text:
    WILLIAM J. DEAN v. STATE.
    No. A-7923.
    Opinion Filed June 6, 1931.
    (300 Pac. 319.)
    John W. Whipple and Charles E. Webster, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of the crime of maintaining a place where intoxicating liquors were being received and kept for the purpose of bartering, selling, giving away, and otherwise furnishing the same to others unlawfully, and his punishment fixed by the jury at a fine of $500 and imprisonment in the state penitentiary for two years.

The evidence of the state was that the defendant entered a plea of guilty in Lincoln county, Okla., to a charge of having in his possession and control a still and worm for the purpose of manufacturing intoxicating liquor in the county of Lincoln and state of Oklahoma, and was by the court adjudged to pay a fine of $250 and serve 90 days in the county jail; that defendant served the time in jail and gave a stay bond for the fine and costs; that he entered a plea of guilty in the superior court of Creek county, Okla., to a charge of selling intoxicating liquor, and served 90 days in the county jail and paid a fine of $200.

The evidence of the state was that the officers searched the premises of defendant in Payne county and at about 125 yards from the house, concealed in some postoak runners, brush, and leaves, and covered up back under the leaves, they found a half gallon of whisky in a fruit jar, also a five-gallon stone jug in a gunny sack, some empty glass jugs, and some bottles; that a well-beaten path led from the defendant’s house to the place where the liquor was concealed; that defendant’s place was a place of public resort, and that the reputation of the place as being a place where intoxicating liquors were kept for sale was bad; that the officers had raided the place on numerous occasions and found empty bottles and jugs and liquor paraphernalia, but had found no other liquor on these particular premises; that defendant’s place had been watched by the officers and parties observed going into the place and coming out drinking out of a bottle; that the bottle was thrown down and was found by the officers to have contained whisky.

Defendant, testifying for himself, denied that he owned the whisky or knew that it was there. He testified that he owned the five acres where he lived and supported himself by working occasionally at odd jobs. On cross-examination, defendant admitted that he had been convicted for violation of the prohibitory liquor laws in Payne county.

Defendant contends that the evidence obtained under the search of his premises was inadmissible for the reason that the warrant described premises other than those owned by the defendant. No motion was made to suppress the evidence, and no objection was made to the introduction of the same at the time the witnesses were examined. Later, when the state sought to introduce the liquor, the defendant objected because of the insufficiency of the description in the search warrant.

The state sought to introduce the affidavit and search warrant in evidence, and the same was objected to by defendant because they were illegal and contrary to the constitutional and statutory rights of the defendant, and the description was incomplete. The state then withdrew the offer, and the affidavit and search warrant were not introduced.

The evidence of the state being that the liquor was found concealed in the brush and weeds, about 125 yards southeast of the house, the court held that no search warrant was necessary.

A search made in canyons, pastures, woodlands, or fields, not in close proximity to any residence, is not unreasonable within the meaning of the Constitution. Merck v. State, 35 Okla. Cr. 160, 249 Pac. 163; Mitchell v. State, 38 Okla. Cr. 167, 259 Pac. 661; Perry v. State, 42 Okla. Cr. 92, 274 Pac. 686.

In the case at bar, the officers found no liquor or paraphernalia in or about the house or curtilage of defendant and no evidence was introduced against him, except that found concealed in the postoaks and brush as described by the witnesses and outside of the curtilage of the defendant.

In the case of Reutlinger v. State, 29 Okla. Cr. 290, 234 Pac. 224, this court sustained the introduction of the evidence obtained in a search made of canyons, pastures, and waste places, remote from human habitation, even though the affidavit and warrant under which the officers operated was void.

No search warrant being necessary under the evidence in the case at bar, the question of the correct description was immaterial, and the evidence was properly admitted.

Defendant next contends that the trial court was guilty of prejudicial misconduct.

At the time for the trial to open on the second morning, it appears from the record:

“By Mr. Whipple: I just talked to the defendant over the phone, and he is -snow hound and can’t get any farther for a while, and he will be here as soon as he can get out of the snow.
“By the Court: Well, we will wait until he gets here, then we will let him stay in jail until the trial is over. We can’t have a man running around over the country when he is being tried for a crime; it is his business to be here, and we will see that he stays here. And it is your instruction, Mr. Sheriff, that when he gets here, to take him into custody and keep him until we are ready to go on. We can’t have such foolishness as this going on.”

No objection was made to this statement of the judge, and no exception saved to the same, and no complaint made in the motion for a new trial, nor is the question raised in the petition in error.

Trial judges should uot make remarks of this kind in the presence of the jury, but, considering the character of the proof offered against the defendant and the conclusiveness of his guilt, he could not have been materially prejudiced by such remarks.

The defendant next contends that the court erred in refusing to put the witness for the stale under the rule.

It appears from the record that all of the witnesses for the state were officers. There is nothing in the record to indicate that one officer was in any wise influenced in his testimony 'by what some other officer testified to.

16 Corpus Juris, 841, lays down the rule : “Either party may request that the witnesses be placed under the rule; but it is discretionary with the court.”

In Barnett v. State, 41 Okla. Cr. 153, 271 Pac. 956, this court said:

“The exclusion of witnesses under the rule is not an absolute right, but rests in the sound discretion of the trial judge.”

See, also, Harrell v. State, 36 Okla. Cr. 225, 253 Pac. 516; Agent v. State, 18 Okla. Cr. 281, 194 Pac. 233.

Defendant next contends that the court erred in permitting the county attorney to indorse the name of an additional witness upon the information.

The record discloses that on the 18th day of January, 1930, the county attorney made application in writing to the court for leave to indorse the name of George Wiles upon the information, alleging that the county attorney had learned since the information was filed that he was a material witness.

The case was called for trial on the 20th day of January, and it further appears from the record that the name of the witness had not actually been indorsed on the information until he was called. When the court’s attention was called to the application for leave to indorse the name, he ordered it indorsed on the information and permitted the Avitness to testify.

It is within the sound discretion of the trial court to permit the indorsement of additional names in felony cases, other than capital. Where no abuse of such discretion appears, the case will not be reversed because the court permitted the state to indorse the names of additional witnesses on the information after the trial had started.

Defendant complains of other errors, but they are all Avithout substantial merit.

It is disclosed by the record that the defendant is an habitual violator of the liquor laws of the state of Oklahoma, and the defendant’s place is a place where intoxicating liquors were kept for sale in violation of law.

For the reasons stated, the cause is affirmed.

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


source: Caselaw Access Project

author: ROWE, Special Judge. EDWARDS, P. J.

license: Public Domain

text:
    SAM INGRAM v. STATE.
    No. A-7547.
    Opinion Filed Jan. 2, 1931.
    Rehearing Denied Jan. 17, 1931.
    Dissenting Opinion, June 10, 1931.
    (3 P. [2d] 737.)

      Leaby, Macdonald & Files and L. H. Justus, Jr., for plaintiff in error.
    Tbe Attorney General, for tbe State.
   ROWE, Special Judge.

Tbe plaintiff in error, Sam Ingram, hereinafter called defendant, was charged by information with the crime of obtaining money under false pretenses, alleged to bave been committed on or about the 20th day of June, 1925, in Osage county. He was charged jointly with W. G. Streetman, who was then deputy county treasurer of Osage county. The defendant was tax ferret of Osage county, having been duly employed by the county commissioners of said county. ' A severance was had, and the defendant took a change of venue to Tulsa county, where he was tried and convicted; the jury, however, being unable to agree on the punishment which was left to the trial court. The court fixed the defendant’s punishment at two' years in the penitentiary, and he was duly sentenced on said verdict and judgment. Motion in arrest of judgment was duly filed and overruled, as well as motion for new trial. To reverse the judgment rendered in pursuance of the verdict, he has duly lodged his appeal in this court.

The undisputed facts are that the defendant had been employed by the board of county commissioners of Osage county as tax ferret, having duly entered into a contract of employment with said board on the 6th day of June, 1923, for a period of two years, and later employed for a period of two additional years; that, under the contract, he was entitled to 15 per cent, of all sums collected from omitted property which he caused to be placed on the tax rolls. The evidence on the part of the state, in substance, is that on the 20th day of June, 1925, an original tax receipt in the sum of $19,635.07 was issued to the Sinclair Oil & Gas Company for the last half payment of certain taxes in Osage county. The original tax receipt showed certain amounts distributed to the state, county, townships, and municipality, and also school districts in certain sums, which would be actual proportionate distributions. While a duplicate of said tax receipts showed such distributions, less 15 per cent., which was shown on tbe purported duplicate tax receipt as fees for tbe tax ferret. There is no conflict in the evidence as to- tbe issuance of tbe tax receipts and duplicates different from each other. Tbe deputy county treasurer, Streetman, testified that he made out tbe original and duplicate and that tbe duplicate was different from tbe original, in that tbe duplicate showed tbe tax ferret fees. The defendant also testified that be bad requested Streetman to make out tbe original account showing tbe tax ferret fees, and gave as his reason for this that Mr. Orr, tax attorney for tbe Sinclair interests, was a friend of bis and that it might be embarrassing to Mr. Orr if it showed that tbe property in question had been omitted from the tax roll and placed there by tbe tax ferret. Mr. Orr further testified that be bad mailed tbe list of property in tbe regular way to tbe proper official. There is no dispute as to tbe duplicate showing tbe tax ferret fees, and this was a part of tbe record in tbe treasurer’s office. It is also- admitted that the defendant as tax ferret received tbe sum of |2,945.25, as fees out of this particular transaction. Tbe defendant testified that he was acting in good faith, that tbe duplicate is exactly like tbe tax roll, and that, when be found tbe Sinclair Company did not have this property listed, be caused tbe same to be placed on tbe tax roll, in tbe usual and customary manner, and that be was following the custom that then prevailed in Osage county and other counties.

