text:
    J. D. GREENWOOD v. STATE.
    No. A-7432.
    Opinion Filed May 2, 1931.
    Rehearing Denied May 29, 1931.
    (299 Pac. 248.)

      W. H. Brown, Joseph W. Foster, Fred H. Fannin, and J. P. Roberts, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., (Ben W. Belew, Co. Atty., of counsel), for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Haskell county of manslaughter in the first degree, and was sentenced to serve a term of 25 years in the state penitentiary.

The record discloses that defendant and his son, Orville Greenwood, lived near the town of Keota, and near them lived Sam McCann, Henry McCann, A. W. Piatt, their stepfather, and T. A. Lowe, a friend of the McCanns. Sam McCann bore an unenviable reputation as being of a domineering disposition and a lawbreaker. The reputation of Henry McCann was attacked to some 'extent. The defendant and his son appeared to have borne an excellent reputation. A short time before the tragedy, which is the basis of this prosecution, Orville had ridden a horse to where Sam McCann was, and, according to defendant’s/ evidence, Sam McCann had taken the horse from Orville at the point of a gun and had ridden it away. Orville reported the matter to defendant, and a complaint charging Sam McCann with the theft of the horse had been filed before a justice of the peace at Keota. On the day of the tragedy a preliminary hearing was had, which resulted in the discharging of McCann at the conclusion of the state’s evidence. In attending the trial, defendant and his son each carried a loaded pistol which they deposited in a drug store. After the conclusion of the trial and the discharge of McCann, they went back to' the drug store and got their pistols. They came out of the drug Store, and, as they were passing the store adjoining, Sam McCann started into the store, and Orville Greenwood made two or three steps toward him, but did nothing further; that defendant said to him: “You were too slow.” Defendant and his son then walked down the street, while Sam McCann went into the store where his mother was and took his small son to the back of the store and gave him a drink of water and then left the store with the others to. return home. The witnesses for the state testify that, as Sam McCann passed the Greenwoods opposite the stairway leading to the courtroom defendant said to Orville: “Shoot him! Shoot him!” Orville drew his pistol and shot Sam McCann in the back, and McCann ran up the stairway; Orville followed, shooting him about four times, and McCann fell down the steps to the foot of the stairs. T. A. (Jud) Lowe was standing near the foot, and seized Orville Greenwood around the waist, for the purpose, as he says, of preventing his shooting Mc-Cann. Defendant stepped up and shot Lowe in the face and head, and Lowe fell to the sidewalk, pretending to be dead. Defendant and his son next turned to the east and Henry McCann was standing near the bank building about 20 feet away. Defendant fired at him, and Henry Mc-Cann ran behind a post in front of the bank and dodged behind a conple of bystanders and begged defendant not to shoot him, but despite this defendant reached over the shoulders of some bystanders and shot him in the back about four times, killing, him instantly. At about this time Dick Piatt, stepfather of McCann, seized the pistol in Orville’s hands, and in the struggle over the pistol it fell to the ground, and about this time defendant shot at Piatt, but missed him, and Orville recovered his pistol and shot Piatt in the arm. Piatt fell, and defendant shot at him again, and then snapped his pistol at him. It appears that neither of the McCanns nor Lowe nor Piatt were armed. This case is a prosecution for the killing of Henry McCann. The record is voluminous. All the eye-witnesses to the homicide except defendant and his son testified for the state. One was a relative of defendant.

The theory of the state is that the killing of Henry McCann was the result of a conspiracy between defendant and his son. Defendant contends the killing of ,Sam McCann by Orville Greenwood was in self-defense, and the shooting of Lowe by defendant was in defense of his son; that, when he saw Henry McCann, he had his hand under the bib of his overalls, coming toward defendant, and he believed he was going to shoot him, and the first two shots he fired at Henry McCann were also in self-defense. Further, that he believed Sam McCann and Lowe were acting together in an assault upon Orville Greenwood. Defendant testified he had no' recognition of the last shots fired at Henry McCann; thus presenting the further defense of insanity. The instructions of the court cover both the law of self-defense and insanity. Both the state and the defendant were represented by very able counsel. The case was closely tried, and is well briefed.

■ Numerous assignments of error are argued. The first contention is that the court committed error in overruling the motion to quash a special jury venire, particularly as to 20 names included therein of jurors called in a previous special venire which had been quashed, citing Shuford v. State, 4 Okla. Cr. 513, 113 Pac. 211; Hisaw v. State, 13 Okla. Cr. 484, 165 Pac. 636; Combs v. Slaughter, Hardin (3 Ky.) 67. The sheriff was a witness; the court appointed a special officer to serve a special venire for 30 persons to act as jurors. The special officer appointed to serve did not take an oath of office before serving this first special venire. On motion, the court quashed this first special venire, reappointed the special officer, who then took the oath, and he was directed to serve another open venire for 30 persons to serve as jurors. The special officer did this, but in the second venire served were 20 persons who had been summoned by the first special venire. The motion to quash the fit’s!: special venire was sustained because the special officer had neglected to take an oath of office. He was, however, a de facto officer. State v. Hudson et al., 44 Okla. Cr. 1, 279 Pac. 921; Rosell v. Board of Education, etc., 68 N. J. Law, 498, 53 A. 398. It would not have been error for the trial judge to have overruled the motion to quash the first special venire. Under the circumstances, the including of some of the jurors discharged under the first venire was not error.

Complaint is next made that the state was permitted to introduce incompetent and immaterial evidence, prejudicial to defendant. This assignment is directed to various items of evidence. It is pointed out that a state’s witness, .Smith, an eyewitness who had testified he had no acquaintance with the participants in the tragedy, was permitted to answer on redirect that his son and the Greenwood boy were good friends. Another complaint under this assignment is directed to the cross-examination of defendant’s witness Harding, who had testified that Sam McCann, about a month before the tragedy, on the occasion of his arrest on a whisky charge, had made a threat against defendant. On cross-examination it was drawn out- that McCann was released on that charge. Another item is that the state’s witness Lowe was permitted to give hearsay testimony. Another, that defendant was required to answer on cross-examination of the taking together of a picture of one of the sons of defendant and a niece of deceased, and the introducing of the picture in evidence. Another, is the testimony of this niece of deceased in reference to the picture referred to and of the friendly relations of this witness to> the family of defendant. Also that the state was permitted to show that, when Sam Mc-Cann went into the store, just before the homicide, he made some statement to his mother or some members of his party. Defendant contends this was hearsay, and constitutes reversible error, citing Brokhaus v. State, 11 Okla. Cr. 625, 150 Pac. 510; Graham v. State, 28 Okla. Cr. 266, 230 Pac. 763. The statement made by McCann to his mother or member of his party had no reference to the difficulty; it was merely in reference to the child, and to inquire if they were ready to go home. The admission of hearsay evidence such as this is not ground for reversal, since it is obvious that it could not prejudice or injure defendant. 17 C. J. p. 332, § 3675; Starr v. State, 7 Okla. Cr. 574, 124 Pac. 1109. There-are some other items under this assignment which we deem it unnecessary to enumerate. As a general rule, the examination of witnesses is a matter that rests largely in the discretion of the trial court, and this court will not disturb a conviction on account of a liberal examination, unless it is apparent that the trial court abused its discretion in this respect. Barrow v. State, 17 Okla. Cr. 340, 188 Pac. 351, 9 A. L. R. 207. Some of this evidence has no particular significance, but we fail to see how it could have injured defendant.

Objections are urged to several questions as leading, suggestive, and argumentative. One of these is directed to the testimony of Dr. Carson as to whether the wound which caused death was larger in the front or back of the body. Another is to the line of questions asked witness Jamison as to the action of Orville when Sam McCann passed him just before the shooting and of the statement by defendant that Orville was “too slow”; questions to the witnesses Tripp and Smith, who were eyewitnesses called by the state; questions to the witness Wallen and the witness Martindale as to the statements of defendant relative to the dangerous character of the McCanns, made long prior to the homicide. Some of these questions are rather leading in directing the attention of the witness to the particular matter sought to be elicited. The questions, however, were all concerning competent matters. We cannot say there was any abuse of discretion by the trial court prejudicial to defendant. The rule is liberal that the examination of witnesses is a matter largely in the discretion of the trial court.

