text:
    DOC BOGGESS v. STATE.
    No. A-9687.
    Sept. 4, 1940.
    (105 P. 2d 446.)

      W. Y. Stanifield and Bruno Mayer, both pf Ada, for plaintiff in error.
    No brief for tbe state.
   DOYLE, P. J.

Tbe plaintiff in error prosecutes this appeal from a judgment of tbe county court of Pontotoc county sentencing him in accordance with tbe verdict of tbe jury to be confined in tbe county jail tfor 30 days and to pay a fine of $150 and all costs.

Tbe information in substance charges that in said county on March 1, 1939, tbe defendant, Doc Boggess, did have in bis possession 57 pints of whisky and gin, with the unlawful intent to sell tbe same.

The state relied for this conviction upon the testimony of Jim Rogers, Joe Porter, and Charley Shockley. Their testimony was to' the effect that in executing a search warrant on the Seminole Cafe, in Fittstown, operated by the defendant, Doc Boggess, they found 57 pints of whisky and gin, secreted in the lower part of an icebox, that the upper compar tments of the icebox contained beer and soda-pop, the lower part had a trap door and the latch in the door was hidden.

Before entering upon the trial, the defendant filed a motion to suppress the evidence, on the ground that the. evidence upon which said information was based was obtained by means of an illegal and void search warrant, issued upon an insufficient affidavit that does not allege facts and is not positive in form, and that said premises were not definitely described as required by law; that said search warrant was not served on the defendant as provided by law; and for the further reason that a part of the building searched was the private residence of the defendant; that for the reasons stated said search and seizure so made was in violation of the constitutional and statutory rights of the defendant.

The affidavit upon which the search warrant issued is in part as follows:

“Jim Rogers, being first duly sworn upon his oath deposes and states: That intoxicating liquors, to wit: Whis-ky, gin and alcohol in large quantities are being kept, stored and secreted for the purpose of being sold and disposed of in violation of law by, Doc Boggess and others unknown, on the following described premises, to wit:
“At Fittstown, in Pontotoc County, South of Ada, on State Highway No. 99, to Norris Avenue, in Fittstown, where it intersects said State Highway, thence East on said Norris Avenue to the first honky tonk, cafe, and dance hall, on the North side of said Norris Avenue, about one city block east olf said State Highway No. 99, said place being known as and called the Seminole Cafe, and being operated by said Doc Boggess and others to your affiant unknown.”

And states facts as follows: That the proprietor of said place is Doc Boggess; that persons frequent said premises known to be users of intoxicating liquor; that many intoxicated persons are seen there; that the aforesaid premises are a place of public resort; that persons frequent said premises at all hours of the day and nighttime, and persons have been seen to come from within said premises in an intoxicated condition; that said premises bear the reputation of being a place where intoxicating liquors may be purchased.

“From which facts affiant sayeth that said liquors are being kept and stored on said premises, and that said liquors in and on said premises in the possession of said Doc Boggess and other persons in his employ, and are held for the purpose of selling the same in violation of the prohibitory liquor laws of the state of Oklahoma.”

In support of the motion to suppress, the defendant testified that he lives in Fittstown, operating a place of business in a building between 50 and 80 feet long, having five rooms, the front room, cafe, with booths and tables, next kitchen and store room, and lives in the rear rooms, and has occupied the place for about four years; that the officers came there about sundown, but did not serve any search warrant on him; that he did not see the search warrant until the next day; that the officers found the liquor by going into the kitchen.

Cross-examined, he stated the front room was a big room, used as a cafe, with the kitchen right behind it; that in the front room was the icebox, with door on kitchen side, and the officers found the whisky in the icebox; that he was married on March 11th, but his wife was then working there; that in the front room is a nickelodeon, bnt there is not much room to dance.

A. W. Oliver testified that he was justice of the peace and issued a search warrant on March 1, 1939. Identified defendant’s exhibit “1” as the affidavit ¡for the search warrant, and identified defendant’s exhibit “2” as the search warrant.

On cross-examination he stated the affidavit was subscribed and sworn to by affiant, Jim Rogers, in his presence.

Jim Rogers testified that he is and was on March 1st a deputy sheriff of Pontotoc county. Handed affidavit, defendant’s exhibit “1”, stated that was his signature thereon. That he received the search warrant, defendant’s exhibit “2”, and executed the same by going to the Seminole Cafe, at Fittstown, accompanied by Joe Porter, Charley Shockley and the county attorney; that he asked if Doc was there, a woman said that she was in charge when Doc was not there, and he gave her a copy of the search warrant; that he had seen her there before; that in making the search he found Doc, and told him that he left the search warrant up in front ¡for him, and Doc said “That was all right, we didn’t need a search warrant.”

On cross-examination he stated that he knew many intoxicated persons were seen there, that he knew that, as a fact, the premises bear the reputation of being a place where intoxicating liquors may be purchased; that before the liquor was found Doc said it was all right, they did not need a search warrant to search his place.

On re-direct examination he stated: “I can say I have taken drunks away from there.”

Charley Shockley testified that as a deputy sheriff, accompanied by two other deputies, he went to Fittstown to search Doc Boggess’ place of business. That be searched the entire place; that be found the liquor in the icebox; that be went in the kitchen to- get into the icebox; that be knew that Doc lived in the back there; that be would say that they were there about an hour before they found the liquor.

On cross-examination be stated:

“We got to discussing that icebox and decided that the inside part of it did not come down as deep as the outside, and we went back and took another look and found the liquor.”

At the close of the evidence the court ruled: “Motion to suppress evidence overruled. Defendant excepts.”

The defendant contends that the search warrant was void because the affidavit upon which it is based merely alleges conclusions, without stating facts sufficient to warrant the issuance of a search warrant. Citing many cases holding the search warrant void because based on affidavit, merely alleging conclusions without stating facts showing probable cause.

A reasonable and lawful search and seizure is provided for in the Constitution by means of a search warrant, supported by oath or affirmation, showing probable cause; all others are “unreasonable” and unlawful within the meaning of the constitutional provision. Const, art. 2, sec. 30, Okla. St. Ann.

The statute provides:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to' be searched, and the person or thing to be seized.” Section 2638, O. S. 1931, 37 Okla. St. Ann. § 87.

It has been repeatedly held by this court that a. search warrant issued under this section of the Enforcement Act may be lawfully issued only when based on verified complaint or affidavit, stating facts showing the probable cause, and affidavits made on information and belief, or merely alleging legal conclusions, are insufficient. Whitwell v. State, 65 Okla. Cr. 178, 83 P. 2d 881.

In the case of Smith v. State, 30 Okla. Cr. 144, 235 P. 273, this court held:

“A search warrant must be based upon evidential facts, but the quantum of evidence necessary to show probable cause may be quite insufficient to' support a verdict of guilty.”

In the opinion comparison is made between the affidavit in the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249, and the affidavit under consideration in the Smith case:

“It also states that the place described was a place of public resort, the fifth house (presumably a residence) east of the coal chute, and that it was a place where wine, beer, and whisky were being kept. All these statements, considered together, reasonably implied that the liquor described was being kept for an illegal purpose.”

In Mullus v. State, 32 Okla. Cr. 134, 240 P. 135, it is said:

“This case comes more nearly within the rule of insufficiency announced in the case of Hannan v. State 29 Okla. Cr. 203, 233 P. 249. But even under the rule in that case, as distinguished in the case of State v. Smith, 30 Okla. Cr. 144, 235 P. 273, the affidavit, while subject to criticism, is sufficient to sustain the search warrant.”

In McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90, cited in defendant’s brief, this court held:

“A search warrant must not be issued except upon a showing of probable cause, supported by oath or affirmation, which must set ¡forth the facts tending to establish probable cause. Affidavit examined and held to comply with the statute.”

In its opinion written by Judge Barefoot, the court said:

“We have examined the cases cited by defendant to support his contention that this case should be reversed. * *
“A careful reading of these cases reveals that they are very different from the facts in the instant case. In those cases the affidavit is made upon information and: belief. In the instant case the affidavit of the officer is not only positive, but it states the facts upon which his affidavit is based. It is not mere conclusions, as stated in defendant’s brielf, but the evidence of this officer shows that he had obtained direct information that the law was being violated in the most flagrant manner by the defendant, before he made the affidavit to secure the warrant for the purpose of searching defendant’s premises.”

It is well settled that where an affidavit is filed before a proper officer, positive in form, setting out facts justifying the issuance of a search warrant, the search warrant issued on such affidavit may not be rendered invalid by evidence attacking the truth of the statements in the affidavit, nor is the admissibility of the evidence obtained by such search warrant affected by proof that the facts therein positively stated were in reality stated upon information and belief. Cahill v. State, 38 Okla. Cr. 236, 260 P. 91.

A motion to suppress evidence secured by reason of a search of defendant’s premises under a search warrant is properly overruled, where the affidavit to obtain a search warrant, and testimony of the witness making the affidavit for the search warrant, taken at the hearing of defendant’s motion to suppress the evidence, show a substantial compliance with the statute defining the grounds to be set forth in an affidavit to obtain a warrant. Blevins v. State, 39 Okla. Cr. 250, 264 P. 634; McCullough v. State, 39 Okla. Cr. 293, 264 P. 916.

