text:
    NEWELL MICHAEL et al. v. STATE.
    No. A-6451.
    Opinion Filed March 2, 1929.
    (274 Pac. 900.)
    L. C. McLean and John V. Roberts, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

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

The record discloses that, on the date charged, certain officers with a search warrant went to premises in charge of defendants and found Lloyd Michael, Robert Hughes, and Harold Hughes at a small building thereon. Soon Newell Michael came by and was called in by one of the officers. In this building there was indication that a still had been in operation, and in the attic the officers found a condenser coil and pressure tank. There was a smell of whisky mash about the place and evidence that corn mash had been poured out of the window and some had been spilled on the floor. Not far away there was found concealed 19 gallons of whisky, with tracks leading from the granary to it. The evidence seems conclusive that defendants had the possession of 'the whisky found for the purpose of sale.

Objection is made that the judge instead of the clerk drew the names of the jurors from the box, in violation of section 2646, Comp. Stat. 1921. No contention is made that the names of the jurors were not fairly drawn but the mere technical objection that they were drawn by the judge. No authorities in support are cited. See Young v. State, 41 Okla. Cr. 226, 271 P. 426. The statute is not mandatory, but directory, and, unless it appears that a failure to conform strictly to the statute was prejudicial, the case should not be reversed on the mere technical objection. No prejudicial error is made to appear.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    JOHN BASSETT v. STATE.
    No. A-6649.
    Opinion Filed March 2, 1929.
    (274 Pac. 893.)
    J. G. Harley, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McIntosh county for a second and subsequent violation of the prohibitory liquor law, and his punishment fixed at a fine of $200 and confinement in the state penitentiary for a term of 4 months.

The information charges a second and subsequent violation of the prohibitory liquor law under section 6991, Comp. Stat. 1921, and alleges that, on the day charged, defendant sold to one John Thompson a glass of whisky for 50 cents, and that he had theretofore on September 28, 1921, in the county court of McIntosh county, been convicted of having the unlawful possession of intoxicating liquor. The defendant did not take the stand, and offered no testimony.

Only one contention is made; that is, that the former conviction of a violation of the prohibitory liquor law is not sufficiently proven. In order to sustain the allegation of a former conviction, there must be proof from which the jury can find beyond a reasonable doubt that there was such conviction in a court having jurisdiction. The record here discloses that the court clerk was called as a witness for the purpose of proving the prior conviction. The original information was not in the files. A copy of the information' was identified and offered, but, objection being made, this was not admitted in evidence. The warrant and the verdict and the judgment and sentence were identified and admitted in evidence. The warrant recites that complaint has been filed charging the unlawful possession of intoxicating liquor and commands the arrest of defendant; it bears a return showing the arrest. The verdict finds the defendant guilty as charged in the information and fixes the punishment. The judgment and sentence recites the filing of the information charging the crime of possession of intoxicating liquor, recites the trial and conviction, and. imposes punishment as fixed by the verdict, and orders the imprisonment of defendant to satisfy the judgment; it bears a return of the sheriff that he has confined defendant as commanded. If this is sufficient proof of a prior conviction of a violation of the prohibitory liquor law, the judgment should be affirmed. If it is not sufficient proof, the judgment must be reversed.

In a prosecution under the statute here involved (section 6991), it is necessary that the prior conviction be alleged with sufficient certainty to enable the. court to determine whether or not the statute applies; and the proof must establish this fact beyond a reasonable doubt, as any other material allegation in the information. There is some difference in the authorities under similar statutes as to the manner in which the former conviction may be proven, but it seems to be settled that it may be proven by the record or a certified copy of the record of the prior conviction (State v. Howard, 30 Mont. 518, 77 P. 50), or by journal entries (People v. Campbell, 173 Mich. 381, 139 N. W. 24). It is also said that any legitimate testimony is admissible to prove the fact. Gould v. State, 66 Tex. Cr. 122, 146 S. W. 172. See, also, Tall v. Com. (Ky.) 110 S. W. 425; People v. Boardman, 172 App. Div. 733, 159 N. Y. S. 577.

This court, in the case of Rogers v. State, 34 Okla. Cr. 15, 244 P. 461, held:

“Where the accused is charged with a second offense, under the provisions of section 6991,. Comp. Stat. 1921, and the information charges that the former conviction was affirmed by this court on appeal, such affirmance is of itself a final judgment. And, where such judgment of affirmance is established by competent evidence, proof of all the steps taken in the trial court leading up to the final judgment on appeal is not necessary.”

See, also, Halbert v. State, 18 Okla. Cr. 378, 195 P. 504.

Here the fact of the prior conviction as alleged in the information is not controverted, nor the sufficiency of the information alleging it, but merely the manner in which the fact is proven.

We perceive no good reason why those parts of the record introduced, properly identified — that is, the warrant of arrest, the verdict of the jury finding the defendant guilty, the judgment and sentence imposed in conformity to such verdict, and a further showing that the defendant was committed in conformity to the sentence— is not sufficient proof of the prior conviction. Technically this may not be the most approved way of proving the prior conviction, but the proof is legally sufficient.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    A. C. GUNTHER v. STATE.
    No. A-6523.
    Opinion Filed March 6, 1929.
    (276 Pac. 237.)
    L. D. Mitchell, Lee G. Gill, and C. C. Andrews, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of procuring money by passing a false or bogus check, and was sentenced to serve a term of five years in the state penitentiary.

