text:
    P. C. ELLIS v. STATE.
    No. A-5938.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 93.)
    P. C. Ellis, appellant,

      G. W. Young testified:

      J. F. Thomas, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

(after stating the facts as above). The overruling of the demurrer to the information is assigned as error.

Under the provisions of our Code (sections 2556 and 2564, C. S. 1921), the true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet.

In Bivens v. State, 6 Okla. Cr. 521, 120 P. 1033, it is held:

“Where, in an indictment for larceny, the property is charged to have been taken by fraud, it is not necessary to set out the fraudulent acts relied upon as constituting the fraud.”

In our opinion, the information sufficiently charges the crime of larceny and the demurrer thereto was properly overruled.

The only other assignment of error is that the verdict is contrary to the law and the evidence. In the oral argument and brief it is contended that if the proof shows that the defendant is guilty of anything, it is that he is guilty of the commission of the crime of robbery, and not the crime of larceny.

After an examination of the record we find that the testimony for the state shows that the defendant used force and violence to retain possession of the stolen property after it had been taken by fraud from George Young.

In the case of Monagham v. State, 10 Okla. Cr. 89, 134 P. 77, 46 L. R. A. (N. S.) 1149, this court held:

“To constitute ‘robbery,’ as distinguished from ‘larceny from the person,’ there must be force, violence, or intimidation in the taking. Therefore, where there is no evidence tending to show that the defendant obtained or retained the personal property alleged to have been taken by force or violence or by putting in fear, the crime is grand larceny, and not robbery, and a verdict of guilty of robbery in the first degree is contrary to law and the evidence.
“Merely snatching the property from the person of another, without violence or putting in fear, is not robbery, except where there is some injury or violence to the person of the owner, or where the property snatched is so attached to the person or clothes of the owner as to afford resistance.
“The force and violence which is essential to the crime of robbery must be concomitant with the taking of property from the person of another.”

If the owner of personal property parts with the possession of the same for a particular purpose, and the person who receives the same avowedly for that purpose has a fraudulent intention to make use of the possession as a means of converting such property to his own use, and does so convert is, the crime is larceny.

It was the peculiar province of the jury to pass upon the credibility of the witnesses, .and under the settled rules of this court, we cannot disturb the verdict of the jury, where there is any substantial evidence to support it.

Our conclusion is that the defendant had a fair trial, and, finding no prejudicial error in the record, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    JOHN CARNEGIE v. STATE.
    No. A-6008.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 88.)

      Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of manufacturing whisky, and was sentenced to pay a fine of $500 and to serve six months in the county jail.

The testimony of the state is that on the date charged a witness discovered defendant operating a still, and in a short time certain officers appeared and recovered a large quantity of mash, some whisky, and the still, which in the meantime had been dismantled. Defendant denied that he was at the place or had any connection with this still. This presented a question of fact which was exclusively for the jury, and while the evidence is conflicting it was for them to say whom they would believe or disbelieve. The judgment will not be disturbed for insufficiency of the evidence.

Complaint is also made that the state was permitted to attack the general reputation of the place of residence of the defendant without his having put the same in issue. The place of residence was some two miles from Where the still was in operation. Upon this point it appears that defendant sought to impeach the principal witness for the state by showing that upon a former trial he had given different testimony. The state thereupon, over the objection of defendant, introduced his entire testimony on the former trial. This testimony in part did show the bad reputation of the place where defendant resided. The transcript of the entire testimony of the witness was not admissible, but only that part of it touching the matter upon which he was sought to be impeached. Its admission, however, we think, does not require a reversal, but as it may have affected the punishment imposed, justice requires that the judgment be modified by reducing the punishment to a fine of $250 and to confinement in the county jail for a term of 90 days.

As modified, the judgment is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    LEE JONES v. STATE.
    No. A-6020.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 89.)
    Wieck & Armstrong, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $50 and to serve a term of .60 days in the county jail.

Two officers went to the residence of defendant and were met there by the wife of defendant at the door, who invited them into the house and said to her husband: “There is a couple of gentlemen to see you.” They entered the house, and defendant and four other persons were there, and defendant had an aluminum pitcher containing some whisky. The officers recovered about a pint of whisky from the pitcher. Timely objection was made to the introduction of this evidence as having been obtained by illegal search. The admission of the incompetent evidence was in violation of article 2, § 30, of the Constitution, and section 7013, Comp. Stat. 1921, and the objection should have been sustained.

Several other assignments of error are argued which disclose other errors in the trial of the case, but since all the evidence was obtained by an illegal search and the prosecution must fail, it is not necessary to discuss the other assignments.

The case is reversed and remanded, with instructions to disiniss.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


author: DOYLE, P. J.

text:
    GENEVA ROSS v. STATE.
    No. A-6016.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 90.)

      H. T. Church, for .plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant was convicted and in accordance with the verdict of the jury was sentenced to confinement in the county jail for 30 days and a fine of $50, on a charge that she did have in her possession certain intoxicating liquor, to wit, 108 gallons of Choctaw beer, containing more than one-half of one per cent, of alcohol, measured by volume, and capable of being used as a beverage, with the unlawful intent to sell the same.

The undisputed facts are that on August 9, 1924, affidavits were made by one Odell Greer, who for about a year previous had lived with the appellant, in which affiant stated that intoxicating liquor is being manufactured, sold, bartered, given away, and otherwise furnished by one Geneva Eoss, at No. 1340 North Norfolk street in the city of Tulsa; that such building is a private residence and is a place of public resort, and is used for the storage and furnishing of intoxicating liquor.

In company with affiant, Greer, the officers proceeded to the premises and said affiant pointed out to the officers the place where the beer was found.

Geneva Eoss, as a witness in her own behalf, testified that Odell Greer had made his home with her for about a year and three or four months; that about nine days before the raid was made she went to Fort Worth, Tex., to visit her sister and had only returned to Tulsa on the morning of the afternoon when the search and seizure was made; that Odell Greer remained on the premises during her absence and threatened to have her jailed on account of jealousy, and that it was through a spirit of revenge that he made the affidavit upon which the search warrant issued; that she had never made any Choctaw beer; that when she returned that morning she had a difficulty with Odell Greer over another man that she was keeping company with, Wemouth Hearst, whom she later married.

When the case was called for trial there was a motion to suppress the evidence obtained under the search warrant, on the ground “that the affidavit upon which said search warrant issued was illegal and void, the same merely stating conclusions and not, particularly naming or describing the person to be searched nor the premises to be searched as required by law,” which motion was overruled.

Objection was interposed to the introduction of evidence by the state for the same reasons and grounds as set forth in said motion, which was overruled. At the close of the state’s evidence there was a motion for a directed verdict of acquittal upon the same ground.

It is urged that the affidavit is defective in that it names a different person from this defendant, Genevive Ross, which is not the true and correct name of the appellant, her name being Geneva Ross, and that the affidavit contains only conclusions.

We deem it sufficient to say that the affidavit sufficiently describes the place to be searched and "is sufficient, although the given name of the owner is not correctly stated.

In State v. Skelton, 36 Okla. Cr. 377, 254 P. 754, it is said:

“Since the affidavit in this case is an application for a search warrant to search a particular place, which is particularly described, and not for the search of a person, the failure to name or describe the person does not render it fatally defective.”

We have carefully examined every point argued by counsel for appellant, and we are satisfied that she had a fair and impartial trial. The judgment of the lower court is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    GUY KEASLER v. STATE.
    No. A-5872.
    Opinion Filed Aug. 20, 1927.
    Rehearing Denied Oct. 22, 1927.
    (259 Pac. 1059.)

      L.'A. Pelley, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty Gen., for the State.
   DOYLE, P. J.

Appellant, Guy Keasler, and J. M. Mohundro were jointly charged with the crime of burglary. Upon his separate trial appellant was convicted, and in accordance with the verdict of the jury was sentenced to two years’ imprisonment in the state penitentiary. He prosecutes this appeal from that judgment.

The information charges that in Jackson county, May 27, 1924, the defendants “did then and there, willfully, unlawfully,- knowingly, feloniously, and burglariously break into and enter in the daytime by breaking the seal and opening a door of a certain railroad car, to wit, Orient car No. 3859, which said car was then and there in transit from Altus, Okla., .to Chilicothe, Tex., and containing personal property, to wit, merchandise, and which car was on the day and date aforesaid in the possession of the Orient Railway Company, in the county and state aforesaid, with the willful, unlawful, felonious, and burglarious intent then and there on the part of them, the said Guy Keasler and J. M. Mohundro, to take, steal, and carry away by stealth personal property therein contained [here describing about 20 boxes and cases containing chewing and smoking tobacco and cigarettes], of the personal property in the possession of the said Orient Railway Company, and all of the aggregate value of $217.85, without the consent and against the will of the said Orient Railway Company, the owner and possessor thereof,” etc.

The contention that the demurrer to the information should have been sustained is without merit.

The point made is that the allegation of the ownership of the railroad car alleged to have been burglarized is insufficient. The .prosecution was based upon the second subdivision of section 2063, C. S. 1921. Construed in their usual accepted meaning, the words used in the information, “Orient car No. 3859 in the possession of the Orient Railway Company,” would mean a railroad car belonging to the Orient Railway Company, and that together with the number of the car sufficiently identifies the act as to the car alleged to have been burglarized.

