text:
    ROY MORRIS v. STATE.
    No. A-9518.
    June 30, 1939.
    (92 P. 2d 610.)

      Gerald Spencer, of Chickasha, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   DAVENPORT, J.

By information the defendant was jointly charged with his wife, Mrs. Roy Morris, in the county court of Grady county with the unlawful possession of intoxicating liquors, the same being liquor that contained more than 3.2 per cent, alcohol, measured by weight, and being capable of being used as beverage.

Mrs. Roy Morris was acquitted by the jury. The defendant Roy Morris was convicted, and sentenced to pay a fine of $250, and to be confined in the county jail for 90 days. From the judgment and sentence, the defendant Roy Morris has appealed.

The substance of the testimony in this case is as follows:

H. W. Enos and Bert Huddleston, patrol officers, were on Highway No. 81, south of Chickasha, and testified they saw the car in which the defendant, his wife, and small son were riding, coming toward Chickasha, and it had only one headlight. They stopped the car, checked it, and gave them a ticket to have the light fixed within 48 hours. The parties went on, and the two witnesses named herein turned their car around and followed them.

The defendants stopped at a filling station near Chick-asha to have their lights corrected. These officers followed them back to where they stopped, and testified that in driving along the highway, the defendant’s car would swing back and forth from one side of the road to the other. There is no testimony by the state that any one was coming, meeting the car of the defendants, or was trying to pass, or passing the defendants’ car, nor is there any testimony offered by the state showing the driving of the defendants’ car, as the proof shows, by Mrs. Roy Morris, endangered the life of any one on the highway.

The testimony shows by the two officers that when the defendants stopped at the garage or the place to have the headlights fixed, they had followed the defendants, and drove up by the side of the defendants’ car, and wanted to know why the car had been driven from one side of the road to the other. Mrs. Morris informed them that the baby boy was in her lap, and she was trying to roll up the window, was the cause of the passing from one side of the road to the other, if it did swing back from one side of the road to the other.

The defendant Roy Morris was sitting in the car, as shown by the record. No complaint is made that he was disturbing anybody’s peace or that Mrs. Morris was disturbing anybody’s peace, or that any arrest was made for any violation of the traffic laws of the state. But the officers testifying say after they talked with Mr. Morris, they smelled whisky on his breath, and had him get out of the car to ascertain if it was whisky.

The parties state that the car the defendants were driving was a 1936 Chevrolet.

One of the officers said that he asked the defendant Roy Morris to get out of the car, that he wanted to see whether or not he was drunk, and that Morris got out. The officer then contends that when Morris got out, he looked in the door of the car, and saw a bottle of whisky in the rear on the floor, back of the front seat of the car. There were no lights in the car, and the officers had no flashlight, yet he claims that he could see in the car, back of the seat, where the packages were on the floor, and could tell that he saw whisky. There was a light out somewhere in front or around the garage which he claims enabled him to see in the car.

The officers offer no excuse or justification for them demanding that the defendant Roy Morris get out of the car, or that they had any right to demand him to get out of the car. They admit they had no warrant for his arrest, or to search his person or his car at the time they demanded him to get out of the car.

The foregoing is the substance of the testimony, and clearly shows that while the officers found whisky in the car, they forced the defendant to get out of his car, and made a search of it without any lawful authority or justification.

It is an unreasonable statement for an officer to say that at night without any light in the car and no flashlight, he can look in the car through the front door in a Chevrolet, and see what is on the floor of the car, back of the front seat.

The defendant in his petition in error has assigned five errors, alleged to have been committed by the trial court:

“1. That the court erred in overruling a motion to suppress the evidence.

“2. That the court erred in admitting incompetent, irrelevant, and immaterial testimony.

“3. That the evidence is wholly insufficient to show that the defendant committed a public offense against the laws of the state of Oklahoma.

“4. That the court erred in not directing the jury to return a verdict of not guilty pursuant to a motion and request of defendant filed at the close of all evidence. '

“5. That the seizure of the whisky in this case was absolutely illegal and in contravention of the constitutional rights of the defendant, that no search warrant was issued as required by law.”

All these assignments will be considered together as they relate to the question as to whether or not the officers made an illegal search and seizure.

No brief has been filed on behalf of the state.

The defendant has fully briefed his case, and insists that the search by the officers was without authority of law; that they had no warrant to search his car or to search his person; and had no authority to compel him to get out of the car when he was peaceably sitting therein awaiting the repair of his headlights.

Section 2780, O. S. 1931, 22 Okla. St. Ann. § 196, provides in part:

“A peace officer may, without a warrant, arrest a person:
“1. For a public offense, committed or attempted in his presence.
“2. When the person arrested has committed a felony, although not in his presence.”

In this case the defendant was convicted for the commission of a misdemeanor, and while the officer did not state, it is apparent that the only ground upon which they could have arrested the defendant without a warrant was that an offense was committed within the presence of the officers.

It has been repeatedly held by this court that where the officers do not know of the act constituting the offense, the offense is not committed in their presence.

“Search,” as defined in Black’s Law Dictionary, is as follows:
“An examination of a man’s house or other buildings or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he is charged.”

In Whitford v. State, 35 Okla. Cr. 22, 247 P. 424, 425, this court said:

“No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.”

In the Whitford Case, as in this case, the officers forced the defendant to get out of the car, and searched the automobile upon the suspicion that there was whisky concealed therein.

In Crossman v. State, 28 Okla. Cr. 198, 230 P. 291, 292, the defendant was convicted for transporting liquor. The arresting officer stepped out of the car and told the defendant Crossman to stop. The defendant stooped down as if to hide, and the officer saw the outline of a bottle in the defendant’s shirt and took the bottle of whisky from the defendant’s shirt, which constituted unlawful search and seizure.

Quoting from Crossman v. State, supra, in the body of the opinion the court said:

“It seems clear that the defendant was arrested on suspicion merely; that the officer saw the imprint of a bulky article inside of the defendant’s shirt, but c[id not know what the article was until he had forcibly searched the man and seized the package which he afterwards ascertained to be whisky. * * *
“In this case the officer’s suspicion was verified by the subsequent arrest and seizure, but that result would not always follow in other cases. The grave effects of promiscuous arrests and seizures on suspicion in misdemeanor cases would be productive of more evil that could be offset by the good flowing from the occasional apprehension of a law violator by such methods.” Graham et al. v. State, 31 Okla. Cr. 125, 237 P. 462; Klein v. State, 26 Okla. Cr. 173, 223 P. 201.

In Condron et al. v. State, 31 Okla. Cr. 130, 237 P. 465, an officer stopped a service car on the highway being driven by the defendant. A state’s witness testified that the defendant’s father owned the car, and that they stopped in a ravine and got the whisky, which was confiscated, and were driving back when it was searched without a search warrant.

In the opinion the court said:

“It has been repeatedly held by this court that, where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence, and that, where the officer does not know of the act constituting the offense, it is not committed in his presence.” Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Foster v. State, 25 Okla. Cr. 36, 218 P. 898; Thomas et al. v. State, 32 Okla. Cr. 57, 240 P. 133; Wright v. State, 52 Okla. Cr. 393, 5 P. 2d 766.

In the Wright Case the officers stopped the car in which the defendant was riding and searched the car, finding whisky in the back seat. The officers had no search warrant to search the car or for the arrest of the defendant. This court held that such search was unreasonable and contrary to section 30, article 2, of the Bill of Rights, Okla. St. Ann. Const., and was improperly received in evidence against the defendant; that the motion of the defendant to suppress was well taken; and the court erred in not permitting the defendant to produce testimony in support of his motion to suppress, and in overruling the same.

In Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135, 139, this court clearly defines the rights of the officers and the accused wherein the question of search and seizure is involved. The court stated as follows:

“The officers of this state ought to be the first to uphold the courts in the enforcement of these fundamental rights. The procuring of a search warrant is an easy matter. It ought not to be secured in a haphazard way and served in a reckless disregard of the rights of the individual citizen.”

In H. P. Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603, we held that the evidence challenged in that case was secured by the officer by unlawful search and seizure, and was improperly received in evidence against the defendant. The facts in Morris v. State, supra, are very similar to the facts in this case. Keith v. State, 30 Okla. Cr. 168, 235 P. 631; Ingraham v. State, 48 Okla. Cr. 178, 290 P. 344; Bowen v. State, 50 Okla. Cr. 36, 295 P. 623; Wright v. State, 52 Okla. 393, 5 P. 2d 766.

The defendant’s conviction, having no evidence to support it, without the use of the evidence unlawfully obtained, the case must be reversed.

The judgment of the trial court is reversed, and the cause remanded.

DOYLE, P. J., concurs. BAREFOOT, J., dissents.

BAREFOOT, J.

(dissenting). My views on the search of automobiles without a search warrant are expressed in the case of Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603.

The facts in this case are much weaker than in the Morris Case.


source: Caselaw Access Project

author: DOYLE, P. J.

license: Public Domain

text:
    GRANVILLE STUMP v. STATE.
    No. A-9504.
    June 30, 1939.
    (92 P. 2d 616.)