The undisputed facts in the case substantially appear to be that the defendant was living in Tulsa, Okla., part of the time at the Albany Hotel and part of the time at the Tulsa Hotel, and was pretending to be engaged in the business of coal mining under the name of Gunther & Co. The defendant opened bank accounts in a national bank of Pittsburg, Kan., and in the State Bank at Collinsville, 0|kla-, in the name of Gunther & Co., with instructions that no money should be paid out of said accounts except upon checks signed by A. C. Gunther. The account in the Pittsburg bank ran for over a year and in the beginning the deposits were in small sums, generally in amounts less than $100. The account with the Collinsville bank revealed the same condition. The defendant had no banking account with any bank in the city of Tulsa where he lived. The defendant appeared to be doing what in banking business is known as kiting checks; that is, the defendant would give a check to one of the two hotels at which he stayed in Tulsa on either the Pittsburg or the Collinsville bank and then telegraph a portion of the money received on the check to the bank in order to meet the check. As it usually required three to five days for the checks to clear and reach the banks on which they were drawn, the defendant was enabled to have the use of the money for from three to five days. But the usual result of this system is for the party kiting checks to increase them in amounts and frequency until any one following that system who has established á credit would be able to cash a large amount of checks with no funds to meet them. The record discloses that in the latter part of April or May, 1926, the defendant’s checks had increased untiT he had out approximately $4,000 in checks, and that he then failed to telegraph any money to take the checks up.

The defendant assigns numerous errors, but consolidates assignments Nos. 13 to 21, inclusive, which assignments deal with the validity of chapter 33, of the Session Laws of Oklahoma 1923, which reads as follows:

“Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing, of the value of $20, or less, by means or by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or devise commonly called the ‘confidence game,’ or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed $100, or by imprisonment in the county jail for not more than 30 days, or by both such fine and imprisonment. If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than $20, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the state penitentiary, for a term not exceeding seven years, or by a fine not to exceed $500, or by both such fine and imprisonment. The term ‘false or bogus check’ shall include checks or orders given for money or property which are not honored on account of insufficient funds of the maker to pay same, as against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and the knowledge of insufficient funds in, or credit with, such bank or other depository; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with the protest fees, within 5 days from the date the same is presented for payment; and, provided, further, that said check or order is presented for payment within 30 days after same is delivered and accepted. The word ‘credit’ as used herein shall be construed to mean an arrangement or understanding with the bank or depository, for the payment of such check, draft or order.”

The defendant contends that under this section the prosecution was prematurely brought, in that it appears that the same was commenced before the five days allowed by the statute for the defendant to make payment of the check in question. This contention is without merit, for the reason that the record shows that the information was filed in the district court of Tulsa county on the 16th day of June, 1926, and charges the defendant, in conjunction with one E. P. Hilliard, with passing a bogus check for $100 on the 19th day of May, 1926.

The defendant further contends, in connection with the five days’ notice, that the first proviso appearing in the act modifies the entire act instead of the preceding sentence in which the clause is incorporated. The preceding clause and the proviso read as follows:

“The term ‘false or bogus check,’ shall include checks or orders given for money or property, which are not honored on account of insufficient funds of the maker to pay same, as against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and the knowledge of insufficient funds in, or credit with, such bank or other depository; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with the protest fees, within five days from the date the same is presented for payment.”

It is apparent from the act that it was the intent of the Legislature to make it a criminal offense for any person to obtain money or anything of value by giving a check on a bank in which he had no funds at the time to meet the same, or which funds at the time were insufficient to pay the check. The indorsement of the check by the drawee, “insufficient funds,” would be prima facie evidence of the intent to defraud, provided that the drawer did not pay the drawee the amount of the check with protest fees within five days from the date of the presentment thereof for payment. If, however, the draw■er did pay the check within said five days, then it would be incumbent upon the state, as held in Douglas v. State, 15 Okla. Cr. 648, 179 P. 947, to prove the corpus delicti; that is, the existence of no funds or of insufficient funds beyond a reasonable doubt to pay the check.

In this case the state did prove as part of its case in chief, by the banker himself, that the defendant at the time of the drawing of said check had no funds in said bank with which to pay the same. The defendant himself also admitted during the trial that at the time he gave the check there was no money in the bank to cover the same. So that it is immaterial as to the defendant whether or not this proviso has reference to the definition of a false or bogus check or merely limits that part of the section referring to the prima facie nature of the evidence. Because of the uncertainty created by Kilgore v. State, 25 Okla. Cr. 69, 219 P. 160, this court now holds that the amendment of section 2146 by chapter 33, Session Laws 1923, had reference only to the prima facie character of the evidence and does not define what a false and bogus check is.

It is further contended by the defendant that the evidence is insufficient to support the conviction. The proof shows that the defendant did not have the funds with which to meet this check. In Douglas v. State, supra, this court held that obtaining money by such a check is within the meaning of the act. The state proved that the defendant got the currency on the check. The defendant admitted that he knew at the time he drew the check that he did not have the money in the bank to meet it; the intent to defraud is therefore inferred.

The further contention of the defendant that the-evidence of the passing of other bogus checks was inadmissible, incompetent, and prejudicial is without merit. This court has repeatedly held that the state may show other and similar transactions for the purpose of establishing a plan or scheme to defraud.

The defendant assigns numerous other grounds of error, but they are all without merit. The guilt of the defendant was proved beyond a reasonable doubt, and there is no reversible error in the record.

The judgment is therefore affirmed.

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


author: PER CURIAM.

text:
    LOGAN WYATT v. STATE.
    No. A-6564.
    Opinion Filed March 9, 1929.
    (274 Pac. 1092.)
    H. S. Braucht, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Kay county of assault and battery, and his punishment fixed at a fine of $50'.

The record discloses that on the date charged defendant had an altercation with one Henrietta Kuder over the herd-lawing of some ducks on which he claimed a herd-law bill of $2.50. The prosecuting witness testified that when defendant served the notice of the damage claimed for the trespass of the ducks, he used abusive language and struck her, without any provocation on her part. Two of her children corroborated her rather fully. Defendant testified that upon the service of the notice he was attacked by the prosecutrix and that he acted in his self-defense. He is corroborated rather fully by members of his family, and to some extent by the circumstances.