In the case of Gilbert v. State, 116 Ga. 819, 43 S. E. 47, the Supreme Court of Georgia held:

“An indictment which charges that the accused broke and entered a certain railroad car marked ‘C. of Ga. 201,’ and alleges that such car was at the time ‘in the custody and control’ of another named railway company, sufficiently avers ownership of the car to have been in such company.”

And see Com. v. Finn, 108 Mass. 466; Clark, Cr. Law (2d Ed.) p. 271; 2 Bish. New Cr. Law, § 789.

Another point made is that the information is fatally defective in failing to allege whether or not the Orient Railway Company was a corporation or a copartnership. This contention is without meri.t Our Procedure Criminal provides:

“When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the .person injured, or intended to be injured, is. not material.” Section 2560, Comp. St. 1921.

See Gunter v. State, 17 Okla. Cr. 404, 189 P. 200; Rau v. State, 7 Okla. Cr. 349, 123 P. 1037; Ivy v. State, 109 Ark. 446, 160 S. W. 208.

The information clearly charges all of the essential ■elements of the crime of burglary as defined in the statute.

It is also contended that the evidence is insufficient to sustain the verdict and judgment. The evidence shows that the goods stolen were in a car; that it was sealed, that the car could not be opened without breaking the seal, and the testimony of his codefendant, Mohundro, was sufficeintly corroborated.

As a witness in his own behalf, appellant admitted that he had received a part of this shipment of tobacco from Mohundro and delivered it to the Hollis Grocery Company, in Altus. When the officers traced this stolen tobacco they went to the Hollis Grocery Company for the purpose of apprehending the thief or thieves. Appellant was discovered, together with the clerk there, pulling the labels off the tobacco cases he had delivered there.

Mr. Hollis, the owner, who was away from the city that day, testified that appellant had approached him a day of two before that and offered to sell him some tobacco of the kind delivered at 60 per cent, of its wholesale cost, and in addition to that other packages of the stolen tobacco were found in appellant’s truck by the side of the Hollis Grocery Company store at the time and after appellant had run away from the store when the officers appeared.

A careful reading of the record shows that appellant received a fair trial and that no error was committed prejudicial to his rights.

The judgment appealed from is therefore affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WALTER HODGES et al. v. STATE.
    No. A-5728.
    Opinion Filed July 2, 1927.
    Rehearing Denied Oct. 22, 1927.
    (259 Pac. 1056.)
    J. T. Blanton and Champion, Champion & George, for plaintiffs in error.
    M. B. Cope and J. T. McIntosh, for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Carter county on a charge of receiving deposits in an insolvent bank, and each were sentenced to pay a fine of $500.

The information is joint and based on section 4128, Comp. Stat. 1921. It alleges that Walter Hodges was president and a director, the defendant P. W. McKay was vice president, the defendant W. L. Reed vice president and a director, and the defendant J. A. Hamilton a director and cashier of the City State Bank of Wilson, and that, while said bank was insolvent and known by defendants to be insolvent, they received and accepted a designated deposit in said bank. The appeal is by transcript; the evidence not being brought up.

Defendants contend that the trial court erred in certain of his instructions, particularly instructions Nos. 3, 9, and 10, and further erred in refusing certain instructions requested by defendants.

Where an appeal is taken by transcript, only the record proper is before the court. The record consists of the indictment or information, a copy of the minutes of the plea or demurrer, a copy of the minutes of the trial, the charges (instructions) given or refused, and the indorsements, if any, thereon, and a copy of the judgment. Section 2777, Comp. Stat. 1921.

Defendants first argue that instruction No. 3 is erroneous. This instruction, in substance, tells the jury that all banks are required to be kept solvent before they .are authorized to receive deposits; and, if the capital stock becomes impaired, it is the duty of the officers and directors to make good such impairment before receiving deposits; that the bank is authorized to use the funds on deposit until called for, and, in order to guarantee the return of the deposits when called for, section 4128 of the statute had been enacted, which section is then quoted in the instruction. Defendants assert this is prejudicial as telling the jury that it was the duty of the officers and directors to make good an impairment of the bank’s capital before receiving deposits. This instruction is merely one way of saying to the jury that an insolvent bank shall not receive deposits, informing them of the statute that makes it unlawful and giving a reason for its enactment. It cannot reasonably be contended that the instruction is confusing as advising the jury that it is an offense for the officers to have failed to keep and maintain the bank in a solvent condition, ;or to have failed to make good an impairment of the capital stock. The instruction may contain more words than is necessary, but it is not prejudicially erroneous. Section 4145, Comp. Stat. 1921; 7 C. J. p. 730, §§484— 492.

Instructions 9 and 10 are next challenged. Instruction 9 simply advises the jury the amount of reserve required to be kept by banks, quoting, in substance, the provisions of section 4124, Comp. Stat. 1921. Instruction 10 informs the jury that testimony had been introduced tending to show that the bank had not made good its reserve as required by law, but that a failure to make good the legal reserve is not conclusive evidence of insolvency, but such evidence .might be taken into consideration in connection with all the evidence as tending to show the financial condition of the bank and the defendant’s knowledge of such condition. Defendants admit that instruction 9 is correct as far as it goes, but insist that the jury should have been told that two-thirds of the reserve might consist of balances due from solvent banks, and that the word “reserve” should have been defined. Instruction 9 is sufficiently lucid without any definition of the word “reserve,” and instruction 10 is for the benefit of defendants. Testimony that the bank had failed to maintain.the reserve required by law tended to throw light upon the condition of the bank as being insolvent or otherwise and tended to show the knowledge of defendants of the bank’s condition, and for this purpose was admissible. Was the bank actually insolvent at the time the deposit was received, and did defendants have knowledge of such condition, was the issue for the jury. Now, if the bank had failed to maintain its ■reserve as required by law, this was a circumstance to be taken into consideration along with the other evidence for the purpose of determining whether or not the bank was actually insolvent and whether or not the defendants knew of its condition. State v. Syverson, 39 S. D. 638, 166 N. W. 157.

Complaint is next made that the court erred in refusing to give defendants’ requested instructions 11 and 19. The instructions are, in substance, that knowledge of the .insolvent condition of the bank by defendants is an essential ingredient of the offense, and, before they can convict, they must not only believe the bank was insolvent at the time of the offense charged, but that defendants had knowledge of such insolvent condition, and, if they had a reasonable doubt that defendants believed at the time charged that the bank was insolvent, they should acquit. These instructions contain a fair statement of the law; however, the principles of law covered by these requested instructions are fully covered by the general charge of the court in the court’s instructions 4, 8, and 12.

In request No. 16, defendants asked for the following instruction:

“You are instructed, gentlemen of the jury, that the capital stock, surplus, and undivided profits of a bank are a portion of its assets which may be used and employed by the bank in the payment of its liabilities.”

It is insisted that this instruction was necessary in order that the jury might determine if the bank was insolvent. On this point, the court gave instructions 5 and 6, as follows:

“(5) Now, upon the question of insolvency, at the time the bank failed, you are instructed that the bank was insolvent in the sense used in the indictment in either of the following circumstances, to wit: First, if the actual cash market value of the assets of said bank at the time of the deposit referred to in the indictment was insufficient to pay its liabilities or debts, or if it did not have sufficient assets at a fair cash value sufficient to ,pay its debts; second, if the bank was financially unable to pay its debts or obligations when they became due and to meet the demands of its creditors and depositors in the usual and customary manner.
“And, in this connection, you are further instructed that the inability to pay its debts does not mean a temporary inability to pay its debts such as might occur when there was a run on a bank or failure of the officers of the bank to have enough available cash on any particular day to run the bank that day, or because of any other emergency, but it means an inability to meet the bank’s obligations or debts and pay depositors in the usual and ordinary course of business, when given such a reasonable time to get the money as might be expected or required by a bank in carrying on its banking business; in other words,''¡if tjie bank under ordinary and usual circumstances was unable to get the money, by putting up its collateral and credit for cash with which to pay its debts or depositors in the usual course of business, it was insolvent in the sense used in this indictment.
“(6) You are further instructed that the liabilities of a bank, within the meaning of the instructions herein given, are all sums owing by it to othier banks, firms, corporations, or persons, whether for money borrowed or for money deposited with it, either on open deposit or time certificate of deposit; but the amount of the capital stock, surplus, and undivided profits, if any, should not be considered or taken into account as a debt against the bank within the meaning of these instructions.”

An instruction very similar to No. 5 was given in case of Skarda v. State, 118 Ark. 176, 175 S. W. 1190, Ann. Cas. 1916E, 586, cited with approval in Appleget et al. v. State, 33 Okla. Cr. 125, 243 P. 253. Instruction 6 gives a correct rule for the determination of liability of a bank. See 3 R. C. L. 493, par. 120; Ellis v. State, 138 Wis. 513, 119 N. W. 1110, 20 L. R. A. (N. S.) 444, 131 Am. St. Rep. 1022.

It is well settled that is not error for the trial court to refuse a requested instruction, although it may be a correct statement of the law, if the principles covered by such request are covered by the general charge, and that the instructions are to be considered as a whole, and, when so considered, if they fairly state the law applicable to the case, they are sufficient.