It is also urged that the county attorney was guilty of misconduct in attempting to get to the minds of the jury that Henry McCann bore a reputation of being a quiet, peaceful, and law-abiding citizen, when his reputation had not been attacked by defendant. In one instance the county attorney asked the witness Brice, if he knew the reputation of Henry McCann for being a quiet, peaceful, and officious (sic) man. An objection was sustained, and counsel said: “We just wanted to get it before the jury.” On a motion to strike, the county attorney said: “I will withdraw the remark and apologize and ask the jury myself not to consider it.” The court then instructed the jury to disregard the remark. Further on the county attorney asked a witness on cross-examination if he knew of Henry McCann being in any trouble of a violent nature. The question was objected to, and was not answered. Other witnesses were asked if they knew Henry McCann, but no question as to his reputation was asked. This court has in the case of Coulson v. State, 48 Okla. Cr. 206, 291 Pac. 152, held that the evidence of the good reputation of the deceased was not admissible, unless put in issue by the defendant. The record does not disclose • that defendant offered the testimony of any witness as to the character or reputation of Henry McCann, but in the opening statement of defendant’s counsel to' the jury it was said:

“* * * The proof will show that Henry made whisky, that he was a professional manufacturer of liquor and that Sam sold it for him, and Henry and Mr. Piatt and Dick Piatt backed iSam up in all the things that he did, and there will be proof to show that they didn’t do anything that an honest upright citizen ought to do. * * The proof will show that Sampson McCann encouraged and backed up by Henry McCann and his mother, that he har-rassed and tormented and annoyed this man Greenwood upon every opportunity he could get from time to time. * * * They were continually offending him and Sampson McCann was the ring leader and Henry was backing it up. * * * The proof .will show that the McCanns came over there drunk and raised a controversy with one of his tenants and when he told him he didn’t want men on his premises drunk and interfering with his men, that made him mad. He held that against him. * * I want to tell you, gentlemen of the jury, when this proof is in you will be convinced beyond a shadow of a doubt that this country for miles around was terrorized for miles and Henry come right along with him too. Henry McCann wasn’t as open and boisterous as Sampson was. * * * Now, then Greenwood had heard of these threats and Greenwood knew tke McCanns had the reputation of being a man who bore a bad reputation as a law-abiding citizen. * * *”

Where counsel in this manner place before the jury the reputation of a deceased, the rule of exclusion will not apply with that strictness as in a case where the question of reputation is raised solely by the state. It would be manifestly unfair to permit a defendant to suggest to the jury in this manner a bad reputation of deceased, then for the court to hold it reversible if the state should attempt to rebut such assertions. Since reputation was first raised by defendant in the opening statement of his counsel, and since the objection was sustained by the court and the evidence withdrawn, the proceeding does not constitute reversible error.

Next it is argued the court erred in refusing to allow defendant to testify he knew Lowe to have a general reputation as being a dangerous and overbearing person. The killing, of Sam McCann, the shooting of Jud Lowe and Dick Piatt, and the killing of Henry McCann, all may be said to' have had a common origin. This evidence should have been admitted. The exclusion of the evidence, however, could have had no particular influence in the trial of the case, for the reason that at the time defendant shot Henry McCann he had already seen Sam McCann shot and killed by his son Orville; he had already shot down Jud Lowe, and, leaving him apparently dead, had turned his back on him and his attention to Henry McCann, who was several steps away, had pursued and shot him in the back, and had even fired a shot into his prostrate body as he lay on the ground. Defendant says he fired the first two shots at Henry McCann because he believed McCann was about to attack him. The character and reputation of Jud Lowe could not have influenced his action, and could not have affected the verdict of the jury.

We are pressed with the argument that there was prejudicial error in the cross-examination by the county attorney of defendant’s witnesses who testified to the mental condition of defendant and in the questions propounded state’s witnesses as to' his mental condition; that an hypothetical question touching defendant’s mental condition at the time of the homicide was propounded by his counsel, and also in cross-examination the county attorney selected certain facts and asked if these particular facts indicated insanity, or in some instances a “delusion” or “insane delusion” or otherwise; that he did not include all the main or essential facts in his question. Further, that he examined medical witnesses called by the state in rebuttal touching defendant’s mental condition by asking questions which failed to include and fairly state the evidence in the case, citing Ryan v. People, 60 Colo. 425, 153 Pac. 756, L. R. A. 1917F, 646, Ann. Cas. 19170, 605; State v. Garrison, 59 Or. 440, 117 Pac. 657; Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359; Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621. These cases support the claim that permitting the prosecution to cross-examine an expert witness as to the various instances given by the expert as an evidence of insanity is subject to criticism, since the mental capacity of a party is not demonstrated by a single fact or occurrence, but depends upon a long course of behavior and mental phenomena. Also that the hypothetical question propounded an expert should include the “essential undisputed facts” or “all the facts essential to some theory.”

The term “insane delusions” and the term “insanity” appear to have been used by counsel for the state as synonymous. Dr. Strange, expert witness for defendant, stated in his direct examination that in his opinion defendant was suffering with “delusional insanity,” and the state’s counsel apparently considered delusions as being insanity exempting defendant from criminal responsibility.

There has been in recent years considerable criticism of the testimony of experts in cases in which insanity is pleaded as a defense to criminal prosecutions, particularly to the use of the hypothetical question. A recent work has said:

“There is no valid reason for not permitting the expert to express his opinion directly, since everyone in the courtroom kno ws that the hypothetical monstrosity, whose mental condition the expert is asked to pass upon, is the defendant; and it is impossible, psychologically, for the jury or the expert, answering the hypothetical question about the assumed person, not to be influenced hy this knowledge.” Glueck, Mental Disorders and the Criminal Law, p. 29; White, Insanity in the Criminal Law, p. 81.

Further it is said that the most serious indictment of the modern practice as to expert testimony in insanity trials is that it places the experts in a partisan position, reducing the whole procedure to- a battle of wits, supported by large fees, and results in bias and prejudice on the part of opposing experts. Chief Justice Chapman, of the Massachusetts Supreme Court, is quoted as saying:

“Experts can be found to testify to any theory, however absurd.”

The reform may be long in coming, but it seems to us that, in the interest of expediency and justice, qualified experts not employed by the state nor accused should be called by the court and should be permitted to testify directly an opinion as to the defendant’s mental condition, giving the grounds for the opinion, and making same clear to the jury. This would eliminate the element of bias and the partisan nature of expert medical testimony, and would render substantial justice to an accused and to society. Oppenheimer, “Criminal Eesponsibility of Lunatics,” p. 268. Some of the examination and cross-examination in the instant case are not in close conformity to approved procedure in so far as it relates to the hypothetical question and the cross-examination, but we are clearly of the opinion that the departure, if error, resulted in no prejudice to defendant.

It is contended that the court erred in refusing defendant’s requested instructions and in several of the instructions given. No. 9 is challenged. This instruction tells the jury what facts must be found in order to warrant a conviction, and concludes that, if the state of facts enumerated is found beyond a reasonable doubt, the jury should convict, unless they believe the acts were committed under such circumstances as to constitute justifiable homicide. The objection is that this instruction omits the plea of insanity. It is not essential that all the law should be stated in a particular instruction. The law as to> insanity is covered by other charges of the court, and the jury are told they must consider and construe the instructions as a single charge. As to No. 11, on self-defense, it is contended this is erroneous as not covering the right of defendant to protect his son, but using the term “and his son” instead of “or his son.” The instruction uses the term “to protect himself and his son or either of them. * * *” Nos. 15 and 18 are claimed erroneous in raising the question as to who was the aggressor, and in stating that, if defendant was the aggressor, he could not claim self-defense. This objection also goes to Nos. 16, 17, 18, and 21. Under the respective theories of the state and the defendant, the question as to who was the aggressor became a material issue, and the instructions upon this point, considered together, are free from material error. The correctness of Nos. 22, 24, 25, and 27 touching- the question of insanity and the application and restriction of evidence as to sanity or insanity is contested. Without setting out the instructions or entering into any extended discussion, we are thoroughly satisfied these instructions are substantially correct. No. 20, a somewhat lengthy instruction, contains this paragraph:

“Under his plea of not guilty the defendant has a right to offer as many defenses as he sees fit, whether such defenses are consistent or inconsistent, and the fact that he may interpose inconsistent defenses raises no presumption against him by reason of any apparent inconsistency.”

This, defendant insists, is extremely prejudicial as suggesting to the jury that the plea of insanity is inconsistent with the plea of self-defense, citing State v. Porter, 213 Mo. 43, 111 S. W. 529, 127 Am. St. Rep. 589; State v. Wade, 161 Mo. 441, 61 S. W. 800. This particular paragraph might well have been omitted. However, it does not criticize either defense or suggest that either is false, but attempts to tell the jury the right of defendant to offer as many defenses as he may see fit. There may be no legal inconsistency between the plea of self-defense and the plea of insanity, yet to the lay mind there is an inconsistency. The plea of self-defense suggests an act done, based upon reason, under an apprehension of danger. The plea of insanity suggests an act done without reason or without the ability of the person committing it to know right from wrong at the time, or to know the nature and consequences of the act. As a matter of law, certainly an insane person has the same right of self-defense as a sane person. The particular paragraph objected to really amounts to a caution to the jury not to permit an apparent inconsistency to militate against defendant. The instructions, while not technically correct in every particular, are not prejudicially erroneous. West v. State, 13 Okla. Cr. 312, 164 Pac. 327, L. R. A. 1917E, 1129; Brister v. State, 35 Okla. Cr. 319, 250 Pac. 442.

