishment fixed as above stated.

The record indicates that between the time of the commencement of this prosecution and the day of trial George S. Daves, husband of the defendant Clemmie Daves, commenced an action in Tulsa county for divorce, on the ground of adultery; that defendant Clemmie Daves filed a cross-bill, alleging extreme cruelty on the part of George S. Daves, and that a divorce was rendered upon the cross-bill to defendant Clem-mie Daves.

At the trial George, S. Daves appeared as prosecuting witness. He testified that he was a common laborer, and that for five years preceding the commencement of this prosecution he had resided at Sand Springs, near Tulsa; that Clem-mie Daves had been his wife, and that they had one child, a girl nine years old; that an attachment grew up between these eodefendants, and that Clemmie Daves would from time to time absent herself from home in order to be with the defendant Lee; that upon the occasion of her. last leaving the witness, in May, 1921, she and Lee came to Oklahoma City and engaged light housekeeping rooms on West Fourth street; that the complaining witness notified the Oklahoma City officers of that fact, and that the officers went to this place and found the defendants occupying apartments together, and placed them under arrest. Immediately thereafter Daves lodged a complaint against his wife and Lee, charging them with adultery.

The defendants claim that this prosecution should have been abated at and after the time of the rendition of the decree of divorce; that the prosecuting witness was no longer the injured spouse who should “carry on” the prosecution, within the meaning of the statute.

The statute under which this prosecution was brought (section 1852, Comp. Stat. 1921) reads as follows:

“Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex; and when the crime is between persons, only one of whom is married, both are guilty of adultery. Prosecution for adultery can be commenced and carried on against either of the parties to the crime only by his or her own. husband or wife, as the ease may be, or by the husband or wife of the other party to the crime: Provided, that any person may make complaint when persons are living together in open and notorious adultery.”

The information, the evidence, and the instructions of the court indicated that this was a quasi private prosecution, commenced by the injured spouse, as distinguished from a prosecution for open and notorious adultery.

In construing this statute the word “commenced” and the words “and carried on” should be construed to harmonize with the general provisions of criminal procedure. There can be no question but that the word “commenced” implies that the injured party may start the proceedings by signing a complaint, and that prosecution for this offense can be begun in no other way. But after the prosecution has been so commenced it must be carried on largely by the county attorney. Under our statutes a private individual cannot become a public prosecutor, nor can a county attorney act purely as a private prosecutor. Section 5741, Comp. Stat. 1921, provides that it shall be the duty of the county attorney to appear and prosecute and defend, on behalf of the state or county, all actions or proceedings, civil or criminal, in which the state or county is interested or a party.

After a prosecution for adultery has been commenced, the offense has become at least a quasi public offense, a prosecution which the aggrieved party may have a special interest in maintaining, but one in which the public is also interested in some degree.

It was held in State v. Astin, 106 Wash. 336, 180 P. 394, 4 A. L. R. 1335, that such a ease, after the complaint is filed, is no longer a matter of purely private concern, but has partaken of all of the attributes of a public offense, and the injured spouse should have no more right to control the further proceedings in the ease than should the complaining witness in any other criminal action.

In Iowa it bas been held that it is not error for the eonrt to proceed with the trial of an indictment for adultery where the wife does not appear to prosecute; the prosecution having been commenced by her as-required by statute. State v. Athey, 133 Iowa, 382, 108 N. W. 224; State v. Briggs, 68 Iowa, 416, 27 N. W. 358; State v. Baldy, 17 Iowa, 39.

In Michigan it has been held that the prosecution may be abated at the request of the injured spouse.

In Iowa, Michigan, and Washington the statutes provide that such a prosecution must be commenced by the injured spouse, but in none of these states, nor in any other state so far as we have been able to find, does the statute contain the additional words “and carried on” as they appear in our statute.