      H. M. Shirley, of Coalgate, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted in the county court of Coal county on a charge that he did have in his possession about one and one-half gallons of whisky, with the unlawful intent to sell the same.

Motion for a new trial was duly filed and overruled. The judgment was rendered in accordance with the verdict of the jury October 29, 1937, and the defendant was sentenced to be confined in the county jail for 30 days and to pay a fine of $50.

The evidence shows that the defendant lived with his family on section 25, township 3, north of range 11 east; that Walter Clark, sheriff, and C. C. West, a deputy sheriff, in executing a search warrant, describing the place to be searched as above stated, found about one and one-half gallons of whisky on said section.

Sheriff Clark testified:

“I went to his residence with a search warrant, and asked Mrs. Stump if Granville Stump was there; she said no. I served a copy of the warrant on her. I searched the house, a three-room box house, and did not find any liquor. I searched a crib or log barn east of the house and found one quart in a ten-gallon can. I found a half gallon of whisky buried in the garden, north of the house.”

On cross-examination he testified:

“Q. Do you know, of your own knowledge, whether this barn was the barn of Granville Stump or somebody else? A. I would not swear positively, only about the trail going up to the barn; looked like whoever lived at the house might be using the barn. Q. Do you know what section that was in? A. I don’t remember; the county attorney prepared the search warrant. Q. Are you aware about 24 men own property in that section? A. No, sir. Q. That there are other houses and tenants in the section? A. Might be.”

C. C. West, deputy sheriff, testified that on December 20, 1936, he went with Sheriff Clark and searched the premises and found a half gallon of whisky in a garden and a gallon in the barn east of the house.

When the state rested the defendant moved the court to strike the testimony for the reason that the search warrant is not sufficient and is void upon its face. Overruled.

As a witness in his own behalf the defendant testified that he lived with his wife, his two sons and three stepsons, all grown; that the whisky found in that barn and in the garden was not his whisky; that the garden was not included in his tenancy; that his brother, A. J. Stump, had control of the garden and the log barn where the officers found the whisky; that he had a crop of 15 or 20 acres on the section and his garden was west of the house. Asked: “Do you know how that whisky got there? If you know who put it there, and if you don’t know, just say so?” Answered: “I do not know who put it there.” On cross-examination he testified that his barn is west of his house, and the barn east of the house, a log crib, 14 feet square, is his brother’s; that he never used it since he has been on the place; that the barn west of his house is the only barn he ever used.

Joe Featherston testified that he knew A. J. Stump, defendant’s brother, and sold him 36 peach trees that he set out in the garden north of the house; that the defendant used and had corn in the barn west of the house; that he bought 30 bushels of corn, this year’s crop, from the defendant and defendant and his brother helped him to weigh it out of the barn west of the house; that he was acquainted with the general reputation of the defendant in the community where he resides as to being a good law-abiding citizen, and that reputation was good. On cross-examination, he testified that he lives three miles southeast of the defendant and has lived there 40 years.

Phillip Watkins, deputy county clerk of Coal county, testified: “I have the record of different persons owning land in section 25, township 3, north of range 11 east,” and read from the record the names of the different owners of land on said section.

The first contention made is that the court erred in overruling the motion to suppress the evidence, for the reason that the search warrant described a whole section of land; that there are 11 different landowners in the section, therefore the affidavit and search warrant were not sufficient as required by law.

An affidavit for search warrant for the search of an entire section of land is in violation of section 30, art. 2, of the state Constitution. Okla. St. Ann. Const. Hall v. State, 34 Okla. Cr. 334, 246 P. 642; Brandt v. State, 34 Okla. Cr. 400, 246 P. 1106; Cummings v. State, 32 Okla. Cr. 274, 240 P. 1078; Daniels v. State, 32 Okla. Cr. 426, 241 P. 836.

However, the right to question the validity of a search warrant, under which certain premises have been searched, is personal to the occupant of the premises.

In Klaber v. State, 35 Okla. Cr. 238, 250 P. 142, this court held :

“The right to immunity from the consequences of an illegal search and seizure belongs only to the person, effects, and premises of the accused, and he has no right to complain of the officer’s trespass upon the premises of a stranger.”

In Williams v. State, 35 Okla. Cr. 171, 249 P. 433, this court held:

“The immunity guaranteed by the Constitution against unreasonable searches is personal. An accused will not be heard to object that a search of the premises of some third person is a violation of the constitutional inhibition.”

It follows that the court did not err in overruling the defendant’s motion to strike the state’s evidence.

The next contention is that the verdict and judgment of conviction are contrary to law and to the evidence.

To justify or sustain a conviction of having possession of intoxicating liquor with intent to violate any of the provisions of the Prohibition Enforcement Act, there must be evidence sufficient to prove possession, and also evidence of a criminal intent. Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869.

The possession without an intent to sell or convey does not constitute an offense any more than an intent to sell or convey without possession would constitute an offense. Haltom v. State, 58 Okla. Cr. 117, 50 P. 2d 744; Hull v. State, 61 Okla. Cr. 12, 65 P. 2d 423. Knighton v. State, 64 Okla. Cr. 322, 79 P. 2d 1030.

This conviction rests solely upon circumstantial evidence. There is no direct evidence that the crib or barn, where the gallon of whisky was found, or the garden where the half gallon was found, was in the possession of or occupied by this defendant. And the fact that this defendant did not have possession of the barn and said garden, as shown by the testimony on the part of the defense, was not contradicted. The record shows that there were no exceptions taken to any of the instructions given by the court.

The court did not instruct the jury upon the law of circumstantial evidence.

An erroneous instruction, unless fundamentally wrong, and prejudicial to the rights of a defendant, will not be ground for reversal, unless excepted to at the time of trial as directed by law.

Where the state relies solely upon circumstantial evidence, as in this case, the court should always instruct upon the nature of circumstantial evidence. And where the charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the defendant’s guilt, but inconsistent with any other rational conclusion.

In the instant case no instruction on this phase of the evidence was requested, and the failure to so instruct the jury is not necessarily reversible error.

The court in its instructions attempts to give effect to that part of the statute (sec. 2626, St. 1931, as amended Session Laws 1933, ch. 153, sec. 3, p. 339, 37 Okla. St. Ann. §82) which in part provides: “The keeping, in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor, or any liquor or compounds of any kind or description whatsoever, whether medicated or not, which contain more than three and two-tenths (3.2%) per cent, of alcohol, measured by weight and which is capable of being used as a beverage, * * * shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors,” by giving instruction No. 6, as follows:

“You are instructed, that if you find from the evidence beyond a reasonable doubt, that the defendant herein did on or about the date alleged in the information or any time within three years prior to the filing of the information, have in his possession any spirituous, vinous, fermented or malt liquors or imitation thereof, or substitute therefor; or any liquor or compound of any kind or description, whether medicated or not, which contains more than three and two-tenths (3.2%) per cent, of alcohol, measured by weight and which is capable of being used as a beverage; whisky is presumed to be intoxicating and needs no further proof, then and in that event it will be your duty to convict the defendant, otherwise you will acquit him.”

This instruction was not a correct statement of the law and was fundamentally wrong.

With what intent a person keeps intoxicating liquors is always a question of fact for the jury, to be determined upon consideration of the evidence. In the determination of that question, they are required by the statute to consider the keeping of a certain amount of intoxicating liquors as prima facie evidence of an unlawful intent. But that evidence may be rebutted by other evidence in the case, whether shown by evidence on the part of the defense, or by the state in connection with the evidence proving the possession. With such evidence the jury must also take into consideration the presumption of the innocence of the defendant, until the contrary is proved beyond a reasonable doubt. Caffee v. State, 11 Okla. Cr. 485, 486, 148 P. 680.

In the case of Klaber v. State, supra, it is said:

“This instruction was erroneous, amounting to the shifting of the burden of proof to the defendants. Assuming that possession of the whisky by the defendants was proved, there were two presumptions for the consideration of the jury, the presumption of innocence, and a contrary statutory presumption or inference arising from the possession of an excessive quantity. In the case of Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071, it was held that an instruction like this was reversible error. The evidence in its entirety, including all of the presumptions should, as a whole, be submitted to the jury.”

In the case of Walton v. State, 53 Okla. Cr. 24, 3 P. 2d 212, 213, it is said:

“Instructions similar to the one here complained of have been held prejudicially erroneous in several cases. Wilson v. State, 11 Okla. Cr. 510, 148 P. 823; Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071; Huff v. State, 12 Okla. Cr. 138, 152 P. 464; Beal v. State, 12 Okla. Cr. 157, 152 P. 808; Langham v. State, 25 Okla. Cr. 33, 218 P. 897.”

See, also, Stites v. State, 44 Okla. Cr. 92, 279 P. 911.

See Smith v. State, 62 Okla. Cr. 33, 69 P. 2d 671; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900; Morse v. State, 63 Okla. Cr. 445, 77 P. 2d 757; Knighton v. State, supra.