There are other objections to various instructions and upon other points which we do not enumerate; they have not been overlooked, but have had the consideration of the court. As is to be expected in a trial of this nature, sharply contested, with many witnesses and involving nice points as to the admissibility of evidence and other numerous questions of law, the rulings of the trial court made during the heat of the trial would not in all instances meet the full approval of an appellate court, with ample time to investigate, weigh, and consider the issues raised. We are impressed, however, that the trial judge earnestly sought to try the case fairly. The charge of the court, considered and construed together, we are satisfied, correctly states the law applicable to the facts in the case as favorably to defendant as the evidence warrants. The jury must have been impressed from the evidence that the killing of Henry McCann was wholly unprovoked and unnecessary. They must have given considerable weight to the testimony of good character of defendant in reducing the finding of guilt from murder to manslaughter. Defendant had a fair trial. The evidence fully sustains the verdict, and no reason appears why this court should interfere with the judgment.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    MURRAY SIZEMORE v. STATE.
    No. A-7819.
    Opinion Filed May 16, 1931.
    Rehearing Denied May 29, 1931.
    (299 Pac. 246.)
    Shaw & Becker, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cimarron county of rape in the second degree and was sentenced to serve a term of one year in the state penitentiary.

The offense was charged to have been committed with one Grace McKinney, a female of the age of 17 years. The prosecutrix testified to four separate acts of sexual intercourse occurring during a period of about 30 days prior to October 6, 1928. On motion, the state elected to rely on the first act disclosed by tbe testimony to have occurred about September 1, south of Boise City. Tbe election was made by tbe county attorney in open court, that tbe act relied upon by tbe state for a conviction was alleged to bave occurred about September 1, and that evidence of other acts Avas introduced for tbe purpose of corroboration only, and tbe court instructed tbe jury it should not be considered for any other purpose. Defendant testified in bis own behalf and denied all tbe acts of intercourse except one which be testified occurred about October 6.

Complaint is made that tbe jury was not clearly informed of tbe particular act upon which tbe state elected to rely for a conviction. It is insisted tbe statement of tbe county attorney making an election was not beard by tbe jury. Tbe record is not entirely clear. During tbe course of tbe trial, while tbe state was presenting its testimony, tbe court requested counsel to- approach tbe bench and tbe reporter- states tbe court and counsel conversed in an undertone. Then tbe following appears:

“By Mr. Shaw: At this time tbe defendant requests that tbe state be required to- elect upon what act they rely for a conviction in this case.
“By Mr. Butler: Tbe state elects to- stand on tbe first act south of town, being tbe act of sexual intercourse claimed to bave been bad south of town, south of Boise City, occurring about tbe first of September, 1928.
“By tbe Court: All right. Let’s proceed.”

Counsel for defendant states this occurred in an undertone; tbe record indicates that it followed the conversation in an undertone. In either event we are- of tbe opinion the; election was sufficiently definite and that tbe jury was not misled, since it appears tbe first act was near September 1, while the last act testified to by prosecutrix and admitted by defendant was about October 6. No request for a further instruction on the matter of election was requested by defendant’s counsel, and we must assume they were satisfied with the instruction given upon this point.

Some of the other assignments argued relate to the same question.

It is urged that instruction No. 8 is prejudicially erroneous. This instruction states the law of alibi and uses these words:

“You are further instructed that one of the defenses interposed in this case is what is known in law as an alibi. That is, that defendant was at another and different place at the time of the commission of the crime. * * *”

It is insisted that the use of the words “at the time of the commission of the crime” is an assumption by the trial judge that the crime was committed; that the court should have used the words “when the crime ‘was alleged’ to have been committed.” Counsel are correct, the trial court should not assume the commission of the crime. The use of this language, however, if it amounts to an assumption, could not have been prejudicial since the court in other instructions definitely stated to the jury what facts must be proven in order to warrant a conviction and clearly informed them of the presumption of innocence and the burden of proof. So considered altogether, the jury are told that the state must prove the offense charged beyond a reasonable doubt and unless it has done so they must acquit defendant.

The contention is made that there was prejudicial misconduct of the jury after the case was finally submitted to it. The record shows that after the case was submitted to the jury they were taken to a room and deliberated until 1 o’clock at night; then, without any directions from the court, the bailiff in charge of the jury permitted six of them to go to one hotel and he accompanied six to another hotel. No accommodations were available where the jurors could be kept together during their retirement. The hotels were about two blocks apart. Section 2723, Comp. Stat. 1921. This question has been before this court many times. The law is settled that in the trial of felony cases before the final submission of the case to the jury, the court, in its discretion, may permit the jury to separate under proper admonition, and if a defendant assigns error by reason of such separation, the burden is on him to show misconduct likely to result in prejudice. After the case is finally submitted to the jury and the separation occurs, prejudice is presumed and the burden is on the state to show that no prejudice in fact resulted. See in this connection Elkins v. State, 29 Okla. Cr. 175, 233 Pac. 491; Nowabbi v. State, 31 Okla. Cr. 158, 237 Pac. 868; Forester v. State, 36 Okla. Cr. 111, 252 Pac. 861; Crow v. State, 39 Okla. Cr. 145, 263 Pac. 677; Chappell v. State, 44 Okla. Cr. 267, 280 Pac. 639. This question was presented in the motion for a new trial, and the court heard evidence on the fact of separation of the jury, and the state thereupon called all of the jurors and met and fully rebutted the presumption of prejudice arising from the fact of separation.

Finally, it is earnestly argued that the evidence of the state is so vague, indefinite, and uncertain that it is insufficient to sustain a conviction. The testimony of the prosecutrix is that she lived in the country near Boise City; that she had not been to school in several years and had quit school when she was in the second grade. We gather from her testimony that she is not of high mentality. Her testimony is clear as to the fact of intercourse and that as a result on June 15, following, she gave birth to a child. It appears that defendant is a young man of intelligence. It is unfortunate that he is convicted of this offense, but the law as well as the conventions of society impose restraint in social relations with females under the age of 18 years. The offender who1 fails to observe this restraint does so at his peril and must suffer the consequences. Defendant has been represented by able counsel both in the trial court and in this court. We find no error requiring a reversal.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    JOHN PRYOR v. STATE.
    No. A-7769.
    Opinion Filed May 16, 1931.
    Rehearing Denied May 29, 1931.
    (299 Pac. 245.)
    D. E. Johnson and J. M. Humphreys, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of attempting to shoot another with intent to till, and was sentenced to serve a term of four years in the state penitentiary.

On the day charged, Lee West and Willard West, near Pawhuska, backed the car in which they were driving into a ditch. Defendant, an Osage Indian, and another person whose identity is not disclosed, drove up in an automobile. Defendant got out, went to where the Wests were, drew a pistol, told them he was an officer, pointed his pistol first at Willard West, then cocked it and pointed it at Lee West, and as he did this Willard West grabbed the gun and defendant pulled the trigger, but the hammer fell on Willard West’s hand and prevented it firing. The Wests succeeded in getting the gun from defendant and he left. Defendant appeared to> have been under the influence of liquor. He did not take the stand nor offer any testimony.

It is contended that the court did not submit in his instructions all the included offenses. Only one request for an additional instruction was made — that of pointing a pistol which was by the court submitted.

Under the entire record, we perceive no error which would require a reversal.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: PER CURIAM.

text:
    LUTHER DOWNEY v. STATE.
    No. A-7841.
    Opinion Filed April 25, 1931.
    Rehearing Denied May 29, 1931.
    (299 Pac. 1083.)
    Wright & Wright, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of selling whisky, and was sentenced to pay a fine of $450 and to serve five months in the county jail.

The testimony for the state is, in substance, that at the time charged an officer went to the place of business of defendant and informed him that he wished to purchase a pint of whisky, and, after some conversation, defendant directed him to drive around the corner of the block as it was too light at his place of business, and that the officer drove around, and defendant handed him a pint of whisky wrapped up as a package; that he gave defendant a $5 bill, the number of which had been taken; that two other officers who were watching them drove up, and defendant struck the whisky from the hands of the officer to whom he had delivered it; that defendant had on his person the particular bill given him 'by the officer. Defendant denies he made a sale, but testified that at the solicitation of the officer he acted as an agent to find whisky for him, but that he did not sell the officer any whisky nor receive from him any money.

There is a direct conflict in the testimony but the evidence for the state is sufficient to sustain the judgment. No reason for a reversal appears, but, upon a consideration of the entire record, we are of the opinion that the punishment assessed is excessive, and the same is reduced to a fine of $250 and 60 days in the county jail.

