author: BRETT, J. BRETT, J.

text:
    HOWARD J. STOKES v. STATE.
    No. A-10704.
    Jan. 14, 1948.
    On Rehearing March 3, 1948.
    (189 P. 2d 424; 190 P. 2d 838.)

      Irvine E. Ungerman, of Tulsa, and T. Jack Tellegen, of Oklahoma City (Charles A. Whitebook, of Tulsa, of counsel), for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, Howard J. Stokes, was charged by information jointly with Russell Degen and George W, Jakeway with the crime of arson. Degen and Jakeway entered pleas of guilty and testified for the state. On the trial of Stokes, he was convicted of first degree arson and sentenced to 15 years in the penitentiary, from which conviction, judgment and sentence, he perfected this-appeal.. ,

The charging part of the information upon which the prosecution is based is in words and figures as follows to wit:

“* * * that Russell Degen, George W. Jakeway, Howard J. Stokes on the 3 day of January, A. D. 1945, in Tulsa County, State of Oklahoma, and within the jurisdiction of this court, did unlawfully, willfully, maliciously and feloniously, while acting in concert, each with the other, in the night time, set fire to and ignite and damage a certain building located at 14 South Lewis Avenue, in the City of Tulsa, Oklahoma, owned by Lottie May Winger, and being occupied by and in the posses-' sion of Harry Abdo, J. D. Summer, Wm. L. Neet and Roy Love, with the unlaAvful and felonious intent then and there upon the part of said defendants and each of them to destroy said building aforesaid, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state.”

The statutes upon which the charge is grounded are as follows:

Title 21 O. S. A. § 1381, to wit:

“Arson is the wilful and malicious burning of a building, with intent to destroy it.”

Title 21 O. S. A. § 1390, to wit:

“Arson is divided into two degrees. Arson in the first degree is: 1. * * *. 2. Maliciously burning in the night time a structure adjoining to or within the curtil-age of an inhabited building in which there is at the time some human being, and in such a way that such inhabited building is endangered * * *. 3. * * *. 4. * * *. Arson committed in any other way is arson in the second degree.”

Title 21 O. S. A. § 1391, to wit:

“Arson in the first degree is punishable by imprisonment in the penitentiary as follows: First. If committed as designated in the first paragraph of the foregoing Section (§ 1390 this title), for a term of not less than One (1) year, nor more than Thirty (30) years; Second. If committed as designated in. the second, third or fourth paragraph of said Section, hot less than One (1) year, nor more than Fifteen (15) yéars.”

Title 21 O. S. A. § 1392, to wit:

“Arson in the second degree is punishable by imprisonment in the penitentiary as follows: First. If committed in the night time, not less than One (1) year, nor more than Five (5) years; Second. If committed in the day time, not less than One (1) year, nor more than Five (5) years.”

The defendant first contends that the foregoing information states no offense as defined by the statutes of Oklahoma. It is pertinent to note that he points out no reason for this assertion. He then concedes that if it states any offense at all it is the crime of arson in the second degree. As to the latter statement, we are of the opinion there can be no doubt. He further contends that the information is insufficient upon which to warrant the court in instructing the jury in instructions 4, 5, and 6 on the theory of first degree arson. Moreover, he says it is insufficient to support the verdict, judgment and sentence of 15 years.

In our opinion the information clearly charges the crime of arson in the second degree. It is not sufficient, however, to charge arson in the first degree. It is apparent from the record that the case was tried and the jury instructed on the theory that first degree arson as defined under Title 21 O. S. A. § 1390, subsection 2, had been alleged in the information. To have supported such a theory it would have been essential that in addition to the allegations therein contained, the information charge that the building burned was “maliciously burned” and was “an inhabited building in which there” was “at the time some human being.” No such allegations appear therein. It is true that the information alleges the described premises were owned by Lottie May Winger and occupied by and in the possession of Harry Abdo, J. D. Summer, Wm. L. Neet, and Roy Love. Such an allegation is not tantamount to alleging that said building was an inhabited building in which, at the time of the alleged burning, there was a human being, naming said person. To illustrate the importance of the said allegation, neither Abdo, Summer, Neet, nor Love were in the building when it burned, though they did occupy the same for business purposes in the operation of the Whittier Bar. On the other hand, the record discloses that Doctor Fred C. Switzer and a Mr. Hogan actually inhabited and were sleeping in the house adjoining the bar. To further emphasize the importance of such an allegation, the bar had been.erected adjacent to said house and two walls of said house formed two of the inside walls of the said bar when it was burned. In order for the information to have charged arson in the first degree under the circumstances herein involved, certainly it should have alleged that at the time of the burning of said Whittier Bar, the adjoining building was then inhabited by Doctor Switzer, and Mr. Hogan..

Under our Constitution and statutes, to allege first degree arson as defined in Title 21 O. S. A. §■ 1390, supra, facts must be pleaded bringing the crime within the definitions therein contained in at least one of the four subdivisions of said statute. As hereinbefore indicated it is apparent that in the case at bar the court tried the crime as being charged within the provisions of subsection (2) of Title 21 O. S. A. § 139Ó, supra. Under this section, to try and convict the defendant on a charge of first degree arson, in addition to the other essential elements the information must contain the allegation that the building was maliciously burned and adjoined another that was at said time then inhabited by a human being. This requirement is not an unreasonable one but is in keeping with the Constitution and statutory provisions with reference to criminal pleading, as well as the provision of this court, construing such provisions.

Under the provisions of the Oklahoma Constitution, § 20 of the Bill of Rights: “* * * in all criminal prosecutions the accused * * * shall be informed of the nature and cause of the accusation against him • *

Under the provisions of Title 22 O. S. A. § 401, dealing with the form and requisites of indictments and in-formations, it is provided:

“The indictment or information must contain:
“1. The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties.
“2. A statement of the acts constituting the offense, in ordinary concise language, and in such manner as to enable a person of common understanding to know what is intended.”

Under the provisions of Title 22 O. S. A. § 402, it is further provided as follows to wit:

“The indictment or information must be direct and certain as it regards:
“1. The party charged.
“2. The offense charged.
“3. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

The foregoing section of the Bill of Rights has been construed in Oklahoma to mean exactly what it says. In Fletcher v. State, 2 Okla. Cr. 300, at page 315, 101 P. 599, at page 605, 23 L. R. A., N. S., 581, it is said:

“If an indictment or information does not state the nature and cause of the accusation against the defendant, it is void.”

Further in that opinion, the court said, after referring to the provision in Wilson’s Oklahoma Statutes Avhich is the same as the provisions of Title 22 O. S. A. § 102, hereinbefore set forth, that the force of this statutory provision was inescapable, in the following language :

“Here is a mandatory provision of our statutes which forces this court to hold all indictments fatally defective which fail to give the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. The language of the statute is that as to these matters the indictment must be direct and certain.”

In Stout v. Territory, 2 Okla. Cr. 500, 103 P. 375, this court said:

“Where the statute [referring to a statute in] Wilson’s Rev. & Ann. St. 1903, § 5358, [which is the same at Title 22 O. S. A. § 402,] creates and defines an offense, an indictment or information which does not allege all the essential elements constituting such offense is insufficient.”

In Wilcox v. State, 13 Okla. Cr. 599, 166 P. 74, it was said:

“The information must contain a statement of the acts constituting the offense, and it is not sufficient to charge the offense in the words of the statute, when the particuar circumstances of the offense charged are necessary to constitute a complete offense.”

See, also, Cole v. State, 15 Okla. Cr. 361, 177 P. 129; Jerome v. State, 28 Okla. Cr. 131, 229 P. 527, wherein the court said:

“The allegations in an information should he definite, direct and certain as to the offense intended to be charged.”

To' the same effect is George v. State, 28 Okla. Cr. 388, 231 P. 318. In Hart v. State, 59 Okla. Cr. 396, 60 P. 2d 411, the rule was applied by this court when it said:

“Information charging offense of tapping a pipe line, which failed to allege that pipe line alleged to have been tapped was laid or used for conduct or storage of crude oil and its derivatives, held insufficient.”

In Ex parte Burnett, 78 Okla. Cr. 147, 145 P. 2d 441, in paragraph one of the syllabus, the rule was announced as follows:

“The true test of the sufficiency of an information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.”

In the body of that opinion, at page 150 of 78 Okla. Cr., at page 442 of 145 P. 2d this court said:

“It is fundamental that the information must state the acts constituting the offense in such a manner as to enable a person of common understanding to know what is intended.”

In face of the foregoing statutory definitions of arson in the first and second degrees and § 20 of the Bill of Rights, the statutory requirements of an information and the judicial, interpretations covering the subject, it clearly appears that the information herein is insufficient to charge arson in the first degree. It lacks two essential elements to make out suck a charge: First, that the burning was maliciously done; and, second, that said building adjoining the Whittier Bar was inhabited by human beings, namely Doctor Switzer and Mr. Hogan. However, it does clearly allege arson in the second degree.