Before a jury is authorized to find a defendant guilty, there must be evidence sufficient to show that the offense charged was committed and to identify the defendant with the commission of it as charged in the information.

No man ought to be convicted of a crime upon mere suspicion, or because he may have had an opportunity to commit it, or even because of bad character, and where circumstances are relied on for a conviction, they ought to be of such a character as to negative every reasonable hypothesis except that of the defendant’s guilt.

When we recall the presumption that the law always indulges as to the innocence of the defendant, and the necessity of establishing his guilt beyond a reasonable doubt, we think it would have been a proper exercise of the power vested in the trial court to have advised the acquittal of the defendant on the ground that the evidence was insufficient to warrant a conviction.

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

BAREFOOT and DAVENPORT, JJ., concur.


text:
    LOWERY LEE et al. v. STATE.
    No. A-9451.
    July 7, 1939.
    (92 P. 2d 621.)

      Kenneth B. Kienzle, of Shawnee, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error, hereinafter to be called the defendants, Lowery Lee and J. S. Mitchell, were tried and convicted upon an information in substance charging that in Pottawatomie county, on or about the 2nd day of July, 1937, they did willfully have in their possession 190 pints of whisky, with the unlawful intent to sell the same.

Motion for new trial was duly filed and overruled; thereupon the court rendered judgment in conformity to the verdict of the jury and sentenced each defendant to confinement in the county jail for 60 days and to pay a fine of $200 and the costs.

From the judgments they appealed by filing in this court on February 8, 1938, a petition in error with case-made attached.

The errors assigned are based on exceptions taken to rulings of the court in the admission and rejection of testimony, but the principal ground urged for reversal of the judgments is that the court erred in overruling the defendants’ motion to suppress the evidence.

The undisputed facts are that on the day alleged, about 6 o’clock p. m., the defendants were arrested on the highway about 3 or 4 miles east of Asher; their car was going westward when stopped by the officers. The search of the car and seizure of the liquor were made by Sheriff Evans, Deputy Sheriff Frazier, and Van Price, city marshal of Tecumseh. The officers found 190 pints of whisky in the car.

Before the trial a motion was made by the defendants to suppress the evidence on the ground that the search and seizure, without a search warrant, were in violation of sections 21 and 30 of the Bill of Rights. Okla. St. Ann. Const. art. 2, §§ 21, 30.

In support of the motion to suppress, defendant Mitchell testified:

“I was arrested on the 2nd day of July, 1937 on the highway between here and Ada; I was driving an automobile, Mr. Lee was with me. The sheriff stopped us and wanted to search the car, I demanded a search warrant, he said he did not have any, I told him he could not search it. And he said, T will arrest you then.’ The sheriff did not give any reason for placing me under arrest.”

The defendant Lowery Lee testified:

“I was in this automobile; I did not agree or consent to any search of the car by the officers.”

On behalf of the state, Elza Evans, sheriff of Pottawatomie county, testified:

“I saw these defendants in a car on the highway, 3 or 4 miles east of Asher; Mark Frazier, a deputy sheriff, and V. T. Price, marshal of Tecumseh, were with me. The defendants were driving around 60 to 65 miles an hour and the car was swaying from side to side of the road; when they came to where I was I stopped their car and arrested them for reckless driving, I then searched their car, and found 190 pints of tax-paid whisky in the trunk of the car.”

On cross-examination he stated:

“I stopped them with a shotgun, I never saw either one of them before; I had a call from the police department at Ada of a stolen car with two men in it, and that was the reason I was there, I did not call to Ada and order this whisky brought over here, I don’t know of anyone that called; I had the description of the kind of car these men might be in and it described the car they were in. I arrested them for reckless and fast driving; I did not have any knowledge then of any calls made from the sheriff’s office in-Shawnee to the defendant Lowery Lee at Ada, if any one called I do not know anything about it.”

In rebuttal, Lena Kellum testified:

“I live about 6 miles southeast of Asher, on July 2, 1937, between 5 and 6 o’clock in the evening I saw some men arrested on the road between Asher and Konawa; I had been to Konawa shopping and was returning home, Mr. By Barrett was with me in the car, I saw some men on the road there with guns and I saw the car these two men were driving; they passed us just before they got to where they were stopped; I was driving between 15 and 30 miles an hour; I have been driving about a year and I am able to judge the speed of an automobile, and these two men when they passed me in their car were driving 25 or 30 miles an hour; I did not observe anything unusual in their driving.”

At the close of the hearing the court overruled the motion to suppress. The defendants and each of them took an exception.

In our opinion the proof shows that the defendants were legally arrested and the court correctly ruled that the motion to suppress the evidence obtained by the search and seizure should be overruled.

It is well settled that when a man is legally arrested for an offense, what is found upon his person, or in his control, which it is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution. Griffin v. State, 57 Okla. Cr. 176, 46 P. 2d 382.

Upon the trial the defendants sought to interpose the defense of entrapment.

The testimony of the first witness for the state, Sheriff Evans, was in substance the same as his testimony upon the motion to suppress. His cross-examination was in part as follows:

“Q. Is it not a fact, Mr. Evans, that on the 2nd day of July, 1937, about 2 o’clock in the afternoon, that your phone down here in the sheriff’s office was used to put in a long-distance call to Ada to No. 2168 at Ada, to order a load of liquor brought into Pottawatomie county?”

State’s objections sustained.

“Q. I will ask you this: If it is not a fact, Mr. Evans, that you or some of your deputies or some one under your direction ordered this particular load of whisky brought into this county?”

State’s objections sustained.

Mark Frazier, deputy sheriff, testified that he saw the defendants on the date alleged on the Konawa road, east of Asher. Sheriff Evans and Mr. Price, marshal of Tecumseh, were with him. Sheriff Evans stopped the automobile they were traveling in, and arrested the defendants, then they searched their car and found 190 pints of tax-paid liquor in the car. His cross-examination was in part as follows:

“Q. Isn’t it a fact, or is it within your knowledge at least, that somebody used the sheriff’s phone in the sheriff’s office, No. 222, and put in a long distance call to Ada, Okla., and ordered this particular load of liquor brought over here, and that they used the name of Shorty Coleson, and that this order was placed on the 2nd day of July, 1937, at 2 o’clock in the afternoon?”

State’s objections sustained. Exceptions.

At the close of the evidence for the state, the defendants interposed a demurrer to the same, and moved the court to direct the jury to return a verdict of not guilty, for the reason that the state’s evidence is insufficent to sustain the allegations of the information. Which was overruled. Exceptions.

The defendants did not testify. The only witness called on their behalf was Grace Lee Moore, who testified: “I live at Ada, and work for the defendant, Mr. Mitchell, his phone number is 2168.” Asked if whether or not on the 29th day of June, she received a long-distance call there for the defendant, Lowery Lee. State’s objection sustained. Exception. Asked: “Did you have occasion to trace any of the calls that Lowery Lee received on the 29th day of June, or the 2nd day of July, 1937?” State’s objection sustained. Exceptions.

Thereupon the defendants made the following profert of proof:

“Mr. Kienzle: Comes now the defendants and each of them and offer to prove by this witness and by other competent evidence that the defendant Lowery Lee received a long-distance telephone call on the 29th day of June, 1937, that the call was traced and that it came from the sheriff’s office at Shawnee, Okla.; and we further offer to prove that the same Lowery Lee received another long-distance telephone call on the 2nd day of July, 1937, about 2 o’clock in the afternoon, and that call was later traced and was found to come from the sheriff’s office at Shawnee, Okla., and we further offer to prove that in this conversation that was had over long-distance some party in Shawnee, at telephone No. 222, which is the telephone of the sheriff’s office here in Shawnee, ordered this particular load of whisky, and had these defendants bring this load of whisky into Pottawatomie county from Pontotoc county, Okla.; and we offer to show thereby the defendants and each of them were entrapped and enticed into violating the prohibitory laws of this state. Mr. Albert: To all of which the state objects for the reason it is incompetent, irrelevant and immaterial as to how or why said defendant and each of them came into said Pottawatomie county, Okla. The only material question being whether or not the defendants had possession of the whisky as alleged in the information. The Court: Objection sustained. Mr. Kienzle: Exception. We rest.”

“Entrapment” is the planning of an offense by an officer and his procurement by improper inducement of its commission by one who would not have perpetrated it except for the trickery or fraud of the officer.

It is stated in 15 Am. Jur., Criminal Law, sec. 335:

“In view of the well-known facts that criminals usually work in secrecy and that some unlawful practices are encouraged and protected by a large class of citizens, it often becomes necessary to resort to various artifices in order to enforce the law and punish its violation. It is not ordinarily permissible for any person, in order to secure the conviction of another on a criminal charge, to procure him to do the act. But there is a very clear distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of criminal designs of his own conception. It may therefore be stated as a general rule that where the doing of a particular act is a crime regardless of the consent of any one, the courts are agreed that if the criminal intent originates in the mind of the accused and the criminal offense is complete, the fact that an opportunity is furnished or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor constitutes no defense.” Annotation: 18 A.L.R. 146; 66 A.L.R. 479, and 86 A.L.R. 264; Ann. Cas. 1916 C, 732.

