author: DAVENPORT, J. CHAPPELL, J.

text:
    JOE SINQUEFIELD v. STATE.
    No. A-7593.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 203.)
    I. 0. Sprague, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for tbe State.
   DAVENPORT, J.

Tbe plaintiff in error, hereinafter called tbe defendant, was convicted in tbe district court of McCurtain county of tbe crime of assault to do bodily barm, and bis punishment fixed by the jury at imprisonment in the county jail for one year.

The testimony on behalf of the state in substance shows that the defendant shot Mannie Woods, a negro, with a .22 rifle. The shooting took place on the 21st day of February, 1929, on a farm near Redlake in the southern part of McCurtain county. The testimony shows that on the day of the shooting the defendant and the prosecuting witness were at the house of Tom Gaffney, who was also a colored man; that, as Mannie Woods was leaving the Gaffney place, he had some conversation with the defendant. The testimony of the state and of the defendant as to what the prosecuting witness said to the defendant just before the shooting is in conflict. It is admitted that the defendant shot the prosecuting witness with a .22 rifle, hitting him just back of the ear.

The defendant in his testimony admits shooting Man-nie Woods, and states he was standing in the front yard near a gate when Woods and a negro doctor came out of the house and started out of the gate.

“Mannie said to me, ‘-Joe, how do you like the snow?’ and I said, Won should learn how to address a white man,’ and as Mannie walked through the gate he said he was a free man, and could call me what he liked; and I called him an impudent hound, and he wheeled and said, ‘I don’t take that off of no white man.’ I picked up my target and Mannie said for me to wait until he got a gun and he would mix it with me; I told him to stop and he did not, and I shot him. I believed he had a gun at the corner of the fence and that he was making for it.”

The defendant called W. A. (Bill) Lofton as a witness, who testified he had known the defendant since 1908, and that his reputation in the community in which he lived for being a peaceable, law-abiding citizen was good.

The court instructed the jury not to consider this evidence as to the defendant’s reputation. The defendant then offered to- show by the testimony of J. C. Joplin, Gus Rowland, and S. R. Bryant that they and each of them knew the reputation of the defendant in the community in which he lived for being a peaceable, law-abiding citizen, and that his reputation in that respect was good. .This offer was refused by the court, and the defendant reserved an exception.

Several errors are assigned by the defendant. The only one that it is deemed necessary to consider to arrive at an opinion in this case is the eighth assignment, which is as follows:

“Error of the court in refusing tO' permit the defendant to prove his reputation for being a quiet, peaceable and law-abiding citizen.”

It is always permissible for a person charged with a crime to offer his general reputation in the community in which he resides as being a peaceable, quiet, law-abiding citizen. Good character is admitted for two purposes, first, to raise a presumption that there must be some mistake in the testimony of the state, on the ground that a person of good character would not have committed the crime charged, and for this purpose the evidence of good character may be sufficient to create in the minds of the jury a reasonable doubt of the defendant’s guilt; second, it may be introduced in evidence for the purpose of mitigation, and it is always admissible for either one or the other of these purposes. Gilbert v. State, 8 Okla. Cr. 544, 128 Pac. 1100, 129 Pac. 671; Carney v. State, 29 Okla. Cr. 83, 232 Pac. 451.

The punishment for assault to do bodily harm may be by imprisonment in the penitentiary for any period of time from one minute to not exceeding five years, or imprisonment in the county jail not exceeding one year.

Under the statute the jury might have assessed the punishment of the defendant at imprisonment for one year in the penitentiary or county jail. The evidence of the character of the defendant was of utmost importance in this case, and it was his legal right to prove it to he good by any reasonable number of witnesses. It was therefore error for the trial court to sustain the objection to the introduction of the evidence of the good character of the defendant.

Other errors are assigned, but, in the view we take of this record, it is not deemed necessary to consider them. For the error above pointed out, the judgment of the lower court is reversed.

EDWARDS, P. J., concurs.

CHAPPELL, J.

(dissenting). I cannot agree with the majority opinion of the court in this case.

Defendant in his opening statement in his brief says:

“Defendant admits the shooting. Defendant was standing in the front yard; Mannie Woods and the negro doctor came out of the house and started out of the gate; Mannie said ‘Joe how do you like the snow’; defendant said: ‘You should learn how to address white men’ (C.M. page 33) ; as he walked through the gate he said he was a free man and could say what he liked. Defendant called him an impudent hound. He whirled and said: ‘I don’t take that off of any damn white man.’ Defendant picked up his target and Mannie Woods turned back the other way and said: ‘Wait until I get a gun and I’ll mix it with you.’ Defendant told him to stop, he didn’t and defendant shot him. (C.-M. page 34.) Defendant says he believed he had a gun at the corner of the fence, and he was making for it. (C.-M. page 34.)”

Defendant testified:

“Q. Why did you shoot them? I shot them because I thought I was in danger myself. (C.-M. page 44.)
“Q. What did they do that caused you to believe you were in danger? A. He made that rough remark about he wouldn’t take that off of no damn white man and when he started back and I asked him to stop, and he wouldn’t stop, I thought he was going for a gun. I didn’t want him to get hold of it and me with nothing but that little old target. (C.-M. pages 44 and 45.)
“Q. What made you believe he had a gun? A. Simply because he was going that way and said wait until he could get a gun and he would mix it with me. I supposed he had a gun. (C.-M. page 45.) ”

The evidence of the defendant established a clear case of unprovoked assault with a deadly weapon. This court has repeatedly held that it is not necessary for the court to instruct the jury on self-defense, where there is no evidence in the record tending to establish such a defense. Hunter v. State, 7 Okla. Cr. 300, 123 Pac. 564; Smith v. State, 22 Okla. Cr. 383, 212 Pac. 1012; Fabry v. State, 23 Okla. Cr. 215, 213 Pac. 910.

It was further contended that the trial court erred in refusing to permit the defendant to introduce in his behalf certain competent, relevant, and material evidence.

This assignment relates to the action of the trial court in refusing to permit the defendant to introduce evidence of his previous reputation in the community where he lived for peace and quietude and as a law-abiding citizen. The record discloses that the defendant made the required proffer of proof of this evidence.

This court has held that evidence of good moral character is always admissible and is material in the trial of a criminal case, not only as a matter of defense, but also as a matter of mitigation. Gilbert v. State, 8 Okla. Cr. 543, 128 Pac. 1100, 1101, 129 Pac. 671.

In the body of the opinion this court said:

“It is always permissible for a person charged with the crime of murder to' offer his or her general reputation in the community in which he or she resides as being a peaceable, quiet, law-abiding citizen, and such testimony is not confined to cases where the doctrine of self-defense arises, neither is it necessary that the defendant should first take the witness stand to render such testimony competent.
“Good character is admitted for two purposes: First, to raise the presumption that there must be some mistake in the testimony of the state, upon the ground that a person of good character would not have committed the crime charged, and for this purpose it may be sufficient to create in the minds of the jury a reasonable doubt of the defendant’s guilt; second, it may be introduced in evidence for the purpose of mitigation, and it is always admissible for either one or the other of these purposes.”

It was error for the trial court to' refuse to permit this evidence to be introduced; but was it reversible error? Section 2822, C. O. S. 1921, provides:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless in the opinion of the court to which application is made, * * * 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.”

It is apparent that the rejection of this evidence did not constitute a substantial violation of any constitutional or statutory right given the defendant in a criminal case, unless this court can say that the trial court’s action in this respect deprived, the defendant of a fair and impartial trial.

In the Gilbert Case, supra, this court has said that evidence of this kind is admissible for two purposes: First, in order to show that a person of good character would not likely have committed the crime charged. The defendant could not have been injured by its rejection on that theory where, as in this case, he admits the shooting and attempts to justify it solely on the ground of self-defense, and his own testimony is such as to show there is no self-defense in the case. If there had been any issue as to who committed the alleged crime or as to who was the aggressor where there was evidence of self-defense, then the rejection of evidence of this kind should be held to be reversible error despite our harmless error statute, section 2822, supra. However, where the accused testified to a state of facts that proved that he did not act on this occasion as a peaceable, quiet, law-abiding citizen would have acted, can he then be prejudiced by the exclusion of proffered testimony that he bears the general reputation of being a peaceable, law-abiding citizen? I think not, because he foreclosed that issue by his own testimony in this case. Evidence of good character could cast no doubt on the question of the firing of the shot — that was admitted by the defendant; neither could such evidence raise any doubt on the question of justification where the defendant testified to a state of facts that showed he was not justified under the law.

In expounding the doctrine of harmless error, this court has repeatedly held that no judgment of conviction should be reversed on account of the improper admission or exclusion of evidence, where it is clear from an inspection of the entire record that the error complained of did not deprive tbe defendant of the benefit of some constitutional or statutory right or that the defendant was injured thereby, and to determine whether or not the defendant was injured thereby this court must consider the question of whether or not the defendant is guilty of the crime charged. Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Woody v. State, 10 Okla. Cr. 322, 136 Pac. 430, 49 L. R. A. (N. S.) 479; Lemley v. State, 13 Okla. Cr. 452, 164 Pac. 1152; Ray v. State, 35 Okla. Cr. 322, 250 Pac. 438; Crowell v. State, 40 Okla. Cr. 392, 276 Pac. 518.