Counsel for the state has written an exhaustive and masterful brief in support of its contentions. He is deserving of the highest commendation for his endeavor, but we are unable to follow his views. In substance, his contentions are, “that an information which charges arson as defined by statute and which does not by its specific allegations eliminate the elements of arson in the first degree, a defendant may be convicted of arson in the first degree in case of the proof establishes the commission of the offense.” Under the rules of pleading long recognized in Oklahoma, this is an interesting but novel contention. The requirements of our practice in pleadings are based not upon the theory of not eliminating the essential elements of an offense, but upon the specific requirement of the inclusion of all the essential elements of the crime as defined by statute. Moreover, the information in the case at bar, we believe, by its specific allegations, even under the theory of the state, eliminates the essential elements of arson in the first degree. If the allegations of the information do not include the essential elements of arson in the first degree, to wit, that the building burned was maliciously burned and then inhabited by a human being, what more could be said than that it eliminates this requirement of the statute? The state further contends that to plead the commission of arson in general terms is sufficient; that the degree thereof is a matter to be determined by the jury from the evidence and the instructions of the court. The state cites in support of its theory the California and Montana statutes which alone of all the states were identical with ours, until California changed hers in 1929. The state likewise cites California cases in support of its contention. The Montana statutes have not been construed. The California cases relied upon by the state are as follows, to wit: People v. Giacamella, 71 Cal. 48, 12 P. 302; People v. Russell, 81 Cal. 616, 23 P. 418; People v. Morhar, 78 Cal. App. 380, 248 P. 975; People v. Brahm, 98 Cal. App. 733, 277 P. 896; People v. Egan, 77 Cal. App. 279, 246 P. 337, 339; People v. Barnhart, 59 Cal. 381, 20 P. 381. The latter case involves the charge of burglary. The California cases would be most persuasive on this point were it not for the fact that there is a vast difference between the rules of pleading in California and Oklahoma. California follows the more liberal rule of construction while this court follows a stricter construction in relation to pleading. Since our court is so committed, as revealed by the authorities hereinbefore cited and quoted from, we are bound to follow this construction. This we do not do with the slightest degree of reluctance for we are certainly in accord with the form of pleading adopted in the State of Oklahoma. Even in California, however, there is respectable dissenting authority that believes such a procedure should be followed in that state. See People v. Britton, 6 Cal. 2d 1, 56 P. 2d 494, 496, wherein in a dissenting opinion Justice Curtis said:

“One of the most ancient and fundamental rules of criminal procedure is that a defendant must be informed of the precise charge against him before he can be placed on trial or punished therefor.”

The California cases relied on by the state to support its contention might have application here were it not for our Bill of Rights and the mandatory provisions of our státutes in relation to the form of indictments and informations. Both our statutes and the Constitution, as well as the interpretations of this court, bind us to the more specific form of pleading. To follow the California cases cited in support of the state’s contentions would require us to abandon the provisions of section 20 of the Bill of Rights and the mandatory enactments of the Legislature, as well as the long line of decisions with which we are in accord. Moreover, the cases cited from California turn upon an application of the liberal rules of pleading and the theory that, “The degree of the offense is a question for the jury to determine from the evidence and need not bé stated,” and, “indeed any designation is surplusage.” 14 Cal. Juris. 54, § 40; People v. Russell, supra; People v. Nichol, 34 Cal. 211 (murder); People v. King, 27 Cal. 507, 87 Am. Dec. 95 (murder); People v. Dolan, 9 Cal. 576 (murder); People v. Lloyd, 9 Cal. 54. Such is not the rule and never has been the rule in Oklahoma in relation to pleading. The rule in Oklahoma is, and has been, that though the crime may be described in the general language of the act, the description must be accompanied by a statement of all the particulars essential to constitute the offense or crime. Under this form of pleading this court has repeatedly held the accused is entitled to know, not only the offense with which he is charged, but the degree thereof, if there are different degrees of the offense. The case at bar must stand or fall on the allegations contained in the information. The law as construed in Oklahoma will not permit a man to be convicted on a charge not broad enough to include a greater offense. Of course, however, he can be charged with a greater offense and convicted of a lesser or included offense. Title 22 O. S. A. § 916. The rule of included offenses is of no avail to the state in this case. It works inversely, the greater including the lesser; not progressively, the lesser including the greater. Here the defendant is charged with second degree arson. He can be convicted of that charge only.

Based upon the information charging second degree arson, the court, the defendant complains, instructed the jury on the theory that it alleged first degree arson. The first instruction complained of is instruction No. 4, as follows, to wit:

“Arson in the first degree is: Maliciously burning in the night time an inhabited building in which there is at the time some human being.
“Arson in the first degree is punishable by imprisonment in the penitentiary, if committed as designated in the preceding paragraph, for a term of not less than one year nor more than thirty years.”

The defendant contends there is no evidence upon which to base the foregoing instruction. With this statement we cannot agree. The evidence is ample to support the instruction, but the instruction is erroneous because the information charges only second degree arson and will not therefore support the instruction on first degree arson. This being the case, the jury should have been instructed only on second degree arson. Instruction No. 5, next complained of reads as follows:

“You are instructed that if you find from the evidence that * * * the defendant did * * * commit the crime of arson, as charged in the information in this case and as defined in these instructions, then it will be your duty to convict the defendant and fix his punishment by imprisonment in the penitentiary for a term of not less than one year nor more than thirty years.”

Under the information alleging second degree arson, this instruction,, prescribing a penalty for first degree arson, is likewise clearly erroneous. Instruction No. 6, next complained of, reads as follows:

“You are instructed that in the event you find the defendant guilty as charged in the information, it shall be your duty to assess the punishment in accordance with the instructions previously given herein.”

This instruction is clearly erroneous, when viewed in light of instructions 4 and 5, which instructed the jury to fix the punishment between one and thirty years. Certainly, the information charging only second degree arson would not support such an instruction. Such cannot be done in Oklahoma. Martin v. State, 48 Okla. Cr. 102, 289 P. 787, wherein this court held that where:

“The information * * * charges arson in the second degree, but the court’s instructions and the trial of the case was on the theory that the charge was arson in the first degree; such was error.”

Further, in that opinion, this court said:

“It is fundamental that the trial court should submit to the jury the charge laid in the information, defining the offense sufficiently to inform the jury what facts are necessary to establish in order to justify a verdict of guilty and, failure to do so, in event of conviction, is ground for reversal.”

In the body of the opinion, in support of the court’s duty to instruct as to the law, measured by the allegations of the information, this court cited the following cases: Brook v. State, 6 Okla. Cr. 23, 115 P. 1026; Wilkerson v. State, 37 Okla. Cr. 43, 256 P. 63; Smith v. State, 40 Okla. Cr. 152, 267 P. 682; Russell v. State, 9 Okla. Cr. 692, 133 P. 475; Clemons v. State, 8 Okla. Cr. 452, 128 P. 739. Men may differ as to the construction placed on the information involved in the Martin case, supra. We are not called upon to pass upon that question. That was adjudicated by this court in that case. We are only required, in the case at bar, to approve the rule of law as announced in the Martin case as to instructions, and determine its applicability to the case at bar. With the principles therein announced as to instructions, we are heartily in accord. In Shepherd v. State, 51 Okla. Cr. 209, 300 P. 421, 422, this court said:

“The instructions of the court should conform to the charge in the information and the defense interposed and to the testimony in the case.”

The foregoing instructions are not only erroneous in that they instructed on the theory that the information charged first degree arson, but also for the reason that under the provisions of arson in the first degree, Title 21 O. S. A. § 1390, subsection (2), supra, the maximum penalty therefor is 15 years instead of 30 years. Even though the information was sufficient to charge first degree arson, under this section, the court’s instructions would be erroneous for the reason that it cannot substitute a greater penalty than that provided by law. When measured by both the information and the applicable statutes, instruction No. 6 was clearly erroneous. When measured by the charge contained in the information, second degree arson, the maximum penalty for which the defendant could be sentenced is five years. The instructions, as a matter of law, should have been within the limitations prescribed by the statutes. Such was not the case herein.

Next, the defendant contends that the court committed error in not sustaining his demurrer to the state’s evidence and his motion for a directed verdict. This contention is first predicated upon the proposition that there is a fatal variance in the allegations of the information and the proof to the effect that the defendant was charg: ed in the information with burning a building located at 14 South Lewis, when the proof showed the building' to be located at 16 South Lewis. This contention would have great merit were it not for the fact that the building is further described as being “Owned by Lottie May Winger and being occupied by Harry Abdo” et al. The place owned by Lottie May Winger and occupied by Harry Abdo was well-known to the defendant. Abdo was the defendant’s-competitor, operating the Whittier Bar in the building burned. ■ The defendant knew to. what place reference was made when it was described as occupied by Harry AbdOj even though inaccurately described in the information, as .14 South Lewis instead 16 South Lewis. . -Merer over, the.defendant in his signed confession described the Whittier Bar, operated by Harry Abdo, and said it was located at .14 South Lewis. Furthermore, he knew that the place described.as occupied by Harry Abdo et.al. was the same place he had hired Buddy Rogers to burn, which he did, prior to the occasion herein involved, setting the roof thereof on fire in an attempt to burn Abdo’s Whittier Bar. So far as the information- herein inyolyed -is concerned, there is but one building answering the description occupied by. Harry Abdo et al. — that was the. one located at 16 South Lewis, immediately adjacent to what was described as No. 14 South Lewis. Though inaccurately described as located at No. 14 in the defendant’s confession, there can be no doubt that he knew the place to which reference Avas made and that it was actually No. 16 South Lewis, the place owned by Lottie May Winger and occupied by Harry Abdo et al. as the Whittier Bar. The defendant, under these circumstances, could not have been misled as to what building he was charged to have been guilty of burning. He could not have been prejudiced by this variance, which at most was technical. It was not such a variance as would tend to prejudice him, since under the description of the building as to its own1-ership and occupancy be could not have been prejudiced by tbe discrepancy in the proof as to tbe bouse number since the allegation as to ownership and occupancy was clear and conclusive as to what building was intended in tbe information. Wright v. Commonwealth, 155 Ky. 750, 160 S. W. 476, 477, is a case in point, supporting this conclusion wherein tbe court said:

“Appellant could not have been misled by tbe words 'warehouse and tobacco house,’ for the same were qualified by tbe further description, ‘belonging to 6. R. Allen and.W. A. Usher, and occupied by B. W. Wright, who was doing business for B. W. Wright and Y. E. Allen.’ Appellant knew without doubt what building he was charged with burning.”

