author: JONES, P. J.

text:
    N. T. CUPP v. STATE.
    No. A-10127.
    April 21, 1943.
    (136 P. 2d 700.)

      Garrett & Harlan, of Mangum, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, N. T. Cupp, was charged in the district court of Greer county with the crime of assault Avith a dangerous weapon, alleged to have been committed upon the person of one W. M. Mikeman, Avas tried, convicted and sentenced to serve one year1 and one day in the State Penitentiary, and has appealed.

There is very little dispute as to the facts. The defendant and W. M. Mikeman had married sisters. At the time of the assault Mikeman Avas 80 years of age and in a frail condition, weighing about 140 pounds. The defendant was 63 years of age, strong and robust and weighed 175 pounds.

Upon the death of Mikeman’s wife, a few years before the alleged assault, the defendant Cupp and his wife moved into the house with Mikeman and lived with him until March of 1940.

In February, 1940, Mikeman became ill and moved to the hospital at Mangum. After his illness was cured Mikeman continued to stay at the hospital as a boarder. In March he leased his place where Cupp lived to one Cummings for a period of ten years. Some difficulty was encountered in getting Cupp to move from the place and finally Mikeman gave Mrs. Cupp $100 and a note for $100 to get them to give possession.

After the Cupps moved, the latter part of March, Cupp and Mikeman did not meet until July 27th, the date of the alleged assault. On that date Mikeman and some other people were sitting on the steps of the courthouse during the noon hour. The defendant ivas in the courthouse and passed them sitting on the steps but did not speak. About an hour later Mikeman went to the men’s toilet in the courthouse. While he was there Cupp entered.

Mikeman testified that Cupp asked him why he had told a lie and that he saw Cupp intended to make trouble, so he started for the door. That Cupp then made the attack on him and knocked him through the door.

The other witnesses for the state who were there at the courthouse stated they saw Cupp strike Mikeman with his fist and knock him, down and then proceed to kick him two or three times while he was lying on the floor. Mikeman’s left hip was fractured allegedly by a kick from the defendant. Cummings was present and intervened, preventing defendant from kicking; or striking Mikeman again.

Tlie testimony of the defendant was that he entered the men’s toilet not knowing that Mikeman was there. That he and Mikeman had some words and he called Mikeman “a big old liar.” That Mikeman acted like he was going to hit him and he struck Mikeman. That several licks Avere exchanged. The defendant further testified:

“Q. (By Mr. Garrett, counsel for defendant) Well, what happened? A. Well, I think I hit him when he went out through that slat. Q. You think you hit him as he went out through the door? A. Yes, and that was when Cummings come in. Q. Well, do you know whether you knocked him down at that time or not? A. I don’t remember. Q. Did you give him a kick or kick at him? A. I believe I kicked at him, I didn’t hit him, though. Q. When was that, when did that take place? A. I believe it was when he got out that door, out of the rest room.”

It is first contended that the court erred in overruling defendant’s motion for continuance.

The motion for continuance is based upon the ground that the defendant: did not have sufficient time within Avhicli to prepare for trial, and alleges in substance that the information Avas filed against defendant on November 18, 1940. That defendant Avas arraigned on November 27, 1940, and requested 24 hours within Avhich to plead to the information and the court fixed December 2, 1940, as the time for defendant to plead to said information. That on December 2, 1940, the defendant entered a plea of not guilty. That prior to that time the cause had been set for trial on December 3, 1940, but that at the time the plea of not guilty was entered the case was reassigned for trial on December 5, 1940.

There are no facts set forth in the motion alleging that defendant was unable to proceed to trial because of lack of time to procure necessary witnesses in his behalf, and there are no specific facts alleged, other than those hereinabove mentioned, to constitute a showing that the defendant would be prejudiced by proceeding to trial, the sole basis for the motion being the' fact that there was not actually a ten-day period elapsing between the date the plea was entered and the trial.

The record discloses that the defendant waived a preliminary examination on October 21, 1940. The transcript of the proceedings from the justice of the peace court was filed in the district court on October 28', 1940. On No1-vember 7, 1940, a docket was printed showing the assignment of cases for trial, which included the case against the defendant, although at that time no information had actually been filed against the defendant but his case had been filed in the district court criminal appearance docket. The actual presentation of evidence commenced on December 6, 1940.

In determining whether there was an abuse of discretion on the part of the trial court in overruling the motion for continuance, we have examined the complete record to determine whether defendant ivas materially prejudiced. Defendant used six witnesses in his behalf, and there is no- showing made that he desired the testimony of any witness which he had been unable to obtain. Counsel for the defendant clearly show by their examination of defendant’s witnesses and their cross-examina.tion of the witnesses for the state that they were thoroughly familiar with all of the facts and prepared to proceed with the trial.

It is true that ordinarily a felony case should not be set for trial within less than ten days after the plea of the defendant to the information. But it would appear from the record that the delay in allowing the defendant to enter his plea, to the information Avas more a matter of convenience to defendant’s counsel than negligence on the part of the court in ordering the arraignment of the accused. Since there actually was a 30-day period after the case Avas set for trial in which the accused had time to prepare his defense, and because there are no specific facts shoAvn in the record which would justify this court in concluding that defendant had been materially prejudiced by being forced to trial, it is our conclusion that the court proceeded correctly in overruling the motion for continuance.