In support of his motion to suppress the evidence, the defendant called as a witness the affiant, Jim Rogers, deputy sheriff, whose testimony is to the effect that the alleged facts as stated in the affidavit were based upon his personal knowledge, and that he had taken drunks away from the defendant’s place.

Affiant also stated, as a fact within his personal knowledge, “that the said premises bears a reputation of being a place where intoxicating liquor may be purchased.”

The rule that evidence of the general reputation of the place as being a place where intoxicating liquor is kept for sale may be established in a case where the defendant is charged with the unlawful possession of such liquor in such place, if such a place be one resorted to by the public for that purpose, is well established in this state. Friedman v. State, 19 Okla. Cr. 124, 198 P. 350; Bland v. State, 18 Okla. Cr. 514, 196 P. 732; Felas v. State, 16 Okla. Cr. 631, 185 P. 839; Caffee v. State, 11 Okla. Cr. 263, 145 P. 499; Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120.

It is elementary that a search warrant must be based upon evidential facts, tending to establish probable cause.

The term “probable cause”, as used in the Constitution (art. 2, sec. 30), relating to unreasonable searches and seizures, has been defined as follows :

“Probable cause * * * is the existence of such facts and circumstances as would excite an honest belief in a reasonable mind, acting’ on all the facts and circumstances within the knowledge of the magistrate that the charge made by the applicant for the warrant is true.” State v. Lawler, 221 Wis. 423, 267 N. W. 65, 70, 105 L. R. A. 568. And see 34 Words and Phrases) Perm. Ed.

Upon tbe record before ns we find tbe affidavit was sufficient to show probable canse ifor tbe issuance of tbe search warrant.

Having held there was a lawful search and seizure, it follows that tbe evidence thus obtained was admissible, and the defendant’s motion to suppress tbe same was properly overruled.

It also appears that tbe defendant was duly convicted of an offense of which be was unquestionably guilty, and we find that bis constitutional and statutory rights have not been violated. The judgment off tbe county court of Pontotoc county herein is accordingly affirmed.

BAREFOOT and JONES, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, J.

license: Public Domain

text:
    R. H. HOWARD v. STATE.
    No. A-9674.
    Sept. 4, 1940.
    (105 P. 2d 440.)

      Fred L. Patrick and Ray McElhinney, both of Sa-pulpa, for plaintilff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Everett S. Collins, Co. Atty., of Sapulpa, for the State.
   BAREFOOT, J.

The defendant, R. H. Howard, was charged in the district court of Creek county, with the crime of malicious mischief; was tried and found guilty by a jury, and his punishment assessed at two and one-half years in the penitentiary, and he has appealed.

The defendant was charged under section 2325, Okla. Stats. 1931, 4 O. S. A., § 1751, which is as follows:

“Every person who maliciously, wantonly or negligently either:
“1. Removes, displaces, injures or destroys any part oif any railroad, or railroad equipment, whether for steam or horse cars, or any track of any railroad, or of any branch or branchway, switch, turnout, bridge, viaduct, culvert, embankment, station house, or other structure or fixture, or any part thereof, attached to or connected with any railroad; or,
“2. Places any obstruction upon the rails or tracks of any railroad, or any branch, branchway, or turnout connected with any railroad, is punishable by imprisonment in the penitentiary not exceeding four years or in a county jail not less than six months.”

Defendant was charged jointly with James McCoin, who was used by the state as a witness against the defendant.

For a reversal of this case it is urged that the witness James McCoin being an accomplice, his evidence was not corroborated in the manner prescribed by law; and that the evidence was not sufficient to warrant a conviction olf defendant; and that certain evidence was permitted to be introduced by the court that was inadmissible, to the prejudice of defendant. All of these errors may be considered together.

The information charged that defendant, E. H. Howard, and James McCoin, on the 8th day of December, 1937, did: “maliciously, feloniously, wantonly, unlawfully, and wrongfully place an obstruction upon the St. Louis-San Francisco Eailroad Company tracks, one 1934 model, one and one-half ton Chevrolet truck, * * * near the town of Bowden, Creek county, Oklahoma, * *

The evidence in this case reveals that defendant, on and prior to December 8, 1937, was the owner of a 1930 model Ford truck, a 1936 model Chevrolet sedan, and a 1934 model Chevrolet truck. These trucks and the sedan were mortgaged to the Eainbow Motor Company. There were two mortgages; one covering the two trucks, and one covering the sedan and the 1934 Chevrolet truck. These mortgages had been assigned to the Barry Investment Company, who were the owners thereof on and prior to the 8th day of December, 1937.

The Barry Investment Company filed a replevin suit in the common pleas court of Tulsa county in which it re-plevined the cars above described. The deputy sheriff secured possession of the Ford truck and the Chevrolet sedan on the 7th day o'f December, 1937. The record reveals that there was due on the mortgage covering the two trucks a balance of $170.15, and that the Ford truck was sold for $15. The 1936 Chevrolet sedan sold, for $392.10. The record does not reveal the amount due on that mortgage. In rendering judgment in the replevin action the court permitted evidence that the 1934 Chevrolet truck had been destroyed and could not be returned, and a judgment was returned against the defendant, Howard, for $250, in lieu thereof. Pieces of the Chevrolet truck were after-wards secured and sold for $10.

The deputy sheriff who- served defendant with the replevin writ on the 7th day of December, 1937, testified that he could get no information from defendant as to the whereabouts of the 1934 Chevrolet truck, and that he did not secure possession of the same under the writ.

The owner of the mortgage testified that the company had no insurance policy covering the 1934 Chevrolet truck. That on December 9, 1937, the defendant called her and told her the truck was parked at Red Fork, but that after an investigation there it was not found.

The facts as testified to by the witness James McCoin were that he Avals acquainted with defendant, R. H. Howard, who was engaged in hauling sand and rock in the city of Tulsa, and improving lawns, terraces, etc. That he employed a number of men to- work for him at different times. That defendant owned two trucks; a Ford and a Chevrolet, and also- a Chevrolet sedan. That he had been working (for defendant for about a year, and that on the morning of the 8th of December, 1937, defendant came by his house as was his custom, and that he parked the Chevrolet truck he was driving some two or three blocks from the house. It was about 8:00 or 9:00 o’clock in the morning, and defendant said he wanted him to work. He got into tbe truck with defendant and he told him that the finance company had taken his Ford truck, and was wanting his Chevrolet truck, and he said, “that he would see them in hell before he would let them have it.”

The witness then related that they stopped and defendant asked him if he knew where there were any good cliiffs, or anything like that, “we could drive the truck off enough to wreck it so he could collect the insurance on it.” He said he had a f500 insurance policy on the truck, and if he could collect it he could pay the bills and have money left. He further testified that defendant told him he would give him $5 if he would go with and assist him, and this witness agreed to do. Defendant drove out toward “Devil’s Canyon”, and decided that a train would be the best. They went to the small town of Bed Fork, and to Oakhurst crossing, and just before they got to the railroad crossing they stopped and left the motor running. Defendant then told the witness that he did not have enough gas to keep the truck running until a train came and defendant leift and went to a filling station for the purpose of getting some gas. Before he left witness asked him, “What do you want me to do if a train comes along?”, and defendant said, “Just pull it out on the tracks and pretend it stopped”, and witness told him, “All right”. Defendant returned and put some gas in the truck, and went back to the filling station to get something to eat. That soon after defendant leift he heard a train coming a good ways from him, and that he drove on the tracks and slipped the clutch and killed the motor. Just at this time two guys came along and stopped and told him he had better get off the tracks as a train was coming, and they asked him if he needed any help, and he told them he did, and they helped him push the truck off the tracks, and they told him to put it in gear and start it, and he drove to the filling station where defendant was, and they put some gas in tbe truck and defendant asked Mm iff be thought they could beat the train to the Bowden crossing, and witness said: “I don’t know, we would have to go pretty fast if we do”, and defendant said: “Well, we will try”. The train outdistanced them and they drove to the town of Red Fork, and defendant said:

“Well, we might have a better chance tonight and there won’t be nobody to' see us, either. We will park the truck here at Red Fork and catch a bus into town and go to a show, or something, until tonight and come back out.”

They then caught the bus into Tulsa and went to two shows, getting out of the last one after dark. The witness then testified that they went to Fifth and Main and caught a bus to Red Fork, and then got in thé truck and drove out to the Bowden crossing. They turned around and came back and parked just a little ways from the crossing and cut the lights out and loft the motor running. In a few minutes they saw a train coming and defendant told him to' pull up on the track and come back away from it. The witness did this, but as there were several tracks he did not get on the main line and the passenger train passed and missed them. He testified that defendant ran about 200 yards away and that he stood by the truck when he saw the train was not going to hit it. That defendant returned and asked what happened, and he told him the motor stalled on him and happened to stall on the wrong track, and defendant told him: “Well, back it up again. We will wait. There might be another one come along, but that was our best chance. That they could not have a better one.”