There was not a total or fatal failure of proof such as was involved in Cheeves v. State, 5 Okla. Cr. 361, 114 P. 1125; Henderson v. State, 18 Okla. Cr. 611, 197 P. 720; Yoather v. State, 5 Okla. Cr. 46, 113 P. 234, cited by the defendant in support of his contention.' In the last-cited cases the defendants were misled by the pleadings and the .proof was totally lacking to sustain the charge alleged, thus, the variance was fatal. No such situation confronts us in the case at bar. The variance herein certainly was not one of substance prejudicial to the defendant. Neither was it such a variance as to leave the defendant uninformed. The information gave him such facts as to- inform him without doubt as to what building he was charged with having burned, notwithstanding the discrepancy' of description. This contention of the defendant is therefore without merit. We are supported in this conclusion by the provisions of Title 22 O. S. A. § 421, reading as follows:

“An omission to designate, or error in designating in indictment for arson, the owner or occupant of a building, shall not prejudice the proceedings thereupon, if . it appears that upon the whole description given of the building, it is sufficiently identified to enable the prisoner to prepare his defense.”

There is no question about the information being sufficient to enable the defendant to prepare his defense.

The fourth contention of the defendant is based primarily upon the proposition that the verdict should have designated the degrees of crime of which the defendant was found guilty. This contention is grounded upon the provisions of Title 22 O. S. A. § 915, which reads as follows, to wit:

“Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”

The verdict was in words and figures as follows, to wit:

“We, the jury, drawn, impaneled, and sworn in the above entitled cause, do upon our oaths find the defendant Howard J. Stokes guilty of the crime of Arson, as charged in the information herein and fix his punishment at confinement in the State Penitentiary at McAlester, Oklahoma, for a term of fifteen years (15). (sgd.) E. L. Mendenhall, Foreman.”

The defendant contends in substance that the jury should have found the degree of the defendant’s guilt, that if they had found the defendant guilty as charged in the information, they would have found him guilty of second degree arson, that instead the jury found him guilty as charged in the information and fixed his punishment at 15 years and based upon this verdict the court imposed the sentence of 15 years; that if the jury had actually found the defendant guilty as charged in the information the verdict would have been guilty of arson in the second degree and the maximum sentence that could have been imposed would have been 5 years. With this contention we are in accord. Unfortunately, from the standpoint of the defendant, the provisions of Title 22 O. S. A. § 915, supra, have not been given the limited construction contended for by the defendant but the same has been construed in light of other statutes having a bearing on this question. Morgan v. State, 8 Okla. Cr. 444, 128 P. 159; Inklebarger v. State, 8 Okla. Cr. 316, 127 P. 707; Munson, v. State, 13 Okla. Cr. 569, 165 P. 1162; Hardeman v. State, 15 Okla. Cr. 229, 175 P. 948; Smith v. Territory, 14 Okla. 162, 77 P. 187; and, Bowlegs v. State, 9 Okla. Cr. 69, 130 P. 824, 825, wherein the jury found the defendant guilty as charged in the indictment. The court said, in relation to Title 22 O. S. A. § 915, supra:

“The verdict was received, read, and recorded without objection on the part of the defendant.”

Here, the verdict was received, read and recorded as in the Bowlegs case, without objection. Furthermore, no objection was raised as to the verdict until the case came here on appeal. Further in the Bowlegs case, supra, this court said:

“This provision of Procedure Criminal must be interpreted in connection with other provisions which have a bearing on the question as will be seen by reference to the same.”

Further on in the opinion the court quoted with approval from Hunn v. Commonwealth, 143 Ky. 143, 136 S. W. 144, a Kentucky case wherein the court held :

“Failure of a verdict to name the offense of which the jury found defendant guilty does not invalidate it if from its language as a whole no doubt can arise as to the offense of which he was convicted.”

Then, as to a similar contention to that made by the-defendant in the case at bar, as to the Bowlegs case, supra, this court said:

“We think the defect is not sufficient to affect the substantial rights of the defendant. He was present, his counsel was there, and this verdict was received and read in his hearing, and no objection was made. It is our opinion that the error is not one which will justify a reversal of the judgment.”

Moreover, in Re Knight, 75 Okla. Cr. 316, 131 P. 2d 506, 508, this court said in part: .

“While it is undisputed that tlie verdict of the jury finding the defendant guilty of robbery and fixing his punishment at forty years imprisonment, and the judgment of the court as rendered in accordance therewith are technically informal in that, the jury failed to find the degree of the crime of which he is guilty (sec. 3096, St. 1931, 22 O. S. 1941 § 915) while the statute requires the degree to be found by the jury, however, it has been repeatedly held by this court that ‘where a verdict is irregular in form, but is not objected to at the time it is returned, and the court given an opportunity to have the jury correct it, every intendment and inference will be indulged to uphold it, and where from an examination of the verdict, and the entire record, the intent and purpose ‘ of the jury as expressed in the verdict may be clearly, ascertained, it will be upheld.’ ” • ■

The court instructed the jury as to first degree arson but advised them that if they should find the defendant committed “the crime of arson as charged in the information in this case and as defined in these instructions, then it will be your duty to convict the defendant and fix Ms punishment by imprisonment in the penitentiary for a term for not less than one year nor more than thirty yeai*s.”

Thus, in its final analysis the case resolves itself into one of erroneous instructions based upon an erroneous conception on the part of the trial court that the informa: tion charged arson in the first degree. Had the instructions been limited to second degree arson in conformity with the information and the sentence been in accordance therewith, the defendant would be left without a single contention of merit. That the jury found the defendant guilty of the crime of arson, as defined in Title 21 O. S. A. § 1381, supra, is conclusive. Therefore, in the last analysis the turning point in the case is to be found .in the instructions and excessiveness of punishment.

There is not the slightest doubt as to the defendant’s guilt.' The facts are clear and conclusive that the defendant operated the Circle Bar. He sought to eliminate his competitors Abdo et al., who operated the Whittier Bar. His signed confession and other evidence conclusively shows that on a prior occasion to the one herein involved he paid Buddy Rogers to pour gasoline on the roof of the Whittier Bar in an attempt to burn down Abdo’s place. That thereafter he made an agreement with Russell De-gen and Jimmy Knight to burn the Whittier Bar and paid them in advance twenty-five dollars ($25) each.: That instead of burning the place they went to the bar, broke off the spigots and smashed in the Nickelodian. That he told them he wanted a completed job and would pay them $100 each.. (Knight apparently got cold feet and left town and had no further connection with the case.) Thereafter, Russell Degen brought George Jakeway to the defendant and another deal was made to burn the Whittier Bar. Thereafter, he helped them carry the gasoline to burn it. Degen and Jakeway broke into the Whittier Bar in the nighttime, early in the morning on January 23, 1945, poured gasoline in and about the bar and set fire to it. They were seen running from the place by Mr. W. R. Chilton. They admitted their complicity and testified fully for the state. They were substantially corroborated by the defendant’s confession and other evidence. The fire imperiled the lives of Doctor Switzer and Mr. Hogan, who lived in the adjoining house to which the bar had been built, as hereinbefore described. Doctor Switzer’s dog perished in the fire. It was a vicious crime, deliberately planned and executed. The evidence of the defendant’s guilt is clear and conclusive. The evidence is-sufficient to support a conviction for arson in the first degree; however, the information charges arson in the second degree, and the court instructed on arson in the first degree. It is unfortunate that the information does not charge arson in the first degree. Had the court instructed the jury on arson in the second degree, as charged in the information, the jury would undoubtedly have returned a verdict of guilty of arson in the second degree and assessed the penalty therefor. So, as hereinbefore indicated, the error is the result of faulty instructions. Under the provisions of Title 22 O. S. A. § 1068:

“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 * * * 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.”

This section of the statute has been construed many times. In Baker v. State, 22 Okla. Cr. 224, at page 229, 210 P. 292, at page 294, this court said:

“This court would not be authorized to reverse a conviction on the ground that the trial court erred in its instructions to the jury, unless from an inspection of the entire record it appears that the defendant was injured thereby, and to determine the issue the court must consider the question as to whether the defendant is guilty or innocent of the offense charged. Fowler v. State, 8 Okla. Cr. 130, 126 P. 831; Fulkerson v. State [17 Okla. Cr. 103], 189 P. 1092 [Holmes v. State, 18 Okla. Cr. 415, 195 P. 508].”

In Quick v. State, 51 Okla. Cr. 121, 299 P. 242, 243, this court said:

“This court has said, in substance, that the giving of erroneous instructions is not always ground for reversal. Thompson v. State, 6 Okla. Cr. [50], 51, 117 P. 216; Gransden v. State, 12 Okla. Cr. 417, 158 P. 157; West v. State, 13 Okla. Cr. 312, 164 P. 327, L. R. A. 1917E, 1129; Cloud v. State, 41 Okla. Cr. 395, 273 P. 1012.”

Had the verdict in this case been one for second degree arson and the penalty not to exceed five years, as hereinfore said, the defendant would not have had the slightest grounds of complaint. Under the provisions of Title 22 O. S. A. § 1066, “the appellate court may reverse, affirm or modify the judgment appealed from * * *.” In Bright v. State, 76 Okla. Cr. 67, at page 76, 134 P. 2d 150, at page 154, this court said:

“It is not often that this court will modify a judgment and sentence, and it is only when the ends of justice demand that it will be done.”

In Ex parte Williams, 63 Okla. Cr. 395, 75 P. 2d 904, 908, this court said:

“Under Procedure Criminal, Section 3204, 22 Okla. St. Ann. § 1066, this court, exercising its revisory jurisdiction, has the power and authority to modify any judgment appealed from by reducing the sentence. Williams v. State, 10 Okla. Cr. 336, 136 P. 599.”

See, also, Tah Do Quah v. State, 62 Okla. Cr. 139, 70 P. 2d 818, wherein the court said:

“This court, exercising its revisory jurisdiction, has the power to modify, within the limits of the statutes, any judgment and sentence appealed from, in the furtherance of justice.”