Tbe deputy county treasurer, Mr. Streetman, testified that be made, issued, and delivered tbe tax receipts; that he thought there was nothing wrong in tbe way tbe matter was bandied; that be bad every reason to and did believe that tbe property bad been discovered by the tax ferret in tbe usual way. Tbe defendant further testified that be had gone to Mr. Orr’s office to check some information he had gotten relative to certain tank farms, and that he had complete information as to the taxable property in the county, of the Sinclair Company; that, after the tax roll had been made up and certified by the county treasurer, he examined it and found that the Sinclair Company’s property was not on the roll; he did not know the company had mailed its return to the county assessor; and that he put the property on the tax roll as discovered by him in accordance with information he had gotten prior thereto. A deputy state examiner and inspector, Mr. Patrick, testified that at the time of this transaction the business of the tax ferret was handled in Osage county according to the general custom throughout the state.

The testimony further shows that, in some manner not shown in evidence, certain property of the Sinclair Oil & Gas Company had been omitted and was not shown on the tax roll. The evidence is that the return was made by this company and mailed in due course to the assessor. Evidence further tends to show that the property was placed on the tax roll and the defendant followed the custom and same course pursued in such matters for the past several years. It is urged on the one hand that the omission was due to a clerical error of a public official, while the state, at least, advances the theory that the omission was due to a scheme or plan of the tax ferret and public official of Osage county to defraud the county.

The defendant is prosecuted under section 9771, C. O. S. 1921, which is as follows:

“If any county treasurer in this state or his deputy, or any other person shall knowingly and willfully make, issue, and deliver any tax receipt, or duplicate tax receipt, required by this chapter to be issued 'by fraudulently making the tax receipts and its duplicate * * * different from each other with the intent to defraud the state of Okla-boma or any county in said state or any person whomsoever, such treasurer or deputy treasurer or other person shall he deemed guilty of a felony, and on conviction thereof before any court of competent jurisdiction of this state, he shall be sentenced to imprisonment in the penitentiary for a time not less than one year nor more than five years, in the discretion of the court.”

Under the law in this state, the county treasurer has authority: A. To issue tax receipts. B. To employ deputies that have the same authority as the county treasurer has. C. To' employ additional help and other clerks who are not denominated deputies, but are merely a part of his clerical force.

It will be observed that under section 9798, O. O. S. 1921, a tax ferret is employed by the board of county commissioners to assist the officers of the county in discovering property not assessed for taxation. He is in no sense a clerk of the county treasurer, nor could he be called a public official, in the sense that a treasurer, for instance, is a public official.

It is contended by defendant, under the first two specifications of error, to wit, that the court erred in overruling defendant’s demurrer and that the court erred in refusing to arrest the judgment, that the tax ferret could not legally be charged with the commission of this offense, because this statute pertains only to the county treasurer, his deputies, or additional help employed by him.

It is urged that no other person could have legal access to the county records and receipt book or authority to issue such receipts, and therefore, if a person not falling under the above class were to issue such receipt, he would be guilty of forgery, and that the defendant, as tax ferret, does not fall under this class, and could not, therefore, be guilty of the crime charged in the information.

Defendant further contends that the doctrine of ejus-dem generis should apply in the construction of this section ; that is to say, that, where there is an enumeration of specific things followed by some general words or phrases, such general words or phrases are held to refer to things of the same kind and class as those specifically enumerated and mentioned. It seems apparent that this statute was intended to reach the deputy or clerks, who were actually connected with the county treasurer’s office, and employees in the county treasurer’s office. The defendant was a tax ferret, as shown by the evidence and as alleged in the information. He certainly had no connection with the office of county treasurer. The rule as announced by the Supreme Court of Colorado in the case of Gibson v. People, 44 Colo. 600, 99 Pac. 333, 335, seems to be in line with modern thought and supported by the great weight of authority. In that case the court held: “The familiar general rule, which is enforced in this jurisdiction, is that, where words of general import follow specific designations, the application of the general language is controlled by the specific. This is but a rule of construction, and is not allowed to defeat the plain legislative will; yet, where the legislative intent is doubtful, resort to rules of construction is proper. Applying this rule to this statute, and bearing in mind that its prime purpose is to provide for delinquent children, as nearly as may be, the care and training which their parents should give but which they do not afford, and to that end substituting governmental authority for parental control, it would seem entirely clear that by ‘or any other person’ the General Assembly meant other like persons; that is, such other persons as occupy towards the delinquent a relation similar to that of parent, legal guardian, or custodian, and upon whom rests the obligation of training either arising from the natural ties or created by law. The persons specified by no means exhaust the whole genus, but it is apparent that there are other persons who may occupy towards the delinquent a relation similar to that sustained by those enumerated. For example, older brothers and sisters, other blood relatives, teachers, nurses, and companions, none of whom are enumerated, but are of the same genus.”

In the case of State v. Jett, 69 Kan. 788, 77 Pac. 546, 547, the court said:

“It is a familiar rule of interpretation that, where particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind with those which precede. The acts charged against the defendant do not fall within the statute, under the interpretation there given, and we do not think it states an offense.”

The Supreme Court of Indiana, in the case of Wiggins v. State, 172 Ind. 78, 87 N. E. 718, in construing a statute in that state, announced the rule as follows:

“Where words of specific and limited signification in a statute are followed by general words, the general words will be construed as embracing only such persons, places, and things as are of like kind or class to those designated by the specific words, unless a contrary intention is clearly shown.
“Under Burns’ Ann. St. 1908, § 2356, making it unlawful for a male person to entice a female to enter tony house of prostitution, assignation, saloon or wine room where intoxicating liquors are sold, or any other place for vicious or immoral purposes,’ an affidavit is sufficient which charges accused with enticing a female £to enter into a certain house situated at No. 202, East Broadway street’ in a city, county, and state named, Tor the purpose of having sexual intercourse with her,’ as tony other place’ means place of like character with those previously enumerated.”

In construing this section, it is apparent that the Legislature intended to coyer a case where a person was in the office, such as a clerk, and who was not a deputy, in the event such persons made, issued, and delivered any tax receipt or duplicate, by making the original different from the duplicate, with intent to defraud the county. This being true, it follows that the defendant does not come within the purview of this section. This seems all the more apparent when the evidence is considered in connection with the law. It appears from the evidence that the defendant Streetman, deputy county treasurer, made, issued, and delivered the tax receipt, and that the defendant Ingram at the most only advised and suggested to Streetman that he make the receipt as he did, and, of course, unless Streetman was guilty of the offense, defendant Ingram could not possibly be. Johnson et al. v. State, 24 Okla. Cr. 326, 218 Pac. 179. It will be remembered that in this information the defendant was charged jointly with .Streetman with the intention on the part of both defendants to defraud Osage county.

Following this rule of statutory construction, when taken in connection with the plain intention of the Legislature in various statutes quoted and referred to in this opinion, relating to the county treasurer, his deputies and clerks, it would seem to be the plain intention of the Legislature to make it possible to- convict any person in the office of the county treasurer who made, issued, and delivered any tax receipt or duplicate by making the original different from the duplicate with intent to defraud the county. In fact, if the words, “Or any other persons,” were not included in the statute, if such act were committed by a clerk in the office who was not a deputy, it would not apply.

It is further contended by the defendant that the evidence is insufficient to sustain the verdict of guilty. The information in this case charged that the defendants Ingram. and Streetman “did then and there acting together, knowingly, willingly, wrongfully, unlawfully and felo-niously make said tax receipt and its duplicate, or paper purporting to be its duplicate, different from each other with the unlawful and felonious intent, then and there of them, the said defendants, to defraud the county of Osage, state of Oklahoma.”

It will be noted that a material allegation in the information is that the defendants performed the act alleged in the information with the intent to defraud Osage county. The evidence shows that, at the time the Sinclair Oil & Gas Company mailed its check to the county treasurer of Osage county, its property had been listed on the official tax roll of the county by the tax ferret, the defendant Ingram, and from the official records, as they then existed, the defendant was entitled to his fees when the money was paid, without regard as to how the original or duplicate receipt was issued. If the defendant Streetman had made out the receipt according to the records of Osage county as they existed, the defendant Ingram would have been entitled to his fees notwithstanding the manner and way the receipts were made, as shown by the evidence. It is plain to be seen from the evidence, that the mere act of making the original receipt different from the duplicate did not and could not have defrauded Osage county. The evidence further shows that the act of making the original receipt different from the duplicate did not and would not have defrauded the Sinclair Oil & Gas Company, but, of course, this is not charged in the information.