As modified, the case is affirmed.


author: DAVENPORT, P. J.

text:
    R. V. SUTTON v. STATE.
    No. A-7948.
    Opinion Filed May 29, 1931.
    (299 Pac. 928.)
    Waldrep, Winterringer & Akin, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquors with the unlawful intent to sell, barter, and give away the same in violation of the statutes, and was sentenced to pay a fine of $100 and be confined in the county jail for 30 days, from which judgment the defendant has appealed.

The Attorney General has filed a motion to dismiss tbe appeal, for the reason that the same was not lodged in this court within the time allowed by statute for docketing the appeal in misdemeanor cases, nor was it filed within an extension of time for docketing said appeal properly made by the trial court.

Section 2808, C. O. S. 1921, provides as follows:

“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 felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

An examination of the record shows that the judgment and sentence in this case was rendered on the 26th day of April, 1980; and on said date the defendant was allowed 30 days to make and serve a case-made; notice of appeal was served on the county attorney and court clerk on the 13th day of May, 1930; on the 25th day of May, 1930, the case-made was served on the county attorney, and on the 2d day of June, 1930, the case-made was settled and signed by the judge of the county court and attested by the court clerk, and filed in the office of the court clerk.

It appears that thereafter, on the 24th day of June, 1930, the trial judge attempted to make an order granting 30 days’ additional time to file the said case-made in the Criminal Court of Appeals; that later, on the 23d day of July, 1930, the said county judge attempted to make an order extending the time for 15 days from the 27th day of July, 1930, in which to file the petition in error and case-made in the Criminal Court of Appeals.

The record discloses that the orders made by the trial judge on the 24th day of June, and on the 23d day of July, 1930, attempting to grant additional time to file case-made in the Criminal Court of Appeals, were made several days after the case-made had been settled and signed by the trial court and attested 'by the court clerk and filed in the office of the court clerk. The petition in error and case-made were filed in this court August 8, 1930, more than 60 days after the case-made had been settled and signed by the trial judge, and attested by the clerk and filed in the clerk’s office, and after the expiration of the time fixed by the court in the order entered prior to the settling and signing of the case-made by the trial judge.

The Attorney General insists that the trial judge was without jurisdiction to enter any order in the case after he had settled and signed the case-made and it had been attested by the court clerk and filed in the court clerk’s office. No response has been filed for the plaintiff in error on the motion of the defendant to dismiss. Our procedure in regard to appeals was taken from the statutes of Kansas, and the decisions of the Supreme Court of the state of Kansas upon the question involved in this case rendered prior to the adoption of the statutes by the territory of Oklahoma should control in this case.

In Graham v. Shaw, 38 Kan. 734, 17 Pac. 332, the Supreme Court of Kansas held:

“Neither the judge of the district court nor the Supreme Court can amend or add to a case-made for the Supreme Court after it has been settled, signed, and attested.”

In the body of the opinion the court said:

“When the judge of the district court ‘has certified the case-made, it passes beyond his control, and cannot thereafter be amended, altered, or changed by any order of his.’ ”

The ruling in Graham v. Shaw, supra, was reaffirmed by the Supreme Court of Kansas, in the following cases: Lewis v. Linscott, 37 Kan. 379, 15 Pac. 158; Chicago Lumber Co. v. Tomlinson et al., 54 Kan. 770, 39 Pac. 694; Webber v. Genoways, 9 Kan. App. 670, 58 Pac. 1036.

In Grand Lodge of Ancient Order of United Workmen v. Furman, 6 Okla. 649, 52 Pac. 932, the Supreme Court of the Territory of Oklahoma, in the first paragraph of the syllabus, said:

“Neither this court, nor the trial court or judge, has the power to amend a case-made, after it has been settled and signed by said judge, and attested by the clerk of his court.”

The trial court, after he had settled and signed the case-made and same had been attested by the court clerk, was without jurisdiction to enter any orders with reference to the appeal or to add to the case-made. If the party appealing may after the case-made is settled and signed go before the trial court and procure additional orders for filing the appeal in the appellate court, and secure additional orders, apparently there would be no end to the case. The jurisdiction of the trial court over the case-made must cease at some time, and we hold that it ceases when a case-made is settled and signed by the trial court and attested by the clerk and filed in the court clerk’s office. The orders of the trial court made on June 2'4 and July 23, 1930, attempting to grant additional time to file the case-made, were without jurisdiction and void.

The petition in error and case-made was not filed in this court within the time allowed by the statute for appeals; therefore the motion of the Attorney General to dismiss is sustained.

CHAPPELL and EDWARDS, JJ., concur.


text:
    VICTOR WOODS v. STATE.
    No. A-7954.
    Opinion Filed May 29, 1931.
    (299 Pac. 927.)
    Ash, Jones & Wesner, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of 31% gallons of corn whisky, with the unlawful and willful intent to barter, sell, give away, and otherwise furnish to others, and was sentenced to pay a fine of $300 and to be imprisoned in the county jail for 90 days. From which judgment and sentence the defendant has appealed.

The testimony on behalf of the state shows that the officers went to the home of the defendant with a search warrant, and searched the premises and found 31% gallons of corn whisky in his home. The defendant was not at home at the time the search was made. The wife of the defendant testified that the defendant was away from home, and that on the night before the officers searched their home the next day she was aroused by some one opening the door and starting to put something in the house, and, when she roused up, the party told her he did not know she was there, hut his car had broken down and he was leaving some stuff there. The defendant offered further testimony to show he was at another place all the day and night before the search was made.

The only question argued by the defendant is that the testimony is insufficient to sustain the verdict. This question was properly presented to the jury by the court, and the jury found the defendant guilty. This court has repeatedly held that, where there is any competent testimony upon which the jury would be justified in finding a verdict of guilty, this court would not disturb the jury’s finding. Mann v. State, 49 Okla. Cr. 210, 292 Pac. 883; Stacy v. State, 49 Okla. Cr. 154, 292 Pac. 885.

The testimony is amply sufficient to sustain the judgment. The case is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    JOHN MAHAFFET v. STATE.
    No. A-7860.
    Opinion Filed May 29, 1931.
    (299 Pac. 927.)
    Bridges & Ivy, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Jefferson county of the crime of illegal possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for 90 days.

The evidence of the state was that they searched the defendant’s premises and found no intoxicating liquor; that a pint of liquor had been recently broken at the barn, but the officers saw neither the defendant nor any member of his family at the barn, but they were in the house eating breakfast; that about 60 steps from the house, on a vacant lot, the officers found a five-gallon keg and three half-gallon jars of whisky. There was no proof to connect the defendant with the possession of the liquor so found.

The evidence of the state does nothing more than create a strong suspicion of the guilt of the defendant. The law requires proof of the guilt of a defendant beyond a reasonable doubt. Measured by this standard, the evidence is wholly insufficient to support the verdict of the jury.

The cause is therefore reversed.


text:
    STATE v. R. L. WATSON.
    No. A-7899.
    Opinion Filed May 29, 1931.
    (299 Pac. 926.)

      Hollis Arnett, Co. Atty., B. F. VanDyke, and W. B. Garrett, for the State.
    W. C. Austin and W. T. Jeter, for defendant in error.
   EDWARDS, J.

This is an appeal by the state. The defendant in error, hereinafter called defendant, was charged in the district court of Greer county with the embezzlement of $100. At the conclusion of the state’s testimony, the court ruled that there was no evidence of the commission of an offense in Greer county and sustained a demurrer.

The record discloses that the prosecuting witness, L. H. Post, and defendant had some business transactions of some magnitude; Post having bought a garage and car agency from defendant. In the transaction he gave a note in the sum of $1,516 and various collateral notes to secure it. This transaction occurred in Greer county. Some business controversy apparently arose between defendant, who resided in Jackson county, and the prosecuting witness Post, who resided in Greer county, growing out of the sale of various cars turned over to Post at the time or just subsequent to the purchase of the business and for which defendant was liable. One of the notes in the sum of $100 given defendant as collateral to the note of Post was made by one Russell. This note was paid by Russell to defendant in Greer county, which was deposited in Jackson county, and by check which cleared on October 17. The state contends this Russell payment should have been credited on the Post note. On October 17, Post went to Blair, in Jackson county, and paid defendant the balance due on his note, knowing at the time that Russell had previously given a check for the $100. It is the state’s theory that defendant was required to account to Post in Greer county, and'that the failure of defendant to- account for or turn over to Post the $100 represented by the Russell payment constitutes embezzlement in Greer county, citing McClain on Crim. Law, § 650; State v. Hengen, 106 Iowa, 711, 77 N. W. 453; State v. Bailey, 50 Ohio St. 636, 36 N. E. 233, and other cases.