The witness further testified:

“So we backed the truck off the tracks and waited awhile, and we didn’t think there was a train coming, so be said, ‘We will go back to Tulsa. There might be a train between here and there.’
“So we started across the tracks and we got just about 50 or 100 yards from the tracks, and we saw the light coming around the tracks and we knew it was a train, so he said, ‘Back it up on the tracks’, so I backed it up and the bed we had right across the main tracks there, and we got out and run back down the road there a good ways Ifrom the wreckage until the train hit it, and then we turned and ran on down the road and he went across the fence toward the tracks, and I went the other way across— I thought it was a cornfield; it was after night. And I went across the field up there about a quarter of a mile, and turned around and came back down there and the brakeman on the train — it had stopped — and he was looking at the wreckage.
“I went back to the wreck and the brakeman asked me if it was my truck and I told him no-. That was all I said. So they went ahead and cleared the wreckage away from the right of way so they could move on through, and after the train left I went back to the crossing and hollered for Mr. Howard, and I hollered several times, and couldn’t get no answer, so I went back on the highway so the lights would shine on me, I thought maybe he would see me and come back down there. I went out there and stood maybe 20 minutes, and didn’t see no- sign of him, so I started walking toward Tulsa, and I got down there to a grocery store about a quarter of a mile from the crossing, and went around and saw it was closed, and I went and asked a lady that must have lived in the back if she had a ’phone I could use, and she said she never, but that there was one about a mile up toward Sapulpa. I didn’t come back toward Sapulpa. I started walking on toward Tulsa. I got down there, and asked a couple of men at a filling station if they had a ’phone I could use, so none of them, had one, and I started on walking toward Tulsa, and I got about five miles and a yellow truck with an open top came along, and they picked me up and brought me to Fifth and Maybelle streets, and I got out and walked down to my house, and my wife was in bed and I went in and went to bed and told her what had happened, all of it, and told her Mr. Howard had me promise I wouldn’t say nothing about it to nobody; she said she wouldn’t say nothing; so the next morning Mr. Howard came down to my house and my wife asked if if he wanted me to work, and he said yes, he was going to1 take me to1 the other side of town; he wanted me to work over there. So1 we walked over toward my sister’s, and he went down to' Buster somebody’s house, and I went on up to my sister’s house, and she told me the sheriff was down there looking for Mr. Howard.”

From the above statement of this witness’ testimony it will be noted that he was an accomplice, and it was necessary for his evidence, under the law to have been corroborated. The statement which he makes, coupled with the fact that he had served a term in the State Training School for White Boys at Pauls Yalley, and had been charged with the theft of an automobile, fully substantiates the reason for the rule requiring those wlm are accomplices to be corroborated before a conviction can be had upon their testimony. It is, therefore, necessary to look to the other evidence introduced to' find if the testimony of the witness James McCoin is corroborated.

The defendant took the witness stand, and his evidence corroborates the evidence of the witness McCoin in many respects as to the trip taken by them on the 8th of December, 1987, except that defendant denies that any conversation was had between him and the witness with reference to the destruction of the truck, and that he at no time made any offer of $5 to the witness if he would help him destroy it. He never at any time paid him $5; that he did not tell him he had f500 insurance on the truck, and as a matter of fact there was not a dollar of insurance on the same, taken by himself, or by the company which had a mortgage thereon; that on the morning of the 8th day of December, 1987, he picked up James McCoin and they went to secure a truck load otf rock; that they took the course outlined by the witness McCoin, but they were in search of suitable rock, that the engine of his truck was continually stopping up, and that it became necessary for him to go- to a filling station and get gas and that he returned and put some gas in the truck, and they then proceeded to the filling station where he had the tank filled; that they proceeded to the little town of Eed Fork, and that the truck was giving them so- much trouble and the weather was so cold that he parked the truck and went to Tulsa on the bus, as testified to by the witness McCoin; that they went to two shows, and when they got out of the second show about 7 p. m. that he went to his home, and that the witness McCoin said he was going to his home, and they parted; that he did not return to Eed Fork, and. did not see the truck after he had parked it there on the evening of the 8th off December, 1937; that he telephoned the secretary of the company the next morning that the truck was parked at Eed Fork, and that he did not know of its destruction until later when he was arrested. He denied being with the witness McCoin at the time the truck was driven upon the track at the Bowden crossing, or that anyone saw him there.

Defendant further introduced as witnesses three negro boys who testified that they came to- his home in Tulsa on the evening of December 8, 1937, between 7 and 8 o’clock for the purpose of trying to procure work. That they had a conversation with defendant with reference to- securing a job at that time. He ¡further introduced in evidence four character witnesses who- testified to his good character and reputation prior to- the time these charges were brought against him. One of these was a prominent member of the Tulsa Bar, for whom he had worked for several years. ■Two of tbe other witnesses were ministers of the gospel, and the defendant and his wife had been members of the church.

The evidence relied upon by the state to corroborate the evidence of the witness McCoin was principally given ■ by two witnesses, Fern McCoin, a sister oif the witness James McCoin, and a witness by the name of C. E. Frew.

Fern McCoin testified that she was a widow; that she had a small child, and lived in Tulsa; that she had known the defendant, Howard, for several years; that her brother lived with her prior to his marriage, and that defendant came to see her quite often; that he bought a new Chevrolet sedan, and kept it at her place instead of his own home, and that he directed her to use it just as if she owned it; that there had never been any improper relations between her and the defendant, but that defendant had told her he was having some trouble at home, and that he was not happy, and that he thought a great deal of her; that during the time the car was in her possession her brother drove it quite frequently with her consent. During the time this car was in her possession, it was taken by someone and damaged, but the insurance company settled with the company that had the mortgage on the same for the damage. iShe further testified that on the 9th day of December, 1937, she saw the defendant at her home. That her brother and another party were there; that she told; him about the sheriff being there the day before and about the Highway Patrol being there that afternoon; that while the defendant was there, the officers came, and she informed him, and that he ran out at the back door and left; that defendant afterwards sent a taxi to' her home, and she went driving with defendant, and told him the officers had. taken her brother, and asked him what it was about, and he said: “I knew they was wanting him and they want me too”; and that when she pressed him as to the reason for all of it, he said he did not think there was much to it, and that he would go over in the morning and give himself up, and that her brother would be all right. He then asked her not to mention to the officers of having seen him, and that defendant asked the taxicab driver if he needed him as a witness would he come, and he said yes, and gave them his address. He did not testify.

This witness gave a great deal of unimportant and incompetent evidence. There was no objection to the same on the part of the defendant.

The witness C. F. Frew testified that he lived in Tulsa, and that on the 8th day of December, 1937, he lived a quarter off a mile west of Bowden; that on returning from his work to his home on that date he saw a truck that looked like it was stuck just off the railroad track; that it was dark and the lights were out; that when he drove up the defendant had the hood up; that he had his lights shining on defendant and told him that he had a flashlight if he needed it; that defendant told him he did not need it; that he had an oil line stopped up and had it just about fixed. The witness said he saw defendant did not want any help and he drove on. He positively identified the defendant as being the party he saw, and said there was a ■boy 16 or 17 years old standing on the opposite side. He said the truck was standing “just this side oil: Bowden about two or three hundred yards”. This is the exact spot where the freight train struck and destroyed the truck. The defendant’s testimony was that he was not present at the time the truck was struck and destroyed.

Other evidence was offered by the state which corroborated the witness McCoin as to the fact of the destroying of the truck, the passing of the different trains, the securing of the gasoline and other minor details. It is unnecessary to detail this evidence; a portion olf it will be hereafter referred to. The evidence of the two witnesses above mentioned was sufficient corroboration under the law if their testimony was believed by the jury, who found the defendant guilty.

As stated by this court in the case of Hufford v. State, 61 Okla. Cr. 141, 66 P. 2d 529, 532:

“It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as. to all. Such corroborating evidence, however, must show more than the mere commission of the offense or the circumstance thereof.”

See, also, Bond v. State, 54 Okla. Cr. 39, 14 P. 2d 425; Underwood v. State, 36 Okla. Cr. 21, 251 P. 507; McCurdy v. State, 39 Okla. Cr. 310, 264 P. 925; Patterson v. State, 42 Okla. Cr. 255, 275 P. 387; Bradley v. State, 43 Okla. Cr. 456, 279 P. 920; Morton v. State, 46 Okla. Cr. 361, 287 P. 1087.

It is further contended that certain evidence was permitted to be introduced in this case which was incompetent and prejudicial. An examination of the record reveals that a great deal of incompetent testimony was admitted, but the record also1 reveals that no exception or objection to the evidence was made by the defendant to the introduction thereof. In the motion for new trial there are no grounds stated which cover this objection. The first time it was raised is in the brief of defendant filed in this case.

The evidence of the witness E. ¡S. Clark was largely incompetent and related to conversations had by this witness with parties not in the presence of defendant. This character of evidence was clearly incompetent, and if proper exceptions had been taken thereto might constitute canse for a reversal of this case, but no objections or exceptions were taken thereto. It is unnecessary to review this evidence.

