text:
    ONEY KNIGHT v. STATE.
    No. A-7464.
    Opinion Filed Nov. 15, 1930.
    (295 Pac. 409.)
    J. P. Crawford, J. D. Crawford, and U. G. Winn, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of murder and sentenced to life imprisonment in the state penitentiary. Motion for new trial was filed, considered, overruled, and exceptions saved, and the case appealed to this court.

The testimony on behalf of the state in substance shows that on the 2d day of April, 1928, Alfred Jackson was killed, and defendant was charged with the killing. The testimony of the state tends to show that on the day prior to the killing at night the defendant and deceased had been together, and had driven to Coalgate and other places, where it is claimed they drank whisky and beer; late in the evening they were at Oentrahoma; the next morning the defendant drove to the home of Mr. Rowe, and stated to some member of the family he had killed a man; when he left the Rowe home, he was accompanied by Mamie Rowe, a daughter of Mr. Rowe; later the daughter returned home with a brother-in-law of the defendant, and the defendant was arrested charged with the murder of the deceased Alfred Jackson.

The defendant testified in his own behalf and admitted he was with the deceased during the day, giving in detail the places they went and where they secured drinks; then testifying some stranger was with them, and that they finally drove from place to place until they reached the schoolhouse where the remains of the deceased were found in the storm cellar, and stated:

“The deceased got out of the car and took me and started toward the cellar, having hold of me with his left hand, with a gun in his right hand, and when we got to the cellar door the deceased told me he was going to1 put me in the cellar where I would never come out; we got into a scuffle and I got hold of the hand of the deceased and twisted it around and the pistol was discharged, and the deceased fell into the cellar; the strange man, with a gun on me, told me to leave at once and get out of the country and not to come back.”

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. . The only error it is deemed necessary to consider is the ninth assignment, -which is as follows:

“Irregularities committed in the trial of said cause on the part of Honorable P. L. Gassaway, district judge of the 26th Judicial District, of the state of Oklahoma, in which the defendant was tried, in this, to wit:
“A. That the said P. L. Gassaway, after having voluntarily disqualified himself in the trial of this case proceeded to and presided in said cause by causing the jury to be sworn and excusing a number of the jury for reasons suggested by members of the jury, before surrendering the chair to Honorable Arthur G. Sutton, special district judge, assigned to try this defendant.
“B. That because the said P. L. Gassaway, during the examination of the defendant and during the trial of this defendant came into the court room and set with counsel for the state and was in frequent communication and consultation with the counsel for the state during the trial of said cause and during the introduction of the state’s testimony, against this defendant.
“C. That the said P. L. Gassaway, as testified by him upon cross-examination when introduced as a witness for the state, aided, abetted and assisted the state’s attorney and in every way participated in the prosecution of this defendant and was in frequent communication with the counsel for the state and with the deceased relatives and immediate members of the deceased family. And was so aiding, abetting and assisting counsel for the state in the selection of the jury, to all of which action of the district judge, P. L. Gassaway, was contrary to law, prejudicial to the rights of the defendant and prevented this defendant from having a fair and impartial trial.”

Judge P. L. Gassaway, who was the regularly elected, qualified, and acting district judge of the district comprising Goal county, certified his disqualification, and Arthur G. Sutton was assigned as special judge to try the case. In tbe trial of the case Judge P. L. Gassaway was called as a witness on behalf of the state, and the defendant objected, for the reason that Judge Gassaway was the regular district judge for the district in which the case was being tried, and that it was improper for the judge to testify in the case, that the judge had also taken part in the trial of the case, and for that reason the defendant did not have a fair and impartial trial.

The record shows that Judge Gassaway was called as a witness on the application for change of venue, and testified he believed the defendant could have a fair and impartial trial in Coal county. Later he was called as a rebuttal witness. That part of his testimony that it is deemed necessary to set out in this (pinion is as follows:

“I reside at Coalgate, Okla.; have resided there for 14 years; I am district judge of this judicial district at this time; I knew Alfred Jackson, he was commonly known as Jack Jackson; had known him intimately for about 12 years; I visited his grave last night; Dr. Cody, of Centra-homa, Butch Jackson, Tom Jones, a gentleman named Youngblood, and two other men whose names I can’t recall ; with the assistance of these men we opened the grave, and opened the casket, and Dr. Cody removed the bullet from the head of Jack Jackson; his body had been embalmed and was in a good state of preservation with the exception of some water in the casket; I recognized the body as being the body of Jack Jackson; Elmer Sherill and another gentleman, whose name I can’t recall, and myself assisted Dr. Cody; when Jackson’s skull was opened we found the bullet; I have the bullet now; the bullet is in .the same condition it was when taken from the skull of the deceased with the exception that I washed it off; there were particles of brain clinging to it when taken from the skull.”

The bullet was offered in evidence, and the defendant excepted, for the reason, first, that it was proper evidence in chief, and that the defendant had closed his evidence and this evidence should have been introduced in chief; second, that it "was not proper rebuttal, did not prove or disprove, or tend to prove or disprove, any material fact proven by the defense in the case; and, third, for the further reason that the action taken on the part of the state in having the body of the deceased raised and the bullet extracted, as we are informed and verily believe, was done without an order of the court and without the knowledge of the defendant in this case. The objection of the defendant was overruled, and defendant excepted.

On cross-examination the witness gave the following testimony:

“Q. Judge, have you ever — Are you a practicing physician? A. No, sir; I am not.
“Q. Have you ever had any special training in surgery? A. I have not.
“Q. You hold no diploma from any medical school as a physician or surgeon? A. I certainly do not.
“Q. And, Judge G-assaway, I believe you stated you are the present regularly elected, qualified and acting district judge of this district? A. I am the district judge of this district. However, I am not acting in this case.
“Q. I understand. But you are the regular district judge? A. Yes, sir.
“Q. And you have been present during the trial of this case? A. Yes sir, I have. I was subpoenaed here by the defendant.
“Q. You were subpoenaed here by the defendant. By the state, too, weren’t you? A. No, sir; I wasn’t.
“Q. If the record shows you were subpoenaed by the state, it was an error? A. There has been no subpoena served on me by the state. The record might show that. I don’t know.
“Q. You were not used as a witness by the defendant? A. No, sir.
“Q. And you are by the state? A. Yes, sir.
“Q. You have been present in the court room during the trial of this case? A. Yes, sir; I have.
“Q. You have been in consultation — in conference, from time to time with the counsel for the state? A. I have.
“Q. And with the deceased’s relatives? A. Absolutely, sir.
“Q. And I will ask you to state who it was that suggested the taking up of the body of the deceased? A. I did..
“Q. You suggested it. To whom did you suggest it? A. I suggested it to Judge Tries.
“Q. Judge Tries is the special assistant prosecution in this case? ' A. Yes, sir.
“Q. And at your suggestion, it was agreed that the body should be taken up and that the bullet, if any, should be extracted? Yes, sir.
“Q. And you went with the other members: — gentlemen mentioned by you, to take up the body? A. Yes, sir; I did.
“Q. And you performed the acts just related by you in taking the bullet out? A. Yes, sir.
“Q. And you are, therefore, interested in the prosecution of this case? A. I certainly am.
“Q. You are? A. Yes, sir.
“Q. You have been doing what you could, in a private capacity to bring about and procure the conviction of the defendant? A. I have done what any good citizen would have done under like circumstances.
“Q. I am not asking you for an argument, Judge. A. I am answering your question.
“Q. I will ask you if you have done what you could, in a private capacity, to procure his conviction? A. I have.
“Q. You have an interest in this case? A. I have.”

The record shows that Judge P. L. Gassaway called the regular panel of the jury for the term at which this defendant was tried, and impaneled the jury for the term, and discharged some of the members summoned to serve as jurors, and then vacated the bench, and Special Judge Sutton called the defendant’s case for trial. It further shows that Judge Gassaway was disqualified to sit in the trial of the case, and, after he filed his disqualification, he then assisted the prosecution in the trial of the case, remaining in the courtroom the greater part of the time consulting with the state’s attorneys trying the case; and. suggested to the special counsel in the prosecution that the body of the deceased be exhumed and the bullet extracted, and then testified in rebuttal.

In Roddie v. State, 19 Okla. Cr. 68, 198 Pac. 342, J. W. Bolen, the regular district judge, was asked the following questions and gave the following answers:

“Q. During the progress of the trial did you take any active part in it? A. Not so very active. I did a few things, not very many.
“Q. Now when the jury was drawn for the trial of this case, they were summoned to be here on Monday morning? A. Yes, sir.
“Q. At which time you opened court and discharged the jury? A. Until Tuesday.
“Q. Did you participate in the trial to the extent of assisting in the selection of the jury? A. I made some suggestions.
“Q. Did you write (producing a note which read as follows) : Lee Nettles and John Whitaker are good friends of John Ralls and will never believe he fired a shot? A. Yes, sir.”

This court held the action of Judge Bolen was reversible error.