The evidence presents a controverted question of fact which was for the jury. No brief in support of the appeal has been filed and no appearance for oral argument made at the time the case was submitted. No fundamental error is apparent, and the evidence sustains the verdict.

The case is affirmed.


text:
    BILL ORUM v. STATE.
    No. A-6831.
    Opinion Filed March. 9, 1929.
    (274 Pac. 1097.)
    John L. Hodge and Thos. Norman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the district court of Carter county of a second and subsequent violation of the prohibitory liquor law, and was sentenced to serve a term of two years in the state penitentiary and to pay a fine of $500.

The judgment was entered March 22, 1927. The appeal was lodged in this court November 28, 1927. The state has filed a motion to dismiss the appeal, for the reason that same was not filed within six months from the date of the judgment. Section 2808, Comp. Stat. 1921, in part reads:

“* * * In felony cases, the appeal must be taken within six months after the judgment is rendered. * * *”

Where an appeal from a conviction for a felony is not filed within six months from the rendition of the judgment, this court does not acquire jurisdiction, but must dismiss the appeal. The attempted appeal is dismissed, and the cause remanded to the district court, with instructions to enforce the judgment.

DAVENPORT and CHAPPELL, J'J., concur.


text:
    E. M. SMITH v. STATE.
    No. A-6448.
    Opinion Filed March 9, 1929.
    (275 Pac. 359.)

      Wilkinson & Wilkinson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Stephens county, Oklahoma, upon a charge of embezzling certain personal property, to wit, one hog, of the value of $22.84. The jury returned a verdict of guilty as charged, and assessed the punishment at imprisonment for one year in the penitentiary. The defendant, in his motion for a new trial, sets out nine separate errors alleged to- have been committed by the trial court.

Counsel for defendant in his brief argues only the first and fifth specifications of error; the first being: “The verdict of the jury is contrary to law and not supported by the evidence.” Second. “That there was a fatal variance between the allegations of the information and the proof offered by the state.”

This court held in the case of Jackson v. State, 42 Okla. Cr. 86, 274 P. 696.

“The jury are the exclusive judges of the credibility of the witnesses, and this court will not reverse a conviction where there is any evidence in the record from which the jury could legitimately draw the conclusion that the defendant is guilty.” Summers v. State, 7 Okla. Cr. 10, 120 P. 1031.
“A motion for new trial, based on an allegation that the evidence does not support the verdict of the jury is addressed, first, to the south discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and. circumstances .produced at the' trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to this court only on the proposition that as a matter of law the verdict is contrary to the evidence.” Harrison v. State, 10 Okla. Cr. 210, 135 P. 948.

The evidence in this case is ample to prove the commission of a crime by the defendant.

Under defendant’s second ground of error, “a fatal variance between the allegations of the information and the proof offered by the state,” the defendant’s counsel argues that, if the defendant was guilty of any crime, it was larceny, and not embezzlement.

The statute under which the prosecution was conducted is section 2126, C. O. S. 1921, as follows:

“If any clerk or servant of any private person or copartnership or corporation, except apprentices and persons within the ag§ of eighteen years, fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of any other person which has come into his control or care by virtue of his employment as such clerk or servant, he is guilty of embezzlement.”

In the case of Harrie Blake v. State, 12 Okla. Cr. 549, 160 P. 30, L. R. A. 1917B, 1261, syllabus 1, this court, in defining embezzlement, says:

“(a) A fraudulent conversion is an essential element of the crime of embezzlement and such conversion must be shown by proof that the embezzler appropriated the money to his own personal use or that he placed it to some other use than the purpose for which it was received by him, or that he failed to account for and pay over the same on proper and lawful demand, (b) Proof of a mere failure to pay over money, standing alone, will not support a judgment of conviction for embezzlement.”

The evidence of the state is substantially as follows:

O. C. Hartley, witness:

“Q. State your name, please. A. O. C. Hartley. Q. Where do you live? A. Fourteen miles southeast of here. Q. You know the defendant, E. M. Smith? A. I do. Q. Tell the jury whether or not he was working for you on your place there this year; in February, this year. A. Yes, sir. Q. Did you have dny hogs up there on your place for fattening purposes for market? A. Yes, sir. Q. How many? A. Six. Q. Were those hogs being fattened for market? A. Yes, sir. Q. How many hogs were there? A. Six. Q. Did the defendant, E. M. Smith, have charge of those hogs for fattening? A. Yes, sir. Q. Do you recall the time when those hogs were brought here and sold? A. Yes, sir. Q. Were you at home on that occasion? A. No. Q. Now, prior to that occasion had you arranged with Mr. Smith, to bring those hogs to town and sell them? A. Yes, sir; that I would bring them; yes, sir. Q. Now then, were they brought here on the day you had arranged to bring them? A. No. Q. Now, then, how many hogs were reported to you by Mr. Smith that he sold here in Duncan? A. Five. Q. Know who he sold them to? A. Mr. Speegle. Q. Did he report the proceeds of those hogs? A. Five of them he did. Q. Did he say anything about the other hog? A. Said he turned her out. Q. Was that hog found on your place since your return? A. Never been seen since. Q. Did you come to Duncan after you discovered the hog was gone? A. Yes, sir; I came to Duncan, after I discovered the hog was gone. Q. Did you make an investigation where the defendant sold the five hogs? A. Yes, sir. Q. What did you learn down there with reference to the other hog? * * * Q. Did you ascertain whether or not the defendant, Smith, had sold him another hog, other than the five hogs he reported to you? A. Yes, sir. Q. That occurred here in Stephens county, Oklahoma? A. Yes, sir. Q. How long had Mr. Smith been working for you at that time? A. Up since July last year. Q. You know about the value of these hogs; what, they sold for? A. About 24.”