The fact that officers or employees of the government merely afford opportunities or facilities for the commission of an offense does not defeat a prosecution therefor. Sorrells v. United States, 287 U. S. 435, 53 S. Ct. 210, 77 L. Ed. 413, 86 A.L.R. 249.

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

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

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

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

In the case of Stanley v. State, 25 Okla. Cr. 195, 219 P. 734, syllabus No. 1, is as follows:

“Ordinarily, it is not against public policy for private detectives and officers to set a trap for one suspected of planning the commission of a crime; and if he commits the crime, even though aided or encouraged by the officers or detectives who laid the trap, the fact that he was so entrapped will be no defense.
“(a) This rule will not apply, however, where a detective proposes a robbery, and is himself the chief moving actor in the forcible taking of the property. To hold the aiding offender criminally responsible, he must have participated in every ingredient of the offense charged.”

In the case of Stevens v. State, 51 Okla. Cr. 451, 2 P. 2d 282, 283, it is said:

“One of the main questions urged by the defendant is that the prosecuting witnesses were promised immunity for the whisky they had if they would assist the officers in entrapping the defendant. The defendant urges that the law of entrapment is a good defense in a criminal action and cites, in support of his contention, Warren et al. v. State, 35 Okla. Cr. 430, 251 P. 101. Paragraph 2 of the syllabus is as follows:
“ ‘Where one is charged with a crime and defends on the theory that the acts constituting an essential element of the alleged offense were instigated by officials or persons acting under their direction, the test of criminality is, Did the officers or those acting under them first suggest the commission of the criminal act or lure the accused into the commission of such acts or perform any of the essential acts constituting the offense? If so, a sound public policy will not uphold a conviction. But, if the first suggestion for the commission of the crime came from the defendant, and all of the essential acts constituting the crime were done by him, then the fact that the officers or those acting under them, for the purpose of entrapment, furnished an opportunity and lent aid to the commission of the offense less than the performing of some essential act constituting the offense, or were present with and apparently assisting in the commission of the crime, constitutes no defense.’ ”

Whatever may be the general rule in regard to the effect upon the right to convict a defendant who has been entrapped into the commission of a crime, it is generally held to have no application to cases involving the sale or transportation of intoxicating liquors or other violations of the prohibitory laws. In this class of cases criminal intent is not as a rule a necessary element and need not be shown. Annotation 18 A.L.R. 162.

It follows from what has been said and the authorities cited that the trial court did not err in sustaining the objections interposed by the state to the questions asked on cross-examination of the two state’s witnesses, and did not err in sustaining the state’s objections to the profert of proof made on the part of the defendants, because on the undisputed facts the defense of entrapment sought to be interposed constituted no defense.

No other reason for reversing the judgments appealed from being urged, and it appearing that the defendants had a lawful and fair trial and were properly convicted, the judgments appealed from should be affirmed. It is so ordered.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    FRED SMITH et al. v. STATE.
    No. A-9491.
    July 7, 1939.
    (92 P. 2d 582.)

      Frank Leslie, of Tulsa, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiffs in error, hereinafter to be called the defendants, Fred Smith and Bernice Mosier, were tried and convicted upon information in substance charging that in Tulsa county, on the 9th day of October, 1937, they did forcibly, conjointly, and feloniously take, steal, and carry away from the immediate presence and person of one Monte Bridges one black billfold, containing $42, being the property of Monte Bridges, said taking being accomplished by said defendants by means of force and fear, in that the said defendants did then and there conjointly and feloniously threaten to do said Monte Bridges great bodily harm, with a certain blunt instrument, then and there had and held in the hands of said defendants, all with the felonious intent on the part of said defendants, and each of them to deprive the owner of the property aforesaid permanently and to convert the same to their own use and benefit.

The jury by their verdict found the defendants “guilty of having committed the crime of conjoint robbery as charged in the information herein and fix their punishment at imprisonment in the state penitentiary for the term of ten years.”

Motion for new trial was duly filed and overruled on November 29, 1987; thereupon the court rendered judgment and sentenced each defendant in conformity to the verdict. From the judgment they appealed by filing in this court, on April 14, 1938, petition in error with case-made.

The principal ground urged for a reversal of the judgment is that the verdict is contrary to law and is not supported by sufficient evidence.

The testimony in the case was substantially as follows:

Monte Bridges, the complaining witness, testified he lives at Sapulpa; that he came from Ponca City to Tulsa the night he lost his money, and went to a restaurant at First and Main, called for a sandwich and beer and saw this man and woman in there (indicating the defendants) ; that he said he had to go to Carbondale and would have to catch a taxi. They asked how much it would cost, and he said 40 cents, and they said “We will take you out there.” He said, “That will suit me, let’s go,” and he got in a car; the lady sat between them. When they got to Redfork, the man stopped the car, got out, and came around to his side and opened the door, jerked him out and hit him; they ran around the car, the man struck him and grabbed his billfold from his hip pocket and ran to the car and drove away; that he had $42 in the billfold; that he did not know what the man hit him with; that he did not consent for them to take his money; that the woman did not get out of the car; that he telephoned the police station; when the police came he went back to the restaurant on East First street with them. After the policeman talked to the people there, they went across the street and upstairs and found the man and woman there in a room.

On cross-examination he stated that he might have been half drunk; that for the past week he has been in jail down at Sapulpa for being drunk; that when he inquired about going to Carbondale, the man told him he would take him; that the lady did not say she would take him any place.

F. H. Blackstone testified that his home is in West-plains, Mo., but he was in Tulsa on October 9, 1937, and was stopping at Mrs. Bernice Mosier’s rooming house; that the two defendants asked him for the use of his car that evening. Smith said he was going out to see a man and borrow some money, and would be gone about 30 minutes. It was then about 7:30. It was about 2 or 2:30 in the morning when they came back. Smith came back to his room, woke him up and told him to come to the front room. Smith had a billfold in his hand at the time and he noticed a five- and a ten-dollar bill and some ones in it. About that time the police knocked at the door; Smith opened the door; that he saw the billfold a few minutes before the police came in.

On cross-examination, asked if he did not go to the county jail not less than 15 times, and each time told Mrs. Mosier if she didn’t give him his clothes he was going to convict her? Answered: “I think I was at the county jail three times.” Asked, if he told Mrs. Sanders, Mrs. Mosier’s sister, that if he got his clothes he would leave the city, answered: “No, sir.” Asked: “Didn’t you go to Westplains, Mo., thinking you would get ten cents a mile to testify?” Answered, “Yes, and I told the gentleman before I went I was going.”

C. E. Tucker testified that he was a member of the police force; that in a conversation with Monte Bridges, the complaining witness, that night he said that he had been slugged, hi-jacked and robbed, and he went with him to the restaurant, then they told him where the defendants stayed and with officer Selby he went over there, knocked on the door, and nobody seemed to answer for 4 or 5 minutes, then he threatened to kick in the door if they did not open it; when they opened the door the complaining witness identified the . defendants, saying there is the man that robbed me and there is the woman; that they searched the defendant Smith and found a billfold on him and 20 or 30 cents; there was no money in the billfold; they then put him in the scout car and took him to the police station.

A. L. Selby testified that he was a police officer and went with Officer Tucker to answer a call to Redfork that night. They talked to Monte Bridges and went with him to Lee’s Cafe, 5 East First street. There they were told where to find the people Bridges drove off with. They went across the street and upstairs, knocked at the door, some one said, “Just a minute.” Officer Tucker told them to open the door or he would kick it in. When they went in Bridges said, “That is the man,” pointing to defendant Smith, and pointed to the woman and said, “There is the lady.” At the police station Smith said he wanted to go back to his room to change his clothes, so they went to his room with him; he had a billfold in his shirt pocket; when they returned to the station he asked Smith for the billfold, but it was gone.

The state’s evidence was here concluded. The defendants thereupon interposed a demurrer to the evidence, which was overruled. Exceptions.

On behalf of the defendants, Laura Hubbard testified that she lives at 110 South Denver, and had lived in Tulsa about 25 years, having known Mrs. Bernice Mosier for more than 20 years, and knew Fred Smith; that they came to her home on the night of October 8th, at 11:30 or a quarter to 12 o’clock, and left her home about 1 o’clock.

Margie Sanders testified that Mrs. Bernice Mosier was her sister; that on October 8th, this year, she went to the Strand Theater, leaving there between 8 and 8:30, and as she was coming out she met her sister and Smith going into the show; that she knows F. H. Blackstone and talked to him about this case at her sister’s rooming house, and he said to her: “If my sister, Mrs. Mosier, did not give him his clothes he was going to see they got stuck, but if he could get his clothes he would go to Missouri and would not testify.”

W. H. Bradley testified that he had lived in Tulsa since 1920, has known the defendant, Mrs. Mosier, for about 10 years and knows the witness Frank Blackstone, having recently met him at Mrs. Mosier’s rooming house. That Blackstone remarked that he owed Mrs. Mosier, and if she did not cancel the debt, he was going to stick her as deep as he could; that he was present one time when Mrs. Mosier loaned Blackstone $30.