In this state an offense must be prosecuted in the county in which it is committed, or, when committed partly in one county or the actual effects constituting or requisite to the offense occurring in two- or more counties, the jurisdiction is in either. Section 20, art. 2, Const.; sections 2429, 2433, Comp. St. 1921. It is obvious here that, at the time the Russell collateral note was paid, defendant was fully authorized to receive payment, and in fact it was his duty to receive payment. Then if it be conceded that Post later paid defendant in Jackson county more on his note than was due, this would not make the prior collection of the collateral note fraudulent and would not constitute an offense in Greer county. The offense, if any, would be the collecting more than was due in Jackson county. The transaction proven as a basis for this prosecution arose from a difference of opinion between defendant and prosecuting witness on a civil liability. Obviously there was no intent on the part of defendant to defraud, such as is necessary to constitute embezzlement (section 2121, Comp. St. 1921), and, even if there were, under the facts stated, the venue is not in Greer county. The trial court was eminently correct in sustaining the demurrer.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    CHARLES DAUGHERTY v. STATE.
    No. A-7915.
    Opinion Filed May 29, 1931.
    (299 Pac. 925.)
    Morris & Wilhite, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

An information was filed against the defendant in the county court of Caddo> county on the 20th day of March, 1930, charging him with unlawful possession of intoxicating liquor on the 19th day of March, 1930. On the 21st day of March, 1930, the defendant was duly arraigned on such charge and entered his plea of guilty. Upon such plea, the court adjudged the defendant guilty, and assessed his punishment at a fine of $250 and imprisonment in the county jail for 60 days.

On the 25th day of March, 1930, a commitment was issued and the defendant committed thereunder.

On the 31st day of March, 1930, defendant filed his application for leave to withdraw his plea of guilty and enter a plea of not guilty, and alleged as grounds therefor:

“That this defendant had reason to believe and did believe that if he entered a plea of guilty he would receive a less sentence than that imposed upon him by the court, and said applicant further states that said punishment imposed by the court is cruel, unjust and excessive.”

Thereafter, and on the same daj, this application was denied. Thereafter, and on the same day, defendant filed his motion for a new trial, which was by the court overruled, and defendant prosecutes his appeal by transcript, and alleges as his ground for reversal of the case that the court abused its discretion in refusing to permit the defendant to withdraw his plea of guilty and enter a plea of not guilty.

Applications of this kind are addressed to the sound discretion of the trial court, and a conviction based upon a plea of guilty will not be disturbed, unless there appears a clear abuse of such discretion upon the part of the trial court. Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298; Kemp v. State, 35 Okla. Cr. 128, 248 Pac. 1116.

The application of the defendant stating no sufficient ground, and it not appearing from the record that the trial court abused its discretion, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    STATE v. M. R. SEARS.
    No. A-7974.
    Opinion Filed May 29, 1931.
    (299 Pac. 925.)
    W. Adelbert Dillon, Co. Atty., and J. Berry King, Atty. Gen., for the State.
    Titus & Hill and Guy D. Talbot, for defendant in error.
   DAVENPORT, P. J.

The defendant in error, M. R. Sears, was by information charged with the unlawful, willful, wrongful, fraudulent, and felonious selling, exchanging, and delivering to one Noah Herron, a forged and counterfeited note, was acquitted, and the state appeals.

The record shows that the defendant in error, M. R. Sears, was acquitted by the verdict of a jury; therefore the questions raised by the state are moot.

The appeal is dismissed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    JOHN LANE v. STATE.
    No. A-7952.
    Opinion Filed May 29, 1931.
    (299 Pac. 923.)
    A. V. Dinwiddie, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of possession of spirituous liquor, with the unlawful and wrongful intent to barter, sell, give away, and otherwise furnish to others, and was sentenced to1 serve a term of 30 days in jail and pay a fine of $100, from which judgment the defendant has appealed.

The Attorney General has filed the following confession of error:

“The Attorney General is impelled to confess error in this case; a thing he very seldom ever does. The error is confessed on the authority of the case of Popp v. State, recently decided by this court and reported in 44 Okla. Cr. 220, 280 Pac. at page 478.
“In this case it appears that the plaintiff John Lane was jointly charged in the county court of Logan county with one Carie Ingle, Theodore Bolton and Melvin Childs with having, on or about the 12th day of December, 1929, the unlawful possession of fifteen (15) gallons of whisky. It is undisputed that the same defendants were also jointly charged with the unlawful possession of a still on the same day and at the same time and place. It is also undisputed that the codefendant Carie Ingle was, on the morning of the day this defendant was convicted in this court, to wit, on the 2áth day of April, 1930, separately tried in another case for the unlawful possession of this whisky still and was by a jury convicted in that case. The same witnesses were used to prove the possession of the still against Ingle as were used in this case to> prove the possession of the whisky against Lane.
“It appears by this record that one member of the jury who sat in the case against Ingle was permitted by the court, over the exception and objection of counsel for the defendant, to sit also as a juror in this case, and this was done although the defendant had exhausted all his peremptory challenges and was compelled to use one of his peremptory challenges on another juror who had likewise sat in the Ingle case and whom the trial court also held to be qualified to sit in this case.
“In the case of Popp v. State, above referred to, this court held:
“ ‘Where certain jurors called for the trial of a defendant had just served in the trial of the mother of defendant on a like charge, and where the witnesses in the two cases are largely the same, and the fairness and impartiality of the jurors for this reason is called in question, such jurors are not impartial within the meaning of the statute and Constitution.’
“In the body of the opinion, it is said:
“ ‘Although defendant exhausted his peremptory challenges, this juror remained on the panel and participated' in the verdict.
“ ‘It is true that the case against the mother was not the same cause for which defendant was being tried, but the state’s witnesses were the same, the circumstances the same, the place at which the offense was alleged to' have occurred was the same, the offense charged of the same kind. It is evident that under these circumstances a juror who had just tried the mother was disqualified to enter upon the trial of the son. The law permits the calling of talesmen to fill out a jury panel, and a reasonable desire to give an accused a fair trial would require that jurors under the circumstances narrated should be excused and if necessary talesmen called. .Section 20, art. 2, of our Constitution, among other things, provides that in all criminal prosecutions the accused shall have a right to a trial by an impartial jury. Our attention has not been called to any case involving a similar state of facts, but in numerous cases we have said that where the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that the juror is fair and impartial, and any doubt upon that point should be resolved in favor of accused. The mere fact that a juror may be of the opinion that he can try the case fairly and impartially is not alone the test as to his competency. Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Temple v. State, 15 Okla. Cr. 176, 175 Pac. 733; Schrimpsher v. State, 32 Okla. Cr. 371, 241 Pac. 201.'
“It is apparent that the facts in this case are almost identical with the facts in the Popp Case, and the law therefore announced in that case would be controlling in this case, and the Attorney General believes that the law of that case should be followed in this case and for that reason confesses error accordingly.”

After a careful examination of the record, the confession of error of the Attorney General is approved.

The case is reversed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    HOWARD REYNOLDS et ux. v. STATE.
    No. A-7879.
    Opinion Filed May 29, 1931.
    (299 Pac. 923.)
    Charles G. Ozmun, for plaintiffs in error.
    J. Berry King, Atty. Gen., and J. II. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Comanche county of the crime of unlawful possession of intoxicating liquor, and their punishment fixed by the jury at a fine of f 150 each and imprisonment in the county jail for 90 days each.

The evidence of the state was that the officers had a search warrant for the defendants’ premises, and that, as they neared the house, they could see several cars around the house and a large number of people in the house, and could smell a stong odor of beer; that, when they went into the house, they found eight soldiers and about a dozen civilians; that one soldier was drunk and several other persons were in a less state of intoxication; that a crowd was standing around a table upon which there were several 'beer bottles with a little beer left in them, several empty bottles on the chairs and floor, something like 300 empty bottles on the back porch of the house; that under the side of a barn about 100 feet from the house they found a tank filled with ice out of which they took one bottle of beer; that they found part of a bottle of beer in the house. One officer testified that he took a drink of this beer and could feel the effect of it. All of the officers qualified and said the beer was intoxicating. The defendants did not take the witness stand.

Defendants’ first contention is that the search of the premises was illegal because of the insufficiency of the affidavit.

The affidavit and search warrant are both in the record, and are sufficient upon their face to- authorize the search.

There is no evidence in the record to indicate that the defendant Mrs. Howard Reynolds had anything to do with the possession of the intoxicating liquor found. Since there is no competent evidence to connect her with the offense, the cause is reversed as to her.

