author: DOYLE, J.

text:
    JOE DUNHAM v. STATE.
    No. A-10175.
    Dec. 1, 1943.
    (141 P. 2d 855.)

      L. Keith Smith, of Jay, and R. A. Wilkerson, of Pryor, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error was convicted, on an information filed in the district court of Delaware county March 12, 1941, which, omitting formal parts, charged: “that Joe Dunham did, in Delaware County, and in the State of Oklahoma, on or about the 2nd day of February, in the year of Our Lord, One Thousand Nine Hundred and Forty-one, and anterior to the presentment hereof, commit the crime of Murder, in the manner and form as follows, towit: Said defendant, Joe Dunham then and there being was then and there wilfully, wrongfully, unlawfully, and feloniously operating and propelling a motor vehicle, towit: One 1933 Model Chevrolet coupe, upon a public highway while under the influence of intoxicating liquor, from a point known as Connie Martin’s beer tavern, on state Highway No. 20, near Jay, Oklahoma, to another point near Eucha, in Deleware County, Oklahoma, and said defendant, then and there being, then and there driving, operating and propelling said motor vehicle while under the influence of intoxicating liquor as aforesaid did, wilfully, unlawfully, wrongfully, and feloniously operate and propel said motor or vehicle in such manner as to cause the said vehicle to overturn and wreck, inflicting upon the body and person of one George Hughes, certain mortal wounds and injuries from which the said George Hughes did, on February 2nd, 1941, die, contrary to,” etc.

Upon trial he was by the verdict of the jury found guilty of “manslaughter in the First degree as charged in the information herein”. But were unable to agree upon the punishment.

His motion for new trial was overruled; May 20, 1941, the court rendered judgment and sentenced the defendant to imprisonment in the State Penitentiary for the term of four years.

On November 7, 1941, an appeal ivas perfected by filing in this court a petition in error with case-made attached.

The record shows that when judgment was rendered the defendant gave notices of his intention to appeal. The court fixed the amount of the appeal bond at $3,000, which was given and approved May 24, 1941.

It is first contended that the court erred in overruling the demurrer to the information and defendant’s objection to the introduction of evidence on the ground that the facts stated do not constitute a public offense.

In Maney v. State, 53 Okla. Cr. 438, 13 P. 2d 597, this court held:

“An information which informs the accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense, is sufficient.”

In Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481, this court held:

“It is not necessary to allege and prove that the homicide was perpetrated without a design to effect death, where one is charged with murder while engaged in the commission of a felony.”

And see Harry v. State, 59 Okla. Cr. 302, 58 P. 2d 340; Martin v. State, 35 Okla. Cr. 248, 250 P. 552; Warren v. State, 24 Okla. Cr. 6, 215 P. 635.

It follows that the information in this case is sufficient and the court did not err in overruling the demurrer thereto.

The two other assignments of error argued in the brief require a brief statement of the evidence.

It appears that on February 1, 1941, the defendant, Joe Dunham, Tobe Reasor and George Hughes borrowed a trailer truck from Connie Martin to make a delivery of posts, which they had made, to Salina. In taking the same to Salina they had to go to Pryor to collect their pay for making the posts; there the payment check was cashed. Before starting back, to return the truck to Connie Martin, the defendant, Dunham and George Hughes bought a pint of whisky and on their way from Salina to Johnson’s Service Station at the “Y” they drank the whisky, arriving at Connie Martin’s about 9 o’clock p. m., they there drank beer. They left Martin’s place in a Chevrolet coupe, owned by the defendant. Tobe Reasor was driving the car and the defendant, Dunham, Hughes and a girl named Frankie Fern Quick were in the car. After going south on Highway No. 10 for about a mile they stopped the car and the boys left the car and behind a stump near the highway picked up a bottle. When they came back to the car, the defendant Dunham took the wheel and was driving. Other stops were made and they were fussing and quarreling. Frankie Fern Quick was sitting in the middle, Tobe Reasor on the right side, with George Hughes sitting in his lap. They proceeded on until they came to a turn in the road, there on account of the defendant’s intoxicated condition the car turned over in such a manner that George Hughes was crushed to death under the car, and Tobe Reasor’s right leg caught in the door of the car and he lay there for about an hour until help came to release him.

Roy J. Durnil testified:

“I live in Jay, engaged in the funeral business. On February 2, 1941, I was called to the place of the accident on the highway between Jay and Eucha, coming there about 4:30 in the morning I found the body of George Hughes lying by the side of the car. His head was badly bruised, also his right knee and left hip, and on his chest was a bruise that caused his death.”

Frankie Fern Quick testified that:

“My age is 18 years, I was working at Martin’s tavern when these boys arrived around 9 o’clock p. m., they stayed there until 12:30 ; I left with the boys.” Witness then describes the drive from the tavern to the scene of the accident. That at the time of the accident Joe Dunham was driving the car, that he was intoxicated when they left the tavern; that after going a short distance down Highway No. 10, they stopped the car and the boys got out and picked a brown bottle up near a stump and brought it back to the car; Joe Dunham got under the wheel and was driving; a difficulty arose between Joe Dunham and Tobe Reasor, they got mad at each other and were quarreling. This kept up until the wreck occurred. That she got out of the car and she ran to Mr. Gee’s house to tell that George Hughes was under the car; that she was trying to get out of the car just before this happened.

Tobe Reasor as a witness for the state testified:

“My age is 22 years, I have lived near Eucha almost all my life; I am not married; my brother-in-law, Joe Dun-ham and I lived together, and the last three weeks of his life, my uncle George Hughes lived with us. The morning before the accident we worked cutting posts until about noon when Joe and George went to Jay in Joe’s Chevrolet Coupe and borrowed a trailer from Connie Martin. They got back about 2 o’clock and we loaded up our posts, and took them to Salina but had to go to Pryor to get the money, the check was made out in Uncle George’s name, he cashed it and we started back with the trailer. We stopped at Salina and bought some groceries and an axe, I do not know whether or not Joe and Uncle George bought a bottle of liquor in Salina, I would not say for sure whether they took a drink before we got to the beer joint, we changed a tire at Johnson’s, I imagine we got to the beer joint about 10 o’clock, Frankie Fern Quick was there and she left there with us, I was driving Joe’s car, we all three boys drank one bottle of beer at the beer joint, my uncle George called me outside and offered me a drink of whisky and I took one. I would not say whether Joe Dun-ham. took a drink or not, I do not remember. I drove the car. The first time we stopped was not very far from where we turned off the Main Highway. I sat in the car. George Hughes and Joe Dunham got out, it was dark, if they had anything with them when they got back in the car I did not see it. The next stop Joe Dunham got under the wheel, the next stop the lights went out; Joe Dunham was under the wheel, and that was when we had the accident.”

The next assignment is based upon the following proceedings :

“Q. You state now your lights went out before the accident? A. Yes. Q. I will ask you if you didn’t make a statement about this case in the presence of this officer here, and Mr. Arl Fox, and myself, and Mr. James I. Monroe, and Lillian Wilson, about this case? A. Well when T made this statement out I don’t know whether they were true or not, because I wasn’t in very good shape to make them. Q. State whether or not those statements were read to you? Mr. Wilkerson: Objected to: Leading and suggestive. The Court: Sustained.. Mr. Hunt: Comes now the State of Oklahoma, and announces it has been surprised by the testimony of this witness; that in a statement made immediately after the accident this witness testified differently to what he is testifying now, and that statement was made under oath, and we ask permission to cross-examine this witness. The Court: You may cross-examine the witness upon that point. Q. I want to ask you if in the presence of this Highway Patrolman, Marion Son, and Guy Hendrick, of Pryor, and Riley Hunt, if this question was asked you and this answer made, in the county attorney’s office, on the 2nd day of February, in Jay, Okla.: ‘Q. Were the lights burning good, and if your answer was not, “Yes, but it was foggy and we didn’t have any windshield wiper.” Did you or did you not make that answer to that question?’ Mr. Wilkerson: That is objected to for the reason not proper impeaching question; and the further reason the time and place when the lights were burning good isn’t shown. The Court: You will have to read four or five previous questions. Q. I will ask you if you made the following answers to those questions, in the presence of those people, as follows: Q. PIoav long did you lay there? A. About two hours. Q.. Did you talk to anybody? A. Yes, but I didn’t know who it was, some men. Q. Did he ever complain about the way Joe Dunham was driving? A. No, sir. Q. Did this girl even complain to you about the way you were driving? A. No. She said to drive slow, it was foggy. Q. Lights burning good? A. Yes, but it was foggy and we didn’t have any windshield wiper. Q. Brakes work good? A. Pretty fair. Mr. Smith: Comes now the defendant and objects to the purported statement being read to the witness and jury, and objects to the cross-examination for the reason that portion of the statement read shows that the answers of Tobe Reasor in the statement referred to the condition of the lights all of the time when he, Tobe Reasor, was driving the automobile, and the questions propounded to Tobe Reasor upon which the county attorney sought to examine this man, was a question as to the condition of the lights at a time when Joe Dunham was driving the. automobile, and shortly prior to the accident. The Court: Overruled; that is a question for the jury to determine. Q. Tell the jury whether or not those questions were asked you and whether or not those answers were made? A. Well I guess that is right. Q. The Court: You can ask him as to that part. Q. State whether or not those questions and answers just read to you were read, at the time of making this statement, and prior to the time you signed it? A. Well I think I read some of them. Q. State whether or not you read those questions and answers? A. Yes, I remember some of them. Of course I don’t remember all of them.”