It was the theory of the state that the defendant Ingram pretended to discover the property of the Sinclair Oil & Gas Company, when as a matter of fact be did not do so. There is some suspicion that this could have been true, although there is no direct evidence in the record to support this theory. Granting for the moment that this theory is true, would that be sufficient to sustain a conviction of the defendant on the crime charged in the information? It appears in the evidence that the assessment was put on the assessor’s roll, showing that the assessor’s list mailed by the Sinclair Oil & Gas Company was evidently received by the assessor and put on the roll by him, but the same does not appear on the official tax roll in the county clerk’s office. There is no evidence in the record that the defendant Ingram had anything to do with the failure to transfer the entry from the assessor’s roll to the official tax roll. That was not the duty of the defendant, and there is no direct evidence to show that he had any connection with it. There is some evidence that the defendant at times occupied the assessor’s office as well as the county treasurer’s office, but is this sufficient to sustain a conviction or connect the defendant Ingram with the failure to transfer the entry as it should have been done or to connect the defendant Ingram with the offense charged in the information? The question naturally arises, Did the act of the defendant Ingram and the defendant Streetman in issuing different receipts defraud Osage county, and is it necessary for the state to support the allegations in the information that the defendants acted together, issuing different tax receipts with intent to defraud Osage county? It is well settled that the state cannot set forth one state of facts in an information and sustain a conviction on another state of facts; that is to say, facts necessary to constitute a public offense must be charged in the information and supported by sufficient evidence, whether direct or circumstantial. Cheeves v. State, 5 Okla. Cr. 361, 114 Pac. 1125; Furrh v. State, 27 Okla. Cr. 283, 226 Pac. 1065; State v. Mitten, 36 Mont. 376, 92 Pac. 969.

In the light of the evidence and placing the most favorable construction on the same, the most that can be said is that Ingram defrauded Osage county by pretending to discover the property when in fact he did not discover it; however, there is no evidence to show that the issuing of the receipts different, as charged in the information, would have made any difference. It is also well settled that, where specific intent is an essential element of the public offense, it is necessary to prove the same whether by direct or circumstantial evidence. Patterson v. State, 25 Ariz. 276, 215 Pac. 1096, 35 A. L. R. 366.

In the case of Patterson v. State, supra, the rule seems to be clearly stated, and is as follows, to wit:

“Where an information charged defendant with obtaining money from A. by making, uttering, and delivering to her a draft on a non-existent'drawee, evidence that he procured A. to indorse the draft and that he then obtained the money from a bank in which she had no account and which was not then charged to A., though she later repaid the bank, was a fatal variance.”

In the case of State v. Taylor, 136 Mo. 66, 37 S. W. 907, 909, the court said:

“Nothing is better settled than that, having alleged a burglary to* have been done with an intent to perpetrate a certain felony, evidence of another independent felony cannot be received. East says: ‘But, whatever be the felony really intended, the same must be laid in the indictment and proved agreeably to the fact. * * * And so, if it be alleged that the entry was with intent to commit one sort of felony, and the fact appear to be that it was with intent to commit another, that is not sufficient.’ ”

In the case of Simpson v. State, 81 Fla. 292, 87 So. 920, the court said:

“Where a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with that specific intent.
“Where a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proven as the act itself, and must be found by the jury as a matter of fact before a conviction can be had.”

In the case of Roberts v. People, 19 Mich. 401, the court said:

“We think the general rule is well settled, to which there are few, if any, exceptions, that when a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury, as matter of fact, before a conviction can be had.”

If, therefore, the proof in this case established the fact that the defendant Ingram pretended to discover this property, but did not in fact discover the same, and collected tax ferret fees thereon, although he was not justly entitled to collect the same, under the rule thus announced, we are forced to the opinion that the evidence is not sufficient to support a conviction under the information in this case. The mere doing of an act where specific intent is required does not raise a presumption that the act was done with that specific intent. It is argued on behalf of the defendant in error that, in view of the statutes in this state in which the distinction between accessories and principal and principals in the first and second degree in cases of felony is abrogated, and all persons concerned in the commission of a felony whether they commit the act or aid and abet in its commission are principals and must be prosecuted as such, and further, that an accessory may be prosecuted, tried, and punished, though the principal be neither prosecuted nor tried, or though he may be tried and acquitted, would apply in this case and that the conviction should be sustained on this theory of the law. We differ with this view for the reason that it seems well settled that the statutes pertaining to accessories and principals do not affect the rule that a person who' is present aiding, abetting, and advising cannot be convicted of the offense unless the one who actually committed it was guilty, unless, of course, the proof shows that he acted through an innocent agent, and there is no proof as to this in the instant case. The allegations as stated in the information are that the offense with intent on the part of Streetman and Ingram to defraud Osage county was committed jointly; however, there is no dispute in the evidence that Streetman in fact committed the act and Ingram only aided, advised, and counseled the same. While under our statute it is not necessary that iStreetman be convicted or even tried in order to convict Ingram, yet, before a verdict of conviction against Ingram would be permitted to stand, in view of the fact that he was tried separately and in view of the allegations in the information, the evidence must have been sufficient to have warranted a conviction against Streetman, his codefendant. Under the evidence, it is well-nigh impossible to determine or see whether the jury convicted the defendant of the crime charged or whether they convicted him on the theory that he pretended to discover the property of Sinclair & Co., when in fact such was not the case. We do not think the evidence is sufficient to have warranted a conviction of Streetman under the allegations contained in the information, and it is therefore totally insufficient to sustain the conviction of the defendant of the crime charged in this case.

It is further urged that the trial court erred in giving instructions numbered 9, 13 and 19 and especially in-struetions 13 and 19. If it were not necessary to reverse this case on other grounds heretofore pointed out herein, we are of the opinion that instructions 13 and 19 were erroneous and prejudicial to the rights of the defendant when considered in connection with the allegations contained in the information and the evidence in this case.

While the evidence shows that the defendant would still have been entitled to his fees, in view of the actual showing on the record, that is to say, the act of making the original receipt different from the duplicate did not and would not have defrauded Osage county, even though the state’s theory was correct, and while the defendant does not come within the purview of the statute under which he was prosecuted, we are not passing on the guilt or innocence of this defendant as to any other charge.

For the reasons herein stated, this cause is reversed and remanded.

DAVENPORT, J., concurs.

EDWARDS, P. J.

(dissenting). I am not able to agree with the majority opinion. Defendant is charged with one Streetman, a deputy county treasurer; it being alleged they acted together in issuing a tax receipt different from its duplicate, in violation of section 9771, Comp. Stat. 1921. A severance was had, and defendant was tried alone. Defendant was employed as a tax ferret of Osage county, by which contract he was to have 15 per cent, of the'tax money paid on property which had been omitted from the tax roll and which had been discovered and placed thereon by him. He had access to and used the office of the county assessor and the county treasurer. The majority opinion correctly states that there is no dispute in the evidence that .Streetman, the code-fendant, committed the act, and Ingram, the defendant here, aided, advised, and counseled the same. The majority opinion holds that, while it was not necessary that Streetman be convicted or even tried in order to convict Ingram, but says:

“Yet, before a verdict of conviction against Ingram would be permitted to stand, in view of the fact that he was tried separately, and in view of the allegations in the information, the evidence must have been sufficient to have warranted a conviction against Streetman, his codefendant.”

This statement in the opinion is contrary to several opinions of this court and to sections 2574 and 2575, Comp. Stat. 1921, which are as follows:

“2574. The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abrogated, and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no additional facts need be alleged in any indictment or information against such an accessory than are required in an indictment or information against his principal.
“2575. An accessory to> the commission of a felony may be prosecuted, tried and punished, though the principal felon be neither prosecuted nor tried, and though the principal may have been acquitted.”

The majority opinion holds that there is not sufficient evidence to prove that the act of issuing the duplicate tax receipt different from the original was with intent to defraud Osage county: It is a general principal that every person is presumed to have intended to do what he has done and intended the immediate and natural consequences of his act. It is also a general principle that intent, being a state of mind, ordinarily cannot be proven by direct and positive testimony, bnt mnst be proven by circumstances.