L. E. Toney, witness:

“Q. State your name. A. L. E. Toney. Q. What is your business? A. Deputy sheriff. Q. You recall the occasion when Mr. Hartley made complaint with reference to the loss of a hog? A. I do. Q. Did you go down and bring Mr. Smith to Duncan? A. I did. Q. I’ll ask you if you recall a conversation between the defendant, Mr. Smith, and myself with reference to this particular hog? A. I do. Q. I’ll ask you if in that conversation the defendant, Smith, here admitted bringing the hog to Duncan and selling it to Speegle? * * * Q. Go ahead and tell what was said in that conversation. A. You were questioning this man about this hog, as to how it compared with this other hog, and he said it was about the same kind of hog he had turned out of the pen down there, and said be bought it from a fellow, he said, six miles out from Duncan, driving a truck, and had it in a trailer. Q. Remember what he said about knowing the man he bought it from? A. Said he didn’t know what the man’s name was, or where he was at, or anything about it; said he paid $20 for it, $20 in cash.”

Julia Hall, witness:

“Q. State your name. A. Mrs. Emmett Hall. Q. Mrs. Hall, you recall the occasion when Mr. Smith sold some hogs to Mr. Speegle, here in Duncan? A. Only thing I know I gave a check to Mr. Smith. Q. You wrote the check out? A. Yes, sir. Q. Can you tell how many checks you wrote out? A. Two. Q. Know how many hogs they were given in payment of? A. I wrote one for five hogs and one for one hog. Q. Both to the defendant? A. Yes, sir. Q. How much was the check for one hog? A. $22.84. Q. Know what date they were on? A. Eighth day of February. Q. Have you the record? A. Just weight 185' pounds.”

The undisputed evidence in this case is that the defendant took six hogs to town and sold them. He had two checks made out, one for five hogs and one for one hog, the value of the five hogs going to O. C. Hartley, the owner, and the value of the one hog going to the defendant. The testimony of Mr. Hartley, the owner, is that he left the hogs in the possession of the defendant for fattening or to be sold. The defendant testifies that he only started to town with five hogs, and on the way met a man he had never seen before, and whose name he did not remember; that this man had a hog in the trailer attached to his car, and being on the way to Texas, and needing the money, he offered to sell the hog to the defendant. The defendant testified that he bought this hog from the stranger for $20. The story is so unreasonable that the jury no doubt rejected it; The question now is: Under the facts in this case, as disclosed by the evidence, did the taking of the hog by the defendant constitute larceny or embezzlement?

In the case of Neal v. State, 55 Fla. 140, 46 So. 845, 19 L. R. A. (N. S.) 371, that court, in construing the statute similar to ours, held:

“Evidence that a laundress upon discovering in a -clothes basket committed to her, a bag of money belonging to her employer, accidentally placed therein, recognized her duty to return the bag to its owner, but subsequently, and before so returning it, fraudulently converted the money, will support a conviction of embezzlement,” under a general statute providing that, if any servant embezzles or fraudulently “converts to his own use anything of value which has been intrusted to him, or which has come into his possession, care, custody, or control by reason of his * * * employment, * * * he shall be punished as if he had been convicted of larceny.”

The holding of the Florida court under our statute did make the crime embezzlement. It evidently was the intention of the makers of our statutes to make one guilty of embezzlement if property was left in his care, even though the possession of the property did not pass from the owner.

This court cannot split hairs on points of law. Under the old English procedure, a misdescription of the crime was fatal; but under our Code technicalities and legal subterfuges are done away with, and wide latitude given to the courts in determining what constitutes a particular crime.. The property alleged to have been embezzled came under the control of the defendant by virtue of his employment by O. C. Hartley, and the language of the statute itself makes it embezzlement, where a party comes into possession or control of property by virtue of his employment and appropriates the property to his own use.

The information properly charged the crime of embezzlement, the evidence is sufficient to' support the verdict, and, no reversible errors of law appearing in the record, the cause is affirmed.

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


text:
    AB McMILLAN v. STATE.
    No. A-6480.
    Opinion Filed March 9, 1929.
    (275 Pac. 358.)
    W. H. Woods and C. H. Baskin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Hughes county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to confinement in the county jail for a term of 60 days.

The judgment was rendered September 24, 1926. The appeal was lodged in this court January 24, 1927, 122 days after the judgment and sentence. Section 2808, Comp. Stat. 1921, requires that the appeal from a conviction for a misdemeanor be filed in this court within 120 days. Where the appeal is not filed within this period, this court does not acquire jurisdiction.

The appeal is dismissed.


text:
    H. C. WALLACE v. STATE.
    No. A-6385.
    Opinion Filed March 9, 1929.
    (275 Pac. 354.)
    Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a liquor nuisance, and was sentenced to pay a fine of $200 and to serve a term of 90 days in the county jail.

Only one witness, John Davis, a policeman, testified that with another policeman and two “Dope fiend girls” he went to the place of residence of the defendant on West Main street, Oklahoma City, and one of the girls inquired of defendant if he had anything to drink, and he answered he did, and left the place and went 300. or 400 yards into the woods while they waited in the car; that he then returned with a quart jar of whisky and delivered it to the officers; that they then arrested him and searched the house and found nothing in it except some empty bottles and two gallon jugs which apparently had contained whisky. The whisky purchased was not introduced in evidence, and the witness stated he did not examine it and did not know what color it was. He also testified that the reputation of the place as one where intoxicating liquors were kept and sold was bad.