Section 4093, C. O. S. 1921, is as follows:

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

By the provisions of the statute the law aims, as far ¡as possible, to give the accused a trial that shall not only be fair but free as may be from any suspicion or partiality ■or undue influences.

In order to arrive at a correct understanding of the meaning of the statute prohibiting the judge of any court •of record from practicing law in this state, we are privileged to inquire as to' the nature and character of the >evils it was intended to prevent. It is apparent that one ■of the objects of the adoption of the statute was to separate the judge personally, as well as officially, from all that manner of life so calculated to destroy impartiality of judgment and balance of temper which, may and does sometimes influence the lawyer. But this does not appertain altogether to the interest of the public, and, if it were all, it could scarcely be considered grounds for a reversal of the judgment against the defendant, but this we think is not all of it, but, as contended by the defendant’s counsel, the known official position of the judge, and the general confidence reposed in the personnel of the judge by the masses, is such as to make his words and actions of far greater weight than the words of men occupying a merely private or professional situation.

It is quite true the official position would not have any tendency to render the opinions or argument of counsel intrinsically any more sound or plausible, but, when they were addressed to the jury, or the jury saw the interest the regular judge was taking in the trial of the case on behalf of the state, whose members were accustomed to receiving and obeying the instructions of the judge, it is not unreasonable to suppose that circumstances may, insensibly in the minds, have given to them additional force and influence. Such an influence even the best juror would have found it sufficiently difficult to be on guard against; and quite as difficult, perhaps, as they would to throw off or lay aside such preconceived opinions of the merits of the case as would have disqualified them as jurors. It cannot be said, therefore, that this is a matter of indifference to the person on trial. It is altogether easily to be conceived that the same thoughts were reasonably in the minds of the framers of the statute. We think that any other theory would be a dangerous one to approve and put into practice. We have no doubt that whatever connection with the trial is forbidden by the statute on the ground of public policy the party concerned may except to, and that he has the right to insist upon his exception where it has reference to a breach of a statute enacted for the direction of the highest officer of justice as of one for the lowest; the correctness of the motive and high standing and upright character of the officer concerned cannot he considered on such an exception and consequently be an answer to it. There can scarcely be any doubt that public policy forbids a judge to practice law, or to assist, or counsel, to appear, or take part in any way in the trial of the case. The impropriety of a judge leaving the bench and appearing as counsel in a criminal case on trial in his own court, or aiding, suggesting, or advising counsel in charge of the prosecution, is perfectly apparent, and could not do otherwise than prejudice the substantial rights of the defendant. A similar question to the one in this case was in Roddie v. State, supra, and in Lilly v. State, 7 Okla. Cr. 284, 123 Pac. 575, Ann. Cas. 1914B, 443, in which this court said:

That “when the judge of a court of record vacates the bench and prosecutes a person charged with crime in a court over which he presides and before a jury drawn and impaneled by him, a judgment of conviction had under such circumstances will be reversed.”

In the view we take of this record it is not necessary to consider the other errors assigned. The question already discussed is sufficient to dispose of the appeal.

From a careful examination of the whole case, and for reasons hereinbefore stated, we are clearly of the opinion that the defendant did not have that fair and impartial trial to which he is entitled under the law.

The judgment of the trial court is therefore reversed, and a new trial awarded. The warden of the penitentiary will deliver the defendant to the sheriff of Goal county for such further proceedings as may be determined by the district court of said county.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    FRANK MILLER v. STATE.
    No. A-7094.
    Opinion Filed Nov. 15, 1930.
    (295 Pac. 403.)

      Lydick, McPberren & Jordan, Neal Maurer, H. L. Fogg, and Roberson & Roberson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county of the crime of rape in the first degree, and his punishment fixed by the jury at imprisonment in the penitentiary for 15 years.

The evidence of the state was that the prosecuting witness, Virginia Miller, was the foster daughter of the defendant, having been taken into the Miller home when she was about eight years of age; that about a year after she was taken into defendant’s home he began a course of familiar conduct with her, and that this continued from that time until about November, 1926, when defendant had sexual intercourse with her, and thereafter continued such intercourse until May, 1927. The last act of intercourse, which took place in May, was the one upon which the state relied for conviction.

The defendant denied any act of sexual intercourse or improper conduct with the prosecuting witness and sought to show that she was a “nymphomaniac” and was incapable of speaking the truth. After the jury was impaneled and when the state called the prosecuting witness, Virginia Miller, objection was made to ber competency as a witness, because she was incapable of knowing or testifying to the truth. In the absence of the jury the court heard a large number of witnesses, including some of the leading physicians of the state who had had the prosecuting witness under personal observation, and upon this evidence found the witness was competent to testify. Defendant excepted to the ruling of the court upon the competency of the witness and announced that he would call witnesses to testify before the jury to the same state of facts for the purpose of effecting the credibility of the witness, and in the trial of the case he called a large number of lay witnesses, who testified from their acquaintanceship and association with the prosecuting witness to a state of facts tending to show the prosecuting witness to be untruthful and guilty of such depraved moral practices as to make her evidence unworthy of belief. Defendant also called a large number of the leading physicians of the state, who, in answer to a hypothetical question based upon the state of facts testified to by the lay witnesses, expressed the opinion that the prosecuting witness was a nymphomaniac, and that because of the diseased condition of her mind she would imagine that defendant had had intercourse with her and would testify to that fact, but it would not be true.

In rebuttal the state called a large number of lay witnesses, including school teachers, Sunday school teachers, neighbors, and friends, who testified from an intimate knowledge of the private life of the prosecuting witness that she was a normal girl, having the normal habits and disposition of a girl of her age, and that they had never observed any of the habits or immoral conduct testified to by the witnesses for the defendant. The state also called a number of leading doctors of the state, including Dr. Griffin, superintendent of tlie hospital for the insane, at Norman, who testified that they had personally observed the prosecuting witness and examined her over a period of some time and had applied to her the usual mental test used by the medical profession, and that the prosecuting witness was a normal child, and not a nymphomaniac, and was capable of testifying as a witness.

Thereupon the court made the following finding:

“The Court: Within a period of less than 60 days, the court had before it on the former trial of this case, at which time the testimony referred to was submitted to the court upon the question of competency of the witness Virginia Miller and she was also upon the witness stand in the trial of the case, herself, before the jury and after hearing all the testimony and observing the conduct and demeanor of the witness Virginia Miller, in giving her testimony, the court is convinced that she is not tainted with any mental disability whatever and that she is a competent witness.”

The state argues that this evidence was all inadmissible; that, the court having determined the competency of the witness, it was error to- permit the defendant to introduce the same evidence and permit the jury to- consider the same in determining the credibility of the witness. This court had this question under consideration in the case of Hyde v. State, 26 Okla. Cr. 69, 221 Pac. 787, and there said:

“Where objection is made to the competency of a witness to testify on the ground of mental unsoundness, it is the province of the trial court to- determine the witness’ competency, and its decision will not be disturbed unless a clear abuse of discretion is shown by the record. * * *
“In a prosecution for rape, where it is alleged that the female was incapable through unsoundness of mind of giving legal consent, after the court determined that the prosecutrix is competent to testify as a witness, the credibility of the y.hr.ess immediately becomes a question to be determined by the jury. * * *
“Incapacity to give legal consent to the commission of an act of carnal intercourse does not necessarily imply incapacity to thereafter correctly and truthfully narrate the facts constituting the commission of the act.”

In the case at bar the trial court did give the defendant unlimited opportunity to destroy the credibility of the prosecuting witness by the introduction of this evidence, and he cannot complain that he was in any wise prejudiced thereby. Upon the other hand, the court permitted the state in rebnttal to introduce evidence contradicting that of the defendant, and, under the authority of Hyde v. State, neither the defendant nor the state can justly complain.

The evidence was admissible, not for the purpose of establishing the competency of the witness — that had already been determined by the court as a matter of law— but was admissible as affecting the credibility of the prosecuting witness.

The defendant in his brief says:

“Before making a summary of the testimony in this brief, it is well to remind the court that the defendant, as grounds for a reversal of the judgment of the lower court, relies upon three propositions:
“First: That the evidence is insufficient to support the verdict of the jury.”

The prosecutrix testified positively that the defendant did have sexual intercourse with her. She is corroborated by other witnesses and by the facts and circumstances in the case upon every proposition except as to the act of sexual intercourse.

This court has held in a number of cases that a conviction for rape may be sustained upon the uncorroborated testimony of the prosecutrix, Harris v. State, 27 Okla. Cr. 405, 228 Pac. 525; Malone v. State, 40 Okla. Cr. 102, 267 Pac. 486; Fowler v. State, 42 Okla. Cr. 300, 275 Pac. 655; hut this court has held that her testimony should stand unimpeached, Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927; Harris v. State, 27 Okla. Cr. 405, 228 Pac. 525; Fowler v. State, supra; and also that her evidence need not be corroborated unless the same was inherently improbable or almost incredible, Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731; Douglas v. State, supra; Ferbrache v. State, 21 Okla. Cr. 256, 206 Pac. 617.