See Murphy v. State, 72 Okla. Cr. 1, 112 P. 438, to the same effect; Griffin v. State, 84 Okla. Cr. 207, 180 P. 2d 844; Thomas v. State, 69 Okla. Cr. 188, 101 P. 2d 283. In Sleeper v. State, 71 Okla. Cr. 136, 109 P. 2d 520, 524, this court said :

“Under the decisions of this court from the earliest days of its existence it has uniformly been held that instructions are to be examined in the light of the whole record. In construing Oklahoma Statutes 1931, section 3206, 22 Okla. St. Ann. § 1068, it has been uniformly held that a case will not be reversed by reason of an error in an instruction unless the error was such that had ‘probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right/ and that if, after an examination of the entire record, the guilt of the defendant was established to the extent that a retrial of the case would not change the result, that the case would not be reversed. Thompson v. State, 6 Okla. Cr. 50, 117 P. 216; Hooper v. State, 7 Okla. Cr. 43, 121 P. 1087; West v. State, 13 Okla. Cr. 312, 164 P. 327, L. R. A. 1917E, 1129; Montgomery v. State, 19 Okla. Cr. 224, 199 P. 222; Holmes v. State, 18 Okla. Cr. 415, 195 P. 508; Quick v. State, 51 Okla. Cr. 121, 299 P. 242; Exline v. State, 48 Okla. Cr. 135, 289 P. 783; Cole v. State, 18 Okla. Cr. 430, 195 P. 901; Cowley v. State, 65 Okla. Cr. 479, 88 P. 2d 914; Williams v. State, 62 Okla. Cr. 394, 71 P. 2d 781; Janeway v. State, 62 Okla. Cr. 264, 71 P. 2d 130.”

A retrial of the case at bar would not change the result as to guilt of the defendant. In the event of a retrial, under proper instructions, the jury would find the defendant guilty as charged in the information, of second degree arson and fix his penalty at not less than five years in the penitentiary. We base this conclusion upon the fact that even on the theory of first degree arson the jury could have assessed the minimum of one year, but did not. Instead, it fixed a penalty of 15 years. There is not the slightest reason to believe that on the theory of second degree arson another jury would fix the penalty at less than the maximum of five years. In view of these conclusions and the overwhelming evidence of guilt of the defendant, the judgment and sentence will be accordingly modified to five years in the penitentiary and, as modified, affirmed.

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

On Petition for Rehearing.

Judgment modified by reducing sentence from term of five years in the State Penitentiary to a term of two years in the State Penitentiary and, as so modified, affirmed.

Irvine E. Ungerman and Joe Chambers, both of Tulsa (Charles A. Whitebook, of Tulsa, of counsel), for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.

BRETT, J.

It was urged by the defendant, Howard J. Stokes, on rehearing, that this court was without jurisdiction to modify and affirm the judgment and sentence of the lower court on the record as herein made. It was further contended that the modification amounted to a different sentence by this court and constituted a denial of due process in that the defendant was denied a new trial by jury. He further contended ■ that since the information charged second degree arson and that the case was tried for first degree arson and the jury so instructed, that this court, under the authority of Martin v. State, 48 Okla. Cr. 102, 289 P. 787, could only reverse the cause for a new trial and was without power to modify the judgment and sentence. Finally, it was contended that there was no precedent to support the action of this court.

These contentions are without merit and there is ample authority to support this action of the court. A case that is squarely in point with the procedure pursued in the court’s original opinion is Cunningham v. State, 55 Okla. Cr. 67, 24 P. 2d 1013, 1015, wherein the defendant was charged with rape in the second degree, but he was tried as though charged with rape in the first degree and the jury was so instructed. Upon conviction the defendant was sentenced to serve 15 years in the State Penitentiary. Therein, this court said:

“This court, under the power to modify judgments, section 3204, Okla. St. 1931 [22 O. S. 1941 § 1066], may reduce the judgment to the included offense of rape in the second degree and fix appropriate punishment. Lebo v. State, 40 Okla. Cr. 116, 267 P. 288; Plaster v. State, 45 Okla. Cr. 452, 283 P. 805; Brasel v. State [48 Okla. Cr. 403] 291 P. 807.
“The judgment is therefore modified from rape in the first degree to rape in the second degree, the punishment fixed at four years in the penitentiary, and, as modified, the case is affirmed.”

In this same connection, see Randall v. State, 33 Okla. Cr. 262, 243 P. 983, Mayberry v. State, 44 Okla. Cr. 134, 279 P. 934, and the rather recent case of Kilpatrick v. State, 75 Okla. Cr. 28, 128 P. 2d 246, wherein the court modified the conviction from first degree rape and punishment at 15 years, to assault with intent to commit rape and punishment at two years. The foregoing authorities constitute ample support of the court’s action in this matter, in addition to the provisions of Title 22 O. S. A. § 1066, 22 O. S. 1941 § 1066.

Moreover, as was said by Justice Harlan in Motes v. United States, 178 U. S. 458, 20 S. Ct. 993, 1000, 44 L. Ed. 1150:

“It would be trifling with the administration of the criminal law to award him a new trial because of a particular error committed by the trial court, when in effect he has stated under oath that he was guilty of the charge preferred against him.”

A similar situation confronts us in the case at bar.. The defendant’s signed confession, and other evidence, in effect, amounts to an admission of his guilt as to the charges preferred against him.

There is, however, a matter presented in the petition for rehearing which has impressed us with its merits. That is, the contention of this defendant that this court modified the punishment imposed against the defendant to the maximum sentence which could have been meted out to him if a jury had been corrrectly instructed as to the law applicable to this case. After considering this argument of the defendant, we have come to the conclusion that in view of the fact that we are not remanding this case for another trial that it would probably be an unwarranted assumption that a jury' of twelve men would give him the maximum punishment. Moreover, in consideration of the fact that the defendant has never before been involved in any trouble and upon being informed that nothing has been done to bring Bussell Degen and George W. Jakeway, the perpetrators of this crime, to trial and justice for approximately two years, we feel that the ends of justice warrant a further modification of the judgment and sentence.

It is therefore hereby ordered that the judgment and sentence imposed herein against Howard J. Stokes be modified to a term of two years in the penitentiary and the judgment and sentence as so modified is affirmed.

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


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    Ex parte JOHN ALLEN.
    No. A-11019.
    April 7, 1948.
    Writ of Certiorari Denied May 24, 1948.
    See 68 S. Ct. 1333.
    (192 P. 2d 289.)
    John Allen, per se.
    Mac Q. Williamson, Atty. Gen. and Sam H. Latti-more, Asst. Atty. Gen., for respondent Claud Moore, Warden, Oklahoma State Reformatory.
   BRETT, J.

Petitioner John Allen alleges he was convicted on February 23, 1925, in the district court of Pawnee county, Oklahoma, for the crime of murder, and sentenced to serve a life sentence in the State Penitentiary at McAlester, Oklahoma. Thereafter, and on December 20, 1948, petitioner was transferred from the Oklahoma State Penitentiary to the Oklahoma State Reformatory at Granite, Oklahoma. Petitioner contends that his original conviction was obtained without the privilege of grand jury consideration and he was not indicted by such body in accordance with the provisions of Article V of the Bill of Rights. Petitioner contends that presently he is confined without authority of law, and therefore, is entitled to be released. To the petition the state filed a response in which it is alleged that each and every material allegation in said petition is denied and that the petitioner is now in the custody of the warden of the Oklahoma State Reformatory, Claud Moore, under and by virtue of the aforesaid judgment and sentence of the district court of Pawnee county, Oklahoma, and he is therefore detained under lawful custody.

Petitioner appears for himself. This court has re-péatedly held that it looked with liberality in construing petitions filed by inmates of state institutions which are prepared without the advice and help of an attorney. See Ex parte Walker, 84 Okla. Cr. 190, 180 P. 2d 670; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549, 550. However, this court has held that the writ of habeas corpus is limited to cases where the judgment and sentence of the court attacked are clearly void. No such situation is presented by this record. This court on ha-beas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure. Such was the holding in Ex parte Tollison, supra; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486. For the reasons set forth in the cases just cited, petitioner’s contention in regard to the irregularity of the presentment of the charge is wholly without merit.

Petitioner’s contention is further predicated upon the proposition that he is not now confined as provided by law since the place of confinement is not now the place to which he was sentenced, and for that reason he is entitled to a writ of habeas corpus. Under the provisions of Title 57 O. S. A. § 105, “all persons whose term of confinement is for life or a term of ninety-nine years” shall be confined in the State Penitentiary at McAlester, Oklahoma. In the case of Ex parte Neighbors, 85 Okla. Cr. 183, 187 P. 2d 276, 277, this court held that “under the provisions of Title 57 O. S. A. § 105, it is clear that the Legislature intended the Oklahoma State Penitentiary at McAlester to be the place of confinement of confirmed criminals, repeat violators, those sentenced to life imprisonment, * * In Ex parte Neighbors, supra, this court further held that: The State Board of Public Affairs is vested with certain discretionary powers in making transfers of prisoners and that:

“The State Board of Public Affairs may transfer prisoners from the Oklahoma State Reformatory to the Oklahoma State Penitentiary or vice versa in the exercise of its discretion when it is necessary so to do; to separate confirmed and incorrigible criminals from those who do not require the restrictions placed around them that the confirmed criminal requires, but, such transfers are not to be arbitrarily made or made contrary to classifications expressly provided by the Legislature, and where it appears that the transfer of a prisoner has been made contrary to a statutory classification, the State Board of Public Affairs will be directed to return the prisoner to the place of confinement as provided by law.”

In said case it was further held that “both the courts and the State Board of Public Affairs are bound by the statutes as written by the Legislature”. It is therefore apparent that the order made by the State Board of Public Affairs on December 20, 1946, transferring John Allen from the State Penitentiary at McAlester to the State Reformatory at Granite, who stood convicted of murder and sentenced to life imprisonment, was contrary to the provisions of Title 57 O. S. A. § 105, and is void. However, on March 22, 1948, the petitioner was by order of the State Board of Public Affairs returned to the penitentiary at McAlester, Oklahoma, for service of sentence imposed by the district court of Pawnee county, Oklahoma. The question raised by the petition as to lawful custody is not now at issue and the writ must be denied. It is so ordered.

