text:
    O. E. TISLOW v. STATE.
    No. A-5995.
    Opinion Filed March 28, 1927.
    (254 Pac. 511.)

      H. T. Church, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

In this case the information charges that in Tulsa county, on the 7th day of July, 1924, “one Tislow, whose first name is unknown, did unlawfully, wilfully and wrongfully sell to Van Yargee, certain intoxicating liquor, to wit, one quart of com whisky.” On the trial the jury returned a verdict finding the defendant guilty as charged in the information, and that they were unable to agree on the punishment. A motion for new trial was duly filed and denied. Whereupon judgment was pronounced and he was sentenced to pay a fine of $100 and to be imprisoned in the county jail for 30 days.

In support of the contention of counsel for appellant that the judgment should be reversed, numerous errors are assigned. The only one we deem necessary to notice is that the evidence is insufficient to sustain the verdict and. judgment.

The evidence for the state shows, or tends to show, that the defendant, O. E. Tislow, was ill at his home; that Van Yargee and another visited his home and claimed to have obtained a quart of whisky; that they placed $3 on the table, and the defendant’s wife left the room and returned with a quart of liquor, which they took and left the room. After Yargee and Smith had left the defendant’s home and traveled in a car some quarter of a mile on the main highway between Red Fork and Sapulpa, Officer Murray arrested them and brought them to the Tulsa county courthouse.

Van Yargee testified:

“I live at Red Fork. I do first one thing and then another. On the 5th day of July I bought a quart of whisky at the defendant’s house. I just picked it up off the table. J. Smith and Mrs. Tislow were present. O. E. Tislow had been in bed. He got up and came in and sat down on a chair. His wife went and got the whisky. At that time I think the defendant was still in bed. I laid $3 down on the table, and J. Smith picked up the bottle and walked out with it. We went there together. I didn’t see any one pick up the money. J. Smith could have picked it up so far as I know.”

At the close of the state’s evidence, the defendant moved for a directed verdict of acquittal, on the ground that the evidence introduced on behalf of the state is insufficient to warrant a conviction, which motion was overruled.

The testimony of the defendant in his own behalf is as follows:

“I live about a mile and a quarter west of Red Fork. I am a decorator and have been about 16 years. I was sick in bed when Van Yiargee and J. Smith visited my house, I should judge about 2 o’clock that afternoon. I did not sell them any liquor on that occasion, nor did I deliver them any liquor. I did not see any bottle of whisky there that day, and I did not see any money on the table. I was never before arrested on any charge.”

Under the proof in this case, if the sale of liquor was made at all, it was made by the wife of defendant and not in the presence of her husband; his consent was not asked or sought by her, and the offer of purchase was made to her and not in the presence of her husband; ■the transaction was the act of the woman and not the man, and the evidence so shows.

It is a well-settled rule of law that if there be evidence to support the conviction, the court will not weigh the sufficiency of the evidence to support the verdict. The converse rule is equally well settled that if the evidence introduced by the state fails to incriminate the defendant, or as a matter of law is insufficient to show that he is guilty of the offense charged, it is not only the right but the duty of the trial court to advise the jury to return a verdict of acquittal.

After a careful consideration of all the testimony offered by the state and the defendant, we are of opinion that as a matter of law the evidence is insufficient to warrant a conviction, and the trial court erred in overruling the defendant’s motion for a directed verdict.

Because the evidence is insufficient to sustain the conviction, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    GEORGE LAWSON v. STATE.
    No. A-5582.
    Opinion Filed Sept. 4, 1926.
    Rehearing Denied April 2, 1927.
    (254 Pac. 110.)

      E. C. Patton and Joe Adwon, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Canadian county on a charge of perjury and sentenced to a term of 5 years in the state penitentiary.

The facts appearing by the record are about as follows: In May, 1924, the Mustang State Bank was in a failing condition, and its report, to the state bank commissioner was overdue. Joe Hewett was cashier, A. N. Hewett was his brother, and Claude Foster was assistant cashier. The Hewetts were aware that an examination of the bank would disclose its insolvent condition, so they arranged for a fake robbing or burglarizing of the bank, and procured Jack Shepard and Harry Hale to conduct a holdup, and Joe Hewett went to Oklahoma City with them and procured a large acetylene torch to be used in entering the vault. The fake robbery took place about 1 o’clock in the morning. There was at the bank at the time Joe Hewett, A. N. Hewett, defendant George Lawson, and Claude Foster. The Hewetts were at the time ostensibly preparing their report to the bank commissioner. Defendant explains his presence by stating that he stopped there to have Hewett write him a business letter. Foster was not aware that the fake holdup was to be staged. According to plans, Shepard and Hale, masked, came into the bank and ordered the two Hewetts and Foster to lie face down on the floor, which they did. But Foster, probably having “smelled a mouse,” jumped up and engaged one of the bandits in a fight, and thereby “broke up the meeting.” A short time before this Joe Hewett had sold Sam Tenant, a farmer living some five' miles from Mustang, some of the bank stock. Between the time of the fake robbery and the preliminary trial of the Hewetts, Tenant committed suicide. Later Shepard and Hale were arrested, charged with attempt to rob, and a preliminary had before the county judge, at which defendant testified, in substance, the attempted robbery was made by three men, one of whom was Sam Tenant. The state contends that only Shepard and Hale were in the fake robbery, that Tenant had no connection with it, was not present, and that the testimony of defendant that he was present was false and known to be false at the time. It is upon this testimony that the charge of perjury is predicated.

A number of assignments of error are argued, several of which will be considered. It is first contended that the evidence upon which perjury is based is not material. It is well settled that, to constitute perjury, it is not necessary that the matter sworn to should be directly and immediately material, but it is sufficient if it is so connected with the matter at issue as to have a legitimate tendency to prove or disprove some fact that is material. Wright v. State, 30 Okla. Cr. 425, 236 P. 633, and authorities there cited. The matter at issue, in the preliminary hearing in which the testimony was given, was the guilt or innocence of the defendants Shepard and Hale. It was material that the committing magistrate know the surrounding facts and circumstances of the attempted robbery, the number, and identity of persons participating in it. The testimony of the defendant that a third person, other than Shepard and Hale, participated tended to throw light upon the occurrence, and, within the meaning of the law, was material.

It is next argued that there is no sufficient proof that the testimony of the witness, on which the charge is predicated, was false, or even if false, that defendant did not believe it to be true. The defendant in this trial testified that he honestly believed that Sam Tenant was in the bank participating in the attempted holdup, and that he still believed it. The theory of the state is that defendant was at the bank at the time of the fake robbery for the purpose of being a witness; and since he had known Sam Tenant since he was a small boy, his positive testimony of identification was not a mere matter of inadvertence. The falsity of defendant’s evidence was a question of fact to be submitted to the jury. It was specifically submitted to the jury and they were required to find beyond a reasonable, doubt that the defendant did testify falsely, and that when he so testified he knew his statement to be false; otherwise, they were instructed to return a verdict of not guilty. It was, of course, impossible to prove by direct and positive evidence the belief or knowledge of defendant except as it was shown by the fact that Sam Tenant was not at the bank and had no connection with the pretended holdup. This was abundantly shown by the family of Tenant, by whom an alibi as to Tenant was clearly proven, and by Shepard and Hale, who testified in substance that they did not know Tenant and that he had no connection whatever with them. The verdict on this point will not be disturbed.

Complaint is also made that the transcript of the testimony taken at the preliminary was not shown to be correct. This testimony was taken by a stenographer who seemed to have been not overly competent. Stoe was examined at length as to the correctness of the transcript; and the transcript, with the evidence of other witnesses supporting it, and admissions of the defendant, sufficiently establish the allegations of the information as to the testimony given. Defendant also denies that the testimony was given under oath. He denies that he was in the courtroom or was sworn with the other witnesses. The stenographer, a deputy court clerk, testified that he was sworn. On cross-examination she is not so positive, and merely testifies that she thinks he was sworn. The county judge testifies that he called all the witnesses present to stand up and be sworn, a large number stood up and he swore them, but he admitted that he was unable to remember all who were thus sworn. This also was a question of fact, to ;be submitted to the jury under proper instructions. The jury was correctly instructed that it must find affirmatively beyond a reasonable doubt that defendant was sworn as alleged. There is sufficient evidence to sustain the verdict.

It is also contended that there was error in overruling the supplemental motion for a new trial on the ground of newly discovered evidence. This supplemental motion sets out that two witnesses heard Claude Forster, soon aifter the robbery, state in substance that there were three men in the holdup gang, and that another witness would testify that he heard Sam Tenant say that he wished he had nothing to do with the holdup of the bank; that he only wanted to' get back the money that he had paid for stock in the bank. The motion does not have affidavits of the witnesses attached; and the motion as to purported statements of the witness Forster as mere impeaching statements, and the statement purporting to have been made by Tenant, is hearsay and inadmissible. The supplemental motion does not present such a showing of an abuse of discretion as to constitute error. McKenzie v. State, 34 Okla. Cr. 233, 245 P. 1005. Wampler v. State, 34 Okla. Cr. 141, 245 P. 69.