Marion Son, highway patrolman, testified:

“I live at Pryor, and was called to the scene of an accident seven miles southwest of Jay, near the town of Eucha, on the 2nd day of February, 1941, Deputy Sheriff Fox and Riley Hunt, county attorney, were with me; it was in the morning, around 10 o’clock. The top of the car was on the left shoulder of the road, the car had apparently gone up on the right-hand side of the road against a steep bank, and turned over on its right side, headed southwest, I saw Joe Dunham at the scene of the accident, he came walking up the road from the southwest, I was present at a conversation had between Deputy Sheriff Fox, county attorney Hunt and myself in a highway patrol car, at the scene of the accident. Joe Dunham was advised of the fact that he did not have to say anything if he so desired, that he had a right to have a lawyer present before he said anything, and that anything he did say conld be and would be used against him in court. He was asked if he had been drinking, he answered, ‘We were all drinking beer’. Asked how much he said, ‘I don’t know’. He was then asked if he was drunk, and he said ‘We were all feeling pretty good,’ that ‘Frankie Quick got with us at the beer joint, and she was tight when he left the beer joint, that Reasor was driving, Frankie in the middle and George was in my lap, after stopping when we started again, George was driving, later he told us he was driving, then he said, ‘I will tell you the truth, I was driving when the accident occurred.’ He was asked what happened and he said, ‘I don’t know, I just lost control of the car.’ Asked as to -whether or not there was any mechanical defect in that car which had caused the accident he said ‘that the car was in pretty good shape.’ ”

Arl Fox, deputy sheriff, Delaware county, testified that he was called to the scene of the accident about 5 o’clock in the morning. The body of George Hughes was lying beside the car, that he came in and called the highway patrol and notified the county attorney and they went with him to the scene of the accident. His further testimony is substantially the same as that of Marion Son.

G. W. Sumner testified:

“I live south of Rattlesnake Hollow, this side of Eucha since January 4th, Joe Dunham came to' the west gate at my house and was hollering, I got up and answered him," he wanted to know if he could get some help about a car wreck, that the car was on a man’s foot. I called my son-in-law, and we went over there, the accident occurred about three hundred yards northwest from where I lived. Asked: ‘Did you observe whether or not he was drunk?’ Answered ‘He didn’t show any drunk to me.’ ”

The defendant did not testify in his own behalf.

Arthur Johnson, on behalf of the defendant, testified:

“I operate a filling station at the ‘Y’; I recall when Joe Dunham and George Hughes stopped there just before 11 o’clock that night and pawned a pickup wheel for some gas, and Joe Dunham paid me something over two dollars. Tobe Reasor was with them. I don’t think Joe Dunham was at that time under the influence of intoxicating liquor.”

Nora Martin, wife of Connie Martin, testified that she lived on a farm a mile south of Jay. That these boys came there about 10 o’clock and left there about 1 o’clock, that she served them sandwiches and coffee when they arrived and later on her daughter served them the same way. She further testified: “I think Joe Dunham was sober, if he was under the influence of intoxicating liquor I could not tell it, if he was.”

Joe Martin testified that he was tending bar at Martin’s Tavern that night; that he saw Joe Dunham and the other two boys there that night about midnight, Joe Dun-ham bought some beer and just as they closed up the place they bought food. Asked: “Was Joe Dunham under the influence of intoxicants in any manner at that time,” answered: “No sir.”

On cross-examination he stated that probably around 50 people patronized the place that night.

Connie Martin testified:

“That Dunham, Reasor and Hughes came to his place about 10:30 or 11 o’clock, stayed for a couple of hours, maybe longer, Joe Dunham bought two bottles of beer and bought coffee and sandwiches; that he noticed his conduct and conversations. Asked: ‘Tell the jury whether or not Joe Dunham was under the influence of intoxicating liquor that night while there?’ Answered: ‘No, he was not drunk, nor was he under the influence of it.”

Cecil Gee testified that he lived in Rattlesnake Hollow ; was called and went to the scene of the accident. Mr. Sumner was there, a man was pinned in the door of the car. In 15 or 20 minutes Joe Dunham arrived and with other help they succeeded in removing these men from and under the car; that he heard Dunham talking to others there and was close to him; that Joe Dunham then asked him to go after the undertaker and officers. Asked from his observation of Joe Dunham there at that time, “State whether or not he was under the influence of intoxicating liquor in any manner.” answered: “Not that I could tell.” That Each a was something like a quarter of a mile from the scene of the accident.

Frank Hampton testified that he lived in Rattlesnake Hollow, and on the night of February 2nd went to the scene of the accident; that Cecil Gee and Joe Dunham were there, and with others they removed two men who had been pinned under the car and in it.

He further testified that Joe Dunham did not Avail? like a man that Avas drunk, and that he could not smell any liquor about him, and he did not think he was under the influence of a,ny intoxicants in any manner.

Pete Lane testified that Joe Dunham came to his house to get him. to help in connection with the wreck and he went to the scene of the accident with him, and that he was not drunk, that he could tell at all, and that he did not smell any liquor on his breath.

The record further shows:

“Mr. Hunt: It is hereby agreed by and between the state and defendant, that after said defendant Joe Dunham appeared at the house of G. W. Sumner, that Henry Partain, Roe Cary, and Frank Lane if called as witnesses would testify that they saw the defendant after Mr. Sumner saw Mm, and that- he was not drunk, and that they smelled nothing on his breath; we stipulate and agree that he was not drunk at that time, and that you could not smell anything on his breath, and don’t desire to contradict that. Mr. Smith: With that stipulation the witnesses named may go. Mr. Smith: The defendant rests. Mr. Hunt: No rebuttal evidence, Your Honor. Mr. Smith: Comes now the defendant at the conclusion of all the evidence and again moves the court to direct the jury to return a verdict of not guilty. The Court: Motion overruled. Mr. Smith: The defendant accepts.”

The transcript of the testimony covers 150 pages, but the foregoing is a substantial statement of all the evidence in the case.

The second assignment is:

“That the court erred in permitting the county attorney to impeach or attempt to impeach the state’s witness, Tobe Reasor, over the objections of this plaintiff in error, which were duly excepted to at the time.”

We think this assignment is without merit.

In the case of Foreman v. State, 38 Okla. Cr. 50, 259 P. 176, this court held :

“Where a party has placed a witness upon the stand believing that he will testify to a given state of facts by reason of testimony given or statements made, -and the witness then testifies to a different state of facts injurious to the party calling Mm and in conflict with his previous testimony or statements, the party placing such witness upon the stand may impeach his testimony. This may be done upon the ground of surprise and to explain the placing of the witness upon the stand and to counteract the injurious effect of his testimony.”

Judge Edwards in the opinion of the court says:

“Where a witness has made a statement which induces the party calling him to believe that he will testify to a certain state of facts, but when called testifies to a different state of facts, injurious to the party calling him and conflicting with his previous statements, such party has the right to impeach the witness upon such contradictory statements, and may introduce in evidence statements made by the witness conflicting with his testimony so given, not as substantive evidence as proving the truth of the statement, but as affecting the credibility of the witness. Culpepper v. State, 4 Okla. Cr. 103, 111 P. 679, 31 L. R. A., N. S., 1166, 140 Am. St. Rep. 668. It would be a perversion of justice to say that one deceived or entrapped by a witness in this manner may not explain his acts in calling the witness and counteract the injurious effect of his testimony. Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Paris v. United States, 5 Okla. Cr. 601, 115 P. 373.”

In the case of Donahue v. State, 38 Okla. Cr. 87, 259 P. 179, this court held:

“Where a party has placed a witness upon the stand, having reason to believe that he will testify to a given state of facts, and the witness then testifies to a different state of facts, the party calling him as a witness may show his previous statements for the purpose of affecting his credibility and to explain the reason for placing him on the stand and to counteract the injurious effect of his testimony.”

The only other assignment argued is that the verdict of the jury is not supported by sufficient evidence.

It is argued that the defendant’s witnesses and their testimony, including that of the witnesses named in the stipulation, stood uncontradicted by the state at the time of the submission of the case to the jury.

The established rule is that this court will not disturb the verdict where there is competent evidence reasonably tending to sustain the same.

In the instant case both parties agreed that the issue was a question of fact as to whether the defendant was under the influence of intoxicating liquor while driving the automobile on the highway when the wreck occurred. It was a question as to the credibility of the witnesses, and the jury having believed the testimony of the witnesses for the state, there is nothing for this court to do except to affirm the judgment of the lower court.