Defendant argues first that the prosecuting witness was impeached by the evidence offered by the defendant as to her mental and moral incapacity to testify the truth.

The jury are the exclusive judges of the credibility of the witnesses and the weight to be given their evidence. They saw the defendant’s witnesses and heard them testify to a state of facts which tended to show the prosecuting witness to be a nymphomaniac, and that her evidence would be unreliable where the charge was rape upon her person. They saw and heard the rebuttal witnesses for the state. They saw the prosecuting witness upon the witness stand and heard her testify, and likewise saw the defendant and heard him testify, and evidently believed that the prosecutrix was telling the truth. The weight of the evidence and the credibility of the witnesses being for the jury, they are the best judges of whether or not the prosecuting witness had been impeached. They are not bound to believe the testimony of any witness. Under the law they may accept the testimony of one witness and reject the testimony of any number of witnesses, because to them exclusively belongs the determination of who is telling the truth in the trial of a case.

In Cole v. State, 18 Okla. Cr. 432, 195 Pac. 901, in the body of the opinion, this court said:

“The weight of this evidence, as well as the credibility of the witnesses, were matters for the exclusive determination of the jury. It was within the province of the jury to believe the state’s witnesses to the exclusion of defendant.”

In the case of Holman et al. v. Lozier, 100 Okla. 128, 227 Pac. 886, 887, that court said :

“The defendants contend that, when they introduced evidence as to the bad reputation of the witness Roy Lozier for truth and veracity, and plaintiff did not meet this evidence with testimony to the contrary, such evidence, being uncontradicted, had the effect of destroying the testimony of the witness with reference to the fact that the notes were not paid, and left only the undisputed testimony of defendants that the notes had been paid. We cannot agree with this contention. The credibility of witnesses is a matter lying pecularily within the province of the jury. Quapaw Milling Co. v. Cogburn, 78 Okla. 227, 190 Pac. 416. The jury had a chance to observe the demeanor of the witnesses on the stand, and to judge for themselves whether a particular witness was worthy of belief, and we cannot say that the mere fact that evidence of the bad reputation of a witness for truth and veracity, when not refuted by evidence contrary thereto, would have the effect of destroying the positive testimony of the witness to> a fact or state of facts. Such a holding would be an invasion on the part of this court of the province of the jury, upon whom rests the duty of passing upon the credibility of witnesses.”

In the case of Underwood v. State, 36 Okla. Cr. 21, 251 Pac. 507, 508, this court said:

“Conviction can be reversed as not supported by evidence only if no substantial evidence tends to- show guilt, or evidence is so insufficient that jury must have acted from partiality, passion, or prejudice.” Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Wilson v. State, 32 Okla. Cr. 139, 240 Pac. 155; Dixon v. State, 46 Okla. Cr. 25, 288 Pac. 357.

In Johnson v. State, 22 Okla. Cr. 332, 211 Pac. 425, this court further said:

“The jury are the exclusive judges of the credibility of witnesses and the weight to be given their testimony, and a verdict of conviction will not be reviewed on appeal on arguments directed to the credibility of witnesses or the weight to be given their testimony.”

Defendant’s objections and arguments are upon the credibility of the prosecuting witness’ testimony and the sufficiency of the evidence to support the verdict. These questions being exclusively for the jury, and there being competent evidence in the record, the finding of the jury thereon will not be disturbed on appeal.

The defendant next contends that the evidence of the prosecuting witness is inherently improbable, unreliable, and unreasonable.

Common experience teaches that her evidence is not inherently improbable; men do adopt little girls; men do take them into their homes and take liberties with them; and men dO‘ commit crimes similar to the one charged in this case; so that it cannot be said that in human experience an occurrence of this kind is inherently improbable.

The second error complained of by defendant is that the trial court erred in permitting the county attorney to exhibit in a spectacular and dramatic manner before the jury, while the defendant was on the witness stand on his own behalf, a young girl other than the prosecutrix, and to- ask the defendant, while being a witness on his own behalf, many questions indicating and charging him with haying attempted by force to have sexual relations with this other little girl thus then and there exhibited.

It was the theory of the state that this evidence was admissible for the purpose of showing the degenerate disposition of the defendant and probability of the commission of the act of which he was charged. The authorities are divided upon this question. For cases holding evidence admissible, see: Barnett v. State of Ohio, 104 Ohio St. 298, 135 N. E. 647, 27 A. L. R. 351; State v. Bisagno, 121 Kan. 186, 246 Pac. 1001; People v. Barton, 72 Cal. App. 421, 237 Pac. 767; State v. King, 111 Kan. 140, 206 Pac. 883, 22 A. L. R. 1006; Wigmore on Evidence, vol. 1, p. 664.

In the case at bar the evidence complained of was brought out by the state on cross-examination of defendant. There is nothing in the record to indicate any dramatic climax or attempt on the part of the state to take advantage 'of the defendant or prejudice the jury against him thereby. When defendant said that he- did not know whether he would know the girl unless he saw her, she was brought in the courtroom, whereupon defendant requested that she come closer to him so he could see her, and .after an inspection admitted that he knew her, but denied that he had made any assault upon her or had any intercourse with her. The defendant objected strenuously to this proceeding and to the introduction of this kind of evidence. When court convened on the next morning, the judge instructed the jury as follows:

“Gentlemen of the jury, last evening, the county attorney was permitted to' ask, on cross-examination, of the defendant, Frank Miller, certain questions relative to conduct with another girl, other than the prosecutrix in this case. The court was in error, gentlemen, in permitting that to be done. The state is not permitted to, in anyway, attempt to show any other acts on the part of this defendant; neither should the county attorney be permitted to cross-examine the defendant relative to anything of that kind and all that occurred relative to those questions, and the answers, themselves, the answers given, are withdrawn from your consideration. Now, gentlemen, you are asked by the court to entirely erase from your minds, and, in determining this case, not to take into consideration, in any way, either the questions that were asked this witness or the answers given or anything that occurred, at that time; remove it entirely from your minds in considering this case.”

The state made no further effort to introduce evidence of this character, and made no further mention of the same to the jury.

Evidence of other acts with other women in the trial of a case like the one at bar should not be admitted. In arriving at this conclusion we are not overlooking the case of Dunscombe v. State, 19 Okla. Cr. 45, 197 Pac. 1073. The sex instinct is a natural and universal one, and the rule with respect to the admission of this kind of evidence should not be so broad as that laid down in the case of State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807, and Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696.

The question to be determined by this court now is, Was the admission of this evidence reversible error?

Section 2822, C. O. S. 1921, provides:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

In the case of Atchison v. State, 3 Okla. Cr. 296, 105 Pac. 387, 395, this court said:

“The letter and spirit of this law is that if the defendant has had a fair trial, and if this court is satisfied that the conviction is sufficiently supported by competent evidence, and the verdict against him [the defendant] was not reached by error, or as the result of passion or prejudice, the conviction should be affirmed.”

When an error has been committed upon the trial of a case, it is the duty of the court, upon an inspection of the entire record, to determine whether or not the defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal. Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Bonner v. State, 23 Okla. Cr. 44, 212 Pac. 440; Bay v. State, 35 Okla. Cr. 332, 250 Pac. 438; Crowell v. State, 42 Okla. Cr. 392, 276 Pac. 518.

In the case of Barnes v. State, 32 Okla. Cr. 383, 240 Pac. 758, this court said:

“Where evidence against a defendant is admitted and is later by the court reconsidered and stricken from the consideration of the jury, the erroneous admission of such evidence will not be reversible unless the evidence was of such a character as would tend to prejudice or influence the judgment of the jurors, notwithstanding the ruling of the court excluding it.”

In the case of State v. Bisagno, 121 Kan. 186, 246 Pac. 1001, 1002, that court said:

“The evidence of other acts of sexual intercourse about the same time tended to show a lustful disposition, and to supplement and support other evidence of the state that he committed the offense charged. If the testimony may be regarded as inadmissible, the subsequent proceedings rendered it innocuous. After it had been admitted over objection, the judge at a later stage of the trial expressed doubts as to the competency of the evidence, and thereupon advised the jury that he withdrew from their consideration all evidence pertaining to the Hoggatt transaction, telling them that no part of it should be taken into- consideration in determining the guilt of the defendant of the offense against Wilma Holderman. While it is said that the impression and influence resulting from the evidence could not be eradicated from the minds of the jury by its withdrawal and the instruction of the court to- disregard it, it must be assumed that the jurors were intelligent and honest enough to observe the express instruction of the court. It is well known that jurors give close attention to statements made by the judge during a trial, and are strongly inclined to follow any suggestions made by him as to the materiality and application of evidence and the force to be given it. Assuming that error was committed in the admission of the evidence, we think it was cured by the withdrawal of the same and the admonition of the court that it should be given no consideration in determining the guilt or innocence of the defend* ant.”