On cross-examination he stated that he took charge of her rooming house following Mrs. Mosier’s arrest.

Bernice Mosier, as a witness in her own behalf, testified that she lives at 18% East First street; that she has known Fred Smith about three weeks; that he was a roomer at her place and went with him to the Strand Theater, about 8:30, and as they went in they met her sister coming out; left the show about 11 o’clock; it was raining and she stood in the entrance in front of Brandon’s place while Smith went and got the Blackstone car, and came back and picked her up, then they drove out to Laura Hubbard’s place; that Blackstone owed her one week room rent and $30 besides that he borrowed from her to pay on the car. That they left Mrs. Hubbard’s after one o’clock. Smith was drinking a little and talked about the restaurant man on First street who had taken some money from him, and they went to Lee’s Cafe on East First street; there Smith had an argument with the proprietor, claiming that he had left $40 there, and asked them to give it back to him; they refused; they then went to her place; about ten minutes later the officers came while they were talking to Blackstone in the reception room; that Smith carried his pocketbook in his shirt pocket. Handed a billfold, marked defendant’s Exhibit “1”, she stated that it was the pocketbook she saw in his pocket that night. That she never had any agreement with the man that was with the officers at her place that night, and denied having offered to take him out to Carbondale; that she did not see Fred Smith rob him; that if he lost any money that night, somebody else got it.

On cross-examination, she admitted that she had been convicted on a whisky charge in the federal court in Kansas City, Kan., and was sentenced to serve a year and a day.

The defendant Fred Smith did not testify.

No rule of law is more well settled in this state than that if there is competent evidence to support a conviction, this 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 the defendant 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. At the close of the trial, it is the exclusive province of the court to determine whether or not there is any substantial evidence which would authorize the submission of such an issue of fact to the jury.

Upon a careful examination of the entire record, the conclusion of the court is that the defendant Fred Smith was justly tried and properly convicted; that the evidence is amply sufficient to support the verdict and judgment of conviction as against him. And the conclusion is reached that, as a matter of law, the evidence is insufficient to warrant the conviction of the defendant Bernice Mosier, and that the trial court erred in overruling the motion on the part of this defendant for a directed verdict of acquittal.

Under the foregoing statement of the state’s evidence, it is apparent that there is no evidence which tended to prove any element of guilt against the defendant Bernice Mosier, except that she was present and riding with the defendant Fred Smith at the time he stopped the car and assaulted Bridges. The evidence on the part of the state shows that the robbery was committed by the defendant Smith. There is nothing in the testimony of the complaining witness to show that Mrs. Mosier in any way actively aided, abetted or encouraged Smith in the commission of the robbery charged.

It will be noted that there is no evidence tending to show that the defendants were acting in concert with a common purpose and intent in the crime charged.

Mere acquiescence is not sufficient to establish guilt. It must be shown either that the defendant committed the offense, or that he aided, abetted, or assisted in its commission, or that he procured it to be done.

In the case of Moore v. State, 4 Okla. Cr. 212, 111 P. 822, 824, it is said that:

“To constitute one a party to a crime * * * it is necessary that such person be concerned in the commission of the offense — that is, that he either commit it or aid or abet its commission — and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. To be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. But a mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel, and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.”

And see Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Carrico v. State, 16 Okla. Cr. 118, 180 P. 870.

The last expression of this court is found in the case of Olin Anderson v. State, 66 Okla. Cr. 291, 91 P. 2d 794, wherein this court held under our Code of Criminal Procedure, sec. 1808, O.S.A., title 21, § 172, that under this section, “to be concerned in the commission of crime as a principal, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. A mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime.” Citing the previous cases herein and also many authorities from other jurisdictions to a like effect.

It follows from thq foregoing that at. rnost the tqstj-mony on the part of the state tends to create only a suspicion of guilt, and does not constitute sufficient proof of the material ingredients of the offense charged to establish the guilt of the defendant Bernice Mosier beyond a reasonable doubt.

For the reasons stated, the judgment of conviction of the defendant Fred Smith is affirmed. And the conviction of the defendant Bernice Mosier is for the reasons stated reversed, with direction to dismiss.

It appears from the record that the defendants are incarcerated in the penitentiary for failure to give appeal bonds. It is, therefore, ordered, that the clerk of this court forthwith forward to Jess F. Dunn, warden of the penitentiary at McAlester, a duly certified copy of this opinion, and upon receipt of the same, said warden is directed to discharge the defendant Bernice Mosier.

BAREFOOT and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    ELLIOTT HICKS v. STATE.
    No. A-9676.
    July 7, 1939.
    (92 P. 2d 537.)
    H. A. Johnson, of Perry, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and W. Hendrix Wolf, Co. Atty., of Jay, for the State.
   PER CURIAM.

A transcript of the record in the above-entitled cause was filed in this court on June 7, 1939. Attached thereto, and a part of said transcript, was an affidavit of the defendant, and also of his attorney, in which it is set forth, that defendant was convicted in the district court of Delaware county of the crime of manslaughter in the second degree, and his punishment assessed at four years in the penitentiary; that by reason of his poverty, and of his relatives, he is unable to pay for a transcript of the evidence in this case, and having no friends who will advance the money for the expenses of preparing the same. He further states in said affidavit that said appeal is made to this court for the reason that defendant is innocent of the crime charged against him; that it is necessary for a transcript of the evidence to be had for a proper consideration by this court of the questions raised on appeal.

The court, after consideration of the facts in this case, and after due investigation, is of the opinion that a transcript of the. evidence should be prepared by the court reporter of Delaware county, at the expense of said county, and said court reporter is ordered to prepare said case-made at the expense of said county and present the same to the attorney of said defendant for the purpose of having it filed in this court.


author: BAREFOOT, J.

text:
    LEON FLAUHAUT et al. v. STATE.
    No. A-9588.
    July 7, 1939.
    (92 P. 2d 587.)

      E. Moore, of Coalgate, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Marvin Balch, Co. Atty., of Coalgate, for the State.
   BAREFOOT, J.

The defendants were jointly charged in the county court of Coal county with the crime of having unlawful possession of nonintoxicating beverages without the payment of a license, for the purpose of bartering, selling and giving away the same. They were convicted, and their punishment assessed at a fine of $50 and 30 days in the county jail, and they have appealed.

In the first place we find that no brief has been filed, either by the defendants or the state. Under the rules so often announced by this court, it is only necessary that we examine the record, and unless some fundamental error has been committed, the judgment will be affirmed.

We have examined the record, and after such examination we are of the opinion that the judgment and sentence in this case should be set aside, and the case reversed.

The facts in the case, as revealed by the record, are that defendants were husband and wife. They lived in Coal-gate, Coal county. The officers searched their home on the 18th day of September, 1937. They testified they found 40 quarts of beer in the celler of defendants’ home, and that all of it was poured out and destroyed by the officers at the time, except about 6 bottles, which were brought to the sheriff’s office. That labels were placed thereon, and it was put in the vault. Before placing in the vault, the officer testified:

“Q. Did you put anything in this beer? Mr. Moore: We object to that as leading. Judge Thornsbrough: What did you do to the beer ? A. When we brought it in we put tablets in it; I don’t remember the name of it. Q. To refresh your memory, was it bichloride of mercury? Mr. Moore: We object to his refreshing his memory. He is a deputy sheriff; he knows what he testifies about. Judge Thornsbrough: The chemist will be the best one as to what it was. He said he did not know what it was he put in it. Q. What did you do when you got back to the sheriff’s office with this beer? A. We put these tablets in the beer. Q. Do you remember how many you put in a bottle? A. Two, I believe. Q. To a quart bottle? A. Yes, sir.”

This evidence as to the putting of tablets in the bottles was corroborated by the other officers who assisted in the search. The chemist, who examined the bottles brought to him by the sheriff, testified that they showed an alcoholic content of 4.1 per cent, by volume, and 3.2 per cent, by weight. The evidence that these were the same bottles is very meager. There was no evidence of any kind or character for the consideration of the jury, as to why the tablets were placed in the beer by the officers, or what they contained, or what effect they would have in the analysis of the same. As before stated, no search warrant was introduced, and no evidence as to why it was not so introduced. There was no evidence as to who was present at the time the search was made.

The state placed upon the witness stand Matt Fautt. He was evidently placed upon the stand for the purpose of proving that he had purchased beer at the home of defendants prior to the search, but his testimony was to the opposite. He testified that he did not have any recollection of ever buying any beer at defendants’ home. When his testimony was completed the court, over the objection of defendants, permitted the county attorney to place two witnesses upon the stand to impeach the witness Fautt, whom he had offered as a witness, and they each testified that he, in their presence, had said he bought beer from Mrs. Flau-haut. This evidence was admitted over the objection of defendants. The court in his instructions to the jury in no way limited the effect of this testimony as being permitted only as affecting the credibility of the witness Fautt. Under the law, and the decisions of this court, this was prejudicial error, for which this case will have to be reversed.