After reading this record in its entirety, one’s mind is left in doubt. The legal propositions oiffered for a reversal are insufficient to reverse the same. After reading the record and examining the verdict of the jury which gave the defendant two and one-half years in the penitentiary, one can but come to' the conclusion that the jury may have come to its conclusion by reason of some passion or prejudice. Either the evidence caused it, or the fact that the jury was highly indignant because of the nature of the offense, and especially the fact that an effort was made to1 block the railroad crossing and there endanger the lives of many innocent persons, especially had a passenger train been derailed. Viewing it from this standpoint the jury was justified in rendering the verdict which they did. But in an examination of the record from another standpoint, we find that there was no' insurance on the truck that was destroyed, either by the defendant or the mortgage company. There could have been no damages collected for the destroying of the truck and the only motive which the defendant could have had for destroying the same was his desire to keep the mortgage company from securing possession thereof.

There was also a great deal of evidence offered with reference to the relation between defendant and the witness Fern McCoin which could have been considered unfavorable to' the defendant.

The witness E. S. Clark, a highway patrolman, was permitted to testify without objection by defendant to many conversations bad with other parties, and which conversations were not in the presence of the defendant and; were clearly hearsay. These statements were made while this witness was investigating this case and which resulted in his arrest. The witness H. A. Stafford, a highway patrolman, was also' permitted to testify to many hearsay statements, not in the presence of the defendant.

At the time the motion for new trial was presented and overruled, the trial court said:

“Gentlemen, it has been a long time since I have tried a case where as many upstanding prominent citizens oppose a parole on one side, and ask one on the other, as in this case.
“You gentlemen understand that in every criminal case it is always the innocent ones who1 suffer more than the ones Ifound guilty.
“In this case, gentlemen, the state went to quite a little trouble and expense preparing the case for trial, as shown by the record in the case at the trial, and on my part, I believe you gentlemen will agree that I gave you plenty of time to select your jury and try the case. We had a fine jury panel, and the men who' sat in the trial of this case were all upstanding citizens, and some of them were prominent business men.
“Of course, you gentlemen understand the appellate court has the authority to review and pass upon the fairness of these proceedings, and the Governor the authority to parole in these matters”.

We believe that if the trial court had the right under the law to1 modify the sentence after it was returned by the jury without the necessity oif granting a new trial, and having the expense of such new trial placed upon the county, he would have done so-. This court has that right under the law.

After a careful consideration of this record, we are of the opinion that justice would be best subserved if the judgment and sentence be modified from two and one-half years in the penitentiary to one year in the penitentiary, and as so modified the judgment of the district court olf Creek county is affirmed.

DOYLE, P. J., and JONES, J., concur.


author: DOYLE, P. J.

text:
    SUE HOPPES v. STATE.
    No. A-9686.
    Sept. 4, 1940.
    (105 P. 2d 433.)

      W. Y. Stanfield and W. B. Grigsby, both of Ada, and Wayne Wheeling, of Oklahoma City, [for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Carloss Wadlington, Co. Atty., and J. W. Dean, Asst. Co. Atty., both of Ada, for the State.
   DOYLE, P. J.

Plaintiff in error, Sue Hoppes, was ■convicted of the offense of unlawfully transporting intoxicating liquor, and in accordance with the verdict of the jury was sentenced to confinement in the county jail for 30 days and to pay a fine of $50.

The information in substance charged that Sue Hoppes, in Pontotoc county, on the 19th day of January, 1939, did unlawfully transport 53 pints of whisky from a point unknown to the intersection of Fifth street and Ash avenue in the city of Ada. To reverse the judgment she appeals.

The first assignment of error relied upon for a reversal of the judgment is that the court erred in overruling the motion of defendant to suppress the evidence offered on the part of the state.

Before the commencement of the trial, counsel made a motion to suppress all of the evidence which the state seeks to use on the ground that it had been illegally obtained by an unlawful search without a search warrant, and that no offense known to the law had been committed in the presence of the officers before they arrested the defendant.

It was also stipulated that this motion be considered as filed in the civil forfeiture case, State of Oklahoma v. One Chevrolet Automobile, and the evidence introduced in support of this motion will be applicable in the forfeiture case.

In support of the motion to- suppress, Sue Hoppes as a witness in her own behalf testified that she lives at 331 West Fourteenth street, and had lived in Ada for the past 20 years; that on January 19th, she was arrested in the 600 block on West Fifth, that she was driving her automobile on the streets of Ada, had observed a car following her a short way back, and as she approached Fifth street the siren sounded, and knowing that officers’ cars are equipped with sirens she thought when they blew the siren that meant she was under arrest and she pulled to- the curbing and stopped her car. The car following her stopped in front of her car. Joe Porter came back and opened the door of her car, raised up a piece of canvas between the seats and uncovered a quantity of whisky on the floor of her car, and said: “I ivill drive this car”, and told her to get in the back seat. That the bottles were all wrapped in heavy brown paper. He hollered to Jim Rogers who was standing by their car and said, “Jim, drive my car down to the office”, and she rode in the back seat of her car to the courthouse, and was kept in custody until she posted bond for the crime of unlawfully transporting intoxicating liquor. Ruby Jean Simmons was with her in her car. They took Ruby home and took her car bo- the Chevrolet garage-; that no- search warrant or warrant of arrest was served upon her.

On cross-examination she stated:

“I had been to- the grocery store and drove up to my place of business, my Victrola was playing and I drove on because I had intended to get some Victrola needles and forgot them, I said, ‘Ruby Jean, I forgot to- get those needles.’ We went north on 6th street to Daggs’ house, turned east on 6th street to go t*o- Paul Carter’s in the 600 block West 4th street to- get some needles for my Victrola. The first time I noticed the officers’ car was when they blew the siren.”

Asked, “Did you tell Joe Porter you bad a load of liquor, or something' to that effect? A. No, sir, I did not.”

Buby Jean Simmons testified that she lives at 105 South Oak, and was with Sue Hoppes when an officer stopped her at Fifth and Oak; that she got in the car at Butler and Hisle’s Grocery, on Tenth street, and they drove to- Sue’s place, then drove on to get some Victrola needles. When they heard the siren Sue stopped the car. The officer’s car stopped and Officer Porter came hack to the car, asked Sue why she was driving so fast, and opened the door, searched the car and found groceries and whisky; that she did not know the whisky was in the car; that it was after dark; the headlights were turned on.

Cross-examination:

“Q. You say the deputy sheriff opened the door on the car? A. I did. Q. Before he did that, did he ask Sue what her hurry was? A. He asked her why she was driving so fast. Q. Before he opened the door? A. I believe it was. Q. What did she say to him when he asked her that? A. She said she did not realize she was driving fast. Q. She didn’t say ‘I have got a load of liquor?’ A. She didn’t, I did not hear her say that.”

Asked: “Did Sue leave anything at her place?”, answered, “No”. Asked, “Why did she go on?” Answered: “She said, ‘Buby Jean, we have to go and get those Victrola needles’,” the Victrola was playing and she started back north, going to- Paul Carter’s on Fourth street, where she always gets needles.

She further stated that iSue did not tell the officer, “I have got a load of liquor.”

Joe Porter, deputy sheriff, testified on the motion to suppress that he was with Jim Bogers at the Wilfong Service Station on West Main street, Ada, when he observed the defendant driving a Chevrolet automobile, coming- from the south, and she turned west on State Highway-19, towards her place of business, and they immediately started in pursuit; that she drove on by her place, going north. They followed her, driving as fast as he could get his car to run; that when 300 or 400 yards behind he turned his siren on. She stopped her car and he pulled up beside her; that he got out of his car, walked back to her car and asked what her hurry was; she said she had a load of liquor and was trying to get away, to- outrun me; that he did not remember the exact words, and did not remember whether she or he opened the door of the car; that he saw whisky in the car, but did not know whether it was before or after the door was opened; that he did not search the car, but just got in and drove it to the sheriff’s office; that he had no warrant for the defendant’s arrest, nor a search warrant for her car or person.

On cross-examination he testified:

“Q. Joe, why did you follow the defendant when you saw her pass Wilfong’s filling station? A. I wanted to see where she went and what she did. Q. What was the purpose of that? A. Whisky. Q. You were suspicious she had a load of whisky? A. Yes. Q. That was the reason you followed her? A. That is true. Q,You had not seen any at that time? A. No, sir. Q. Did you see any whisky from the time she left her house until you stopped her car? A. No, sir. Q. There was nothing that had come within your knowledge that told you she had whisky except on suspicion? A. That is all. Q. When you got out of your car had you seen any whisky at that time? A. No, sir. Q. You continued back to her car? A. That is true. Q. Why did you go' back there Joe? A. I went back to see what was in the car. Q. Did you search the car? A. That is right. Q. You do not remember whether she opened the door or you opened it? A. No, sir. Q. Was there another woman in the front seat with her? A. Yes, sir."

Jim Bogers, deputy sheriff, testified that he saw the defendant coming from the south on Bluff avenue, driving a Chevrolet, a girl was with her, and with Joe Porter followed her to her place, and went on aifter her, and stopped her at Fifth and Ash. Joe was driving, and when he turned the siren on she stopped her car and they drove up beside her. Joe Porter asked her what the hurry was and she said she had a load of liquor and was trying to get away with it; that the girl opened the door on the side he was on and he looked and could see liquor on the floor of the car.