Under section 2822, supra, and the authorities supporting same, the admission of the evidence was not reversible error. The withdrawal of such evidence by the court and his instruction thereon corrected the error, and the defendant suffered no prejudice thereby.

Defendant for his third ground of error complains of misconduct of the county attorney in three particulars: First, that in his cross-examination of Mrs. Miller, defendant’s wife, he said to the jury that she had been “coaxed.”

The record discloses that the county attorney in an undertone suggested to Judge Lawson, the Assistant Attorney General aiding in the prosecution, that the witness had been “coached.” The county attorney testified in the hearing on motion for new trial that this remark was not intended for anybody except Judge Lawson. At the time it was made, the attorney for the defendant moved to strikeout the statement of the county attorney, and the court remarked, “I didn’t hear it.” This attorney for the defendant then said, “Well, I think one of the jurors heard it.”

“Mr. Morrison: Did any juror — -ask the juror or the jury if any of them heard what I said.
“The Court: Whatever it was.
“Mr. Morrison: We ask that the jury be instructed to disregard it. I turned to counsel here and made the statement.
“The Court: All right, the jury are instructed to disregard any statement of counsel made across the table to co-counsel or anybody else except addressed to the witness.”

The quotation above as taken by the reporter was at that time read by the reporter, and counsel for defendant said: “All right, let it go.”

There is nothing in the proceeding above set out nor in the showing made in the motion for a new trial that the defendant suffered any prejudice by reason of such remark.

Second. The county attorney was guilty of misconduct in his remarks to the jury.

The argument of the county attorney was not taken by the reporter, and the record fails to show what, if anything, the county attorney did say. ■ No exception was taken to any of the remarks, and no record made thereon at the time the remarks were claimed to have been made.

In the case of Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, this court said:

“Where the argument of the county attorney is not taken down in shorthand and embodied in the record in full and a dispute arises as to what was said in argument, this court is bound by the finding of the trial court recited in the record as to what occurred.” Ellis v. State, 46 Okla. Cr. 251, 287 Pac. 1067.

In Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441, this court said:

“Exceptions must be saved to‘ alleged improper remarks of the prosecuting attorney in his argument to the jury, and such remarks must be preserved by being incorporated in the case-made, or by bill of exceptions duly allowed, to render them available on appeal; and, when not preserved in the record, such remarks cannot be shown by affidavit or mere recitals, in a motion for new trial.” Bone v. State, 43 Okla. Cr. 374, 279 Pac. 363.

Third. That while the county attorney was making his closing argument he permitted one Mrs. Embury, in the presence of the jury, to' stage a dramatic scene of affection and sympathy for the prosecutrix and contempt for the defendant.

On the hearing upon the motion for a new trial the county attorney testified that, if Mrs. Embury came in the room and did any of the things complained of by the defendant, he did not see it, and had nothing to do with it, and knew nothing about it. It is not the duty of the county attorney to preserve order in the courtroom; that duty devolves upon the presiding judge. If the things complained of were done by Mrs. Embury in the presence of the jury, during the closing argument of the state, defendant’s counsel should have called the court’s attention at that time to' such conduct, and the court should have ^excused the jury and administered summary punishment to tbe offender. But to say that a conviction shall be reversed upon an occurrence of this kind, over wbicb the county attorney or the state has no control, is to make it possible for a defendant to stage such a proceeding, and thus obtain a reversal of every case.

The case was hotly) contested, defendant being represented by seven of the leading lawyers of the state. The record is voluminous, consisting of three volumes with a total of 1,840 pages. It would be humanly impossible to try a case of this character, under the conditions under which the case was tried, without error creeping into the record, but it is not every error that requires a reversal of the case. It must be error plus injury.

The Criminal Court of Appeals never presumes error in the proceedings of a court of record. Two things must be shown by the appellant in a criminal case before a conviction will be reversed, viz.: That error was committed during the trial, and that this error, unless jurisdictional, deprived the appellant of some substantial right to his material injury. Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314; Williams v. State, 17 Okla. Cr. 452, 190 Pac. 892; Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423; Weathers v. State, 35 Okla. Cr. 292, 250 Pac. 805.

The trial court heard the testimony concerning the qualifications of the prosecuting witness and made a finding that she was qualified to testify, and thereafter permitted all that evidence to go before the jury for the purpose of affecting her credibility, and the jury having heard, not only that evidence, but all the evidence of the state and the defendant, found the defendant guilty as charged.

Thereafter the court, having heard the evidence of the defendant offered in support of his motion for a new trial, overruled such motion, and pronounced judgment against him.

In the case of Harrison v. State, 10 Okla. Cr. 210, 135 Pac. 948, this court said:

“A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to' this court only on the proposition that as a matter of law the verdict is contrary to the evidence.”

A careful examination of the record discloses that the evidence, while conflicting, is sufficient to support the verdict of the jury, and, while there is error in the record, it is not of such a character as to require a reversal of the case.

For the reasons stated, the cause is affirmed.

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


author: EDWARDS, P. J.

text:
    WILLIAM HEINTZ v. STATE.
    No. A-7763.
    Opinion Filed Nov. 15, 1930.
    (295 Pac. 402.)

      •Mitchell & Cooke and Darnell & LaRue, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Washita county on a charge of having the possession of a still and was sentenced to pay a fine of $250 and to serve 30 days in the county jail.

The prosecution in this case is under an' information in part as follows:

“In the name and by the authority of the state of Oklahoma, now comes M. W. Ludington the duly qualified and acting assistant county attorney, in and for Wash-ita county, state of Oklahoma, and gives the county court of Washita county and state of Oklahoma to know and be informed that William Heintz did * * * (Here follows the usual allegation of possession of a still.) * * * contrary to the form of the statute in such case made and provided and against the peace and dignity of the state. M. W. Ludington, Assistant County Attorney.”

A demurrer was interposed to1 this information setting out that it was insufficient in law, in substance, and in form. This demurrer was overruled ánd exceptions saved. A motion for a new trial was filed assigning, among other grounds, that the information was wholly insufficient in law, in substance, and in form, more particularly because same was not presented and signed by the proper officer, which motion was also overruled and exceptions saved.

Section 2511, Comp. St. 1921, in part is as follows:

“The county attorney shall subscribe his name to in-formations filed in the county, superior or district court. * * * ;;

This section of the statute has been considered by this court in several instances. In McGarrah v. State, 10 Okla. Cr. 21, 133 Pac. 260, 261, it was said:

“An unqualified reading of the words of the statute would make it necessary for the county attorney himself to subscribe his own name to all informations; but it has been held that the county attorney need not himself subscribe his name to an information, as it is sufficient if it be done by his legally appointed assistant.”

In syllabus 4 the court held:

“The conviction of a person under an information charging’ a misdemeanor, not signed by the person designated by law, is void for want of jurisdiction in the trial court.”

See, also, Fullingim v. State, 7 Okla. Cr. 333, 123 Pac. 558; Benson v. State, 10 Okla. Cr. 16, 133 Pac. 271; Oelke v. State, 10 Okla. Cr. 49, 133 Pac. 1140; Viers v. State, 10 Okla. Cr. 28, 134 Pac. 80; Ex parte Long, 26 Okla. Cr. 259, 223 Pac. 710; Tiller v. State, 35 Okla. Cr. 31, 247 Pac. 421; Evans v. Willis, Judge, 22 Okla. 310, 97 Pac. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258. In Johns v. State, 15 Okla. Cr. 630, 179 Pac. 941, the cause was reversed for the reason that the name of the county attorney to the information was signed by an unauthorized person, the court saying:

“It is essential to the validity of an information charging a misdemeanor that the county attorney subscribe his name thereto, or his name should be signed by a duly appointed and qualified assistant county attorney.”

The information upon which this prosecution was conducted not having been subscribed by the county attorney nor his name signed by an assistant county attorney, but to the contrary the prosecution being solely in the name of the assistant county attorney, the court was without jurisdiction.

The case is reversed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    VAS GRIDER v. STATE.
    No. A-7330.
    Opinion Filed Nov. 15, 1930.
    (295 Pac. 400.)
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Jackson county on a second and subsequent violation of the prohibitory liquor law of the state (Comp. St. 1921, § 6982 et seq.), and Ms punishment fixed by the jury at confinement in the state penitentiary for one year and one day and a fine of f 100.

The state introduced in evidence the information filed against the defendant in the county court of Jackson county, charging that on the 19th day of July, 1928, he had the unlawful possession of 78% gallons of beer; also the journal entry of judgment reciting that the defendant, on being arraigned, entered his plea of guilty, and was by the court sentenced to serve a term of 30 days in the county jail and to pay a fine of $50; and the commitment showing that defendant was duly committed to the county jail of Jackson county for such offense and was detained in said county jail by the sheriff of Jackson county until such judgment had been executed, and that defendant was the same person who had been previously adjudged guilty.