It is next urged that error Avas committed in the presentation of the state’s case in chief when the prosecution asked the defendant to stand so that the doctor Avho was testifying to the injuries received by Mikeman could see the size of the man whom the state claimed had inflicted the Avounds. The record on this proposition discloses the following:

“Q. Wha,t was the nature of the, — I Avant to ask you this question, Doctor, you of course were Avell acquainted with Mr. Mikeman? A. Yes. Q. Will you stand up, Mr. Cupp (counsel for the state asks the defendant to stand and the defendant did stand). Counsel for State: Thank you. Q. Assuming Mr. Cupp struck Mr. Mikeman with his fist, knocked him to the floor and then kicked him on or about the left hip, would that sort of assault on a man of Mr. Mikeman’s size and build produce the injuries you have described?”

Defendant contends that this Avas requiring him to give evidence against himself. No authorities are cited to sustain his contention.

The record discloses that the physician had testified concerning the injuries suffered by Mikeman, including the identification of certain X-ray pictures which the physician said disclosed a fracture of the left hip. When counsel for the state asked the defendant to stand, no objection was interposed on behalf of defendant. We cannot agree that this action was prejudicial to defendant, especially in view of the fact that defendant later took the witness stand and interposed a plea of self-defense and thereby subjected himself to cross-examination upon the differences in size between himself and the assaulted person. We can perceive of situations where such conduct of the prosecutor might constitute reversible error, but not in the instant case.

Counsel for defendant next contend that the court erred in reprimanding counsel for defendant in the presence of the jury. In connection with this assignment the record discloses the following:

“Reporter’s Note: At this time a recess is had and after said recess the court again being in session, the defendant, the jury and'all parties being present as herein-before set out, the trial of said cause proceeded as follows: Counsel for Defendant (Mr. Garrett) : At this time I want to' make this statement to the court. Counsel for State (Mr. Arnett) : Now, we ask that if counsel is going to make a statement that he make it out of the presence of the jury. The court at this time motions counsel for the defendant and the state to the bench, but counsel for defendant remains away from the bench and repeats that he desires to make his statement, whereupon the court asked counsel not to make remarks in the presence of the jury and counsel still persisting the court orders counsel for defendant to be seated, counsel still persisted and the court again ordered counsel for defendant to be seated and instructed the bailiff to see that counsel was seated, whereupon the bailiff approached counsel for defendant and counsel for defendant again being ordered to be seated did take his seat, after which, By County Attorney: Comes now the county attorney and attorney for the state and asks that the jury be conducted from the court room until this controversy is completed. By the Court: Gentlemen of the Jury, just before you left the courtroom Mr. Arnett made some remark to the court in regard to what the witness would testify to, —if you did hear those remarks, you are instructed that you will not consider them.”

This court has several times stated that if the conduct of counsel for defendant is improper, the court must excuse the jury before administering a rebuke or threatening to fine or imprison him for contempt. Garrett v. State, 74 Okla. Cr. 78, 123 P. 2d 283, and cases therein cited.

We have repeatedly stated that absolute fairness should characterize every word and action of a judge, and if this court were doubtful as to whether this action of the trial court in this instance was prejudicial to the defendant, that doubt would be resolved in favor of the accused. But after reviewing the whole record and the circumstances surrounding the incident, in question, it appears that the trial judge was very patient with counsel for defendant. No reprimand was administered to counsel. The court merely directed him to be seated, Avhich was entirely proper, as counsel for defendant should have been willing to co-operate Avith the trial judge in his endeavor to prevent irrelevant matters from being called to the attention of the jury. The record discloses that there was an apparent attempt on the part of counsel for defendant to purposely create a situation wherein the court might be led into committing error. We do not feel that anything that happened in connection with this incident Avas prejudicial to the defendant, especially in vieAV of the virtual admission of the defendant that he committed an unprovoked assault on this aged man. After the court asked that counsel be seated, it would probably have magnified tbe incident in tbe eyes of tbe jury if tbe court had sent the jury from the courtroom before directing that the bailiff seat counsel.

It later developed that the matter concerning which the attorney desired to make a statement was about a witness who- was present in the courtroom, and such a statement as would have been entirely proper to have been made. But there had just been a heated argument between counsel for the state and counsel for the defendant, out of the presence of the jury, concerning an alleged statement of counsel for the state. It was natural for the trial court to assume, when the attorney for defendant started to make a statement after the jury was brought back in the courtroom, that his statement was in reference to the matter which had just been under discussion. Regardless of what statement the attorney wished to make, he should have shown enough courtesy to the court to come to the bench and quietly, out of the presence of the jury, make whatever statement he wished to make. His actions Avere certainly extremely provocative and, under the circumstances, the court acted, very calmly and wisely in disposing- of the incident Avith the least confusion.

The brief of defendant is devoted mainly to a discussion of the proposition that the court committed error in connection with the giving of certain instructions to the jury after they had retired to deliberate upon their verdict, and alleged misconduct of the trial court in connection with the receiving of the verdict.