In this case the injured party made no request that the prosecution should abate, and that question is therefore not before us for determination. Here the injured party commenced the prosecution, and actively assisted the prosecutor in carrying it on. The offense had not been condoned by him, and no reconciliation had taken place, and the party originally injured still desired that the prosecution be maintained. The demand that the prosecution should be discontinued emanated from the persons who had outraged the marital rights and relations of the injured husband, upon the sole and only ground that the offending party had in the meantime obtained a divorce, thus - making the aggrieved husband a single man, and, as they claimed, rendering him incapable of assisting the county attorney to “carry on” the prosecution. Where the injured party insists on the carrying on of the prosecution, it would amount to an absurdity to permit the wrongdoer thus to defeat the ends of justice. It would be irrational to hold that a decree of divorce in favor of the wrongdoer, rendered pending tbe carrying on of a prosecution of this character, would, ipso facto, abate the action.

The use of the words “and carried on” was doubtless for the purpose of giving relief to the parties most interested after the offense has been condoned and a reconciliation in good faith has taken place before the time of the trial. Where a statute may be construed in either of two ways, one amounting to an absurdity and the other constituting a rational interpretation of the intent of the lawmakers, it is the duty of the courts to adopt the more rational construction. 25 R. C. L., “Construction of Statutes,” § 214.

If, after the prosecution has been commenced, the offense has been condoned by the injured party, it may be to the best interests of the parties, as well as to the interest of society, that the prosecution be discontinued, and we believe that it was the purpose of the Legislature to provide for such a contingency when this statute was enacted.

The decree of divorce did not operate to disqualify the injured husband as a witness. His testimony, and that of the other witnesses, conclusively established the adulterous relation. The right to maintain the prosecution was challenged for the first time by a demurrer to the evidence, upon the sole ground that a divorce had been granted to the offending party after the commencement of the prosecution. We hold that this demurrer was properly overruled.

The defendants offered no testimony and interposed no defense, relying solely upon the fact that the marital relation had been dissolved. This, under circumstances like this, was insufficient.

Since this was a prosecution to penalize a private wrong, and since the complaining party may not have been entirely blameless, the judgment of tbe trial court as to each defendant will be modified to confinement in the penitentiary for a term of a year and a day, and as so modified the judgment is affirmed.

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


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    W. A. LAWSON v. STATE.
    No. A-4932.
    Opinion Filed Dec. 15, 1924.
    (231 Pac. 94.)
    (Syllabus.)
    1. Appeal and Error — Affirmance—Failure to File Brief or Argue,. In a homicide case, where a defendant appeals from a judgment of conviction on a duly certified transcript of the record proper, and no briefs are filed or argument presented, this court will make an examination of the record and, if no error is apparent, will affirm the judgment.
    2. Appeal and Error — Grounds for New Trial not Reviewed in Absence of Transcript of Testimony or Bill of Exceptions. In the absence of a transcript of the testimony or bill of exceptions, duly signed, this court will not review the grounds of motion for a new trial.
    Appeal from District Court, Murray County; W. L. Eagleton, Judge.
    W. A. Lawson was convicted of manslaughter in the first degree, and he appeals.
    Affirmed.
    H. W. Fielding, for plaintiff in error.
    The Attorney General and E. W. Fagan, Co. Atty., for the State.
   DOYLE, J.

The plaintiff in error was convicted of manslaughter in the first degree on an information which charged that in Murray county, on or about the 4th day of April, 1922, W. A. Lawson did on said day and date in said county and state kill and murder one W. D. Hucks by shooting him with a pistol.

On the trial the jury returned a verdict finding Mm guilty of manslaughter in the first degree and fixing his punishment at imprisonment in the state penitentiary for the term of four years.

Motion for new trial was duly filed, and on May 25, 1923, the same was overruled and judgment rendered in pursuance of the verdict. On November 24, 1923, a petition in error, with transcript of the record proper, duly certified by the court clerk was filed in this court, but there has been no appearance on his appeal. The only error assigned is “that the court erred in overruling the motion of the defendant for a new trial.”

The grounds of the motion for a new trial are: Error of the court in admitting incompetent, irrelevant and immaterial testimony on the part of the state; errors of law occurring at the trial and duly excepted to; that the verdict is contrary to law and to the evidence; newly discovered evidence, material to his defense.