On cross-examination he testified:

“Q. Why did you start in pursuit of the defendant? A. To see where she was going, thought she might have liquor. Q. You thought she had it at that time? A. Yes, sir, had a good idea. Q. You didn’t see any when she came by and you started pursuit? A. No, sir. Q. When she left her place of business you didn’t see any? A. No, sir. Q. She turned north on Ash? A. Yes, sir. Q. You did too? A. Bight behind her. Q. Between 6th and 5th streets Joe turned on the siren? A. No, he turned the siren on before we turned, when we got close enough we thought she could hear it. Q. Joe pulled around the side and up in front? A. He did not pull up in front, he pulled up beside her. Q. Then when you drove up, you stopped your car and got out of the car? A. Yes, sir. Q. You had not seen any liquor from the time you first saw her until the time you went back to- her car? A. No; sir. Q. Did you see any liquor before she stopped that car? A. No, not before. Q. Did you have a search warrant for that car Jim? A. No, sir, I didn’t. Q. Did you have a warrant for her arrest? A. No, sir, I didn’t. Q. Did Joe to your knowledge? A. No, sir, not that I know of. Q. How did you know it was liquor at that time? A. I said I judged it to be liquor. Q. You could not tell by looking at it at that time it was liquor? A. I later found out it was liquor.”

At the close otf the evidence the defendant moved the court to suppress the evidence for the reason that the search and seizure was made in violation of her constitutional and statutory rights, in that the search was made without a search warrant and without a warrant for the arrest of the defendant.

“By the Court: Motion to suppress evidence of the state overruled. Exception allowed.”

During the trial the question was saved for review by timely objections and exceptions. When the state rested the defendant moved to strike all the evidence obtained by reason of the search, on the same grounds. Motion overruled. Exception allowed. And again, at the close of all the evidence, the defendant renewed her motion and moved for a. directed verdict on the same grounds. This was also overruled. Exception allowed.

It has been repeatedly held by this court that, where the offense is not a felony, an officer cannot arrest without a warrant unless the offense was committed or attempted in his presence, and that where the officer does not know of the act constituting the offense it is not committed in his presence. Morris v. State, 66 Okla. Cr. 384, 92 P. 2d 609; Leary v. State, 61 Okla. Cr. 298, 67 P. 2d 972; Wallace v. State, 49 Okla. Cr. 281, 294 P. 198; Coffey v. State, 38 Okla. Cr. 91, 258 P. 923; Whitford v. State, 35 Okla. Cr. 22, 247 P. 424; Graham v. State, 31 Okla. Cr. 125, 237 P. 462. Crossman v. State, 28 Okla. Cr. 198, 230 P. 291.

In Bowen v. State, 50 Okla. Cr. 36, 295 P. 623, this court held:

“A search of an automobile without a search warrant and not as an incident of a legal arrest, not upon any probable cause of the commission of a felony, but upon a mere suspicion, is in violation of article 2, § 30, State Const., Okla. St. Ann., and evidence obtained by such a search is inadmissible.”

In the case of Lamb v. State, 59 Okla. Cr. 360, 60 P. 2d 219, this court held:

“The search of the car without a warrant of arrest or search warrant, or knowledge by the officer that it contained whisky, held illegal, and evidence should be excluded upon timely objection.”

In Thomas v. State, 32 Okla. Cr. 57, 240 P. 133, it is said:

“In a prosecution for transporting intoxicating liquor, evidence, obtained by search of defendant’s automobile without a search warrant, held inadmissible, in view olf Const, art. 2, § 30.”

In Hamner v. State, 44 Okla. Cr. 209, 280 P. 475, this court held:

“Where a conviction is based solely upon evidence obtained by an unreasonable search and seizure, admitted over timely objections and exceptions, the judgment will be reversed.”

In the opinion it is said:

“The defendant had a right bo be on the highway, and had a right to drive his car in any direction he desired, and he was not required to- stop his car at the command of any individual along the roadside. When the officer tried to stop the defendant’s car and began firing at it and started in pursuit, they began an effort to search, and continued it up until the time they claim they overtook the defendant where they claim he was breaking some jars.”

In Taylor v. State, 36 Okla. Cr. 431, 255 P. 157, this court said:

“At the time charged in the information certain officers intercepted the defendants in an automobile upon the public highway and attempted to stop them. When they did not promptly stop, they fired into the car in which they were driving and then arrested defendants and searched the car and found in it a jug of whisky. They had no warrant for the arrest of defendants nor any search warrant, and the apprehension and search was based on suspicion only. This was in violation of the constitutional and statutory rights of defendants and was seasonably objected to. The conviction cannot be sustained.”

'And see Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Levy v. State, 31 Okla. Cr. 199, 238 P. 235; Wells v. State, 37 Okla. Cr. 305, 258 P. 285; Welch v. State, 41 Okla. Cr. 207, 271 P. 172; Strong v. State, 42 Okla. Cr. 114, 274 P. 890; Seiver v. State, 59 Okla. Cr. 368, 60 P. 2d 403; Morris v. State, 66 Okla. Cr. 384, 92 P. 2d 603.

In the case of Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 288, 69 L. Ed. 543, 39 A. L. R. 790, it was held that:

“The facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to- warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched.”

Mr. Chief Justice Taft, delivering the opinion of the court, used the following language:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to- identify himself as entitled to- come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways-, have a right to- free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”

A “search”, within constitutional immunity from unreasonable search and seizure, implies a quest by an officer of the law acting on the things themselves, which quest may be secret, intrusive, or accomplished by force. Bush v. State, 64 Okla. Cr. 161, 77 P. 2d 1184.

In the case of Klein v. State, 26 Okla. Cr. 173, 223 P. 201, 202, we said:

“This court has held that, where the possession of an unlawful thing is open and obvious, so that any ¡one within reasonable distance can readily see it, no search warrant is necessary, and the evidence thus obtained may be received upon the trial of the accused. However, a search implies invasion and quest, and that implies some sort of force, actual or constructive, much or little. The right of the citizen to be secure in his person and possessions from such unlawful search and seizure is as secure as the Bill of Rights can make it (Oonst. art. 2, § 30), and this right should be respected by officers and courts.”

Whether a search is reasonable or not is a question to be determined by the court in each case, taking into consideration the circumstances under which the search was made, and the presence or absence of probable cause therefor.

Counsel for the state in their brief argue that it makes no difference whether an attempt to search began or a search began before the defendant’s car was stopped, because when the officers went to the side of the car before any actual search, or before any arrest was made, the defendant told deputy sheriff, Porter, she had a load of liquor and was trying to get away with it; there had been no arrest up to that time. And if the officers had acted illegally in pursuing her, then the illegal acts pf the officers may be separated from their legal acts, and they had the right, after being informed by the defendant that tbe offense was being- committed by the defendant, to look into the car and see tlie whisky, and arrest the defendant.

It is also urged that the statement of the defendant was equivalent to the officers seeing, the offense committed in their presence; therefore, it makes no difference whether under the theory of the law the search had been begun before the officers stopped the defendant’s car.

With this contention we cannot agree. In our opinion it is immaterial whether or not any verbal admission was made by the defendant following her arrest, if in fact the defendant was not committing an offense in the presence of the officers before she was: arrested. If the arrest was unlawful any verbal admission, if any, made by the defendant following such arrest, was incompetent and inadmissible on a motion to suppress- the evidence.

In 6 C. J. S., Arrest, § 5, it is said:

“As a. rule two elements must concur to constitute an offense in the presence of the officer: (1) The facts or elements constituting the offense must be revealed in the presence of the officer. (2) The officer must perceive and have knowledge that such offense is being committed. As here used, even though an offense is actually being committed in the officer’s immediate vicinity, the offense is not in his ‘presence’, so as to' justify an arrest without a warrant, if he does not know of its commission. Accordingly, where the officer does not know of the commission of an offense in his immediate vicinity until after a search, the offense is not in his ‘presence’ so as to justify an arrest without a warrant. * * *
“An offense is committed in the presence or view of an officer, within the meaning of the rule authorizing an arrest without a warrant when the officer receives knowledge of the commission of an offense in his presence through any of his senses, or by inferences properly to be drawn from the testimony of the senses, and he is not limited to information derived through the sense of sight. Accordingly, where through the sense of sight, or smell, or hearing, the officer receives knowledge that an offense is being committed in his presence he may arrest the offender without a warrant. * * *
“An arrest is also' justified where the officer, by virtue of a verbal admission made by the offender1 before his arrest, knows that an offense is being committed in his presence, as, for example, where the offender admits to the officer that he is violating the laws relating to' the possession, the manufacture, or the transportation of intoxicating liquor. * * *
“Where an officer, after lawfully stopping or restraining a person, becomes aware that an offense is being committed, or is about to be committed in his presence, he may lawfully arrest the offender without a warrant; but where the officer becomes aware of the facts constituting the offense after making an unlawful arrest, the arrest cannot be justified as being for an offense committed in his presence.”

Our Code of Criminal Procedure defines an arrest, and the manner in which it is made, as follows:

“Arrest is the taking of a person into custody, that he may be held to answer for a public offense.” Section 2770, 22 Okla. St. Ann. § 186.
“An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer.” Section 2774, 22 Okla. ¡St. Ann. § 190.