The record discloses the following facts in connection with this assignment of error. After the case had been submitted to the jury and it had retired to- deliberate upon its verdict, the jury was returned to the courtroom by the bailiff, at which time the following occurred:

“By the Court: Gentlemen of the Jury, have you arrived at a verdict? By the Foreman: We have, Your Honor. By the Court: Mr. Foreman, will you hand your verdict to the bailiff? Whereupon the foreman delivered said verdict to the bailiff, who in turn delivered said verdict to the court, whereupon the following further proceedings were had: By the Court: Gentlemen of the Jury, the court thinks you probably haven’t delibei'ated upon this matter a sufficient length of time to return the form of verdict you should return, if you are able to return it, therefore, the court is going to return to you the papersl and ask you to deliberate upon the matter further. Be-porter’s ■ Note: Whereupon the jury again retires, in charge of the bailiff, E. W. Beeves. Counsel for defendant: Now comes the defendant, N. T. Cupp, and objects] to the action of this court for the following reasons, to-wit: That the jury in this case came into court and being asked by the court if they had arrived at a verdict in this case announced in open court, in the presence of the defendant and counsel, that they had arrived at a verdict, that thereupon the court instructed the foreman to hand up the verdict, together with the other exhibits, to him; that the foreman of the jury delivered the verdict to the court, that the court read the same, himself, and then without permitting anyone to know what the verdict said, instructed the jury to return to the jury room for further deliberation, for the reason that they had not deliberated long enough to return the kind of verdict they had delivered in this case; that the action of the court in so ordering the jury to return to the jury room, under said circumstances, was prejudicial to the rights of the defendant, and the defendant further objects for the reason that the verdict was not read in court, and although counsel for the defendant asked to see the verdict, the court did not allow him to do so, therefore the defendant cannot state what was done in the verdict. By the Court: After the jury retired to consider their verdict, they remained out not to exceed ten minutes, and then returned into court their verdict finding, the defendant guilty of the charge contained in the information, to wit: assault and battery, by means of a dangerous weapon, without justifiable or excusable cause, and with intent to do bodily hai'm, although without intent to kill, and that they could not agree upon the punishment. The court deemed that the jury had not given sufficient deliberation to the matter of assessing the punishment and therefore requested the jury to return to the jury room and further consider their verdict. The court therefore overrules the foregoing objection and motion of counsel for the defendant. Counsel for Defendant: Now, let the record further show that after the court’s statement concerning the verdict and the jury’s verdict, in which it was stated that they were unable to fix the punishment and the court upon the returning of said verdict, merely directed the jury to- return to the jury room for the purpose of continuing deliberation, give us an exception. Thereafter, and during the deliberation of the jury, said jury sent an inquiry, in writing, to the court by the bailiff, as follows: Can a man’s shoe- on his foot be construed as a dangerous weapon.’ Whereupon, the court ordered the jury brought into open court, and instructed the jury, which instruction was reduced to writing, and presented to the jury, and is as follows: Gentlemen of the Jury: In answer to-your inquiry you are- advised that you are the sole judges of all the facts and circumstances in this case, and what will constitute a dangerous weapon is for your determination from all the- facts and evidence in the case-, in accordance with tbe definition of a dangerous weapon as contained in the instruction heretofore given you. At the same time the court further instructed the jury, which instruction was reduced to writing, and delivered to the jury, as follows: Gentlemen of the- Jury, you are advised that as to- the verdict previously brought in, wherein you found the defendant guilty of assault with a dangerous weapon but further1 found that you could not agree- on the punishment, the court deemed at the time that the jury had not given due consideration to the fixing of the punishment, because it is the duty of the jury to- assess the punishment, if they can agree on the punishment, and the jury should not leave the assessment of the punishment to the court, until they have given the matter of the punishment due consideration, and then, after such consideration, find they cannot agree on the punishment. Gentlemen, I will submit these two instructions to you, and if there is any further information you want, the court will instruct you further.”

Counsel for defendant cite and rely upon the cases of Ridley v. State, 5 Okla. Cr. 522, 115 P. 628, and Raab v. State, 62 Okla. Cr. 361, 71 P. 2d 773, to support part of their contention. Subsequent to the decision in those cases, this court has reiterated the rule that after the jury has retired to deliberate on its verdict, any communications or instructions given them by the judge should be in open court in the presence of or after notice to the county attorney and defendant or his counsel, or after they have been called. Lewis v. State, 73 Okla. Cr. 172, 139 P. 2d 91; Graham v. State, 73 Okla. Cr. 337, 121 P. 2d 308.

In all four of the above cases the trial court communicated with the jury in the absence of defendant and his counsel, and in some instances not in open court, and Ave hold in such cases that the presumption arises that such conduct is prejudicial to the defendant and the burden is upon the state to show that the defendant was not prejudiced thereby.

Those cases are not analogous to the facts in the instant case. The conduct of the trial judge herein shoAvs that he folloAved the rule which Ave adopted in the above cases because when the bailiff brought him word that the jury desired to communicate with him, he had the bailiff conduct them into open court and there, in the presence of the defendant and his attorneys, gave them further instructions in writing, which are altogether proper.