Counsel for the state have filed a motion to dismiss the appeal or affirm the judgment, because, although time to prepare and serve a case-made was duly allowed and extensions of time granted, no transcript of the testimony was made and no ease-made was ever served, and the appeal is without merit. To this motion there is no response.

We have carefully examined the record before us, and we have discovered no error which will warrant a reversal of the judgment. Without a transcript of the evidence we are unable to review the grounds of the motion for new trial. The judgment of the lower court is accordingly affirmed.

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


text:
    BEN HOPKINS et al. v. STATE.
    No. A-5214.
    Opinion Filed Dec. 20, 1924.
    (231 Pac. 97.)
    (Syllabus.)
    1. Homicide — Evidence Sustaining Conviction for Assault with Intent to Kill. The evidence examined, and held sufficient to support the verdict.
    2. Appeal and Error — Duty to Instruct Without Request on Salient Features of Law Raised by Evidence; Defendant’s Duty to Point out Omissions in Instructions. It is the duty of the trial judge to instruct the jury on the salient features of law raised by the evidence without a request from defendants; but, where no omission is pointed out, or no other or difieren! instructions are requested by defendants, they will not be heard to complain of the failure of the court to instruct on certain issues of law.
    3. Appeal and Error — Interrogation of Defendants Concerning Automatic Machine Gun Held not Prejudicial. There was no prejudicial error in the interrogation of .the defendants by the county attorney concerning a certain automatic gun.
    4. Homicide — Claim of Variance not Sustained. There was no variance between the allegations of the information and the proof.
    Appeal from District Court, Nowata County; C. H. Bas-kin, Judge.
    Ben Hopkins and another were convicted of assault with intent to kill, and they appeal.
    Affirmed.
    C. P. Gowdy, for plaintiffs in error.
    The Attorney General and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   BESSEY, J.

Plaintiffs in error, Ben Hopkins and William Reed, here referred to as the' defendants, were by information filed in the district court of Nowata county charged with the crime of assault with intent to kill a peace officer, alleged to have taken place on January 24, 1924. At the trial the defendants by a verdict of a jury were found guilty as charged, with the punishment of each fixed at confinement in the penitentiary for a term of five years.

Defendants say that the judgment on the verdict should be set aside: First, because the evidence is insufficient to support the verdict; second, because the court failed to instruct the jury on material issues of law; third, because of the admission of prejudicial evidence; fourth, because there was a variance between the allegations and the proof.

The evidence shows that early in January, 1924, Frank Brumley and Lee Allen, two notorious criminals and fugitives from justice, drove to the ranch home of Neal Sanders in the northeastern part of Nowata county, and that these defendants, in company with a woman, came in another car a few minutes later; that these five persons remained at Sanders’ place for four or five days, or possibly longer, until nine officers appeared there to capture and arrest Brumley and Allen ; that as the officers approached the house these four men, all armed, fled from the house, running in slightly different directions, when the shooting commenced and became general. Probably 100 or more shots were fired by the officers and these men, or some of them, before their arrest was effected. The officers were not searching for these defendants, Hopkins and Reed, but had come to Sanders’ place to capture Brumley and Allen, who were charged with murder, robbery, and other crimes.

The theory of the state was that the defendants, Hopkins and Reed, were aiding and abetting the outlaws, Brumley and Allen, to evade the officers and escape capture and arrest. It would serve no good purpose to analyze the evidence in detail. It is sufficient to say that there is evidence to support the state’s theory.

The defendants’ claim that they were there to visit and hunt, and that they had no knowledge of the fact that Brum-ley and Allen were fugitives from justice; that when these officers approached, armed and in a threatening attitude, they fled for their own safety and protection. The good faith of defendants’ claim was a question for the jury. The woman companion and Neal Sanders, and another visitor who was there, made no effort to get away, and were not molested by the officers. The attempted flight" of these two defendants and the two outlaws, armed as they were, indicated that they were acting in concert. .If these defendants were innocent, they should have discarded their arms and remained in the house with the others, who were not molested.