In the case of Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57, 68, this court, in a very elaborate opinion, not only discusses the principle here involved, but cites and quotes from many authorities from other states, and the best recognized text writers. In the opinion of the court, after recognizing the rule that under certain conditions where a witness had deceived the party calling him, to the injury of such party, it would be manifestly unjust to hold the party to be bound by such deception and to prevent him from relieving himself of such injury, says:

“But this rule is subject to certain conditions: First. The party must be surprised at the testimony of the witness sought to be so impeached, and this surprise must exist as a matter of fact; that is, it must be based upon such facts as would give the party reasonable ground to believe that the witness would testify favorably to such party. If the facts were such that the party had no reasonable ground to believe, when he placed such witness on the stand, that the witness would so testify, then no surprise could exist at the failure of the witness to give such testimony, and statements previously made by the witness, contradicting the testimony given, would not be admissible. Second. It is not enough that the witness failed to testify favorably to the party calling him, in order that previous contradictory statements made by such witness may be introduced in evidence, but the witness must have testified to facts injurious to the party calling him before he can be so impeached. In other words, such contradictory statements are permissible alone for -the purpose of impeaching the witness, and are not original substantive evidence against the adverse party. Third. When such contradictory statements are admitted in evidence, under proper conditions, the court should clearly inform the jury that such contradictory statements can only be considered by them for the purpose of affecting the credibility of the witness, and that it is for the jury alone to determine whether they do have this effect or not, and that such contradictory statements are in no sense to be considered as original evidence against the adverse party.” Paris v. United States, 5 Okla. Cr. 601, 115 P. 373; Broshears v. State, 17 Okla. Cr. 192, 187 P. 254.

This case is the first presented to this court involving the terms of the “Beer Bill,” and in attempting to prosecute a person for failure to procure the license as therein prescribed. Inasmuch as this record presents very meager facts, and had not been briefed, we deem it inadvisable to discuss the terms of the information. It would probably have been better for the county attorney in this case to have filed his charge under the old statute for the unlawful possession of intoxicating liquor, and submitted his proof upon this issue.

For the reasons above stated, the judgment of the county court of Coal county is reversed.

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


text:
    ROY HODGES v. STATE.
    No. A-9401.
    July 7, 1939.
    (92 P. 2d 590.)
    For former opinion, see 65 Okla. Cr. 277, 85 P. 2d 443.
    O. A. Cargill, Howard K. Berry, and Bob Howe, all of Oklahoma City, and Ogden & Thompson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, J.

This case has been briefed and oral argument had upon rehearing. We have again carefully examined the record. It has been very forcibly argued that the information in this case should have defined the term “assault and battery,” that being the misdemeanor which defendant was found guilty of committing in the perpetration of the homicide in this case. The court, in his charge to the jury, instruction No. 14, advised the jury “that a misdemeanor is every crime other than those which are or may be punishable with death, or by imprisonment in the penitentiary,” and that if defendant attempted with force or violence to do corporeal hurt to the deceased by slapping or pushing him, he would be guilty of a misdemeanor, but if he did not do so with an intent to do corporeal hurt to the deceased by force or violence, the same would not be a misdemeanor. He also instructed the jury if the act was committed in a spirit of frivolity or fun, the defendant would not be guilty. It appears to us that this instruction was very fair to the defendant and was as favorable as he could have possibly requested.

It is strongly urged by defendant on rehearing that the facts as presented by the record in this case are such that the judgment and sentence of seven years is too severe and that the same should be reduced. As stated in the original opinion, there is no question that there was no design on the part of the defendant to kill the deceased. It was not accomplished in any cruel or unusual manner. He was not acquainted with him. And while the defendant was without cause in slapping the deceased, who was a much older man than he, we have examined many authorities from this and other states, and have re-read the record, and come to the conclusion that justice would be best served by reducing the sentence imposed in this case from seven years in the penitentiary to four years in the penitentiary, and as so modified the judgment of the district court of Oklahoma county is affirmed.

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


text:
    M. T. KITCHEN v. STATE.
    No. A-9457.
    July 14, 1939.
    (92 P. 2d 860.)

      Floyd Wheeler, of Okmulgee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

M. T. Kitchen was tried, convicted and sentenced to imprisonment in the penitentiary for a term of ten years. This defendant has been twice tried. The judgment of conviction of rape in the first degree at the first trial was reversed by this court. 61 Okla. Cr. 435, 69 P. 2d 411. At the second trial a judgment of conviction was entered . October 18, 1937.

Omitting superfluous words in the information, it charges that, in Okmulgee county, on the 6th day of March, 1936, the said M. T. Kitchen did unlawfully, willfully and feloniously make an assault upon the person of Nellie Mae Herndon, with the felonious intent to rape and have sexual intercourse with her, and the said M. T. Kitchen did then and there unlawfully, feloniously and with force and violence, rape, ravish and have sexual intercourse with the said Nellie Mae Herndon, a female person under the age of 14 years and not the wife of the defendant.

The verdict, omitting formal parts, reads:

“We, the jury, do upon our oaths find the defendant M. T. Kitchen, guilty of an attempt to commit rape in the first degree as charged in the information herein and fix his punishment therefor at ten years with a recommendation that he be not paroled or pardoned.”

Counsel for the defendant present three grounds for the reversal of this judgment: Error in overruling the defendant’s demurrer to the evidence; failure of the trial judge to follow the decision of this court on the first appeal in charging the jury and in refusing to give instructions requested; that the verdict of the jury is contrary to both the law and the evidence, and was the result of passion and prejudice against the defendant, and not the result of cool and deliberate judgment on the part of the jury.

The record shows that the same witnesses who testified on the part of the state and on the part of the defendant at the first trial testified at the second trial. A substantial statement of their testimony is set forth in the former opinion of this court.

In addition to her testimony on the first trial, Mrs. Fay Kitchen, wife of the defendant, testified that she had two or three milk customers, including her mother, and sometimes the milk would spill on the floor of the car; that returning from the courthouse that evening in the car she noticed that the only spots on the floor of the car were the milk spots.

The victim of the alleged assault was a colored girl. She did not testify, although she was over nine years of age at the time of the trial, and the record is silent as to why she was not called as a witness. It was admitted, however, that she made no complaint of any injury and told no one that the defendant had in any way assaulted or mistreated her, and there was no evidence of injury to her person.

At the close of the evidence for the state the defendant interposed a demurrer thereto, and moved for a directed verdict on the ground that the same was insufficient to show the commission of the offense charged, in that the evidence does not show or tend to show that there was any specific intent to commit the offense charged. Overruled. Exceptions.

It appears that the defendant had resided in and around Okmulgee for the past 27 years, was married and lived with his wife and four daughters, the oldest twelve and the youngest two; that he had never before been charged with any offense, either felony or misdemeanor; that he was a World War veteran, and had been a citizen of good repute, and the state put in no evidence to rebut that; as to his previous good character, that he had been employed for the past seven years by the Texas Pipe Line Company; that for a few weeks prior to the date alleged he had been ill with influenza, and a part of the time confined to his bed; that whisky had been prescribed by his physician as a remedy for influenza; that on the date alleged he left home to go to the Texas Company yards on the east side of Ok-mulgee to get a post-hole digger, to use in fencing his chicken lot; that when he reached Muskogee avenue, he stopped at a place to get some whisky. The fellow there gave him a sample drink, so he bought a pint, and told the fellow he wanted it for medicinal purposes. In the course of conversation he took possibly two or three drinks; when he started to go the fellow said he only had another pint left and would take 50 cents for it. He took the pint, went out to his car, and drove south on the avenue; that he did not remember turning off Muskogee avenue; that he had no recollection as to where he went or what he did; that he did not remember the little girl or driving out to the country club; that the first thing he remembers was being here in the county jail; that he had drunk whisky a few times before and would not remember what he had done.

Amentia, temporary confusional insanity, sometimes the sequel of infectious fevers, was one of the defenses sought to be made.

This court has held repeatedly that it has no power to reverse a judgment of conviction upon the ground that the verdict is not supported by the evidence, unless there is no substantial evidence tending to show the guilt of the defendant, or the evidence fails so far to support the verdict that the necessary inference is that the jury must have acted from passion or prejudice, or have been controlled in reaching their verdict by undue influence. However, it must appear that the jury have been properly instructed as to the law of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside.

After a careful consideration of this case, both as to the law and the evidence, we are brought to the conclusion that at least two of the grounds relied upon for a reversal are well founded.

The 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 of an attempt to commit the offense,” Section 3097, 22 Okla. St. Ann. § 916.

An attempt to commit a crime is defined in Penal Code, sec. 1822, 21 Okla. St. Ann. § 42.

We do not deem it necessary to consider the assignments of error predicated upon the instructions given and those refused further than to say that the court failed to properly instruct the jury on the law of attempt as defined by section 1822, St. 1931, 21 Okla. St. Ann. § 42.