It is impossible to lay doAvn hard and fast rules which Avill apply to every case, as situations constantly arise in the trial of criminal cases where the trial judge must be prepared for any contingency. We think the conduct of the trial judge in the instant case is not subject to the criticism directed by counsel. It was not on account of anything improper said or done on the part of the trial judge that the defendant was convicted, but the facts showing his guilt were so absolutely overwhelming and without serious dispute that a reasonable jury, with due regard for their oaths, could not have done otherwise than return a verdict of guilty.

There is no presumption that the bailiff had been discussing the case with the jury by reason of the fact that he brought the note from the jury to’ the trial judge. Pie was the sworn officer in charge of the jury and the only way the jury could communicate with the judge was through this sworn officer.

The record discloses that the only reason the court did not receive the verdict of guilty which was first brought into court was because the jury had declared in their verdict that they were leaving the punishment to the court, and since they had only been deliberating approximately ten minutes, the court felt, and justifiably so, that due consideration to the question of punishment had not been given by the jury, and that they should retire and deliberate further upon that question. No doubt counsel for defendant would have been greatly perturbed if the trial court had accepted a verdict from the jury finding the defendant. guilty of the crime charged in the information, but leaving the punishment to the court, which was returned within ten minutes after the jury had retired to deliberate upon the verdict. It would have been better if the court had given the jury specific instructions to deliberate further on the question of punishment when they first reported. But the giving of a written instruction on tliis matter when the jury reported the second time clarified any confusion which the action of the judge, in the first instance, might have created.

In a case where the issues are close some of the questions raised in this appeal might assume more importance, but where, under the defendant’s own testimony, he made an unprovoked attack upon an 80-year-old invalid, this court is unable to see where any of the conduct complained about could be said to have materially prejudiced the defendant where the punishment assessed by the jury was only one year’s imprisonment.

There are some other errors mentioned in the brief of the defendant which are not of sufficient importance to require a prolongation of the opinion by discussing the same, as the record does not support the assignments of error; as, for instance, the alleged improper argument of the prosecutor. We have searched the record thoroughly and have not found any place where there is any part of the argument of any of the counsel. In order to discuss this question, we would have to assume that the statements alleged to have been made by the county attorney as set forth in the brief of defendant are true. This we shall not do.

After a careful consideration of the record and the briefs, it is our conclusion that the defendant had a fair and impartial trial and that the punishment assessed by the jury was fully warranted under the facts and the law applicable to such cases, and for that reason the judgment of the district court of Greer county is accordingly affirmed.

BAREFOOT and DOYLE; JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOE D. YEARGAIN, Sr., v. STATE.
    No. A-10146.
    April 21, 1943.
    (136 P. 2d 696.)
    O. E. Mason, of Miami, and Hal Johnson, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Charles 0. Ohesnut, Co. Atty., of Miami, for defendant in error.
   PER CURIAM.

Defendant, Joe D. Yeargain, Sr., was charged in the county court of Ottawa county with the crime of unlawful possession of intoxicating liquor, to wit; seven pints and four1 half pints of whisky; was tried, convicted and sentenced to pay a fine of $250 and to serve 90 days in the county jail, and has appealed.

For reversal of this case, it is contended:

First, that the evidence is insufficient to sustain the judgment and sentence, and that the court erred in refusing to sustain a demurrer to tlie evidence., and to direct a verdict of not guilty.

Second, that certain incompetent, irrelevant and immaterial evidence was permitted to be introduced, and that the court refused to admit certain competent, material and relevant testimony offered by defendant.

Third, that the court erred in giving certain instructions to the jury over the objection and exception of defendant.

This case arose by reason of the Search of a barbershop in the city of Miami, known as the Yeargain Barber Shop, and also as the Elite Barber Shop, on the 14th day of December, 1941, at which time seven pints and four half pints of whisky were found in a safe, the safe being opened after the officers arrived by Joe Yeargain, Jr., son of the defendant.

Defendant, Joe D. Yeargain, Sr., was present at the time the search was conducted. He -was sitting in a barber chair and the search warrant was served on him by the officers.

It was the contention of the state that defendant, Joe D. Yeargain, Sr., was operating the barbershop, and the defendant contended that he had no interest therein, but that the business was being operated by his two sons, Joe-D. Yeargain, Jr., and Claybe Yeargain.

The building was about 65 feet deep, and there was a partition located therein. The barbershop was in the front 25 feet, and the Yeargains operated a taxicab service in the rear of the building.

It is unnecessary to give a detailed statement of the evidence with reference to the ownership of the property and the barbershop. There is a direct conflict in this testimony, and we have come to the conclusion that there was sufficient evidence for this question to be submitted to the jury for consideration. The defendant testified that he had no' interest in the business, but that it was being operated by his two sons, as above mentioned. The three city officers testified that it was known as “Year-gains Barber Shop”; that they had seen the defendant there on many occasions, and had seen him with keys to the premises, and that on the date of the search, after defendant’s arrest, he took from his pocket certain keys and money and handed the same to his son Joe Yeargain, saying: “Here is the barbers’ change and the keys to the place.” Three officers testified that they heard the defendant make this statement. He denied making it. One of the officers testified that he had seen the defendant open the safe where the liquor was found.