On an appeal to this court the presumption is that the case was fairly tried and the verdict and judgment in conformity to evidence and the law, and the burden is on the defendants to show some error which prejudiced their substantial rights. This appeal being by transcript, this court is not in a position to say what evidence was before the trial court. We do not know whether or not defendants testified, whether they admitted or denied insolvency of the bank at the time the deposit in question was received, or whether they admitted or denied knowledge of the insolvency of the bank at that time. The defendants were entitled to instructions defining the law applicable to their theory, if there was competent evidence reasonably tending to substantiate that theory. We do not know whether or not there was any evidence which warranted giving the requested instructions, and, even if we should say that the requested instructions were not covered by the general charge of the court, the evidence not being before us, we cannot say that there was any error in refusing them. It is only where the instructions given would be prejudicially erroneous under any state of facts, or where the failure to give the requested instructions under any state of facts would be prejudicial error, that defendants would be entitled to a reversal.

The case is affirmed.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


author: PER CURIAM.

text:
    Ex parte PAUL HOLMES.
    No. A-6785.
    Opinion Filed Oct 29, 1927.
    (260 Pac. 1119.)
   PER CURIAM.

In this case the petition was filed in this court October 19, 1927. On the same day the cause was dismissed on motion of counsel for petitioner.


text:
    LEWIS OLIVER v. STATE.
    No. A-6011.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 1071.)
    W. R. Withington, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted, in the county court of Oklahoma county on a charge of having possession of a still, and he was sentenced to imprisonment in the county jail for a term of six months, and to pay a fine of $500.

Before entering upon the trial, plaintiff in error filed a motion to suppress evidence on the ground that same had been procured by a search of the private residence of defendant, used as such, without a valid search warrant. This motion was overruled, and exceptions properly saved. The record discloses that certain officers with a search warrant searched the private residence and out-buildings of plaintiff in error, and found in the barn a copper still as alleged. The record further discloses that the affidavit for a search warrant does not allege that the place searched, a private residence, or any part of it, was used as a store, shop, hotel, boarding house, or place of storage, or that such place was a place of public resort, as required by_ sections 7012, 7013, Comp. St. 1921. Unless these provisions of the law are complied with a search warrant cannot legally issue to search a private residence occupied as such. Evidence obtained by an unlawful search of a private residence or the curtilage thereof is inadmissible. Cudjo v. State, 34 Okla. Cr. 199, 245 P. 906; Searcy v. State, 33 Okla. Cr. 421, 244 P. 203.

The affidavit is further defective, in that it describes several different tracts of land occupied by different persons, and is in effect a blanket search warrant. Wiese v. State, 32 Okla. Cr. 203, 240 P. 1075; Cummings v. State, 32 Okla. Cr. 274, 240 P. 1078; Daniels v. State, 32 Okla. Cr. 426, 241 P. 836; Myer v. State, 34 Okla. Cr. 421, 246 P. 1105.

The case is reversed and remanded.


text:
    HARRY LAUX v. STATE.
    No. A-6006.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 788.)
    Wright & Gill, for plaintiff “in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a place .where intoxicating liquors were kept for the purpose of violating the prohibitory liquor law (Comp. St. 1921, § 6,982 tet seq., as amended), and was sentenced to pay a fine of .$50, and to serve 30 days in the county jail.

Defendant operated a shooting gallery on South Broadway, Oklahoma City. Back of the shooting gallery was a hamburger stand, at which lunches were served. Certain officers in the nighttime went to this place, and arrested one Barrett, who at the time had a bottle of whisky in his hand, and was about to take a drink out of it. One of the officers testified that the defendant gave Barrett this bottle of whisky. The place was searched, and no other intoxicating liquor was found. There was some evidence that the place had a bad reputation as a place where intoxicating liquors were kept and sold. The defendant by numerous witnesses proved a good reputation. Barrett testified that he purchased the bottle of whisky, and went into this place for the purpose of taking a drink out of it when he was arrested. Defendant denied any knowledge of the whisky found in Barrett’s possession. The evidence in favor of the defendant is so preponderating, and that for the state so slight, in view of the fact that only one of the officers out of four in the party testified to seeing the small bottle of whisky in the hands of defendant, that the evidence lacks that degree of certainty required in criminal cases.

The case is reversed and remanded.


text:
    Ex parte EFFIE WATSON.
    No. A-6737.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 787.)
    H. A. Gassaway, for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition filed in this court August 20, 1927, for writ of habeas corpus by Effie Watson, held on a charge of murder by J. D. Doyle, sheriff of Seminole county, merely alleged “the proof of guilt is not evident, nor the presumption thereof great.” On the same day the following demurrer to the petition was interposed;

“Comes now the Attorney General, and demurs to the petition filed herein, for the reason that said petition does not state facts sufficient in law to justify this court in granting the relief prayed for; second, for the reason that said petition does not allege that any preliminary trial has ever been held in said cause; third, because said petition does not show that the petitioner herein has applied to the district judge of Seminole county for relief prayed for herein.
“Wherefore the Attorney General says that the writ prayed for should be denied.”

Upon a consideration of the petition and demurrer thereto, it was the opinion of the court that the demurrer should be sustained and the cause dismissed.


text:
    PHIL BROGDON v. STATE.

      No. A-6629.
    Opinion Filed Oct. 29, 1927.

    (260 Pac. 784.)
    O. H. Whitt, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pittsburg county on a charge of statutory rape and was sentenced to serve 18 months in the state penitentiary.

Defendant is charged with having accomplished an act of sexual intercourse with Edith Lewis, a female of the age of 15 years. According to the statement of facts, the prosecuting witness, Edith Lewis, testified positively for the state and was corroborated by Amanda Wilburn, who was aged 8 years at the time of tñe occurrence. All parties are negroes. It is argued that the court erred in refusing to order a transcript of the testimony and record for appeal at the expense of the county, citing Jeffries v. State, 9 Okla. Cr. 573, 132 P. 823, and Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338.

It appears that .an affidavit was made by defendant showing his inability to pay for a transcript of the testimony, and also an affidavit of defendant’s counsel stating that he has been paid for his services the sum of about $29, and that defendant is unable to pay affiant any more money, that he is destitute and can raise no money. The court made a finding in conformity with the affidavits filed.

We .adhere to the rule announced in the case of Hutchins v. State, and Jeffries v. State, supra, and Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846. To be available, the error in denying a transcript of the record at the expense of the county, it must be clearly and affirmatively made to appear that a defendant seeking to have a transcript furnished at the expense of the county is without money or property, and without relatives or friends who will assist him, and for such reason is unable to pay for a transcript, and that his attorneys cannot make up a case-made from memory. If such showing is made, the court should order the transcript at the expense of the county.

The case is reversed and remanded, and, it appearing that defendant is incarcerated in the penitentiary for failure to give bail, it is ordered that the warden, upon demand of the sheriff of Pittsburg county, deliver defendant to said sheriff to be incarcerated in the county jail of Pittsburg county until he is discharged according to law.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    C. B. AUBREY v. STATE.
    No. A-6073.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 783.)
    Lloyd J. Seay and John R. Miller, for plaintiff in error.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Creek county on a charge of unlawfully operating a still and was sentenced to pay a fine of $250 and to serve 60 days in the county jail. The judgment was entered on November 16, 1925. Defendant was allowed 40 days to make and serve case-made, but no extension of time within which to file the petition in error was made beyond the 60-day period allowed by section 2808, Comp. St. 1821. Thereafter on December 22, 30 days’ extension from that date was allowed in which to make and serve case-made; 10 days to suggest amendments to be settled and signed on 5 days’ notice: No order was made extending the time within which the petition in error and case-made should be filed in this court. Again on January 21, 1926, an extension of 15 days to make and serve case-made was entered, but no order was made extending the time in which to file the appeal in this court. The appeal was filed February 19, 1926, more than 60 days after the rendition of judgment. This court did not acquire jurisdiction. Holly v. State, 16 Okla. Cr. 164, 181 P. 518, and cases therein cited. Further, the record does not show that any notice of appeal was ever given as required by section 2809, Comp. St. 1921. When the motion for a new trial was overruled, defendant gave notice (presumably in open'court) of his intention to appeal and requested that notice be spread of record. This was evidently an attempt to comply with the provisions of chapter 219, Session Laws 1917 (section 782, Comp. St. 1921). This court has frequently held that this provision of the law applies only in civil cases and has no application to appeals in criminal cases. Burgess v. State, 18 Okla. Cr. 574, 197 P. 173; Merritt v. State, 35 Okla. Cr. 194, 249 P. 436.

For the reasons assigned, the appeal .is dismissed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    OSCAR HAYNES v. STATE.
    No. A-6007.
    Opinion Filed Oct 29, 1927.
    (260 Pac. 782.)
    Wright, Gill & Ramsdale, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Oklahoma, county of having illegal possession of intoxicating liquor, and sentenced to serve a term of six months in the county jail, and to pay a fine of §500.

At the time charged certain officers searched the residence of one Myers. The search occurred about 11 or 12 o’clock at night, and in the house at the time was Myers and his wife, one Updegraff, and plaintiff in error. A small quantity of whisky was found in the house, and some bottles and containers indicating that Myers was a bootlegger. No whisky was found in the room occupied by plaintiff in error, and he testified that at the time he was engaged as a carpenter helping Myers repair a house. This was corroborated by the testimony of Updegraff. There was no other evidence connecting plaintiff in error with the whisky. The evidence does no more than raise a strong suspicion that plaintiff in error may have been connected with Myers in the illegal traffic in whisky, but the evidence falls short of that certainty of proof required to convict in a criminal case.