Some other incidental matters are discussed in the brief, but .they are not of sufficient importance to require special consideration. Considering the case as a whole, it appears that the defendant was fairly tried, the evidence is sufficient to sustain the verdict, the issues of law correctly submitted, and no error. warranting a reversal is apparent.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    LUM AKIN v. STATE.
    No. A-5688.
    Opinion Filed April 2, 1927.
    (254 Pac. 505.)
    Eaton & Cavanaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Okmulgee county of having unlawful possession of intoxicating liquor, and sentenced to pay a fine of $500 and to be confined in the county jail for a period of six months.

The record discloses that defendant lived about a half mile from one Jerry Williams, but on the same farm. The size of the farm does not appear. That at the time charged certain officers procured a search warrant for the land occupied by Williams. The search warrant and affidavit upon which it is based do not appear in the record, but the officers testify that it was for the place of Williams, and that'fhey had no search warrant for defendant. However, they went to his premises, in the nighttime, called him out of bed, and made a search of his premises, and found two quarts of whisky west of the house and another quart north of the house, and defendant was arrested at that time without a warrant. The defendant offered no evidence. Proper objection was made to the introduction of the state’s evidence as having been procured without a search warrant, which appears to be fully sustained by the record.

The case is reversed and remanded, with instructions to dismiss.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    RUSSELL COURSEY v. STATE.
    No. A-6112.
    Opinion Filed April 2, 1927.
    (254 Pac. 505.)

      Ned Looney and Robert Burns, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged in the district court of Beckham county with an assault with a deadly weapon with intent to kill and was convicted of an assault with a dangerous weapon with intent to do bodily harm, and his punishment assessed by the court at confinement in the state penitentiary for a term of two years.

The record discloses that in the early part of November, 1923, F. O. Haynes went to a cotton gin at Texola with a load of cotton. This was in the nighttime, and his team escaped and he went in search of them and in doing so crossed some land occupied by defendant. While doing this, he was struck on the head and rendered unconscious. When he recovered consciousness, he was on the section line and defendant came around with an iron wagon wrench in his hand and again struck him on the head with the wrench and rendered him unconscious. A physician was not called to attend him until November 12, at which time he was in a semiconscious condition, with two wounds over the left ear, and there was at the time dry blood in the auditory canal, and in the opinion of the examining physician he had sustained a simple fracture of the skull, and that it was some ten days before he became fully conscious. Defendant testified, in substance, that there was a state of ill feeling between him and prosecuting witness Haynes, and that at the time in question he saw prosecuting witness with a lantern, who accosted him and inquired about loose horses, and that a quarrel arose between them, and the prosecuting witness came towards him with a knife, and that he pulled the wrench out of the wagon and threw it at prosecuting witness and then saw the blood coming down his face. There are some other circumstances in evidence not necessary to relate.

Defendant contends that the evidence does not make out a case of assault with a dangerous weapon with intent to do bodily harm and does not warrant more than a verdict of assault and battery; that the punishment is excessive and unreasonable.

The charge in the information contains as an included offense an assault with intent to do bodily harm without justifiable or excusable cause by means of a dangerous weapon, which carries a punishment of confinement in the state penitentiary not to exceed five years or by imprisonment in a county jail not exceeding one year. Section 1764, Comp. Stat. 1921. The information correctly alleges that the instrument used is a deadly weapon, and the jury by their verdict expressly find the defendant guilty of an assault with intent to do bodily harm, without justifiable or excusable cause, by means of a dangerous weapon. The court in his instructions correctly defined a “dangerous weapon” as one which in the manner used is capable and sufficient to inflict a dangerous and serious bodily injury, following somewhat closely the language of this court in Wilcox v. State, 13 Okla. Cr. 599, 166 P. 74.

The jury evidently believed the evidence of the state and did not give credence to the testimony of defendant that he acted in his self-defense. The evidence fully warranted the jury in returning the verdict they did, and the court in fixing the punishment assessed, and no reason is apparent why this court should interfere with the judgment rendered.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DOYLE, P. J.

text:
    T. M. FULTON v. STATE.
    No. A-5722.
    Opinion Filed April 2, 1927.
    (254 Pac. 761.)
    Bridges, Vertrees & Ivy, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, T. M. Fulton, was tried in the court below on an information for the murder of W. W. McMasters. The jury, by their verdict, found him guilty of manslaughter in the first degree and assessed his punishment at imprisonment in the penitentiary for a term of 35 years, and, from the judgment duly pronounced in pursuance of the verdict, he appeals.

This appeal does not involve the sufficiency of the evidence, but rather presents alleged errors of law committed in the course of the trial. The following brief statement of the facts will be sufficient to make clear the contentions made: It appears from the transcript that the killing occurred on the main street of Addington, about 2 o’clock Saturday' afternoon, December 22, 1923. Appellant, Fulton, and deceased, McMasters, were farmers, living east of Addington, and the trouble arose over McMasters’ cattle getting into Fulton’s field. It appears that Fulton, on several occasions previous to the homicide, had impounded McMasters’ cattle, under the Herd Law (Comp. St. 1921, § 3925 et seq., and Comp. St. Supp. 1926, §§ 3973, 3974, 3981—1 to 3981—5), and had charged McMasters certain damages which McMasters had paid.

Dr. G. W. Murphy testified:

“I was in the drug store. Hearing the shots, I looked out and saw a crowd on the sidewalk. I went to the fallen man; he was dead. I turned him over; it was Mr. McMasters. I found the fatal wound between the third and fourth ribs, under the arm pit. The bullet must have passed through the right lung and through the heart. There was another wound on the left side. He had a dollar or two dollar bill in his right hand. I handed it to Mr. Huffier. I examined his pockets and found some pistol cartridges, some keys, and some coin, maybe 50 cents; no weapon of any kind, not even a knife was found.”

L. F. Edwards testified:

“I was standing three or four steps from Mr. Me-Masters when Mr. Fulton stepped up on the sidewalk. Mr. McMasters was reading a letter. He had some money in his hand. Fulton pulled his gun and pointed it at McMasters. He snapped the gun two or three times and then fired. McMasters wheeled and. Fulton fired again.”

J. E. Barton testified:

“I saw the defendant leave his father’s store and cross the street, then turn north to the Vanbibber store and step off the sidewalk; I looked off; in just a second I heard a gun fire; I turned and saw the defendant pointing the gun at McMasters; he was wheeling, and the defendant fired the second shot, then he went across to his father’s store. I asked him what in the name of common sense and reason caused him to shoot the old gentleman in the back. He said: ‘I didn’t shoot him in the back; I shot him with his face towards me. If he had acted a man with me, I would not have shot him.’ ”

Five or six other eyewitnesses were called by the state. The testimony of each is substantially to the same effect.

For the defense, 'J. D. Willoughby testified:

“I was standing on the sidewalk in front of Vanbibbers. About 10 feet from me a man had some papers in his hands looking at them and when the shot was fired the man was putting whatever he had in his hands in his pocket, then he turned into Vanbibbers.”

As a witness in his own behalf the defendant testified:

“My age is 25 years. I live 10 miles east of Adding-ton with my wife and children on my father’s farm. I had trouble with McMasters over his stock destroying my crop. I finally had to Herd Law his cattle. I took up seven head. He settled for them. After he paid me the last time I received a note on the top of a cotton pile on my place about 200 yards; from McMasters’ house.

He was then asked: “What did the note say?” State’s objection sustained. He further testified:

“I, with my brother, was driving two yearlings out of the field and a shot fired. I rode up to the gate, and MeMasters and his boy were there. He said, ‘You got them, did you?’ I said, ‘Yes.’ He said, ‘You played hell, too,’ and in the conversation he called me a God damn lying son of a bitch. I got off my horse and was going to try to whip him. He drew a gun, and said, ‘Stop, you damn son of a bitch, or I will blow your head off,’ and said, ‘If you Herd Law these calves, God damn you, I will kill you.’ That was my last talk with MeMasters before I met him in Addington. When I first saw him that day MeMasters was standing with his hands almost in front of him; I stopped kinda sudden; he looked up and around at me and put his hand in his pocket; I believed he was going for his gun; I thought he was about to shoot me and I shot him; I fired until I thought I was safe, then I went back to my father’s store.”

Taking up the errors assigned in the order in which appellant presents them, the first is that the court erred in refusing legal and competent evidence offered by the defendant. Under this assignment it is contended that the court erred in refusing to permit witness Mrs. Shorbe to testify to a certain conversation alleged- to have been had with the defendant some time prior to the commission of the homicide relative to what he should do about the stock of the deceased trespassing on his land.

The court having sustained the state’s objection, defendant offered to prove that he told the witness, after the witness had suggested that he resort to the Herd Law, that he hated to do that because it always brought on hard feelings between neighbors. It is obvious that this alleged conversation tends to prove no materiál issue in the case. Furthermore, it was nothing more nor less than an effort on the part of the defendant to prove a self-serving declaration made by him to a third person. This evidence was properly excluded by the court, under the rule that a self-serving declaration made by accused to third persons is inadmissible. Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736.

It is further argued by counsel for appellant that the court erred in refusing to permit the defendant to testify concerning the contents of the note which he claims to have found on a pile of cotton in his field the previous November. The oifer to prove shows that the defendant would have testified that the alleged note contained the following language:

“You are a God damn son of a bitch for taking $2.50 for Christmas money.”

And it is argued that the language quoted would tend to show the state of mind of the deceased towards the defendant.