One of the instructions the defendant requested is as follows:

“You are further instructed that in a prosecution for assault with intent to rape, that the specific intent must be proved to your satisfaction beyond a reasonable doubt, and if you entertain a reasonable doubt as to the intent of the defendant, you cannot find him guilty of assault with intent to rape.”

,In instruction No. 16, the court said:

“If you believe beyond a reasonable doubt that the defendant did knowingly, willfully, unlawfully, and feloniously attempt to commit the crime of rape upon the said Nellie Mae Herndon, and in such attempt did any act towards the commission of such crime, but that he failed or was prevented or intercepted in the perpetration thereof, and that said Nellie Mae Herndon was then and there a female person under the age of fourteen years, and not the wife of the said defendant, and that said defendant was then and there a male person over the age of eighteen years, then you may convict the defendant of an attempt to commit the crime of rape in the first degree and assess his punishment therefor at imprisonment in the state penitentiary for a term not exceeding one-half of the natural lifetime of said defendant.”

It will be noted that the language of the court is, “and in such attempt did any act towards the commission of such crime”; the court should have added, “with intent then and there to commit the crime of rape upon said Nellie Mae Herndon.”

The intent is the gist of the offense, and every laying of hands on the female under the age of consent, even though improper, does not necessarily imply an intent to have sexual intercourse. Indecent liberties may be taken with a child without any such intent. The statute recognizes this in providing a penalty for taking indecent liberties with a female child without intent to commit the crime of rape. Penal Code, sec. 1769, 21 Okla. St. Ann. § 22; West v. State, 27 Okla. Cr. 125, 225 P. 556.

The specific intent to commit rape is an essential element both of attempt to rape and of assault with intent to rape.

In Teagarden v. State, 33 Okla. Cr. 394, 244 P. 63, it was held that in a prosecution for assault with intent to commit rape on a female child under the age of consent, it was not necessary to allege or prove that the acts were done against her will, and that it was immaterial whether she consented, submitted, or resisted. To the same effect, see Lee v. State, 7 Okla. Cr. 141, 122 P. 1111; Bouie v. State, 9 Okla. Cr. 345, 131 P. 953.

An assault with intent to rape, or an attempt to commit rape, includes every element of the crime of rape except its accomplishment. The felonious intent is the essence of the offense. It is elementary when a specific intent is required to make an act an offense, that the doing of the act does not raise a presumption that it was done with the specific intent. Intent, which is essential to support conviction of an attempt to commit rape, cannot be presumed, but must be shown to exist by competent evidence and beyond a reasonable doubt.

In Teagarden v. State, supra, we said [33 Okla. Cr. 394, 244 P. 64] :

“While it is not necessary in such cases that force should be used or resistance made, and that it is of no consequence that the female consents, the existence of a specific intent in the mind of defendant then and there to have carnal connection with the female is an essential element of the crime of assault with intent to commit rape.

“As said in People v. Dowell, 136 Mich. 306, 99 N. W. 23:

“ ‘The intent is the gist of the offense, and every laying on of hands upon a female under the age of consent, even though improper, does not necessarily imply an intent to have sexual intercourse. Indecent liberties may be taken with a child without any such intent.’
“In such cases laying of hands upon the female and the intent to have intercourse with her must concur as to the time. 33 Cyc. p. 1435.

“In the case of Patrick v. People, 132 Ill. [529] 534, 24 N. E. [619] 620, it is said:

“ ‘To constitute an attempt to commit rape upon a female under the age of consent, the intention to know the girl carnally must have existed in the mind of the accused at the very time when he did the overt act or acts, for there can be no attempt to commit a crime unless the intent to commit it exists at the time when the attempt is made.’ And see, 1 Wharton, Grim. Law. (11th Ed.) par. 215.”

Specific intent may be inferred from acts. It may be shown like many other facts from surrounding circumstances; circumstantial evidence sometimes is very strong and yet falls short of proof sufficient to prove the corpus delicti.

All of the circumstances must be consistent with the theory of the defendant’s guilt; none of those circumstances must be inconsistent with his guilt; the circumstances when taken together must admit of no other reasonable hypothesis than that of guilt.

In this case there had been no proof of the specific intent to commit the crime of rape, one of the essential elements of the crime, except by a very remote and uncertain presumption, although the proof may have been sufficient to show that the defendant committed an assault upon the person of the prosecutrix.

Another objection to the given instructions is the one on evidence of previous good character and reputation, wherein the court said: “and if, after properly considering the same, in connection with all the other evidence in the case, you entertain a reasonable doubt of the defendant’s guilt, you should find him not guilty; however, if you are satsified from the evidence beyond a reasonable doubt of the defendant’s guilt, you should not acquit him upon the ground of his good character and reputation alone.”

The vice of this instruction is that the jury were not clearly informed that good character may create a reasonable doubt as to whether such person would commit the crime charged, where otherwise no doubt existed, and that proof of good character may lead the jury to disbelieve the testimony against the defendant no matter how conclusive such testimony may be. Hall v. State, 12 Okla. Cr. 20, 151 P. 487.

In People v. Elliott, 163 N. Y. 11, 57 N. E. 103, 104, 15 Am. Cr. Rep. 42, a case of rape, the Court of Appeals held:

“The accused had the right to have the jury instructed, that good character may create a reasonable doubt as to whether such person would commit the crime charged, where otherwise no doubt existed, and that proof of good character may lead the jury to disbelieve the testimony against the accused, no matter how conclusive such testimony may seem to be.”

And see Wells v. Territory, 14 Okla. 436, 78 P. 124, 125; Carney v. State, 29 Okla. Cr. 83, 232 P. 451; Kirby v. State, 25 Okla. Cr. 330, 220 P. 74, 33 A.L.R. 1212.

After the jury had retired to deliberate upon their verdict, they were returned into open court and in the presence of the defendant the following proceedings were had:

“The Court: Now, state your question so the reporter can get it in the record. A Juror: I asked what the finding of the jury was before and also what the Criminal Court of Appeals said about it. The Court: Let the record show that the information was asked by one of the jurors and the attorneys for each side say they have no objection to the court telling them. Gentlemen, with that understanding, I am going to tell you: The other jury found him guilty of rape in the first degree and fixed his punishment at 40 years in the state penitentiary. As to what the Criminal Court of Appeals said about it, I think all that is necessary to read to you is the third syllabus of the mandate. It says, ‘Emission without penetration is not sufficient to constitute the consummated crime of rape.’ Is that satisfactory to you or do you want the mandate? A Juror: That is sufficient to me. The Court: That is the only question the Criminal Court of Appeals reversed it on, the question of penetration. Mr. Wheeler: That the evidence wasn’t sufficient. The Court: Certainly. They wouldn’t have had this syllabus there if they hadn’t have held that there wasn’t sufficient evidence on the question of penetration. The case was remanded here for new trial, and you are now trying him.”

Thereupon the jury, in charge of their sworn bailiff, retired to the jury room to deliberate upon their verdict.

The question asked was wholly improper and the court’s statement in answering the question could not be otherwise than highly prejudicial to the substantial rights of the defendant.

Upon a careful inspection of the record, we think the information in the case, to which no objection was made, charges rape in the first degree, as defined by first subdivision, and rape in the first degree as defined by fourth subdivision, of sec. 2515, 21 Okla. St. Ann. § 1111, and the allegations are so mingled and included in one count as to make the information duplicitous.

It will also be noticed that the verdict recited that the defendant was guilty as charged in the information, and the inclüsion in the verdict of the recital “with a recommendation that he be not paroled or pardoned,” was obviously improper and prejudicial to the defendant.

Under the statute, sec. 3100, St. 1931, 22 Okla. St. Ann. § 919, it was the duty of the court when the verdict was returned in the form it was, to direct the jury to return to the jury room and consider a proper form of verdict. However, the record shows that the defendant did not call the court’s attention to this recital before the jury was discharged.

On a careful examination of the record and considering the proceedings on the trial, we are inclined to think that the defendant was prosecuted with unusual severity, if not with malignity. It seemed to have been forgotten that the defendant was presumed to be innocent until convicted, and that the law of the land guarantees to every one accused of crime, whether rich or poor, a fair and impartial trial. The safeguards erected by the Constitution and laws of our state are intended to protect the rights of all citizens alike. They protect the rights of the guilty as well as those of the innocent. This court cannot give its sanction to the conviction of any person accused of crime where the proceedings upon which the judgment is based shows that the accused did not have that fair and impartial trial to which he was entitled to under the law.

No man ought to be convicted of a crime upon mere suspicion, or because he may have had an opportunity to commit it, and where circumstances are relied upon for a conviction, they ought to be of such a character as to negative every reasonable hypothesis except that of the defendant’s guilt.

For the errors indicated, we are without doubt as to the propriety and necessity of reversing the judgment, and we are of the opinion that the evidence is not sufficient to support the verdict and judgment. The judgment is, therefore, reversed and the cause remanded to the district court of Okmulgee county, with direction to dismiss.