It appears from the record that the defendants’ place was a rendezvous for drunken soldiers and people of like character in that community. The punishment meted out by the jury to Howard Reynolds, under all of the facts and circumstances in the case, is not excessive.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without substantial merit, the cause is affirmed as to Howard Reynolds and reversed as to Mrs. Howard Reynolds.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    CARY INGLE v. STATE.
    No. A-7953.
    Opinion Filed May 29, 1931.
    (299 Pac. 922.)
    A. V. Dinwiddie, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with John Lane, Theodore Bolton, and Melvin Childs, with the possession of a still; was tried separately, convicted, and sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days; and has appealed to this court.

In the trial the state called Bert McKean, who stated he was sheriff of Logan county, Okla.; that he got a glimpse of the defendant on the 12th day of December, 1929, as he ran ini» some brush—

“I could not tell where that was but it was on the southeast quarter of the section; I had a search warrant for the premises; the premises were not occupied by the defendant; I don’t know the fellow’s name.”

The state then introduced its exhibits A and B, the same being the affidavit for the search warrant, the search warrant, and the return made by the officer thereon. The affidavit for the search warrant and the search warrant described the property to be searched as the northwest quarter of section 35, township 16 north, range 3 west, of the Indian meridian. The return of the officer shows that he searched the place described in the within warrant, and then describes what he seized. His testimony on the stand shows that he did not search the property described in the warrant, and it is not contended that the defendant occupied the property. It is claimed by the state that where they found the still defendant was seen running from the place. The car of the defendant was found about 75 yards from where they claim they found the still.

The defendant testifying in his own behalf denied any knowledge of the still and denied he had anything to do with the still stating that the morning of the 12th of December, 1929, John Lane drove him to Oklahoma City, and Lane drove his car back to G-uthrie. John Lane testifying corroborated the defendant as to driving him to Oklahoma City, and driving defendant’s car back, and stated he drove the defendant’s car out to the place where it was, and where he was when the officers came upon him. This is in substance the testimony.

Several assignments are urged by the defendant as to why the case should be reversed. The second assignment of error is that the court erred in the trial of said cause in not sustaining the objection of the defendant, and over such objection permitting certain evidence to go to the jury, to which the defendant at the time duly excepted.

The objection of the defendant to the admission of the affidavit for the search warrant and the search warrant, and the return of the officer made thereon, was well taken and should have been sustained. This court has repeatedly held that it is error for the court to admit the affidavit for the search warrant, and the search warrant, or either of them, as primary evidence, as it deprived the defendant of a fair and impartial trial. It is clearly shown by the testimony that the property described in the search warrant was not searched, and that the return of the officer thereon showing that it was, was an error, as the state did not contend that the still alleged to have been found was found on the land occupied by the defendant. Any testimony offered by the state with reference to the affidavit for the search warrant and the search warrant was inadmissible.

The testimony as to whether or not the defendant was seen near where they claim the still was found is conflicting, and, in view - of the fact that the jury in arriving at its verdict assessed the minimum penalty under the law, had not the affidavit and search warrant, and the return thereon been introduced by the state, over the objection of the defendant, the jury may not have arrived at a verdict of guilty. The admission of the affidavit for the search warrant, the search warrant, and the return made thereon, over the objection of the defendant, was prejudicial to his rights and is such an error as to- require a reversal.

For the reason stated the ease is reversed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    HENRY TROUP v. STATE.
    No. A-7886.
    Opinion Filed May 9, 1931.
    Rehearing Denied May 29, 1931.
    (299 Pac. 245.)
    Hardin Ballard and Eice & Mitchell, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of McClain county of the unlawful sale of intoxicating liquor, and his punishment fixed by the jury at a fine of flOO, and imprisonment in the county jail for a period of 60 days.

The evidence of the state was that F. M. Poster, an undercover man working under the direction of the sheriff of McClain county, went to the home of defendant on the 13th day of June, 1929, and bought a quart of whisky, paying $3 for same. This witness was corroborated by Mrs. Ethel Poster, his wife, who was present wheu the transaction was had.

Defendant denies having sold the whisky or that he had ever seen the witness, Foster, and introduced several witnesses who testified that they were at his home on the day Foster said he 'bought the whisky, and that they did not see Foster at defendant’s premises. Defendant contends that the evidence of the state is insufficient to support the verdict of the jury; that, since it appears from the evidence that the witness Foster was an undercover man, his evidence was unworthy of belief, and that therefore the jury should have found the defendant not guilty.

The court permitted the defendant wide latitude in the cross-examination of this witness and his wife. The facts in connection with the witness’ employment, the amount of his pay, and his activities were fully brought out, and were before the jury at the time they rendered their verdict.

This court has held in numerous cases that the weight of the evidence and the credibility of the witnesses are for the jury, and that a conviction on appeal will not be reviewed on arguments directed to the credibility of the witnesses or the weight to be given to their testimony. The jury had a right to believe Foster and his wife, and had a right to disbelieve the witnesses for the defendant.

The evidence of the state being sufficient to support the verdict of the jury, the cause is affirmed.

EDWARDS, J., concurs.


text:
    HENRY TROUP v. STATE.
    No. A-7885.
    Opinion Filed May 9, 1931.
    Rehearing Denied May 29, 1931.
    (299 Pac. 244.)
    Hardin Ballard and Eice & Mitcbell, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen:, for tbe State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in tbe county court of McClain county of tbe unlawful sale of one-half gallon of whisky, and bis punishment fixed by tbe jury at a fine of $130 and imprisonment in the county jail for 75 days.

The evidence of tbe state was that F. M. Foster, an' undercover man working under the direction of the sheriff of McClain county, went to the home of defendant on the evening of June 10, 1929, and bought half a gallon of whisky from defendant, paying him $5 therefor. This witness is corrborated in all the details, except the actual purchase of the whisky, by Mrs. Ethel Foster, who accompanied the purchaser to defendant’s premises. Defendant, testifying for himself, denied that he sold the whisky, and denied that he had ever seen the witness until the day before the trial.

Defendant contends, first, that the court erred in failing to quash the jury panel. Section 2659, C. O. S. 1921, provides the grounds of challenge to the panel, and section 2660, C. O. S. 1921, provides the manner of taking such challenge. The record discloses that this motion to quash contains none of the grounds mentioned in section 2659, supra, but is predicated wholly upon the individual disqualification of the jurors because of bias and prejudice of the individual jurors. Defendant’s remedy was not by motion to quash, but by challenge for cause to each individual juror. Thereafter defendant examined the jurors upon their voir dire, and the court excused for cause all jurors disqualified on such examination. For a full discussion of these questions, see Burleson v. State, 48 Okla. Cr. 100, 289 Pac. 364.

Defendant next contends that the court erred in overruling his application for a continuance based upon the absence of the witness Mrs. Wyatt. The record discloses that the defendant had no subpoena issued for this witness and exercised no diligence to procure her presence. The court therefore did not err in overruling said application.

The errors of law complained of being without substantial merit, and the evidence supporting the verdict of the jury, the cause is affirmed.

EDWARDS, J., concurs.


text:
    H. E. (JIMMIE) SMITH v. STATE.
    No. A-7843.
    Opinion Filed May 16, 1931.
    Rehearing Denied May 29, 1931.
    (299 Pac. 243.)
    Harry C. Hicks, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Harmon county of the unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $250 and imprisonment in the county jail for 90 days.

The evidence of the state was that they had a warrant for the arrest of defendant, charging the sale of intoxicating liquor to a minor, which is a felony; that defendant was rooming at the Hart Rooming House; that the officers went to the door of his room and opened the door and went in; that as they entered defendant was breaking pint bottles of whisky in the sink in his room; that there was a strong odor of whisky in the room, and five or six broken bottles in the sink with a small amount of liquor; that the officers arrested defendant and on a search of his room found a pint of whisky concealed in a trunk.

The defendant did not take the witness stand, and offered no evidence.

The only question of any importance raised by the defendant is presented by his motion to suppress the evidence.

In the absence of the' jury, defendant offered evidence to show that the officers had a search warrant for a search of the Hart Rooming House and running against Minnie Hart, who was the proprietress. He also introduced the original warrant upon which he was arrested and the re-' turn thereof. The officers testified that they paid no attention to the search warrant as far as defendant was concerned; that the warrant for defendant’s arrest, charging a felony, was issued on the 26th day of February, 1929; that they went to the Hart Rooming House to arrest defendant under said warrant on the 11th day of March, 1929, and arrested him before any search of his room was made.

In Yeager v. State, 43 Okla. Cr. 318, 278 Pac. 665, 666, this court said:

“Where a person is legally arrested for an offense, whatever is found upon his person or in his control, which may be used to prove the offense, may be seized and held for evidence in the prosecution.”

The defendant having been legally arrested, the officers had a right to make the search, and the evidence obtained thereby was admissible in the trial of the case.