In Braught v. State, 17 Okla. Cr. 1, 179 Pac. 769, 776, a death penalty case, the doctrine of harmless error was applied, and in the body of the opinion, on page 24 of the report, this court said:

“When an error has been committed upon the trial of a case it is the duty of the court, upon the inspection of the entire record, to determine whether or not the defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal.”
“When the evidence in a case is clear as to the guilt of a defendant, and all the forms of the law have been complied with, and there is no' reason to believe that upon a second trial an intelligent and honest jury can arrive at any other verdict than that of the guilt of the accused, fie judgment of the lower court will not be set aside for anything less than fundamental error. John W. Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Coleman v. State, 6 Okla. Cr. 253, 118 Pac. 594; R. C. Swartz v. State, 6 Okla. Cr. 590, 120 Pac. 1029; Offitt v. State, 5 Okla. Cr. 49, 113 Pac. 554; Carter v. State, 6 Okla. Cr. 232, 118 Pac. 264; Suitor v. State, 6 Okla. Cr. 305, 118 Pac. 412; Smith v. State, 6 Okla. Cr. 380, 118 Pac. 1003; and many subsequent decisions.”

In view of the fact that the defendant is guilty under his own testimony, the rejection of the proffered evidence of good character was not prejudicial to his substantial rights, and did not deprive him of a constitutional or statutory right.

Secondly, this court has held that evidence of good character is admissible as a matter of mitigation of punishment.

The punishment fixed by the jury was one year in the county jail. Under defendant’s own testimony, such punishment was wholly inadequate, and the infliction of the same tends to outrage justice and destroy law enforcement. The defendant shot the prosecuting witness in the back of the head with a rifle. There is no question of his guilt. Under his own evidence it cannot be said that he was entitled to, or that the jury might have given him, less punishment if the evidence had been admitted. Weak-kneed, sob-sister juries who- return verdicts of this character and appellate courts which reverse such convictions on technicalities create disrespect for law and destroy its enforcement.

The refusal of the trial court to permit the defendant to introduce evidence of his good character and reputation for peace and as a quiet, law-abiding citizen was a technical error, but this court should not permit it to work a reversal of the judgment of conviction.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    TIMMIE FACTOR v. STATE.
    No. A-7766.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 206.)

      Billingsley & Stanley, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county on a charge of assault with a dangerous weapon and was sentenced to serve a term of one year in the state penitentiary.

The information charges defendant with assault with intent to kill. At the close of the testimony defendant asked leave to withdraw his plea of not guilty and to enter a plea of guilty to the included offense of assault with a dangerous weapon. The court permitted this to be done. The plea was entered and the case passed for one week for the passing of sentence. At that time defendant filed a motion asking leave to withdraw his plea of guilty setting out that he is a full-blood Seminole Indian, did not know the English language, and did not understand that he would be sentenced to a term of one year in the penitentiary. He was represented at the trial by able counsel. 'Section 2621, Comp. St. 1921, permits the withdrawal of a plea of guilty at any time before judgment. This court has held that it may be withdrawn even after judgment, where it appears that a defendant was ignorant or unduly influenced, or his rights were not properly protected. Permitting a defendant to withdraw his plea is discretionary with the court. In this case there was no abuse of discretion.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    CHARLES COLDIRON v. STATE.
    No. A-7541.
    Opinion Filed Oct. 25, 1930.
    Withdrawn and Opinion Refiled Dec. 13, 1930.

      L. T. Cook, Ben F. Williams, and Homer Cowan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of McClain county of the crime of assault with a deadly weapon, and his punishment fixed by the jury at imprisonment in the state penitentiary for three years.

The evidence of the state was that the defendant shot one O. M. Brooks, in the breast, near the heart, with a .32 caliber revolver, and that the shot was without provocation. The evidence of the defendant and his witnesses was that Brooks was attempting to cut defendant with a knife at the time the shot was fired, and the sons of Brooks were advancing on defendant with drawn knives threatening to kill him. The state used a large number of witnesses who were present and testified positively that Brooks had no knife and was making no attempt to assault defendant; while defendant with a large number of witnesses testified that Brooks was assaulting defendant with a knife, and that defendant fired the shot in his own self-defense. Defendant urges that this evidence is insufficient to support the verdict of the jury.

It is evident from an examination of the record that a large number of witnesses committed perjury. If the evidence of the state is true, then that of defendant’s witnesses was a lie; and, on the other hand, if the evidence of the defendant is true, then that of the state’s witnesses was a lie. The credibility of the witnesses and the weight to be given their testimony is for the jury, and they evidently believed the witnesses for the state were telling the truth, and returned a verdict accordingly.

The decisions of this1 court upon the credibility of witnesses and the weight to be given their evidence and upon the sufficiency of the evidence are too numerous to be-cited. This court never reverses a case for insufficiency of the evidence where there is a conflict in the evidence and where there is any competent evidence in the record to support the verdict.

The defendant next contends that the court erred in permitting the state to indorse the names of G. E. Hunt, O. B. Hunt, J. B. Morris, and Tom Odell on the information in the midst of the trial, over the objection and exception of the defendant.

In the case of Grayson v. State, 12 Okla. Cr. 226, 154 Pac. 334, this court said:

“Under the statute, permission to indorse the names of additional witnesses on an information during the trial is a matter within the judicial discretion of the trial court, and unless an abuse of this discretion appears prejudicial to the substantial rights of the defendant, its ruling will not be reviewed.” Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18.

In Star v. State, 9 Okla. Cr. 210, 131 Pac. 542, this court said:

If, after announcing ready for trial, the court permits the names of additional witnesses to be indorsed upon an indictment or information, and if the defendant is surprised thereat, and if the indorsement of the names of the additional witnesses requires the production of further testimony upon the part of the defendant, the defendant should withdraw his announcement of ready for' trial and file a motion for a continuance, in which he should set up the facts constituting such surprise and what evidence, if any, he could produce if the case were continued to rebut the testimony of such additional witnesses for the state.”

To the same effect are Colbert v. State, 4 Okla. Cr. 500, 113 Pac. 558; Clark v. State, 5 Okla. Cr. 189, 113 Pac. 992.

It appears from the record that defendant objected and excepted to the action of the court in allowing the county attorney to indorse on the information, in the midst of the trial, the names of the witnesses, but filed no motion for a continuance, contenting himself with objecting to the indorsement of the names of the witnesses at the time, for the reason that the jury had been impaneled and the state had introduced part of its evidence, and the defendant was in no position to ascertain what the evidence of the witnesses would be or prepare to answer the same.

This objection being insufficient, and it being within the discretion of the court to permit the indorsement of the names of such witnesses, and no abuse of discretion appearing upon the record, the defendant was not prejudiced thereby.

The defendant next contends that the court erred in giving instructions Nos. 2, 3, 4, 5, and 6 to the jury. These instructions cover the law of self-defense. It would serve no good purpose to set them out in this opinion, but it is sufficient to say that they are in substance the usual instructions given in cases like the one at bar, and, when considered together, fairly state the law of the case.

Defendant next contends that the court erred in refusing to give certain instructions requested by the defendant.

It is not error for the trial court to refuse to give a requested instruction, although it may be a correct statement of the law, if the principles therein contained have already been given in the general instructions. Colglazier v. State, 23 Okla. Cr. 23, 212 Pac. 332; Hawkins v. State, 24 Okla. Cr. 82, 216 Pac. 166.

Defendant next contends that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence.

Attached to this motion is the affidavit of Ray Husband and Cecil Gibson. After the filing of this motion and these affidavits, the state procured an affidavit from Husband and Gibson, in which each of them swore that he did not intend to retract or contradict the evidence given by him upon the trial of the case. These two witnesses were upon the witness stand during the trial, and the defendant had the full right and opportunity to cross-examine each of them in regard to the matters and things brought out by the affidavits which the defendant after-wards procured from them.

The other supporting affidavit concerning newly discovered evidence was made by J. W. Chapman. If Chapman had testified as set out in his affidavit, his evidence would only have been cumulative, and could not have in any way affected the verdict of the jury.

This court has many times held that the granting or denying of a motion for a new trial was largely in the discretion of the trial court, and that his ruling thereon would not be reversed, unless it affirmatively appears from the record that such discretion had been abused.

This case presented hut one serious question, and that was whether the defendant was justified in shooting Brooks in his own self-defense. The jury, after seeing the witnesses and hearing the evidence, found that he was the aggressor, and that he shot Brooks without provocation or justification.

It appears that the defendant had a fair trial, and that the errors of law complained of are without any substantial merit.

For the reasons stated, the cause is affirmed.

ED WANDS, P. J., and DAYENPOET, J., concur.


author: DAYENPOET, J.

text:
    STEVE JORDAN v. STATE.
    No. A-7642.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 209.)
    Percy Powers, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAYENPOET, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of manufacturing intoxicating liquor, and his punishment fixed at imprisonment in the county jail for 30 days and a fine of $50. From the judgment the defendant has appealed to this court.

The defendant filed a demurrer to the information, in which he states the allegations do not constitute an offense against the laws of the state; which demurrer was overruled and the defendant duly excepted. When the case was called for trial, the defendant dictated into the record an oral motion to suppress the evidence obtained by reason of the search of the defendant’s premises, on the ground that the affidavit for the search warrant, and the search warrant was wholly insufficient, for the reason that there is no allegation in the affidavit for the search warrant that the home place and residence of the defendant, or any part of it, was used as a store, shop, hotel, boarding house, or place for storage, or that such residence was a place of public resort, as provided by section 7013, Comp. iStats. 1921; and for the further reason that the search warrant issued on the 24th day of August, 1928, which the defendant offers in evidence as “Exhibit B,” fails to charge or state that the residence and the home place of Steve Jordan was used as a store, shop, hotel, boarding house, or place for storage, or that any particular part was used for such purposes. The affidavit to obtain the search warrant was marked “Exhibit A,” and the search warrant was marked “Exhibit B,’.’ and introduced by the defendant in support of his motion to suppress the evidence secured against him.