It appears from the record that the defendant was unable to give bond pending the determination of his appeal, and was committed to the penitentiary. It is, therefore, ordered that the clerk of this court forthwith forward to Jess F. Dunn, warden of the penitentiary at McAlester, a duly certified copy of this opinion, and upon receipt of the same, said warden is directed to discharge said defendant.

BAREFOOT and DAVENPORT, JJ., concur.


text:
    F. L. RICE v. STATE.
    No. A-9409.
    July 14, 1939.
    (92 P. 2d 857.)

      Reuel W. Little, of Madill, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Sam Y. Colby, Co. Atty., of Madill, for the State.
   BAREFOOT, J.

The defendant was charged in the district court of Marshall county with the crime of receiving stolen property; was tried, convicted, and sentenced to serve a term of three years in the penitentiary, and has appealed.

It becomes necessary to consider only one of the assignments of error for the proper disposition of this case. The case-made contains a statement of the closing argument of the county attorney. This statement is made a part of the record.

The certificate of the county attorney was as follows:

“Comes now the county attorney of Marshall county, Oklahoma, and waives the suggestion of amendments to the ease-made and transcript and waives notice of the signing, certifying and settling of said case-made, and agrees that the same may be certified, signed and settled as a true and correct case-made and transcript in said cause, at any time without notice to him.
“(Signed) Sam Y. Colby,
“County Attorney.”

The trial judge settled and signed the same as a true and correct case-made and transcript. Within the transcript, and as a part of the record, is a statement of the closing argument of the county attorney. A part of the same is as follows:

“If it please the court, gentlemen of the jury: I am just a hired hand up here working for the county of Marshall for the sum of $125 a month. You are just working for the county the same as I am. It is my duty to prosecute this defendant. I try to earn my money and I think I do. You are paid to act as jurors and it is your duty to enforce the law and to convict criminals like this defendant, the same as it is my duty to prosecute them. I earn my money and you earn your money when you convict these defendants. * * *
“Gentlemen of the jury, it is time to break up this dope ring in this county, and you can break it up or you can let it go. The defendant is down there selling dope to the young men and women of the county and it is up to you to send him to the penitentiary to get rid of him.
“Gentlemen of the jury, look at that courtroom of crowded people! What do they think about this case ? What do the mothers out there who have sons who are going to be reared in this county think about this defendant? Yes, gentlemen of the jury, if that audience out there could pass on the guilt of this defendant, they would answer with one accord ‘guilty.’ I say, ‘Give the doctor a dose of his own medicine.’ * * *
“Gentlemen of the jury, the doctor did not employ any lawyer in this case, although, as you well know, he is amply able to employ a lawyer. He expects to come into court without a lawyer, without a witness, not even taking the witness stand on his own behalf, and without anything, expects you gentlemen to return a verdict in his favor.
“Gentlemen of the jury, I say to you that if there is a living God that you men do not have the guts to go out to your jury room, under your oath, and return a verdict to this court of anything but ‘guilty.’ ”

That part of the statement which says: “Gentlemen of the jury, the doctor did not employ any lawyer in this case, although, as you well know, he is amply able to employ a lawyer. Hd expects to come into court without a lawyer, without a witness, not even taking the witness stand on his own behalf, and without anything, expects you gentlemen to return a verdict in his favor,” is in direct conflict with the statute, Oklahoma Statutes, 1931, section 3068, 22 Okla. St. Ann. § 701, which provides:

“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial.”

This statute has been construed since the earliest days of this court to the present time, and it has been universally held that it is mandatory, and when it is violated, either in its letter or its spirit, a new trial must be granted, or upon appeal a reversal will follow. Sturgis v. State, 2 Okla. Cr. 362, 363, 102 P. 57; Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160; Rader v. State, 12 Okla. Cr. 354, 157 P. 270; Cokely v. State, 28 Okla. Cr. 431, 231 P. 330; Whitenack v. State, 46 Okla. Cr. 315, 285 P. 990; Kinder v. State, 48 Okla. Cr. 124, 289 P. 796; Shelton v. State, 49 Okla. Cr. 430, 295 P. 240; Turner v. State, 4 Lea, Tenn. 206, 209.

As stated by Judge Doyle in the case of Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160, 161:

“In the case of Brown v. State, 3 Okla. Cr. 442, 106 P. 808, it was held that:
“ ‘Where a defendant upon his trial fails to testify in his own behalf, and the prosecuting attorney comments upon such failure to the jury, such comments constitute reversible error.’

“In the case of Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791, it is said:

“ ‘It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or spirit.’
“The statute is in accordance with the constitutional guaranty that ‘no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.’ The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms of the statute, the trial court has no discretion, but must grant a new trial. Every person accused of crime is entitled to a fair trial under the forms of law before he may be convicted.”

And as stated by Judge Davenport, in the case of Bell v. State, 55 Okla. Cr. 439, 32 P. 2d 747:

“The statute which provides, where a defendant in a criminal case fails to testify in his own behalf, said failure must not be mentioned by the trial court, is specific in its terms and must not be violated directly or indirectly. The statement as made by the county attorney is a direct reference to the defendant, and mentions the fact that the defendant’s attorney did not even put him on the witness stand. There is nothing in the record to show that the statement of the county attorney was in reply to any argument advanced by the attorney for the defendant, as the record shows that after the county attorney made his statement, the defendant’s attorney argued the case.
“The statement of the county attorney amounted practically to a challenge to the defendant for not taking the witness stand. The conduct of the county attorney is such as to require a reversal of this case.”

It cannot now be argued that the county attorney did not make the statement. The record was presented to him in person, which contained this statement. If he did not make it, the question should have been presented to the trial court, and settled by him before the final certificate was signed by the trial judge. The record as it now appears states the identical language as above quoted, and is the final record in this case.

In the trial of the defendant, it appears that he employed no lawyer, but defended himself. No exception was taken by him to the closing argument of the county attorney, but we are of the opinion that the error was fundamental and deprived the defendant of a substantial statutory right. Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912 B, 766; Cochran v. State, 4 Okla. Cr. 379, 111 P. 974; Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, 121 P. 791.

In passing it may be well to state that the other statements made by the county attorney were highly improper. The statement that jurors are paid to enforce the law, and that they earn their money “when you convict these defendants,” was improper. Jurors who are chosen are there for the purpose of judging the merits of the case with equal justice to the state and to the defendant. Their duty is performed and they have earned their reward when, after due and careful consideration, they have returned a verdict of guilty or not guilty, as the law and the facts justify. They should not be informed that they have earned their money when they convict the defendant.

The further statement, which has reference to what the “crowd in the court room” would do to the defendant, was highly improper. The defendant was entitled to be tried by the court and by the jury, who was sworn to. try the case. Their verdict should be based upon the law and evidence, not what the crowd in the courtroom desired. The crowds in the courtroom are generally in sympathy with the defendant, and not with the state, because his friends most generally attend his trial.

The statement, “the defendant is down there selling dope to the young men and women of the county, and it is up to you to send him to the penitentiary to get rid of him,” was also highly improper under the evidence in this case. This argument is based upon the testimony of one of the witnesses who swore that defendant, who was a doctor, had given morphine to his wife, who was sick, and whom the doctor was treating. There is nothing in the evidence to show that this medicine was given in any unusual way, or that it was not necessary in the proper treatment of this patient. There was no evidence that defendant was selling dope to young men or women, and for this reason the argument was highly improper.

In the case of Turner v. State, 4 Lea, Tenn., 206, the Attorney General, in his closing argument, told the jury “that there was a regular band of thieves in the neighborhood where this crime was committed. That the defendant, Turner, was one of them. * * * That unless the jury would convict the defendant in this case, he would not blame the people for taking the law in their own hands.” The court said:

“There was no evidence before the jury to authorize this statement. * * *
“The Circuit Judge should not have permitted remarks of this character. It is his duty, whether objections be made by defendant’s counsel or not, to see that no improper statements are made likely to influence the jury in their verdict, and that the cause is tried upon the sworn testimony of witnesses examined in open court in the presence of the accused, and that his right to cross-examine the witnesses should not be abridged. We do not mean to limit or restrict legitimate argument, but a statement of facts entirely outside of the evidence, and highly prejudicial to the accused, cannot be justified as argument. We have no disposition to exercise our revisory power in a censorious spirit, and we do not say that we would reverse for every departure from strict propriety in matters of this character, but we could not hesitate to do so when we can see that improper influences have been permitted to go before the jury likely to deprive the defendant of a fair and impartial trial. The question being brought directly to our attention, we cannot pass it in silence.
“Too great care cannot be taken in excluding from the jury all improper influence. If we would make the preservation of jury trials a matter of boast, it ought, as far as possible, to be preserved in its purity. The guilty ought to be punished, but their conviction ought to be obtained upon the law and the evidence. We certainly mean no reflection upon the conduct of the Attorney-General and Circuit Judge, yet we think it was a violation of the defendant’s legal rights.”

This opinion expresses our views as applied to the facts in the case at bar.

For the reasons' above stated the judgment of the district court of Marshall county is reversed, and it is so ordered.

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