It appears to me that there is abundant proof of the intent of defendant to defraud Osage county. There is evidence to prove a general conspiracy to defraud Osage county and its municipalities by the collection by defendant of tax ferret fees on taxes paid on property claimed to have been discovered by the tax ferret as omitted property when as a matter of fact the tax ferret knew that the same was not omitted property, but was on property which had been listed for taxation. Defendant made his contract as tax ferret with the board of commissioners of Osage county June 6, 1923. On the same day defendant entered into a contract with one Buzan, a deputy county assessor, that such deputy assessor would devote his spare time to procuring information and data for the furtherance of defendant’s contract as tax ferret, and that, in consideration of Buzan’s services, defendant was to pay him one-half of the net cash proceeds derived as such tax ferret, settlement to be made every 60 days. In addition to being a violation of law by paying additional compensation to an officer to perform duties, it thus became profitable to Buzan, the deputy assessor, as well as defendant, to prevent the assessor’s office from being zealous in seeing that all property was placed on the tax roll. By omitting property, defendant and Buzan might “discover” the same and put it on the tax roll as omitted property, and thus secure the 15 per cent, of the taxes. In this case the Sinclair Oil & Gas Company made a return of their property to the county assessor’s office. No notice was given to the taxpayer as required by law before the alleged omitted property was placed on the roll, and at the time the tax was paid defendant had his code-fendant, Streetman, mate the tax receipt that was sent to the taxpayer to show a proper distribution of the tax as if there were no fees paid the “tax ferret,” while the duplicate receipt retained in the county treasurer’s office showed the distribution of the tax less the tax ferret fee, which in this instance amounted to more than $2,900. It is plain that the purpose in failing to notify the taxpayer of his property as omitted was to prevent the taxpayer disclosing to the county treasurer that he had made a return of the property for taxation, as this would defeat the claim of defendant as tax ferret of his fees. The same purpose would cause defendant as tax ferret and his co-defendant, Streetman, to have the tax receipt sent to a taxpayer show a proper distribution of the tax as if no ferret’s fees had been collected; for, if the receipt showed a collection of tax ferret fees, the taxpayer might investigate or inform the county treasurer and thereby defeat the collection of the tax. ferret fees. As further proof of intent as a general scheme, the record dicloses there were several hundred instances of this kind in which property returned by the taxpayer had been omitted from the tax roll. What stronger proof of intent could be made.

Attached to the application for a change of venue, a part of the record, is a finding of facts and conclusions of law by the district judge of Osage county in a civil suit involving the same matter. This is very nearly a summary of the record here. The court, among other things, finds as follows:

* * The defendant Ingram procured a tax ferret contract with the county commissioners on the 6th day of June, 1928, which was finally executed about the hour of three o’clock on said date. Within three hours from that time, the defendant Ingram and Buzan entered into an illegal written contract wherein the defendant Buzan agreed to devote spare time not demanded by his regular employment, to procure information and data necessary to the fulfillment of Mr. Ingram’s contract, * * * the consideration therefor being that Buzan was to receive one-half of the net proceeds in cash which the said Ingram was to derive for his services as tax ferret of Osage county, and further providing that settlements should be made every 60 days after the first settlement. This contract plain and unambiguous was prepared by and acknowledged before Mr. Paul Comstock, a brother-in-law of Mr. Buzan, under such circumstances as to show to my mind, guilty knowledge on the part of the defendants Ingram and Buzan that they were entering into an illegal contract. * * *
“After this contract was made and entered into, more than a thousand names were omitted from the succeeding tax rolls that had been on the previous year’s tax roll. We find great numbers of persons who rendered their property for taxation in the ordinary and usual manner totaling some three millions of dollars, whose names were left off the tax roll even after they had rendered their assessments to the assessor and later placed on the tax roll by Sam Ingram in the exact amount of the return previously made to the assessor. We find one item, to wit, the Sinclair Crude Oil Purchasing Company, who duly rendered their assessments on two different sheets, one assessment sheet showing approximately $700,000 in property and the other assessment sheet showing approximately $1,637,-000 in property. These two- returns were supposed to have been mailed by the Sinclair Crude Oil Purchasing Company in the same envelope to the county assessor. The one for $700,000 appears regularly upon the tax rolls. The one for $1,637,000 appears to have been placed upon the tax rolls by the tax ferret. When the Sinclair Company undertook to pay their taxes, to wit, on January 27, 1926, they sent to the county treasurer a check in the total sum of $32,336.17 for the first half. The original receipt returned to the Sinclair Company does not show any tax ferret fees. The duplicates which were filed in the treasurer’s office and in the county clerk’s office by the treasurer, show an erasure and a change entirely from the original tax receipts, and show $3,158.50 to the tax ferret. Again on June 12, 1926, when the last half of the said taxes were paid by the Sinclair Company, the same procedure was gone through with. Mr. Streetman, the clerk in the treasurer’s office who1 wrote those two receipts, testifies that he knowingly made the original tax receipt different from the duplicates, and at the instance and request of Mr. Ingram, who on account of his friendship for Mr. Orr, the tax attorney for the Sinclair Company, did not want the tax ferret item to show on the original receipt, thinking that Mr. Orr might be subjected to criticism by his superior officers. I do. not believe that this was the real reason for making the original receipt and the duplicate receipts differently. I think if the original receipts had been made to show approximately $6,200 paid to the tax ferret, that the .Sinclair Company would have complained immediately, and the tax ferret realized that he would not have been entitled to this sum; and that the original receipts were made different from the duplicates in order to deceive the taxpayer, and to prevent the taxpayer from knowing that any money was paid to the tax ferret. * *

The entire record leads to the irresistible conclusion that defendant, with the connivance of some one in the office of the county assessor, and probably some one in the office of the county treasurer, concocted a scheme to defraud Osage county by abstracting or concealing property returns made by taxpayers and then pretending to discover the omitted property and to collect fees for having it placed on the tax roll, and that by such scheme they did succeed in an outrageous defrauding of Osage county; that the issuing of the tax receipt different from its duplicate was with criminal intent and in furtherance of the general scheme to defraud. Defendant ought not to be allowed to defeat justice by the flimsy excuse that a criminal intent is not proven.


author: DAVENPORT, P. J.

text:
    OSCAR LAWRENCE v. STATE.
    No. A-7947.
    Opinion Filed June 12, 1931.
    (300 Pac. 435.)
    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 a still and worm, and was sentenced to pay a fine of $50, and be imprisoned in the county jail for 30 days. Prom the judgment, the defendant has appealed.

Considerable record is made in this case on the question of the validity of a search warrant. From an exami-' nation of the testimony contained in the record, the testimony of the state shows that the officers had searched certain places, and when they came to defendant’s house and talked with him with reference to the information they had that a still was somewhere on the place, the defendant told them where it was and went with them to where the still was located, which was something like a half mile or more from the defendant’s house. Some of the testimony of the state tends to show that the defendant told the officers that he and a man by the' name of iSutton were running the still on a fifty-fifty basis. This was denied by tbe defendant. The defendant denied be bad anything to do with the still, and claims he discovered the location of the still while he was out squirrel hunting.

Several errors are assigned by the defendant and urged for a reversal of this case. The seventh assignment is that the verdict of the jury and judgment and sentence of the court is not sustained by the evidence. The testimony of the state is in conflict with the defendant’s testimony. That question was settled by the jury adverse to the defendant. Where there is any competent evidence upon which the jury can reasonably find a verdict of guilty, this court will not disturb the same. Tennison v. State, 32 Okla. Cr. 257, 240 Pac. 323; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661; and Prank Harvey v. State, 51 Okla. Cr. 164, 300 Pac. 434.

The other errors assigned do not possess sufficient merit to warrant a reversal. The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: DAVENPOIJT, P. J.

text:
    FRANK HARVEY v. STATE.
    No. A-7931.
    Opinion Filed June 12, 1931.
    (300 Pac. 434.)

      Brownlee & Blaine, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPOIJT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquors with intent to sell, barter, give away, and otherwise unlawfully furnish the same, and was sentenced to pay a fine of $50, and be imprisoned in the county jail for 30 days. Prom the judgment and sentence, the defendant has appealed.

The defendant demurred to the information on the grounds that said information did not state facts sufficient to constitute a criminal offense against the laws of this state; that said information is duplicitous; which demurrer was by the court overruled, and defendant excepted. The information stated facts sufficient to advise the defendant of the charge against him, and was good as against a general demurrer.

Motion to suppress the evidence was filed on the ground that the affidavit did not state facts sufficient to warrant the issuing of a search warrant. An examination of the record discloses that the affidavit on which the search warrant was based is a sufficient affidavit, and complies with the requirements of the law. The motion to suppress was properly overruled.

The testimony on the part of the state shows that the officers found three pints of whisky in the home of the defendant, and some bottles, the contents of which they stated was beer, but as there was no analysis of this beer, the state relied for a conviction on the three pints of whisky they found in the home of the defendant.

The defendant offered no evidence. At the conclusion of the state’s testimony the defendant demurred to the testimony and moved the court to peremptorily instruct the jury to return a verdict of not guilty against the defendant, for the reason that the evidence of the state wholly fails to substantiate the allegations in the information; which demurrer and motion was overruled, and the defendant excepted.

The defendant discusses his first, sixth, and seventh assignments together, and urges that the verdict is contrary to the evidence and is not sustained by any competent evidence; that the court erred in not sustaining the demurrer of the defendant at the conclusion of the state’s testimony; that the court erred in holding that the evidence of the state was sufficient to show the commission of a public offense. It is urged by the defendant that the testimony does not show that the defendant was in possession of the whisky found by the officers. The testimony of the state shows that when the search was made the mother of the defendant was at the house where the whisky was found, and when the defendant came home he told the officers the house searched was where he lived. No testimony was introduced by the defendant to show that the whisky found by the officers was not found in his home.