From a careful reading of the affidavit we fail to find any statement in the affidavit that the home place and residence of the defendant, or any part of it, was used as a store, shop, hotel, boarding house, or place for storage, or that such residence was a place of public resort. The motion to suppress the evidence was overruled and defendant duly excepted. The. case was called for trial and a verdict of guilty returned against the defendant, fixing the punishment at a fine of $50 and confinement in the county jail for 30 days.

It is not deemed necessary to set out the testimony, or to further discuss the testimony in this case.

The defendant assigns several errors alleged to have been committed by the trial court, but the only one we deem necessary to consider is the third assignment, that the court erred in admitting certain incompetent, irrelevant, and immaterial testimony over the objection of the defendant. This objection relates to' the testimony that was secured by the officers having a search warrant based upon an affidavit which does not state the statutory requirements to search the defendant’s home.

When the defendant’s motion to’ suppress the testimony was considered, the jurors were excluded from the courtroom, and the court after hearing the argument overruled the motion and defendant duly excepted.

Section 7013, C. O. S. 1921, is as follows:

“No warrant shall be issued to> search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

It is urged by the defendant that the affidavit did not contain the proper allegations to authorize the officer to predicate a search warrant upon to search his home occupied as such. There is no statement in the affidavit complying with the statute, section 7013, supra. We agree with the defendant’s contention that there is no statement in the affidavit required by the said section, and the search made by the officers under the said search warrant was without legal authority, the affidavit not containing the allegations necessary to search the home of the defendant, there being no positive statement in the affidavit that the defendant’s residence was used as a store, shop, hotel, boarding house, or place for storage, or that the said residence was a place of public resort.

In Sprinkle v. State, 36 Okla. Cr. 36, 251 Pac. 614, in the second paragraph of the syllabus, the court said:

“An affidavit for a search warrant to search a private residence is invalid, unless it is made to appear by such affidavit that the private residence occupied as such, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or is a place of public resort. A search of a private residence, made upon authority of a search warrant based on such affidavit, which does not contain such allegation, is illegal.” Vice v. State, 36 Okla. Cr. 18, 251 Pac. 509; Loveless v. State, 43 Okla. Cr. 146, 277 Pac. 672; Moffitt v. State, 47 Okla. Cr. 234, 287 Pac. 736.

The motion of the defendant to suppress the evidence was well taken and the court erred in not sustaining the same.

Other errors are assigned and argued, but for the reason herein stated it is not deemed necessary to consider them.

The judgment of the lower court is reversed.

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


author: DAVENPORT, J.

text:
    FRED JONES v. STATE.
    No. A-7749.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 210.)

      John W. Wbipple, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted upon a charge of transporting liquor, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for a period of 30 days. From the sentence and judgment the defendant has appealed.

The testimony on behalf of the state; in substance, shows that the defendant and R. N. Ridenhour, on the 1st day of November, 1929, were in the town of Perkins, Okla., and as they drove out of Perkins one or the other of the men holloed; the city marshall and other officers of the town followed them, and a short distance out of town caught up with them; the defendant had stopped the car in which he and Ridenhour were riding, and Ridenhour had a bottle of whisky in his hand; when the officers took this whisky from Ridenhour, one of the officers told the defendant, Jones, that he wanted to search his car, if it was all right, and J ones told him to go ahead and search; in the seat of the car and up- on the back of it they found another bottle, which the officers claim was whisky. The defendant says be did not know this bottle was in the car; when be went to- bis car to start borne there were three boys sitting- in bis .car in front of the dance hall, and they got out and left the car.

Bidenhour testified for the defendant and stated before they left the town of Perkins a man told him to stop at a certain telephone post by the road where they would find a bottle of whisky;.they did stop and he found the bottle of whisky and walked back to the car, and got in the car and took a drink; the car was standing still at the time. The defendant Jones testified, in substance, the same as the witness Bidenhour; both claim they stopped the car and that Bidenhour had brought the whisky from a nearby telephone pole and was sitting in the car with the bottle in his hand. Neither of the men can account for the other bottle containing a quantity of whisky found in the car of the defendant.

The defendant has assigned several errors as grounds for reversal of this case. He argues at length that the evidence was inadmissible, for the reason that the officers searched the defendant’s car without a search warrant. This argument would have merit were it not for the fact that the officers and the defendant testify that the defendant gave them permission to- search his car. It is not necessary after the defendant gave the officers permission to search his car that they have a search warrant. The defendant by his action waived his right to require the officers to have a search warrant before searching his car.

The fourth, fifth, sixth, and seventh assignments of error of the defendant relate to the sufficiency of the evidence to sustain the verdict of the jury. It is true the quantity of whisky the defendant transported, which was contained in the bottle the defendant testified he did not know was in the -car, is very small. The statute under which the defendant was tried makes it a penalty to transport any quantity of whisky from one point in the state to another.

The testimony is sufficient to sustain the verdict of the jury. This court has many times held that, where there was any competent evidence upon which the jury ¡could reasonably find a verdict of guilty, it would not disturb the same. Finding no errors in the record of sufficient merit to reverse the case, the judgment is affirmed.

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


text:
    MRS. JIM MITCHELL v. STATE.
    No. A-7756.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 211.)
    R. H. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having possession of home brew, containing more than one-half of 1 per cent, alcohol measured by volume, and capable of being used as a beverage, with the intent to barter, sell, give away, or otherwise dispose of the same, and was sentenced to pay a fine of $100 and be imprisoned in the county jail for a period of 30 days; from which judgment the defendant has appealed.

The testimony on behalf of the state shows that on the day the premises of the defendant and her husband were searched her husband was in the city jail; that some time before the search was made, when it was claimed this defendant was in possession of the home brew in the cellar at her home, a search was made of the defendant’s premises, and no intoxicating liquor of any kind was found in the cellar; during the day, while her husband was incarcerated in jail, she was back and forth, and in the evening after the defendant was at the jail to see her husband during the day a search warrant Avas procured by the officers and the premises searched, and a large quantity of home brew found in the cellar at the home of the defendant and her husband; that an analysis showed that the home brew contained more than one-half of 1 per cent, of alcohol measured by volume.

The defendant denies she knew anything about the home brew in the cellar, and contends that the home breAV, after the first search was made, was moved there from the home of Mr. Page by Mr. Page and a woman named Ridley. This is in substance the testimony.

The defendant urges that her conviction was illegal, and has assigned several errors alleged to have been committed by the court in the trial of the case. The sixth assignment is as follows:

“Because the court erred in overruling the plaintiff’s motion for a new trial.”

This assignment covers all the other errors assigned. 'The record has been carefully examined, and we fail to ;find any fundamental or prejudicial errors contained therein. The testimony in this case is conflicting; on behalf of the state it shows the defendant was found in possession of the home brew. The defendant denies this statement. This court has many times held that, where there is a conflict in the testimony, if there was any competent testimony which would tend to justify the verdict of the jury, this court would not disturb the verdict.

No fundamental or prejudicial errors appearing in the record, the judgment is affirmed.

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


author: PER CURIAM.

text:
    A. C. McKEE v. STATE.
    No. A-7723.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 212.)
    Vance & Bliss, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cherokee county of pointing a pistol, and was sentenced to pay a fine of $50 and to serve three months in the county jail.

Judgment was rendered on October 12,1929. At that time the court made an order giving 60 days to make and serve case-made but .did not extend the time to file the case in this court. Thereafter, on December 6, case-made was signed and settled by the trial judge, and at the same time the court made an order extending the time to file the appeal for 30 days beyond the 60 days allowed by statute. This time expired on January 10, 1930. The appeal was not lodged in this court until February 1, 1930. The appeal not having been filed within the time fixed by the statute nor within the time fixed by any order of extension, this court does not acquire jurisdiction.

The appeal is dismissed.


text:
    ORA SPICER v. STATE.
    No. A-7731.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 212.)
    Commons & Chandler, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ottawa county of the offense of resisting arrest, and was sentenced to pay a fine of $100 and to serve 90 days in the county jail.

Judgment was rendered on October 14, 1929. The case-made and petition in error were filed in this court on February 13, 1930, more than 120 days from the date the judgment was rendered. By section 2808, Comp. Stat. 1921, 120 days is the extreme limit from the time of the judgment within which an appeal for a misdemeanor can be taken to this court. The appeal not having been filed within that time, this court does not acquire jurisdiction, and the appeal is dismissed.


text:
    EDDIE McELWEE v. STATE.
    No. A-7618.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 214.)
    Ira J. Banta and Hill & Hargrave, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of the crime of manslaughter in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for 30 years.

The defendant contends first that the court erred in its instructions to' the jury.

The instructions complained of are lengthy, and it would serve no good purpose to set them out. It is sufficient to say that they were the usual instructions given where the charge is murder.

The trial court instructed the jury on the law relative to murder, manslaughter in the first degree, and justifiable homicide in self-defense. Counsel rely wholly on the giving of the instructions complained of as grounds for reversal of this judgment. Each of the instructions complained of is wholly upon the question of the guilt or innocence of the defendant of the crime of murder; none of them is on the subject of that degree of felonious homicide known to our laws as manslaughter in the first degree.