The evidence supporting the verdict of the jury, and, the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent.


text:
    A. C. QUICK v. STATE.
    No. A-7882.
    Opinion Filed May 9, 1931.
    Rehearing Denied May 29, 1931.
    (299 Pac. 242.)
    L. A. Pelley, for plaintiff in error.
    Tbe Attorney General, for tbe State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in tbe county court of Jackson county of tbe unlawful sale of intoxicating liquor, and bis punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for 45 days.

Defendant contends first that tbe court erred in its instructions to tbe jury.

An examination of these instructions reveals that they are not carefully drawn and are not as comprehensive as they might have been, but when considered in tbe light of tbe conclusive evidence of tbe guilt of tbe defendant, be could not have been prejudiced thereby.

This court has said, in substance, that tbe giving of erroneous instructions is not always ground for reversal. Thompson v. State, 6 Okla. Cr. 51, 117 Pac. 216; Grans-den v. State, 12 Okla. Cr. 417, 158 Pac. 157; West v. State, 13 Okla. Cr. 312, 164 Pac. 327, L. R. A. 1917E, 1129; Cloud v. State, 41 Okla. Cr. 395, 273 Pac. 1012.

Defendant contends that the evidence is insufficient to support the verdict of the jury, but this contention is without merit.

The other errors complained of by defendant have been carefully considered and are without substantial merit.

For the reasons stated, the cause is affirmed.

EDWARDS, J., concurs.


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    ALPHONSO HARRIS v. STATE.
    No. A-8015.
    Opinion Filed May 2, 1931.
    Rehearing Denied June 6, 1931.
    (299 Pac. 505.)
    Kelly Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant was convicted of the larceny of an automobile, and was sentenced to serve five years in the state penitentiary. The case was tried in April, 1930, and the appeal was lodged in this conrt in October, 1930. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Due to the gravity of the offense, we have carefully examined the record, and the evidence is amply sufficient to sustain the judgment and sentence. Where an appeal is prosecuted to this court and no' brief in support of the petition in error is filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

The case is affirmed.


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    W. H. EARNHART v. STATE.
    No. A-7717.
    Opinion Filed Jan. 24, 1931.
    Rehearing Denied June 6, 1931.
    (299 Pac. 504.)
    Wilkinson & Wilkinson, for plain! iff in error.
    J. Berry King, Atty. Gen., for the .State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $400 and to serve 30 days in the county jail.

The record discloses that at the time charged certain officers with a search warrant searched the residence of defendant, and found a half-gallon jar more than half full of liquor and some wine. The defendant did not take the stand and offered no testimony other than that of the justice of the peace who issued the search warrant upon the question of the validity of the search warrant. Defendant questions the validity of the search of his residence under the search warrant in the case and the competency of the evidence of the state. If the search warrant had been materially altered, the burden was on defendant to establish such fact. This he has not done. The case for the state is, not strong, but we are not prepared to say there is not sufficient evidence to sustain the verdict and judgment. The amount of fine assessed under the record before us appears excessive.

The judgment is modified by reducing the fine to $200, and, as modified, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    DAN ELAM v. STATE.
    No. A-7823.
    Opinion Filed June 6, 1931.
    (300 Pac. 1119.)
    John P. Crawford, I. M. King, and Trice & Davidson, for plaintiff in error.

      The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of the crime of robbery with firearms, and his punishment fixed by the jury at imprisonment in the state penitentiary for five years.

Defendant was jointly charged with one R. R. Kinsey with the crime of robbery with firearms. Defendant demanded a severance, and the state elected to try Kinsey first. He was found guilty, and his punishment fixed by the jury at imprisonment in the state penitentiary for eight years. On the 6th day of March, 1931, this court affirmed such conviction, and thereafter in due course of time denied a petition for rehearing.

The evidence of the state in the case at bar is practically the same as the evidence in the Kinsey Case, and the questions of law raised are practically the same. For a full discussion of the facts and the law see Kinsey v. State, 50 Okla. Cr. 258, 296 Pac. 1002.

Upon the authority of the Kinsey Case, this cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    NAHEEL ZAMMER v. STATE.
    No. A-7809.
    Opinion Filed June 6, 1931.
    (300 Pac. 325.)

      E. M. Gallaber and Wallace & Wallace, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for tbe State.
   EDWARDS, J.

Tbe plaintiff in error, hereinafter called defendant, was convicted in the district court of Creek county of forgery in tbe second degree, upon both counts of an information in two counts, and was sentenced to serve concurrently two terms of six months in tbe state penitentiary.

Tbe record discloses that defendant was tbe wife of Joe Zammer, who died prior to the filing of the charge in this case, and was tbe aunt of Nimmer Zammer, an accomplice and tbe principal witness for tbe state. Tbe first count of the information is that defendant uttered as true a check signed by Joe Zammer, city treasurer of Kiefer, payable to H. R. Crandall, knowing that tbe in-dorsement of H. R. Crandall thereon was forged. Tbe second count is that defendant, without authority, forged tbe name of H. R. Crandall on said check. Counsel for defendant have very thoroughly briefed the questions raised. The Attorney General has not filed a brief, but at the time of the oral argument informed this court that, while he did not confess error, he was unable to insist on an affirmance of the judgment.

The record discloses that Joe Zammer, the husband of defendant, and Nimmer Zammer, the principal witness for the state, were partners in a mercantile business at Kiefer, and that all the acts of defendant connecting her with the transaction were done in, the presence of Joe and Nimmer Zammer, and at the direction of Joe Zammer, her husband.

It is contended' that the inference of duress arises under the provisions of sections 1514 and 1518, Comp. Stat. 1921, and that there is no evidence to rebut the inference, citing McKinney v. State, 20 Okla. Cr. 134, 201 Pac. 673; Neff v. State, 29 Okla. Cr. 2, 231 Pac. 898; Ferguson v. State, 29 Okla. Cr. 238, 233 Pac. 497; Winer v. State, 36 Okla. Cr. 316, 253 Pac. 1025; Sanders et al. v. State, 48 Okla. Cr. 65, 289 Pac. 798. The contention must be sustained.

It is further argued that there is no evidence to corroborate the testimony of Nimmer Zammer, an accomplice, as required by section 2701, Comp. Stat. 1921. It is extremely doubtful if there is any sufficient corroboration. However, we do not directly pass on this question.

The case is reversed and remanded.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    DONALD PARKER v. STATE.
    No. A-7881.
    Opinion Filed June 6, 1931.
    (300 Pac. 324.)

      H. S. Samples and Grant Gillespie, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Okmul-gee county of the crime of grand larceny, and, after the jury failed to agree upon his punishment, the special judge who tried the case fixed such punishment at imprisonment in the state penitentiary for two years.

The defendant was charged with the larceny of 1,500 feet of ten-inch, forty-pound casing of the value of $1.25 per foot, all of the total value of $1,875, the personal property of the Bettie-Ann Oil Company, a corporation.

The testimony of the state was that the defendant appeared in the town of Weleetka at the filling station of one Yolney Hamilton on Sunday evening, December 18, 1927, at about 6 o’clock; that defendant stated he had some oil well casing which he wanted hauled from a location several miles northwest of Weleetka to another location about five miles northwest of the city of Okmulgee; that trucking contractors in the city of Weleetka were called to this filling station, and defendant entered into a contract with them for the removal of the casing on that night; that the night was very cold, and defendant guided the truck drivers to the place where the casing was located, and, after the same was loaded, the defendant again guided them to the place where he desired the casing unloaded, which place was secluded and at the foot of a mountain northwest of the city of Okmulgee; that it required six trucks to' remove the casing, and the price agreed upon for the work was $225, and that the bill for the hauling was to be sent to George Parker, at Tulsa, Okla.; that after the casing- had been hauled, the bill was sent to Tulsa, to George Parker, and that no such person was found at Tulsa who had authorized any such contract or had any pipe of such description located in Okfus-kee county; that an investigation later resulted in the arrest of the defendant for the larceny of the pipe.

This conviction is based upon conflicting evidence. The evidence of the state shows conclusively that the defendant went to- Weleetka, contracted for the hauling of the casing, directed its transportation, and the circumstances show that it was his intention to permanently deprive the owner of the said property.

The evidence of the defendant is to the effect that defendant was at home in the city of Okmulgee at the time this casing was stolen. This alibi was testified to- by three or four members of defendant’s family and by a couple of intimate friends of the family.

On this conflicting issue of fact the jury accepted the state’s evidence as true in preference to that of the defendant, and adopted the state’s theory of the case.

The principal contention relied upon by defendant in his brief as ground for reversal is that the evidence is wholly insufficient in law to sustain a conviction.

This contention is based upon two premises: First, that the witnesses for the state are accomplices, and that there is not sufficient corroboration of their testimony.

There is nothing in the evidence of the state to indicate that the witnesses who hauled this pipe had any knowledge that it was being stolen, or had any intent to steal the same or to deprive the owner of the property.