An-objection to the evidence of the search was interposed and overruled.- Where an arrest is made at a residence, a legal search without a warrant may be made as an incident thereto. Here the evidence indicates that the arrest was made in the road or street in front of the residence, where the automobile of the witness was parked. The right of search in case of arrest is of the person and immediate surroundings of the arrested person. It does not carry with it the right to search buildings and places other than the immediate surroundings of the person arrested. In this case, since the arrest did not take place in the residence and the whisky purchased was not brought from the residence, we think the arrest did not carry with it the right to search the. residence house. The Supreme Court of the United States, in the case of Agnello et al. v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409 (1925), under a somewhat similar state of facts, said:

“While the question has never been directly decided by this court, it has always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. Boyd v. United States, 116 U. S. 616, 624, et seq., 630, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, supra [232 U. S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177], 393; Silverthorne Lumber Co. v. United States, supra [251 U. S. 385, 391, 40 S. Ct. 182, 64 L. Ed. 319] 391; Gouled v. United States, 255 U. S. 298, 308, 41 S. Ct. 261, 65 L. Ed. 647. The protection of the Fourth Amendment extends to all^equally — to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws. Congress has never passed an act purporting to authorize the search of a house without a warrant. On the other hand, special limitations have been set about the obtaining of search warrants for that purpose. Thus, the National Prohibition Act, approved, October 28, 1919, c 85, tit. 2 §25, 41 St. 305, 315 (Comp. St. Ann. Supp. 1923, §10138½m [27 USCA §39]), provides that no search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor or is in part used for business purposes, such as store, shop, saloon, restaurant, hotel, or boarding house. And later, to the end that government employees without a warrant shall not invade the homes of the people and violate the privacies of life, Congress made it a criminal offense, punishable by heavy penalties, for any officer, agent or employee of the United States engaged in the enforcement of any law to search a private dwelling house without a warrant directing such search. Act Nov. 23, 1921, c. 134, §6, 42 Stat. 222, 223 (Comp. St. Ann. Supp. 1923, §10184a [18 USCA §53]). Safeguards similar to the Fourth Amendment are deemed necessary and have been provided in the Constitution or laws of every state of the Union.”

It has also been frequently held by this court that, while evidence of the bad reputation of a place as one where persons resort in violation of the prohibitory law is admissible on a charge of maintaining a liquor nuisance, yet there should be some evidence that it is a place where persons do resort for the purpose of obtaining liquor, in order to make evidence of reputation admissible. There was no evidence of that character in this case. The defendant should have been prosecuted for selling or for transporting. The competent evidence is not sufficient to sustain a conviction for maintaining a place where intoxicating liquors are kept for the purpose of violating the prohibitory law.

The case is reversed and remanded.

DAVENPORT and CHAPPELL. JJ., concur.


text:
    ZEKE MOORE v. STATE.
    No. A-6565.
    Opinion Filed Feb. 23, 1929.
    (274 Pac. 894.)
    Renegar & Mitchell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Washita county of grand larceny, and his punishment fixed at imprisonment in the State Penitentiary for a term of two years.

The case was tried in October, 1926; the appeal was lodged in this court in April, 1927. No briefs have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a felony, and no briefs in support of the appeal are filed, and no appearance for oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors. If none appear, and the evidence reasonably supports the verdict, the judgment will be affirmed. We have done this, and find that the evidence supports the verdict, and no jurisdictional or fundamental error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    CLAYTON HUNTER v. STATE.
    No. A-6411.
    Opinion Filed Feb. 23, 1929.
    (274 Pac. 894.)

      D. E. Ashmore and A. W. Anderson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of having the unlawful possession of whisky, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $100.

The record discloses that at the time charged, certain officers of Okmulgee county were driving along the highway just after nightfall. They passed an automobile belonging to defendant, sitting by the roadside, and smelled liquor, and after going a short distance turned and drove back to the car. As they approached they saw one of the occupants lift a fruit jar from the front seat and put it between the front and rear seats. They looked in the car, and with a flashlight discovered a fruit jar of whisky sitting between the seats, some eleven empty fruit jars, and a grip which contained four quarts of whisky. Defendant at the time had left the car and was at a house across the highway. He admitted that the car was ¿his, but testified that he did not know it contained any whisky, and presents the theory that some person out of spite had placed it in his car. Defendant’s counsel contend here that the search was illegal and the evidence obtained by it inadmissible. No motion to suppress the evidence was interposed, and the evidence was not objected to when offered; but after the evidence for the state had been completed, he moved for a directed verdict. This objection, even if we should find it well taken, was not timely made. The irresistible conclusion is that the whisky was in the possession of and being transported by defendant.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    RAS COATNEY v. STATE.
    No. A-6935.
    Opinion Filed Feb. 23, 1929.
    (274 Pac. 895.)
    Ray & Thomas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of having the possession of a still, and was sentenced to' pay a fine of $250 and to confinement in the county jail for a term of 150 days.

The state has filed a motion to dismiss, from which it appears that defendant, after his conviction, was at large upon a supersedeas bond; that he has left the state of Oklahoma, is a fugitive, his whereabouts are unknown, that since October 30, 1928, a warrant for said defendant has been in the hands of the sheriff, and he has been unable to apprehend him or to learn his whereabouts. It is settled by many decisions of this court that, where a defendant has been convicted and perfects an appeal to this court, this court will not consider his appeal, unless he is where he can be made to respond to any judgment or order which may be rendered in the case. Where a defendant becomes a fugitive from justice pending the determination of his appeal, this court upon proper motion will dismiss the same.

The case is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    CLYDE D. YOUNG v. STATE.
    No. A-6553.
    Opinion Filed Feb. 23, 1929.
    (274 Pac. 895.)
    Guy D. Talbot, Clyde Wyand, and C. B. Leedy, for plaintiff in error. : ~
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Woodward county on a charge of bigamy, and his punishment fixed at confinement in the state penitentiary for a term of five years.

The case was tried in September, 1926, and the appeal lodged in this court in April, 1927. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a felony, and no briefs in support of the appeal are filed, and no appearance for oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental error, and if none appear, and the evidence reasonably supports the verdict, the judgment will be affirmed.

The record presents a very unusual state of facts. Defendant admits the marriage alleged to be bigamous and the prior marriage, both of which were solemnized in this state, but in his oral testimony claimed to have been divorced in the courts of Kansas City, Mo. He tendered what was claimed to be a certified copy of the decree. It was rejected as not complying with the act of Congress relating to the authentication of foreign judgments, and for the further reason that it was mutilated and altered. If defendant were divorced, surely this deficiency would have been supplied on motion or supplemental motion for new trial. The failure to show the decree of a court as accessible as Kansas City must have been because it did not exist.