No objections were made or exceptions taken to the instructions given by the court to the jury, and no other or different instructions were requested by the defendants. It is the duty of the trial judge, without a request, to instruct the jury on the salient features of law raised by the evidence, but, where no omission is pointed out, the trial judge need not submit an instruction on every possible question of law that might be involved, particularly where the defendants are represented by able counsel, as in this ease. Under circumstances like these defendants will not be permitted to speculate on a favorable verdict from the jury, and then, when disappointed, apply for relief in this court. The instructions given were fair to the defendants and covered the main issues of law in the case, and, if the defendants wanted the jury to be informed of their right to resist arrest or to retreat from the arresting officers, they should have called the court’s attention to that fact.

There was no prejudicial error in the interrogation of the defendants by the county attorney concerning a certain auto-matie machine gun. In the absence of proof to the contrary, the state was bound by the denial of the defendants, and the jury doubtless so understood it. Moreover, it appears from the testimony of Neal Sanders that this machine gun did not belong to either of these defendants.

The defendants claim that there was a variance between the proof and the allegations, because there was no proof that either defendant shot at J. R. Hendricks, one of the arresting officers. If all four of these men were acting in concert, the proof is sufficient, if it is shown that any of them shot at or towards Hendricks. During the fusillade about 100 shots were exchanged between the combating parties. The proof on that point is sufficient.

The judgment of the trial court is affirmed.

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


author: . BESSEY, J.

text:
    HARRY BAKER v. STATE.
    No. A-5215.
    Opinion Filed Dec. 22, 1924.
    (231 Pac. 320.)
    (Syllabus.)
    1. Intoxicating Liquors — 'Five Years’ Imprisonment for Attempt to Manufacture Whisky Unauthorized. The punishment for an attempt to commit a crime in every instance is less than the punishment for the completed offense (section 2297, Comp. Stat. 1921). It follows, therefore, that the penalty assessed, that of five years’ imprisonment in the penitentiary, for an attempt to manufacture whisky, under the provisions of section 6991, Comp. Stat. 1921, is unauthorized.
    2. Searches and Seizures — Affidavit for Search Warrant Predicated on Belief Insufficient. An affidavit for a search warrant predicated on belief alone, without stating any facts as a basis for such belief, is insufficient.
    3. Same — Three Prevalent Methods of Affidavits for Search Warrant Distinguished!. There are three forms of affidavits for search warrants more or less prevalent.

      (1) Affidavits on mere information or belief.
    (2) Affidavits importing positive knowledge of the possession of the instruments or thin'gs used or obtained in violating the law.
    (3) Affidavits setting out facts showing probable cause for a belief that the law has been violated by the accused and facts showing probable cause for believing that the accused is in possession of the instruments used in its violation or of ,the products of its violation.
    Method numbered 1 is always bad.. Method numbered 2 may be employed where the affiant can truthfully state of his own personal knowledge that the law has been violated and that the accused is in possession of the physical evidence demonstrating that fact. Method numbered 3 is sufficient in evert case, and is therefore the safer method. (See body of opinion for concrete illustration.)
    4. Evidence — Evidence Procured by Unlawful Search Excludedl on Timely Objection, Evidence procured by means of an unauthorized search and seizure cannot be used against a defendant when timely objection is made to its introduction.
    Appeal from District Court, Nowata County; C. H. Bas-kin, Judge.
    Harry Baker was convicted of an attempt to manufacture whisky, and he appeals.
    Beversed and remanded.
    Leslie J. Coffman and C. F. Gowdy, for plaintiff in error.
    The Attorney General, for the State.
   . BESSEY, J.

Harry Baker, defendant in the trial court, wás convicted in the district court of Nowata county of the offense of illegally attempting to manufacture intoxicating liquor, the same being a second offense and therefore a fel'ony, the defendant having been, prior to this time, convicted of the unlawful transportation of intoxicating liquor. Defendant’s punishment was assessed at confinement in the penitentiary for a term of five years.

The facts, briefly stated, are that after the former conviction of the defendant for the illegal transportation of liquor, he was suspected of having committed the crime of grand larceny. In an effort to locate the property which had been stolen, a search warrant was procured to search the residence and premises of the defendant for windows, doors, wheat, and hay. The officers in making the search, under authority of this search warrant, discovered on the defendant’s premises a barrel of fermented grain and other substances, commonly called mash, along with appropriate appliances indicating that the defendant was attempting to manufacture whisky.