The defendant has filed an able brief and discussed at length the questions raised, and the reasons why this judgment should not be affirmed, but the substance of the argument of the defendant is that the testimony is insufficient to show the residence searched was the residence of the defendant, and was insufficient to sustain the judgment. This court has repeatedly held that where there was any evidence on which the jury could reasonably predicate its verdict, though the evidence is contradictory, this court will not disturb the verdict. Tennison v. State, 32 Okla. Cr. 257, 240 Pac. 323; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661.

After a careful study of the record, we find there was no fundamental or prejudicial error committed in the trial of the case, and that the evidence is sufficient to1 sustain the judgment. The case is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    FRANK DUNKIN v. STATE.
    No. A-7924.
    Opinion Filed June 12, 1931.
    (300 Pac. 433.)
    See, also, 45 Okla. Or. 203, 282 Pac. 692.
    John W. Whipple, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the larceny of domestic fowls, and sentenced to serve a term of 18 months in the state penitentiary, from which judgment and sentence the defendant appeals. When the case was called for trial, the defendant filed a motion to quash and set aside and hold for naught the information filed in this case, for the reason that tbe testimony taken in the preliminary examination was not sufficient to justify or warrant the filing of said information; which motion to quash and set aside was overruled, and defendant duly excepted. The defendant also filed a demurrer to the information ; which demurrer was overruled, and exceptions saved.

To sustain the allegations in the information, the state offered evidence which tended to show that the defendant and a lady, who gave her name as Mable Brit-tain, appeared at a produce house on May 17, 1929, at about 7:30 in the morning, driving a Pontiac coupe, and sold 138 pounds of poultry, for which the witness Goodman gave the lady a check for $34.50; in about 30 minutes the witness Goodman was called to come to the courthouse, and that some other parties were there; that the defendant and the woman who gave her name as Mable Brittain carried the chickens from the car to the poultry house; the defendant stated he was not concerned in the sale of the chickens, but “he asked me what I was paying for the chickens.”

Other witnesses were called who testified to seeing the woman who was with the defendant at the poultry house trying to cash the check at different stores. The defendant was arrested near the courthouse in the city of Chandler, with the woman whose name was not Mable Brittain, but her real name was Bowers, and she had been keeping house for the defendant.

The defendant denies he had anything to do with the chickens, and testifies he went to the city of Chandler with his brother on the morning he was arrested, and called his brother and one or two other witnesses to prove that he did drive to Chandler with his brother. This is, in substance, the testimony.

Tbe defendant in Ms argument presents assignments numbered five, six, and seven together, and in his argument alleges that the burden was upon the state of Oklahoma to' prove beyond a reasonable doubt each allegation charged in the information; that the verdict of the jury is contrary to both the law and the evidence; and the defendant insists that there is no testimony tending to show that Dunkin was seen stealing the chickens, or about the place at the time the chickens were stolen.

The defendant further alleges that it was a very thin web of circumstantial evidence that attempts to connect the defendant with the commission of the alleged offense. The force of the defendant’s argument is directed to the question that the record fails to disclose any testimony showing that the defendant was seen at the home of the witness I. L. Hall, whose chickens were alleged to have stolen, or that he sold any chickens to the witness Goodman. This contention of the defendant is not tenable, for the reason that the defendant might be guilty of the taking of the domestic fowls charged in the information, even though he was not seen at the home of the prosecuting witness or had not sold chickens to Goodman. It is not disputed that the woman who gave her name as Mable Brittain was a Mrs. Bowers, and that she had been keeping house for the defendant. If the jury believed the testimony of the state, it was warranted in finding the defendant guilty; on the other hand, if they believed the testimony of the defendant, its verdict should have been a verdict of acquittal. This court has repeatedly held that where there was any evidence on which the jury could reasonably predicate its verdict, though the evidence was contradictory, this court would not disturb the same. Tennison v. State, 32 Okla. Cr. 257, 240 Pac. 323; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661, and Frank Harvey v. State, 51 Okla. Cr. 164, 300 Pac. 434.

No authorities are cited by the defendant in support of his contentions. The defendant was accorded a fair and impartial trial. The evidence is sufficient to sustain the judgment. The case is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    EARL MOONEY v. STATE.
    No. A-7827.
    Opinion Filed June 12, 1931.
    (300 Pac. 639.)
    Chas. R. Alexander and C. H. Wyand, 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 district court of Woodward county of the crime of assault with intent to kill, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of four years.

Tbe evidence of the state was that James H. Bonghan was a police officer in the city of Woodward; that at abont four o’clock on the morning of September' 9, 1928, Bonghan observed the defendant on the street attempting to break the lid off a trash box on the street installed by the city of Woodward; that the defendant went on down the street and Bonghan was joined by another officer and the two waited and watched for defendant; that defendant passed the officers and went into a cafe, and, as he passed, the officers noticed what appeared to be a pistol in his shirt front; that defendant went into the cafe and made some advances towards customers in the cafe; that Boughan followed the defendant into- the cafe and told him to wait, he wanted to see him; that defendant fled out through the back door of the cafe followed by Boughan, and when Boughan reached the screen door at the back of the restaurant the defendant was standing, outside of the door with a pistol in his hand, and said “I will kill you”; that Boughan said to the defendant, “Go on, kid, and put up your gun; you don’t want to kill anybody”; that thereupon defendant fired five shots at Boughan, one shot going in at the shoulder and coming out at the back, another striking a book in Boughan’s pocket and lodging back of a rib, and another striking Boughan’s scabbard; fortunately none of the wounds proving fatal.

Defendant, testifying for himself, admitted the shooting, but claimed he was afraid the officers intended to shoot him and shot in his own self-defense; that he had been driving a car and when it ran out of gasoline he looked under the cushions and found the pistol he did the shooting with; that he decided to hide this pistol and was trying to hide it in the trash can when the officers saw him; that he put the pistol in his shirt front in order to hide it from the officers, and that he fled from the officers because he knew it was unlawful to carry a pistol, and be was afraid to be caugbt with it on him.

Tbe evidence is sufficient to support tbe verdict of tbe jury, and tbe cause must be affirmed unless tbe errors complained of by defendant require a reversal.

Defendant contends, first, that it was reversible error for tbe court to permit Honorable L. A. Foster, wbo defendant claims was county judge, to assist in tbe prosecution.

Counsel filing tbe brief did not assist in tbe trial of tbe case. Tbe record discloses that when tbe case was called for trial, tbe state appeared by S. M. .Smith, county attorney, and L. A. Foster, and tbe defendant appeared in person and by bis attorneys, Chas. B. Alexander and C. H. Wyand. At this time no objection was made to tbe appearance of Judge Foster and no question raised about bis right to appear. Tbe prosecution of tbe case appears from tbe record to have been conducted by tbe county attorney, Mr. Smith, and to have been exclusively in bis charge, be examining most of the witnesses and otherwise conducting tbe prosecution.

Section 4093, C. O. S. 1921, provides:

“No person shall practice as an attorney and counselor at law in any court of this state wbo is not a citizen of tbe United States, or wbo holds a commission as judge of any court of record, or wbo is a sheriff, coroner, or deputy sheriff; nor shall tbe Clerk of tbe Supreme Court, or tbe clerk of tbe district court, or probate court, or tbe deputy of either, practice in tbe particular court of which be is clerk or deputy clerk; but nothing herein contained shall prevent any judge of any of tbe courts of this state from finishing any business by him undertaken in tbe district, circuit or Supreme Court of tbe United States, prior to bis election or appointment as judge; and an alien wbo has declared his intention to become a citizen of the United States may practice as if he were a citizen.”

Under this section, no judge of a court of record may engage in the practice of law. There are two* reasons for this inhibition. First, the state demands that the judge of a court of record shall devote his whole time to the discharge of his duties.

Section 11, art. 2, of the Constitution provides:

“Every person elected or appointed to any office or employment of trust or profit under the laws of the state, or under any ordinance of any municipality thereof, shall give personal attention to the duties of the office to which he is elected or appointed. Drunkenness and the excessive use of intoxicating liquors while in office shall constitute sufficient cause for impeachment or removal therefrom.”

Our attention has been called to section 2, chap. 354, Sess. Laws 1929, which provides:

“That the present county judge of Woodward county, Oklahoma, may engage in the private practice of law in cases not brought or had in the county court of said county and when such engagement will not interfere with’ the discharge of his official duties as county judge of said Woodward county.”

This act was approved June 10, 1929. The trial was had on the 17th day of October, 1929. We do not predicate the opinion, however, upon this statute.

The second reason is that the defendant is entitled to a fair and impartial trial. Where the judge of a court of record appears in the prosecution of a case, he brings to such action not only his ability as a lawyer, but his standing and influence in the community as a judge.

This court has held in a number of cases that a judge of a district court is disqualified to practice law, and that it is reversible error for the trial court, over the objection of the defendant, to permit such judge to- appear and assist in the prosecution of a case. Lilly v. State, 7 Okla. Cr. 284, 123 Pac. 575; Roddie v. State, 19 Okla. Cr. 63, 198 Pac. 342; Knight v. State, 49 Okla. Cr. 123, 295 Pac. 409.