As is said in the case of Bayless v. State, 9 Okla. Cr. 27, 130 P. 520, 521:

“The jury are not bound to believe testimony because it is uncontradicted, and not directly impeached. The credibility of the witnesses testifying in behalf of defendant is the exclusive province of the jury to determine; and, although such testimony may be uncontradicted and not directly impeached, when there are facts and circumstances admitted and proven tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same. Wainscott v. State, 8 Okla. Cr. 590, 129 P. 655.”

It follows that, in the absence of errors of law, apparent in the record, prejudicial to the rights of the defendant, the judgment of conviction should be affirmed.

Upon a careful examination of the record, we find no such error. The judgment of the district court of Delaware county herein is therefore affirmed.

JONES, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    MACK PRITCHETT v. STATE.
    No. A-10232.
    Dec. 1, 1943.
    (143 P. 2d 622.)

      Frank Leslie, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Dixie Gilmer, Co. Atty., and O. C. Lassiter, Asst. Co. Atty., Tulsa County, both of Tulsa, for defendant in error.
   BAREFOOT, J.

The defendant, Mack Pritchett, was charged in the court of common pleas of Tulsa county with the crime of unlawful possession of intoxicating liquor, towit: Ten pints of gin and 13 pints of ivhisky; was tried, convicted and sentenced to pay a fine of $50 and serve 30 days in the county jail. From this judgment and sentence he has appealed.

The contention for reversal of this case is based upon the fact that the court erred in refusing to sustain the motion to suppress the evidence. This motion, omitting the caption, is as follows:

“Comes now Mack Pritchett, defendant herein, and moves the court to suppress the evidence in said cause for the following reasons, towit:
“That the search of defendant’s home was unlawful, illegal and unauthorized.
“That the officers conducting the raid and search did not have a search warrant for the premises raided and searched.
“That the defendant was not in the commission of any crime in the presence of the arresting officers.
“That the officers were on the premises unlawfully and in violation of the rights of this defendant.”

The motion was heard by the court before the trial of the case. At the hearing, the defendant testified that the search was made of his home, or residence, outside the city limits of Tulsa, on the 27th day of February, 1941, and that no search warrant had been secured and none was served prior to the search.

The state then placed Roy Mogridge upon the stand. He testified that he was investigator for the Department of Public Safety. He admitted that the premises were searched without securing a search warrant, but testified that he had come to Tulsa at the suggestion of the police department, and that he, in company with the chief of the raiding squad of the Tulsa police, two other police officers of his squad, and Cliff Goldsmith of the Department of Public Safety, went in two cars to the home or premises of the defendant. That he got out of the car and went in person to the door of defendant’s home and knocked, and the defendant knew him and invited him in. That defendant and some other person whom witness did not know were sitting at a table. He said to the defendant: “Mack, I don’t know if you will allow me but I would like to look over your place. I do not have a search warrant.” Defendant answered: “You do not have to have a search warrant, just go ahead.” That the witness then said: “You know about raids and know that you can demand a search warrant,” and defendant said: “Yes, but you do not have to have any, just go ahead and search.”

The defendant denied that any such conversation occurred. He testified that the witness came to the back door of his home, and defendant said: “Come in, Roy”; and that Mogridge said: “I am going to raid you.” Defendant testified that he said: “I guess it will be all right.” He testified that nothing -was said about a search warrant.

The witness Roy Mogridge on cross-examination testified that he was in the city of Tulsa on the date of the search, in company with Cliff Goldsmith of the Department of Public Safety. That they intended to search for whisky, and left to go to defendant’s place. That they did not know exactly where they were going, but they went directly to the home of defendant, and his was the only place they searched. That defendant lived just outside of the city limits of the city of Tulsa. That after receiving-permission from the defendant, he went to the car where the other officers were upon the premises of defendant, that they immediately searched, and found the amount of liquor stated in the information. That it was hidden in barrels buried in the chicken yard, and in boxes used for the purpose of conveying game chickens that were located on the premises .Some of the officers thought that a small amount of whisky was found in the house, but of this they were not certain. This was the testimony given by them at the trial.

The trial court, after hearing this evidence, overruled the motion to suppress, and the case proceeded to trial, with the results above stated.

Evidently the court’s view in overruling the motion to suppress was based upon the idea that this question of fact should be submitted to the jury. The court did submit this issue to the jury, instructing them that if they found that the defendant had waived his right to have the issuance of a search warrant before his house could be searched, then it was not necessary for the officers to have one before making the search, but that if they believed he had not waived his right, then they should return a verdict of not guilty.

If this was the opinion of the court as to the law, then it was the wrong opinion. We have often held that the question of deciding the validity of a search warrant, or the necessity of having one, is a judicial question for the consideration and determination of the court, and therefore not a question for the jury. Sims v. State, 73 Okla. Cr. 321, 121 P. 2d 317; Phillips v. State, 34 Okla. Cr. 52, 244 P. 451; Ray v. State, 43 Okla. Cr. 1, 276 P. 785; Houchin v. State, 58 Okla. Cr. 329, 52 P. 2d 1085; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544.

Having come to the conclusion that it was the duty of the court to pass upon this question as a matter of law, did the court err in overruling the motion to suppress the evidence by reason of the search under the facts as they existed in this case?

In the case of Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, 141, we reviewed at length the law of search warrants, and the manner of their issuance and service, reviewing many cases from this court, and other states. We discussed the question here involved. It is unnecessary to again review these decisions at length. In that opinion, we said:

“We are therefore of the opinion that defendant did not waive his constitutional right to have his premises searched without a valid search warrant when he said, 'That is fine and dandy, go right ahead/ but rather that this statement on his part had the meaning that he did not intend to resist the officer in the execution of the warrant under his official duty.”

In that case we cited and quoted from a number of cases which discussed and decided this exact question. Smith v. State, 34 Okla. Cr. 434, 246 P. 1109; Herron v. State, 39 Okla. Cr. 346, 265 P. 147; Thomas v. State, 40 Okla. Cr. 98, 267 P. 278; Shockley v. State, 35 Okla. Cr. 437, 251 P. 514; Wilkerson v. State, 37 Okla. Cr. 43, 256 P. 63; Wilson v. State, 38 Okla. Cr. 409, 262 P. 501; United States v. Rembert, D. C., 284 F. 996 Salata v. United States, 6 Cir., 286 F. 125; Amos v. United States, 255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654; United States v. Kelih, D. C., 272 F. 484; Dukes v. United States, 4 Cir., 275 F. 142, 143; Meno v. State, 197 Ind. 16, 17, 164 N. E. 93; State v. Lock, 302 Mo. 400, 259 S. W. 116; Morton v. State, 136 Miss. 284, 101 So. 379; Smith v. State, 133 Miss. 730, 98 So. 344; People v. Reid, 315 Ill. 597, 146 N. E. 504; State v. Luna, Mo. App., 266 S. W. 755.

The cases above cited give so fully the reason for the rule announced, that we refrain from again quoting from them, except to call attention to the case of Smith v. State, supra [34 Okla. Cr. 434, 246 P. 1110], where it is stated:

“There is much conflict of authority as to what constitutes a waiver of defendant’s constitutional rights in search and seizure cases. We think the rule supported by reason and the weight of authority requires the state, where objection is properly made, to show that defendant ■waived his constitutional rights by freely and voluntarily consenting to the search. The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected by every court in the English speaking world, from Magna Charta down to the present, and is embodied in every bill of rights defining the limits of governmental power in our own republic.
“The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.”

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

It is true that in some cases decided by this court, we have announced the rule of the right of a defendant to waive his constitutional right to have issued a search warrant.

It is also true that in the instant case the evidence of the officer who testified, that defendant gave him permission to search is somewhat stronger than in some of the cases cited. Yet the fact remains that the evidence of the state reveals that the two highway officers who made this search came to Tulsa at the solicitation of the Tulsa police department for the purpose of making this search, because the premises were outside of the city limits. All of the officers, most of whom were veteran officers, knew whose premises were to be searched. They knew it was the residence of the defendant, whom they knew. They knew its location. No attempt was made to search any other premises. Yet with this knowledge, they made no attempt or effort to secure a search warrant, as provided by the law and Constitution of this state, but went direct to the premises of defendant, and relied upon an oral waiver of his constitutional rights to justify the search.

The evidence of the state further reveals that after this search was made, the liquor found was placed in the car of Mr. Mogridge and was transferred to the vault of the Tulsa police department. A demand was made at the tidal that the liquor be produced . This could not be done. Some of the officers testified that they were of the opinion that the same had been destroyed. Yet no order showing that it had been destroyed, or that a return had been made to any court showing that this liquor had been seized, as provided by the statutes of this state, was produced. The law plainly provides (section 2640, O. S. 1931, Tit. 37 O. S. A. 1941* § 89) :

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

There is no evidence that any effort was made to comply with this statute in this case. This provision of the statute is just as mandatory as is the statute which requires that a search warrant be procured before the home or residence of a citizen of this state shall be searched. The facts in the instant case are strong reasons for the enactment of the statute requiring the officer who seizes liquor without the issuance of a search warrant to be required to make a return thereof to the court having jurisdiction in the premises, and procure an order to hold the same until an adjudication is made by the court as to its final disposition.