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


text:
    HARRY McCARTHY v. STATE.
    No. A-10780.
    Jan. 21, 1948.
    (189 P. 2d 436.)

      John L. Ward, Jr., of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

Harry McCarthy, the defendant herein, complains that the trial and conviction upon the charge of unlawful possession of intoxicating liquor and the judgment and sentence thereon to serve 90 days in the Tulsa county jail and to pay a fine of $250, are erroneous.

The facts are that someone was operating a place about ten miles east of the city of Tulsa on route 66, known as the Hollywood Inn. That on or about the third day of May, 1946, Roy Rains, a deputy sheriff of Tulsa county, appeared before the Honorable John T. Harley, judge of the court of common pleas, and made an affidavit in words and figures as follows, to wit:

“Roy Rains, being first duly sworn, upon oath deposes and says: That certain intoxicating liquor is being manufactured, sold, bartered, given away, and otherwise furnished; and is being kept for the purpose of being sold, bartered, given away, and otherwise furnished in violation of the prohibitory laws of the State of Oklahoma; the kind and description of said liquor being as follows to wit:
“Wine, beer, whisky and other intoxicating liquor, and imitations thereof and substitutes therefor, the exact quantity thereof being unknown.
“That said liquor is being disposed of and kept in the manner aforesaid by One McCarthy on the following described premises situated in Tulsa County, Oklahoma, within said County and State, to-wit: a certain night club known as Hollywood Inn in a one-story building located on the North 133 Feet of the East 198 Feet of the North % of the Northwest % of the Northeast !4 of the Northwest % of Section 9, Township 19N, Range 14 East in Tulsa County, State of Oklahoma together with the curti-lege thereof and the appurtenances thereunto belonging.
“This said building is not a private residence, and is used as a place of public resort and for the furnishing and storage of intoxicating liquor.”

Upon the foregoing facts as alleged, a search warrant was issued by the Honorable John T. Harley on the 3rd day of May, 1946, directed to Roy Rains to search a certain nightclub known as the Hollywood Inn, all as described in the affidavit.

That pursuant thereto, on said date of May 3, 1946, a search was made of the said Hollywood Inn and eight one-half pint bottles of Old Crow Whisky, three pint bottles of assorted whisky, one four-fifth quart bottle of gin and one four-fifth quart bottle of rum were found incident to said search and return thereon was made into the court of common pleas by H. A. Lewis, deputy sheriff of Tulsa county.

The first assignment of error urged on behalf of the defendant is that the foregoing affidavit upon which the search warrant was issued served, the search made, and the evidence thereon obtained, was insufficient as a matter of law, for the reason that, though the affidavit was positive in form, it did not affirmatively state facts tending to establish probable cause but was a mere positive affirmation of conclusions.

The form of the hereinbefore set. forth affidavit has repeatedly been held to be sufficient by this court. Smith v. State, 30 Okla. Cr. 144, 235 P. 273, 162 A. L. R. 1414. The affidavit in that case was almost identical with the one hereinbefore set forth. The affidavit in the Smith case, supra, reads in substance as follows:

“J. H. Smitherman, being first duly sworn, upon oath deposes and says: That certain intoxicating liquor is being manufactured, sold, bartered, given away, and otherwise furnished, and is being kept for the purpose of being sold, bartered, given away, and otherwise furnished, in violation of the prohibitory law of the state of Oklahoma, the kind and description of said liquor being as follows, to-wit: Wine, beer, whisky, and other intoxicating liquor, and limitations thereof and substitutes therefor, the exact quantity thereof being unknown to affiant. That said liquor is being disposed of and kept in the manner aforesaid by one John Doe, whose real name is unknown to informant, on the following described premises, situate in Tulsa county, Oklahoma, within said county and state, to wit: One certain one-story frame house located as follows : Fifth house east from coal chute in the West Tulsa Frisco yards, and north of Frisco railway, in the county of Tulsa, together with the curtilage thereof and appurtenances thereto. That said building is a private residence, and is used as a place of public resort, and for the storage and furnishing of intoxicating liquor.”

It will be observed that the affidavits are almost identical. In the Smith case, supra, the court distinguishes from Hannan v. State, 29 Okla. Cr. 203, 233 P. 249, 162 A. L. R. 1414, relied upon by the defendant. In the Smith case, supra, this court said:

“In the Hannan Case the affidavit upon which the search warrant was based was as follows: * * That intoxicating liquors are being kept by John Doe, and in the said John Doe’s possession, in a certain building situated at 616-618 E. avenue in the city of Lawton, county of Comanche, and state of Oklahoma, for the purpose and; with the intent of the said John Doe to sell the same in violation of the law, and for the purpose of committing a public offense.’
“Whether an affidavit for a search warrant states evidential facts or mere conclusions is sometimes difficult to determine. In this regard it seems to us that the affidavit in the Hannan Case is on one edge of the twilight zone, and the affidavit here under Consideration is on the other edge. s " *
“Now let us see how the affidavit in the case here under consideration differs from the one in the Hannan Case. The affidavit in the instant case shows that ‘John Doe’ was a fictitious name, and that the offender’s real name was unknown to affiant. It also states that the place described was a place of pxiblic resort, the fifth house (presumably a residence) east of the coal chute, and that it was a place where wine, beer, and whisky were being kept. All these statements, considered together, reasonably implied that the liquor described was being kept for an illegal purpose.
“While we do not wish to hold that the affidavit in the case here under, consideration is a model in form and substance, we do hold that there were some facts stated sufficient to warrant the magistrate in making a finding of probable cause. While a search warrant must be based upon evidentiary facts, the quantum of evidence necessary to show probable cause may be quite insufficient to support a verdict of guilty.
“The two affidavits differ materially in three vital particulars: First, in naming and describing the persons; second, in naming and describing the intoxicating liquors; and, third, in describing the character of. the place where the liquors were being kept. In the Hannan Case nothing is stated but naked conclusions; in the instant case there are some facts stated designating the person in possession, the kind of liquor, and the character of . the place where it was being kept.
’ “Without receding from any of the conclusions announced in the Hannan Case, we hold that the court erred in this case in suppressing the evidence obtained by means of the search warrant, * *

This court has held numerous affidavits substantially in the same form as the one involved in the case at bar and that involved in the Smith case, supra, to be valid. Roe v. State, 32 Okla. Cr. 113, 240 P. 140; Mullus v. State, 32 Okla. Cr. 134, 240 P. 135; State v. Skelton, 36 Okla. Cr. 377, 254 P. 754; Cahill v. State, 38 Okla. Cr. 236, 260 P. 91; Dobbs v. State, 39 Okla. Cr. 376, 265 P. 658; Hayes v. State, 41 Okla. Cr. 302, 274 P. 41; Hanson v. State, 55 Okla. Cr. 138, 26 P. 2d 436; Heath v. State, 54 Okla. Cr. 240, 17 P. 2d 527. In Heath v. State, supra, this court quotes with approval from the case of Smith v. State, supra, substantially as we Rave quoted from the same. It is therefore apparent that this contention is without merit.

The defendant makes twenty-four (24) separate and distinct assignments of error. He groups them under eight (8) propositions which he urges in his brief. The foregoing assignment of error is the only one which is not entirely without merit. It will not be necessary, however, for us to consider but one other proposition which is clearly decisive of the issues involved in the case at bar. That assignment is set out in proposition number five (5), to the effect that the court erred in failing to sustain the defendant’s demurrer to the evidence and in its failure to give the defendant’s first and second requested instructions, directing a verdict of not guilty in favor of the defendant. This contention is directed at the insufficiency of the evidence and is predicated upon the proposition that the state failed to show ownership or possession of the liquor herein involved in the defendant Harry McCarthy. The record in this regard discloses the following facts:

Deputy Sheriff Roy Rains testified in relation to ownership and possession of the whisky and the Hollywood Inn, as follows, to wit:

“Q. Do you know who operates the Hollywood Inn? A. To the best of my knowledge— Q. Whom did you serve the search warrant on? A. Mr. McCarthy. (C-M 65) Q. Are you familiar with Hollywood Inn? A. Yes. Q. How long have you been familiar with it? (C-M 66) A. Almost a year. Q. During that period of a year, can you tell us who operated the Hollywood Inn? A. Mr. McCarthy. (C-M 67).” .

It should be observed that the witness, Roy Rains, first said he knew “to ■ the best of my knowledge” who operated the Hollywood Inn, indicating he was not sure. Even in this he is corroborated by no one or no circumstance of substantial nature. This is the most positive evidence in the record showing defendant’s connection with the Inn or his ownership and possession of the liquor found in the Hollywood Inn, upon which this prosecution is based. There were three officers in addition to Deputy Sheriff Roy Rains, Deputy Sheriffs R. W. Brooks, Howard Lewis, and Charles Reynolds, all of whom testified, but their testimony affords not the slightest allusion to ownership, possession, control, or the exercise of dominion over the same, indicative of possession or ownership. To the contrary, the testimony of Deputy Sheriff Brooks is as follows, to wit:

“Q. This man you say came in the door, he made some motion, as you started towards the cashier. A. Yes. Q. Do you know whether or not that was Don Farring-ton? A. I don’t know what his name is, tall slim fellow. Q. Did you later talk to him that night? A. I might. Q. You stood there and talked ten minutes? A. I might. I talked to several. Q. At that time Harry McCarthy wasn’t there when any such indication was made with his head. A. I seen him in there. Q. He didn’t make that indication? A. It wasn't Mm. (C-M 88, 89) * * \ Q. You don’t know who runs the place? A. I don’t know the name of any. (C-M 90).”