Where defendant is charged with and tried for murder, and is convicted of manslaughter, objections to the instructions given upon the question of murder will not be considered on appeal, in the absence of a showing that the appellant was injured thereby. Byars v. State, 7 Okla. Cr. 650, 126 Pac. 252; Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629; Elliott v. State, 18 Okla. Cr. 230, 194 Pac. 267; Littleton v. State, 19 Okla. Cr. 461, 200 Pac. 716; Logan v. State, 42 Okla. Cr. 294, 275 Pac. 657.

In Bailey v. State, 44 Okla. Cr. 193, 280 Pac. 633, this court said:

“The defendant will not be heard to complain that an instruction on murder is erroneous, where the jury finds the defendant guilty of manslaughter in the first degree.”

In the case at bar the instructions complained of fall squarely within the rule laid down in Bailey v. State, supra, and the other authorities cited. The giving of the instructions complained of was not error.

The defendant next contends that the punishment assessed by the jury is excessive.

The Attorney General in his brief says:

“Counsel for the defendant suggest that if this court believes that the alleged errors complained of in their brief are not considered sufficient to cause a reversal of the judgment that the same should be modified because plainly excessive. We think there is some merit in this contention. This shooting took place on the home premises of this defendant. Defendant at the time was a negro 24 years of age who had never before had any serious trouble and who bore a good reputation for peace and as a law abiding citizen. iShortly prior to the fatal shooting the deceased had assaulted the defendant and in such assault the wearing apparel of the defendant was badly torn. The deceased had been drinking previous to the difficulty and had followed the defendant on to his home premises after defendant says he told him to stay off.
“While there is considerable conflict as to what occurred at the time of the shooting and while the jury evidently discarded the defendant’s theory yet the fact remains that the defendant was on his home premises and the deceased could easily have avoided any further trouble with the defendant by keeping away from him and not following him to his house.
“While the defendant fled' after the shooting he did give himself up about three months later when assured he would be allowed bail and being an ignorant negro his flight was more attributable perhaps to ignorance and fear than to any consciousness of guilt on his part.
“The case was vigorously prosecuted and resulted in a verdict fixing the punishment at 30 years’ imprisonment. If the defendant should live to serve out the full term he would leave the penitentiary a comparatively old man without incentive or opportunity to make of himself a law-abiding or useful citizen.
“The Attorney General therefore believes that this court would not go amiss by modifying this judgment to the extent of reducing the punishment to a term of 15 or 18 years.”

There appears to be merit in the suggestion of the Attorney General. The ends of justice will be served by reducing the punishment from 30 years in the penitentiary to 15 years in the penitentiary.

For the reasons stated, the judgment is modified, and the punishment reduced to 15 years in the penitentiary, and, as modified, the same is affirmed.

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


text:
    M. DE WITT v. STATE.
    No. A-7543.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 215.)
    Phillips & LaMore, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for a period of 60 days.

The evidence of the state was that the officers, having a search warrant, went to the premises of the defendant and there found three or four 10-gallon kegs of beer and one-half gallon of whisky, 12 crates of half-gallon fruit jars and a capper.

The defendant complains that the constables having the search warrant for service went outside of their precinct to serve the same.

¡Section 3451, C. O. S. 1921, provides:

“In serving process, either civil or criminal, and in doing his duties generally, when not otherwise restricted by law, the authority of a constable shall extend throughout the county in which he may be appointed; and in executing and serving process issued by a justice of the peace, he shall have and exercise the same authority and powers over goods and chattels and the persons of parties as is granted by law to a sheriff under like process issued from courts of record.”

Under authority of this section, the jurisdiction of a constable in the service of civil or criminal process is coextensive with the county.

If a defendant desires to question the sufficiency of the affidavit or the search warrant, they should be introduced on a motion to' suppress the evidence and copies of the same included in the case-made. In the case at bar they were not introduced, • and the record therefore presents no question of their sufficiency, or the proper description of the premises to be searched.

No substantial error appearing upon the record, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


author: DAVENPOBT, J.

text:
    E. B. LOWE v. STATE.
    No. A-7548.
    Opinion Filed Dec. 13, 1930.
    (294 Pac. 216.)
    J. H. Hays, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of having in his possession about one and one-half pints of intoxicating liquor, and was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. Prom the judgment and sentence, the defendant has appealed.

In the trial of the tase the state offered in evidence the affidavit upon which the search warrant was obtained, and the search warrant. The defendant objected, which objection was overruled, and the defendant duly excepted to the ruling of the court.

This court has repeatedly held that it is error for the state to read the affidavit for the search warrant and the warrant to the jury as primary evidence. Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858; Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370.

It-is our opinion that the court erred in admitting the affidavit for the search warrant, and the search warrant issued thereon as primary evidence, as it deprived the defendant of his right to confront the witnesses and cross-examine them. The allegations in the affidavit tended to establish facts very material against the affidavit.

For the reason stated, the case is reversed.

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


text:
    SALLIE JACKSON v. STATE.
    No. A-7528.
    Opinion Filed Nov. 15, 1930.
    Rehearing Denied Dec. 13, 1930.
    (293 Pac. 565.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge of selling intoxicating liquor and was sentenced to pay a fine of $50 and costs, and be confined in the county jail for 30 days. From which judgment and sentence the defendant has appealed to this court.

The substance of the testimony on behalf of the state shows that C. T. Barton bought a half pint of whisky from the defendant, Barton identifying the defendant as the party from whom he bought the half pint of whisky. The defendant denies she sold the witness Barton the half pint of whisky, or any other quantity of whisky.

Several errors have been assigned by the defendant as grounds for a reversal of this case. Upon a careful study of the record, we fail to find any error possessing sufficient merits to warrant a reversal. There is a direct conflict in the testimony, and this court has so often held that, where there is a conflict in the testimony, if there is any competent testimony to sustain the verdict it would not set the verdict aside, that it is not deemed necessary to cite authorities.

The evidence is sufficient to sustain the judgment. Finding no errors in the record sufficient to warrant a reversal, the judgment is affirmed.

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


text:
    SARAH HALL v. STATE.
    No. A-7570.
    Opinion Filed Nov. 29, 1930
    Rehearing Denied Dec. 13, 1930.
    (293 Pac. 566.)

      L. M. Gensman, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county of the crime of unlawful possession of intoxicating liquor, and her punishment fixed by the court at a fine of $300 and imprisonment in the county jail for 90 days.

The evidence of the state was that the officers had a search warrant, and, upon searching the premises of defendant, found 5 pints of beer on ice and a 12 and a 20 gallon jar almost full of beer, and 220 empty beer bottles; that these empty bottles smelled of beer, and that the beer seized contained from 4 to 8 per cent, of alcohol; that, as the officers appeared on the premises, the defendant and a man and woman were in the front part of the house; and that the defendant carried two' empty beer bottles to the back of the house with her as these parties left the premises. Defendant admitted the possession of the liquor seized, but claimed it was Canadian ale and not beer.

Defendant contends, first, that the affidavit and search warrant were insufficient to authorize a search of her premises.

The defendant had identified and introduced in evidence the affidavit and search warrant as a part of her showing on her motion to suppress the evidence. The affidavit and search warrant being sufficient on their face to authorize a search of defendant’s premises, the motion was properly overruled.

Defendant next contends that the court erred in admitting certain incompetent evidence.

Defendant had taken the witness stand in her own behalf, and testified that the liquor was not intoxicating, and that she had made it for her own use. On cross-examination the state asked her if she did not have a trick ice box sitting near a window, so arranged that she could dump, the contents by stepping on a certain place in the floor. She denied this. The state then called W. E. Nix in rebuttal, who testified that he had examined this ice box, and that it was so built that it would collapse and the contents fall into a well or sewer if the floor was stepped on in a certain place. Defendant contends that the admission of this evidence was error.

The defense being that the liquor was for an honest purpose, the state had a right to show any circumstances which would tend to rebut or overcome this claim of honest purpose. The jury had a right to consider this circumstance in connection with the circumstance that' the defendant attempted to fasten the door and shut the officers out, for the purpose of affecting her claim of possession for an honest purpose.

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

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


text:
    MAY SAXTON v. STATE.
    No. A-7505.
    Opinion Filed Nov. 15, 1930.
    Rehearing Denied Dec. 13, 1930.
    (293 Pac. 567.)

      Sam S. Gill, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of maintaining and operating a public nuisance, in the manner and form as follows, to wit: That the said defendant in Oklahoma county unlawfully, knowingly, and wrongfully maintained and operated a one-story sheet iron building located at Bodine City, known as Curley Saxton’s Dance Hall, where intoxicating liquor, to wit, whisky, was kept, bartered, sold, and given away to divers persons, amounting to a public nuisance; and was sentenced to pay a fine of $250 and be confined in the county jail for a period of 30 days. From which judgment the defendant has appealed to this court.

The testimony on behalf of the state in substance shows that the sheriff and a number of deputies went to this dance hall in Bodine City, without a search warrant or any warrant for the arrest of the defendant. There was a dance in progress, and the defendant was collecting the money for the dances; there was a large crowd of people — estimated at from 100 to 150 — dancing, and looking on. The officers claim they heard profane language being used by some of the parties, and that some of the parties in the dance hall were drinking. They finally decided to line them up and search them, and, when they did, the crowd was so great and so congested that those having whisky on their person began dropping the bottles on the floor. The officers could not tell who dropped the bottles, but they found several bottles containing whisky; they do not contend the defendant had any whisky in her place of business, but, as the defendant was in charge that night, they arrested her, and they testified she permitted the parties to be there drinking and having whisky on their persons. The defendant contends she knew nothing about any one having any whisky there; that she and her husband had been paying O. T. Smith, a deputy sheriff, f5 a night to preserve order, and that she did not see any one misbehave; that the said O. T. Smith was on duty that night.