The evidence supports the verdict, and no jurisdictional or fundamental error is apparent.

The ease is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    EVA BAYNE et al. v. STATE.
    No. A-6436.
    Opinion Filed Feb. 23, 1929.
    (274 Pac. 1095.)

      Walter Mathews, for appellants.
    Roscoe Cox, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Lincoln county on a charge of willfully, unlawfully, and wrongfully having possession of intoxicating liquor, to wit, corn whisky containing more than one-half of 1 per cent, alcohol measured by volume and capable of being used as a beverage, with the intent then and there on the part of the defendants Burney Overton, Harry Venson, and Eva Bayne to sell, barter, give away, or otherwise furnish the same.

The information properly charges the crime. The evidence in this case discloses that information had come to the sheriff of Lincoln county that the defendants were engaged in making and selling intoxicating liquors on the northwest quarter of section 3, township 1&, range 5 East, in Lincoln county, state of Oklahoma, and that a still was in operation on these premises.

The affidavit upon which this search warrant was issued was sufficient to authorize the sheriff to lawfully enter upon and search the outlying premises of the defendant Eva Bayne, described in the affidavit, but was not sufficient to authorize the search of the private dwelling house of the defendant Eva Bayne.

The sheriff and his deputies, being legally on the premises under this search warrant, approached the residence of the defendant Eva Bayne, and, when from 30 to 50 feet from the house, could smell mash, and could see 4 or 5 mash barrels on the ground near the dwelling house, and could see a barrel of mash sitting on a table against the side of the dwelling house with a spigot going through a hole in the wall into the dwelling house. The door being open the officers could see a bottle filled with liquid resembling whisky in appearance, several jugs, and other paraphernalia on the floor in the kitchen, and could see the defendants moving around in the room and could hear the defendants hammering as though working at something inside the house.

The sheriff immediately placed under arrest the defendants Burney Overton and Harry Venson and told the defendant Eva Bayne to report at his office on the next day. The sheriff went up to the door and told defendant Eva Bayne that he had a warrant and wanted to search the house, and she said, “All right come in and search it.” Afterwards and on the outside of the house the defendant Eva Bayne in conversation with the sheriff told him that she had started to run it (meaning the still) about 7 o’clock this morning. She said her husband was in jail, in town, and “he told me and these colored men to run it this morning.”

This, in substance, is substantially the evidence on the part of the state. In the case of Bayne v. State, 42 Okla. Cr. 81, 274 P. 694, which case is a companion case, this court reversed the conviction in that case, for the reason that the only evidence in that case was obtained by means of an unlawful search warrant. The affidavit was insufficient under the provisions of section 7013 to authorize the search of a private dwelling while occupied as such; the evidence of the state in that case being that the sheriff and his deputies, under this warrant, went into the house, without being able to see or detect the still otherwise, and tore up 4 boards in the steps in the stairway and found the still hidden in the stairway. That being the only evidence .in that case, and having been obtained under a search and seizure not authorized by the affidavit and warrant, we held the court committed error in overruling the defendants’ motion to exclude the exhibits and evidence found in the search in that case.

But this case presents an entirely different question. In this case the officers were lawfully upon tire premises by virtue of the search warrant. When considerable distance from the house, they could smell mash, could see the barrels, and other apparatus outside of the house, and through the open door could see the jugs and bottles and apparatus, together with the liquor and the defendants, and could hear the defendants as they were working inside of the room.

This court had before it the precise question in this case as in the case of Washington v. State, 37 Okla. Cr. 415, 259 P. 150. In that case, in an opinion by Presiding Judge Doyle, this court said:

“A search for intoxicating liquors without a search warrant is not ‘unreasonable,’ within the meaning of the Constitution where it is made by officers, who, before entering the premises, could smell mash cooking, which they knew by their sense of smell was whisky mash, and where they observed a person moving around with a flash light where a still was in operation.” In the above case the facts known to the officers were not as definite and complete as the facts disclosed in this case.

Under the provisions of section 7014, C. O. S. 1921, the sheriff was authorized to make the arrest and seize the liquors, since the offense was occurring in his presence, and in this case, under the facts disclosed, no search warrant was necessary to enable the officer to seize the liquors, and, under the rule laid down in the case of Washington v. State, the evidence was clearly admissible. The defendant Eva Bayne admitted to the sheriff that she, together with the two defendants, had been operating the still to make the whisky found by the sheriff.

The defendants further complain of the instructions given by the court. While the instructions are informal, they fairly state the law of the case, and the making and giving of the same do not constitute ground for reversal of the case.

A careful reading of the record shows that the defendants received a fair trial, that the evidence is sufficient to sustain the verdict, and that no error was committed prejudicial to the rights of the defendants, and the judgment appealed from is therefore affirmed.

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


text:
    REX CAMPBELL v. STATE.
    No. A-5950.
    Opinion Filed Feb. 23, 1929.
    Rehearing Denied March 16, 1929.
    (274 Pac. 1094.)

      Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen.., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county by a jury, of robbery with deadly weapons, and sentenced to serve 25 years in the state penitentiary. Motion for new trial was filed, considered, and overruled, and defendant has appealed to this court.

The information properly charged that Rex 'Camp- • bell, and Hurley Slitt, did in Oklahoma county and state of Oklahoma commit the crime of robbery with deadly weapons. Before the beginning of the trial, the defendants were granted a severance, and the state thereupon elected to try defendant Rex Campbell.

The first error complained of by the defendant is that there was not sufficient evidence to support the verdict.