The foregoing testimony of Officer Brooks indicates that some man other than the defendant was exercising control over and was in possession of the liquor herein involved. The only other attempt to connect the defendant with the ownership and possession of the liquor and the Inn is to the effect that the defendant had been seen there on numerous occasions prior to the one herein involved and that when the raid was in progress the defendant followed the officers around. Other than this, there is no evidence whatsoever tending to establish the essential elements, to wit, ownership and possession. Furthermore, the record discloses that a man by the name of Don Far-rington and his family lived in the house forming a part of the Hollywood Inn, and though the officers were loathe to admit it, Farrington was the man who gave the nod to the cashier, which act is highly indicative of control, if not possession. In Crowder v. State, 47 Okla. Cr. 197, 287 P. 739, 740, this court quoted with approval from Mater v. State, 9 Okla. Cr. 380, 132 P. 383, as follows:

“In a prosecution for having possession of intoxicating liquors with intent to sell same, the burden, was on the state to prove that the place where the liquor was found was in defendant’s possession or under his control, or that the intoxicating liquor was his, or that he had possession of same either as owner or employee.”

In Hill v. State, 76 Okla. Cr. 371, 137 P. 2d 261, 267, this court said:

“There should be some proof that the defendant was in possession of the intoxicating liquor found in the pasture or such circumstances, from which it maybe reasonably and logically inferred, such as proof of the ownership, or control of the land where it was found, or. such connection with it that it can be said that there is proof of possession. The evidence fails to show that the pasture was in the possession or under the control of the defendant, or that the intoxicating liquor was hers, or that she had possession of the same. Mater v. State [supra]; Benson v. State, 10 Okla. Cr. 16, 183 P. 271, 274; Crowder v. State [supra].”

In McCarthy v. State, 6 Okla. Cr. 483, 119 P. 1020, quoted with approval in Robinson et al. v. State, 66 Okla. Cr. 139, at page 143, 90 P. 2d 54, 56, wherein this court said:

“The evidence should be of such a character as to overcome prima facie the presumption of innocence. If the evidence raises a mere suspicion, or, admitting all it tends to prove, the defendant’s guilt is left doubtful or dependent upon mere supposition, surmise, or conjecture, the court should advise the jury to acquit the defendant.”

Then, in Robinson et al. v. State, supra, this court said:

“The first fundamental principle of criminal jurisprudence is that every defendant is presumed to be innocent until Ms guilt is established by competent evidence beyond a reasonable doubt. Here there is absolutely no evidence to rebut this presumption. The evidence is not sufficient to support a charge of sale by defendants. Certainly there is nothing to show possession. It would be a mere matter of guess to say that defendants were guilty under this testimony.”

In Bohannon v. State, 65 Okla. Cr. 121, at page 123, 83 P. 2d 422, 423, this court said :

“To justify or sustain a conviction for unlawful possession of intoxicating liquor there must be evidence sufficient to prove possession and also evidence of the criminal intent. Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869.”

In the ease at bar, as to the proposition of ownership and possession, the evidence merely raises a suspicion or, to say the least, the defendant’s guilt is doubtful or dependent upon mere supposition, surmise, or conjecture. See, in this connection, Ritter v. State, 84 Okla. Cr. 418, 183 P. 2d 257, 259, wherein this court, quoting with approval from Simpson v. City of Tulsa, 67 Okla. Cr. 224, 93 P. 2d 539, says:

“ ‘To sustain a conviction of crime, each and every material element must be supported by the evidence.
“ ‘To sustain a conviction, it should appear not only that the offense was committed, but the evidence inculpating the defendant should do so to a degree of certainty transcending mere probability or strong suspicion.
“ ‘While it is well settled that this court will not disturb the verdict on account of the insufficiency of evidence when there is evidence to support it, the converse rule is equally well settled that it is not only the province, but the duty, of the court to set aside such a verdict when it is contrary to the evidence, or where there is no evidence to support it. The performance of this duty on the part of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence, to which every one is entitled who is put upon trial for an offense.’
“See, also, Cude v. State, 42 Okla. Cr. 357, 276 P. 240; Hewitt v. State, 61 Okla. Cr. 415, 69 P. 2d 93; Severe v. State, 64 Okla. Cr. 53, 77 P. 2d 116; Williams v. State, 38 Okla. Cr. 370, 261 P. 977; Bass v. State, 29 Okla. Cr. 92, 232 P. 955; Davis v. State, 32 Okla. Cr. 436, 241 P. 500.”

Somebody was guilty, it is true, but the identity of the guilty party under this record constitutes nothing more nor less than a mere piece of speculation. It occurs to us that it would have been , a very easy matter to have established ownership of the Hollywood Inn or control thereof or proof of such circumstances from which ownership and possession could logically be inferred and from which it could be logically said there was proof of possession of the intoxicating liquor herein involved. This record merely discloses that the defendant, McCarthy, was there and had been there on other occasions, and that he followed the officers around when the search was being made. The record does not attempt in any way whatsoever to establish his connection with the Hollywood Inn, as to ownership, management, as an employee, or as to who owned the liquor, other than on the basis of mere supposition or speculation.

For the foregoing reasons, we are of the opinion that the court erred in not sustaining the defendant’s demurrer to the evidence. The judgment of the court of common pleas of Tulsa county is reversed and the cause remanded for a new trial.

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


author: JONES, J. BAREFOOT, P. J.

text:
    Ex parte LEE ROY PATRICK.
    No. A-10994.
    Jan. 21, 1948.
    (189 P. 2d 420.)

      Marvin Shilling, of Ardmore, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for respondent.
   JONES, J.

This is an original action instituted by the petitioner, Lee Roy Patrick, to secure a writ of ha-beas corpus directed to the sheriff of Johnston county; the prisoner alleging he is being unlawfully restrained of his liberty in the county jail of Johnston county.

The verified petition alleges in substance that the petitioner is held in the county jail of Johnston county, State of Oklahoma, by reason of his arrest on a warrant issued by the Governor of Oklahoma, for his extradition to the State of California to answer a prosecution there pending against him for the alleged crime of desertion of his wife and unborn child.

Tlie petition further alleges that the separation between petitioner and his wife occurred in the State of Oklahoma, and that petitioner and his wife were residing in the State of Oklahoma in Johnston county, at which time she left him and was taken by her parents to the State of California where she has since resided; that petitioner is not a fugitive from justice, but that the alleged prosecution is malicious and wholly without foundation, and commenced after the petitioner had obtained a divorce from the complaining witness in the district court of Johnston county, Okla.

The Attorney General in his response denies that the prosecution is malicious, or made in bad faith, and alleges that all "of the papers requisite to a valid extradition have been prepared and properly certified; and that the warrant of the Governor of Oklahoma granting the requisition of the Governor of the State of California should not be nullified by the court in view of the supporting affidavits attached to the complaint upon which the prosecution is based which showed that the petitioner and his wife were living in the county of Contra Costa, State of California, at the time of the alleged desertion, and had been living there for more than eight months prior to the time the petitioner without any just cause abandoned his wife in destitute circumstances and without her knowledge or consent took with him the infant child of the parties.

At the hearing before this court, the petitioner testified that he was reared in Johnston county. That in 1942, he went to California and started to work and lived there continuously from 1942 until November, 1945. That while he was working in California he met the prosecuting witness and married her on August 10,1945. That two or three months after the end of the war, and about November, 1945, he and the prosecutrix came to Mill Creek, Okla., and lived there until after the birth of a child in September, 1946. That a few weeks after the baby was born, the parents of the prosecuting witness came from California and over his protest took her and the baby back to California. That in two or three weeks after they had gone to California, he followed them and after he reached California he and the prosecuting witness moved into an apartment by themselves. He started back to work and they lived in the apartment until June 6, 1947. That on June 6, 1947, without the knowledge or consent of the prosecutrix, he took the infant child and went to Portland, Oregon. That he stayed at Portland a few days looking for work, and on June 9, 1947, he wrote a postal card to the prosecuting witness telling her he had taken the baby and that the baby was well. He continued to look for work in Oregon and California for several days, and during this period of time he wrote another postal card on August 26, 1947, from Pittsburg, California, to his wife telling her that the baby was still well. That he later returned to Mill Creek, Okla., where he filed suit for divorce against the prosecutrix. That this divorce was granted about November 18, 1947.

Counsel for the petitioner introduced in evidence, as a part of the proof of petitioner, the original files in the divorce action instituted by the petitioner in the district court of Johnston county. In that case, service was had upon the prosecuting witness by publication. She did not file an answer in the case and no appearance was made in her behalf at the time of the hearing of the petition for divorce. She did, however, file a pleading which was styled a special appearance and objection to jurisdiction, in which she objected to the jurisdiction of the district court of Johnston county on the ground that the plaintiff, Lee Eoy Patrick, was not a resident in good faith of Oklahoma, but was in fact a resident of the State of California, and that he had only been in the State of Oklahoma a few days at the time the petition for divorce was filed.

In the supporting affidavit of the prosecuting witness attached to the extradition papers, she swore that she informed the defendant in April, 1947, that she was pregnant and that she is now expecting the birth of a child very shortly. That she is destitute and wholly without funds and the petitioner has at no time since he left there in June, 1947, furnished her with any financial assistance. The petitioner, on cross-examination, admitted that he had never sent her any money for her support since he had left California, but stated that he had written her several letters offering to send her railroad fare to come to Oklahoma, if she would come and live with him in Johnston county.

This court has held that in an extradition case, the question of the good faith of the prosecution is open to inquiry on habeas corpus; however, there is a strong presumption that the prosecution is in good faith, and in order to overcome this presumption, the proof on behalf of the petitioner that the prosecution is maliciously inspired, or in bad faith, must be clear, convincing, and without doubt. Ex parte Welborn, 69 Okla. Cr. 282, 102 P. 2d 624; Ex parte Dobson, 83 Okla. Cr. 428, 178 P. 2d 113; Ex parte Cassel, 85 Okla. Cr. 4, 184 P. 2d 467, 468.