The case is reversed and remanded.


text:
    SHERMAN OVERSTREET v. STATE.
    No. A-6131.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 781.)
    E. W. Snoddy and John R. Murrow, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Sherman Overstreet was convicted on information charging that in Woods county, September 27, 1925, he did sell one pint of whisky to one B. E. Slagle, and in accordance with the verdict of the jury was sentenced to pay a fine of $100 and confinement in the county jail for 60 days. To reverse the judgment he appeals. .

The state relied for this conviction on the testimony of the witness B. E. Slagle, who testified that he lived at Carmen, Okla.; that he was employed by the mayor of Waynoka for the purpose of ferreting out violators of the prohibitory law; that he received $10 a day and expenses, while he was so engaged in the month of September, 1925; that he met the defendant on the streets of Waynoka, had never seen him before, and asked him if a man could get anything around there to drink; that the defendant said that he did not know, that he might; then he told the defendant that he would like to have a pint or quart of liquor; that the defendant said, “All right, where will you be?” and the defendant told him to go in that restaurant there and .possibly he could get him something; that he went in the restaurant,'waited there for about 15 minutes, and the defendant brought him a pint of liquor, and he paid the defendant $2 for it.

As a witness in his own behalf the defendant denied that he sold the liquor to Slagle; that he knew Slagle to be a professional hired informer and detective; that in the spring of 1925 he heard Slagle testify on the witness stand in the federal court at Enid that he, Slagle, was a professional hired informer and detective, whose business it was to purchase liquor from persons suspected of violating the prohibitory laws.

The following named witnesses, business men and farmers, living at and in the neighborhood of Carmen, qualified, and each testified that the reputation for truth and veracity of B. E. Slagle in the neighborhood in which he resided was bad: H. V. Jordan, Everett Moser, C. E. Yoder, Whitson Smith, A. P. Shreiber, Dean Moser, Edward Marlow, Fred Mercer, and Frank Copenhaver. Their testimony was undisputed.

Aside from the testimony of B. E. Slagle, there is no evidence tending to show the commission of the offense charged.

In Smith v. State, 34 Okla. Cr. 396, 246 P. 1104, we said:

“The only evidence in the case against the defendant was the uncorroborated testimony of B. E. Slagle, who, as shown by numerous decisions of this court, has heretofore been successfully impeached and discredited as a witness.”

And see Phelps v. State, 33 Okla. Cr. 380, 244 P. 453; Gabler v. State, 33 Okla. Cr. 317, 243 P. 981.

In Prochneau v. State, 32 Okla. Cr. 210, 240 P. 1090, he was the prosecuting witness. We said:

“ All good citizens have an interest in the vindication of public justice and maintaining the majesty of the law. It is a matter of common knowledge that the most potent factor of the dishonest dispensation of justice is the production of untruthful testimony upon the witness stand. Generally speaking, a private detective is not overscrupulous in the truthfulness of his testimony, and such evidence should be viewed with caution, as it may not be entitled to very much credence.”

Upon a careful examination of the record we think the trial court erred in refusing to grant the motion for a new trial on the ground that the verdict was contrary to the evidence. For this reason we do not deem it necessary to discuss the other assignments of error. Because the evidence is insufficient to support the verdict, the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


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    TOM THORNHILL v. STATE.
    No. A-6132.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 519.)

      E. W. Snoddy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information filed in the county court of Woods county November 5, 1925, charges that in said county, on the 24th day of September, 1925, Tom Thornhill sold and delivered to one B. E. Slagle, intoxicating liquor, to wit, whisky.

On the trial he was found guilty, and in accordance with the verdict of the jury was sentenced to pay a fine' of $50 and to be confined in the county jail for 30 days. To reverse the judgment, he appeals and assigns numerous errors.

The state relied for this conviction on the testimony of one B. E. Slagle, to the effect that he had lived in Carmen, Alfalfa county, Okla., for about 5 years at that time; that he was not acquainted with the defendant, Thornhill, but on the 24th day of September he was pointed out to him in the town of Waynoka; that later that day he met Thornhill and asked him in regard to buying some whisky from him; that he told him he was from Oklahoma City or Enid or some other place, he doesn’t remember; that Thornhill told him he did not know whether he could get him any liquor or not, but he would look around and see; he told Thornhill he would be at the hotel, that he went to the hotel, and in probably 80 minutes Thornhill drove to the hotel and delivered a pint of liquor to witness, at witness’ room; that no other person was .present at the time the liquor was delivered, nor was any one present and heard the alleged conversation between witness and 'Thornhill; thajfc he gave Thornhill two silver dollars for the liquor; that at the time he was doing undercover work for the city officials of the town of Waynoka, to apprehend bootleggers; that the German restaurant keeper pointed out Thornhill and others to him as people he thought were selling liquor.

As a witness in his own behalf, the defendant testified that he heard B. E. Slagle testify in Enid that he was a professional spotter or undercover man, and heard him so testify in three or four cases; that the next time he saw him was in Lawrence’s cafe, in Waynoka, and the boys began rawhiding him about being a spotter, and Slagle just sneaked away; that he never sold Slagle any liquor of any kind.

Tony Lawrence, the German restaurant keeper referred to by Slagle as the .person who pointed out Thorn-hill to him, testified that he never pointed out any person whatsoever to Slagle, that Slagle came into his restaurant and represented himself to him as Albert Johnson, demonstrator of an invention for Ford cars, and that Slagle gave him a drink of whisky and then asked him if he knew where he (Slagle) could get any liquor.

Twelve witnesses testified that they lived at Carmen and in that neighborhood and knew the general reputation of the witness Slagle in and around that community, and each testified that his general reputation for truth and veracity in the community where he resided was bad.

Upon an examination of the record, we are convinced that the trial court erred in refusing to grant the motion for a new trial on the ground that the verdict was contrary to the evidence.

The judgment of the lower court is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    ANDREW HENDERSON v. STATE.
    No. A-6019.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 518.)
    Wieck & Armstrong, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of transporting whisky, and was sentenced to pay a fine of $50 and to serve a term of 60 days in the county jail.

An officer testified that he saw defendant enter the K-Y rooming house with a package in each pocket. He followed him into the house, where defendant broke the bottles on the floor of the hallway. He arrested defendant and later returned with two other officers, at which time a woman was sweeping up the glass and remains of the broken bottles. The officers further testified the contents of the bottle on the floor looked and tasted like whisky, but none testified that it was in fact whisky. This was the only evidence offered by the state. Defendant testified that he was at the room of a Mrs. Jones, and a Miss Todd was also there, and they asked him to go across the street and buy some near-beer, which he did, and with which he was returning when accosted by the officer. These two women corroborated him. The evidence is weak, but probably sufficient.

The information charges the transporting of corn whisky. Over the exception of defendant the court instructed the jury that, if they believed defendant conveyed any spirituous, vinous, fermented, or malt liquors, or any imitation thereof, substitute therefor, they should find the defendant guilty. This is a variance from the offense charged. A charge of conveying whisky is not supported by proof of conveying malt liquor or an imitation thereof or substitute therefor. The jury may have believed defendant purchased “near-beer” as was testified' to and may have believed this “near-beer” was a substitute for malt liquor. Where an information charges the conveyance of a particular kind of intoxicating liquor, the conveyance must be proven as alleged. It is error in such case for the instructions to permit a conviction by .proof of the conveyance of some different kind of liquor. In 23 Cye. 264, it is said:

“* * * If the indictment charges the sale of a specific kind of liquor by name, not accompanied by general descriptive terms, it must be proved as alleged. * * * [Citing authorities.]”

See, also, Yoather v. State, 5 Okla. Cr. 46, 113 P. 234; Smith v. State, 7 Okla. Cr. 4, 120 P. 1031 ; Moss v. State, 4 Okla. Cr. 247, 111 P. 950.

Where it is uncertain as to the particular kind of . intoxicating liquor that the evidence may disclose, it is proper to charge the different intoxicating liquors in the conjunctive; but, where it is specifically charged as whisky, as in this case, proof of some other kind of liquor constitutes a variance.

The case is reversed and remanded.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    WILLIAM SYNNOTT v. STATE.
    No. A-6030.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 517.)
    Thos. W. Mayfield, J. D. Grigsby, Jr., and J. D. Grigsby, Sr., for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cleveland county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitenitary for 2V2 years.

The record discloses that defendant was appointed guardian for William Dixon, an incompetent, on November 26, 1920, and as such guardian received $1,330 of his ward’s money. He used these funds to purchase in his own name stock in the Norman Mercantile Company, of which company he was president, and in which he already owned a large part of the stock. This purchase of stock took place in December, 1920. The mercantile concern went into bankruptcy in February, 1924, while under the active supervision of defendant. The preliminary complaint was filed February 9, 1925, and the information was filed March 7, 1925. The information charges the embezzlement to have been on “the - day of April, 1924.” In March, 1924, defendant left Cleveland county and after some wandering settled in Chicago, where he was arrested and returned to Oklahoma. Defendant contends that the embezzlement, if any was committed, was completed at the time the ward’s money was invested by defendant in his own name. The question was raised by a requested instruction for a directed verdict assigning the reason that, if the offense was committed as alleged, it was committed more than 3 years .prior to the date of the filing of the complaint, and is barred by the statute of limitations.

At common law there was no limitation upon prosecutions in criminal cases; but a prosecution might be instituted at any time after the commission of a criminal act. Statutes have been generally enacted, however, limiting the time within which prosecutions for crime may be commenced. Limitations are legislative and not judicial, and statutes of limitations are to be given a liberal construction in favor of the accused and against the prosecution. 16 C. J. 222, § 340, note 51; State v. Fulkerson, 16 Okla. Cr. 250, 182 P. 725.