This evidence, together with the other circumstances, was for the consideration of the jury, and they, seeing the witnesses, and observing their demeanor on the witness stand, were in a better position to judge the truth of the testimony given by the witnesses. It has often been held by this court that the verdict of the jury will not be set aside when there is a conflict in the- evidence, and the evidence of the state is sufficient to sustain the same. It is only when the evidence is insufficient to sustain the judgment and sentence that the case will be reversed.

Defendant’s second assignment of error was with reference to certain testimony of the chief of police of the city of Miami. He testified as follows:

“Q. You know for what purpose this liquor was there? A. I suppose, to be sold. Q. Do you know that of your own personal knowledge? A. Yes, sir. Q. Do you know that? A. Yes, sir, they have been selling liquor right along. Mr. Mason: I move to strike the ‘right along.’ The Court: Overruled. Mr. Mason: Exception.”

This evidence was inadmissible, and was a conclusion on the part of the witness, and should have been stricken from the record by the court. Counsel for defendant asked the question, and the exception to the testimony without a motion to strike and that the jury be instructed not to consider the same, was hardly sufficient to raise the question, and if this was the only error, would not justify a reversal of this case.

During the trial, and Avliile the defendant was upon tlie witness stand, he ivas questioned with reference to a certain note he testified he had received and had refused to give the name of the party who wrote the note. The following occurred in the presence of the jury:

“Q. Who was this man who offered to take the jolt? A. Joe, Jr. Q. The man that wrote you the note? A. I’ll never tell. Q. You refuse to tell? A. No, I wouldn’t tell. I would go to jail or hell before I’d tell. Mr. Pickens: Your honor, that is contempt of court. I would like him to tell the court and jury who- it was that wrote that note. — At any rate the county attorney’s office,— Mr. Mason: That is objected to as incompetent, irrelevant and immaterial, and not competent to the testimony in this case. The Court: I think it might be Avorth more to the state this Avay. Motion denied and objection sustained. Mr. Pickens: Exception.”

This statement by the court was improper. The jury could A’ery easily infer therefrom that it ivas the desire of the court that the state should prevail in this case. It is the duty of the trial court to SO' guard his remarks in the presence of the jury that they may not know Avhat his views are as to the guilt or innocence of the defendant.

The question a.t issue in this case was whether the defendant, Joe D. Yeargain, Sr., Avas the owner, or had contro] oí the premises where the liquor was found. The defendant offered in evidence a certificate issued by the State Board of Barber Examiners, and signed by the county superintendent of health covering the period here in question. This certificate was as follows:

“$3.00 State Board of Barber Examiners

To All To Whom These Presents May Come, Greetings:

KNOW YE, THAT — Joe Jr. and Claybe Yeargain — of Miami, Oklahoma, having paid a fee of $3.00 therefor, is hereby granted pursuant to the authority of House Bill 23, Laws 1931, a

Barber’s Annual Permit

to conduct and maintain a barber shop in accordance with the rules and regulations of the State Board of Barber Examiners, at Miami, Street No. 14 S. Main, County of Ottawa, State of Oklahoma.

This License is Non-Transferable

Dated at Miami, County of Ottawa, State of Okla,-homa.

This 3 day of July, 1940.

E. H. Duewall, M.D.

County Superintendent of Health.

Post in a Conspicuous Place.”

The court refused to permit the defendant to offer this certificate in evidence; saying: “I don’t think that proves anything in this case. Objection sustained.” To which Mr. Mason took a.n exception.

With the issue as it was in this case, Ave are of the opinion that the certificate of the Barber Board Avas admissible. It was not conclusive, and the state could have contested it in any way, shoAving that defendant Avas the actual owner, or in possession of the premises; but defendant was entitled to introduce it as a circumstance to be considered by the jury in his behalf.

The third assignment of error has reference to instructions Nos. 5 and 6. Instruction No. 5 was, in part, as follows:

“On the other hand, Gentlemen of the Jury, if you fail to find to your satisfaction beyond a reasonable doubt that the defendant is not guilty as charged in the information, it would be your duty to bring in a verdict of not guilty.”

It is clear that there is a typographical error in this instruction. The word “not” has evidently been placed therein. With the “not” left in this instruction it could easily be contended that the burden of proof was placed upon the defendant instead of upon the state.

Instruction No. 8 was as follows:

“Gentlemen of the jury, you are instructed in this case that the state does not have to prove to your satisfaction beyond a reasonable doubt that the defendant was the owner of the premises in question. It is sufficient if the state prove to your satisfaction beyond a reasonable doubt that the defendant had possession or control of any part of the premises where the barber shop in question was located.”

This instruction was unnecessary in the determination of the issues in this case. The first half of the instruction is true as an abstract proposition. The second part could easily tend to confuse the jury. Under this part of the instruction, the jury could have come to the conclusion that the defendant did not have either the possession or control of the back part of the building where the taxicab was being operated, and therefore had no control or possession of the safe where the liquor was found, yet if he operated as owner, or that he had control or possession of that part of the building, actually operated as the barbershop, he would be guilty as charged. This instruction is misleading and should not have been given.

It is unnecessary to discuss any further questions presented in this case. We are of the opinion that the judgment and sentence of the county court of Ottawa county should be reversed and the case remanded for a new trial, and it is so ordered.