It is elementary that, before secondary evidence of the contents of a written instrument may be introduced in evidence, even admitting the relevancy of the evidence, it must be shown that the original has been lost and a search made for it, and that it could not be found. There is no such showing in the record. Furthermore, before evidence of this kind could be introduced, a predicate must be laid to show that the Writing is the act of the person intended to be charged therewith. The defendant testified that he did not know who wrote the note, and that he did not know McMasters’ handwriting. We find no error in the court’s rulings in the admission or rejection of evidence.

The only other assignment of error is that the court erred in giving the following instruction:

“No. 16. You are instructed, gentlemen, that it is not' necessary to the right of self-defense that danger should actually exist, that is, it may only be apparent, not real, and that the defendant is entitled under the law to act upon appearances, and if the language or conduct of the deceased, at the time of the homicide, was such as to induce in the mind of a reasonable man, under all the circumstances then existing, and viewed from the standpoint of the defendant, a fear that death or great bodily harm was about to be inflicted by deceased on the defendant, it does not matter then if such danger was real or only apparent, and if the defendant acted from real and honest conviction as to the character of the danger, induced by the existence of reasonable circumstances, he should be acquitted, though it afterwards develops that he was mistaken as to the extent of the danger, or if you entertain a reasonable doubt as to whether the defendant so acted, you should resolve such doubt in his favor and acquit him. Excepted to by defendant for the reason same is not the law. Exceptions allowed. M. W. Pugh, Judge.”

Counsel for appellant in their brief say:

“The instruction is not broad enough to cover the law as it should have, in that the defendant, Fulton, not only had the right to take into consideration, the language and conduct of deceased in light of the circumstances then existing, but should have been allowed to take into consideration the previous acts and conduct of the deceased.”

While we do not think this instruction is open to the criticism lodged against it, it appears that the next instruction given by the court fully covered the law of threats or hostile demonstrations made by the deceased towards the defendant, in that the same should be considered as tending to show “the reasonableness of the defendant’s apprehension of violence at the hands of the deceased, and as a circumstance in determining what the defendant might have reasonably apprehended from the overt act or demonstration of the deceased, if any he made, at the time of the shooting.”

The court further instructed the jury:

“That in considering the evidence in this case you should place yourselves as nearly as possible in the position occupied by the defendant at the time he fired the fatal shot, and to consider the circumstances and conditions surrounding him from his viewpoint, and as they appeared to him in the light of the facts known to him at the time.”

Taken as a whole the instructions were more favorable to the defendant than the law requires.

To justify a killing in self-defense there must be a reasonable belief on the part of the defendant that he is in danger of losing his life or receiving great bodily injury at the hands of the deceased, and such real or apparent danger must be imminent at the time of the killing. Agent v. State, 18 Okla. Cr. 281, 194 P. 233.

It is fundamental that the law of self-defense, which is a law of necessity, involves the question of the right to act upon appearances of imminent danger, either actual or only apparent. Apparent necessity, if well grounded and of such a character to appeal to a reasonable person, under like conditions and circumstances, as being sufficient to require action, justifies the right of self-defense to the same extent as actual or real necessity.

If, however, he acts on these appearances, he does so at his peril, because the law leaves it to no man to be the exclusive judge of the reasonableness of the appearances upon which he acts, but prescribes a standard of its own, which is, not only did the person acting on the appearances himself believe that he was in danger of losing his life or receiving great bodily injury, but would a reasonable man, situated as the defendant was, seeing what he saw and knowing what he knew, be justified in believing himself in danger. C. S. 1921, § 1754, subd. 2; Jamison v. State, 35 Okla. Cr. 302, 250 P. 548.

It is for the jury to say, under all of the evidence and under proper instructions from the court upon the subject, whether appearances of danger were real or apparently real so as to justify action in self-defense.

In conclusion we simply add that a careful examination of the record and briefs convinces us that the defendant had a fair trial, and, finding no material error, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    O. W. COFFELT v. STATE.
    No. A-5698.
    Opinion Filed April 2, 1927.
    (254 Pac. 760.)

      Glenn O. Young, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Creek county upon a charge of burglary in the second degree and was sentenced to serve a term of two years in the state penitentiary.

The record discloses a state of facts about as follows: In April, 1924, the dwelling house of one C. C. Maebon was burglarized and .various items of personal property stolen therefrom . Some 10 or 15 days thereafter, a deputy sheriff was at the place of defendant searching for some stolen live stock, and with the consent of defendant looked the premises over. He saw some personal property which he thought did not belong to defendant and arrested and lodged him in jail. Some days later, while defendant was in jail, a search warrant was procured for his residence, which apparently was issued without any affidavit having been filed. It was invalid for that reason, as well as for the reason that it is wholly indefinite as to the place to be searched or the property to be seized. With this invalid search warrant, the residence of defendant was searched, and a portion of the property claimed to have been stolen recovered. Objection to the admissibility of this evidence was made, and while some of the objections were sustained, yet the evidence in substance was admitted, possibly on the holding of this court in the cases of Gaines v. State, 28 Okla. Cr. 353, 230 P. 946, and Davis v. State, 30 Okla. Cr. 234, 234 P. 787. We think that the rule announced in those cases is sound, but that the facts here do not bring this case within the rule. Certainly, one legally arrested may be searched for weapons or things which might facilitate his escape, or for papers, instruments, and property of an evidentiary character which may be, or may have been, used in the commission of the crime charged, or possibly of any other crime. The arresting officer also may search the room, effects, or immediate surroundings of the person so arrested, and such property seized, and the person arrested may be taken to a place of safety before such property is seized; but the seizure in such case must be incidental to a legal arrest and may not be unnecessarily delayed. See authorities cited in the case of Davis v. State, supra, and further: People v. Trine, 164 Mich. 1, 129 N. W. 3; People v. Cona, 180 Mich. 641, 147 N. W. 525; State v. Turner, 302 Mo. 427, 259 S. W. 427.

The admission in evidence of property seized without a valid search warrant, and not seized as an incident of a legal arrest, cannot be sustained.

The evidence of the state, if otherwise admissible, was wholly circumstantial. There was no direct and positive evidence nor admission by defendant. At the conclusion of the trial, defendant requested an instruction on circumstantial evidence, which was by the court refused., This was erroneous.

For the reasons assigned, the case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


author: DAVENPORT, J.

text:
    BARNES TAYLOR v. STATE.
    No. A-5580.
    Opinion Filed April 2, 1927.
    (254 Pac. 758.)

      Cress & Tebbe, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged with contempt of court by the county attorney of Noble county, by filing an application on the 6th day of September, 1924, asking for a citation to issue commanding defendant to show cause why he should not be fined for contempt of court, citation was issued and served on defendant, defendant specially appeared and filed his motion to quash the application, and the motion was sustained, an amended application was filed on the 27th day of September, 1924, charging in the amended application that on the 22d day of December, 1922, the district court granted a temporary injunction enjoining and restraining the said defendant, Barnes Taylor, his agents, employees, servants, successors, and assigns and all other persons, from keeping, maintaining, carrying on, and operating, or permitting to be kept, maintained, carried on, or operated at, in, upon, or about a certain building and premises in the city of Perry, Okla., and charging that on the date of the filing of this amended application, and for eleven months prior thereto, defendant had maintained, carried on, and operated, at, in, upon, and about the said building and premises described in the injunction a place where choc beer and other intoxicating liquors are kept for sale, given away, or otherwise furnished to other persons, and by so doing had violated the terms of the injunction, and was in contempt of the court. Citation was issued, was duly served on the defendant, and returned by the sheriff of said county. The defendant again specially appeared and moved to quash the amended application for a citation, which motion was by the court overruled, and defendant reserved an exception.

The defendant was tried, and the jury returned a verdict finding the defendant guilty. Motion for a new trial was filed and overruled, and defendant duly excepted; also a motion in arrest of judgment was filed and overruled, and exceptions duly saved. On the 17th day of January, 1925, the court, upon the verdict of the jury, sentenced the defendant to pay a fine of $100 and costs of the prosecution, and imprisonment in the county jail of Noble county for a period of 60 days. To reverse this judgment the defendant has appealed to this court, and has assigned 18 errors alleged to have been committed by the trial couid.

The state called several witnesses who attempted to show that the defendant in this case had violated the terms of the injunction by selling, bartering, and giving away some of the things prohibited to be kept on the premises described in the restraining order and mentioned in the application for a rule on the defendant to show cause why he should not be guilty of contempt.

Three witnesses, two of whom did not live in the city of Perry, claim to have bought some choc beer from a colored woman down near or on the premises described in the restraining order. Two of the witnesses claim that the defendant came to the house while they were there and stated that he had been fishing, and that they drank some choc beer while the defendant was there. On cross-examination, these witnesses admitted they had some trouble with the negro woman from whom they claim to have bought the choc beer, but they did not tell what.the trouble arose over.

One other witness testified to having bought some choc beer from a negro boy by the name of Brown. The only evidence introduced by the state tending to show that the defendant had any knowledge that anything was being sold in the neighborhood of the place where he had been enjoined from permitting the manufacturing, bartering, or selling of intoxicants, or substitutes therefor, was the statement of the two witnesses who claim to have been drinking choc beer when they claim the defendant came to.the house. There is no positive testimony in the record to show that this defendant violated the terms of the restraining order, or knowingly permitted others to violate it.