Sections 2441, 2442, and 2443, Comp. St. 1921, fix the time of limitation in criminal cases. They are as follows:

“2441. There is no limitation of the time within which a prosecution for murder must be commenced. It may be commenced at any time after the death of the person killed.
“2442. In all other cases a prosecution for a public offense must be commenced within three years after its commission.
“2443. If when the offense is committed the defendant be out of the state, the prosecution may be commenced within the term herein limited after his coming within the state, and no time during which the defendant is not an inhabitant Of or usually resident within the state, is part of the limitation.”

The statute of limitation by its terms runs from the time the offense is committed until the prosecution is commenced. The only exceptions or condition which will interrupt the period of limitation in the above-quoted statute is in section 2443; i. e., absence from the state. Frequently statutes contain some condition providing the statute shall not be in operation where a defendant conceals himself or is absent from the state, or is a fugitive, or under the other named conditions. Unless the statute contains such exception, the existence of such conditions do not toll the statute. 16 C. J. p. 225, § 344; 8 R. C. L. 133, § 112; Weimer v. People, 186 Ill. 503, 58 N. E. 378; Baschleben v. People, 188 Ill. 261, 58 N. E. 946.

It occurs to us that it would be wise if the Legislature should enact an exception to the limitations above quoted, which should provide that the limitation should run not from the commission of the offense, but from the time of the discovery of the offense in case of embezzlement, larceny by fraud, some forms of forgery, and possibly some other offenses. That, however, is a matter for the Legislature, and not for the courts.

Under the record before us it is clearly apparent that the prosecution was not commenced for more than 3 years after the commission of the act constituting the offense, exclusive of any time defendant was out of the state, and that the action was barred by the statute of limitations at the time the prosecution was instituted.

While we are reluctant to do so, we have no choice but to reverse the case, with instructions to dismiss.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    CHARLES THOMAS v. STATE.
    No. A-6078.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 515.)
    Thomas Norman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction in the district court of Carter county, rendered on the verdict of the jury finding the defendant guilty of felonious possession of intoxicating liquor as charged in the information and assessing his punishment at a fine of $50 and confinement in the penitentiary for the term of one year.

The Attorney General has filed the following confession of error:

“The defendant was convicted in the district court of Carter county, Okla., upon an information charging the felonious possession of intoxicating liquor, in which it was alleged that this was a second offense.
“Before the introduction of any evidence, the defendant filed his motion to exclude the evidence and testimony of the officers obtained by a search of defendant’s home, for the reason that the search was in violation of sections 21 and 30, Bill of Rights, Oklahoma Constitution, and sections 2876-2880, Compiled Oklahoma Statutes 1921; alleging further that the warrant was not issued and procured as provided by law and that neither the affidavit nor search warrant complied with the requirements of the law. The attorney for the defendant further complains that the court erred in permitting the county attorney to prove the reputation of the defendant’s place as being a place where intoxicating liquors might be had, sold, bartered, furnished, or otherwise disposed of. Counsel for the defendant objected to the introduction of this testimony for the reason that no proper predicate had been laid and that the same was incompetent, irrelevant, and immaterial. The attorney for the defendant further complains of the instruction of the court, which instruction complained of is as follows:
“ ‘Gentlemen of the jury, the laws of this state provide that it shall be unlawful for any person in this state to keep in excess of one gallon of spirituous or on gallon of vinous liquor, or any imitation thereof or substitute therefor, nor more than one cask of malt liquor or any imitation thereof, in one’s residence, of course, the provisions of this act shall not apply to that for sacramental purposes, which contain as much as one-half of 1 per cent., measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States.’
“The Attorney General has carefully examined the petition in error and case-made attached, and finds that under the rulings of this court the objections made by the defendant were timely and that the record in this case presents such errors that this court must reverse the case at bar. The affidavit for the search warrant does not describe the place to be searched with any degree of particularity, except that it was in a certain building described as follows: ‘Residence in Carter county,’ and described the .party named Charlie Thomas, at Old Graham, and then follows the description of the place as ‘residence of Carter'county.’
“The search warrant describes the place as ‘- and - street in a certain building described as a one-story building in Old Graham, in Carter county, Okla.’ This description of the location of the place' where it was alleged that intoxicating liquors were being keot is not the same description as that contained in the •affidavit for the search warrant, and, in the opinion of the Attorney General, is not a sufficient description of the location of the building to be searched as is required by the Constitution of Oklahoma and the rulings and decisions of this court.
“The Attorney General further says that the instruction of the court, to which the defendant objected, and to which he duly excepted at the time said instruction was given, has been condemned by this court in Ex parte Wilson, 6 Okla. Cr. 541, 119 P. 596; A. C. Flowers v. State, 8 Okla. Cr. 502, 129 P. 81; and numerous other decisions of this court.
“The Attorney General says that, under the rulings of this court, the reputation of the defendant’s place could not be proven until it had first been established that his place had become a place of public resort. There was no attempt upon the part of the state to prove that this residence had ever been a place where people congregated or a place of public resort; but, on the contrary, the only evidence with reference to the place as a public resort was by one of the officers who testified that it was not a place of public resort.
“Under numerous decisions of this court, this testimony concerning the reputation of the defendant or his residence should not have been permitted by the court, and we call the court’s attention to the following cases: Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Klein v. State, 26 Okla. Cr. 173, 223 P. 201; Gore v. State, 24 Okla. Cr. 394, 218 P. 549 — and the Attorney General says that this court has passed upon this question so often and that this rule has been so firmly fixed by the rulings of this court that further decisions are unnecessary.
“The Attorney General has examined the case-made, which includes the affidavit for search warrant, the search warrant, and the instructions of the court, together with the evidence, and it is the opinion.of the Attorney General that the facts disclosed by such examination make it necessary that the Attorney General confess error herein. It is, therefore, the opinion of the Attorney General that this cause should be reversed and remanded, and if in the judgment of the court, the search warrant and affidavit are insufficient, that this cause should be dismissed.”

We have carefully examined the record in this case and we are clearly of opinion that the confession of error is well taken, both as to the insufficiency of the affidavit and invalidity of the search warrant, and the instruction excepted to.

The judgment of the lower court is accordingly reversed.

EDWARDS and DAVENPORT, <JJ., concur.


text:
    DAVE MYERS et ux. v. STATE.
    No. A-6323.
    Opinion Filed Oct. 29, 1927.
    (260 Pac. 515.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    Edwin Dabney, Atty. G',en., for the State.
   EDWARDS, J.

The plaintiffs in error were convicted in the county court of Oklahoma county on a charge of maintaining a place where intoxicating liquors were kept for the purpose of violating the prohibitory liquor law, and were each sentenced to pay & fine of $50- and to serve 30 days in the county jail.

Before entering upon the trial plaintiffs in error filed a motion to suppress the evidence for the reason that it had been obtained by an unlawful search, which motion was overruled and exceptions saved. The record discloses that certain officers, in the nighttime, went to the private residence of plaintiffs in error and made a search of the premises and of the person of Mrs. Dave Myers, one of the .plaintiffs in error, and found on her person a pint of whisky. The affidavit for a search warrant upon its face states that it is made upon information and belief. It is invalid and the warrant based upon it invalid, and the evidence procured by such invalid search warrant is incompetent. The motion to suppress should have been sustained.

The case is reversed and remanded.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


text:
    WALTER E. FICKLE v. STATE.
    No. A-6159.
    Opinion Filed Nov. 2, 1927.
    (260 Pac. 513.)
    E. B. Arnold and W.-A. Woodruff, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error, Walter E. Fickle, was convicted in the district court of Adair county upon the charge of having committed the detestable and abominable crime against nature by penetration per os, the jury leaving his punishment to be assessed by the court. The court sentenced the defendant to imprisonment in the penitentiary for the term of five years. To reverse the judgment an appeal was perfected by filing in this court on April 5, 1926, petition in error with case-made.

The Attorney General in this case has filed the following confession of error:

“The charging part of the information in this case reads as follows:
“ ‘That Walter E. Fickle in said county and state, on the day and year aforesaid, did, knowingly, willfully, unlawfully, wrongfully, wickedly, and feloniously commit the detestable and abominable crime against nature with certain persons, to wit, Prince Comfort and Harrold Branchcomb, by then and there wilfully, intentionally, and feloniously accomplishing unnatural sexual copulation with the said Prince Comfort and Harrold Branch-comb by him, the said Walter E. Fickle, then and there, at different times, taking into his mouth the penis of each of the said Prince Comfort and Harrold Branch-comb and sucking same until a seminal emission ensued. * * *’
“The defendant interposed a demurrer to the said information, which demurrer read as follows:
“ ‘Comes now the defendant, Walter E. Fickle, and demurs to the information on file herein, and the grounds of his objection to the information are as follows to wit:
“ T. It appears upon the face of the information that more than one offense is charged in the information.
“ ‘II. It appears upon the face of the information that the facts stated in the information do not constitute a single public offense as defined by the statutes of the state of Oklahoma.’
“The trial court overruled said demurrer, to which action defendant excepted.
“The court will note the information charges the defendant with the commission of two separate acts of sodomy on two different persons at different times. It has been repeatedly held by this court that a defendant may be called upon to defend against only one offense at a time and that the information must be definite and certain as to the offense charged and must charge but one offense. Sections 2556 and 2558, Compiled Oklahoma Statutes 1921; Bonitzer v. State, 4 Okla. Cr. 354, 111 P. 980; Tunnard v. State, 5 Okla. Cr. 529, 115 P. 603; Wells v. Terr., 1 Okla. Cr. 469, 98 P. 483; Cochran v. State, 4 Okla. Cr. 379, 111 P. 974.
“Sodomy is defined by section 1867, Compiled Oklahoma Statutes 1921, as the ‘detestable and abominable crime against nature, committed with mankind or with a beast.’
“In the case of Ex parte De Ford, 14 Okla. Cr. 1'33, 168 P. 58, this court held that such definition included ‘copulation between human beings per os as well as per anum.’
“It requires the citation of no authority for the statement that each separate act of copulation constitutes a distinct offense. In this respect the crime does not differ from rape, incest, and other sexual crimes of that nature.
“It follows, therefore, that, where more than one act of copulation is alleged with different subjects at different times in the same count of the indictment or information, the charge is duplicitous. Bonitzer v. State, supra. It was error, therefore, to overrule the demurrer to the information. Bonitzer v. State, supra, and other cases cited.
“This case was prosecuted on the theory that defendant could be tried for and convicted in the same trial for the commission of separate acts of sodomy committed on different individuals at different times. This fact is apparent from the charge, the evidence, the instructions, the verdict and the judgment. Even if the error in overruling the demurrer to the information could have been cured by a subsequent election between the acts of copulation or by a dismissal as to one of such acts, such error w“as not cured by such procedure in this case.
“From the record the Attorney General is convinced that the trial court erred in overruling the demurrer to the information based upon the ground of duplicity of offenses charged. Furthermore, that the record shows that the defendant was tried and convicted of more than one offense in the same trial. This is not permissible under our statutes. Williams v. State, 16 Okla. Cr. 54, 180 P. 559; Gracy v. State, 13 Okla. Cr. 643, 166 P. 422; Montour v. State, 11 Okla. Cr. 376, 145 P. 811.
“The Attorney General is of the opinion, therefore, that this judgment should be reversed, and the cause remanded for a new trial, with instructions that the information be amended to charge but one act of sodomy, so that it can be definitely determined that each and every juror concurred in the conclusion of the guilt of this defendant of some particular offense and based their unanimous verdict upon that offense and that alone.”

Upon an examination of the record and the questions of law involved, we are convinced that the confession of error is well founded.

For the reasons therein stated, the judgment of the lower court is reversed, and the cause remanded, with direction to sustain the demurrer to the information.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WILLIAM MILLER v. STATE.
    No. A-6133.
    Opinion Filed Nov. 2, 1927.
    (260 Pac. 511.)
    E. W. Snoddy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

William Miller was convicted on information charging that in Woods county, September 25, 1925, he “sold and delivered to one B. E. Slagle intoxicating liquor, to wit, whisky.”

On the trial the jury returned a verdict finding him guilty, and fixing his punishment at a fine of $125, and-imprisonment in the county jail for 60 days. From the judgment rendered on the verdict he appeals.

The -errors assigned question the sufficiency of the evidence to support the verdict and judgment, and are based on exceptions reserved to the rulings of the court in the course of the trial.

The defendant was convicted solely upon the testimony of B. E. Slagle, to the effect that his business was that of an undercover man, engaged in then entrapping of violators of the prohibitory laws in different towns of Oklahoma; that on the day alleged he introduced himself to the defendant, told him that his name was Johnson, and asked him. if a man could get any whisky around there; that the defendant said that he did not know, there was plenty of whisky around there, and he might be able to rustle some, and asked him where he would be in 10 or 15 minutes, and he told the defendant that he would be right there by his car by the pool hall; that the defendant left, and came back in about 15 minutes with a pint of liquor, and delivered it to him; that he paid the defendant $2.50 for this pint of whisky; that he had never known the defendant before he went to Waynoka, and had never seen him either before or since this transaction, which took place about 9 o’clock in the evening in front of the pool hall on one of the main streets of Waynoka.

On cross-examination he stated that the restaurant keeper pointed out to him about noon on the 27th day of September, which would be two days after he testifies he bought the liquor from him.

The defendant, as a witness in his own behalf, testified that he had lived on his father’s farm, adjoining the town of Waynoka, for 33 years; that at the time of this alleged transaction he had been under the care of a doctor, and was on crutches, his right leg having been broken; that the only time he ever saw B. E. Slagle was in a pool hall, and there were 7 or 8 persons “ragging” him and calling him a snitch; that he never did speak to Slagle; and that he never at any time sold any liquor to Slagle or to any one else.

Six witnesses, farmers and business men residing in and around Carmen, each testified that the reputation of the witness Slagle for truth and veracity in the neighborhood in which he resided was bad, and no witness was called on the part of the prosecuting witness to sustain his reputation.

The court will take notice of the fact, as shown by numerous decisions of this court, that the witness B. E. S'lagle has heretofore been successfully impeached and discredited as a witness.

After a careful examination of the record, we are satisfied that the jury were influenced by passion and prejudice, and that the evidence is insufficient to support the verdict. This conclusion renders it unnecessary to consider the other questions in the case. Because the evidence was not sufficient to sustain a conviction, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.


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    BEN HUNT v. STATE.

      No. A-6017.
    Opinion Filed Nov. 4, 1927.
    (260 Pac. 512.)

      Cochran & -Wilkinson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McCurtain county on a charge of assault with a dangerous weapon with intent to injure, and he was sentenced to serve a term of 18 months in the state penitentiary.

The evidence is sharply conflicting, but its weight and the credibility of the witnesses was for the jury, who evidently believed the witnesses for the state and disbelieved those for defendant.

The first assignment argued is that the court erred in overruling defendant’s application for a continuance. This application is based in part on the absence from the state of Baker Bates, desired as a witness.' It alleges that he has been out of the state for some 6 weeks, and is fn the state of New Mexico, and would be absent for 6 weeks or 2 months; that defendant had a subpoena issued for him, but it had not been served. It further alleges what his testimony would be. The application further alleges that defendant’s leading attorney is absent, and that defendant is unable to locate him and has been compelled to employ other attorneys not familiar with the facts in the case.

It is a familiar rule, .settled by many decisions of this court, that an application for a continuance is addressed to the sound discretion of the trial court, and unless there is an abuse of such discretion the denial of a continuance furnishes no ground for reversal. The application for a continuance on account of the absence of a witness should show diligence has been used to procure the witness or his testimony, and should disclose the whereabouts of the witness and the likelihood of procuring his attendance if the case should be continued. Gentry v. State, 11 Okla. Cr. 355, 146 P. 719 ; Williams v. State, 17 Okla. Cr. 375, 188 P. 890; Hill v. State, 19 Okla. Cr. 406, 200 P. 253. Diligence requires that where a witness is out of the state and it is not apparent that his absence is merely temporary, his deposition should be taken. Also, the application should show that the witness is not absent by the consent or procurement of defendant. Key v. State, 10 Okla. Cr. 206, 135 P. 950. It should allege that defendant believes the facts that he avers the absent witness would testify to are true. Braught v. State, 17 Okla. Cr. 1, 179 P. 769. It should allege that the testimony of the absent witness would not be cumulative. Cope v. State, 15 Okla. Cr. 437, 177 P. 920; Ashburn v. State, 16 Okla. Cr. 417, 183 P. 521; Williams v. State, supra.

The law favors speedy trials, and the possibility of delay by continuance is so evident that a party seeking a continuance should bring himself within the requirements announced and clearly point out where he has been .prejudiced by failure to grant a continuance on his request. Where this court after an examination of the entire record is of the opinion that the testimony of the absent witness would not change the result, error of the trial court in overruling the application would not be such an abuse of discretion as would require a reversal. Rose v. State, 8 Okla. Cr. 294, 127 P. 873.

The application in this case does not state affiant believes the suggested evidence of the absent witness is true. It does not show his whereabouts other than “in the state of New Mexico.” It does not disclose any basis of fact for the statement that he will be able to have his attendance at the next term. It does not negative that he is absent by the consent or procurement of defendant, nor that his evidence is cumulative. The application is insufficient.

The application presents the further ground that J. N. Fortner, counsel for defendant, who was familiar with the facts in his ease, was absent, and he had not been able to get in communication with him. He was represented by Cochran & Wilkinson, who have fully protected his interests. It has several times been said by this court that an application for a continuance on the ground of absence of leading counsel is properly denied where a defendant is duly represented by his other counsel. Payne v. State, 10 Okla. Cr. 314, 136 P. 201. Brooks v. State, 32 Okla. Cr. 72, 240 P. 136.

Upon the record, it a.ppears that there was no error in denying the application for a continuance. There is abundant evidence to sustain the verdict and judgment.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


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    WEBB EASTERWOOD v. STATE.
    No. A-5888.
    Opinion Filed Nov. 4, 1927.
    (260 Pac. 789.)
    Roland & Robinson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.,
   EDWARDS, J.

The plaintiff in error was convicted in the county court of Carter county on a charge of Having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $250, and to serve six months in the county jail.

The judgment was entered on May 16, 1925, and the record for appeal was lodged in this court on Nov. 9, 1925. An appeal from a conviction for a misdemeanor must be filed in this court in 60 days, unless the court makes proper orders of extension. The extreme limit in which an appeal for a misdemeanor can be filed in this court is 120 days. Section 2808, Comp. St. 1921. When an attempted appeal is not filed in this court until the expiration of 120 days, this court acquires no jurisdiction.