A great deal of testimony was introduced that was immaterial in the trial of the case, but was introduced for the purpose of tending to show that the place of business conducted by the defendant was a public nuisance. Several neighbors living nearby testified for the defendant, and stated that it did not disturb them, and that they had attended the dances on several different occasions. This is in substance the testimony.

The defendant has assigned several errors alleged to have been committed by the court in the trial of her case. After a careful examination of the assignment of errors, we hold they do not possess sufficient merit to warrant a reversal of this case. The evidence is sufficient to sustain the judgment. The defendant was accorded a fair and impartial trial. No errors appearing in the record prejudicial to the rights of the defendant, the judgment is affirmed.

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


text:
    JOHN HENRY JACKSON v. STATE.
    No. A-7255.
    Opinion Filed Oct. 25, 1930.
    Rehearing Denied Dec. 13, 1930.
    (293 Pac. 567.)
    Chapman & Chapman and Park Wyatt, for plaintiff in error.
    J. Berry King, Atty. Gen., and ¡Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie county of manslaughter in the first degree, and was sentenced to serve a term of 15 years in the state penitentiary.

Defendant was convicted of killing one James Pyles in Shawnee in April, 1928. Both are negroes. Defendant at the time charged was operating a cafe and pool hall, and deceased came.into- his place of business in an intoxicated condition and proceeded to raise a disturbance-He was obscene, profane, and threatening. Defendant at the time was in another room of the building and an employee called him. He went into the cafe armed with a Colt’s revolver and ordered deceased to leave. A colloquy followed, defendant then ordered an employee to take deceased out, and as he was being taken out defendant fired the fatal shot. Deceased had his hands in his pockets at the time, but the evidence for the state is that he was making no demonstration. Defendant testified, in substance, that he believed deceased was armed; that he drew his pistol to protect himself and to prevent an attack from deceased; that the shot was accidental, caused by deceased striking the hammer of the pistol.

Defendant contends the verdict of the jury is not supported by sufficient evidence. The testimony as to what took place immediately prior and at the time of the shooting is in some conflict. However, it is undisputed that deceased was a trespasser and engaged in the commission of a misdemeanor; defendant was well within his rights in attempting to eject him from his place of business by the use of any force short of taking or endangering life. But he was not justified in killing deceased to prevent a trespass less than a felony. The right to kill in defense of property exists in this state only when a felony is about to be committed. Section 1754, Comp. St. 1921; Clark on Criminal Law 145; Dickinson v. State, 3 Okla. Cr. 151, 104 Pac. 923; Collegenia v. State, 9 Okla. Cr. 425, 132 Pac. 375; Marshall v. State, 11 Okla. Cr. 52, 142 Pac. 1046; Garrison v. State, 19 Okla. Cr. 3, 197 Pac. 517. The jury must have believed from the evidence that the killing was not to prevent the commission of a felony, but was on account of the disturbance and unseemly conduct of deceased in defendant’s place of business.

Complaint is also made that the court erred in not instructing the jury as to the right of defendant to defend bis place of business. Tbis contention involves much the same contention that the evidence is insufficient, just discussed. The court instructed fully on the law of self-defense; no additional request for instruction on the theory of the defense of place of business was requested. The testimony of defendant does not raise the defense of place of business, but is in substance that the actual firing of the shot was accidental. The court did not err in failing to cover that phase of the law, particularly in the absence of a request.

Under the entire record no material error is made to appear. We are of the opinion, however, that the punishment assessed is excessive and justice requires that it be reduced. The judgment is therefore modified by reducing the punishment assessed to confinement for a term of seven years in the state penitentiary, and, as modified, the judgment is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J. DAVENPORT, J.

text:
    LEONARD SMITH v. STATE.
    No. A-7012.
    Opinion Filed Oct. 11, 1930.
    Rehearing Denied Dec. 13, 1930.
    (293 Pac. 569.)

      R. D. Miller, for plaintiff in error.
    J.- Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The evidence of the state was that the defendant and his wife attended a dance at the home of Mrs. Freeney, in the city of Hollis; that among those present was Russell Breedlove, the deceased; that the defendant had been married about a month and that he was jealous of the attentions of other men towards his wife, and that such jealousy was the cause of the difficulty which resulted in the killing of Breedlove; that the defendant objected to Breedlove' dancing with his wife, being angered at what he claimed were improper attentions on the part of Breedlove toward defendant’s wife; that defendant stopped Breedlove and his wife from dancing; that defendant was standing in one corner of the room cleaning his finger nails with his knife; that defendant caught deceased by the shoulder and told him he objected to him dancing with his wife, and that the defendant pushed the deceased toward the door and said, “Get out and we will settle it.” That immediately after defendant and deceased got outside of the door they started fighting, and that defendant stabbed deceased a number of times with his knife, from the effects of which deceased died two days later.

The defense relied upon was self-defense, defendant contending that Breedlove, the deceased, got him to go ont of the house, and that he only went out with the deceased for the purpose of talking to him and trying to persuade him to leave his wife alone; that deceased had been drinking and assaulted the defendant, and that everything the defendant did was done in self-defense and without fault on his part.

Defendant first contends that the court erred in giving instruction No. 12 over the objection and exception of the defendant, which instruction reads as follows: “Whenever a person voluntarily enters into a conflict, or mutually agrees with his adversary to engage in a voluntary conflict and enters therein after such mutual agreement, such person thereby waives his right of self-defense, and no matter how hard pressed he may find himself during the engagement, if he kills his adversary, he is guilty of manslaughter in the first degree and a plea of self-defense will not avail him.” Defendant contends that the giving of this instruction was erroneous, first, because there was no evidence to authorize the giving of said instruction. It is a sufficient answer to this objection to say that the evidence of the state shows that the defendant accosted deceased on the dance floor, protested against his dancing with his wife and shoved him towards the door telling him they would settle the difficulty outside.

The law is well settled that one who seeks and brings on an affray cannot shield himself under a plea of self-defense. Reed v. State, 2 Okla. Cr. 589, 103 Pac. 1042; Rollen v. State, 7 Okla. Cr. 673, 125 Pac. 1087; Young v. State, 11 Okla. Cr. 22, 141 Pac. 285; Berry v. State, 23 Okla. Cr. 223, 213 Pac. 909; Graham v. State, 25 Okla. Cr. 372, 220 Pac. 967.

It is also well settled that, where the defendant seeks or provokes a difficulty without any intention of killing or doing serious bodily injury to the deceased, and a combat ensues, and, the defendant, being hard pressed, kills the deceased, then the defendant will be guilty of manslaughter, unless before the fatal blow was struck, or shot was fired, the defendant in good faith sought to withdraw from the combat. Koozer v. State, 7 Okla. Cr. 336, 123 Pac. 554; Moutry v. State, 9 Okla. Cr. 623, 132 Pac. 915; Odum v. State, 21 Okla. Cr. 87, 204 Pac. 1118.

Under the evidence in the case it would make no- difference if, after the deceased and the defendant had gone out of doors, the deceased assaulted the defendant, for the reason that defendant put himself in fault in going out of doors, when he must have known that deceased had no other purpose in getting out of doors except to settle the difficulty with defendant, and that in such settlement a bodily conflict would likely take place. When the defendant pushed the deceased out of doors — or, taking the defendant’s story for the occurrence, that he agreed to go out of doors for the purpose of settling the difficulty and then engaged in a combat with the deceased- — he placed himself in a position where he could not claim the right of self-defense, if the deceased assaulted him, unless, after such attack, he in good faith withdrew from the combat.

In the case of Akes v. State, 31 Okla. Cr. 386, 239 Pac. 187, this court said:

“If the defendant provoked the combat or produced the occasion in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat; but if he provoked the combat or produced the occasion without any felonious intent, the killing in self-defense will be manslaughter in the first degree only.”

Under the evidence of the defendant and his wife and the facts and circumstances revealed in the case, the defendant was guilty of manslaughter, and the evidence and facts in the case fully justify the court in submitting to the jury the question of whether or not the defendant voluntarily entered into this combat with the deceased.

Defendant’s second objection to instruction No. 12 is that it fails to instruct on the issue of the question of whether or not defendant voluntarily withdrew from the combat with the deceased. There is not a word of evidence in the record to indicate that the defendant made any effort whatever to withdraw in good faith at any time during the progress of the combat, and it appears from the evidence that he did not Avithdraw until such time as the deceased was wholly incapacitated to continue the combat further because of the numerous wounds inflicted upon his body with his knife by the defendant.

In the case of Gandy v. State, 34 Okla. Cr. 350, 246 Pac. 887, this court said:

“A defendant is not entitled to an instruction on an issue not raised by the evidence.”

In Baker v. State, 22 Okla. Cr. 224, 210 Pac. 292, this court said:

“Where the defendant is convicted of manslaughter in the first degree and punishment assessed at the minimum under the law, and defendant’s own testimony shows him to be guilty of the crime of which he was convicted, alleged errors in the instructions and in the refusal to give a requested instruction will not be held prejudicial.” See, also, Morris v. State, 35 Okla. Cr. 5, 247 Pac. 418; Canada v. Territory, 12 Okla. 409, 72 Pac. 375.