The affidavit upon which the search warrant was issued stated no facts showing probable cause; the affiant merely stated that he had “reasonable cause to believe, and does believe,” that the described property had been stolen by the defendant and that it was secrete^ upon his premises.

The defendant in this appeal urges that the verdict should be set aside:

First. Because the information did not state a public offense within the meaning of sections 2297 and 6991, Comp. Stat. 1921.

Second. Because the evidence was procured by means of an unauthorized and unreasonable search and seizure.

Section 2297, supra, is a general statute relating to attempts to commit crime, and so far as it relates to the issue raised is as follows:

“Any person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows:
“First. If the offense so attempted be punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the .person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted. * * *
“Fourth. If the offense so attempted be punishable by imprisonment and by a fine, the offender convicted of such attempt may be punished by both imprisonment and fine, not exceeding one-half the longest term of imprisonment, and one-half the largest fine which may be imposed upon a conviction for the offense so attempted.”

Section 6991 is a special statute, relating to second or subsequent convictions of a violation of the prohibitory liquor law. This statute is as follows:

“For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the state penitentiary, and it shall be mandatory upon the trial judge in cases where anyone has been convicted under any provision of this act, to pronounce sentence within ten days from the date of conviction.”

An attempt to violate the prohibitory liquor law, under section 2297, supra, is ordinarily a misdemeanor; a second violation of the prohibitory law, according to the provisions of section 6991, supra, is a felony, the statute providing for a maximum penalty of confinement in the penitentiary for á period of five years. An attempt to commit this felony, if a second or subsequent offense, would also be a felony under the provisions of section 2297, carrying with it a maximum penalty of confinement in the penitentiary for a term of 2 1-2 years., as designated in subdivision 1 of that section. The punishment for attempts to commit a crime in every instance is less severe than the punishment prescribed for the completed offense. It follows, therefore, that the penalty assessed in this case for an attempt to commit the offense of manufacturing whisky, a punishment of five years’ imprisonment in the penitentiary, is unauthorized- The phrase in section 6991, “for the -violation of any of the provisions of this act,” does not apply to attempts; it applies only to the completed act. In searching for the punishment for attempts the two statutes must be construed together. 25 E. C. L., Statutes, § 285, and cases cited.

The next inquiry is whether the search warrant in this case was based on a sufficient affidavit. The affidavit, as well as the search warrant, states that affiant “has reason to believe” that certain described personal property had been stolen by the defendant, and that affiant “has reason to believe, and does believe,” that the defendant had this property in his possession, but no facts were stated as a basis for such belief.

An affidavit on belief merely, without stating facts pointing to a reason for such belief, is insufficient. Gore v. State, 24 Okla. Cr. 394, 218 P. 545.

The affiant should swear to facts- showing probable cause for his belief. That does not mean that the affiant must know absolutely that the person is a thief, or has liquor in his possession, or is guilty of some other offense. To make an affidavit based on positive knowledge of guilt would in many instances be impossible, but the affidavit should state facts upon which the belief is founded. The records of this court have demonstrated, over and over again, that most sheriffs and peace officers (also some county attorneys) do not comprehend the true purpose and requisite features of an affidavit for a search warrant. To obviate this misconception we make these further explanations:

In every instance the affidavit should state some fact or facts showing probable cause, as a basis or foundation for an affiant’s belief. An affidavit in this case could have been drawn in the following form:

“State of Oklahoma, Nowata County- — ss.: I, O. J. Kem-erer, do solemnly swear that six windows, one door, 25 bush,els of wheat and 15 bales of hay have been stolen from and carried away from the premises of A. B. Beynolds; that affi-ant has reason to believe, and does believe, that the described stolen property is secreted in the possession of Harry Baker at his residence (describing the location of the residence) ;and for cause, for said belief affiant says that there were tracks leading from where the property was stolen towards, or to, the premises of Harry Baker; (or that one-saw property of this character being conveyed to the premises of Harry Baker; or that Harry Baker has recently come into possession of property of this description; or that Harry Baker made statements to others indicating that he had design to take this property; or any other facts as a basis for such belief).
“Wherefore, affiant asks that a search warrant issue for the discovery and seizure of this property and for the arrest of Harry Baker to be brought before the court to be dealt with according to law. ■ ' 0. J. Kemerer.”