And thereupon the further evidence of the state was: That the city marshal of Altus arrested one J. T. Gibson at 318 East Commerce street, and, upon searching the person of Gibson, found a pint of whisky. The defendant was sitting in a coupe in front of the house at 318 East Commerce street. That the officer knew defendant had previously been convicted of violating the liquor laws of the state and had just recently finished serving a term in the county jail in Jackson county for such offense. That such witness arrested the defendant and took his car and took him to the county jail and took the prisoner Gibson to the county attorney’s office. That Gibson there told the county attorney and the sheriff of Jackson county that defendant’s car contained whisky in a compartment behind the cushion in the car. That the sheriff thereupon, acting upon such information and upon his knowledge that the defendant had previously been convicted, proceeded without a warrant to search the car, and found concealed therein three quarts and one-half pint of whisky. The city marshal had no warrant for the arrest of the defendant at the time he was arrested and taken to jail. Defendant did not take the witness stand and offered no evidence. He filed a motion to suppress the evidence in the case, for the reason that the same was obtained in violation of his constitutional rights by the search of his car without a warrant.

Under the facts and circumstances of the case and the authority of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790, Washington v. State, 37 Okla. Cr. 415, 259 Pac. 150, and Strong v. State, 42 Okla. Cr. 114, 274 Pac. 890, the search and seizure was legal and the evidence obtained was admissible.

The defendant next contends that the court invaded the province of the jury in giving the following instruction :

“It appears from the evidence in this case that in the county court of Jackson county, state of Oklahoma, on the 30th day of August, 1928, the defendant was charged by information with the offense of illegal possession of intoxicating liquors and that on the 31st day of August, 1928, the said defendant appeared in said court and entered his plea of guilty to said charge, and was thereupon on said date sentenced to serve a term of 30 days in the county jail of Jackson county and to pay a fine of $50 and costs of said action, and that he was duly committed to the county jail and served said sentence;
“Therefore, you are instructed that it may be taken as proven by the record evidence in this case that the defendant had been convicted of the violation of the prohibitory laws of this state prior to the date of the commission of the alleged offense for which he is now on trial, and you are further instructed that the county court of this county had jurisdiction to hear and determine said cause. And it will now be your duty to inquire into whether or not the defendant is guilty as charged of violating the prohibitory laws for a second time.”

In the case of Johnston v. State, 46 Okla. Cr. 431, 287 Pac. 1068, this court said:

“In a prosecution under section 6991, Comp. Stat. 1921, where accused is charged with a second violation of the prohibitory liquor law, and has pleaded not guilty, the alleged prior conviction is a question of fact of which the jury is the sole and exclusive judge under article 2, § 19, of the state Constitution, and section 2690, Comp. Stat. 1921, and it is reversible error for the trial court to invade the province of the jury and to instruct the jury as a matter of law that a substantive element of the crime, the prior conviction, is true.”

The giving of the instruction complained of was reversible error. For that reason the cause is reversed and remanded, with instructions to the court to proceed with the trial of the case in accordance with this opinion.

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


author: EDWABDS, P. J.

text:
    VERNON STACY v. STATE.
    No. A-7406.
    Opinion Filed Sept. 27, 1930.
    Rehearing Denied Nov. 15, 1930.
    (292 Pac. 885.)

      Earl A. Brown, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWABDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county of burglary in the second degree, and his punishment fixed at two1 years in the state penitentiary.

The record discloses that at the time charged the business house of one M. M. Wallis was broken into and the vault and safe looted of about $70. The conviction rests entirely on circumstantial evidence; this evidence in the main being proof that the finger prints of accused were found on the door of the vault. The contention is made that this is insufficient; that a conviction based on evidence of finger prints found in the place where the crime was committed, and not corroborated by other facts or circumstances, should not be permitted to stand.

The principal witness for the state was F. E. Carson, who testified he was jailer and identification officer of Carter county; that he had been engaged in finger print work for some 21 years at Parsons, Kansas City, Kan., and at the federal penitentiary at Leavenworth, and during the World War was finger print man with the American Army at Leon and at Lyons, France. He is shown to be thoroughly qualified. He testified he made a photograph of the door of the vault and found thereon certain finger prints which were enlarged and exhibited to the jury, together with known finger prints of defendant for comparison. He also1 performed an experiment of pairing and identifying finger prints of other persons taken before the jury.

There are numerous books, monographs, and articles on the subject of finger prints, giving the origin, the history, and the manner of taking and preserving finger prints, and touching the reliable character of this class of evidence. 10 Ency. Brit. (11th Ed.) 376; C. Ainsworth Mitchell, Science and the Criminal 1911, p. 51; History of the Finger-Print System; Annual Report Smithsonian Institute 1912, p. 631; Scientific American April 1, 1916, p. 356; Law Notes Feb. 1, .1917; The Origin of FingerPrinting, by Sir William J. Herschel 1916, p. 11; The Finger-Print Instructor, Kuhne, p. 96; Galton on FingerPrints 1892, p. 53. In the latter work the author says:

“We read of the dead body of Jezebel being devoured by the dogs of Jezreel, so that no' man might say, ‘This is Jezebel,’ and that the dogs left only her skull, the palms of her hands, and the soles of her feet; but the palms of the hands and the soles of the feet are the very remains by which a corpse might be most surely identified, if impressions of them, made during life, were available. 2 Kings 9, 33; 37.”

Mark Twain, in Ms interesting- novel, Puddin Head Wilson, it will be recalled, weaves á story about the identification by finger prints of one of Ms characters, saying:

“These marks are his signature, his physiological autograph, so to speak; and this autograph cannot be counterfeited, nor can he disguise it or hide it away, nor can it become illegible by the wear of the mutations of time. This signature is each man’s own — -there is no duplicate of it amóng the swarming millions of the globe. Upon the haft of this dagger stands the assassin’s natal autograph, written in the blood of that helpless and unoffend-ing old man who loved you and whom you all loved. There is but one man in the whole earth whose hand can duplicate that crimson sign.”

From an examination of the authorities cited and others, it appears that an allusion to finger print impressions for the purpose of identification is referred to in writings as early as 650 A. D., and they are traced back to- a period some 100 years before Christ. Finger prints were first used as a manual seal to give authenticity to documents. They are found in Assyrian clay tablets of a very early date in the British Museum, and they were also used in the same way by the early Egyptians. From the literature on the subject and from the reported cases, we learn that finger prints have long been recognized as the strongest kind of circumstantial evidence and the surest form of identification. Many of the states of the Union now have laws requiring the taking of finger prints of those arrested for felony and for the preservation and exchange of such records. Chapter 127, Sess. Laws 1925. Some of the leading cases touching finger prints as evidence are Moon v. State, 22 Ariz. 418, 198 Pac. 288, 16 A. L. R. 362; People v. Jennings, 252 Ill. 534, 96 N. E. 1077, 43 L. R. A. (N. S.) 1206, notes; State v. Cerciello, 86 N. J. Law, 309, 90 A. 1112, 52 L. R. A. (N. S.) 1010; State v. Connors, 87 N. J. Law, 419, 94 A. 812; People v. Roach, 215 N. Y. 592, 109 N. E. 618, Ann. Cas. 1917A, 410; State v. Kuhl, 42 Nev. 185, 175 Pac. 190, 3 A. L. R. 1694; People v. Sallow, 100 Misc. Rep. 447, 165 N. Y. S. 915; Hopkins v. State, 174 Ark. 391, 295 S. W. 361, 362.

We have no doubt but that the finding of the finger prints of the defendant on the door of the vault, with the further proof that defendant did not have access to and had not been at the place burglarized so that the prints could be accounted for upon any hypothesis of his innocence, is a circumstance irresistibly pointing to his guilt. In conformity to decisions of the courts in many states, we take judicial knowledge that there are no two sets of finger prints exactly alike.