The legality of the arrest must be tested by determining whether the officers were justified in making an arrest without a warrant for a crime not committed in their presence. If they were SO' justified, the right of search and seizure follows as an incident of the arrest. If the arrest was unlawful, then it is equally certain that the search was unreasonable, and therefore unlawful, and the mere fact in itself that whisky was found in the possession of the defendant would not legalize a search which was unlawful when undertaken.

The testimony of the officers is to the effect that they suspicioned that intoxicating liquor was being transported in the defendant’s automobile, and they followed her for the purpose of overtaking, stopping and searching her automobile for intoxicating liquor; that when they sounded the siren on their car, the defendant pulled her car to the side of the street and stopped, and they drove up, stopping alongside and got out of their car to search the defendant’s car. Up to and until that time no public offense was committed by the defendant in the presence of the officers.

In 4 Am. Jur., Arrest, § 2, it is said.:

“An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the. actual control and will of the person making the arrest. 'The act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested. Also, the person making the arrest must be acting under some real or pretended legal authority for taking the person into custody. It is not necessary, however, that there be an application of actual force, or manual touching pf the body, or physical restraint which may be visible to- the eye, or a formal declaration of arrest; it is sufficient if the person arrested understands that he is in the power of the one arresting and submits in consequence. However, in all cases in which there is no manual touching pr seizure or any resistance, the intentions of the parties to the transaction are very important; there must have been intent on the part of one pf them to arrest the other, and intent on the part of such other to submit, under the belief and impression that submission was necessary.”
The term “search”, as used in the Constitution, has been defined as follows:
“A search implies invasion and quest, and that implies some sort of force, actual or constructive, much or little.” Combest v. State, 32 Okla. Cr. 47, 239 P. 936, 937.

Upon the record in this case it would serve no useful purpose to differentiate the cases cited in the brief of counsel for the state. Whether search of, or seizure from, an automobile upon a highway or other public place, without a warrant is unreasonable, in the language of the Constitution, is to be determined as a judicial question in view of all the circumstances under which it is made, as this court held in Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549.

When the officers started in pursuit, they began an effort to search, and tested by the above statutory provisions when the officers sounded the siren, and the defendant stopped her car and submitted to the custody of the officers, the arrest was then and there consummated. The search that followed was an incident thereto.

It necessarily follows from the foregoing review that upon the admitted and undisputed facts, the arrest of the defendant was unlawful, the search was therefore unreasonable.

For the reasons stated the trial court erred in overruling the defendant’s motion to suppress the evidence, and on the trial all the state’s evidence was improperly admitted in violation of the defendant’s constitutional and statutory rights.

The judgment of the county court of Pontotoc county must be and accordingly is reversed, and the case remanded, with direction to dismiss.

JONES, J., concurs. BAREFOOT, J., dissents.


text:
    ERSHEL ELAM v. STATE.
    No. A-9787.
    Sept. 4, 1940.
    (105 P. 2d 432.)
    Carl C. Wever, of Pawhuska, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and. Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Ershel Elam, plaintiff in error in this case, was convicted of manslaughter in the first degree and his punishment fixed by the jury at imprisonment for 50 years in the state penitentiary.

In the information filed in the district court of Osage county by Sim T. Carman, county attorney, Ershel Elam was charged with the murder of one Sam Baker, alleged to have been committed in said county on the 12th day of April, 1939, by making an assault upon the said Sam Baker, by striking him with his fist, thereby knocking him down and by kicking him with his feet, about the face and head numerous times with such force as to mortally injure and kill the said Sam Baker, then and thereby inflicting certain mortal wounds, of which the said Sam Baker did on the 12th of April, 1939, die.

From the judgment rendered in accordance with the verdict on June 9, 1939, an appeal was attempted to be taken by filing in tbis court on December 13, 1939, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal on the ground that the petition in error and case-made was not filed in the office of the Clerk of this court within the time required by statute, therefore this court is without jurisdiction to hear and determine the same, and moves that said appeal be dismissed.

The Code of Criminal Procedure, section 3192, 22 Okla. iSt. Ann. § 1054, in part reads:

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

In this case the time for filing the appeal in this court expired three days before the petition in error with case-made was filed with the clerk of this court.

It has been uniformly held that in order to give this court jurisdiction, the appeal as prescribed by section 3192, supra, must be filed with the clerk of this court within the time which an appeal may be taken, and, where an appeal is not perfected by filing in this court a petition in error with case-made attached, or a transcript of the record within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Howey v. State, 9 Okla. Cr. 453, 132 P. 499; Dunn v. State, 18 Okla. Cr. 493, 196 P. 739; George v. State, 21 Okla. Cr. 240, 205 P. 942; Heath v. State, 22 Okla. Cr. 122, 210 P. 560; Criner v. State, 37 Okla. Cr. 313, 258 P. 359; Easterwood v. State, 38 Okla. Cr. 72, 259 P. 181.

Judgment having been rendered in this case in the trial court on the 9th day of June, 1939, and the petition in error with case-made not having been filed in this court until the 13th day of December, 1939, this court never acquired jurisdiction of the appeal.

For the reasons therein stated, the motion of the Attorney General must he sustained. The attempted appeal herein is therefore dismissed, and the cause remanded.

BAREFOOT and JONES, JJ., concur.


author: DOYLE', P. J.

text:
    DEAN ESLICK v. STATE.
    No. A-9658.
    Sept. 11, 1940.
    (105 P. 2d 554.)
    Emmons Arrington, of Shawnee, for plaintiff in error.
   DOYLE', P. J.

Plaintiff in error was convicted in tbe county court off Pottawatomie county on an information which charged that in said county on the 26th day of ■March, 1938, he did have in his possession 20 pints of whisky with the unlawful intent to sell the same, and in accordance with the verdict of the jury was sentenced to serve 30 days in the county jail and pay a fine of $100. To reverse the judgment he appeals and assigns as error the overruling of his motion to suppress evidence offered on the part of the state, on the ground that it had been illegally obtained by an unlawful search, under a search warrant that did not run in the name off the State of Oklahoma, and was not served until a year after the issuance thereof, as shown by the dates of said warrant and complaint, and for this reason the search and seizure was in violation of defendant’s constitutional and statutory rights.

In support of the motion to suppress, the defendant testified that on the date alleged he was operating a filling station on the north side of Highway 18, in the city of Shawnee. Witness produced the copy of the search warrant that was served on him as defendant’s exhibit “A.” The complaint upon which the search warrant issued was also introduced as defendant’s exhibit “B”. Which complaint recites:

“In Be Application of Elza Evans, iSheriff, for Search Warrant.
“State of Oklahoma, Pottawatomie County, ss. •
“-, being first duly sworn on oath states” Then continues with allegations, printed form, same as set forth in the opinion in the case of Spikes v. State, 65 Okla. Cr. 254, 85 P. 2d 327. And is signed and verified as 'follows: “Elza Evans, Affiant.
“Signed in mv presence and sworn to before me this the March 26, 1937.
“J. H. Hatfield, Justice of the Peace.”

The caption of the warrant, Exhibit “A” is as follows:

“In Re Application of Elza Evans, Sheriff, for Search Warrant.
“State of Oklahoma, Pottawatomie County, ss.
“The warrant following the caption begins as follows:
“-, being first duly sworn, on oath states:”

Continuing with allegations as set forth in the complaint. And concludes:

“You will leave copy hereof with the person searched, or post same on the premises searched, and you will make due return hereof within three days from date hereof with your doings endorsed hereon. Witness my hand this the March 26,-37.
“J. H. Hatfield, Justice of the Peace.”

Section 19, of article 7, of the Constitution of Oklahoma, Okla. St. Ann., provides:

“The style of all writs and processes shall be ‘The State of Oklahoma.’ All prosecutions shall be carried on in the name and by the authority of the State of Oklahoma. All indictments, informations, and complaints shall conclude, ‘Against the peace and dignity of the State.’ ”

To exactly the same effect is section 19, iSt. 1931, 12 Okla. St. Ann. § 51, which reads:

“The style of all process shall be ‘The State of Oklahoma.’ It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it is issued.”

The first contention is that the search warrant was fatally defective, in that it did not run in the name of “The State of Oklahoma.”

In the case of Riggs v. State, 64 Okla. Cr. 255, 78 P. 2d 1075, 1076, this court held:

“A search warrant is process within the meaning of article 7, § 19 [Constitution, and section 19, O. S. 1931], 12 Okla. St. Ann. § 51, and must run in the name of the State of Oklahoma, and under the provisions of [section 2635], 37 Okla. St. Ann. § 84, the warrant must be directed to a peace officer in the county in which it is issued for service.” Willard v. State, 66 Okla. Cr. 344, 92 P. 2d 600; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; Bishop v. State, 47 Okla. Cr. 249, 288 P. 363; Woods v. State, 46 Okla. Cr. 288, 287 P. 769; Myers v. State, 40 Okla. Cr. 170, 267 P. 867; McAdoo v. State, 36 Okla. Cr. 198, 253 P. 307.