In the case of Jackson v. State, 42 Okla. Cr. 86, 274 P. 696, this court said:

“A motion for new trial, based on, an allegation that the evidence does not support the verdict of the jury, is addressed, first, to the sound discretion of the trial court, who has seen and heard the witnesses testify, and who must necessarily know a great deal more about many facts and circumstances produced at the trial, which cannot be written into a record, than an appellate court can by reading the record after it is written. And when a trial court has considered and passed upon such an issue, it comes to this court only on the proposition that as a matter of law the verdict is contrary to the evidence.” See, also, Harrison v. State, 10 Okla. Cr. 210, 135 P. 948.

Another ground of error complained of is that the court failed to instruct the jury as to the weight to be given the testimony to the effect that the defendant had been convicted of violating the prohibition laws.

In the case of Lumpkin v. State, 5 Okla. Cr. 489, 115 P. 478, this court said:

“Our statutes require a trial judge to instruct the jury as to all matters of law which he thinks are necessary for their information in giving their verdict. If counsel for a defendant are of the opinion that additional instructions should be given to the jury, it is their duty to reduce them to writing, submit them to the trial judge, and request that they be given to the jury. If they fail to do this, a conviction will not be reversed unless this court is of the opinion, in the light of the entire record and instructions of the court, that by the failure of the trial court to instruct the jury upon some. material question of law the defendant has been deprived of a substantial right.”

In the. case of Sparks v. State, 34 Okla. Cr. 373, 245 P. 1061, this court held: “Where no objection is made or exception taken to the instructions given by the court, and no requests for instructions are made, error cannot be predicated upon the failure of the court to give any particular instruction.”

The defendant also complains that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence.

In the case of Hamilton v. State, 42 Okla. Cr. 159, 274 P. 1092, this court held:

“A motion for a new trial after judgment, on the ground of newly discovered evidence is addressed to the sound discretion of the trial court.”

It appears from the affidavit of the defendant that the defendant fixes no date when he claims to have discovered this evidence, and from his own evidence it appears that part of it had been discovered during the progress of the trial.

A motion for new trial upon the ground of newly discovered evidence is fatally defective, where the defendant making the affidavit fixes no date upon which the discovery was made, and where it appears from the affidavit that the evidence is only impeaching and cumulative.

This defendant assigns numerous other grounds of error, but a careful examination of the record discloses that they are all without merit. The evidence introduced on the part of the state establishes the guilt of the defendant beyond a reasonable doubt, and a careful reading of the record shows that he received a fair trial, and that no error was committed prejudicial to his rights.

The judgment appealed from is therefore affirmed.

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


author: DAVENPORT, J.

text:
    A. S. HAMILTON v. STATE.
    No. A-6444.
    Opinion Filed Feb. 23, 1929.
    Rehearing Denied March 16, 1929.
    (274 Pac. 1092.)

      W. R. Withington, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted in the district court of Oklahoma county by a jury, of grand larceny, and sentenced to serve 2% years in the state penitentiary. Motion and amended motion for new trial was filed, considered, and overruled, and defendant has appealed to this court.

The state called a number of witnesses who' testified that the casings defendant was alleged to have stolen belonged to the Johnson Furniture Company; they were identified by several witnesses as being the casings taken from the truck of the furniture company. The testimony further shows that defendant went to Mr. Zellars’ residence on C street in Capitol Hill, and agreed to sell the casings to Mr. Zellars, and the witness W. P. Lindsay stated he was at Mr. Zellars’ when the defendant came, and that Mr. Zellars asked the defendant in presence of the witness where he would deliver the casings, and the defendant replied, “Well, maybe better not bring them here, you have been in a little trouble before and we had better deliver them some place else, the law may be watching your house right now;” and Zellars and the defendant agreed that he would come back in about an hour with the casings, and when he drove by in his coupe Zellars was to drive his truck and lead the way to the country somewhere where they could make the delivery. The testimony further shows that out on. the road the defendant and Zellars had stopped, and just as the defendant was delivering the casings to Zellars the officers came up and arrested the defendant.

The defendant denies stealing the casings, and states he bought them from some boys at a pool hall; that Mr. Zellars had asked him if he could buy him some casings cheap, as he did not want to buy new casings for his truck. Defendant admits he was delivering the casings to Zellars when arrested. .

John Swayne and Homer Hamilton were called by the defendant, and testified to the defendant buying the casings from some boys at a pool hall mentioned in the testimony. Also, a Mr. Miller testified that he was at the pool hall at the time defendant bought the casings from two boys. No one seems to know the name of the boys. This is in substance all of the testimony.

The court properly instructed the law. The jury is the sole and exclusive judges of the credibility of the witnesses and the weight to be given their testimony, and where there is competent testimony to sustain a conviction, though conflicting, this court will not disturb the verdict of the jury.

The defendant as a ground for reversal of this case urges that the court erred in refusing plaintiff in error a new trial on the ground of newly discovered evidence set forth in his amended motion for a new trial. The amended motion of the defendant has been carefully ex-. amined, and we find defendant in his amended motion states he has discovered additional evidence, stating that Johnie Swayne and Homer Hamilton, both of whom live in Oklahoma City, had stolen the tires, and that the defendant did not know these facts, but that since the trial he had learned that both Swayne and Homer Hamilton had made a complete confession stating they stole the said automobile tires, which statement did not in any way show this defendant was implicated in the stealing of the said tires; that he knew these two witnesses before the trial, but he did not know they had stolen the tires, and had no way of finding out they had stolen the tires or that said tires were stolen. The defendant makes an affidavit to the amended motion setting up what he could prove by the two witnesses, but does not support his statement by an affidavit of Swayne and Hamilton stating they stole the casings. John Swayne and Homer Hamilton were both called as witnesses for the defendant in the trial of the case, and neither stated they had anything to do with the stealing of the casings, or that they had any knowledge as to who did steal them, claiming that defendant bought them from some boys at the pool hall.