The testimony of the defendant is to the effect that he moved away from the place immediately after the 27th day of October, 1923, and that he rented the house to different parties, and that he did not himself, or knowingly permit others to violate the terms of the restraining . order.

The record is voluminous, and many questions are raised, and many assignments of error urged, by the defendant as to why this case should be reversed, but in the view we take of this case it is only necessary to consider the eighth and sixteenth assignments of errors, which are as follows: ■

“(8) The said court erred in overruling the motion to direct the' jury to return a verdict of acquittal, to which action of the'said court this plaintiff in error excepted, and exception was allowed.”
“(16) The verdict of the jury is contrary to the evidence.” •

The assignments hereinabove set out relate to the sufficiency of the testimony in this case to warrant the jury in rendering a verdict of conviction against the defendant.

It is the duty of all parties to obey and respect the order of the court, and, when the same is violated, it is the duty of the court, in order to protect its dignity, to cause the violator to be brought into court and show cause why he should not be adjudged in contempt, but, in doing so, before he should be convicted and sentence imposed. upon him, there should be competent testimony sufficient to warrant a conviction.

The record in this case has been carefully briefed by both sides. A careful examination of the evidence in this case only tends to create suspicion or a possibility that the defendant may be guilty of contempt, and a verdict based upon a possibility and supposition is not justified. Where there is evidence to support a verdict, this court will not pass upon its weight and sufficiency in order to determine whether the defendant is guilty as charged, but we do hold there must be evidence tending to support the essential allegations of the charge.

In this case there is no evidence to show that the defendant himself willfully and knowingly violated the terms of the restraining order, nor is there any evidence whatever that he knowingly permitted others to violate the terms of the restraining order, nor is there any evidence tending to show that he had any knowledge of the violation of the restraining order. The evidence is insufficient to sustain the verdict and judgment.

The judgment is reversed and remanded.

DOYLE, P. J., not participating.

EDWARDS, 'J., concurs.


text:
    LULA SOWERS v. STATE.
    No. A-5727.
    Opinion Filed April, 2, 1927.
    (254 Pac. 756.)
    Anglin & Stevenson, for appellant.

      Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Lula, Sowers was convicted on an information charging that on the 17th day of October, 1924, she did “unlawfully have in her possession on her premises, about 8 miles northwest of the town of Sasakwa, one distillery, fully equipped with still worm, metal tubs, etc., sufficient to make whisky.” In accordance with the verdict of the jury, she was sentenced to pay a fine of $300, and be imprisoned in the county jail for 90 days, and she appeals.

In support of the contention of counsel that the judgment should be reversed, a number of errors are assigned and argued. The assignment that the verdict is not sustained by sufficient evidence and that the court erred in admitting incompetent testimony will be considered together.

Joe M. Speers testified: That he was constable of Miller township. That on the 26th day of October, 1924, together with J. W. Cross, deputy sheriff, and E. T. Johnson, justicfe of the peace, he visited the premises occupied by the defendant, and she was not at home. He further testified:

“We first went in the field, and up on top of the bank we found a pit dug and some mash barrels buried and some cans and jars, and we found where some whisky had been cooked and some more mash buried under the bank. We destroyed the stuff.”

That there was a branch behind the house and a corn patch in the bend between the branch and the river, a trail went from there to the end of the corn rows and along the corn rows to the lot, then up by the side of the lot to the yard. That the stuff he described was found about a quarter from the home of the defendant and on her place.

He further testified against the defendant’s objection and exception that he knew the reputation the defendant’s place has among the people who live in the community as being a place where intoxicating liquors are kept and sold, and that it is bad. “It is where you can buy whisky most any time; that is the information I get daily.”

The state rested, and the defendant moved for a directed verdict of acquittal, on the ground that the evidence was insufficient to sustain the material allegations of the information, which was overruled. Exception allowed.

The defendant, as a witness in her own behalf, testified that her family consisted of her husband, two daughters, and a grandson, and that she lives on Mr. Heard’s place, and had lived in that community for 14 years; that on the day that the search was made she was at Holden-ville visiting her husband, who was working there; that she did not know anything about a still being located near her place; that the stuff found was not on her place, and, she did not control the land on which it was found; that she never did make whisky, did not sell whisky, and. did not drink it; that there is a trail or road from Mr. Heard’s place along the rows of cotton and along Mr. Heard’s corn rows; that the nearest point on this road to her house is about 100 yards; that every one coming from the north on the river comes that way, because there is only a place or two on the river that they can cross.

A. H. Heard testified that he lives on Little river and Mrs. Sowers lives on his place; that the place where the still was found was no part of the land rented to Mrs. Sowers; that his house is a half mile from Mrs. Sowers; that he is acquainted with Mrs. Sowers’ reputation in that community with reference to being a law-abiding citizen and her reputation is good.

U. H. Payne testified that he was on the Heard, place making cane; that the still was discovered 100 or 150 yards from the place Mrs. Sowers was working; that he knew her reputation as to being an honest, law-abiding citizen, and it was good.

W. A. Sowers, husband of the defendant, testified that he was working at Holdenville, and heard that his wife was arrested, and came home; that the place where the purported still was found was not on the land that he and his wife rented from Mr. Heard; that he would judge that it was about 200 yards distant; that he never knew of any liquor being made, sold, or kept on or around his place.

In rebuttal, Speers, constable, Cross, deputy sheriff, and Johnson, justice of the peace, each testified over the defendant’s objections that they knew the reputation of this defendant in the community in which she lives as being a person who violates the prohibitory laws, and that it was bad.

This prosecution was under section 2, c. 42, Session Laws, 1924, p. 43, which declares:

“It shall be unlawful for any person [or persons] to keep, or have in his possession, or knowingly permit any other person to keep, or have in possession upon any premises under the ownership or control of such first party, any still worm or still, without that he first register the same with a proper United States officer and obtain from said officer a certificate of said registration and that he also first file said certificate of registration or a certified copy thereof with the county clerk of the county in which said worm or still is located.”

Under section 6, c. 1, Sess. Laws of 1923, p. 2, any distillery found in any house or building or within any inclosure shall prima facie be deemed to have been set up by and to be the property of, the person or persons Who are in actual possession and control of the house, building, or inclosure, as the case may be.

A careful examination of the evidence satisfies us that the defendant was improperly convicted. The circumstances in evidence tend to show that a distillery had been set up, but it was not found. The officers only found what is described in the information as “et cetera.” The only evidence tending to prove possession by the defendant was the naked statement of the witness Speers that the stuff he found was on the defendant's place. The testimony of all the witnesses for the defense, including the owner of the land, was to the effect that the place where the still had been set up was no part of the land controlled by the defendant.

To justify or sustain a oonviction under section 2 above quoted, it was only necessary for the state to prove possession as charged in the information. It was unnecessary to prove criminal intent. In a prosecution of this kind, evidence of the reputation of the place is incompetent. We must therefore hold that this incompetent evidence, erroneously admitted over the objection and exception of the defendant, was prejudicial to her substantial rights, for without this illegal testimony the jury might have refused to return a verdict of guilty.

This is sufficient to dispose of the appeal. However, it is proper for us to notice that the name of the county attorney does not appear in the body of the information, nor is the name of the county attorney subscribed thereto, as required by section 2511, C. S. 1921.

In the case of Oelke v. State, 10 Okla. Cr. 49, 133 P. 1140, we held:

“An information charging a misdemeanor, preferred and signed by a legally constituted assistant county attorney, is sufficient to sustain a conviction, where no objection is made by motion to set aside, or by demurrer thereto.”

In the instant case it appears that, after the county attorney had read the information, and made his statement of the case to the jury, the defendant at that time asked the court for permission to withdraw her plea of not guilty in order to interpose a demurrer to the information, which request was refused by the court. Thus the record shows that the objection came too late. However, if raised by proper motion, or by demurrer thereto, the same should be sustained.

For the errors indicated the judgment is reversed, a new trial granted, and the cause remanded to the trial court for further proceedings.

EDWARDS and DAVENPORT, JJ., concur.


text:
    STATE v. ED. SKELTON et ux.
    No. A-5658.
    Opinion Filed April 2, 1927.
    (254 Pac. 754.)

      Edwin Dabney, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
    J. M. Adams and F. H. Reily, for defendants in error.
   EDWARDS, J.

This is an appeal prosecuted by the state upon a question of law from a judgment of acquittal rendered in the county court of Pottawatomie county in sustaining a motion for acquittal, to which ruling the state at the time objected and excepted, and reserved a question of law to be made and presented for review on appeal to this court..