The search warrant under which all the evidence introduced in this case was obtained, did not run in the name of the “State of Oklahoma,” and was not directed to any peace officer in Pottawatomie county, and was therefore invalid.

On the authority of the cases cited, the motion to suppress the evidence should have been sustained.

For the reasons stated the judgment of the lower court is reversed and the cause remanded, with direction to dismiss.

BAREFOOT and JONES, JJ., concur.


author: JONES, J. JONES, J.

text:
    H. L. POOLER v. STATE.
    No. A-9630.
    July 24, 1940.
    Judgment Modified on Rehearing Sept. 11, 1940.
    (104 P. 2d 733; 105 P. 2d 553.)

      E. N. Jones, of Ada, and Rittenhouse, Webster & Rittenhouse, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis Morris, Co. Atty., and John Eberle, Asst. Co. Atty., both of Oklahoma City, for defendant in error.
   JONES, J.

The defendant, H. L. Pooler, was by information charged in the district court of Oklahoma county on iSeptember 16, 1938, with driving an automobile while under the influence of intoxicating liquor; was convicted and sentenced to serve a term of nine months in the state penitentiary, from which judgment and sentence he appeals to this court.

The defendant contends that:

(1) The trial court erred in refusing to direct a verdict of acquittal or to grant a new trial.

(2) That the punishment assessed is excessive and justice requires that the judgment be modified and reversed.

The only reason given by the defendant for his first contention is that the evidence was not sufficient to sustain a conviction. However, since the defendant upon being taken to the police station pleaded guilty to drunkenness, the only question is whether or not there was sufficient evidence to justify the jury in finding that the defendant was driving Ms automobile.

Defendant, Pooler, and his brother-in-law, Charley Rowan, were riding in defendant’s automobile when it struck the parked car o!f Ted Smith on South Robinson street in Oklahoma City, causing only slight damage. Pooler’s car was not stopped at the scene of the accident, but was followed by Smith in his car with John Register driving. Smith overtook defendant at Southwest 29th street and Douglas. The honking of Smith’s automobile attracted the attention of Scout Car Officers Brott and Arrion who testified that defendant was driving and when they attempted to question him he was slumped over the wheel in a drunken condition. Rowan, defendant’s brother-in-law, stated to the officers that defendant would not let him drive.

Smith, testifying for the defendant, stated: “I didn’t see nobody myself driving the car.”

Charley Rowan testified that he was driving the car for the defendant at the time of the accident and at the time the car was overtaken by Smith and Register. He admits telling the officers that defendant was driving, but says that he was scared of being arrested.

John Register, who was driving for ¡Smith in the chase, stated that Rowan was driving the automobile.

Defendant admits being drunk, but denied that he was driving. lie makes many conflicting statements on cross-examination, which are strong evidence of guilt.

This court held in Sanders v. State, 46 Okla. Cr. 293, 287 P. 846:

“Where the evidence is conflicting, the weight of the evidence and the credibility of the witnesses is for the jury. This court will not substitute its judgment for that of the jury and the trial judge when there is evidence tending to support the conclusions arrived at by the jury.’ Curry v. State, 54 Okla. Cr. 225, 17 P. 2d 521; Pickett v. State, 35 Okla. Cr. 60, 248 P. 352; Horn v. State, 13 Okla. Cr. 354, 164 P. 683; Clark v. State, 37 Okla. Cr. 89, 256 P. 941.

It is argued that the punishment is excessive. The punishment is fixed by statute at a fine not to exceed $2,000 and confinement in the penitentiary not to exceed one year. Section 10324, O'. S. 1931, 47 Okla. St. Ann. § 93. The proof here was that the defendant was drunk the night before and had driven his automobile into a ditch near Blanchard where he was forced to- spend the night. The next morning he started drinking again. The proof further shows that the defendant, in November, 1935, had pleaded guilty to a charge of driving an automobile while under the influence of intoxicating liquor and had paid a fine therefor. If this was the defendant’s first offense, since very little property damage and no physical injury was sustained, and no exceedingly fast or reckless driving was proven, this court in the furtherance of justice might have modified this sentence; but a sentence of nine months under the circumstances herein for a second offender is not excessive.

The courts of this land must give protection to- motorists lawfully using our highways against the driver who becomes intoxicated and drives about the street endangering others. The automobile in the hands of such a driver is an exceedingly dangerous weapon, and a strict and salutory punishment should be meted out to such a person when apprehended. If it is a second offense, the punishment by imprisonment in the state penitentiary up to- the maximum provided by the law in such cases is not too severe. The punishment depends, of course, upon the facts in each particular case.

No material error appearing in the record, it is ordered that the judgment and sentence of conviction of the district court of Oklahoma county be affirmed.

DOYLE, P. J., concurs. BAREFOOT, J., absent.

On Rehearing.

JONES, J.

On further presentation of this cause upon the petition for rehearing, the court is of the opinion that the facts and peculiar circumstances of this case requires a modification of the sentence imposed on the defendant.

It is, therefore, ordered that the sentence of nine months imprisonment in the state penitentiary be and the same is hereby modified by reducing said sentence to a fine of $300 and costs of this action.

The judgment of the district court of Oklahoma county, as modified, is hereby affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: JONES, J.

text:
    JAMES ARNOLD v. STATE.
    No. A-9666.
    Sept. 11, 1940.
    (105 P. 2d 556.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, James Arnold, was charged in the county court of Logan county with the offense of possession of intoxicating liquor, was tried, convicted and sentenced to serve thirty days in the county jail and pay a fine of $50 and costs; and he has appealed to this court.

The only assignment of error presented in the brief of the defendant is that the court erred in overruling the motion to suppress the evidence offered by the state for the reason that the search of the automobile of the defendant and the seizure of the liquors in question were in violation of the defendant’s constitutional rights to be secure in his person, house, papers, and effects against unreasonable searches and seizures. Okla. St. Ann. Const. art. 2 § 30.

The proof on behalf of the state was that two highway patrolmen had stopped in a garage in the city ¡of Guthrie to have some gasoline put in their automobile. While the officers were at the garage, the defendant drove up in his automobile and stopped. The officers saw a liquid dripping out of the side of the defendant’s car. The defendant hacked his car out of the garage and parked it across the street. One of the officers went up to the place on the garage floor where the liquid had dripped, stuck his finger into the liquid, and put it to his nose and saw that it was whisky. The officers then went across the street to where the defendant had parked his car, and the liquor was still dripping out of the automobile. One of the officers stuck his finger in the liquor that was pouring out of the automobile, stuck it under the defendant’s nose, and asked him what that was. The defendant did not say anything. The other officer went around on the left-hand side of the automobile and saw several packages of whisky in the car. The car was searched and about 25 pints of liquor were found in the car, together with several broken bottles. Three of the bottles of whisky were identified and introduced in evidence.

The defendant did not testify.

We have held in many cases that a peace officer, without a warrant, may arrest a person !for any violation of the prohibitory laws committed in his presence and may seize any intoxicating liquor in the possession or immediate presence of the person arrested. Bullington v. State, 38 Okla. Cr. 214, 259 P. 876; Strategier v. State, 56 Okla. Cr. 11, 32 P. 2d 1054.

We have further held that an offense is committed or attempted “in the presence of an officer” within the meaning of the law, section 2780, O. S. 1931, 22 Okla. St. Ann. § 196, where such officer is apprised by any of his senses that a misdemeanor is being committed or attempted, or by information of such fact communicated by the person arrested prior to his arrest. Miles v. State, 31 Okla. Cr. 4, 236 P. 907; Love v. State, 51 Okla. Cr. 8, 299 P. 232.

In the case of Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 649, 553, this court quoted from the case of People v. Case, 220 Mich. 379, 190 N. W. 289, 27 A. L. R. 686, as follows:

“There is no violation of the constitutional provision against search and seizure by the search, without warrant, of an automobile standing on a public fairground, and seizure of contraband goods in it evidencing that a crime is being committed. * * *
“The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of ¡our highways in battalions, until the slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to' standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question 'far deeper and broader than their use in so-called ‘bootlegging’ or ‘rum-running,’ which in itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes nor on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to' facilitate commission of crime pf all degrees, from those against morality, chastity, and decency to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition and not a theory confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in view of all the circumstances under which it is made.”

In the case at bar, the undisputed facts were sufficient-to warrant the officers in believing that intoxicating liquors were being transported in the automobile; and there was sufficient showing of an offense committed in the presence of the officers to justify the search and seizure of the liquor involved herein.

The judgment and sentence of the trial court should be, and is, accordingly, affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    HORACE DANIELS v. STATE.
    No. A-9664.
    Sept. 11, 1940.
    (105 P. 2d 558.)
    D. C. DeVilliers, of Quapaw, and Smith & Walker, off Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Horace Daniels, was convicted in the district court of Ottawa county of the crime of grand larceny, and in accordance with the verdict of the jury was sentenced to serve a term of two years in the state penitentiary.

Appellant, Daniels, and one Carl Collins were jointly charged in the information upon which he was convicted, which information in substance charges that the defendant did in Ottawa county on the 30th day Of December, 1937, take and steal from the owner, the ¡Skelton Lead & Zinc Company, shafting, pulleys, T-rails, pipe, line shaft bearings, and eccentric collars, all of the value of more than $20.