The state in support of its contention of waiver, cites two cases decided by this court: Baker v. State, 35 Okla. Cr. 62, 248 P. 846, and Goad v. State, 60 Okla. Cr. 307, 64 P. 2d 932.

In the Baker case the opinion is very short. No authorities are cited or reviewed from this or any other jurisdiction. The court approved the submission of the question as to Avhether or not the defendant had waived his constitutional right to the jury. This is contrary, not only to the views hereinbefore expressed, but to the rule announced in many decisions of this court, as shown by the cases heretofore cited. The facts in that case are someAvhat different from the facts in the instant case.

The Goad case was Avritten by the Avriter of this opinion. The facts in that case are dissimilar to the facts here. The record there reveals that the officer had a search warrant and so informed the defendant, and on the trial stated that it was in the files. Attorneys for defendant demanded that the state produce the warrant, which was overruled by the court, but counsel made no attempt to show that no warrant had been issued. The defendant testified that the officers told him they had a search warrant. He did not remember whether the officers “showed it to me or not.” The court then announced the principle that a defendant could waive his constitutional rights for the issuance of a search warrant. If the officer had not had a search warrant in that case, we do not think the statements made by him would have justified the holding that it was a waiver of his constitutional rights, in view of the decisions heretofore cited.

In view of what has been said, and the cases above cited, we are clearly of the opinion that the officers should have procured a search warrant for the purpose of searching defendant’s premises. And while it was a question of fact, it was the duty of the court to pass upon this question and decide as to the legality of the search, rather than to leave this question for the determination of the jury. The defendant may have been a persistent violator of the prohibition laAvs, but he was entitled to the same consideration under the law as any citizen of this state. The statute provides (section 2639, O. S. 1931, Tit. 37 O. S. A. 1941 § 88) :

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

The officers were well aware of this law. The procuring of a search warrant protects not only the defendant, but the officer Avho makes the search. As was said in the Denton case, supra:

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

Other assignments of error are presented in this case, hut it is unnecessary to refer to them.

We, however, call attention to the fact that the court in this case, in instructing the jury, undertook to give a definition of “reasonable doubt.” This court from its earliest decisions has advised against this practice. Douglas v. Territory, 1 Okla. Cr. 583, 98 P. 1023; Nelson v. State, 5 Okla. Cr. 368, 114 P. 1124; Soper v. State, 22 Okla. Cr. 27, 208 P. 1044; Choate v. State, 19 Okla. Cr. 169, 197 P. 1060; Burns v. State, 22 Okla. Cr. 151, 210 P. 302; Richard v. State, 24 Okla. Cr. 107, 216 P. 484.

No exception was taken to the giving of this instruction, but if there had been, it would have been necessary to reverse this case for that reason, because of the character of this instruction.

For the reasons hereinbefore stated, the judgment and sentence of the court of common pleas of Tulsa county is reversed and the case remanded for further proceedings.

JONES, P. J., and DOYLE, J., concur.


author: JONES, P. J.

text:
    W. E. ISBELL v. STATE.
    No. A-10217.
    Dec. 1, 1943.
    (143 P. 2d 627.)

      Newman & Phillips, of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, W. E. Isbell, was jointly charged with one Marvin Farmer by information filed in the county court of Bryan county with the unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and pay a fine of $50, and has appealed.

The evidence of the state showed that certain deputy sheriffs of Bryan county, armed with a search warrant, made a search of a building, purportedly being a service station with a lunch room, sleeping room and kitchen attached, wherein they found approximately 37% pint bottles of whisky and gin and five pint bottles of gin. The defendant, Isbell, was at the service station behind the counter in the lunch room. That he told the officers he was in charge of the place and that he and the codefendant, Marvin Farmer, were operating on a 50-50 basis. That a boy named Mack Wilburn was there and claimed to be living in the place.

Prior to the commencement of the trial, the attorney for defendant dictated a motion to quash and suppress the evidence for the reason that the search warrant was directed against Marvin Farmer and did not name the defendant, W. E. Isbell. No complaint was made that the description of the search warrant was defective or insufficient to justify a search of the particular premises which were searched by the officers. No proof was introduced in support of the motion to suppress the evidence except the introduction of the affidavit and search warrant. The sufficiency of the affidavit is not questioned. It was based upon the personal knowledge of the affiant and alleged that a large quantity of intoxicating liquors was kept upon the premises therein described, which were alleged to be the property of one Marvin Farmer. Sufficient evidentiary facts were alleged to show that the premises were a place of public resort.

Counsel for defendant presented two issues on appeal —the first, that the court erred in admitting proof of the liquor seized in the kitchen of said building for the reason that it was the private residence of the defendant and therefor not subject to seizure under the search warrant. The second contention of defendant is that the court erred in refusing to instruct the jury that if they should find that the intoxicating liquors seized by the officers were found in that part of the building occupied as a residence by defendant, defendant would not be guilty of the charge.

As hereinabove stated, no evidence was introduced by defendant in support of his motion to suppress, and the defendant did not testify and offered no evidence in his behalf at the trial. The proof, therefore, in regards to the question as to whether a part of the building was occupied as a residence by the defendant, must be determined solely by the testimony of the officers. None of them testified that the defendant lived there, but their evidence was to the effect that a boy named Mack Wilburn slept there, although the defendant did state that he had charge of the place and that he and the eodefendant, Marvin Farmer, were operating on a 50-50 basis.

The burden of proving the invalidity of a search, when raised by a motion to suppress the evidence, is upon the defendant. Where he fails to meet this burden, it is not error for the court to overrule the motion to suppress. Clasby v. State, 78 Okla. Cr. 45, 143 P. 2d 430; Allen v. State, 74 Okla. Cr. 139, 124 P. 2d 262; Watson v. State, 73 Okla. Cr. 58, 117 P. 2d 808; Holland v. State, 58 Okla. Cr. 404, 54 P. 2d 216.

Even if the contention of defendant that he lived in the room attached to the filling station was correct, the proof of the state shows that the whole building was being used in the illicit liquor business, and in conformity with many decisions of this court the search would have been valid if the legal description of the premises set forth in the search warrant was correct.

In the case of Quick v. State, 75 Okla. Cr. 176, 129 P. 2d 604, it is stated :

“Affidavit for warrant to search described gasoline filling station stated sufficient facts to justify the issuance of warrant though name of occupant of the filling station was given as ‘John Doe’, where warrant was for purpose of searching the premises, rather than for a search of person of occupant of filling station.
“Where room which operator of gasoline filling station used as his home was used in connection with his business, a door space was tbe only connecting entrance between tbe filling station proper and tbe room occupied as a home, there was very little furniture in the room and no groceries of any kind, and located in the room were oil drums used in the business of the filling station, affidavit and search warrant issued thereon for search of filling station were sufficient to justify the search of the room, since the room was being used as a ‘store’, ‘shop’, or ‘place for storage’ within meaning of statute providing for issuance of a warrant to search a private residence if it is used as a store, shop, or place for storage. 37 O. S. 1941 § 88.”

In that case the proof was more strongly in favor of the defendant than in the instant case. The defendant testified there that his wife lived at the filling station, that it was the only home he had, and that the liquor was found in the room which they occupied as their home.

The requested instruction to defendant, in effect, asks the court to submit to the jury the issue of the validity of the search. When the legality of a search is made an issue in a trial it raises a question of law for determination of the court. Ordinarily all evidence concerning intoxicating liquors seized by an officer are per se admissible in evidence. Where a timely motion to suppress is presented, the better practice is for the court to excuse the jury, hear the evidence in connection with said motion and then determine as a question of law the legality of the search.

The court should never give an instruction unless it is based upon the evidence, and there is no evidence in this record that the filling station, or any part thereof, was occupied as a home by the defendant. Under the proof here, when considered in connection with the affidavit and search warrant, the search would not have been invalid even though the defendant did occupy a part of the building as a residence.

After a consideration of tlie entire record, it is our opinion that there are no errors of sufficient merit to justify a reversal of the conviction.

The judgment of the county court of Bryan county is accordingly affirmed.

BAREFOOT, J., concurs. BOYLE, J., absent.


text:
    In re CHARLES HENRY HALL.
    No. A-10468.
    Dec. 8, 1943.
    (143 P. 2d 833.)
    Charles Henry Hall, in pro. per.
    Randell S. Cobb, Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus in which the petitioner, Charles Henry Hall, seeks to secure his release from confinement in the State Penitentiary. A demurrer to the verified petition has been filed by the Attorney General.

The petition recites that the petitioner pleaded guilty to a crime in Blaine county on July 15, 1940, and was sentenced to serve ten years in the State Penitentiary, but the execution of said sentence was suspended under the terms and conditions of the suspended sentence statute. 22 O. S. 1941 § 991 et seq. That on March 17, 1942, the petitioner was arrested in Wichita, Kan., brought back to the State of Oklahoma, and was committed to the State Penitentiary to serve the ten-year sentence theretofore assessed against him.