It is next argued that the court committed prejudicial error in permitting the state to perform an experiment before the jury in pairing' and identifying the finger prints of other persons taken in court at the time. This was done by the state to show the qualifications of the witness Carson as a finger print expert and the positive character of such evidence. The evidentiary value of abstract explanations of the methods of taking and developing finger prints and the probative force of such evidence was probably as difficult for the jury to grasp as it would be for the ordinary person who has not had occasion to become informed on the subject; that is to say, it might be difficult for a juror to believe that a metal door of a vault would reveal incriminating finger prints or that a witness would be able to say with certainty from comparing one finger print with another that they were made by the same person, or to conceive that there are no' two finger prints exactly alike. Hence a demonstration illustrating to' the jury the method and certainty of this evidence is admissible. Moon v. State, supra; State v. Dunn, 161 La. 532, 109 So. 56, 75; Hopkins v. State, supra. In the latter case it was said:

“ ‘For obvious reasons, the admission of experimental testimony must largely rest in the discretion of the trial judge, and the exercise of this discretion will not be controlled, unless it is manifestly abused.’
“See, also, the annotated case of State of Nevada v. Kuhl, 42 Nev. 185, 175 Pac. 190, 3 A. L. R. 1694, where a somewhat similar demonstration was made in the presence of the jury, and the testimony held admissible after an extensive review of the authorities.
“It has always been held competent to examine a witness who proposes to testify as an expert touching his qualifications as such. At section 62 of the chapter on Expert and Opinion Evidence in 11 E. C. L. p. 646, it is said that:
“‘He (the expert) may also be subjected to tests to determine the value of his opinion. Thus a handwriting expert has often been required to pass on other signatures submitted to him on the witness stand, though they were not relevant to the case.’ ”

Complaint is also made that the court erred in admitting the record of the finger prints of defendant taken at the time of his arrest on an automobile larceny charge about a month prior to the offense charged in this case. It is particularly urged that these finger prints which were used as a basis for comparison with those found on the vault door of the place burglarized contained memorandum showing the arrest of defendant for the larceny of an automobile, and that the case was pending and un-disposed of. The admission of this memorandum showing the arrest of defendant for another crime was incompetent. Moon v. State, supra. No objection was made, however, to the memorandum on the car containing this finger print at the time it was offered. An objection was made to the finger prints taken on the prior occasion, but none is made to- the memorandum attached to it. The finger prints taken on the former occasion were admissible as a basis of comparison and identification in the same way that a contested writing' may be compared with a known genuine writing.

Upon an examination of the entire record, we find no material error, and the case is therefore affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JOHN LEWIS v. STATE.
    No. A-7518.
    Opinion Filed. Aug. 16, 1930.
    Rehearing Denied Nov. 15, 1930.
    (292 Pac. 888.)
    J. H. Long, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county of a second and subsequent violation of the prohibitory liquor laws, and his punishment fixed at a fine of $500 and confinement in the county jail for a period of 90 days.

The defendant first contends that the court erred in overruling his motion for a continuance. The information was filed on the 22d day of March, 1929. Defendant was arraigned on the 1st day of April, and took until the 3d day of April to1 plead. On April 11th, on application of defendant, the case was set for trial on the 15th day of April, and upon said day defendant objected to going to trial for the reason that defendant had not had sufficient time to plead after the overruling of his motion to quash the information, and thereupon defendant filed his motion for a continuance supported by his affidavit, which motion and affidavit were insufficient to require the court to grant the continuance. The case having been set for trial on a date requested by the defendant and the showing for a continuance being insufficient, it was not error for the trial court to overrule such motion.

The defendant next contends that the court erred in* overruling his motion to quash the information, for the reason that the search was made without a search warrant. On the motion to suppress, the defendant called the justice of the peace and attempted to show that the affidavit, and warrant had been changed after they were issued, but the justice of the peace testified that they were in the same condition as when he issued them, and the officers claimed to have had a search warrant. The presumption of law is that the officers had a valid search warrant and that the search and seizure was legal.

On the motion to quash, the defendant took the stand and testified that he was not in possession of the car at the time the search and seizure was made, but that he had loaned the car to some other parties who were driving it. Under the defendant’s testimony, no search warrant was necessary. Hunter v. State, 43 Okla. Cr. 138, 277 Pac. 952.

The instructions fairly state the law of the case. The evidence is sufficient to support the verdict of the jury.

The errors of law complained of being without merit, the cause is affirmed.

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


text:
    FLOYD JARRETT v. STATE.
    No. A-7747.
    Opinion Filed Aug. 18, 1930.
    Rehearing Denied Nov. 15, 1930.
    (292 Pac. 888.)

      G. A. Chappell, Bass & Hardy, and James H. Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county of robbery with firearms and sentenced to serve a term of 25 years in the state penitentiary.

In July, 1924, a bank at Uncas, Kay county, was robbed by three men who drove into the town in a Ford car. One remained in the car, and two went into the bank and with firearms committed the robbery, securing about $1,400; they then made their escape. In September, 1924, a complaint was filed in the county court- of that county charging defendant and one Jack Newman with the robbery. A warrant was issued for defendant and Newman on such complaint. Newman was apprehended, tried, convicted, and sentenced to serve a term of 25 years. See Newman v. State, 44 Okla. Cr. 137, 279 Pac. 980. In September, 1928, defendant was arrested in Oklahoma charged with robbing a bank at Lamar, Coto. He was extradited to that state despite his resistance to the extradition proceedings, and after a confinement for several months in that state he was released. He was then brought back into this state by a United States marshal on a charge of transporting a stolen automobile and was delivered by the federal authorities to the sheriff of Kay county. A new complaint was filed in the county court of Kay county in August, 1929, charging defendant with the robbery of the Uncas State Bank. He was held for the district court there, tried, convicted, and sentenced as stated.

The contention is made that when the Governor honored the requisition and permitted defendant to- be taken to the state of Colorado1 upon a charge pending in that state, this state waived jurisdiction and lost its rights to put him on trial, citing Ex parte Middaugh, 40 Okla. Cr. 280, 268 Pac. 321; Ex parte Guy, 41 Okla. Cr. 1, 269 Pac. 782. Neither of these cases is directly in point. In the Guy Case the petitioner had been convicted and was serving sentence in the penitentiary. By an executive order he was released and delivered to the federal authorities, the order containing a condition that in case of conviction in the federal court, petitioner at the conclusion of his sentence should be returned to' the state authorities. This court held the executive order was in effect a pardon of the remainder of the sentence. In the Middaugh Case, the petitioner had been convicted, and pending his appeal the Governor honored a requisition and petitioner was extradited to Missouri. This court in substance held that by honoring the requisition the state waived jurisdiction over the person of petitioner but such waiver did not satisfy the judgment, and if thereafter petitioner was apprehended in this state and jurisdiction of his person again obtained, he might be required to satisfy the judgment. The latter case is analogous to the situation here. The state by honoring the requisition of the Governor of Colorado, and permitting petitioner to be extradited to that state, waived jurisdiction of his person; but when he was returned to1 this state and jurisdiction was again obtained of his person, he was in the same position as prior to his extradition.

It is argued that as it appears the parties present at the scene of the robbery testified they saw defendant there and did not see him until five years later and the case must rest on their identification, their testimony cannot be given any weight and that the corroboration of the accomplice is insufficient. It is a general rule that where the testimony of an accomplice or claimed accomplice mates out in all particulars the crime charged, the corroboration need not be as strong as in other cases.

The main witness for the state was one Carden. He testified, in substance, he was an inmate of the state penitentiary, serving a 25 year sentence for the robbery of the Uncas Bank. That the robbery was committed by himself, one Newman, and the defendant. That he drove the car to the place of the robbery, and Newman remained in it while he and defendant went into the bank and did the actual robbery. He went into details, narrating at length the circumstances of the robbery. A witness, Snyder, testified he was in the bank at the time of the robbery and was forced at the point of a gun to lie down on the floor. He identified defendant as one of the men participating in the robbery. A witness, Enstine, testified he was in the bank at the time of the robbery, was talking to the witness Snyder, and was also forced at the point of a gun to lie down on the floor. He also identified defendant as one engaged in the robbery. The cashier of the bank testified that in his own mind he was satisfied defendant was one of the participants. On cross-examination he admitted the possibility of error. Here the testimony of Enstine, Snyder, and the cashier, Jacques, certainly corroborated the testimony of the accomplice and tends to connect him with the crime charged, and this is all the law requires. Section 2701, Comp. St. 1921. The reasonableness or unreasonableness of the testimony of the corroborating’ witnesses and the weight and credit to be given it is for the jury. See Brannon v. State, 39 Okla. Cr. 207, 264 Pac. 835; Simpson v. State, 40 Okla. Cr. 58, 266 Pac. 783; Stout v. State, 41 Okla. Cr. 42, 270 Pac. 90, 91.

The most earnest argument is made that the prosecution is barred by the statute of limitations. Upon this point the record discloses that the offense was committed on July 21, 1924; on September 4, next thereafter, a preliminary information was filed in the county court of Kay county and a warrant issued. Sections 2441 and 2442, Comp. St. 1921, 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.”