(Sworn to before some officer)

With such an affidavit, if the facts or any of the facts stated therein are false, the aggrieved person could redress the wrong done him by having the affiant prosecuted for perjury; but not so where the affiant states a mere naked belief. One may believe, and swear that he believes, that a person is a thief, a bootlegger, a narcotic peddler, or a maker of counterfeit money, without having any tangible reason for such belief; but unless facts are stated, the existence of sufficient reasons for his belief would not be susceptible of proof. If a complaining witness is unable to state some facts to support his belief, he should refrain from making the affidavit. If the rule were otherwise, it would permit the homes and privacy of innocent people to be invaded without affording any remedy, because the maker of an affidavit which states only a belief, amounting to no more than a nebulous suspicion, cannot be prosecuted for perjury. In the very nature of things it is impossible to disprove what a man says he believes.

This is no new doctrine. It has been the law ever since our government was founded. In colonial times and prior thereto, soldiers and officers were billeted in the private homes of the people; searches and seizures on suspicion became so common and no intolerable that the framers of the Constitution wisely provided that such conditions should no longer be tolerated, and so wrote the Constitution.

As was held in Core v. State, supra, evidence procured by means of an unauthorized search and seizure cannot be used against a defendant when timely objection is made to its introduction. Courts will not encourage officers to violate a law in order to apprehend others who may have violated some other law.

Because of the insufficiency of the affidavit and the search warrant, and because the punishment assessed was unauthorized, the judgment of the trial court is reversed, and the cause ■ remanded.

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


text:
    ERVIN FULLER v. STATE.
    No. A-4679.
    Opinion Filed Dec. 22, 1924.
    (231 Pac. 94.)
    (Syllabus.)
    Appeal and Error — Sufficiency of Evidence to Support Verdict of Conviction. Ordinarily an appellate court will not set aside the verdict of the jury for the insufficiency of the evidence, where there is some evidence in support of the material elements of the crimte charged.
    Appeal from District Court, Choctaw County; G; M. Barrett, Judge.
    Ervin Fuller was convicted of grand larceny and he appeals.
    Modified and affirmed.
    Warren & Welch, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, J.

Ervin Fuller and A1 Kelley were jointly charged in an information filed in the district court of Choctaw county with grand larceny, for the theft of three automobile tires. Before the trial of the plaintiff in error A1 Kelley had entered his plea of guilty, and by a judgment of the court had been sentenced to imprisonment in the penitentiary. The ease proceeded to trial as to Ervin Fuller, resulting in a verdict of guilty without fixing the punishment. In due course judgment was rendered on this verdict, fixing the punishment of plaintiff in error at imprisonment in the penitentiary for a period of four years.

Practically the only question urged in this appeal by the plaintiff in error is that the evidence is insufficient to support the verdict. On the day the larceny was committed Fuller and Kelley had procured a Ford automobile, and in the course of the afternoon drove into the country to get some whisky; as they passed along the highway, some distance from Hugo, they noticed a Chevrolet car by the roadside, where it had been left by its owner; Kelley said to Fuller as they passed that upon their return they would strip the car of its tires. They returned about 9:30 at night, while the moon was shining brightly, and Kelley, or Kelley and Fuller, as may be deduced from the evidence, were in the act of taking off these tires when they were apprehended by the son of the owner of the Chevrolet and a companion. As to just what took place at this juncture, we quote from the testimony of Lee Eden, the companion:

“By the witness: And so we went up there and asked them what they was doing; they said they was getting that car for another man; and I says, 'This ear belongs to old man Norris, this is his boy.’ And this one (indicating) was drunk —well, he was staggering around there right sharply, and he said, ‘Well, we have made a mistake then and you can take the tires.’ He just give us back the tires, and they says, ‘Now, you boys just wait here a few minutes and we will try to find the right eax’, and we will go right along the creek, but we will come back, ’ and we waited until they got out of sight and taken the casings and hid them and went on home.
• “Q. Did they come back? A. No, they never come back. I looked at their car and they had one casing off, it was on the rim, right fore wheel, and I noticed the track right north to where they was getting these casings, and they had come from the north.
“Q. Which way did they tell you they had come from? A. They said they had come from Hugo.
“Q. Who did they tell you, if any one — did they say had sent them out there? A. Old man Smith, I believe they said. That they was hunting old man Smith’s car. They said it must be right out along the creek and they would go up there and turn around and come back and take us home. They had come from the north, the car had, because I noticed particularly the track left by the rim of the fore wheel. I went home and called the city officers, and told them if this car come to arrest them.”

Quoting from the testimony of the son of the owner of the Chevrolet car:

“A. Well, we walked up there and they had two tires in their car—
“Q. What two tires? A. Well, they were just two of the tires.
“Q. For what car? A. Off my ear, the Chevrolet.
“Q. Your car, or your father’s car? A. My father’s car, and they was taking — doing something to one of the others, taking it off — taking the other of ours off, and we walked up there and we asked them whose car that was, and they told us Mr. Smith’s.”

From other portions of the record it appears that Kelley was the one who was actually prying off the third tire from the Chevrolet when the boys arrived upon the scene.

Plaintiff in error claims that he was a mere bystander; that he had nothing to do with the taking of the tires; that when Kelley proposed to take the tires he protested and objected. From the portions of the record quoted, and from other portions, it appears that the witness used the pronouns “he” and “they” interchangeably, indicating that whichever was meant when the word “he” was used, the two were both implicated in the theft of the tires. In many places the record shows that when the pronoun “he” was used, what defendant was meant was pointed out by the witness, but such demonstrative evidence does not enlighten this court as to which one was meant in such cases.

It appears that the plaintiff in error was in an advanced state of intoxication at the time of the larceny; and in the testimony first quoted, “and this one (indicating) was drunk —well he was staggering around there right sharply — and he said ‘Well, we have made a mistake then and you can take the tires,’ ” giving to this language its fair inference, it appears that witness was repeating a statement made by plaintiff in error, and that plaintiff in error was by his own admission, implicated in the taking.

That plaintiff in error was implicated is further confirmed by other circumstances appearing in the record. It seems that this Ford car belonged to a woman; that it was in a more or less dilapidated condition and not in running order; that with the woman’s consent Kelley and others, probably including this plaintiff in error, procured repairs for the car and put it in running order, with the understanding that they might use the car at their pleasure. The testimony shows that Fuller and Kelley were friends, staying at the same hotel; that the trip into the country with this car to procure whisky was a joint enterprise; and that Fuller pleaded guilty to a whisky charge growing out of the trip. All these circumstances tend to confirm the direct testimony of the witnesses quoted, indicating that both men were implicated in the taking of the tires from the Chevrolet car.

Where several persons are jointly accused of the commission of a crime, it not infrequently happens that the one who has been apprehended in the actual act of commission takes all the blame and exonerates his companions in crime; and this would seem to be the situation in this case. The defendant took the stand and denied that he had anything to do with the taking of the tires; and his former codefendant, Kelley, who had already entered his plea of guilty, testified in Fuller’s behalf, corroborating him in this regard.

Under circumstances like these, whether Fuller was implicated in the taking was an issue of fact for the jury. And in this ease there is a special reason why the jury were better able to weigh the evidence correctly than is this court, because of the fact, as has been stated, that the record indicates that all through the trial there was demonstrative evidence, the exact significance of which does not appear of record.

But since the defendant’s companion in crime was the more at fault, and probably the original instigator of the crime and the principal aggressor, we think the judgment as to this defendant, Ervin Fuller, was excessive. The punishment will therefore be modified to confinement in the penitentiary for a term of two years.

The judgment, as so modified, is affirmed.

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