The petitioner does not allege the nature of the crime which he committed and for which he was sentenced, nor does he state whether he had violated the conditions of his suspended sentence.

This court held in Ex parte Boyd, 73 Okla. Cr. 441, 122 P. 2d 162, 163, as follows:

“When execution of a sentence is suspended, the judgment itself is not impaired or limited. The time for its execution is merely deferred, as a matter of grace, subject to being withdrawn by the court for a violation of some of the conditions named in statute.
“The revocation of a suspended sentence is a matter addressed to the sound judicial discretion of trial judge, and the hearing in connection therewith may be of a summary character.”

It is apparent from the allegations of the petition that the district court of Blaine county revoked the suspended sentence and ordered the petitioner committed directly to the penitentiary. Petitioner may not have been present in the district court at the time the order of commitment was issued. His presence was not essential to the validity of the order of revocation as he may have committed a crime in another state and could not be brought before the court at the time the order of revocation is made. It is the best practice, where the presence of the petitioner may be secured, to require him to be present to see whether he has any response to make to the contention that he has violated the terms of the suspended sentence. Ex parte Boyd, supra.

In the absence of any allegation in the petition that the court acted in an arbitrary manner and without sufficient cause in revoking the suspended sentence, it is our judgment that the petition wholly fails to state any grounds for relief.

The demurrer of the Attorney General is sustained and the petition for writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


text:
    TOM TIPLER v. STATE.
    No. A-10241.
    Dec. 8, 1943.
    (143 P. 2d 829.)

      J. Walter Long, Jr., of Okemah, and Charles G. Oz-mum, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Roy P. Parham, Co. Atty., of Okemah, for defendant in error.
   BAREFOOT, J.

Defendant, Tom Tipler, was charged in the district court of Okfuskee county with the crime of assault with a dangerous weapon, was tried and convicted; his punishment assessed by the court at a term of five years in the State Penitentiary, and he has appealed.

The brief filed by the defendant in this case presents only one issue: that the evidence is insufficient to sustain the judgment and sentence; and the suggestion that the punishment given by the court, the jury having returned a verdict of guilty and left the punishment to the court, is excessive. Other questions are raised in the motion for new trial, and the motion in arrest of judgment. All of the questions may be considered together.

This charge was the outgrowth of a whipping administered on March 29, 1940, by the defendant to the prosecuting witness, L. C. Scott, 15 years of age, and who was confined at the Boley Training School for Negro Boys, in Okfuskee county. The defendant was a guard at the training school.

In the charging part of the information it is alleged :

“That at and within the county and state aforesaid, and on or about the day and. year aforesaid, the said Tom Tipler, then and there being, did then and there knowingly, wilfully, unlawfully, wrongfully, feloniously, and without justification, or legal excuse, make an assault in and upon one L. C. Scott with a certain dangerous weapon, towit: A piece of leather 3 inches wide, 20 inches in length, and % inch thick, weighing approximately % of a pound; the same not being a dangerous weapon per se, but being one used in such a manner and to such an extent as did then and there constitute a dangerous weapon; and the said Tom Tipler did then and there, with said weapon, had and held in the hands of him, beat, hit, strike, severely wound and injure the said L. C. Scott in approximately 200 different places on his body, hands, and legs, causing abrasions (broken skin) over 2/3 of the back of the said L. 0. Scott from his shoulders to his waist; and abrasions (broken skin) over the entire buttocks of the said L. C. Scott with injuries to subcutaneous tissue on his said buttocks ; the assault lasting over a period of time beginning at 12:15 on said day and lasting until 4 a. m. on said day; with the unlawful, wrongful and felonious intent, then and there on the part of the said Tom Tipler to do great bodily harm and injury to the said L. C. Scott;”

The statute under which defendant was charged in section 1870, O. S. 1931, Tit. 21 O. S. A. 1941, § 645, which is as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year.”

There is a slight reference in defendant’s brief to the fact that the assault was committed with a leather strap, Avhich Avas not a dangerous weapon per se. This fact is admitted by the state in the information.

The question of what constitutes a dangerous weapon under this statute has been considered by this court on numerous occasions. Moody v. State, 11 Okla. Cr. 471, 148 P. 1055; Spelman v. State, 26 Okla. Cr. 47, 221 P. 1044; Roberts v. State, 29 Okla. Cr. 64, 232 P. 450; Reardon v. State, 51 Okla. Cr. 432, 2 P. 2d 100.

In the late case of Beck v. State, 73 Okla. Cr. 229, 119 P. 2d 865, 868, Judge Jones in rendering the opinion gave an exhaustive review of the authorities from this and other states. The instrument involved in that case was an automobile. The court said:

“We have many articles which are not dangerous weapons per se, but which from the manner of their use may become dangerous weapons. A chair, a stick, a clock, and many other articles are not dangerous weapons per se, but the manner of their use might- make them a dangerous weapon. This court, in the case of Winkler v. State, 45 Okla. Cr. 322, 283 P. 591, and in the case of Lamb v. State, 70 Okla. Cr. 236, 105 P. 2d 799, has specifically held that where an automobile is being operated in a manner forbidden by laAV, and the proof shows that the accused, while so operating the automobile, ran into and injured a person laAvfully on said highway, that the operation of the automobile in such manner takes the place of and supplies the unlawful intent. In each of these cases, this court sustained completions for assaults committed with an automobile.”

See, also, Williamson v. State, 82 Fla. 980, 110 So. 124, 53 A. L. R. 250; People v. Clink, 216 Ill. App. 357; People v. Anderson, 229 Ill. App. 315; Brimhall v. State, 31 Ariz. 522, 255 P. 165, 53 A. L. R. 231; Bleiweiss v. State, 188 Ind. 184, 119 N. E. 375, 122 N. E. 577; People v. Benson, 321 Ill. 605, 152 N. E. 514, 46 A. L. R. 1056; Lucas v. State, 68 Okla. Cr. 359, 98 P. 2d 933; Cotanney v. State, 67 Okla. Cr. 148, 93 P. 2d 39; Bayne v. State, 72 Okla. Cr. 52, 112 P. 2d 1113.

We see no reason why a strap such as was nsed in the instant case could not, by the manner in which it was used, be considered a dangerous weapon, as provided by the statute above quoted.

The record reveals that the prosecuting witness, L. C. Scott, was a boy 15 years of age. That he had been sent to the Boley Training School for Negro Boys from Oklahoma county. That defendant was a guard at this institution. That in the afternoon of March 29, 1940, a woman from Tulsa had come to the institution to see her boy, and that she was accompanied by two other citizens. That when she got out of the car, she left her purse containing about $3 on the seat. When she returned to the car, someone had taken the money from her purse. L. C. Scott and some other boys were playing in close proximity to the automobile. He was questioned with reference to the theft of the money by William Hazel, superintendent of the school, and after being whipped with a strap, admitted that he took the money, but told them he had given it to one of the boys who had gone with the band to Clearview. The band did not return until about 11:45 that night. The Scott boy was detained until the return of the band. Tom Tipler, the defendant, came on duty just before 12 o’clock midnight, and was told of the incident. He informed the prosecuting witness that if Willie Burks did not have the money when the band came in, he was going to whip him. When Willie Burks returned, did not have the money and said he knew nothing about it, the Scott boy was taken to the playroom by defendant, and ordered to take off his clothes. He was then told to lay on a table, and was whipped unmercifully by the defendant. There is some conflict as to the number of times he was whipped, and the manner of the whipping. He told different stories as to where the money w'as, and was taken to different places to search for it, but the money was not found. Each time, he was returned to the playroom, and again whipped by defendant with the “cat” (being the leather strap described in the information). As a result of the whipping, the witness had temperature for several days, and was confined to the hospital for a period of two weeks. An investigation Avas conducted by Mrs. Mabel Bassett, Commissioner of Charities and Corrections; by the State Board of Public Affairs, which had charge of the Institution; and by the county attorney of Okfuskee county.

Two doctors, one from Oklahoma City and by whom the mother of the prosecuting witness was employed, and the other the doctor at the institution, testified as to the results of their examinations of the witness. Mrs. Bassett and the Hon. Roy W. Cox, a member of the State Board of Public Affairs, also testified. All of these witnesses testified as to the condition of the witness. Their evidence is Avell illustrated by the testimony of Mrs. Bassett and Doctor A. P. Harris.