DOYLE, J., concurs. JONES, P. J., concurs in conclusion.


author: BAREFOOT, J.

text:
    CECIL WATTS v. STATE.
    No. A-10177.
    April 28, 1943.
    (137 P. 2d 268.)

      Hughes & Dickson, of Guymon, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Geo. M. Frittz, Co. Atty., of Guymon, for defendant in error.
   BAREFOOT, J.

Defendant, Cecil Watts, was charged in the district court of Texas county with the crime of driving a motor vehicle while under the influence of intoxicating liquor, was tried, convicted and sentenced to serve a term of six months in the State Reformatory at Granite, and has appealed.

For a reversal of this case the following assignments of error are presented:

“1st. The court erred in refusing to sustain the defendant’s demurrer to the evidence at the close of the state’s evidence.
“2nd. The court erred in giving to the jury its instruction number three over the objection and exception of the defendant.
“3rd. The court erred in giving to the jury its instruction number four over the objection and exception of the defendant.
“4th. That the verdict, judgment and sentence herein is excessive and unwarranted by the evidence.”

There was a conflict in the evidence in this case. We will give a brief summary thereof.

Defendant is a married man and has four small children. On the 1st day of March, 1941, he was working as a farm hand for W. V. Wilkinson, on his farm six miles northwest of Texhoma, He was the owner of an automobile coupe, Avhich he had purchased from Mr. Wilkinson some four to six months prior to that date. On the evening' of March 1, 1941, the defendant in company with R. B. Thrasher, and F. S. Brady, who also was working for Mr. Wilkinson, went from Texhoma to the town of Guymon, in Texas county, in defendant’s car. They arrived, there near 10 o’clock at night, and drove through the city to a new dance hall, found it closed and then drove back through the main street of Guymon to the Shamrock filling station and cafe. All three of the parties got out of the car and went into' the cafe. The record does not reveal how long they were there, but evidently only a short time. They returned to the car and drove about a block, when they were arrested by two' officers, placed in jail and defendant was charged with the crime of driving a motor vehicle upon the public highway while under the influence of intoxicating liquor.

To sustain the charges, the state presented four witnesses : Clay Hughes, Glenn McTntire, L. L. Neald and Daniel W. T-Iansen.

Olay Hughes was a deputy sheriff, and Glenn Mc-Intire the night Avatchman. They testified that they were given the number of defendant’s car by Mr. Neald and Mr. Hansen and asked to pick up Avboever was driving the same. They . drove to a place near the Shamrock filling station and cafe, and saw the car parked Hiere, but there was no one in it. They ivaited a few minutes, and all three of the parties appeared and got in the one-seated coupe. They folloAved the car about a block and stopped it, arrested all three of the parties and placed them in jail. Both of the officers: testified that the defendant and F. S. Brady were drunk, but that R. B. Thrasher was not. Both officers testified that R. B. Thrasher was driving the car when they stopped them, and that they at no time saw the defendant driving the car. Mr. Mclntire, the night watchman, did testify that he saw the defendant arguing with Mr. Thrasher as to who would drive the car, but he could not hear any conversation between them. He assumed that it was with reference to who would drive the car.

The witness L. L. Neald testified that he was standing on Main street in Guymon about 10' o’clock on the night of March 1, 1941. That he saw a black coupe pass him, going south, with two or more persons in it, and that it was within his vision for a minute or a minute and a half. He identified the defendant Cecil Watts as being the one who was driving the car. He was standing on the corner about 15 or 25 feet from the car: He testified that the car' was going at a rather fast rate of speed, and was across the center of the street; that he saw another car dodge this car and go to the curb, and that an elderly lady whom he did not know was almost struck by the car. He testified that he Avas not personally acquainted Avith the defendant, but had seen him in a store one time; several months before this date. He also' testified that an electric light was burning at the corner Avhere lie saAV defendant, and this enabled him to recognize the defendant through the space occupied by the AvindoAv of the car, which was doAvn.

The Avitness Daniel W. Hansen testified that he, Avith his family, Avas driving north on the main street of Guy-mon at about 10 o’clock on the night of March 1, 1941. That a black coupe, with three parties in it Avhom he did not know, was approaching from the north. That the}*- Avere across the center section of the street, and that he quickly drove his car to the curb to> avoid being struck by the coupe. He folloAved the car and saw it park near the Shamrock filling station and cafe. He took the number, • and he and Mr. Neald reported what bad happened to officers Hughes and Mclntire. He testified that he did not know which of the three was driving the car, and could not testify that the defendant Cecil Watts was driving the same.

From the above statement, it cannot be said that the court erred in refusing to sustain the demurrer to the evidence as a question of law by reason of the evidence of the witness Neald, but his evidence may hereafter be considered with reference to all the evidence offered in the trial.

The defendant Cecil Watts testified that he and his two* companions, R. B. Thrasher and F. S. Brady, left Texhoma and drove to Guymon, arriving there near 10' p. m. That they went first to a dance hall in the edge of the city, that it1 was closed, and they then drove through the main street of Guymon to the Shamrock filling station and cafe, all got out of the car’ and went into- the cafe but soon returned to the car and had driven about one block when they were arrested, as stated by the officers. He further testified that at no time from the time they left Texhoma until they were arrested had he driven the automobile in which they were riding, but that the same had at all times been driven by R. B.' Thrasher. He denied being drunk and testified that he had drunk but one bottle of beer. He did not state when or where this had been drunk.