Defendant next contends that the court erred in admitting certain incompetent, irrelevant, and immaterial testimony over the objection and exception of the defendant. This assignment of error relates to certain testimony given by Mrs. Joe Baccus, a witness for the state, to the effect that on the evening of the homicide, and just an hour or two before its commission, this defendant was at her house and stated that he was going to have to kill a couple of fellows, naming them (neither of whom was the deceased), because of their attentions to his wife. Defendant contends that this evidence was inadmissible and prejudicial for the reason that it had no bearing on the question of his attitude towards the deceased.

In the case of Sears v. State, 27 Okla. Cr. 311, 227 Pac. 899, this court said:

“Threats of a general or indefinite nature, made by an accused person, where they tend to disclose general malice, may be shown, although not particularly directed against the deceased, but against a class of persons which includes the deceased.”

The evidence in this case shows it was the contention of the defendant that the deceased, Russell Breedlove, had become entirely too familiar with his wife, and that such familiarity was the direct cause of the trouble between the defendant and deceased which resulted in the defendant killing the deceased. Under the case of .Sears v. State, supra, these threats were admissible, as they tended to show the defendant’s state of mind just a short time before the killing as against any one who was guilty of undue familiarity with defendant’s wife.

While the conduct of the deceased was reprehensible, and this court does not undertake to' condone the same, the taking of human life is a serious matter which cannot be justified under circumstances like those appearing in this case. The defendant had a fair trial, and the jury found Mm guilty upon sufficient evidence, and no doubt considered tbe misconduct of tbe deceased in fixing tbe penalty of the defendant at tbe minimum provided by law.

No substantial error appearing upon tbe record, tbe cause is affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J.

(dissenting). I cannot agree with tbe majority opinion wherein it is held that instruction No. 12 properly and correctly stated tbe law applicable to tbe facts in this case, nor can I agree that tbe testimony of Mrs. Joe Baccus, wherein she testified to alleged threats tbe defendant should have made prior to tbe dance, was admissible, as tbe threats as testified to by Mrs. Baccus in ■ no way whatever could have related to the deceased, for tbe reason that, at tbe time the alleged threats were made, if they were made, the deceased and defendant were friendly, and subsequent to that time tbe deceased and defendant, bis wife, and others went to tbe dance together.

In order to state my views on this question, it is deemed necessary to set out, in substance, the testimony. Tbe testimony of tbe state shows tbe evening of tbe trouble, Jack Mullinax, Russell Breedlove, Stella Mae Baccus, and Ruby Mullinax went to tbe home of tbe defendant and invited tbe defendant and bis wife to° accompany them to tbe dance; they all went to the dance together. Tbe testimony further shows that after they arrived at tbe Freeney home tbe deceased was dancing with tbe wife of tbe defendant; tbe defendant told the deceased be did not like for him to be dancing with bis wife, and some conversation took place between them. Some of tbe witnesses say that defendant pushed the deceased toward the door, and others say be walked voluntarily; other witnesses for tbe state testify that after tbe deceased came out in the yard they beard him talking in an ordinary tone of voice, and the defendant told deceased he did not want to have any trouble with him, or words to that effect, but that he did not want him to dance with his wife as he had been dancing when defendant spoke to him in the house. The witness said he turned and heard a lick struck; when his attention was directed toward them they were fighting and finally they came to the ground, and the witness says he heard the defendant say, “He is choking me to death.” Some of the witnesses say they did not hear the defendant say, “He is choking me to death.”

The testimony further tends to show that, after the defendant made the statement that the deceased was choking him to death, the deceased and defendant in some way became separated and the defendant ran, Jack Mullinax started to pursue him, but did not catch up with him; it was then discovered that the deceased had been cut several times with a knife.

The state did not introduce any testimony showing definitely what took place after the parties went into the yard, or who struck the first lick; all the state witnesses say they heard the lick struck, and when their attention was again directed to the parties they were fighting, and soon they were down on the ground; they did not know the position of the parties excepting one of the state witnesses testified he heard the defendant say, “He is choking me to death.” No one interfered or attempted to1 separate them; other witnesses say that, if the defendant made that statement, they did not hear it.

Mrs. Joe Baccus, called as a witness on behalf of the state, testified, in substance, that the defendant was at her house about 7 or 7:30 the evening of the trouble!, and over the objection of the defendant was permitted to testify that the defendant was going to cut Andrew Davis’ entrails out and Pete Warner’s bead off; that be gave as a reason that these parties wanted the witness’s daughter and defendant’s wife to go car riding with them.

The defendant in his own behalf testified the parties came up the evening of the dance, and he and his wife went with them to the dance; the defendant stated:

“I danced the first set with Fanny Freeney and then quit dancing and went over in a comer; I thought all the parties were my friends; Bussell Breedlove was dancing with my wife; he commenced to put his arms around her and pulled her up close to him and said, ‘You don’t care for me squeezing, you up, do you?’ And Irene said she did and pushed him back, and he pulled her up again and tried to kiss her, and I went over and put my hand on his shoulder and said, ‘Bussell, I object to' this,’ and he said ‘Ho w are you going to help yourself,’ and I said, ‘There are plenty of ways hut I don’t want to have no trouble.’ About that time Jack Mullinax said to get out of the house; Bus-sell said, ‘Come out side and we will settle it’; we went outside ; I did not push him out; when we got out in the yard I tried to talk with him and show him; I knew he was drinking, I said: ‘Bussell, you are drinking,’ and he said, ‘You are damn right, and God damn glad of it.’ He hit me twice in the stomach and once in the breast and called me a bastard, and we went to fighting; I was striking him with my fist and somebody tripped me, I coud not see who it was; I fell to the ground and Bussell Breedlove jumped on top of me and commenced to choke me, and I said, ‘He is choking me to death.’ Jack Mullinax said, “Choke the son of a bitch to death, and I will pay your fine.’ I got my knife out and went to cutting on him; I was lying on my back, I tried to break his arm but couldn’t; I did not want to hurt him but I did want to get loose; I went into my pocket and got my knife; he was on top of me and had me by the throat; I had on overalls and a white shirt; I had taken my hands over the top of him and opened the knife, after I had tried to pull his fingers loose; I cut him across the arm, I don’t know how many times I cnt him, I wanted to breathe and couldn’t say a word; I thought he was going to kill me; we did not go to our knees any time, I was tripped and fell backwards; I don’t know which one of the boys tripped me; I was down on the ground and the deceased was choking me; I finally cut him and got loose and jumped up and ran, and Jack Mullinax ran after me; I ran off and left my wife there at the dance; the reason I ran was Jack Mullinax was after me with his pocket knife and said he was going to kill me; I would not have cut the deceased if I had not thought it was necessary to save my own life.”

On cross-examination witness stated:

“When deceased got hold of my throat and began choking me I holloed he was choking me to death; deceased was on top of me; I reached over him and opened my pocket knife. When I went over in the room and talked with deceased I shut my knife and put it in my pocket; I had it open cleaning my finger nails prior to the time I went over and spoke to him.”

The defendant called P. W. Nance, who testified he was undersheriff; he saw the defendant when he was arrested at Frank Pittmans; he did not examine him that night, but did the next morning; his throat was bruised and scratched with finger marks; it was swollen a right smart the next morning; the finger marks on the throat here (indicating); his throat was bruised; the prints of nails were still apparent; one of his ears was pretty badly swollen, looked like it had been pulled loose; “that night I was at their house and his mother came over and told me the defendant was at Mr. Pittmans and for me to go over after him, and I told her to tell him to' come over, and she said she had rather I come over there and get him;” the defendant seemed to be under the impression the other parties were after him and it was unsafe for him to be out; that Mullinax was after him and ran him down to the filling station; “I saw Mullinax that night and he was drinking.”

On cross-examination witness stated he did not know when the marks were put on defendant’s neck, “as I did not examine him until the next morning.” On redirect examination he stated there was blood on the front of his clothing ; he had on a jumper and overalls.

P. 0. Grisham also testified to seeing the defendant the next morning after he was arrested:

“I was surprised to see him in jail and asked him how he come to be there and he said he had had a little trouble; I saw blood on his clothing and asked him about it and he said he cut Russell Breedlove at the dance; I noticed the marks on his throat; there were four prints of the fingers and the thumb as far back as a person could reach, and his throat was swollen very near to the edge of his chin; the finger and thumb prints I cannot describe in exactly what way.”

Mrs. Stella Smith, the mother of the defendant, testified :■

“I was at home when the parties came and asked Leonard and his wife to go to the dance; Stella Mae Baccus came over and was telling about the trouble and said Leonard was not to blame; Jack Mullinax came down there and said, ‘You tell Leonard Smith I will get the son of a bitch, I am after him,’ that is what he said.”

Irene iSmith, the wife of the defendant, was called, and, after stating with whom she and her husband went to the dance, said:

“When they began the second set Russell said, ‘Come on Irene and let’s dance,’ and he said, ‘I hear you are married now, where do you keep yourself all the time,’ and I said, ‘Yes, sir.’ And he said, ‘I guess you are jealous of your old man; you don’t care if I hug you before your old man, do you?’ and I tried to push him back and he pulled me up‘close to him, and my husband came up and said, ‘I object to your dancing with my wife.’ Russell said, ‘How are you going to help yourself,’ and my husband said, ‘There are plenty of ways,’ and Russell Breedlove invited him outside, and they went out of doors; I went outside and Jack Mullinax told me to> gO' back into the house, they would attend to that; I stayed on the porch, and Jack Mullinax hollowed, ‘Kill the son of a bitch and I will pay your fine.’ That is what he said; I heard Leonard call for help, and that he was choking him; Mrs. Mullinax said to get a brick and go out and kill the son of a bitch, ‘they couldn’t choke my man;’ Leonard called for help but there wasn’t any of them helped him, and Jack Mullinax would-n’t let me out, he pushed me back and said they could attend to that.”