Mrs. Bassett testified:

“Q. Just state to the jury, as well as you remember, what you did. A. Well, I came to Boley to the school to make the investigation. I was down at the subprison at Atoka when I received a telephone that this boy had been severely beaten in school, and I came over and spent the day. When I arrived, I saw the superintendent, Mr. Hazel, and talked with him a few moments and then went to the hospital where the boy was, and the boy, J. (L.) C. Scott, was lying on the bed in the hospital, lying on his stomach, because he was unable to lie on his back. I pulled the sheet down and looked at his body. Q. Tell what you saw. A. His entire buttocks was raw clear across from one side to the other. They had some sort of cheesecloth over it, dipped in oil. I attempted to pull this cloth up a little bit, but it stuck to the flesh. He had marks and welts and bruises from his neck down to his ankles. He was just a mass of those bruises. Some of them look like cuts. I sent for the doctor. Dr. Sanders, and had him come over because T wanted to talk to him about that, and at that time he took the boy’s temperature and he had fever and the doctor told me he had been running some temperature. This was on Thursday. The first I heard of it was on Wednesday night, and I came to the school on Thursday morning, and this had happened Friday night, and so it was several days between the time of the beating and the time T saw the boy. 1 asked the doctor if he could put something else on him. The boy’s entire buttocks was raw. The doctor said he would try to get something else to keep the cloth from sticking to the flesh. I put in the day there investigating the matter and talked to a number of the boys and with two of them who were there that night when the beating occurred, and then about 4 o’clock in the afternoon Mr. Cox and Mr. Smartt, of the Board of Affairs, came to the institution. From that time on until we left that evening we worked together and in the meantime we called the county attorney. The boy was in a very, very bad condition. The doctor there at the school, Dr. Sanders, so stated to me.”

And Doctor Harris testified:

“Q. Just state to the jury what you found his condition to be. A. Well, we found him lying on his stomach in bed with a sheet lying over him. We found much the same condition that Mr. Cox and Mrs. Bassett have testified about. We found that nothing had been done for him but that mertbiolate had been poured over him. And there were scars and abrasions on his back and all of the skin had been denuded off the buttocks and there were scars on both legs. I was told that nothing had been done for him. except alcohol and tincture of merthiolate had been put on him. I was told that a doctor would be called. The boy was unable to talk. We could not understand what he said at all because, apparently, of the injury to his neck, as near as I could tell. I do not know whether he was running a temperature. I just saw what I saw and I had seen enough.”

As far as the law of this case is concerned, the question of whether or not the prosecuting witness took the money may be eliminated. If he did take it (which he now denies, and says that he admitted it only to keep them from whipping him), there was a law for his punishment, and no employee of the institution where he was confined had the right to administer to him such punishment as the evidence reveals was administered in this instance. It just proves that a little power cannot be placed in the hands of some individuals without their abusing it, and in this instance it was certainly abused. The fact that others may have punished the witness at this time in no way justifies the cruel punishment administered by the defendant.

Under the evidence, there can be no question but that the jury was justified in finding that the punishment administered by the defendant was without justification, and in a manner that should be condemned by the superintendent and others in charge of the institution. This boy may have been a very bad boy, and a reasonable whipping by his parents, guardian, or proper authority might have been a good thing, but certainly the punishment he received was unjustifiable and uncalled for.

The jury in the instant case was unable to agree upon the punishment to be inflicted. Under the law this was left to the court, and the court assessed the maximum punishment provided by the statute — five years in the State Penitentiary.

We have carefully examined the cases involving this statute and appealed to this court, and have found the maximum punishment assessed in very few cases. In many instances the judgment and sentence has been modified. Williford v. State, 36 Okla. Cr. 270, 253 P. 1035; Tyler v. State, 39 Okla. Cr. 436, 266 P. 516; Hill v. State, 42 Okla. Cr. 366, 277 P. 595; Decker v. State, 44 Okla. Cr. 186, 279 P. 915; Felder v. State, 47 Okla. Cr. 214, 287 P. 792; Williams v. State, 52 Okla. Cr. 336, 5 P. 2d 410; Bayne v. State, 72 Okla. Cr. 52, 112 P. 2d 1113; French v. State, 73 Okla. Cr. 141, 118 P. 2d 664.

In the instant case the evidence revealed that others than the defendant had whipped the prosecuting witness on this occasion. One of them struck him twice with a trace chain on the morning after he had been whipped by the defendant, and before his examination by the doctors and others. Two of these parties were charged in the courts of Okfuskee county, but were released, one upon preliminary and the other never prosecuted. The reason therefor is not revealed by the record.

The defendant produced excellent witnesses from his home toAvn of Lawton, where he had served as a police officer, and also citizens of Okfuskee county as to his good character as a law-abiding citizen; and Avhile his acts in this case cannot be condoned, after a careful examination of the record Ave have come to the conclusion that the punishment inflicted is too severe, and that justice demands that the judgment and sentence should be modified from five years in the penitentiary to two and one-half years in the penitentiary, and, as so modified, the judgment and sentence of the district court of Okfuskee county is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.


text:
    Ex parte HUGH G. (BUD) BURNETT.
    No. A-10461.
    Dec. 15, 1943.
    (144 P. 2d 126.)

      Sid White, of Oklahoma City, for petitioner.
    Randell S. Cobb, A tty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, P. J.

The petitioner, Hugh G. (Bud) Burnett, filed this original proceeding in habeas corpus to secure his release from confinement in the Oklahoma county jail.

The Attorney General filed a response alleging that the petitioner had been arrested pursuant to a telegraphic warrant of arrest from the State of California, and further alleging that the Governor of the State of Oklahoma, acting upon requisition of the Governor of the State of California, had issued an extradition warrant for the said petitioner and directing the sheriff of Oklahoma county to deliver the petitioner to one George Anderson, the agent of the State of California, for transportation back to California. The documents upon which the extradition warrant was based were attached to the response.

Upon the hearing the following facts were developed: On December 29, 1936, the petitioner was convicted by a jury in San Bernardino, Cal., of the crime of assault with a deadly weapon. He was committed to the penitentiary on January 9, 1937. Subsequently the Board of Prison Terms and Paroles, pursuant to the California law, fixed the term of the sentence of petitioner at ten years’ imprisonment; the petitioner to be eligible for a parole after he had served three years. Thereafter said board released the petitioner, Burnett, on parole on July 2, 1941, permitting him to go to Lawton, Okla., where he had an offer of employment. Under the terms of the parole, among other conditions, the petitioner was required to make periodic reports to the California parole officer. His employer, likewise, was required to make a similar report of the activities of the parolee.

The petitioner was arrested for the crime of grand larceny committed in Pottawatomie county, Okla., was convicted, and on February 16, 1942, was committed to the Oklahoma State Penitentiary at McAlester. On November 16, 1943, the petitioner was released from imprisonment in the penitentiary, having satisfactorily completed the service of his term of imprisonment. He was immediately taken into custody by the Oklahoma officers, pursuant to the request of the California authorities.

Petitioner contends that since he came to the State of Oklahoma under the mandatory requirements of his parole, it constituted a leave of the State of California with the consent of the proper authorities, and for that reason he is not a fugitive from justice. Petitioner asks that we draw a distinction between executive clemency issued by a Governor and that issued by a parole board such as exists in California. It is insisted that the acts of the latter are judicial in their nature.

From the record before us it appears that the requisition issued by the Governor of the demanding state and the documents thereunto attached and certified to by him were properly authenticated, as was also the extradition warrant issued by the Governor of this state.

The United States Constitution, article 4, § 1, provides :

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general laws prescribe the Manner in which. such Acts, Records and Proceedings shall be proved,.and the Effect thereof.”

Article 4, § 2, cl. 2, provides:

“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up to be removed to the state having Jurisdiction of the Crime.”

18 U. S. C. A. § 662 sets forth the procedure relating to extradition proceedings.

An almost identical situation was involved in the case of Ex parte Foster, 60 Okla. Cr. 50, 61 P. 2d 37, 38. In that case the petitioner, being confined in the state penitentiary of Illinois, Avas paroled to the custody of a resident of Oklahoma City, Okla. Later the parole was revoked and petitioner Avas arrested in Oklahoma pursuant to a requisition by the Governor of Illinois. He presented substantially the identical question which is presented in the instant case. In disposing of that case, the following rules of law were established:

“When a prosecution is initiated and pursued to judgment of conviction, accused before expiration of his sentence is still ‘charged’ within the meaning of the provisions of the United States Constitution and laws relating to extradition.
“In extradition the legality of the revocation of a parole of the prisoner is a question for the courts of the demanding state.
“A paroled convict who came to Oklahoma, having been paroled to the custody of a citizen of this state by the authorities of state granting the parole, held extraditable as a ‘fugitive from justice’ within United States constitutional provisions and laws relating to fugitives from justice, after parole was revoked by Governor of demanding state.”

See, also, Ex parte Williams, 10 Okla. Cr. 344, 136 P. 597, 51 L. R. A., N. S. 668; Ex parte Hamilton, 41 Okla. Cr. 322, 273 P. 286.

In Ex parte Williams, supra, it is stated:

“The legality of the revocation of a parole in the state of Indiana is a question for the courts of Indiana, for they alone have the right to construe the Constitution and laws of that state.”

It is apparent, therefore, under the status of petitioner and in consideration of the above Oklahoma cases and many other authorities cited in said decisions from other jurisdictions, that petitioner at the present time is a fugitive from justice, even though his entry into the State of Oklahoma was pursuant to the mandatory provisions of his parole. We think the validity and effect of a parole and later revocation thereof by the Board of Prison Terms and Paroles of California should properly be left to the courts of that state for adjudication.

The application for writ of habeas corpus is therefore denied.