The state contends that defendant waived the disqualification of the county judge to assist in the prosecution of the case by failing to make timely objection.

In Ex parte Hudson, 3 Okla. Cr. 393, 106 Pac. 540, this court said:

“A party may waive any provision either of a Constitution, treaty, or statute, intended for his benefit.”

In State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091, this court said:

“A defendant in a criminal case may waive any right not inalienable, given him by the statute or by the Constitution, either by express agreement or by conduct, or by such failure to insist upon it in seasonable time as will operate as an estopped to his afterwards setting it up against the state.”

In Washington Fire Insurance Co. v. Hogan, 139 Ark. 130, 213 S. W. 7, 5 A. L. R. 1585, that court said:

“A disqualification of a judge because he has been of counsel in the case is waived by the adverse party announcing ready for trial, and allowing the case to proceed to judgment without objection, when present in court with knowledge that the judge has been of counsel in the case.”

In Galloway v. State, 88 Neb. 447, 129 N. W. 987, that court said:

“Where it appears that the fact that additional counsel was to assist the county attorney was known to counsel for the accused from and before the time of the beginning of the trial, and before any jurors were impaneled, and no prejudice is shown to have occurred to the rights of the accused, an objection to the appearance of such additional counsel was properly overruled.”

In Am. & Eng. Enc. of Law (2d Ed.) vol. 3, at page 300, the rule is stated.

“An objection to attorney’s appearance must be made early in the case, at the first reasonable opportunity; otherwise it will be presumed to have been waived.” Webber v. Barry, 66 Mich. 127, 33 N. W. 289, 11 Am. St. Rep. 466; Cox v. Barnes, 45 Neb. 172, 63 N. W. 394.”

This right of the state to have the judge of a court of record give his whole time to the duties of his office and refrain from the practice of law, and this right of a defendant to be protected against the undue influence of a judge of a court of record and to prevent his appearance in the prosecution of a case against defendant may be waived, and is waived, where neither the state nor the defendant make any objection to nor challenge the right of such judge to assist in the prosecution or defense of a case.

When a judge of any court of record appears to' prosecute or assist in the prosecution of any case pending in court, it is the duty of the trial judge to refuse to permit such judge to appear and practice in such court.

It was error for the county judge to assist in the prosecution, but it is not every error that requires a reversal of the case. When an error has been committed upon the trial of a case, it is the duty of the court upon an inspection of the entire record to determine whether or not defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal. Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438; Crowell v. State, 42 Okla. Cr. 392, 276 Pac. 518.

Only prejudicial errors raised by exceptions reserved require a new trial, and it is only when we are satisfied that the verdict was contrary to law, or to tlie evidence, or that injustice has been done, that this court is permitted to reverse a conviction, whether or not an exception has been taken in the trial court. Bonner v. State, 23 Okla. Cr. 44, 212 Pac. 440.

Defendant next contends that the court erred in refusing to1 give certain requested instructions.

An examination of the record discloses that the instructions of the court given on its own motion state the law as applicable to the facts in the case, and were as fair to the defendant as the evidence warranted. The instructions requested by defendant are, in substance, included in the general instructions given by the court upon its own motion. It was not error, therefore, for the trial court to refuse to give the requested instructions. Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166; Hamilton v. State, 38 Okla. Cr. 62, 259 Pac. 168.

Defendant next contends that the court erred in refusing to grant a new trial on the ground of newly discovered evidence.

The showing made by defendant upon said motion was wholly insufficient for the reason that it failed to disclose any diligence upon the part of the defendant in procuring the presence of this witness or in obtaining his testimony at the former trial.

Motions for new trial upon the ground of newly discovered evidence are addressed to the trial court’s sound discretion, which will not he disturbed except for manifest abuse thereof. Mann v. State, 49 Okla. Cr. 210, 292 Pac. 883; Caldwell v. State, 50 Okla. Cr. 13, 295 Pac. 231; Carson v. State, 50 Okla. Cr. 224, 297 Pac. 311.

A careful examination of the record discloses no reversible error. The cause is therefore affirmed.

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


author: EDWARDS, J.

text:
    J. L. LUCAS v. STATE.
    No. A-8083.
    Opinion Filed June 12, 1931.
    (300 Pac. 432.)
    J. G. Ralls, for plaintiff 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 Atoka county of selling intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The case was tried in December, 1930, and the appeal was filed in this court in February, 1931. 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.

We have examined the record and find the evidence amply sufficient to sustain the verdict of the jury. No fundamental or jurisdictional error is apparent.

The case is affirmed.

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


text:
    J. L. LUCAS v. STATE.
    No. A-8084.
    Opinion Filed June 12, 1931.
    (300 Pac. 432.)
    J. G. Ralls, for plaintiff 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 Atoka county of having illegal possession of intoxicating liquor and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The case was tried in December, 1930, and the appeal was filed in this court in February, 1931. 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.

We have examined the record and find the evidence sufficient from which the jury could reasonably find the defendant guilty of the offense charged. The evidence is circumstantial and there are sufficient circumstances proven from which the jury could base its verdict. No material error is apparent.

The case is affirmed.

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


text:
    ED GLASS v. STATE.
    No. A-7487.
    Opinion Filed June 12, 1931.
    (300 Pac. 430.)
    Gaylord It. Wilcox, 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 of murder in the district court of Creek county, and was sentenced to life imprisonment in the state penitentiary.

The appeal was lodged in this court in August, 1929, and defendant was confined in the state penitentiary. Pending the appeal, it has been made to appear by affidavit of the warden of the penitentiary that defendant escaped from the penitentiary and is now a fugitive from justice. It has been uniformly held by this court that, where a person is convicted of a crime and has prosecuted an appeal to this court and thereafter becomes a fugitive from justice or otherwise beyond the jurisdiction of the court and cannot be made to respond to any judgment or order which might be made in the case, the appeal will be dismissed.

For the reasons assigned, the appeal is dismissed.

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


text:
    JOE PEREZ v. STATE.
    No. A-7911.
    Opinion Filed June 12, 1931.
    (300 Pac. 428.)
    Rittenhouse, Lee, Webster & Rittenhouse, 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 district court of Comanche county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 10 years.

The undisputed evidence in the case appears to be that defendant, who is a Mexican, had recently come to the town of Lawton, as a cotton picker, and was boarding at a restaurant operated by a Mexican woman named Petero Moralez; that on the evening of the homicide defendant came into the restaurant and was sitting there waiting for his evening meal; that the deceased, Perfecto Moralez, came into the restaurant and said to the defendant: “I have you here now and I am going to kill you.” That defendant ran down the hall towards the back door, pursued by deceased; that as defendant reached the end of the hall and attempted to open the screen door to get outside, the deceased cut him in the hack with a knife, and that as defendant turned toward deceased, deceased cut him in the front part of the body; that defendant finally got the screen door open and fell to the ground and deceased sat on top of him; that deceased was considerably taller and larger than defendant; that deceased inflicted eight or nine wounds on the body of defendant with a knife, several of which were deep and of a serious nature; that defendant drew his knife from his pocket and cut deceased several times, one long cut being in the back and sufficient to cause death; that defendant and deceased arose from the ground, and here occurs the only conflict in the evidence:

The state produced Nannie Myers, who testified that the front of her house is right next to the back end of the Mexican restaurant; that there were windows on the left side of the house and that there was a fight taking place out back of the restaurant outside of her window; that she heard a noise and got up and went to the window and stood there and watched them, and that when they got up, one of them started to the house and the other hit him in the back and he fell; that she could not tell how far he went, and did not hear anything that was said.

The defendant, testifying for himself, denied that he struck the deceased after deceased got off of him and let him up.

Defendant assigns numerous errors, but for the purpose of this opinion it will only be necessary to consider one of them: “That the verdict is not sustained by the evidence, is contrary to the evidence and is contrary to law.”

The state prosecuted apparently upon the theory that the fight was a mutual combat, and the trial court instructed the jury upon that theory of the case. There is no evidence that the combat was mutual or that it was voluntarily entered into by tbe defendant. Tbe undisputed evidence is that tbe defendant was not acquainted with, and had never seen, tbe deceased prior to tbe homicide; that deceased came into tbe restaurant with a knife in bis band and announced to defendant that be intended to kill him; that defendant fled and deceased pursued him to tbe back end of tbe ball, where be inflicted serious wounds upon tbe defendant while defendant was trying to open tbe screen door and escape; that as tbe door came open defendant fell out and deceased was on top of him, cutting him with bis knife; that defendant did not draw bis knife and strike tbe deceased until serious wounds bad been inflicted upon bis body by tbe deceased.

Tbe state contends that since they both got up from the ground and deceased started towards tbe bouse, that tbe right of the defendant to kill in bis defense ended. To this contention we cannot agree. In tbe first place, tbe record does not affirmatively show that tbe deceased said or did anything sufficient to indicate an intention to abandon tbe attack be bad been making upon tbe defendant, nor is there anything in tbe record affirmatively showing that tbe deceased did anything to cause defendant to reasonably believe that the deceased was voluntarily withdrawing from tbe attack and would desist from tbe same thereafter. There is no' evidence in tbe record to establish that tbe blow that killed deceased was struck after they arose from tbe ground. Tbe facts and circumstances in tbe case indicate that tbe cut that caused tbe death of deceased was probably made while they were on tbe ground.