The information charges the defendants with keeping and maintaining a place in the city of Shawnee where whisky was kept with the intent to violate the prohibitory liquor laws. A jury.was waived, and the trial was had to the court. The evidence relied upon by the state was procured by means of a search warrant, which was challenged by defendants as having been procured upon ah insufficient affidavit. This objection was sustained, and the court excluded the evidence. The affidavit is founded upon sections 7012 and 7013, Comp. Stat. 1921. The material part is as follows:

“* * * Before me, L. A. Hathcock, justice of the peace, within and for Pottawatomie county, state of Oklahoma, personally appeared and on oath states that the offense of manufacturing, bartering, selling, giving away, and in some manner furnishing, intoxicating liquors, and that intoxicating liquors are being received, had, and kept with the intent and for the purpose to sell, give away, and in some manner furnish the same, and operating, conducting, carrying on, dealing, playing at, and betting on poker, roulette, craps, banking and percentage games, slot machines and gambling games and devices, for money, checks, credits, and representatives of value, contrary to, and in violation of, the laws of the state of Oklahoma, is now being committed within said county and state, and within the jurisdiction of this court, in and upon the following described premises, towit: A certain one-story brick dwelling house, located on East Wallace street, and being the first house on the east side of the Santa Fe railroad track on said Wallace street, and all outbuildings thereunto belonging—the basis of this complaint being that said premises are frequently and constantly visited by various and divers persons and further that said'premises has the general reputation of being a place where intoxicating liquors are kept for the purpose of violating the laws of Oklahoma. And that the said premises are used as a public resort. Wherefore, affiant prays that a warrant of search and seizure for said described premises to the end, and that said violations of the law may be suppressed and offending parties dealt with according to law. * * *”

.Section 7012, Comp. Stat. 1921, reads:

. “No search 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.”

It would have been better practice to have named the person having possession of the property described, if such person is known, or, if not known, he should be described as unknown, since such allegation is ordinarily a part of the description of the place. Such allegation is essential if the person is to be searched or seized. Gandreau v. U. S. (C. C. A.) 300 F. 21; U. S. v. Camarota et al. (D. C.) 278 F. 388; Boyd v. State, 195 Ind. 213, 143 N. E. 355.

¡Since the affidavit in this case is an application for a search warrant to search a particular place, which is particularly described, and not for the search of a person, the failure to name or describe the person does not render it fatally defective.

The foregoing affidavit is by no means a model in form and substance, but all the essential requirements are sufficiently stated to warrant the magistrate in making a finding of probable cause for the search of the place. It does not follow that the statement of facts in the affidavit for search warrant would be sufficient to support a verdict of guilty. It is not required that they should be, but only a statement of facts upon which the magistrate may make a finding of probable cause. The court erred in sustaining the objection to the evidence obtained by the search warrant and in directing an acquittal, and his ruling is reversed. Smith v. State, 30 Okla. Cr. 144, 235 P. 273.

There having been a judgment of acquittal entered by the court, such judgment is final, and the defendants may not now be subjected to further prosecution in this case, nor to another prosecution for the same offense. State v. Robertson, 28 Okla. Cr. 234, 230 P. 932, and authorities cited.

The case is remanded, with directions that this order be entered upon the minutes of the county court of Pottawatomie county.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    JAMES MADDOX v. STATE.
    No. A-5724.
    Opinion Filed April 2, 1927.
    (254 Pac. 753.)
    John F. Thomas and Lewis Hunter, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charged that in Comanche county, on the 1st day of May, 1924;

“James Maddox, then and there being did then and there willfully, unlawfully, and feloniously commit an assault and battery upon the person of Chloe Johns, a female under the age of 16 years, and not the wife of the said James Maddox, by forcibly taking hold of and attempting to throw said Chloe Johns over and upon the bed, with the unlawful and felonious intent of him the said James Maddox to have and accomplish sexual intercourse with her, the said Chloe Johns.”

The jury returned a verdict finding him guilty as charged in the information, and fixing his punishment at imprisonment in the county jail for 60 days and a fine of $200. In due course a motion for new trial was filed and denied, and from the judgment pronounced in pursuance of the verdict he appeals.

Several questions are presented for decision. It is not the purpose of this opinion to review all of these questions. The information is sufficient, and the demurrer thereto was properly overruled, and we find no error in the ruling of the court in the admission and rejection of evidence.

The assignment that the verdict is not sustained by sufficient evidence and that the court erred in refusing an instruction on assault and battery will be considered together.

It appears that the prosecutrix resided with her parents and brothers on a farm, and appellant, his wife, and brother resided on the same place in a house 200 yards distant; that her age was about thirteen years. She testified that in the absence of her parents, who had gone to town, and her brothers, who were working in the field, appellant called and wanted some milk; that she poured the milk for him "into his bucket and he started home, saying he might be back after a while; that, later, he came back with another bucket, and she poured it full of milk, and he said his wife was gone, and he did not care, that he knew girls prettier than she was, and she told him she wished he Would go on home, that she had to cook dinner for her brothers. He said he did not care and caught her and kissed her and she slapped him; then he tried to push her over bn the bed, and said three times, “Why don’t you let me?” Then .she went outside; he came to the door and said, “Why don’t you come back in the house?” and she told him to go home; he said he would go when he got ready, and directly he came out and went home; that later, about 12 o’clock, he came back and asked her not to tell her papa, and she said she would not if he would go home; then she said, “Yonder comes the boys,” and he said, “You swear you won’t tell them.” She said, “Yes; if you will go home.” Then he said, “Good bye, honey,” and she made a face at him, and he went to the car.

On cross-examination, she stated that she did not tell her brothers when they came in to dinner about an hour later, nor her father or mother; that two or three weeks later she told a girl friend; then the girl friend told her folks, and they told her parents; then her mother asked her about it, and she told her what occurred; that after this happened appellant and his wife chopped cotton for her father for about three weeks and with her father and brothers she chopped cotton with them.

As a witness in his own behalf appellant testified that his age was 24 years; that he was World War veteran and at present was band instructor at the Ft. Sill Indian school; that he lived on his deceased mother’s farm;, Alva Johns, father of the prosecutrix, lived on the same place; that the houses were about 200 yards or a little better apart; that his family always got their milk, butter, and eggs from the Johns family; that about 10 o’clock he called to get some milk for his puppies, and Chloe said, “Come in and get it out of the can”; that he lifted the can, and poured the milk in, and thanked her, and left; that later he went back after some eggs and got a half dozen and some more milk for the dogs; that later, about noon, he started with his brother to the ball game, and took the milk bucket and left it at the Johns place; that at no time did he take hold of her or hug her or kiss her; that he and his wife chopped cotton with the Johns family, including the prosecutrix, nearly every day for three weeks thereafter.

The testimony of his brother, Dewey, substantially corroborates that given by appellant.

The instruction requested and refused was, in part, as follows:

“You are instructed that included in the crime charged in the information is the offense of assault and battery, and you are instructed that if you are unable to find from the evidence, beyond a reasonable doubt, that the defendant is guilty of the crime charged in the information, to wit, assault with intent to commit rape, then you may consider the evidence to determine whether or not the defendant is guilty of assault and battery. You are instructed that assault and battery is the use of any willful and unlawful force or violence upon the person of another, and that the law provides that any person guilty of assault and battery shall be punished by imprisonment in a county jail not exceeding 30 days, or by a fine of not less than $5, nor more than $100, or both,” etc.

Our Code of Criminal Procedure provides that the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or an attempt to commit the offense. Section 2740, C. S. 1921.

It is a well-settled rule that, where the evidence is clearly insufficient to sustain the major offense charged, and there is evidence tending to prove the commission of an offense necessarily included, it is the duty of the trial court to instruct the jury of their right to convict of the lesser offense. Clark v. State, 6 Okla. Cr. 100, 116 P. 200. The great weight of authority is in accordance with this rule.

This case in all its essential features is the same as the case of Tayrien v. State, 33 Okla. Cr. 231, 242 P. 1061. There we held that in a prosecution for assault to rape, evidence being sufficient to sustain verdict for assault and battery, that issue should have been submitted. The precise question here presented was fully considered and the authorities reviewed.

Upon consideration of the evidence and in view of the rule declared in the Tjayrien Case, we are clearly of the opinion that the court erred in refusing to give the requested instruction, and, as the case must be again submitted to the jury, we refrain from a discussion of the evidence.

For the error indicated, the judgment is reversed and the cause remanded for a new trial.

EDWARDS and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    STATE v. C. C. CHILDERS.
    No. A-6459.
    Opinion Filed April 2, 1927.
    (254 Pac. 1118.)
    J. K. Wright, Co. Atty., for plaintiff in error.
   PER CURIAM.

In this case an information, based on sections 6119, 6120, and 6121, C. S. 1921, was filed in the county court of Oklahoma county. To this information a demurrer was interposed, and the same was by the judgment of the court sustained. The state appealed from' this judgment. March 29, 1927, the following motion to dismiss the appeal was filed: “Come now C. H. Ruth and J. K. Wright, county attorney of Oklahoma county, Oklahoma, attorneys of record herein for the state of Oklahoma, plaintiff in error, and move the court to dismiss the appeal on the part of the state of Oklahoma against C. C. Childers, defendant in error, from a judgment of the county court of Oklahoma county, Oklahoma. C. H. Ruth, J. K. Wright, County Attorney of Oklahoma County, at the Request of >C. H. Ruth.” It is therefore ordered and adjudged that the motion to dismiss the appeal be sustained.


text:
    J. T. CRANE v. STATE.
    No. A-6393.
    Opinion Filed April 2, 1927.
    (254 Pac. 1118.)
    David L. Carter, and Welch & Hatcher, for plaintiff in error.
   PER CURIAM.