BAREFOOT, J., concurs. DOYLE, J., not participating.


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    CHARLEY THURMAN v. STATE.
    No. A-10098.
    Dec. 15, 1943.
    (144 P. 2d 125.)
    William A. Tidwell, of Idabel, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Fields, Asst. Atty. Gen., for defendant in error.
   BAREFOOT, J.

Defendant, Charley Thurman, was charged in the county court of McCurtain county with the crime of selling one pint of whisky, was tried, convicted and sentenced to pay a fine of $50 and costs, and to serve a term of 30 days in the county jail, and has appealed.

A motion to dismiss the appeal has been filed by the Attorney General, for the reason that the case-made was not filed with the clerk of this court within the time prescribed by law. A response was filed to this motion, in which it is contended that .extensions of time were given' by the trial court, and that the case-made was filed within the time prescribed by said extensions, and within the time provided by law.

Upon examination, we find that the case-made filed in this cause has been lost. It was in the courtroom at the time oral arguments were presented, but the clerk has been unable to find it since that time. Effort has been made to secure a copy of the same, but neither the copy of defendant or of the county attorney of McCurtain county can be secured. For this reason we are unable to intelligently pass upon the question of the motion to dismiss the appeal. We are, therefore, giving the defendant the benefit of the doubt, and overruling the motion to dismiss the appeal.

Defendant has filed a brief, and no brief has been filed by the state; and while the brief of defendant sets out a purported statement of the facts, we are unable to review the whole of the evidence, and by reason of the fact that the case-made has been lost and no substitution can be made therefor, we have decided to reverse and remand this case to the county court of McCurtain county for further proceedings. Bailey v. United States, 3 Okla. Cr. 175, 104 P. 917, 25 L. R. A., N. S., 860, and cases cited therein. It is so ordered.

JONES, P. J., and DOYLE, J., concur.


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    JACK DODGE v. STATE.
    No. A-10295.
    Dec. 15, 1943.
    (144 P. 2d 124.)
    O. A. Cargill, of Oklahoma City, for plaintiff in error.
    Randell S. Cobb, Attv. Gen., for defendant in error.
   JONES, P. J.

The defendant, Jack Dodge, was charged jointly with one Jack McDonald by information filed in the district court of Oklahoma county with the crime of robbery with firearms. A severance was granted, the defendant Dodge was tried, convicted and sentenced to serve eight years in the State Penitentiary, and has appealed.

The petition in error with case-made attached was filed in this court on June 16, 1942. On April 28, 1948, said case was assigned for oral argument. No appearance was made on that occasion and no briefs have been filed.

Where the defendant appeals from a judgment of conviction and no briefs are filed, nor argument presented, this court will examine the evidence and ascertain if it supports the verdict, and will make an examination of the information, instructions excepted to, and the judgment, and if no material error is apparent, the judgment will be affirmed. Epps v. State, 69 Okla. Cr. 460, 104 P. 2d 262; Hiett v. State, 75 Okla. Cr. 190, 129 P. 2d 866.

We have carefully examined the record. The defendant was positively identified as being the man who took $75 from one C. Guy Freeland at the point of a pistol near Freeland’s store at 23d and West End avenue in Oklahoma City. The defense was in the nature of an alibi. The proof of the alibi Avas very strong and supported by statements of two police officers of Oklahoma City, but it raised an issue of fact which has been foreclosed by the verdict of the jury. We have found no fundamental error which would justify a reversal of the judgment of conviction. The defendant Avas accorded a fair and impartial trial.

The judgment of the district court of Oklahoma county is accordingly affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


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    Ex parte JAMES SHOCKLEY.
    No. A-10434.
    Dec. 15, 1943.
    (144 P. 2d 118.)

      William A. Vassar, of Chandler, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, James Shockley, who is now confined in .the State Penitentiary, where he is serving a term of 12 years by reason of a judgment and sentence rendered in Lincoln county for “shooting with intent to kill” subsequent to and after conviction of a felony, has filed his petition for writ of habeas corpus, alleging that he is being confined by reason of a void judgment.

On May 29, 1942, this same petitioner filed a petition for habeas corpus in this court, being our No. A-10,285, by virtue of the same judgment and sentence. This petition was denied on October 21, 1942, and is reported in 75 Okla. Cr. 263, 130 P. 2d 331.

In that petition it was contended, as it is here, that the judgment and sentence under which he is being held is void. In that proceeding he did not have an attorney to represent him. He has in his proceeding employed counsel. A copy of the information, the minutes of the court, and the judgment and sentence are attached to his petition. The response of the warden sets out the above facts, and makes reference to the exhibits introduced' in the first proceeding.

The contention that the judgment and sentence is void is based upon the fact that it does not recite the fact that petitioner was charged with a subsequent offense, and that it only recited that he had pleaded guilty to “attempt to kill,” and that the punishment assessed by the court was for a period of 12 years in the penitentiary, Avhile the statute (21 O. S. A. 1941 § 652) fixes the maximum punishment at ten years in the penitentiary.

This contention does not take into consideration the fact that the information, a copy of which is attached to petitioner’s petition, charges him with the crime of attempt to Mil and also charges him with having pleaded guilty to the crime of burglary in Lincoln county, Okla., prior to the date alleged in the information, and of having served a term of two years in the penitentiary therefor. This charge of a prior offense did not constitute a crime, but was only included for the purpose of permitting the giving of more punishment, after his conviction of the crime of which he stood charged. The only charge of which petitioner was being tried was that of “attempt to kill.” It was unnecessary to recite in the judgment and sentence that he had been previously convicted. 58 A. L. R. 99 note; People v. Kelly, 120 Cal. 271, 52 P. 587; People v. Wheatley, 88 Cal. 114, 26 P. 95; Ex parte Williams, 89 Cal. 421, 26 P. 887.

Oklahoma Statutes (sec. 1817, O. S. 1931, Tit. 21 O. S. A. 1941 § 51) provides:

“Every person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
“1. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years. * * * ”

In the case of Ex parte Weaver, 60 Okla. Cr. 290, 64 P. 2d 925, 926, this court said:

“In the recent case of Ex parte Bailey, 60 Okla. Cr. 278, 64 P. 2d 278, this court held:
“ 'Habitual criminal statute, Penal Code, article 6 (sections 1817, 1818 [21 O. S. 1941 §§ 51, 52], does not create or define a new or independent crime, but describes circumstances wherein one found guilty of a specific crime may be more severely penalized because of his previous conviction, as alleged and found. “Habitual criminality” is a state and hot a crime.’
“ 'The allegation of previous conviction is not a distinct charge of crime, but is necessary to bring the case within the statute, and goes to the punishment only.’ ”

See, also, Ex parte Wray, 61 Okla. Cr. 162, 66 P. 2d 965.

The defendant having been previously convicted of the crime of burglary in the second degree, which carried with it a punishment of not exceeding seven years (section 1932, O. S. 1931, Tit. 21 O. S. A. 1941 § 1436), the court, under the statutes above quoted, had the right to sentence the defendant to a term of 1.2 years, as was done in this case.

We are, therefore, of the opinion that the judgment and sentence of the district court of Lincoln county was not void; and for the reasons herein stated, the writ of habeas corpus is hereby denied.

JONES, P. J., and BOYLE, J., concur.


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    Ex parte RAYMOND NOBLE.
    No. A-10440.
    Dec. 22, 1943.
    (144 P. 2d 122.)
    Hulsey & Hulsey, of McAlester, and Sid White, of Oklahoma City, for petitioner.
    Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for respondent.
   BAREFOOT, J.

Petitioner, Raymond Noble, has filed his petition seeking to be released from the State Penitentiary at McAlester, where he is now confined by reason of a judgment and sentence by the district court of Choctaw county, Okla., sentencing him to serve a term of life imprisonment for murder committed in that county.

The petition is very lengthy, and for the sake of brevity we will state the contentions therein made upon which this petition for relief is based.

It is alleged that petitioner was charged with the crime of murder in Choctaw county. That he did not have a preliminary hearing. That he did not have counsel to represent him at the time he entered a plea of guilty. That he was not advised of his right to have counsel and of other rights which he had under the statute and Constitution of this state. That his plea of guilty was entered by reason of fear upon his part, caused by statements made by the sheriff and county attorney, advising him that if he did not enter a plea of guilty that he would get the electric chair. That he was afraid certain other parties who were also informed against, would by reason of conspiracy give testimony against him.

A rule to show cause was entered in this case, and petitioner was brought from the penitentiary to appear in person before this court and give testimony. Other oral and documentary evidence was presented at the hearing. Reference will be made only to that part which we consider essential to the disposition of this case.

Petitioner, when a young man 18 years of age, was charged with the crime of larceny of an automobile. He pleaded guilty to this charge, and served a sentence of five years in the State Penitentiary. Soon after his release from the penitentiary, he was charged with the crime of murder, jointly wñth another person. Petitioner had left the state, and his father and an attorney went to the state of Texas and persuaded him to return to Oklahoma and face the charge against him. There is evidence of promises made to him by his father and the attorney with reference to making? application for clemency at a-future date.