The appeal is dismissed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


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    GUY FAULK v. STATE.
    No. A-6009.
    Opinion Filed Nov. 4, 1927.
    (260 Pac. 788.)
    Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The .plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of selling whisky, and was sentenced to pay a fine of $50, and to be confined in the county jail for a period of six months.

The evidence is that two deputies of the sheriff’s office went to the residence of defendant, and one of them waited outside while the other bought a half gallon of whisky. The defendant offered no testimony. The defendant contends that there is no proof of venue. The record sustains this contention. There is no proof whatever that the offense occurred in Oklahoma county, and no evidence from which it may be inferred. The only reference to venue is that the occurrence took place “north of Edmond.” There must be some proof of venue to sustain the conviction. Groh v. State, 30 Okla. Cr. 396, 236 P. 435.

The case is reversed and remanded.


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    W. C. WELCH v. STATE.
    No. A-5852.
    Opinion Filed Nov. 4, 1927.
    (260 Pac. 787,)
    Morgan, Osmond & Morgan, for plaintiff in error. Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county of having the unlawful possession of whisky, and was sentenced to pay a fine of $500, and to serve a term of six months in the county jail.

The judgment in this case was rendered on August 19, 1925, and at that time the court allowed 30 diays to make and serve a case-made for appeal. This allowance of time expired on September 18th (section 884, Comp. St. 1921; Hawkins v. State, 5 Okla. Cr. 276, 114 P. 356) without the case-made having been served, and without any order of extension having been made. On September 19th, the thirty-first day, an order of extension was made. No attempt was made to comply with the provisions of the latter part of section 789, Comp. St. 1921, whereby, in case of accident or misfortune which could not reasonably have been avoided by the party appealing, and upon notice to the adverse party, the court or judge may make an order extending the time after the expiration of the time fixed in the previous order. Unless this provision of the law is complied with, an order extending the time, made after the expiration of the time originally allowed, is a nullity, and a case-made served under the authority of such invalid order of extension will not give this court jurisdiction. It is, of course, obvious that, if an order of extension may be made one day after the expiration of the time originally allowed, it may be made any number of days after, if within the period fixed by law for taking an appeal. It is well settled that an appeal to the Criminal Court of Appeals may be taken by a defendant as a matter of right from any judgment rendered against him, but the manner or time in perfecting such appeal is a proper matter for legislative control, and the appeal must be taken in the manner prescribed by law.

The case-made not having been served within the time originally allowed, nor within the time fixed in any valid extension of time, it was served too late.

The attempted appeal is dismissed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


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    STATE v. ELISHA BROOKS.
    No. A-5959.
    Opinion Filed Nov. 4, 1927.
    (260 Pac. 785.)

      Edwin Dabney, Atty. Gen., and Geo. W. Partridge, Co. Atty., for the State.
    A. V. Dinwiddie, for defendant in error.
   EDWARDS, J.

This is an appeal by the state from a judgment entered by the county court of Logan county sustaining a plea of former jeopardy and discharging the defendant, Elisha Brooks. The record discloses the following state of facts: An information was filed in the county court charging defendant, Elisha Brooks, with a violation of the prohibitory liquor law. He was arraigned on this information and entered his plea of not guilty. Thereafter the county attorney filed an amended information and after several continuances, the case came on for trial. Both the state and defendant announced ready and the court ordered a jury impaneled to try the case. Thereupon counsel for defendant asserted that defendant had never been arraigned nor had pleaded to the amended information and objected to the impaneling of the jury; the objection was by the court overruled. The jury was impaneled and sworn, the opening statement,of the county attorney made, and the opening statement of counsel for defendant reserved. A witness was called and sworn and after preliminary questions counsel for defendant objected to any evidence for the reason that defendant had not been arraigned on the amended information, which was overruled. The county attorney then stated that in view of defendant’s contention he would ask that defendant be given an opportunity to plead and then moved the court to continue the case and asked to have defendant arraigned, and, upon a suggestion by the court, moved the court to discharge the jury from further consideration of the case and to continue the case for the term and to arraign the defendant upon the amended information. Counsel for defendant objected for the reason that the jury had already been impaneled and sworn. The court sustained the motion of the county attorney. The jury was dismissed, tc which defendant excepted. Thereafter defendant inched the court to discharge the defendant. The motion dees not appear in the record, but we gather, on the theory that defendant had been put in jeopardy by the impaneling and swearing of the jury and calling of the witness, that the discharge of the jury operated as an acquittal of defendant. The motion was sustained. The state thereupon prosecuted this appeal.

The Bill of Rights of the state Constitution, § 21, art. 2, provides: “* * * Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” This section of the Constitution has frequently had the attention of the courts. See Stout v. State ex rel. Caldwell, 36 Okla. 744, 130 P. 553, 45 L. R. A. (N. S.) 884, Ann. Cas. 1916E, 858; Rupert v. State, 9 Okla. Cr. 226, 131 P. 713, 45 L. R. A. (N. S.) 60; Ex parte Myers, 12 Okla. Cr. 575, 160 P. 939.

In considering this section of the Constitution, this court has stated the conditions upon which jeopardy attaches as: First. Defendant must be put upon trial before a court of competent jurisdiction. Second. The indictment or information must be sufficient to sustain a conviction. Third. The jury must have been impaneled and sworn to try the case. Fourth. After having been impaneled and sworn it must have been unnecessarily discharged by the court. Fifth. Such discharge of the jury must have been without the consent of the defendant, Loyd v. State, 6 Okla. Cr. 76, 116 P. 959.

If all these conditions concur the discharge of the jury constitutes jeopardy and operates ;as an acquittal of the defendant and he cannot again be placed upon trial for the same offense. Applying these conditions to the record before us, the county court of Logan county had jurisdiction of the offense charged and of the person of defendant. The information sufficiently charged an offense. The jury was impaneled and sworn and was then unnecessarily discharged by the court over the objection of defendant. The discharge necessarily operates as an acquittal. It is settled by many decisions of this and other courts that jeopardy attaches from the time the jury is sworn. 8 R. R. L. 138, § 120F.; Nichols v. Territory, 3 Okla. 622, 41 P. 108; Caples v. State, 3 Okla. Cr. 72, 104 P. 493; Penner v. State, 6 Okla. Cr. 718, 119 P. 1132; State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; Schrieber v. Clapp, 13 Okla. 215, 74 P. 316.

There was, we think, no merit in the demand of counsel for defendant that the state could not proceed to trial until an arraignment was had, for it appears by the transcript that defendant had answered ready for trial without demanding an arraignment or making known that he had not been arraigned. Such announcement is equivalent to entering upon the trial as if he had been arraigned, and was a waiver of his right to further arraignment. Wood v. State, 4 Okla. Cr. 436, 112 P. 11; Littlejohn v. State, 32 Okla. Cr. 401, 241 P. 210, and authorities there cited. The county court was in error in sustaining his objection and in sustaining the motion of the county attorney to discharge defendant after he had announced ready for trial. This, however, does not change the legal aspects of the question, since the jury was unnecessarily discharged after the trial had commenced and after jeopardy bad attached. If defendant had consented to the discharge of the jury, or the jury had been discharged on his motion, a different situation would be presented. Under the record before us the plea of jeopardy was well taken. And, since the plea presented a question of 'law only, it was not necessary to submit it to the jury. Loyd v. State, supra.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


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    J. H. TAULBEE v. STATE.
    No. A-5712.
    Opinion Filed Nov. 4, 1927.
    (260 Pac. 783.)
    James A. Embry, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Lincoln county on a charge of fraudulent conveyance of real property, as defined toy section 2177, Comp. St. 1921, and was sentenced to pay a fine of $500.

The judgment was rendered on May 16, 1925. The appeal was lodged in this court on July 10, 1925. No briefs have been filed in support of the appeal, and no appearance for oral argument was made :at the time the ease was submitted.

Where an appeal is prosecuted to this court, and no brief is filed, and no appearance for oral argument made, this court will examine the record for jurisdictional or fundamental errors, and will read the evidence to ascertain if it reasonably supports the judgment. We have examined the record, and no jurisdictional or fundamental error is apparent; the evidence sustains the judgment.

The case is affirmed.


text:
    ELZIE HUFFMAN et al. v. STATE.
    No. A-6130.
    Opinion Filed Nov. 4, 1927.
    (260 Pac. 782.)
    E. W. Snoddy and J. R. Murrow, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Woods county on a charge of transporting liquor, and were each sentenced to pay ,a fine of $50 and to serve a term of 30 days in the county jail.

On the date charged, the defendants, near the town of Waynoka, were in a Ford car, in the back of which was a case or box described as a pop case or a near'beer case, having a lid and handholds for carrying it, in which were 12 or 15 bottles of what is described as “stuff,” “beer,” and “choc beer.” The town marshal of Waynoka and another officer searched the car and arrested defendants; They had no search warrant, and timely objection was made to the evidence as having been obtained by an unlawful search. Mr. Wright, town marshal, testified, in substance, that he, with the others, searched the car, though he had no search warrant; that the box was “the kind of a box they carry pop around in”; that he saw the .pop case in the back of the car with some one sitting on it. They ordered the person sitting on it to get off, and then they could see bottles through the handhold. He suspected it contained liquor, but did not know it. An officer without a warrant may arrest a person for a misdemeanor committed in his presence, and may search the person and immediate surroundings of such person for instrumentalities used in the commission of crime, but may not arrest on the mere suspicion that a misdemeanor is being committed. In a prosecution for transporting intoxicating liquor, evidence obtained by a search of defendant’s automobile without a search warrant, or not as incident to a legal arrest, either with or without :a warrant, is inadmissible, as in violation of article 2, § 30, state Constitution. Combest et al. v. State, 32 Okla. Cr. 47, 239 P. 936; Thomas et al. v. State, 32 Okla. Cr. 57, 240 P. 133; Britton v. State, 34 Okla. Cr. 391, 246 P. 666.