Section 2443 in substance provides that the statute of limitations does not run while a defendant is not an inhabitant or usually resident within the state. Synnott v. State, 38 Okla. Cr. 281, 260 Pac. 517. From the date of the robbery charged in the information until defendant was arrested charged with an offense in Colorado, he was a resident of Carter county, Okla., some 150 or more miles from Kay county. The sheriff of Kay county testified that he made search for defendant in Kay and counties adjoining. The complaint was filed and the warrant issued in good faith. Prior to the arrest of defendant for the Colorado' authorities, the sheriff of Kay county did not know defendant’s whereabouts. After defendant was returned from Colorado in August, 1929, a new preliminary complaint was filed in the county court of Kay county, which, is the basis for the information in the district court upon which defendant was tried and convicted. The question then is: Is this prosecution “commenced” within three years after the commission of the offense as required by section 2442, supra? If so, the court had jurisdiction. If not, the prosecution was barred. The commencement of an action and the filing of an indictment or information are not the same thing. State v. Disbrow, 130 Iowa, 19, 106 N. W. 268, 8 Ann. Cas. 190; Ex parte Lacey, 6 Okla. 4, 37 Pac. 1095. Our statute nowhere states what constitutes the commencement of a criminal action. Under a somewhat similar state of facts, the Supreme Court of Kansas, in Ex parte Broadhead, 74 Kan. 401, 86 Pac. 458, held that the mere filing of a complaint and the issuing of a warrant is not sufficient to toll the statute of limitations. In that case, however, the sheriff: there knew where the defendant was but, on direction of the county attorney, returned the warrant “not found.” The Kansas court holds this is an abandonment of the prosecution. The Broadhead Case is modified by the later case of State v. White, 76 Kan. 654, 92 Pac. 829, 14 L. R. A. (N. S.) 556. This court in Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18, by the language used in syllabus 3, appears to sustain the contention of defendant, but in that case it is said:

“By the term The prosecution,’ as used in a criminal case, is meant the continuous following up, through in-strumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused. It should not be confounded with the written accusation, nor is the term synonymous with criminal action. It consists of all the successive steps, having relation to each other, taken against the accused by the officer or officers charged with the enforcement of the criminal law. It contemplates proceeding judicially and involves all written accusations, including complaints, presentments, indictments, and information successively and continuously lodged against the accused. It may comprehend one or more related actions, provided the offense in each instance is identical and the actions are continuous and are brought and maintained pursuant to' lawful authority.”

The general rule appears to be to the contrary. In 8 R. C. L. p. 133, § 111, it is said:

“The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. Within this rule, if an indictment or information is the first step taken in the matter, of course that commences the prosecution; but when, as is usually the case, there are preliminary proceedings, the prosecution is commenced at the time a complaint is laid before a magistrate and a warrant is issued; and a defective warrant is sufficient for this purpose, especially where no' objection was made to it until the defendant had been convicted.”

In 16 C. J. p. 230, § 355, it is said:

“* * * On the other hand, where the statute simply provides that the prosecution must be commenced in a specified period, a complaint and warrant of arrest issued thereon and executed without unnecessary delay, will constitute a commencement of the prosecution. Similarly if the prosecution is by affidavit and information, then, and in such cases, the action may be deemed to be commenced at the time the information is filed with the clerk by the state through its proper officer. * * * An arrest is not a part of the commencement of a suit, and it is therefore not essential that it be made within the statutory period, although, as in civil cases, process therefor must issue upon the indictment and must be served without unnecessary delay.”

See State v. White, supra; State v. Disbrow, 130 Iowa, 19, 106 N. W. 263, 8 Ann. Cas. 190.

If tbe rule here contended for is sound, then an offender for any crime less than murder1, if be can successfully conceal bimself and avoid arrest for three years, is free from prosecution. Tbe officers of tbe state may be ever so diligent in attempting to serve tbe warrant of arrest, but if the offender outwit them no prosecution will lie. When tbe action was commenced in September, 1924, by filing a preliminary complaint with tbe county judge, and tbe issuing the warrant thereon in good faith, tbe ■fact that tbe sheriff was unable to find defendant to serve tbe warrant does not make tbe commencement of tbe prosecution any less a fact. When defendant came into tbe custody of tbe state for prosecution for tbe offense charged in Kay county, tbe state might have proceeded with tbe original preliminary complaint, or it might have filed another preliminary complaint with tbe county judge so long as the offense charged is identical.

Tbe case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    E. S. MERCER v. STATE.
    No. A-7381.
    Opinion Filed Oct. 11, 1930.
    Rehearing Denied Nov. 15, 1930.
    (292 Pac. 896.)

      John G. Harley, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county of the crime of assault with a dangerous weapon with intent to do bodily harm, and sentenced to serve a term of 30 days in the county jail.

But one proposition is involved in this appeal, to wit, the question of the sufficiency of the evidence to sustain the conviction.

Defendant in his brief says:

“The defendant, while not waiving any of the assignments of error set out herein, will content himself with the discussion of one proposition, viz.: That the verdict of the jury was not supported by the evidence; was contrary to law and was insufficient to support a judgment of conviction in this case.”

The evidence of the state was that the defendant and one John Womack entered into' a voluntary combat; that before this combat started defendant drew his knife from his pocket, and as soon as the combat started began to cut Womack with the knife and inflicted several wounds upon his body, from which wounds Womack was confined in the hospital for six weeks and was unable to be out for two months.

Under the law of self-defense, as outlined by this court in numerous cases, the defendant, having voluntarily and of his own free will entered into this difficulty, was not entitled to' be acquitted on the ground of self-defense, no matter how hard pressed or how great his danger became during the progress of the difficulty. Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042, 1043; Hawkins v. United States, 3 Okla. Cr. 665, 108 Pac. 561; Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915; Riley v. State, 40 Okla. Cr. 323, 268 Pac. 996; Odum v. State, 21 Okla. Cr. 87, 204 Pac. 1118.

While there is a conflict in the evidence, there is sufficient competent evidence in the record to support the verdict of the jury.

For the reason stated, the cause is affirmed.

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


author: EDWARDS, P. J., CHAPPELL, J.

text:
    ANDREW LAUB, Sr., et al. v. STATE.
    No. A-7195.
    Opinion Filed Sept. 2, 1930.
    Dissenting Opinion Sept. 17, 1930.
    Rehearing Denied Nov. 15, 1930.
    (292 Pac. 891.)

      Roberson & Roberson, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.,

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Canadian county on a charge of having the unlawful possession of whisky. By a search of the residence of defendants a small quantity of whisky was found in a fruit jar. Andrew Laub, Sr., was sentenced to pay a fine of $400 and to serve 90 days in the county jail, and Andrew Laub, Jr., was sentenced to pay a fine of $100 and to serve 80 days in the county jail.

There is but one material question in this case. That is, whether legal process may be served on Sunday. The affidavit for a search warrant was filed with the county judge on Sunday, the search warrant was issued on Sunday, and the search warrant was served and the search made on Sunday. The defendants moved to quash and suppress the warrant and the evidence obtained thereunder, and objected to the introduction of evidence for this reason.

There is considerable conflict in the authorities as to what judicial and ministerial acts may be done on Sunday. The observance of the Sabbath is commanded by the Old Testament. In 321 A. D., Constantine the Great passed an edict fixing Sunday as a day of rest. 37 Cyc. 540, II A. In the textbooks and cases on the subject, it is said that from the beginning of the Christian era the courts sat on Sunday.

* * That the ancient Christians practiced this for two reasons: One was in opposition of the heathen who Avere superstitious about the observation of days and times, conceiving some to be ominous and unlucky and others lucky, and that therefore the Christians laid aside all observance of days. That a second reason they had was that by keeping their own courts always open they prevented Christian suitors from resorting to heathen courts. In the year 517 A. D., by a canon of the church Sunday was made a non juridical day. This canon was adopted as law by the Saxon Kings of England and later confirmed by William the Conqueror and Henry II, and thus became recognized and established to be common law. * *

So that under the common law it is held that judicial acts done on Sunday are void. 25 R. C. L. p. 1444, § 43; Moss v. State, 131 Tenn. 94, 173 S. W. 859. This case is copiously annotated in Ann. Cas. 1916B, 1. The decisions under the Sunday laws of the different states are not in accord. It is generally held that judicial acts performed ■■'n Sunday are void, but those of a ministerial character, unless in conflict with some statute, are valid. In England the service of writs on Sunday are expressly prohibited by Act 29, Charles II, c. 7. In some of the states the service of process on Sunday is forbidden, and where so forbidden, service is invalid. City of St. Paul v. Robinson, 129 Minn. 383, 152 N. W. 777, Ann. Cas. 1916E, 845. See notes, Ann. Cas. 1916E, 845.

This state forbids the service of process on Sunday, with certain exceptions. Section 1827, Comp. St. 1921, is:

“All service of legal process of any description whatever, upon the first day of the week, is prohibited, except in cases of breach of the peace, or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service shall be specially authorized by law.”

The term “legal process,” as used in the above statute, is very comprehensive. As the term is used in reference to the criminal law, it includes all writs, warrants, summons, and orders of courts of justice or judicial officers issued in the course of judicial proceedings. 21 R. C. L. p. 1261; 32 Cyc. 419f. A search warrant is defined by section 2876, Comp. St., as:

“A search warrant is an order in writing, in the name of the state, signed by a magistrate, directed to a peace officer, commanding him to search for personal property and bring it before the magistrate.”

It is a legal process. McAdoo v. State, 36 Okla. Cr. 198, 253 Pac. 307; Sloan v. State, 45 Okla. Cr. 228, 282 Pac. 898.