The witness F. S. Brady corroborated the testimony of defendant in every detail with reference to the car being driven by R. B. Thrasher from the time they left Texhoma until the time of their arrest.

The witness Neald had testified that he saw the defendant through the space occupied by the west front window of the car which was down. The defendant and several witnesses testified that the glass had been broken from this window and bad been replaced by a piece of ply-wood. Tlie defendant and Brady testified that the window was raised when they Avent through the main street of (luvrnon, and that it would have been impossible for the witness to have seen through the same. While it may be stated there is a conflict in this evidence, it is only by reason of the evidence of the witness Neald. While it is true that the jury is the judge of the facts, and their verdict will not be set aside Avlien the evidence is conflicting, the evidence in this case on behalf of the state is far from satisfactory in view of the evidence in this record.

It is next contended that the court erred in giving instruction No. 3, which Avas as follows:

“Therefore, in this case, if you find from all the facts and circumstances, and beyond a reasonable doubt, that Cecil Watts, did, in Texas county, Oklahoma, on or about the 1st day of March, 1941, unlawfully, wrongfully, Avilfully and feloniously operate, propell and drive a certain motor vehicle, to-wit: one Ford V-8 coupe with? Oklahoma license tag Ño. 66-2045 thereto attached, along, upon and over a public highway in the county of Texas and State of Oklahoma, towit: along, upon and over Main street in the city of Gfuymon, Oklahoma, south on said Main street of the city of Guymon, Oklahoma, from a point unknown to your informant to the intersection of U. S. Highway No. 54, then and in that event you should find the defendant guilty and fix and assess his penalty at any period of time in the penitentiary, not to exceed one year, or by» a fine of not more than $200, or by both such imprisonment and fine. Otherwise, you1 should find the defendant: not guilty.”

This instruction was the main one given by the court as to the determination of the guilt or innocence of the defendant. From a reading of the same, it will be noted that the court instructs the jury that if they find from all the facts and circumstances tliat the defendant did operate a motor vehicle over the jrablic highway, “then in that event yon should find the defendant guilty,” etc. This instruction nowhere informs the jury that it was necessary for the defendant to be under the influence of intoxicating liquor at the time of operating the motor vehicle, but to find the defendant guilty if he operated the same. It is contended by the state that this instruction should be considered in the light of all the instructions given. This may be true, but this instruction is so palpably wrong that it occurs to us that it could not be construed with other instructions given to the end that it may be said that defendant’s rights were not prejudiced by the giving of the same.

Instruction No. 1 quoted the information. Instruction No. 2 gave the penalty, defined “motor vehicle,” “highway,” and the term “under the influence of intoxicating liquor.” Instruction No. 4 was a special instruction with reference to 3.2 beer. The first part of this instruction was: “You are instructed that a person can become under the influence of intoxicating liquor by drinking 3.2 beer.” This is an instruction upon the weight of the evidence, and should have been covered by a general instruction, if given 'at all. Instruction No. 5 was with reference to the assessment of the punishment by the jury. Instruction No. 6 was upon the presumption of innocence. No. 7 was upon reasonable doubt; No. 8 upon the burden of proof; Nos. 9, 10, and 11 upon credibility of the witnesses, and the weight to be given to their testimony; No. 12 as to argument of counsel; and No. 13 instructed the jury as to their conduct.

It will thus be seen that none of the instructions, with the exception of No. 4, which was more of a special than a general instruction, referred to the fact that it was necessary for defendant to be under the influence of1 liquor at the time of driving the car, if he did in fact drive the same. This instruction was with reference to when defendant would be considered under the influence of intoxicating liquor, and did not refer to driving or operating a motor vehicle upon the public highway.

If this case is to be retried, we desire to call attention to two parts of the record. The defendant while on the Avitness stand Avas asked by the county attorney: “Q. Well, Avere you ever arrested or convicted for Adolation of the prohibitory liquor laws in any state of the Union?” No objection or exception was taken to the asking, of this question, and therefore defendant is not in position to complain of it here. On a retrial of this case, if it is had, we suggest that it is proper to ask a defendant when he takes the witness stand, only for the purpose of affecting his credibility, if he has been convicted; not if he has been arrested. He may be asked if he has been arrested and convicted, but not arrested or convicted. The court, after the defendant had already answered the question in the presence of the jury, sustained an objection thereto on the ground that it was a conviction of a misdemeanor and not a felony. Under the laAv this would make no difference. The jury, however, should have been instructed that this evidence Avas permitted only for the purpose of affecting the credibility of the witness. Abby v. State, 72 Okla. Cr. 208, 114 P. 2d 499, 115 P. 2d 266; Pressley v. State, 71 Okla. Cr. 436, 112 P. 2d 809; Key v. State, 10 Okla. Cr. 206, 135 P. 950.