Appellant, J. T. Crane, was convicted of the crime of embezzlement on an information charging that in Marshall county, March 8, 1923, he did feloniously take, convert, misappropriate, and embezzle $4,-237.66, while he was the duly elected and acting treasurer of school district No. 4 of Marshall county, to which district said money belonged. By the judgment of the court, duly pronounced, he was sentenced to be imprisoned in the state penitentiary for a term of three years and to pay a fine of $8,475.32. From the judgment he appealed. His counsel of record have filed a motion in this court to dismiss the appeal. Wherefore the motion to dismiss is sustained, and the appeal dismissed. Mandate forthwith.


text:
    Ex parte ARCHIE HAMMOND.
    No. A-6555.
    Opinion Filed April 4, 1927.
    (254 Pac. 759.)
    E. T. Banbour and Amos T. Hall, for petitioner.
    Byron Kirkpatrick,.Co. Atty., and Luther P. Lane, Asst. Co. Atty., for respondent.
   PER CURIAM.

The petitioner, Archie Hammond, on April 4, 1927, filed in this court a petition signed and verified by his oath, wherein he avers that he is unlawfully imprisoned and restrained of his liberty in the county jail of Tulsa county by R. D. Sandford, sheriff of said county, the cause of said restraint being that on the 14th day of March, 1927, a complaint was filed in the court of common pleas of Tulsa county, charging petitioner with driving and operating a certain motor vehicle over and upon a public highway in a careless and imprudent manner; that petitioner was tried in said court and convicted of the offense charged in said complaint, and thereafter petitioner was committed to the jail of said county for the term of 15 days and was ordered by the judge of said court to pay the costs in said case. A copy of the complaint and the order of commitment are attached and made a part of the petition. Attached to said petition is a stipulation signed by counsel for petitioner and Luther P. Lane, assistant county attorney of Tulsa county, to the effect that the same be submitted upon the petition and exhibits hereto attached.

Of the allegations of said petition, we deem it only necessary to consider the one; that is, that said court Was without jurisdiction to try and convict said petitioner upon a complaint filed in a court of record, in that the same was in contravention of section 17 of the Bill of Rights.

The act creating the court of common pleas of Tulsa county, chapter 5, Sess. Laws 1923, § 1, as amended by Sess. Laws 1925, p. 285, being section 3419—1, Supp. C. S. 1926, provides, among other things, that this court shall be a court of record.

Article 2, § 17, of the Constitution, provides:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. * * * Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

By numerous decisions of this court, it is held that under the Constitution, art 2, § 17, a court of record has no jurisdiction to entertain a criminal prosecution based solely on a verified complaint. Morgan v. State, 15 Okla. Cr. 158, 175 P. 625; Gibson v. State, 26 Okla. Cr. 246, 223 P. 406; Berg v. State, 28 Okla. Cr. 281, 230 P. 296; George v. State, 28 Okla. Cr. 388, 231 P. 318; Hickey v. State, 36 Okla. Cr. 137, 252 P. 858. Upon the authorities above cited, it must be regarded as the settled doctrine in this state that prosecutions for crime in courts of record must be either by indictment or information.

It follows from what has been said that the common pleas court of Tulsa was without jurisdiction to try and convict petitioner, and that therefore petitioner is unlawfully restrained of his liberty by the respondent, and that he is entitled to a discharge from the imprisonment of which he complains, and he is by the judgment of this court discharged therefrom.


text:
    L. O. EVANS v. STATE.
    No. A-5715.
    Opinion Filed April 9, 1927.
    (254 Pac. 982.)
    Lewis Hunter and J. A. Diffendaffer, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Appellant, L. O. Evans, was convicted on a charge of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to confinement in the county jail for six months and to pay a fine of $500, and he appeals.

Of the errors assigned it is only necessary to consider the one, that the court erred in admitting evidence that was obtained by an unlawful search of his home.

The evidence on the part of the state showed that two deputy sheriffs and a federal prohibition enforcement officer invaded the home of the defendant, at 11 o’clock at night on the date alleged, and found about a half gallon of whisky. It was admitted that the officers did not have a search warrant.

The record shows that the testimony of the witnesses for the state was admitted over the defendant’s objection. At the close of the state’s evidence there was a motion by the defendant for a directed verdict, which was overruled.

Appellant took the stand and testified that he lives 81/2 miles west of Lawton with his wife and children; that the officers came there about 11 o’clock at night, searched his place, and found part of a half gallon of whisky that he had bought the day before for the use of himself and family.

The admitted acts of the officers show that they .acted without authority of law, that all of the state’s evidence was procured by an invasion of rights guaranteed by section 30 of the Bill of Rights, and that the same was admitted over the defendant’s objections in violation of section 21 of the Bill of Rights.

This case in all its essential features is the same as the case of Jones v. State, 36 Okla. Cr. 180, 253 P. 310, which should be followed.

The judgment appealed from is reversed and the cause remanded, with direction to dismiss.


text:
    ROY FOUST et al. v. STATE.
    No. A-5986.
    Opinion Filed April 9, 1927.
    (254 Pac. 982.)

      C. F. Gowdy, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Ottawa county on a charge of burglary, and each sentenced to serve a term of four years in the state penitentiary.

In July, 1925, the filling station of Charles Cruzan, in the town of Cardin, was burglarized and some automobile tires and other property stolen. The track of an automobile was discovered in the soft ground just at the rear of the filling station, and also the tracks of two men. These defendants were suspected, but no arrest was made until some two weeks later, when defendants were seen to leave their home with a large number of fruit jars and go into the woods near the railroad track and stop, at which place the jars were unloaded. Defendants were then arrested by an officer, who found, in the car they were driving, two of the stolen automobile tires. There was also evidence that the track made by the automobile they were driving was identical with tracks discovered at the rear of the filling station at the time of the burglary, and the tracks of the persons found near the filling station were similar to those made by defendants. Both defendants were ex-convicts. Defendants testified that they found the stolen automobile tires just prior to their arrest near the railroad track at the time they were unloading the fruit jars. They further gave testimony tending to prove an alibi, in substance that they went to the residence of one Savoot, near Melrose, Kan., about midnight of the night of the burglary, and spent the remainder of the night there. Their testimony was rather indefinite and in some particulars conflicted.

The first assignment of error is that the evidence is insufficient. The evidence of the state is wholly circumstantial, but these circumtsances are sufficient, if believed, to sustain the verdict of the jury. The defendants were in the possession of recently stolen property, under circumstances calling for an explanation. The burden of establishing the truth of the explanation is on them, and its truthfulness is a question for the jury. The explanation does not strike us as being reasonable, but even if it were reasonable, whether or not it is true is still a question of fact for the jury.

Whitten v. State, 25 Okla. Cr. 447, 221 P. 115. Buford v. State, 27 Okla. Cr. 138, 225 P. 568. Blumhoff v. State, 29 Okla. Cr. 97, 232 P. 862. Worley v. State, 31 Okla. Cr. 253, 238 P. 225.

The only other assignment is that the trial judge made a remark discrediting the testimony offered by defendants. On this point it appears that one of the defendants had testified that on the night of the burglary they spent the night with an Italian, near Melrose, Kan.; that defendants had tried to get this witness to come to Oklahoma to testify, or to cross the line so that he might be supoenaed as a witness. Counsel for defendants asked defendant Hice this question:

“Q. Bruce, I will get you to state if this isn’t a fact, that you had been insisting and trying and insisting on your attorneys, and trying every way that was possible to get this man across the line so that we might subpoena him and bring him here, and even going to the extent of asking the court to continue this case because we didn’t yet have those witnesses over here?”

Thereupon the, court said:

“Now, just to show you how fair I am, I will continue this case until in the morning in order to give you time to get that witness here.”

The remark was not particularly appropriate, but we do not perceive how it could have been prejudicial to defendants. No exception was taken to the remark of the court at the time, nor was any assignment of error based thereon made in the motion for new trial. There is no merit in the appeal.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.


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    DAVE LESSER v. STATE.
    No. A-5691.
    Opinion Filed April 9, 1927.
    (254 Pac. 988.)

      Mike Foster, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of shooting with intent to kill, and was convicted of the included offense of assault with a dangerous weapon, and was sentenced to serve a term of one year ond one day in the state penitentiary.

The prosecuting witness and the defendant resided on opposite sides of Twenty-Sixth Street South, Oklahoma City. The prosecuting witness, H. M. Akers, lived with his family on the south side, and the defendant lived almost opposite, on the north side. At the time of the trial the prosecuting witness was 51 years of age, and defendant 73 years of age. Defendant had a pile of rubbish and junk on the front of his premises, evidently unsightly and displeasing to prosecuting witness and his family. The conduct of prosecuting witness was irritating. They had had considerable quarreling, and the state of feeling was bad. At the time of the difficulty the prosecuting witness was doing some work on the highway abutting the defendant’s property by putting brush in a rut, which, defendant considered, interfered with his ingress and egress to his premises. He came out and forbade this being done. There is some evidence that prosecuting witness applied to him some vile and opprobrious language. Defendant returned to his house, procured a pistol and returned, and ordered prosecuting witness to desist. Upon his refusal to do so, he shot and seriously wounded the prosecuting witness. Defendant testified that he went to the place and ordered prosecuting witness not to put the brush in so as to interfere with his approach from the street to his premises, and when he refused he went in and got his pistol, returned, and asked prosecuting witness to leave so they would have no trouble, and that prosecuting witness called him a vile name and ran towards him with a rake with which he was working, and that he shot him in his necessary self-defense.

The first assignment of error is that the court refused certain requested instructions of the defendant and failed to instruct all the law applicable to defendant’s theory. Defendant made several requests for instructions touching the law of self-defense, which were refused by the court, but the substance of these requests was covered by the charge of the court, and the instructions as a whole fully and correctly covered the law of the case. The assignment is without merit.