Where an officer sees a person in the ;act of transporting whisky, he may arrest such person and seize the liquor so being transported. Bullington v. State, 38 Okla. Cr. 214, 259 P. 876. In the Bullington Case the accused was seen transporting whisky in an automobile in a glass container. It was argued that the officer could not be sure the contents of the container was whisky until a search was made. This court held that seeing the whisky was sufficient evidence of an offense committed in the presence of the officer and the arrest and search legal. The facts in' that case are very different from those in the case at bar. A suspicion of the contents of a closed wood or metal box or case is not the same as seeing the contents of a transparent glass container. If an officer may search an automobile when he sees a closed box in it he may search it upon seeing a suit case, grip, or any other kind of package or baggage. Such unauthorized search is, in violation of the provisions of the Bill of Rights (article 2, § 30, state Constitution), and evidence' obtained by it, upon timely objection, should have been excluded.

The case is reversed and remanded, with instructions to dismiss.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


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    HENRY MARTIN v. STATE.
    No. A-6797.
    Opinion Filed Nov. 5, 1927.
    (260 Pac. 780.)

      See, also, 36 Okla. Cr. 312, 254 P. 1118.
    Bowling & Farmer, Ben F. Williams, and James Mathers, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The_plaintiff in error, Henry Martin, was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary for the term of 25 years upon an information charging that in Garvin county, on the l'8th day of September, 1926, he did kill and murder one George Carlton by shooting him with a Winchester rifle. From the judgment rendered on the verdict on the 2d day of May, 1927, an appeal was perfected by filing in this court on October 31st a petition in error with case-made.

Since the appeal was taken, the plaintiff in error departed this life, as shown by the motion of his counsel of record averring “the fact that Henry Martin, the plaintiff in error, was shot and instantly killed in Pauls Valley, Okla., November 2, 1927,” which motion is duly verified.

In a criminal prosecution, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death, :and, where it is made to appear that the plaintiff in error has died pending the determination of the appeal, the cause will be abated.

It is therefore considered, adjudged, and ordered that the proceedings in the above-entitled cause do abate; ■cause remanded, with direction to the trial court to enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.


text:
    OOCHE POWELL v. STATE.
    No. A-6326.
    Opinion Filed Nov. 5, 1927.
    (260 Pac. 786.)
    D. M. Battenfield, W. M. Hall, H. Jennings, and Mack R. Shanks, for .plaintiff in error.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and N. B. Johnson, County Atty., for the state
   PER CURIAM.

The plaintiff in error, Ooche Powell, was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitential for a term of 4 years, upon an information charging that in Rogers county, on the 19th day of April, 1923, he did kill and murder one James P. Haggerty, by shooting him with a pistol. From the judgment rendered in pursuance of the verdict February 5, 1926, an appeal was perfected by filing in this court on July 28, 1926, a petition in error with case-made.

Since the appeal was taken and after the final submission of the cause at this term of court, the plaintiff in error departed this life, as shown by the statement of N. B. Johnson, county attorney of Rogers county, having been killed in an automobile accident.

In a criminal .prosecution the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that the plaintiff in error has died pending the determination of the appeal, the cause will be abated.

It is therefore considered, .adjudged, and ordered that the proceedings in the above-entitled cause do abate, .cause remanded with direction to the trial court to enter its appropriate order to that effect.


text:
    JASPER BUTTS v. STATE.
    No. A-5941.
    Opinion Filed Nov. 12, 1927.
    (260 Pac. 1069.)
    McCollum & McCollum, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The .plaintiff in error was convicted on information charging that in Pawnee county, on March 14, 1925, he did convey and transport one pint of whisky from a place unknown to the sidewalk in front of the Blue Goose Restaurant in the city of Pawnee; the jury leaving 'the punishment to the court. Motion for new trial was filed and overruled, :and he was sentenced to pay a fine of $1'50 and to .confinement in the county jail for 30 days. From the judgment he appeals.

The only question presented is whether the evidence was sufficient to sustain the verdict.

The undisputed facts shown by the evidence are that Harry Thompson, a policeman, saw the defendant on the street of Pawnee fall down once or twice, and arrested him for being drunk, and, upon searching the defendant, found a bottle of whisky, about a pint. The defendant did not testify.

It is the settled law that an officer without a warrant may arrest a person for a misdemeanor committed in his presence, and may search the person arrested for instrumentalities used in'the commission of crime.

Upon the record before us we are convinced that the verdict is amply supported by the evidence, that no error prejudicial to the substantial rights of the defendant was committed on the trial.

The judgment is accordingly affirmed.

EDWARDS’ and DAVENPORT, JJ., concur.


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    WILEY U. LYNN v. STATE.
    No. A-5700.
    Opinion Filed Nov. 12, 1927.
    (260 Pac. 1069.)

      Mathers & Renegar, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was adjudged by the district court of Seminole county to be guilty of a direct criminal contempt and was sentenced to serve a term of 90 days in the county jail.

The record discloses: That on May 21, 1925, plaintiff in error was on trial in said district court, before a jury, charged with murder in the shooting and killing of William Tilghman. That the tension was high both on the part of those interested in the prosecution and in the defense. That under these conditions plaintiff in error came into open court with a loaded pistol on his person and dropped the same in the presence and sight of the jury and the court. Thereafter plaintiff in error was brought before Hon. Frank Mathews, trial judge, the circumstances stated to him by the court, and he was given an opportunity to be heard. His counsel then stated to the court that he had directed plaintiff in error to bring the pistol into court to demonstrate, and that it had dropped out of the waistband of plaintiff in error’s pants accidentally, and he apologized to the court. The explanation was not satisfactory to the trial judge, who said:«

“* * * The Court: I can’t accept the explanation and statement of the counsel. If counsel had told him to bring the pistol, it wouldn’t excuse — would hardly extenuate — an experienced man like himself, on trial for his life, and the attorneys here are bound to know that he ought not to come into this court, under the conditions, armed. If he was told to bring the pistol here, he ought to have brought it and disposed of it. At least, he ought not to have come in here with it loatled. The only conclusion I can draw was that he was already principal in one tragedy, and was willing and ready to enter into another. I couldn’t see any extenuating explanation there. The tension in this court room was high upon both sides, and to think that upon a trial for his life like he was, in the crowded court room, tension high upon both sides, that he should stalk into the court with a' sixshooter upon his person is something I wouldn’t believe. I heard it drop, but I paid little attention to it. The thought struck me first that it was a pistol, but I thought no one in the world would come in the court rQom with a gun. No; I concluded it was a knife. I couldn’t believe he would be so bold, so foolish, as to come in the court with a pistol. So I dismissed it from my mind. It was stated to me afterwards that it was a pistol that he dropped on the floor. The court is still' of the opinion he was in contempt of court, and I so hold. You may make your record as you see fit. * * *”

Plaintiff in error first argues that the judgment should be reversed for the reason that no complaint was filed in said cause and the court was without jurisdiction, and for the further reason that the evidence is unsufficient to sustain the judgment.

Contempts are classified and divided as civil and criminal contempts, and are further classified as direct and indirect contempts. Sections 1697, 1698, and 1699, Comp. Stat. 1921. A civil contempt consists in disobeying some jurisdictional order made in the interests of another party to a .proceeding. A criminal contempt consists of acts disrespectful to the court, or obstructive to the administration of justice, or calculated to bring the court into disrepute.

Direct contempt consists of disorderly or insolent behavior committed during the session of the court and in its immediate view and presence. Indirect contempt consists of willful disobedience of any process or lawful orders made by the court, or resistance to the execution of legal process. Section 1697, Comp. Stat. 1921, supra; Gudenoge v. State, 2 Okla. Cr. 110, 100 P. 39; Blanton et al. v. State, 31 Okla. Cr. 419, 239 P. 698.

It is apparent that the court held and adjudged the action of plaintiff in error to be a direct criminal contempt. That he was fully warranted in so holding is evident. The trials of criminal cases in courts of justice are to adjudicate rights according to the orderly processes of the law. Instances are on record where courts have been the scene of serious affrays. Persons on trial, their enemies, or their friends have made the court room a battle ground. . That an accused person on trial-charged with the highest crime known to the law, in a tense atmosphere, should boldly come into open court with a loaded pistol on his person and permit it to fall in the presence of the court and jury is an insolent and defiant contempt of court, and justice requires that the offender be subjected to the penalties of the law.

For a direct criminal contempt committed in the immediate view and presence of the court, it is not necessary that any formal charge be made in writing, nor any process issued. It is only required that punishment shall not be imposed until the contemnor shall have an opportunity to be heard. Section 25, art. 2, Constitution. That was done in the case before us. Since the court acts upon view and hearing, no witness need be sworn nor formal evidence taken. Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719; Emery v. State, 29 Okla. Cr. 29, 232 P. 128; Blanton et al. v. State, supra.

No reason for disturbing the judgment and sentence of the court is apparent.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.