At the hearing, counsel for petitioner conceded that the complaint filed against the petitioner in the State of California legally charges him with the commission of a crime under the laws of California, and that the papers before the Governor of Oklahoma at the time he issued the warrant of arrest for petitioner* were regular upon their face, and bases his claim for relief upon the sole ground that tbe prosecution was maliciously brought and was not in good faith.

In Ex parte Cassel, supra, this court stated:

“In habeas corpus proceeding, seeking release from custody under a warrant of extradition, this court may look into papers before the Governor and determine whether upon their face a crime is charged and if they are found to be regular on their face and positive in their allegations, this court will not permit inquiry to go behind them to show that they are not what they appear to be; * * *
“This court will permit the petitioner in a habeas corpus proceeding, seeking release from a warrant'of extradition, to show that the prosecution was not 'brought in good faith but such evidence must be clear, convincing, and without doubt that the prosecution in the demanding state is in bad faith. ' , •
■ “The action of the Governor in issuing the warrant of extradition should not be nullified by the courts unless it conclusively appears that the accused is not a fugitive from justice and that the issuance of the warrant was in plain contravention of the law.”

The affidavit of the prosecuting witness attached to the extradition papers, ■ alleges facts which on their face show that the petitioner is guilty of the commission of a crime in the State of California. Under the evidence of the petitioner, he admits living in the State of California with the prosecuting witness in their apartment during an eight month period from November, 1946 to June, 1947. He was corporeally present in the State of California on the date the crime is alleged to have been committed under his own testimony. Petitioner swore that he had gone to California to attempt to get his wife to return to Oklahoma with him, but he also testified that he secured employment in California, and he and the prosecutrix moved into an apartment and lived there together until he departed without her knowledge or consent in June, 1947. Even after, be separated from the prosecutrix, he did not return to Oklahoma but spent several weeks in various states where, according to his testimony, he was seeking employment, :

lit is significant that the district judge who granted the divorce to petitioner also heard his application for ha-beas corpus in connection with the extradition here involved, and the writ was denied and it was subsequent to the denial of the writ of habeas corpus by the resident district judge, that this original proceeding was instituted in this court.

This court wil not determine the question of the guilt or innocence of an individual arrested on a warrant issued by the Governor upon the requisition of the Governor, of a demanding state. We have simply detailed the facts pertaining to the issue of the good faith of prosecution to' show that although there is considerable merit to the contentions of the petitioner,- Ms proof falls far short of being that quality of evidence which this court can say was clear, convincing, without doubt, and practically conclusive, that the prosecution was maliciously inspired, and was not in good faith.

The: petitioner having failed to sustain the burden of showing that the prosecution in California was in bad faith, the writ, of habeas corpus is denied.

BRETT, J., concurs.

BAREFOOT, P. J.

(dissenting). I do not dissent to the, law as announced in this case, but am of the opinion that the evidence was not sufficent to establish the fact of the residence of petitioner in the State of California, after the parents of.the prosecutrix had come to Okla- . hoaaa and forcibly,taken, her and her child to the State of California from tbeir established home in Oklahoma. In other words, I think the evidence showed that petitioner’s only reason for being in the State of California was to try and induce his wife to return with their child to her Oklahoma home. If the evidence was such as to establish the residence of petitioner in the State of California, as found by the majority opinion, then the opinion is correct.


author: JONES, J.

text:
    CLOYDE ARTHUR RAY v. STATE.
    No. A-10791.
    Jan. 28, 1948.
    (189 P. 2d 620.)
    Rehearing Denied March 31, 1948.

      Merle G. Smith, of Guthrie, Chester E: Bender,' of Thomas, and Meacham, Meacham, Meacham & Meacham, of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This prosecution arose out of a collision between an automobile driven by the. defendant and one driven by the deceased, Frank Artley, on Highway 33, about two and one-half miles west of Watonga, on Sunday afternoon, October 21, 1945, about 5 o’clock.

The information charged the defendant with the crime of manslaughter in the first degree, and alleged that the death of Frank' Artley was proximately caused by the defendant driving and operating his automobile on the public highway in an intoxicated condition. The jury found him guilty of manslaughter in the second degree and left the punishment to the court. The defendant was sentenced to serve two years in the State Penitentiary and has appealed.

The proof of the state showed that the deceased, together with his wife and 15 year old daughter, left their home in Cimarron county, Okla., for Thomas, driving a Chevrolet automobile. They arrived at the Y, nine miles west of Watonga, between 4 and 5 o’clock p. m.. There they missed the road turning off to Thomas and continued on east toward Watonga. The deceased was driving his automobile about 40 miles per hour on the right-hand or south side of the road. The defendant was driving west from Watonga in a bluish green Ford sedan. Several witnesses testified that the defendant in the operation of his automobile was swerving from one side of the highway to the other. Some of the state’s witnesses testified that just before the collision, the car driven by the defendant was on the south or wrong side of the róad and that just preceding the collision, both cars turned toward the center of the road, apparently to avoid the collision and they made a head-on crash into each other. The deceased was taken to the hospital where he died in about two hours.

The defendant was taken to the hospital and the attending physician, together with one of the nurses, testified that they could smell alcoholic liquor on his breath. A highway patrolman and a deputy sheriff testified that they attempted to interview the defendant in the hospital, but the defendant talked incoherently and in their opinion Was intoxicated. A quart jar filled with wine and a quart jar-with just a little wine left in it were found in the defendant’s automobile immediately after the collision.'

Two youths 16' years of age testified that they had known the defendant for several years. That they saw him in. Watonga, about 20 or 30 minutes before the accident and that he was drunk. On cross-examination of these youths, it . was disclosed, however, that they had had some difficulty with the defendant a year or so previously and were unfriendly to him.

The defendant testified in his own behalf; that he was 45 years of age and had lived at Thomas since 1938; that he was engaged in the grain business. That on the day of the fatal accident, he had lunch in Clinton and then drove to Custer City to talk over some business matters with a Mr. Rankin. That when he started home he bought a couple of quarts of wine and took two drinks of it. That he went on home to Thomas and stopped at his office. That upon reading his mail, he found some mail that made it important for him to go over to Crescent in Logan county to visit his brother and sister. That he left Thomas at 3:45 p. m. and did not stop until he reached Watonga, where he stopped at the Four Corners cafe. That about a mile east of Watonga it commenced to rain and he decided not to go on to Crescent, and turned around and came back. That he drove west of Watonga on Highway 33 until he had the collision with the Artley car. That he had nothing to drink except the two drinks of wine and that there was about three-fourths of.‘the wine left in one of the jars, which he placed under the front seat. That just preceding the collision with the Artley car, he was driving slowly and on the right-hand side of the road. That the car driven by the deceased turned out around a parked car at the side of the road which caused the collision. That he did not know Vhat. happened after the collision until late that night at the hospital. That lie did not remember talking to the deputy sheriff or the highway patrolman.

Several witnesses testified as to the good reputation of the defendant. It was also shown that it had been raining, off and on, all day, and the party who purchased the wrecked automobile of the deceased after the collision testified that the rubber hose used in connection with the windshield wiper was rotted to where it would not work.

Lloyd Burcham testified that he was a truck driver and followed the car of the deceased from Supply tó Seil-ing, about a distance of 50 miles. That the car of the deceased drove on the middle or left-hand side of the road all of the time he followed it, and when it met another automobile it would get over just enough to let the car pass.

The first proposition presented in the brief of the defendant is that the court committed error in submitting Instructions Nos. 10 and 14 to the jury. Instruction No. 10 defined the elements of manslaughter in the second degree. Instruction No. 14 advised the jury that if they should find the defendant not guilty of manslaughter in the first degree, then they should consider whether the defendant is guilty of manslaughter in the second degree, etc.

It is contended that the court erred in permitting the jury to find the defendant guilty of manslaughter in the second degree, which they did, if they found him guilty of culpable negligence when no culpable negligence was alleged in the information.

As heretofore noted, the information charged the crime of manslaughter in the first degree and alleged that the death of deceased was proximately caused by the defendant driving his automobile while in an intoxicated condition on the public highway. There was no allegation in the information that the defendant was driving or operating his automobile in a reckless and careless manner with a culpable disregard for the safety of others, and counsel for defendant contend that the rule of law that the jury may find defendant guilty of any offense, the commission of which is merely included in that with which the accused is charged, applies only where the allegations of the information embrace or cover the included offense, and that therefore in the instant case the failure of the county attorney to allege the elements of culpable negligence in the information prevents the court from submitting the issue of manslaughter in the second degree to the jury.

In the case of Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481, the defendant was charged with the crime of murder, allegedly committed by driving an automobile into a Dodge automobile occupied by the deceased. Said act allegedly constituted murder for the reason that at the time of the commission of the act, the defendant was committing a felony, to wit: driving an automobile on a public highway while under the influence of intoxicating liquor.

In the second syllabus this court stated the law to be as follows:

“Where defendant is charged in the information with the crime of murder, if the facts warrant, it is not only proper for the court to instruct the jury in reference to manslaughter in the first and second degree, but it is his duty to do so.”

In the case of Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111, the information charged that the defendant while operating an automobile in an intoxicated condition did run into and strike the deceased with such force as to cause bis death. The defendant Roberts contended in the appellate court that the court erred in refusing to submit the issue of manslaughter in the second degree, and this court reversed the judgment of the trial court upon that issue.

The law of that case as shown by the syllabus is as follows:

“In prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests. * * * •
“The driving of an automobile upon the highway with a degree of carelessness amounting to a culpablé disregard of the rights and safety of others, and thereby causing the death of another, establishes the crime of manslaughter in the second degree.
“Where evidence is conflicting as to whether defendant was under influence of intoxicating liquor at time he was driving automobile which it is alleged struck and killed the deceased, but there is evidence from which jury could reasonably conclude that defendant was guilty of culpable negligence in the operation of his automobile, trial court erred in refusing to give requested instruction by defendant submitting the issue of manslaughter in the second degree.”