Section 1754, C. O. S. 1921, provides:

“Homicide is also justifiable when committed by any person in either of tbe following cases:
“First. When resisting any attempt to murder such person, or to commit any felony upon him, or upon or in any dwelling house in which such person is.”

Under the old common law no man could defend himself until he had retreated and until his back was to the wall; hut this is not the law in free America. Here the wall is to every man’s back. It is the wall of his rights; and where he is at a place where he had a right to be, and he is unlawfully assailed, he may stand and defend himself; and cases sometimes arise where he has the right, when unlawfully assailed, to advance and defend himself until he finds himself out of danger. Fowler v. State, 8 Okla. Cr. 135, 126 Pac. 831; Foster v. State, 8 Okla. Cr. 150, 126 Pac. 835.

Justifiable homicide in self-defense occurs when a person, without fault on his part in bringing on the contest or struggle, kills another under at least an apparent necessity, in order to save himself from death or great bodily harm. 21 Cyc. 800.

A man may repel force by force in defense of his person, habitation, or property, against any one, or many, who manifestly intend and endeavor, by violence or surprise, to commit a known felony on either. In such case he is not compelled to retreat, but may pursue his adversary until he finds himself out of danger, and if in the conflict between them he happens to kill him, such killing is justifiable. Kirk v. Territory, 10 Okla. 76, 60 Pac. 797, 806; Price v. State, 1 Okla. Cr. 358, 98 Pac. 447; Mulkey v. State, 5 Okla. Cr. 77, 113 Pac. 532.

Under the evidence in this case and the authorities above cited, defendant was justified as a matter of law in taking the life of the deceased, and could not be guilty of manslaughter in the first degree, nor any other crime, by reason thereof. The verdict of the jury therefore is not sustained by the evidence and is contrary to the evidence and to the law.

The defendant was a foreigner and a stranger in a strange land, without powerful friends and without ability to make bond, and has been incarcerated in jail and in the penitentiary since the 22d day of September, 1929.

For the reasons stated, the cause is reversed and remanded, with directions to1 the trial court to> dismiss the case and immediately discharge the defendant.

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


author: PER CURIAM.

text:
    LINCOLN SWEENEY v. STATE.
    No. A-8094.
    Opinion Filed June 19, 1931.
    (300 Pac. 428.)
    Lincoln Sweeney, in pro. per.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Pittsburg county of having unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 60 days in the county jail.

The appeal is by transcript, and no brief in support of the appeal has been filed. No question has been raised upon the record proper.

The case is affirmed.


text:
    H. B. ROWE v. STATE.
    No. A-8093.
    Opinion Filed June 12, 1931.
    (300 Pac. 428.)
    Hughes & Hughes, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Kiowa county, on a charge of possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to imprisonment in the county jail for a period of 30 days.

The appeal in this case was filed February 24, 1931. No brief has been filed, and no further appearance has been made. Where no brief is filed and no appearance made, this court will consider the appeal is without merit or has been abandoned. An examination of the record shows there are no fundamental or prejudicial errors.

The judgment of the trial court is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    GEORGE VETTERS v. STATE.
    No. A-8088.
    Opinion Filed June 12, 1931.
    (300 Pac. 426.)
    L. D. Williams, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the superior court of Okmulgee county on a charge of possession of home-brew, with intent to sell or otherwise dispose of the same contrary to the statutes in such cases made and provided, and was sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days.

The appeal in this case was filed on February 20,1931; no brief has been filed; and no further appearance made. Where no brief is filed and no appearance made, the court will consider the appeal is without merit or has been abandoned. An examination of the record shows there are no fundamental or prejudicial errors.

The judgment of the trial court is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


author: DAYENPOET, P. J.

text:
    HENRY B. NEY v. STATE.
    No. A-7928.
    Opinion Filed June 12, 1931.
    (300 Pac. 417.
    Morris & Wilhite, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAYENPOET, P. J.

An information was filed against the defendant, in the county court of Caddo county, on the 4th day of March, 1930, charging him with possession of intoxicating liquor, with the intent on the part of the defendant to barter, sell, give away, or otherwise dispose of the same. On a plea of guilty the court sentenced the defendant to serve 60 days in the county jail and pay a fine of flOO. On March 24,1930, an application to withdraw the plea of guilty was filed, overruled by the court, and the defendant excepted. Motion for new trial was filed, overruled, and exceptions saved.

The defendant in his application to withdraw his plea of guilty states in support of his application that this was his first offense, and that he was told and had reason to believe and did believe that, if he entered a plea of guilty, he would receive a sentence of 30 days and a fine of $50, and, relying upon said statements so made to him, he entered his plea of guilty. His application to' withdraw his plea of guilty is not verified, and there is nothing in the record to show that any promises were made him as to what his sentence would be.

The defendant in his assignments of error alleges the court abused its discretion in overruling his motion to withdraw his plea of guilty; that the court erred in overruling his motion for a new trial; that the court erred in assessing the punishment against him; that said punishment so assessed is cruel, excessive, and unjust, and is not sustained by the facts.

The information on which the defendant entered his plea of guilty charges the defendant with the possession of two and one-half gallons of whisky, with intent on the part of the defendant to sell, barter, give away, or otherwise dispose of the same contrary to the statute. No testimony was taken, and the only facts the court had to guide it was the charge in the information, which was duly and regularly filed. An application to withdraw a plea of guilty is addresséd 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. Jenkins v. State, 6 Okla. Cr. 516, 120 Pac. 298; Kemp v. State, 35 Okla. Cr. 128, 248 Pac. 1116; and Daugherty v. State, 51 Okla. 104, 299 Pac. 925.

The application of the defendant does not state sufficient grounds to warrant a reversal of this case. There being nothing to show that the trial court abused its discretion, the judgment is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    GEORGE JONES et al. v. STATE.
    No. A-7850.
    Opinion Filed June 12, 1931.
    (300 Pac. 416.)
    A. J. Stevens and L. Z. Lasley, for plaintiffs in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the county court of Woodward county of the crime of unlawful possession of a still, and their punishment fixed by the jury at a fine of $250 each, and imprisonment in the county jail for a period of three months for each of the defendants. An examination of the record discloses that judgment and sentence in this case was rendered on the 8th day of February, 1930, and on said date the defendants were allowed 40 days from the date of the judgment to make and serve case-made; the state granted 10 days thereafter to suggest amendments, and the case-made to be signed and settled upon five days’ notice.

On the 19th day of March, 1930, for cause duly sworn, the court ordered that the defendants and each of them be given five days additional time in which to prepare and serve case-made; the state to be given 10 days to suggest amendments, and to be settled and signed upon five days’ notice.

On the 18th day of March, 1930, notice of appeal was duly served on the county attorney and court clerk.

On the 29th day of March, 1930, the court signed and settled the case-made, and the same was filed in the office of the court clerk of Woodward county on the 7th day of April, 1930, and immediately thereafter withdrawn for filing in the Criminal Court of Appeals.

It appears that thereafter, and on the 8th day of April, 1930, the trial judge attempted to make an order extending the time for 30 days from the 8th day of April, 1930, in which to file case-made and appeal in the Criminal Court of Appeals, and thereafter and on the 9th day of May, 1930, plaintiffs in error filed their appeal in the office of the clerk of the Criminal Court of Appeals.

In the case of Sutton v. State, 51 Okla. Cr. 95, 299 Pac. 928 this court said:

“When the judge of the trial court has settled and signed the case-made and it has been attested by the court clerk and filed in the clerk’s office, it passes beyond Ms control, and thereafter cannot be amended, altered, or changed by any order of his.”

This court in Sutton v. State, supra, discusses the question in detail, and cites authorities supporting the rule.

The order of the trial court made on April 8, 1930, attempting to- grant additional time to file case-made was without jurisdiction and void.

The petition in error and case-made not having been filed in this court within the time allowed by law, this court obtains no jurisdiction. The attempted appeal is therefore dismissed.

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


text:
    M. M. SHELTON v. STATE.
    No. A-8059.
    Opinion Filed June 19, 1931.
    (300 Pac. 1003.)

      Cress & Tebbe, for plaintiff in error.
    The Attorney General, for the. State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jáil for a period of 30 days. '

The evidence of the state was that the officers had a search warrant for a search of defendant’s premises, and that they found a half gallon jar of whisky and a pint of whisky underneath the building occupied by defendant, and that defendant operated the filling station described in the search warrant and under which the whisky was found; that they found a bottle of whisky under the counter in the front part of his building and two bottles in the grass about 50 feet west of the building. This liquor was identified by the state and offered in evidence to the jury.

Defendant, testifying for himself, denied that the liquor was his, or that he knew anything about it, or that he had ever sold any liquor or been in any wise connected with the handling or sale of the same; that the bottle of liquor found under the counter in the filling station he bad for bis own personal use; that be used it to make camphor.