On cross-examination the witness was asked:

“If what you testified is true, why did you tell your husband at Hobsons Garage he was a jealous fool, that Breedlove had not done anything to me. A. I did not tell him that.
“Q. Not before Raymond Hobbs? A. No, sir, I didn’t.
“Q. What did you mean when the women folks told you to come and stop the fight, to let the jealous fool alone? A. I did not say that.”

An effort was made on behalf of the state, in rebuttal, to impeach Irene Smith by showing that the reputation of Irene Smith for truth and veracity was bad. Some of the witnesses stating it was good, and some who had lived in the community for some time saying it was bad.

This is, in substance, the testimony in the case. At the close of the state’s testimony the defendant filed a demurrer to the evidence offered by the state on the ground that the same was insufficient to charge the defendant with any violation of the law of the state of Oklahoma, as charged in the information, which demurrer was considered by the court and overruled, and the defendant excepted.

The defendant has assigned nine errors alleged to have been committed by the court in the trial of his case. The first being:

“The court erred in overruling the motion of the defendant, plaintiff in error, for a new trial.
“2. Error of the court in excluding competent, material and relevant testimony in behalf of the defendant in progress of the trial.
“3. Error of the court in admitting incompetent, irrelevant and immaterial testimony offered by the state, over the objection of the defendant, during the progress of the trial.”

The first and third assignment will be considered together, as they cover the important errors upon which the defendant relies for a reversal of this case. It is contended by the defendant that the court erred in giving instruction No. 12, which is as folloAvs:

“Whenever a person voluntarily enters into a conflict, •or mutually agrees with his adversary to engage in a voluntary conflict and enters therein after such mutual agreement, such person thereby waives his right of self-defense, and no matter how hard pressed he may find himself during the engagement, if he kills his adversary, he is guilty .of manslaughter in the first degree and a plea of self-defense will not avail him.”

The testimony on behalf of the state shows that the deceased and defendant were directed by Jack Mullinax to leave the house, and, when they went into the yard, the ■state’s witnesses heard them talking in an ordinary tone -of voice, and then a lick was struck and deceased and defendant were fighting and shortly went to the ground, when one witness heard the defendant say he was choking him to death. This is not controverted by any other witness of the state. The wife of the defendant testified as to what the argument came up about and what the deceased had done to her before they went out of the house, and that the action of the deceased attracted the defendant’s attention by the manner in which the deceased was dancing with the wife of the defendant.

The testimony further shows that, when she heard her husband say he was choking him to death, she wanted to go to him and Jack Mullinax prevented her from doing so; Mullinax being the same man who followed the defendant after he had gotten loose from the deceased and ran.

The defendant in his own behalf states that after he got out in the yard he talked to deceased and tried to tell him he was drunk, and deceased boasted he was glad of it, using an oath, and defendant says the deceased then struck him a time or two and they went to fighting, and some one tripped him and he fell and the deceased was on top of him choking him, and he called and told them he was choking him, and no one attempted to get the deceased off of him and he drew his knife from his pocket and cut the deceased until he got loose, and when he got loose he got up and ran. There is a great deal of testimony brought out by the state tending to show or reflect upon the character of defendant’s wife, and, for some reason unexplained in the record, they attempted to show that the deceased and the defendant each had a venereal disease. What this had to do with this case is not disclosed by the record. No one objected to its introduction and the court permitted it to go into the record. Mrs. Joe Baccus was permitted, over the objection of the defendant, to testify as to a conversation that had taken place several hours before the trouble, and to detail what she claimed were threats by him against Andrew Davis and Pete Warner; neither of the men named by Mrs. Baccus had anything to do with the difficulty at the dance, so far as the record shows, nor were they related to the deceased or the defendant, and could have no bearing on the case other than to try to prejudice or influence the minds of the jurors against the defendant.

The record discloses that, when the parties went to the dance the night of the fatal trouble, the deceased went with others to the house of the defendant and got them to accompany them to the dance; not a word in the record shows there was any ill feeling between the deceased and the defendant at the time Mrs. Baccus claims the threats were made against Davis and Warner.

In Wireman v. Commonwealth, 206 Ky. 828, 268 S. W. 586, the fifth paragraph of the syllabus says:

“In prosecution for killing O. C., evidence that several weeks previously defendant had threatened to kill one R. B. A. and ‘another man’ held inadmissible and prejudicial, as threat as to ‘another man’ was too remote and indefinite and threat to kill a particular person other than deceased is inadmissible.”

In the body of the opinion, the court, in discussing the case says:

“There is nothing in the record to show that the deceased was the other man and, as the threat was made a month or more before the homicide, we conclude that it was too indefinite and remote to be admissible. * * * A threat to kill a particular person other than the deceased is not admissible.”

In this case the testimony tends to show that the deceased was drinking and struck the first blows, and, under the record in this case, it was apparent that the case is a close one on the facts; and, in view of the fact that the jury in this case gave the defendant the minimum punishment, the testimony as to the threats permitted to go- to the jury may have turned the scales against the defendant by causing the jury to reject the defendant’s story of self-defense. We believe the admission of the testimony of Mrs. Baccus was prejudicial, and that the action of the court in admitting the same, was error.

It is next contended by the defendant that the court erred in giving instruction No. 12, supra, which substantially prejudiced the defendant’s rights and deprived him of a fair and impartial trial. The instruction complained of by the defendant seems to have been predicated upon the fact that the defendant had voluntarily entered into the fight. The testimony of the state fails tO' show who struck the first blow; the defendant testified positively that the deceased struck him two or more times before he entered into the fight; that he told the deceased he did not want to have any trouble, and when he struck back and was fighting the defendant some one tripped him and he fell and the deceased was on top of him, choking him-, and he could not get loose and took his pocket knife out of his pocket and cut the deceased until he got loose. One of the state witnesses testified the deceased had the defendant around the neck, and corroborated the defendant to the extent that the defendant said he was choking him to death. The defendant contends that when he called and said the deceased was choking him to death that that announcement amounted to an abandonment of the difficulty and he wanted some one to take the deceased off of him. The theory of the defendant is that he was forced into the fight with the deceased, that some one tripped liim and he fell with the deceased on top of him with his hand on his throat, and that he could not release himself, and that deceased choked him until he could hardly breathe, and, in order to get loose from the deceased and to save himself from great bodily harm or losing his life, he cut the deceased. Nowhere in the instruction complained of does the court attempt in any way to advise the jury of the defendant’s right of self-protection, or to defend himself against losing his life or receiving great bodily harm. The instruction of the court does not cover the theory of the defendant’s case.

In Larry v. State, 10 Okla. Cr. 340, 136 Pac. 596, in the second paragraph of the syllabus, the court said:

“Where the killing is done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the defendant cannot justify on the ground that it was committed in self-defense, and it will be manslaughter at least unless the defendant can prove that before the fatal shot was fired he had refused any further combat and had retreated as far as he could with safety, and that he killed his adversary of necessity to save his own life or his person from great bodily harm.”

In this case the testimony of the state admits that the defendant was on the ground and the deceased was on top of him. It is not clear as to what the deceased was doing to the defendant, but it is uncontradicted that the defendant had stated the deceased was choking him to death, and that the defendant, after he made this statement, succeeded in getting loose from the deceased and getting up, and as soon as he did so he ran away from the scene of the difficulty. The defendant contends that, when he made the statement he did that the deceased was choking him to death, the expression amounted to an abandonment of the difficulty, as the deceased was on top of him and he could not get up, and he could hardly breathe, and the only way to save himself from being killed or receiving bodily harm was to draw his knife and use it in his necessary self-defense.

The only positive testimony as to who started the fighting is the testimony of the defendant that Breedlove struck him two or three times before he struck back; they were fighting in the dark, and the testimony shows that the deceased was surrounded by a number of his friends who were backing him up, and who refused to* permit the wife of the defendant to come to where the fight was going on.

It is my opinion that under the rule announced in Larry v. State, supra, the court erred in giving instruction No. 12. The instruction given by the court correctly stated the law as far as it went, but such instruction was not in conformity with the issues in this case. The court should have gone further and instructed the jury on the defendant’s theory of the case by advising the jury that, if they believed from the evidence that before the defendant cut the deceased with his knife he had abandoned the combat as far as he could, and that, if the deceased continued to choke the defendant and the defendant struck the fatal blows that took the life of the deceased, believing at the time he struck them there was apparent danger of losing his life, or receiving great bodily harm, they should acquit him. I believe the admission of the testimony of Mrs. Joe Baccus was an error, and that instruction No. 12, as given, did not state the law as applied to the facts in this case.

For the errors herein stated, the judgment should be reversed.


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    E. L. WELDON v. STATE.
    No. A-7369.
    Opinion Filed Dec. 20, 1930.
    (294 Pac. 213.)
    George L. Sneed, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereafter called the defendant, was convicted of the crime of rape, and his punishment fixed at confinement in the state penitentiary for a period of 15 years. Motion for a new trial was filed, considered, overruled, and exceptions saved, and the case appealed to this court.