It appears that upon arraignment the defendants asked for and a severance was granted.

From the judgment rendered December 2, 1938, he appeals.

The grounds of defendant’s motion for a new trial and. now assigned as errors are: That the court erred in not sustaining defendant’s demurrer to the testimony at the time the state rested its case; that the verdict of the jury was contrary to the evidence introduced in said cause.

It is contended that the evidence is insufficient to sustain the conviction, and that the trial court erred in overruling the defendant’s demurrer to the evidence, and in refusing to direct a verdict of acquittal.

The facts which are undisputed, or which the evidence tends to prove, are: The Skelton Lead & Zinc Company occupies 200 acres of land near Century, Ottawa county, and had thereon the company’s main office, a concentrating mill, a tailing mill with machinery and equipment, including shafting, pulleys, T-rails and line shafting with eccentrics thereon. A line shafting is ordinarily about 20 feet long and there were three or four joints of line shafting, equipped with collars, taken from the tailing mill within two1 or three days before the date alleged in the information. That the fair value of this shafting was not less than $1 a foot, and the fair value of the pulleys and' collars attached thereto would be from $5 to $7 apiece, second hand.

Earl Childress, an official of the Skelton company, testified that he never did authorize any one ip take the machinery or any parts of the machinery away from the lease and did not delegate any one with authority to dispose of the same; that following the arrest of the defendants he saw some of this line shafting in the Monroe Iron Company junk yard in Picher.

A. O. Jackson testified that he had occasion t>o gp to the old No-. 7 tailing mill on December 30th, the date alleged. There he found this defendant, together with his co-defendant and two or three boys. A cable fastened to defendant Daniels’ truck was tied to a joint of line shafting and there was iron on the truck, including two' eccentrics that were broken up.

That he called the sheriff’s office and a deputy sheriff came out and arrested the defendants; that with Earl Childress he went ip Ben Raymond’s junk yard in Picher and there saw line shafting of the same kind.

Cross-examination.

“Q. Did you ask Mr. Daniels about this stuff on the truck when you came up there? A. Yes, I asked him. Q. Did he advise you as to- whose it was, or what his connection with the lease? A. He told me Mrs. Lockwood gave it to him. Q. Didn’t he tell you he had been hired by some other boy and was getting a dollar a load to haul some of this junk? A. Not at that time, he didn’t; later on he did.”

Alfred Van Treece testified that he works for the Skelton Company, knew Horace Daniels, and saw him on the lease by the old No. 7 mill loading scrap iron on a truck; that he told him to leave it alone, go away and not to come back; that this was three or four days before the day he called the law and had the defendants arrested.

Ben Raymond testified that he is in the junk business in Picher, doing business as the Monroe Iron Company; that be knows Horace Daniels, and remembers Mm bringing in some junk in a truck about a week before the day be was arrested; that at that time be bought some line shafting from him.

On cross-examination be was banded tickets dated December 29, 1937, for 2,700 pounds of mixed iron, issued to Douglas Spry; didn’t know whether it was for Daniels or not; it could be. Handed another for 975 pounds cast iron, and another ticket, the same date, for 450 pounds of scrap iron, purchased from Donaldson; another the same date, 1,360 pounds of iron, from R. Flowers, another the same date, 500 pounds iron from C. Penny.

When the state rested its case, the defendant demurred to the evidence for the reason that the same is not sufficient to sustain the allegations of the information; and moved the court to direct the jury to return a verdict of not guilty. “The Court: Demurrer and motion overruled. The defendant excepts.”

As a witness in his own behalf the defendant testified:

“Well, I heard of lots of them getting junk there, and a lady named Mrs. Lockwood, she claimed she owned an interest in the mine and her husband owned an interest in the mine, and I asked her for some of the junk, and she told me not to1 get anything, only, well, what was not any account, only for junk, and I said ‘all right’, so I went and got — she went out and showed me what I could have and I loaded it and went up by and showed her what I had on the truck, and she said it was all right, go ahead and take it, I taken about three jags.
“Well, I Avent back there to» get a little more junk, and this junk on the truck was what she told me I could have, and she said it was all right, go ahead and take it, she said she would stand between me and all trouble. and be said it was, I said, 1 can’t pull that line shafting off, it is impossible, and he said he would give me 50 cents to pull it off, and while I was standing there talking to Jim Watkins a cable was tied on the truck and also to the line shaft, I did not tie it.”

Willard Spry asked me what I would take to» pull this line shafting off, I asked him if that was given to him,

Cross-examination.

“Q. When did you first start hauling iron away from there, pieces of machinery? A. Last December, I guess. Q. Now, on December 3, 1937, you hauled 2,550 pounds cast iron from there to the Monroe Iron Works? A. Well, I didn’t haul it for myself, no. Q. On the same day you hauled 2,700 pounds cast iron from the No. 7 mill, didn’t you? A. No, I can’t recall that time back. Q. On December 29, 1937, you hauled seven pounds copper wire and 10 pounds babbit, for one Hugh Bass, didn’t you, and sold it to Monroe Iron Works? A. Well, I hauled a little metal for Hugh Bass, but I don’t remember what the amount was. Q. How old is Hugh Bass? A. I could not say. Q. He is under 16 years o!f age? A. Yes, no doubt. Q. On the 29th day of December, 1937, you hauled 2,500 pounds of T-rails from the Skelton Company, and took it to the Monroe Iron Works? A. No, I don’t recall that. Q. On the 28th day of December, 1937, you hauled 750 pounds scrap iron from the No. 7 mill and sold it to1 the United Iron Company, did you not? A. Yes, I remember that. Q. Now did you haul any other iron, or anything else, away from there during the month of December, except what I have asked you about? A. Well, yes, I taken a load of shafting for Willard Spry. Q. Where did you get those? A. Where the mill used to be. Q. That the Skelton No. 7? A. Yes. Q. On December 1, 1937, I will ask you if you didn’t haul away from there 3,100 pounds of iron and sell it to United Iron Works? A. I did. Q. I will ask you if on the 28th of December, if you didn’t haul away 750 pounds scrap iron, and sell it to Monroe Iron Company? A. Well I might have, I don’t remember. Q. Do you remember hauling away on the 29th ¡of that month one load of T-rails, weight 800 pounds? A. Yes, that is the scrap rails I was telling you about. Q. What about 2,350 pounds f rails? A. Yes, that is the other small jag. Q. You remember hauling both of these batches away? A. Yes. Q. On the 29th do you remember hauling away 650 pounds of scrap iron and selling it to United Iron Company? A. No-, I don’t know I can recall that. Q. Will you say you did not? A. Well I wouldn’t that I did not, nor I wouldn’t say that I did. Q. These Bass boys you claim you hauled for — one is about 14 and one about 13 years old? A. Something like that. Q. And this iSpry boy, about 17 or 18 years old? A. Yes. Q. How many loads did you haul after Mr. Van Treece told you not to haul any more from there? A. I could not say, he told me not to haul any more.”

Margaret Watson testified that Horace Daniels was her stepfather; that she was with him when he got a load of junk and went up by Mrs. Lockwood’s; she came out of the house and he said, “Is there anything here any good?” and she said, “No it is not, it is all junk stuff,” and it was all right for him to- take it.

Thelma Collins testified that Horace Daniels is her stepfather and Carl Collins is her husband; that during the month of December she went with her stepfather to the Skelton lease three or four times, and was there on the day he and her husband were arrested; that Willard Spry tied the cable to' the truck and to the line shafting; that she was there that morning with her stepfather, when he took a load away.

Carl Collins testified that he was with Horace Daniels on the Skelton lease when he was gathering junk on two occasions, that they went by Mrs. Lockwood’s place and showed her the junk to show her it was no good, and she gave permission to take it. That he was present when Willard Spry tied a cable on to- a line shaft, the other end was fastened to Daniels’ truck.

Cross-examination.

“Q. You are a codefendant with Daniels in this case? A. Yes. Q. You are his son-in-law? A. Yes.”

Mrs. Amy Lockwood testified that she lives in a house close by No. 7 mill; about a year ago Mr. Daniels came to the house, two' women were with him; they told her some boys were breaking up the stuff there, and she went down to look at it, and she told them that anything the company could not use they could have; that since the death of her husband the company gives her $7.50 a week to live on.

Cross-examination.

“Q. You never gave Mr. Daniels permission to take anything away from there at all? A. No; sir, sent him to the office, have a book-keeper at No-. 5, he has charge of everything.”

The foregoing is a concise statement of the material evidence in the case. There were other numerous1 details which we deem it unnecessary to state, and which we consider do not involve the merits of the question of the sufficiency of the evidence.

As we view the record, it would subserve no' useful purpose whatsoever to' write an opinion specifically considering counsel for appellant’s contentions, and our reasons for overruling the same. We deem it sufficient to say that upon a careful consideration of the case, in our opinion, the evidence both on behalf of the state and that of the defendant established the guilt of the defendant beyond any reasonable doubt, and the record discloses no prejudicial error.

The judgment of the trial court is accordingly affirmed.

BAREFOOT and JONES, JJ., concur.