Defendant contends, first, that the court erred in overruling bis motion to suppress the evidence, for the reason that the warrant was issued on the 22d day of March, 1930, while the filing mark of the court clerk was not placed upon the affidavit until the 3d day of September, 1930.

The record discloses that the affidavit was signed and sworn to before the county judge on the 22d day of March, 1930, and that a search warrant was duly issued on the same day; that this search warrant was delivered to the sheriff, who executed and returned the same on the 22d day of March, 1930; and that this warrant and return thereon was filed in the office of the court clerk on the 25th day of March, 1930.

The validity of a search warrant and the admissibility of the evidence thereunder is not controlled by the time at which the clerk placed his filing mark upon the same, but is controlled by the date upon which the affidavit was made and the warrant issued thereunder.

This contention of defendant is without any merit, and the motion to suppress was properly overruled.

Defendant next contends that the description in the search warrant was insufficient and was too indefinite and uncertain to authorize the officers to make the search. The description in the search warrant is:

“Northwest quarter of section 28, township 21, range 1, west of the Indian Meridian, in Noble county, Okla., and in particular a small filling station and shack run and occupied by one M. M. iShelton, located on Highway (IT. S.) 64, running along the north side of said quarter.”

There is no dispute in the evidence but that the defendant did occupy the filling station searched and in which the liquor was found, and that said filling station was located on the quarter section of land described in the warrant, but defendant did offer proof that he only had control of the building and a small tract of land, and that the balance of the land belonged to one G. G. Vann.

No search of any part of the premises except that occupied by the defendant was made by the officers, and no liquor was found at any place other than at the filling station located on this quarter section of land. This description was sufficient to authorize the officers to make the search, and the evidence obtained thereby was admissible.

Defendant complains of the refusal of the court to give certain requested instructions, and complains also of the instructions given by the court. An examination of the instructions given by the court discloses that they fairly state the law as applicable to the facts in the case, and were as favorable to defendant as the evidence warranted.

The other errors complained of are not of sufficient merit to warrant a separate discussion in this opinion.

For the reasons stated, the cause is affirmed.


text:
    ETTA LEE ARMSTRONG v. STATE.
    No. A-8027.
    Opinion Filed June 19, 1931.
    (300 Pac. 1002.)

      George Allen and Joe Adwon, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of selling one-half pint of whisky, and was sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days, and has appealed to this court.

The testimony on behalf of the state, in substance, tends to show that the officers gave a man by the name of Arnold a marked $5 bill and sent him to the house where the defendant, her husband and children lived to buy whisky; that in a few minutes thereafter a son of the defendant came out and went to the drug store to get a $5 bill changed, and the deputy sheriff caught him and took the money away from him, and claims it was the $5 they had marked and given to Arnold to buy the whisky; the man Arnold, who was sent to the house to buy the whisky, was not called as a witness. No one seemed to know where Arnold was at the time of the trial.

The defendant, testifying in her own behalf, admitfed that Arnold came to the house and wanted to buy whisky; that she had some whisky in the house for her husband, who was sick, and she let him have a half pint of it; that he offered her money and she would not take it, and Arnold gave the money to the boy and he went out to get change.

The defendant has assigned several errors alleged to have been committed by the trial court, and the record has been carefully examined. Courts do not look with favor upon officers who go out and give money to men to go to the different homes of citizens of the country to try to induce them to> violate the law. But in this case the question of the guilt or innocence of the defendant turns largely upon her own testimony and circumstantial testimony contained in the record. Arnold got the whisky. The boy went out with $5 from the defendant’s home to get change. The defendant denies she took any money for the half pint of whisky. This brought about a conflict in the evidence, which was settled by the jury adversely to the defendant. There are no errors in the record of sufficient merit to warrant a reversal.

The judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    HOWARD KIRKPATRICK v. STATE.
    No. A-8068.
    Opinion Filed June 19, 1931.
    (300 Pac. 1002.)
    Jesse H. Dunn, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Murray county on a charge of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of |50 and imprisonment in the county jail for a period of 30 days.

Judgment was entered on the 16th day of October, 1930, and the record for appeal was lodged in this court on the 29th day of January, 1931. The record in this case shows that the court gaye the plaintiff in error 60 days to make and serve case-made, and that thereafter, on the 16th day of December, 1930, the defendant was given an additional 30 days, and thereafter and on the 12th day of January, 1931, defendant was given an additional 15 days in which to make and serve case-made. No order of court was ever made extending the time in which the appeal might be filed in this court.

An appeal from a conviction for a misdemeanor must be filed in this court in 60 days unless the court makes proper order of extension. No such order having been made, and the appeal not having been filed in this court •until 105 days after the judgment, and the time allowed by law for taking the appeal having expired, this court does not acquire jurisdiction, and the attempted appeal is dismissed.

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


text:
    CHARLEY BROWN v. STATE.
    No. A-7805.
    Opinion Filed June 19, 1931.
    (300 Pac. 1001.)

      H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of driving an automobile while intoxicated, and was sentenced to pay a fine of $150.

At the time charged, defendant, accompanied by his brother and two young women, drove to a cafe in the city of Perry. When the party came out, an officer arrested defendant and took a half pint of whisky from his pocket. He then examined the car and found in it two* or three empty pint bottles, and a fruit jar that had contained whisky. Defendant and his brother denied that defendant was intoxicated, but admitted they had taken a drink just before coming into the cafe. The young women did not testify. Although there is some conflict, the evidence amply sustains the judgment.

It is argued at some length that the court erred in refusing defendant’s requested instruction defining the term “under the influence of intoxicating liquor.” In the case of Ware v. State, 47 Okla. Cr. 434, 288 Pac. 374, this court held it was not necessary to define this term.

The contention is also' made that there was misconduct on the part of the trial judge in intimating to the jury, after the case had been finally submitted, that he desired a speedy verdict. While the jury was deliberating, but the time of such deliberation not being made to appear, they were called into court and the trial judge asked them if they had reached a verdict, and being informed they had not, he questioned them as to whether there was any misunderstanding of the instructions or if the court could assist them, and in his remarks stated that his train left at a certain time, that he had hoped to get away on it but advised them, however, that he would stay over if necessary, and that they should not rush or hurry but take whatever time was necessary. No objection or exceptions were taken to this statement of the court, nor does the record disclose how much longer the jury deliberated before agreeing on a verdict. The record on this point presents no question for this court. The rule is well settled that after a conviction on appeal, every presumption will be indulged in favor of the regularity of the proceedings, and that errors or irregularities must be affirmatively made to appear. Manchester v. State, 50 Okla. Cr. 101, 296 P. 525.

The case is affirmed.

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


text:
    HOWARD REYNOLDS v. STATE.
    No. A-7981.
    Opinion Filed May 29, 1931.
    Rehearing Denied June 19, 1931.
    (300 Pac. 417.)

      Charles G. Ozmun, 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 district court of Comanche county of the crime of unlawfully opening, conducting, setting up, and operating a game of chance, to wit, craps, and his punishment fixed by the jury at a fine of $500 and imprisonment in the state penitentiary for one year.

The evidence of the state was that the officers had a search warrant; that on entering the premises of defendant they saw a number of men around a small table in a room in defendant’s home; that one Pierce had a dice box in his hand shaking dice and that there was money lying on the table; that defendant was standing by the side of the table and as the officers reached for the money, the defendant picked it up and took possession of it. The witness Pierce testified that he was throwing the dice for the defendant who had part of the money on the table.

Defendant, testifying for himself, admitted that dice were being shaken, but denied that he had any interest in the game or had anything to do with operating it. On cross-examination defendant admitted that on the 18th day of October, 1924, he had pleaded guilty in the federal court to possession of 400 gallons of mash and 3 gallons of whisky; that on August 30, 1925, he pleaded guilty in the federal court to possession of 100 gallons of beer and 20 gallons in process of manufacture; that on the 24th day of September, 1927, he pleaded guilty in the federal court to a charge of possession of a 200 gallon copper still, 250 gallons of mash, and 375 pints of beer; that on the 24th clay of January, 1928, he was convicted in the county court of Comanche county on a charge of possession of a still, and that on the 25th day of September, 1928, he was convicted in the county court of Comanche county of possession of four gallons of intoxicating liquor; that on the 2d day of July, 1929, he was convicted in the county court of Comanche county of the possession of beer.

On redirect examination defendant was asked by his counsel, “Have you ever been convicted of a violation of the gambling laws, Howard?” and answered, “Yes, sir,” and that the jury fixed his punishment at a fine of $150 and three months in the county jail.

The contention of defendant is that this evidence was insufficient to support a verdict of guilty.

It appears from the record that the defendant was an habitual violator of the law and that his place was a notorious bootlegging joint and gambling place.

Defendant contends that the affidavit and search warrant were insufficient to entitle the officers to search his premises.

By stipulation of the county attorney and defendant’s counsel the affidavit and warrant were placed in the record, and are sufficient upon their face to authorize the officers to search the defendant’s premises.

Defendant complains of other errors, but they are not of sufficient importance to require a separate discussion in this opinion.

For the reasons stated, the cause is affirmed.

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