We have carefully examined the record, and find that the testimony tends to show that Mae Gray, the prosecuting witness, was over the age of 13 and under the age of 14 years on the date of the alleged offense, and the defendant was 27. Mae stated she was at a schoolhouse where the defendant had been teaching school, in company with Mary Loving; that the defendant lit the lamp in one of the school rooms, and she and Mary Loving started to get a drink of water; the defendant met her in one of the school rooms and told her to meet him at the ladies’ toilet; she and Mary got the drink of water, and she told Mary she wanted to go to the ladies’ toilet and meet the defendant; that she met the defendant there, and he lifted her over the fence, and they went a short distance in the brush, where the defendant laid her down and cohabited with her. Mary Loving corroborated the prosecuting witness as to what took place up to the time the prosecuting witness got over the fence and went into the brush. Mary Loving says they were gone from five to 15 minutes; the prosecuting witness returned, and she and Mary Loving went into the school room, and a few minutes later the defendant came in. The defendant denies he cohabited with the prosecuting witness.

Section 1837, C. O. S. 1921, defines “rape in the first degree” as follows :

“Rape committed by a male over 18 years of age upon a female under the age of 14 years, or incapable through lunacy or unsoundness of mind of giving legal consent; or accomplished with any female by means of force overcoming her resistance, or by means of threats of immediate and great bodily harm, accompanied by apparent power of execution, preventing such resistance, is rape in the first degree. In all other cases rape is of the second degree.”

The testimony in this case shows the prosecuting witness was under the age of fourteen years on the 15th day of April, 1927, and the defendant was 27 years of age. Where a charge of rape is preferred against the defendant, if the defendant is above 18 years of age and the prosecu-trix under the age of 14, without regard to the matter of her consent, the act is rape in the first degree. Section 1837, C. O. S. 1921, supra.

The jury heard the testimony of the state and the defendant, and returned a verdict finding the defendant guilty and fixing his punishment at 15 years in the penitentiary. This court has repeatedly held that where the evidence is conflicting, it would not set aside the verdict on the ground of the insufficiency of the evidence. In this case there is a direct conflict between the prosecuting witness and the defendant as to what took place while they Avere out in the brush.

The defendant urges as grounds for reversal certain questions and actions of the trial court in the trial of his case. We have carefully examined the record, and while some of the statements made by the lower court are not without fault, yet they are not sufficient to warrant a reversal of the case. The defendant was accorded a fair and impartial trial. The court sufficiently advised the jury as to the laAv applicable to the facts in the case. The testimony is sufficient to sustain the conviction. No errors appearing in the record of sufficient merit to warrant a reversal, the judgment is affirmed.

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


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    PAUL CHAMBERS v. STATE.
    No. A-7632.
    Opinion Filed Dec. 20, 1930.
    (294 Pac. 654.)
    Phillips & LaMore, for plaintiff in error.

      J. Berry King-, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted of having possession of intoxicating liquor with unlawful intent to barter, sell, give away, and otherwise furnish the same to others, and was sentenced to pay a fine of $50 and cost, and to be imprisoned in the county jail for 30 days. From which judgment the defendant has appealed.

The testimony on behalf of the state, in substance, is that the officers went out to the defendant’s place with a search warrant and searched the house and premises and found nothing, but out a short distance in the cornfield they found some sacks of Choc beer or home-brew buried. When the officers went to home of the defendant and told him they had a search warrant, he told them to go ahead and search the premises.

The defendant takes the witness stand and admits he made the Choc beer or home brew the officers found for his own use. There is no evidence on the part of the defendant to sell any of this home-brew. The quantity of home-brew the defendant had is prima facie evidence of intent to sell. No analysis of the beer was made, but the testimony of one of the witnesses shows that he drank some of it and he states it was intoxicating. This was denied by the defendant.

Several errors are assigned, but from an examination of the record they are not sufficient to warrant a reversal of this case. While the testimony as to the home-brew being found intoxicating is slight, in the absence of any showing to the contrary it is sufficient to sustain the judgment.

The judgment is affirmed.

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


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    JOHN BARRETT v. STATE.
    No A-7607.
    Opinion Filed Dec. 13, 1930.
    Rehearing Denied Jan. 3, 1931.
    (293 Pac. 1110.)
    Cox & Cox, for plaintiff in error.
    The Attorney General, for the ¡State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Lincoln county of the crime of unlawful possession of a still, and his punishment fixed by the court at a fine of $100 and imprisonment in the county jail for 30 days.

The evidence of the state was that the officers had a search warrant to search the southeast quarter of section 33, township 17, range 5 east of . the Indian meridian, in Lincoln county, and the buildings and grounds within the curtilage of the residence and dwelling, house of the defendant, John Barrett. Upon searching these premises, nothing was found. Thereupon the officers went to the adjoining quarter section of land, consisting of plowed fields and woodland and a vacant shack, and, upon approaching this shack, one Brummett came out with a bucket on his arm, on his way to the well. A search of this shack resulted in finding a still in operation with a quantity of mash.

Defendant filed a motion to suppress the evidence for the reason that the same was obtained by an illegal search; there being no warrant authorizing a search of the premises where the still was found. The court heard this motion in the absence of the jury. Brummett testified as follows:

“Q. Mr. Brummett, this was on a different quarter section of land than that John Barrett lives on? A. Yes, sir.
“Q. That land where the officers entered is approximately a mile from John’s house? A. Yes, sir.
“Q. Is there a field around the building? A. Yes, sir.
“Q. Is there a pasture on that place, pasture land there? A. Yes, sir.
“Q. Nobody’s residence is on there is it, Mr. Brum-mett? A. Yes, there’s a residence house there.
“Q. Whose is it? A. I don’t know who it belongs to.
“Q. It’s not yours? A. No; sir.
“Q. Not John Barrett’s? A. It don’t'belong to'John Barrett; he had it rented.
Q. He wasn’t occupying it as a residence? A. Not at that time.
“Q. Where was your residence from this building? A. A mile south.
“Your house and residence was a mile south? A. Yes, sir; a mile and a half south.
“Q. How come you to be there? A. I was there at work.
“Q. What were you doing there? A. I started to get a bucket of water, when the officers came up.
“Q. When did you work, in the daytime or nighttime? A. Nighttime.
“Q. The work you are talking, about, Mr. Brummett, was manufacturing liquor, wasn’t it? A. Yes, sir.
“Q. That’s the only kind of work you done at the house up there? A. Yes, sir.”

The officers testified that, while they were in the house where the still was found, defendant came and knocked on the door and said, “Let me in, Daddy”; that, when the door was opened, the defendant came in, having a five-gallon jug and a gallon jug in his hands; that Brum-mett then said that the still and mash belonged to the defendant, and that he was working for defendant.

This court has repeatedly held that immunity from unreasonable and from illegal search and seizure is a personal- one, and does not extend to the unauthorized search of the premises of another. Hunter v. State, 43 Okla. Cr. 138, 277 Pac. 952; Vale v. State, 43 Okla. Cr. 158, 277 Pac. 608.

Under the testimony offered, this was not the home or private residence of the defendant, and he was at the time of the raid engaged in the unlawful manufacture of whis-ky. Under the facts in this ease, he could not raise the question of the sufficiency of the affidavit or search warrant.

The defendant next contends that the court erred in refusing to permit him to show that Bert Buxton, who made the affidavit for the search warrant, had been convicted and was confined in the county jail at the time the affidavit was made.

Counsel cites no authorities in support of this proposition and we assume there are none. The fact that the person who made the affidavit for the search warrant was confined in the county jail would not disqualify such person, unless said conviction and imprisonment was upon the ground of perjury, and no claim is made that such disqualification existed. Many times the officers are enabled to get information from prisoners in confinement, and this is always legal and legitimate when obtained in the manner provided by law.

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

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


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    In re FRED RECTOR.
    No. A-8047.
    Opinion Filed Jan. 3, 1931.
    (294 Pac. 823.)

      Tillman & Tillman, for petitioner.
    J. Berry King, Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in babeas corpus. Petitioner alleges be is unlawfully restrained in tbe city jail of Muskogee by tbe sheriff of Adair county upon a commitment of a magistrate denying petitioner bail on a charge of robbery; that tbe proof of bis guilt is not evident nor tbe presumption great. Attached to tbe petition is a transcript of tbe testimony taken before tbe committing magistrate.

Tbe transcript of tbe testimony discloses that in October, 1930, a bank at Westville, Adair county, was robbed by two men who came into the bank and with firearms held up tbe employees and tbe board of directors which was then in session and took about $3,200. As they left tbe bank and were entering a car parked nearby, one of tbe employees opened fire and so seriously wounded Tom Hayworth, one of tbe robbers, that be died. One of the officers of tbe bank was shot in tbe band. Tbe other person who assisted in tbe actual robbing of tbe bank escaped and has not been apprehended.

The theory of tbe state is that petitioner aided and abetted in the robbery; that be was in a car not far from the town of Westville to assist and did assist in tbe escape of tbe robbers. There is evidence to sustain tbe committing magistrate in his finding of sufficient cause to' bold petitioner as a participant in tbe robbery. By chapter 44, Session Laws 1925, robbery with firearms is made a capital offense. In a capital offense, where tbe proof is evident or tbe presumption great, the accused is no:t entitled to bail. Article 2, § 8, State Const; section 2921, Comp. iStat. 1921. After commitment, denying bail, by a magistrate, tbe burden is on petitioner to show that he is illegally deprived of Ms liberty. Ex parte Stone, 41 Okla. Cr. 12, 289 Pac. 785; Ex parte Ditmore, 42 Okla. Cr. 111, 274 Pac. 697.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.