We shall take the liberty of quoting from that opinion as this court discusses the question herein involved at length. It was therein stated:

“It is well-settled that in a prosecution for murder, the court should submit the case to the jury for consideration upon every degree of homicide which the evidence in any reasonable view of it suggests, and, if the .evidence tends to. prove different degrees, the law of each degree 'which the evidence tends to prove should be submitted to the jury. Atchison v. State, 3 Okla. Cr. 295, 105 P. 387; Kent v. State, 8 Okla. Cr. 188, 126 P. 1040; James v. State, 14 Okla. Cr. 204, 169 P. 1127; Mead v. State, 65 Okla. Cr. 86, 83 P. 2d 404; Hodges v. State, 65 Okla. Cr. 277, 85 P. 2d 443; Tucker v. State, 66 Okla. Cr. 335, 92 P. 2d 595; Clark v. State, 63 Okla. Cr. 138, 73 P. 2d 481; Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981; Smith v. State, 59 Okla Cr. 111, 56 P. 2d 923, 924.
“In Smith v. State, supra, it is stated:
“ ‘In the trial of a charge of murder it is the duty of the trial court to determine as a matter of law whether there is any evidence tending to reduce the crime to the lower'degrees of homicide, and, if so, it becomes his duty to instruct the jury the law of such lower degree.’
“ ‘When it appears that a defendant has committed a public offense and there is reasonable ground of; doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degrees only.’
“ ‘Where there is evidence which tends to reduce the degree of the homicide from murder to manslaughter in either of its degrees, the trial court should give the defendant the benefit of any doubt which the evidence may suggest, and instruct the jury the law of each degree which the evidence tends to prove.’
“By Statute, it is provided: ‘When it appears that a defendant has committed a public offense and there is reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of such degree[s] only.’ 22 Ó. S. 1941 § 837.
“Manslaughter in the second degree is defined as follows : ‘Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.’ 21 Q, S. 1941 § 716.
“This court has had this statute under consideration in many appealed cases involving homicides growing out of the operation of automobiles.
“The case of Nail v. State, 33 Okla. Cr. 100, 242 P. 270, was similar to the case at bar. There, a conviction for manslaughter in the second degree was sustained. This court held that the jury did not find the facts necessary to sustain a conviction for murder or manslaughter in the first degree, but they did find that the death of the deceased was caused by the act of culpable negligence of the defendant. In defining culpable negligence, this court stated: ‘ “Culpable negligence” is the omission to do something which a reasonable and prudent person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case.’
“The court also said: ‘The driving of an automobile upon the highway, with a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and thereby causing the death of another, establishes the crime of manslaughter in the second degree.’
“In the case of Clark v. State, supra, [63 Okla. Cr. 138, 73 P. 2d [481] 482], the deceased was killed by a truck driven by defendant. This court stated: ‘Where defendant is charged in the information with the crime of murder, if the facts warrant, it is not only proper for the court to instruct the jury in reference to manslaughter in the first and second degree, but it is his duty to do so.’
“In that case, as in the instant case, the defendant was charged with driving his automobile while under the influence of intoxicating liquor at the time of the alleged homicide. On the issue as to whether the defendant was intoxicated at the time of the collision, the evidence was in conflict, the same as in the instant case. There would have been sufficient evidence for the jury to have concluded in either case that the defendant was intoxicated or that he was not intoxicated. This court there held that the court properly submitted the issue of manslaughter in the second degree, as the jury, under the evidence, could have found that the defendant was not intoxicated at the time of the commission of the alleged homicide, but that he was guilty of culpable negligence in the operation of Ms automobile. See, also, tbe following cases: Philby v. State, 64 Okla. Cr. 1, 76 P. 2d 412; Freeman v. State, 69 Okla. Cr. 164, 101 P. 2d 653; Wilson v. State, 70 Okla. Cr. 262, 105 P. 2d 789; Ansley v. State, 44 Okla. Cr. 382, 281 P. 160; Walters v. State, 57 Okla. Cr. 424, 48 P. 2d 875; Chandler v. State, 79 Okla. Cr. 323, 146 P. 2d 598; Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285; Sprouse v. State, 52 Okla. Cr. 184, 3 P. 2d 918; Herndon v. State, 38 Okla. Cr. 338, 261 P. 378; Smith v. State, 46 Okla. Cr. 160, 287 P. 1103.”

In the case of Tucker v. State, 66 Okla. Cr. 335, 92 P. 2d 595, 596, it is stated:

“Where a defendant is charged with the crime of murder, it is the duty of the trial court to instruct on the law of manslaughter in the first or second degree, if there is any evidence that the alleged crime might have been committed under circumstances that would reduce the crime from murder to manslaughter.”

In that case the information charged the crime of murder allegedly committed by the defendant operating his automobile on a public highway while in an intoxicated condition.

In the body of the opinion it is stated:

“It will be noted that the above statutes state that a Mlling of a person while engaged in the commission of a felony is murder, and while engaged in a misdemeanor is manslaughter in the first degree. The evidence in this case would have amply justified the jury in finding defendant giiilty of murder under the above statute, but as is often the case, in the deliberation of juries, the defendant was given the benefit, and the jury only found him guilty of manslaughter in the first degree. It has often been held by this court that where a defendant is convicted of a lesser degree, that the verdict will not be set aside because he should have been convicted of a higher degree. The error, if any, is to his benefit, and he therefore cannot complain. Berry v. State, 54 Okla. Cr. 154, 18 P. 2d 285; Philby v. State [64 Okla. Cr. 1], 76 P. 2d 412. See also the following late eases of this court construing the principles of the statute quoted: Clark v. State [63 Okla. Cr. 138], 73 P. 2d 481; Williams v. State [63 Okla. Cr. 234], 74 P. 2d 632; Haithcock v. State [63 Okla. Cr. 276], 74 P. 2d 641.
“It has often been held by this court that it was the duty of the trial court to instruct on the law of manslaughter- if there is any evidence that the alleged crime might have been done under circumstances that would reduce the crime from murder to manslaughter. Hopkins v. State, 4 Okla. Cr. 194, 108 P. 420, 111 P. 947; Ryan v. State, 8 Okla. Cr. 623, 129 P. 685. In the case of Updike v. State, 9 Okla. Cr. 124, 130 P. 1107, 1110, the court says:
“ ‘This makes it the duty of the trial court to give to the jury such instructions as the court may think necessary for their information in giving their verdict. This vests the matter of the instructions to be given in the discretion of the trial court. It is true that this discretion is subject to review upon appeal, but it will not be disturbed unless the record presents a clear case of abuse of discretion. No conviction should be reversed for the failure of the trial court to instruct upon any given issue, unless from the testimony in the case it appears that an honest and intelligent jury could legitimately arrive at a conclusion favorable to the defendant upon such issue. We fail to find any evidence in this record upon which an intelligent and honest jury could have convicted appellant of manslaughter in the second degree. The action of the trial court in giving the instruction complained of is therefore not error.’ ”

The case of Hall v. State, 80 Okla. Cr. 310, 159 P. 2d 283, presents facts which are similar to the instant case. The information alleges substantially the same offense, to wit: manslaughter in the first degree, allegedly committed while the defendant was engaged in a misdemeanor, to wit: driving an automobile on a public highway while in an intoxicated condition.

The law of that case as shown by the second syllabus reads as follows:

“Where one is charged with manslaughter in the first degree under statute providing that one who kills a human being while committing á misdemeanor, shall be guilty of manslaughter in the first degree, and facts justify, the defendant may be found guilty of manslaughter in the second degree upon proper instructions, as an included offense.”

In view of the above authorities and in consideration of the facts in the instant case, it is apparent that the court acted correctly in submitting the included offense of manslaughter in the second degree to the jury.

It is contended that the evidence is insufficient to sustain the judgment. We have hereinabove given a brief resume of the evidence. Under the evidence of the state, the jury could have come to the conclusion that the defendant was driving his automobile while he was in a drunken condition. Under the evidence of many witnesses for the state who had occasion to observe the manner in which the defendant was operating his automobile prior to the fatal collision, the defendant was operating it in a reckless manner with a culpable disregard for the rights of others who were using the highway. The evidence under any view which the court might take certainly raised an issue for the determination of the jury.

Complaint is made as to the admissibility of the testimony of two witnesses, one of whom testified about the action of a dark colored Ford with a “34” license that he saw going west out of Watonga about an hour before the accident. It is true that the witness did not know the model of the Ford automobile and did not specifically state it was. the automobile being driven by defendant. However, there were many circumstances which wpuld tend to show that the car observed by this witness was the one driven by the defendant on that occasion. The other witness testified that he saw a green colored car with a “34” license tag going west from the place of the collision, about an hour before it occurred. This witness further testified that he later saw the car involved in the wreck at the collision, and that it looked like the same car.

The testimony of each of these two witnesses concerned a car, which, from their description and the circumstances pertaining to its operation, when considered with all the other evidence including that of defendant himself, strongly indicated that the car they saw was the one being driven by the defendant, and their evidence placed the car in the vicinity where the collision occurred at about the time it occurred.

The Attorney General in his answer brief quotes from the case of Hall v. State, supra, and the language of Judge Barefoot in that case is so applicable to the facts in the instant case that we quote therefrom:

“Unlike the Chandler case, supra, and many of the cases there cited, the defendant here was driving on the wrong side of the highway, and there can be no doubt that his carelessness and negligence was the proximate cause of the collision and the resulting death of the deceased, and the evidence establishes the fact that defendant was under the influence of intoxicating liquor at the time of the collision, which was a very strong circumstance for the consideration of the jury in coming to the conclusion that he was operating his truck in a careless and reckless manner. There is nothing to show any negligence or carelessness on the part of Mr. Johnson, who was driving the car in which the deceased was riding at the time of his death. Under the law, his attempt to turn to the left when he saw that defendant would not yield the right of way, was clearly an act in an emergency on his part in which he was fnlly justified under the law.”

The judgment of the district court of Blaine county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.