Petitioner testified that he did not know he was charged with murder, but thought he was charged with burglary. He also denied having a preliminary hearing on the murder charge, and denied that he had counsel to represent him at the time he entered his plea of guilty. He testified that he was not informed by the court of his right to have counsel, right to time to plead, and other rights, and that he entered his plea by reason of fear, as stated in his petition.

The records introduced in the case by the state and those attached to the petition reveal that the complaint charging petitioner with the crime of murder was filed in a justice court of Choctaw county on February 5, 1930; that he was taken before the magistrate on February 17, 1930, and on that date waived a preliminary examination, and was held without bail to the district court. His father was present in person at the preliminary hearing. An information was filed in the district court of Choctaw county on February 19, 1930, and to this information he entered a plea of guilty on March 5, 1930. His father, who testified at the hearing before this court, was present and advised petitioner to enter a plea of guilty. The attorney who accompanied his father to Texas, in a letter to the Pardon and Parole Board, states that he was present at the time petitioner entered his plea; and that while he did not represent petitioner as he was never paid any fee, by reason of his friendship for petitioner’s father, who was unable to employ counsel, he being familiar with the facts, had previously advised both the father and the defendant to enter the plea of guilty, not as petitioner’s attorney, but as a friend of his father.

From the above statement, it may be clearly seen that the judgment and sentence entered in this case was not void. The judgment and sentence is upon a form such as has been in use in this state for- many years. It is prepared by the clerk, and signed by the court. It does not state whether or not the defendant had counsel at the time of entering the plea, but does state that he was “asked if he had any legal cause to show why judgment and sentence of the court should not be pronounced against him at this time; and, no legal cause being shown, and none appearing to the court; the court being fully advised in the premises, doth hereby adjudge and sentence the said defendant for the said crime by him committed.”

He had the right to enter a plea of guilty, as has often been held by this court. Ex parte Nye, 75 Okla. Cr. 155, 129 P. 2d 614; Ex parte Bradley, 72 Okla. Cr. 107, 113 P. 2d 611; Ex parte Wooldridge, 72 Okla. Cr. 292, 115 P. 2d 284.

As to his right to waive these rights, see the following cases: Starr v. State, 5 Okla. Cr. 440, 115 P. 356; State v. Frisbie, 8 Okla. Cr. 406, 127 P. 1091; Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205; Ex parte Bradley, supra.

There is nothing in the record to bring the petitioner within the class of cases where relief has been granted by reason of one not having an attorney at the time of entering his plea. Ex parte Hill, 12 Okla. Cr. 335, 156 P. 686; Ex parte Lyde, 17 Okla. Cr. 618, 191 P. 606; Ex parte Barton, 32 Okla. Cr. 41, 239 P. 944; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645; Ex parte Pennington, 71 Okla. Cr. 263, 110 P. 2d 923.

In an affidavit of the county attorney, he states:

“* * * and that thereafter a proper information was duly filed in the district court in and for Choctaw county, Oklahoma; that thereafter the said defendant appeared before the district court in and for Choctaw county, Oklahoma. At the time he was again represented by counsel; that he was fully advised of his constitutional and statutory rights by the court; that he personally and through counsel waived additional time within which to plead and entered his plea of guilty, and waived any and all other time; that when the court asked if there was any further legal reason why he should not be sentenced at the time he replied that there was not and that he was therefore on his plea of guilty, sentenced to life imprisonment in the State Penitentiary.”

His father was present and was familiar with all the facts surrounding the charge against his son, the petitioner. He was a prominent citizen of Choctaw county, and well understood the nature of the charge. He had the advice of able counsel, who, while not employed to defend petitioner, did consult with his father, and stated that petitioner well understood when he entered his plea of guilty that he would receive a life sentence. The fact that the codefendant of petitioner was permitted to enter a plea of guilty to manslaughter and receive a 15-year sentence, which he has served, as revealed by the record, may not be considered by this court upon a hearing for writ of habeas corpus. The record does not recite why a difference was made in the punishment of these two defendants.

We have examined the file in the office of the Pardon and Parole Board. The question of clemency is for the consideration of the Governor of this state, who, under the Constitution and statutes, is given the power to pardon and parole.

For the reasons above stated, the petition for writ of habeas corpus is denied.

JONES, P. J., and DOYLE, J., concur.


text:
    ROY PETERS v. STATE.
    No. A-10298.
    Dec. 22, 1943.
    (144 P. 2d 120.)

      liandell S. Cobb, Atty. Gen., and L. E. Mifflin, Co. Atty., of idabel, for plaintiff in error.
    C. D. Wilkinson, of Idabel, for defendant in error.
   BAREFOOT, J.

Defendant, Roy Peters, was charged in the county court of McCurtain county with the crime of selling intoxicating liquor, towit, one pint of whisky, to Lena Lamb and Nettie Dickerson; was tried, convicted, sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

'When this case was set for oral argument, no one appeared for defendant, and no brief has been filed in his behalf.

We have examined the record and the evidence amply sustains the charges in the information. The record reveals no fundamental error, and the defendant had a fair and impartial trial.

The judgment and sentence of the county court of McCurtain county is affirmed.

JONES, P. J., and DOYLE, J., concur.


text:
    REUBEN RIECKERT v. STATE.
    No. A-10280.
    Dec. 22, 1943.
    (144 P. 2d 117.)
    F. L. Arvin, of Enid, for plaintiff in error.
    Randell S. Cobh, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Reuben Rieckert, was charged in the district court of Garfield county with the crime of assault with intent to commit a felony, was tried, convicted and sentenced to serve five years in the State Penitentiary, and has appealed.

The appeal was filed in this court on May 25, 1942. On March 24, 1943, said case was assigned for oral argument. No appearance was made on that occasion and no briefs have been filed on behalf of defendant.

Where the defendant appeals from a judgment of conviction and no briefs are filed, nor argument presented, this court - will examine the evidence and ascertain, if it supports the verdict, and will'make an examination of the information, instructions excepted to, and the judgment, and if no material error is apparent, the judgment will be affirmed. Epps v. State, 69 Okla. Cr. 460, 104 P. 2d 262; Hiett v. State, 75 Okla. Cr. 190, 129 P. 2d 866.

An examination of this record discloses that defendant was positively identified as being the individual who struck the complaining witness over the head with a large bottle concealed in a paper sack, knocking the complainant down but not rendering him unconscious. That the defendant attempted to rob the complainant but the complainant struggled so fiercely that the defendant desisted in his attack upon the complainant and fled. He was arrested a few minutes later and identified as the assailant. The defense was in the nature of an alibi.

We have carefully considered the record and find no fundamental error. The evidence is sufficient to support the judgment.

It is therefore ordered that the judgment of the district court of Garfield county be and the same is hereby affirmed.

BAREFOOT, J., concurs. DOYLE, J., not participating.


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    BOB MILLER v. STATE.
    No. A-10247.
    Dec. 22, 1943.
    (144 P. 2d 120.)

      F. W. Herndon, of Enid, for plaintiff in error.
    Tta'ndell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, Bob Miller, was charged in the county court of Garfield county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 45 days in the county jail and to pay a fine of $100.

The Attorney General has filed a motion to dismiss the appeal for the reason that the petition in error with case-made attached was not filed in this court until 126 days after judgment and sentence was pronounced against defendant.

The record discloses that defendant was tried before a jury on October 21, 1941, was found guilty with the punishment to be fixed by the court. Thereafter, and on December 1, 1941, a motion for a new trial was overruled and the defendant sentenced as hereinabove stated. Various extensions of time were taken by defendant in which ■to make and serve a case-made. The case-made was not settled and signed by the county judge of Garfield county until April 6, 1942, and on the same date the attempted appeal was lodged in this court.

22 O. S. 1941 § 1054, in the Code of Criminal Procedure, provides that:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days.”

In the recent case of Bullard v. State, 73 Okla. Cr. 238, 119 P. 2d 870, the second and third paragraphs of the syllabus read as follows:

“A failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal, and the appellate court has no discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute.
“In misdemeanor cases, the appeal must be taken within 60 days after the judgment is rendered, provided, however, that the trial court or judge may for good cause shown extend the time in which an appeal may be taken not exceeding 60 days. Section 3192, Sts. 1931, 22 Okla. St. Ann. § 1054. When this is not done within the time prescribed by said section, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.”

And in the concluding portion of said opinion it is stated:

“There is no provision of law which vests this court with discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute. Newton v. State, 38 Okla. Cr. 217, 260 P. 84; King v. State, 68 Okla. Cr. 145, 96 P. 2d 95.” See also McKinsey v. State, 72 Okla. Cr. 59, 112 P. 2d 1112; Lee v. State, 74 Okla. Cr. 358, 126 P. 2d 94.

For the reasons hereinabove stated, the purported appeal herein, not having been filed within 120 days after rendition of the judgment, should be dismissed and the cause remanded to the trial court, with direction to enforce its judgment and sentence. It is so ordered.

BAREFOOT, J., concurs. DOYLE, J., not participating.