It is further argued at some length thAt the verdict is incorrect in form and does, not properly respond to the issues in the case. An examination of the record, however, discloses that no objection was made to the verdict at the time it was returned, and no assignment of error on account of any defect or informality in the verdict was made in the motion for a new trial, and, giving a common sense consideration to the verdict, it is clearly apparent that the jury intended to and did find the defendant guilty of the included offense of assault with a dangerous weapon, with the intent to do bodily harm. It is well settled that technical rules of construction should not be applied to the verdict of a jury, and, where the meaning of the verdict can be determined by a reference to the record, it will be upheld, particularly where no objection is made to the verdict at the time it is received and no opportunity to correct an informality is given. There is no such informality as prejudices any substantial right of the defendant. Coleman v. State, 16 Okla. Cr. 579, 194 P. 282.

We are aware of the fact that a sentence of one year in the penitentiary for a defendant of the age of this defendant is a severe punishment, yet, in view of the whole record, it seems evident that the jury took this fact into consideration in its verdict, assessing the punishment at only one year.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, ff., concur.


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    M. S. ROBINSON v. STATE.
    No. A-5709.
    Opinion Filed April 9, 1927.
    (254 Pac. 986.)

      Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case jointly charged M. S. Robinson and James Robinson with “the possession of about 100 gallons of mash, fit for distillation, into intoxicating liquor, commonly called corn whisky.” On the trial the jury returned a verdict of acquittal as to the defendant James Robinson and returned a verdict finding the defendant M. S. Robinson guilty and fixing his punishment at a fine of $100 and imprisonment in the county jail for 30 days.

In support of the contention of counsel that the judgment should be reversed a number of errors are assigned and argued. To properly determine the questions thus presented consideration of the evidence will be necessary.

The testimony of T. C. Shacklett, sheriff, and A. W. Culp, deputy, shows that in executing a search warrant they visited the premises of the defendant, three miles south of El Reno, and searched the same. They found concealed in a straw stack near the defendant’s barn several barrels of mash, and over on the railroad right of way two barrels of mash, and across the right of way in a pasture they found a cooker. The sheriff testified that the mash was fit for distillation.

The affidavit and search warrant were introduced in evidence. The insufficiency of the affidavit upon which the search warrant issued, made on information and belief alone, and the invalidity of the search warrant, is confessed by the county attorney, and the court so held. The state rested and the defendants moved for directed verdicts in the form of a demurrer to the evidence, which was overruled.

At a witness in his own behalf, M. S. Robinson testified that he had lived in and around El Reno for the past 23 years, following his trade of paper hanger and painter; that he inherited from his father the east 80 that has the house and barn on it, and has lived there with his son James, codefendant, since last August; that his brother was living there when they threshed the straw, and the straw stack was' 160 yards from the bam, and the barn is 150 yards from the house. He denied any knowledge of the mash, and stated that he did not give any person permission to put it on his place; that he did not own or control the west 80.

James Robinson testified that his age was 19 years; that he and his father lived alone on the place; that he was there when the officers came; that he did not know anything about the mash found in the straw stack or on the railroad right of way; that the straw stack was about a quarter from the road.

Several witnesses, including the postmaster of El Reno, qualified as character witnesses, and each testified that he had known the defendant for at least 10 years, and that his reputation as to being a law-abiding citizen was good.

Mrs. A. J. McLaren, in rebuttal, testified:

“I live with my husband in El Reno. During the month of December, we drove three miles south of here to a yellow house with cedar trees around it; we drove into the front yard and stopped.”

Over the defendant’s objection she further testified:

“This boy, ‘James Robinson,’ came out to the car. My husband went around back with him, and stayed about 15 minutes, when they came back, and my husband had a quart of whisky, and I saw some change in his hand.
“Comes now the defendant M. S. Robinson and moves the court to strike all the testimony of this witness with reference to the transaction testified to and instruct the jury to disregard it as to defendant M. S. Robinson; the same being incompetent, irrelevant, prejudicial and not proper rebuttal.
“The Court: Overruled.”

She further testified—

“It was along about the 1st of December. I know the boy and I know the place. On Christmas Eve my husband went back and got some more.
“The Court: Objection sustained. The jury will disregard any other transaction other than one witness first stated.”

It is contended that the testimony of Mrs. McLaren was not admissible for any purpose^ for the reason that it tended to show other and different offenses than that charged in the information.

This prosecution was under section 1, c, 1, p. 1, Sess. Laws 1923, which declares:

“No mash, wort, or wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquor shall be made, fermented or possessed by any person,” etc.

Section 6 of said act provides:

“Any mash, wort, or wash, and any distillery found in any house, or building, or within any inclosure shall prima facie be deemed, in the case of mash, wort or wash, to have been made and fermented 'by, and in the case of a distillery to have been set up by, and to be the property of the person or persons who are in actual possession and control of the house, building or inclosure as the case may be; provided, further, that it shall be unlawful for any person to place any mash, wort, or wash, or any distillery or still on the premises of another.”

To justify or sustain a conviction under section 1, it is only necessary for the state to prove possession as charged in the information, and the evidence should have been confined to this inquiry. It is unnecessary to prove criminal intent. The general rule is that, when a defendant is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383. Evidence of an offense other than the orie charged is admissible only when it tends to prove the offense charged. To be competent and admissible, it must have some logical connection with the offense charged. Koontz v. State, 10 Okla. Cr. 553, 139 P. 843, Ann. Cas. 1916A, 689. Where a defendant is on trial for a specific offense, evidence of unrelated offenses is not admissible, unless relevant to the issue and tending to show motive or intent. Proctor v. State, 8 Okla. Cr. 537, 129 P. 77.

The state’s evidence in rebuttal was not pertinent to any issue and had no connection with the offense charged and was calculated to prejudice the jury against this defendant. The record further shows that the court refused to admonish the jury that this testimony was not admissible against this defendant.

For the error of the court in permitting irrelevant testimony, prejudicial to the defendant’s rights and interest, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JOHN TURKNETT v. STATE.
    No. A-5720.
    Opinion Filed April 9, 1927.
    (254 Pac. 985.)
    H. T. Church, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of having possession of intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

It appears from the record that defendant was operating a filling station and auto park near the town of Skiatook, and some 50 yards from the filling station and in the park was an 8-room residence house in which defendant and his family resided. An affidavit for search warrant was filed in the county court praying that a search warrant issue for:

“One filling station and auto park, known as Shady Grove Auto Park, located in N. W. corner of section 25, township 22 north, range 12 east, together with the curtilage thereof and appurtenances thereunto belonging. That said building is a private residence, and is used as a place of public resort and for the furnishing and storage of intoxicating liquor. * * *”

A search warrant was thereupon issued describing the property to be searched in the same words as the affidavit. Upon the authority of such search warrant the officers went to the filling station and searched it without finding any liquor, and also searched the park with a like result, and'then went to the residence for the purpose of searching. As they entered, a married daughter of defendant, who was visiting there, broke two jugs at the rear of the house. The officers thereupon examined the place where the jugs were broken and found a small quantity of liquid in a fragment of the jug, which they tasted and smelled. There is some conflict between the officers as to whether or not the jugs contained whisky, one officer testifying that he was unable to tell whether the jug contained beer, syrup or what; that it tasted sweet. Another officer testified that it was corn whisky.

If the search were legal and the evidence so procured admissible, it is sufficient to sustain the verdict. The only contention made that we consider has any merit is directed to the sufficiency of the description in the affidavit and warrant to authorize a search of the residence. Our statute requires that the place to. be searched shall be particularly described. Section 7012, Comp. Stat. 1921.

Reasonably construed the affidavit and warrant authorized the search of only the filling station and auto park. There was no claim nor any evidence that the filling station was used as a residence, and the language purporting to give authority to search the “curtilage and appurtenances thereunto belonging” has no meaning as applied to a filling station and park as such, since the word “curtilage” means the yard or court for the protection and security of the mansion house or the inclosure belonging to a dwelling house, and probably including the buildings occupied in connection with a dwelling house. 17 C. J. 437; Black’s Law Dictionary; Commonwealth v. Barney, 10 Cush. (Mass.) 480; Commonwealth v. Intoxicating Liquors, 140 Mass. 287, 3 N. E. 4; State v. Shaw, 31 Me. 523.

The words “said building” in the phrase, “that said building is a private residence and it is used as a place of public resort, * * *” as used in the affidavit and search warrant, has for its antecedent the words “filling station.” Neither the affidavit nor the warrant contain any authority for the search of the private residence house where the material evidence introduced was obtained. Authority to search a filling station does not carry with it authority to search a residence some 50 yards distant. Nor does authority to- search an auto park carry with it authority to search a residence occupied as such within such park.

In Cornelius on Search and Seizure (1926) c. 6, the matter of the sufficiency of the description is treated somewhat exhaustively, and many illustrations of insufficiency of description are presented and authorities cited which fully sustain the contention of defendant that the search of his residence was illegal.

The case is reversed and remanded.