In section 2101, C. O. S. 1921, larceny is defined as:

“Larceny is the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof.”

Under this definition of larceny and the evidence of the state’s witnesses they were not accomplices.

Under the testimony introduced by the defendant, he had no connection with the taking, and therefore they could not have been accomplices. Mitchell v. Territory, 7 Okla. 527, 54 Pac. 782; Shires v. State, 2 Okla. Cr. 97, 99 Pac. 1100; McSpadden v. Territory, 7 Okla. Cr. 234, 122 Pac. 1105.

There is therefore no merit in the contention of defendant that the evidence is insufficient because based on the testimony of accomplices whose testimony was conflicting and uncorroborated.

Defendant’s second contention under this assignment of error is that there is no showing that he ever had possession of the property. It is not necessary that the defendant take actual physical possession of the property. He may take possession and asport the property through innocent agents.

In Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040, this court said:

“An asportation of property feloniously taken is a necessary element of the crime of larceny, but such aspor-tation need not be the physical act of the accused. It is sufficient if the accused procured or directed the aspor-tation.”

The other errors complained of are without substantial merit.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    Ex parte AL COOPER.
    No. A-8114.
    Opinion Filed June 6, 1931.
    (300 Pac. 322.)
    Frank Petree and P. K. Morrill, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the sheriff of Jackson county. That in October, 1930, petitioner was convicted in the district court of said county of a second offense violation of the prohibitory liquor laws and was sentenced to serve one year in the state penitentiary, and is confined in the county jail to await transportation to the penitentiary.

Petitioner alleges that he was convicted under the provisions of section 2, chap. 26 (House Bill No. 46), Session Laws 1913. That said act is unconstitutional and void as not having been passed and approved as provided by section 57, art. 5, state Const, in this, that the act purports to amend sections 11 and 16, c. 70, Session Laws 1911. That said chapter 70, at the time of the amenda-tory act had been declared unconstitutional and void, and, being void, was not in existence and could not be amended, and the attempted amendment was new law and that part of it relating to second and subsequent violations of the prohibitory liquor law was not clearly expressed in the title.

Section 57, art. 5, state Const., provides that:

“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. * * *”

Section 16, c. 70, Session Laws 1910-11, touching the matter of second convictions, and one of the sections amended by the act of 1913, reads:

“For the second conviction for the violation of any of the provisions of this act, the penalty shall be a fine of not less than five hundred dollars nor more than one thousand dollars, and by imprisonment for not less than six months nor more than 12 months. * * *”

The title of the act of 1913, and section 16, as amended, reads:

“An Act amending sections 11 and 16, of chapter 70 of the Session Laws of 1911; making it unlawful to sell certain liquors to a minor, person of unsound mind, or an habitual drunkard; making the keeping of a place for the purpose of violating the prohibition laws of this state unlawful; making it unlawful to act as agent for any wholesale liquor house, brewery or distillery or any other liquor house; making the keeping of more than a certain amount of liquor at place of business or residence prima facie evidence of an intention to violate the law; requiring the police judge of a city or justice of the peace of any town or village to certify convictions to county attorney; and declaring an emergency.”
“.Section 2. That section 16, chapter 70, of the Session Laws of 1911, of the state of Oklahoma, be and the same is hereby amended to read as follows:
“Section 16. For the second and all subsequent convictions for the violátion of any of the provisions of this act, the penalty shall be a fine of not less than $50, nor more than $2,000, and 'by imprisonment of not less than 30 days in the county jail, nor more than 5 years in the state penitentiary. * * *”

In support of his contention petitioner cites several authorities, but none from the courts of this state.

The particular question presented appears not to have been directly passed on by this court. Section 57, art. 5, Const., has been several times considered by this court and by the Supreme Court. It is held that the title of an act must embrace but one subject which shall be clearly expressed in the title, but that such requirements are not to be exactingly enforced or in such a manner as to cripple legislation. Pottawatomie County et al. v. Alexander, 68 Okla. 126, 172 Pac. 436, 437; State ex rel. City of Durant v. Bonner, 86 Okla. 280, 208 Pac. 825; Dabney v. Hooker, 121 Okla. 193, 249 Pac. 381; Cornell v. McAlister, 121 Okla. 285, 249 Pac. 959; Ex parte Masters, 126 Okla. 80, 258 Pac. 861.

In the case of Pottawatomie County et al. v. Alexander, supra, it is said:

“It is held generally that, where the title of the amend-atory act specifies the section or sections to be amended, the amendment must be germane to the subject-matter of the sections specified — ” citing Lewis’ Sutherland, Stat. Const, sec. 139, and several cases.

By analogy, therefore, it would appear that where the title to the act specifies the sections to be amended there is sufficient compliance with the provisions of section 57, art. 5, if the subject-matter contained in the amendatory sections is germane to the subject-matter contained in the sections which are amended. So in this instance it is proper to refer to a section of an act as being amended if in the body of the act that section as amended is set out in full, and the section as amended is germane as to subject-matter with the section which it amended. An examination of section 2, c. 26, Session Laws 1913, shows that the subject-matter thereof is the same as the subject-matter of section 16, c. 70, Session Laws 1910-11. As to the contention that an act held to be unconstitutional or invalid cannot be amended, the authorities are divided. The weight appears to be that although held invalid, the statute may be thereafter amended. In the case of St. L. & S. F. R. Co. et al. v. Tolbert et al., 47 Okla. 228, 148 Pac. 128, the Supreme Court held:

“Assuming that iStat. Okla. 1893, § 4773 (Wilson’s Rev. & Ann. St. 1903, § 5053), was in conflict with article 7, § 18, of the Constitution, at the time of the adoption of that instrument, and hence not brought over and put in force throughout the state by section 2 of the Schedule, and for that reason is void, act of April 21, 1913 (Laws 1913, c. 135), amending • said section, is not void, assuming it purports tO' amend an invalid statute.” Citing authorities.

For the reasons assigned the act of 1913 is not invalid as in violation of the Constitution on either of the grounds relied upon.

The writ is denied.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    JOHN WOODS v. STATE.
    No. A-7922.
    Opinion Filed June 6, 1931.
    (300 Pac. 322.)
    R. N. Linville, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Beckham county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for 180 days.

The defendant filed a motion to suppress the evidence because the description in the search warrant was insufficient to authorize a search of the premises.

The description in the search warrant was “Lot-, Block 5 of the Robinson Addition to the City of Elk City, Beckham County, State of Oklahoma.” The evidence was that there were several houses in that block, three of which belonged to Felix Woods; that a room in the third house from the corner was occupied by the defendant. The officers testified that they found the place where defendant lived, not 'by the description in the warrant, but because they knew where he lived.

This court has said that the description of the premises must be sufficient to enable the officers, without the aid of any information whatever than that contained in the warrant itself, to locate the premises. Section 7012, C. O. S. 1921; Hughes v. State, 49 Okla. Cr. 236, 293 Pac. 1108; White v. State, 43 Okla. Cr. 275, 277 Pac. 946; Overstreet v. State, 46 Okla. Cr. 268, 283 Pac. 1032; Smithson v. State, 48 Okla. Cr. 204, 290 Pac. 568.

There is no excuse for officers obtaining search warrants upon affidavits with such indefinite description. Before a person makes an affidavit he should ascertain as near as may be the correct description of the premises, and such description should be written in the affidavit and in the warrant.

There being no evidence in the case except that obtained by the unlawful search of defendant’s premises, the cause is reversed.


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    ANDREW McBRAIN v. STATE.
    No. A-7906.
    Opinion Filed June 6, 1931.
    (300 Pac. 321.)
    Drennan & Drennan, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Grant county of the crime of unlawful sale of intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for six months.

The information charged the sale by defendant of half a gallon of whisky to one R. J. Smith. The proof upon the part of the state is that the sale was made to M. E. Smith, who was another and a different person.

Where the information charges the offense to have been committed by one person, and the proof shows that it was committed by another person, there is a fatal variance between the allegation in the information and the proof.

The tests of fatal variances are: Was the defendant misled? Will he be protected against future proceedings? Mathews v. U. S. (C. C. A.) 15 F. (2d) 139.

Whether there was a fatal variance or duplicitous proof may be determined by inquiring whether defendant could plead former jeopardy. Fowler v. State, 20 Okla. Cr. 410, 203 Pac. 900.

In the case at bar the information alleges that the liquor was sold to R. J. Smith. The proof was that the sale was made to M. E. Smith, a son of R. J. .Smith. It is evident that the defendant could not plead a conviction of a sale to R. J. Smith, as each would constitute a separate offense.

Defendant complains of other errors, but from the view we take of the case it is unnecessary to pass upon them.

For the reason stated, the cause is reversed.