The defendant cites the case of Peters et al. v. State, 35 Okla. Cr. 367, 250 P. 1032, as sustaining his contention that his amended motion for a new trial should be granted. A careful examination of the Peters Case shows the facts in the Peters Case are quite different from the facts in this case. In the Peters Case, the affidavit of the witnesses by whom the defendants in the Peters Cáse allege they could show certain material facts were attached to the motion for a new trial. In this case the defendant does not attach the affidavit of Swayne and Hamilton, but relies upon his own statement as to what he could show by these two boys.

“A motion for new trial, after judgment, on the ground of newly discovered evidence, is addressed to the sound judicial discretion of the trial court. Testimony offered for the purpose of contradicting the testimony of the complaining witness is cumulative and therefore not sufficient ground for granting a new trial.” Diffey v. State, 10 Okla. Cr. 190, 135 P. 942.

The motion is fatally defective, where it does not state fully the circumstances which make it appear that such evidence as a matter of fact was newly discovered, and could not have been discovered by the exercise of proper diligence. Ryan v. State, 8 Okla. Cr. 624, 129 P. 685.

In this case the witness by whom he alleges he could show they stole the casings, and that the defendant was not connected with it in any way, testified in the trial of the case. The defendant knew the witnesses, and no showing is made as to why the defendant could not have discovered what the witnesses would testify earlier by the exercise of proper diligence. The motion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed except for an abuse of discretion. We hold that the court di:d not abuse its discretion in overruling defendant’s motion for a new trial. The evidence in this case is sufficient to sustain the judgment.

No prejudicial errors appearing in the record, the case is affirmed.

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


text:
    BILL LLOYD v. STATE.
    No. A-6096.
    Opinion Filed Feb. 23, 1929.
    (274 Pac. 901.)

      Phillips & Phillips, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of violating the prohibitory liquor laws, and his punishment fixed at 30 days in jail and a fine of $50 and cost. Motion for new trial was filed and overruled, exceptions saved, and the case appealed to this court.

The defendant has assigned five separate errors committed by the trial court, the first being: “Error of the court in overruling defendants motion to set aside the information.”

The information is in proper form. The form of the affidavit attached to the information is as follows:

“State of Oklahoma, Bryan County, ss.
“I, J. E. Tritt, being duly sworn on oath do state that the facts set forth in the foregoing information are true.
“J. E. Tritt.
“Subscribed and sworn to before me by J. E. Tritt, this the 6th day of November, 1925.

The defendant, on the 5th day of January, 1926, appeared by his attorneys and filed the following motion, omitting the caption:

“Now comes the defendant Bill Lloyd, by his attorneys, Phillips & Phillips, and moves the court to set aside, quash and vacate and hold for naught the purported information filed herein, for the reason that the same is not verified as required by law.
“Phillips & Phillips,
“■Attorneys for Said Defendant.”

This motion was heard and considered by the court'and overruled, and defendant duly excepted. The defendant then filed a demurrer to the information on the ground that the information was not drawn in accordance with the chapter on criminal procedure, and that the same does not state facts sufficient to constitute a public offense, more ' especially the offense charged or attempted to be charged, which demurrer was by the court overruled.

The court inquired of the defendant as to his plea, and defendant refused to plead, and the court then entered for him a plea of not guilty, and directed the clerk to let his record show a plea of not guilty.

The defendant announced that he intended to stand upon his motion to quash the information and the demurrer. A jury was then called and testimony taken on behalf of the state, which resulted in a conviction of the defendant.

After a careful examination of the record, the only assignment of error that we deem necessary to consider is the first assignment, which goes to the action of the court in overruling defendant’s motion to quash and set aside the information.

The last sentence in section 2511, C. O. S. 1921, reads as follows:

“All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.”

The information in this case does not purport to have been verified or sworn to by anyone, nor was there any effort made on the part of the state to show that J. E. Tritt did swear to the information and that the officer who administered the oath failed to attach his jurat to the affidavit.

The defendant, in filing his motion to quash for want of verification, properly saved the record, and his motion should have been sustained, and the state required to file an information properly verified before the defendant was forced to trial. In re Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805; Muldrow v. State, 4 Okla. Cr. 324, 111 P. 656.

The view we take of this record, it is not necessary to consider the other assignments.

The case is reversed and remanded.

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


text:
    CHARLIE HARVICK v. STATE.
    No. A-6517.
    Opinion Filed Feb. 23, 1929.
    (274 Pac. 900.)
    S. B. Garrett, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Jackson county on a charge of having the possession of a still, and was sentenced to pay a fine of $150 and to serve 30 days in the county jail.

The case was tried in January, 1927, and the appeal was lodged in this court in March, 1928. No briefs in support of the appeal have been filed. No appearance for oral argument was made at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a misdemeanor, and no briefs in. support thereof are filed nor oral argument made, this court will examine the record for jurisdictional or fundamental error, and, if none appear, and the evidence reasonably sustains the verdict, the case will.be affirmed. We have examined the record and testimony, and, while the case was very poorly tried on the part of the state, we find no jurisdictional or fundamental error. The testimony is such that the jury might reasonably and logically find the defendant guilty.

The case is affirmed.


text:
    BILL VANDERPOOL v. STATE.
    No. A-6500.
    Opinion Filed March 2, 1929.
    (274 Pac. 902.)
    A. W. Turner, for plaintiff in error. ;
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted' in the county court of Ottawa county of having the unlawful possession of intoxicating liquor, and his punishment was fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The case was tried in December, 1926, and the appeal was lodged in this court in February, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a misdemeanor, and no briefs in support thereof are filed nor oral argument made, this court will examine the record for jurisdictional or fundamental error, and, if none appear, and the evidence reasonably sustains the verdict, the case will be affirmed. We have examined the record, and, while the case was very poorly tried on the part of the state, we find no jurisdictional or fundamental error. The testimony is such that the jury might reasonably and logically find defendant guilty.

The case is affirmed.