DOYLE, P. J., and DAVENPORT, J., concur.


text:
    CONSENE CHUCULATE v. STATE.
    No. A-5812.
    Opinion Filed April 9, 1927.
    (254 Pac. 984.)
    E. B. Arnold and W. A. Woodruff, for appellant.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant, Consene Chuculate, was convicted of the crime of conducting a gambling game; the jury leaving the punishment to be assessed by the court. In due course a motion for new trial was interposed in his behalf and denied, whereupon judgment was pronounced, and appellant was sentenced to pay a fine of $500, and to serve a term of one year in the state penitentiary.

To reverse the judgment, appellant assigns various errors.

In response to appellant’s brief, the Attorney General has filed the following confession of error, which will be accepted as the opinion of the court:

“The Attorney General is loath to confess error in any case wherein it can be shown that the defendant has had the benefit of the laws and Constitution of this state, but, when the record shows that a defendant has not had these benefits, the Attorney General feels that it is his duty, after examination of the entire record, to confess error to the end that the law may be properly administered and persons charged with crime properly convicted by due process of law.
“The record shows that the defendant is a full-blood Indian, and neither speaks nor understands the English language; that the information herein was filed on the 28th day of February, 1925, and that the defendant was brought before the court on March 2, 1925, and duly arraigned, and that his plea of not guilty was duly recorded, and that thereafter, on the 7th day of March, 1925, the cause came on regularly to be tried before the honorable J. T. Parks, district judge, in and for the First judicial district of the state of Oklahoma, of which Adair county is a part; that the state appeared by Hon. W. A. Corley, county attorney, announced ready for trial; that the defendant appeared in person without attorney, and announced to the court, through the court clerk, as interpreter, that he was not ready for trial, but desired further time to secure an attorney; that the court found that the cause should proceed to trial, and thereupon the clerk directed to draw a jury. The record shows that the defendant took no part in the examination of the jurors, and took no part in questioning any witness, and that the county attorney asked witnesses leading questions almost exclusively; that, after the examination of the witnesses had begun, the court stated: ‘By the Court: I believe we had better interpret this to the defendant, so he can understand what is going on. Go ahead and ask him the name again, and Mr. Sixkiller can interpret it to him so he will know what is going on. Interpret the questions to him and the answer as given by the witness, so he will know what is going on.’
“Then followed the testimony of the various witnesses in which practically all questions were leading and suggestive.
“This court has repeatedly held that, where a person is charged with a felony, it is the duty of the court to appoint an attorney for the defendant in case he has no attorney, but in this instance the court failed so to do, though the defendant made a request for an attorney.
“If one is not able to understand the language in which a trial is conducted, and has no attorney, it is apparent that he would not be able under any theory to properly protect his rights before a court or jury. And this court, in the case of Mullen et al. v. State, 28 Okla. Cr. 218, 230 P. 285, in the fourth paragraph said: ‘The constitutional right to be heard by counsel is not limited to the right to be heard by counsel at the time of the trial. Every person accused of felony' is entitled to the benefit of counsel at every stage of the proceeding, whether imprisoned or admitted to bail.’
The court also held, in the fifth paragraph, as follows: ‘Where it appears on appeal that a defendant has been denied a right guaranteed by the Constitution, such showing requires a reversal unless the record clearly shows that the right was waived, or that no injury could have resulted to the accused by reason of such denial.’
“ In the case of Polk v. State, 26 Okla. 283, 224 P. 194, paragraph 1 of the syllabus, the court said: ‘Every person charged with crime, whether guilty or innocent, is entitled to a fair and impartial trial according to the due and orderly course of the law, and it is a duty resting upon the courts to see that the guaranty of such a trial, conferred by the laws upon every citizen, shall be upheld and sustained.’
“In paragraph 8 the court further said: ‘Under our laws every person accused of felony is entitled to aid of counsel at every stage of the proceedings, whether imprisoned or admitted to bail, and refusal of opportunity to procure such counsel amounts to a deprivation of a right essential to his safety.’
“The defendant herein, as shown by the ease-made, was not able to speak or understand the English language and this fact would make it imperative that some one should represent him, aside from the plain provisions of our Constitution, and, coupled, with the constitutional provision and the decisions of this court, it is apparent to the Attorney General that this case should be reversed and remanded to the district court of Adair county. Respectfully submitted.”

On the record before us we are convinced that appellant should have a new trial, and for the reasons stated in the foregoing confession of error, the judgment is reversed and the cause remanded for further proceedings in accordance with law.


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    CLAUDE C. NEWTON v. STATE.
    No. A-5697.
    Opinion Filed April 9, 1927.
    (254 Pac. 983.)

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

This appeal was filed July 14, 1925, and briefs have been filed in support of the appeal.

The plaintiff in error was charged with the crime of murder and convicted, and his punishment was fixed at life in the penitentiary at hard labor. Under the rules of this court, where an appeal is not supported by briefs, it is assumed that the appeal has been abandoned or is without merit. This court has examined the record and finds that the information sufficiently charges the offense, that the evidence supports the charge, that the instructions of the court were reasonably fair to plaintiff in error, that there were no- errors in the introduction of the testimony prejudicial to the rights of the plaintiff in error, and that the plaintiff was accorded a fair and impartial trial.

The judgment of the trial court is affirmed.

DOYLE, P. J., and EDWARDS, J., concur.


text:
    JOHN T. REEVES v. STATE.
    No. A-6206.
    Opinion Filed April 9, 1927.
    (255 Pac. 162.)
    Brett & Brett, H. A. Hicks, and Matson & Mathers, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of practicing medicine without a license, and his punishment fixed at a fine of $500.

The information charges that defendant, without having a license, did practice medicine by injecting a preparation of arsenic as a, treatment for syphilis into the veins of a certain patient.

It is first contended that the evidence is insufficient to sustain the verdict. The record discloses that defendant operated a sanitarium in the city of Ardmore; that the patient named went to the sanitarium, was examined by defendant, and informed that she had syphilis; that he undertook to treat her, and injected the drug into her arm as charged. There is sufficient competent evidence to reasonably sustain the allegations in the information. It is well settled that, where there is competent evidence, although it may be conflicting, reasonably tending to sustain the charge, the court should not sustain a demurrer, but the question of fact should be submitted to the jury, and their verdict will be binding. This rule is so well settled and supported by so many decisions that the citation of authority in support of it is superfluous.

The defendant next contends that the Medical Practice Act (Laws 1923, c. 59) is unconstitutional under the authority of Ex parte Pope, 33 Okla. Cr. 5, 242 P. 290. This contention was fully considered in the case of Reeves v. State, 36 Okla. Cr. 186, 253 P. 510, and decided adversely to the contention here made.

It is also argued that the act is unconstitutional under section 57, art. 5, of the Constitution, because the title of the act is insufficient. This contention cannot be sustained. See Ex parte Ambler, 11 Okla. Cr. 449, 148 P. 1061; State Board of Dental Examiners v. Pollock, 125 Okla. 170, 256 P. 927; Coulson v. State, 8 Okla. Cr. 403, 127 P. 1090; Wilson v. State, 8 Okla. Cr. 493, 129 P. 82; Gobin v. State, 9 Okla. Cr. 201, 131 P. 546, 44 L. R. A. (N. S.) 1089; Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066; State ex rel., etc., v. Board, etc., 31 Wash. 492, 72 P. 110.

There is some contention made that the court admitted incompetent evidence. This is directed to evidence that the medical treatment given by defendant was not a proper treatment, and that the evidence was not confined to the particular day alleged. This matter presents no such error as would in any manner tend to bring about a miscarriage of justice or that deprived defendant of any substantial right.

Finally, it is urged that the court erred in its instructions and in refusing instructions requested by defendant. Defendant asserts that he made certain requests for instructions which were in part indorsed “allowed” by the trial judge, and in part rejected, but that in making up his instructions as given he did not incorporate the instructions allowed, and did not permit counsel to read to the jury and comment on those requested which were marked “allowed.” An examination of the record discloses certain requested instructions, a part of which are marked “allowed” and signed by the trial judge, and a part marked “rejected” and signed by the trial judge. No exceptions are shown on those marked rejected. Those marked “allowed” are not incorporated in the instructions given, although the substance of a part of them is incorporated in the court’s charge. The record does not disclose any exception to the court’s failure to incorporate these instructions in his charge nor any request that they be incorporated. The only manner in which this irregularity is shown is the statement in the motion for a new trial that the court erred in refusing to permit defendant’s counsel to read the defendant’s requested instructions to the jury. This is not sufficient. The record must affirmatively show the error complained of, and that it was substantially prejudicial. A recital in the motion for a new trial will not supply a showing required by the record. Redden v. State, 22 Okla. Cr. 179, 210 P. 556; Underwood v. State, 23 Okla. Cr. 119, 212 P. 1010; Munson v. State, 13 Okla. Cr. 569, 165 P. 1162.

The information charges a violation of the law in a particular manner by the injection of drugs into the veins. The instructions tell the jury that they must find defendant guilty as charged before they will ibe warranted in returning a verdict against him. There was evidence of only one offense as charged by the injection of a drug, and, while there was evidence of things done at other times by defendant tending to prove a practice of medicine in a different manner, none of them refer to the practice of medicine by the injection of a drug into the arm as charged in the information. These other matters referred to simply tended to cast light upon the offense charged, and for this purpose they were admissible. State v. Rule, 11 Okla. Cr. 237, 144 P. 807, and authorities cited.

The case is affirmed.

DOYLE, P. J., and DAVENPORT, J., concur.