It will be seen from section 1827, supra, that there are three exceptions under which it is legal to serve process on 'Sunday. First, in case of breach or apprehended breach of the peace; second, when issued for the apprehension of a person charged with a crime; third, when the service is specially authorized by law. There are some instances where process is specially authorized to be served on Sunday, as, for instance, the writ of ha-beas corpus by section 442, Comp. St. 1821. The process of search warrant does not fall under the second exception, as it is not for the apprehension of a person charged with crime. If the service of the process in this case on Sunday can be justified, it must fall under the first exception above named. That is, where it is issued to prevent a breach or apprehended breach of the peace. A search warrant may in some instances be an appropriate process to prevent a breach or apprehended breach of the peace. In such case it may be served legally on Sunday. Where it is sought to act under this exception to section 1827, supra, and to justify the service of process on Sunday, the better practice is to set out in the affidavit or application to procure the process, facts bringing it within the exception. This, however, would not be essential in all cases, as process coming into the hands of an officer on a juridical day might be served legally on Sunday if the exception existed. Where process is challenged because of service on Sunday, the justification should show that it falls within the statutory exception. Under the facts disclosed by the record in this case, nothing is shown, either at the time of procuring the process on a Sunday or when the same was challenged by motion to quash and suppress, to bring the service of the process within the exceptions named by the statute; but, to the contrary, the record discloses that the officer who' made the affidavit and procured the search warrant did so without apprehending or having any reason to apprehend a breach of the peace. Officers of the law should not permit their zeal to override the plain provision of the law. The process could have been procured and served just as effectively on a day other than Sunday. Nothing being shown to bring the service of this process within the exceptions of the statute, but it clearly appearing that the service on Sunday was not within the exceptions, it was invalid and the motion to suppress should have been sustained.

The case is reversed.

DAVENPORT, J., concurs.

CHAPPELL, J.

(dissenting). I cannot agree with the majority opinion in this case. The court has gone back into the dark ages and appealed to a canon of the | Catholic Church as a basis which would justify the holding that a search warrant could not be served on Sunday. Protestant Churches have not subscribed to any such doctrine and have never taught that criminals could not be arrested or restrained for violation of law on Sunday. Many authorities in the United States are to the contrary.

In the case of United States v. Harbin (D. C.) 27 F. (2d) 892, page 893, it is said:

“Search warrants, like warrants of arrest, are processes for emergencies, which should not be crippled in effectiveness by ancient Sabbatarian learning as to Sunday being a nonjuridical day. They are expressly hedged about by various restrictions, which should not be extended by implication. The delay of a day would often be fatal to effectiveness and afford immunity, smacking somewhat of the antiquated right of sanctuary, for the criminal.”

In Cornelius on Search and Seizure, p. 365, § 144, the rule is stated:

“As a general rule, official acts relating to process in criminal cases may be performed on Sunday or on legal holidays, but no cases have been found which hold that the service of a search warrant could not be made either on Sunday or on a legal holiday unless prohibited by statute,” citing authorities from Alabama, Connecticut, Idaho, Massachusetts, Ohio, Pennsylvania, Texas, and Vermont.

Thus it will be seen that many authorities in the United States hold the service of process on Sunday legal, unless expressly forbidden by statute.

Section 1827, C. O. S. 1921, provides:

“All service of legal process of any description whatever, upon the first day of the week, is prohibited, except in cases of breach of the peace, or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service shall be specially authorized by law.”

I agree with the majority opinion that process cannot be served on Sunday in Oklahoma, unless it falls within the exceptions set forth in section 1827, supra, but contend that the facts in the case at bar bring it squarely within the exception of “apprehended breach of the peace.” Under the provisions of this statute a search warrant may be legally served where a breach of the peace is apprehended.

In the case of People v. Kramer, 225 Mich. 35, 195 N. W. 802, 803, the court had under consideration the legality of the service of a search warrant on Sunday, and used the following language:

“ ‘Now, what is understood by “a breach of the peace?” By “peace,” as used in the law in this connection, is meant the tranquility enjoyed by the citizens of a municipality or community where good order reigns among its members. It is the natural right of all persons in political society, and any itentional violation of that right is “a breach of the peace.” It is the offense of disturbing the public peace, or a violation of public order or public decorum. Actual personal violence is not an essential element in the offense. If it were, communities might be kept in a constant state of turmoil, fear and anticipated danger from the wicked language and conduct of a guilty party, not only destructive of the peace of the citizens but of public morals, without the commission of the offense. The good sense and morality of the law forbid such a construction.’ Here, however, the language is to ‘preserve the peace.’ Measures taken to prevent the unlawful traffic in intoxicating liquors are clearly measures taken to preserve the peace of the community; they prevent lawlessness and intoxication, and tend to the establishment of law and order.”

The unlawful possession, transporting, or sale of intoxicating liquor is a breach of the peace within the meaning of section 1827, supra. Where officers possess information which would cause an ordinarily prudent person to act upon the belief that a breach of the peace was about to occur, a search warrant may legally issue and service on Sunday would be legal. If this were not true, then Sunday would be an open day for the bootlegger, who would ply his trade with impunity, resting secure in the knowledge that the state was impotent to interfere with his unlawful business by searching his premises on that day.

In the case at bar the record discloses that a wolf hunt was being conducted from the home and farm of the defendants, and a crowd of people gathered there on Sunday afternoon evidently for the purpose of drinking and carousing. To say that the officers were impotent in such case is to' overrule the authority of the law and render its enforcement impossible on Sunday.

I cannot agree with the majority opinion for the further reason that such service is authorized by sections 2880 and 2881, C. O. S. 1921, and thus falls within the final exception of section 1827, supra.

Chapter 7, article 19, C. O. S. 1921 (sections 2876-2896), provides generally for the issuance and service of search warrants and when considered with sections 7009, 7010, C. O. S. 1921, constitute the code regulating the issuance and service of search warrants.

Section 2881, among other things, provides:

“You are therefore commanded * * * to make immediate search.”

Webster defines “immediate” as instant; present; without intervention of time. The word “immediate” is ■defined by Worcester as meaning having nothing intervening, either as to place, time, or action. The word “immediately” means instantly; directly; without delay; forthwith; just now.

In Bailey v. Commonwealth, 74 Ky. (11 Bush) 688, 691, the court said:

“ 'Immediate’ is not a technical word, and we do not find that it has acquired a peculiar meaning in the law differing from its common and approved popular signification.”

No statute prohibits the issuance of process on Sunday. Since there is authority for the issuance of search warrants on Sunday, and since section 2881 provides for immediate service thereof, such process is not forbidden by section 1827, supra, and the issuance and service thereof would therefore be legal.

In the majority opinion the court says:

''The process could have been procured and served just as effectively on a day other than Sunday.”

The business of handling intoxicating liquor must be and is carried on surreptitiously, and is of such a nature that any delay in the service of process would defeat the very purpose for which such process should be issued. In the case at bar the crowd had gathered and the intoxicating liquor was there ready to be consumed. To state the facts is to refute the argument of the court that service might have been effectively had on the next day.

As was said by Judge Holmes in United States v. Harbin, supra:

''The delay of a day would often be fatal to effectiveness and afford immunity, smacking somewhat of the antiquated right of sanctuary, for the criminal.”

I cannot agree with the majority opinion for another reason. In paragraph 3 of the syllabus the court says:

“Where the service of process is challenged because of service on Sunday, it will be held invalid unless it is shown in justification for such service that it falls within one of the exceptions of section 1827, Comp. St. 1921.”

In the case of White v. State, 23 Okla. Cr. at page 206, 214 Pac. 202, 205, this court said :

“It has often been held that there is a presumption that a public officer did his duty and that statutory and constitutional modes of procedure have been followed,” citing Hess v. State, 9 Okla. Cr. 516, 132 Pac. 505, and Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314.

In Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423, this court says:

“Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed.” Anderson v. State, 8 Okla. Cr. 90, 126 Pac. 840, Ann. Cas. 1914C, 314; Williams v. State, 17 Okla. Cr. 452, 190 Pac. 892; Harris v. State, 18 Okla. Cr. 470, 196 Pac. 354; Cardwell v. State, 20 Okla. Cr. 177, 201 Pac. 817; Redden v. State, 22 Okla. Cr. 179, 210 Pac. 556.

Under these and numerous other holdings of this court, the presumption of law was that the officers did their duty, that the exception in section 1827, supra, existed, and that the proceedings were legally authorized and regular in all respects. To' overthrow this rule and shift the burden to the state is to put upon the state a burden not contemplated by law and to provide another technical loophole through which the guilty bootlegger may escape just punishment. To so hold furnishes weak-kneed officers who- have no desire to enforce the law an added excuse for failing to do so.

Sometimes courts, in their zeal to protect the constitutional rights of defendants, destroy the law and the constitutional rights of law-abiding citizens. It is as much the duty of this court to preserve the constitutional right of law-abiding citizens to be protected from the danger, disorder, crime, and confusion which arise from the illegal sale of liquor as it is to protect the bootlegger in his constitutional rights.

For the reasons stated, I cannot agree with the majority opinion of the court.