The record also' reveals that during, the closing argument of the county attorney, he said: “Why didn’t they put Thrasher on the witness stand? I think you know, gentlemen of the jury — it was for a reason I don’t care to divulge.” •

An objection to this argument was overruled by the court. No motion was made requesting the court to instruct the jury not to consider the same. We think this argument was highly improper. The name of R. L. Thrasher was endorsed upon the information as a witness for the state. He was present at the time of the trial. The state did not use him. This they had a right not to do. The defendant closed his case without placing him upon the witness stand. The evidence in this case was very close, and there now remains in our mind a doubt as to the guilt of the defendant. The county attorney owes a duty to the state and also to the defendant. If he honestly thought, as he attempted to argue to the jury, that the witness Thrasher would have testified that the defendant was driving the car, he should have placed him on the witness stand and given the jury the benefit of his testimony. His testimony would have either broken or made his case, and to our mind, when the defendant closed his case and testified as he did, the county attorney should have placed the witness Thrasher upon the stand. If his testimony corroborated the defendant and the witness Brady, he could have moved for a dismissal of the case. If he testified for the state-, his case would have been of that character which would have justified the jury in returning a verdict of guilty. Certainly he did not have the right in his argument to insinuate what his evidence would have been when he had an opportunity to place him on the stand and did not do so. What the jury desired to know, and what this court desires to know, is, was the defendant guilty of the crime charged? The county attorney should only be interested in proving this fact. We think that under the facts and circumstances in this case he should have placed the witness, Thrasher, upon the stand after defendant had closed his case without doing so.

On tbe date this defendant was charged, March 3, 1941, the crime ivas a felony in this state. Since that date, and on March 29, 1941, the Legislature of this state enacted a law making the first, offense for driving an automobile while under the influence of intoxicating liquor a misdemeanor, and the second offense a felony. This statute has been referred to in the case of Phenis v. State, 76 Okla. Cr. 150, 135 P. 2d 62, and in Bilbrey v. State, 76 Okla. Cr. 249, 135 P. 2d 999, decided by this court on April 7, 1943.

For the reasons above stated, the judgment and sentence of ’ the district court of Texas county is reversed and remanded.

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


author: PER CURIAM. BAREFOOT, J.

text:
    EFFIE HILL v. STATE.
    No. A-10168.
    April 28, 1943.
    (137 P. 2d 261.)

      Fred E. LaRue; of Clinton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for the State.
   PER CURIAM.

On information charging that on th 24th day of January, 1941, she did unlawfully have in her possession ten and one half pints of whisky, with the intention of selling the same, Effie Hill, appellant, was tried, the jury returned a verdict, as follows:

“We, the jury do upon our oaths find the defendant, Effie Hill, guilty, but are unable to1 agree upon the punishment.”

Motion for new trial was duly filed; on August 30, 1941, said motion for new trial was overruled, exceptions allowed. Thereupon the court entered judgment and sentenced the defendant, Effie Hill, “to be confined at hard labor in the county jail of Custer county for a term of thirty days and to pay a fine of one hundred dollars and the costs of this prosecution.”

To reverse the judgment the defendant perfected an appeal by filing in this court on October 29, 1941, a petition in error with case-made.

The grounds of the motion for new trial and assigned as error in the petition are in effect as follows: That the court, erred in admitting: incompetent and irrelevant evidence on the part of the state to which the defendant excepted; remarks of the court during the progress of the trial, which were prejudicial to the rights of the defendant; that the court erred in refusing to instruct the jury not to consider improper remarks of the county attorney, that the verdict is not sustained by sufficient evidence and is contrary to law, and that the court erred in overruling the defendant’s motion for new trial.

The state relied for this conviction upon the testimony of two witnesses.

J. E. Murphy, deputy sheriff, testified that with Sheriff Stambaugh, Constable Bill Clark, and County Attorney G. C. Loving, he went to Effie Hill’s place in Weatherford to make a search for liquor1. Handed a paper he stated: “This is a search warrant, a copy of which we used to make the search;” that it was handed to him by W. W. Shelley, justice of the peace at Weather-ford, and he searched Effie Hill’s place on it; that he found two bottles containing liquor in Effie Hill’s house, in the kitchen, on the cabinet; outside of the house in the yard he found another bottle containing liquor, and the three bottles contained approximately a quart of liquor; that the three bottles were found in the premises covered by the description on that search warrant. The record further shows:

“By Mr. Mitchell: We offer the search warrant in evidence for any purpose it might want to serve. The defendant objects: By the Court: Overruled. Let it be marked State’s Exhibit No. 1. Exception allowed.”

The description in the search warrant is as follows:

“That said liquor was being disposed of and kept in the manner aforesaid by one Effie Hill at and in the residence, other buildings, and structures within the curti-lage of said residence, and appurtenances thereto', and all automobiles and other vehicles, situated in and upon the real estate located in Custer County, State of Oklahoma, described as follows, to-wit:
“ ‘Lots 1 and 2, in Block 108, original town of Wea-therford, Custer County, State of Oklahoma, as shown by the recorded plat thereof, and that said premises is a place of public resort,’ and
“Whereas, I find that probable cause exists for said complaint and issuance of this warrant for the reasons stated in said affidavit.”

The endorsements on said warrant are as follows:

“Received this Search Warrant January 24, 1941, and as ordered therein, made a diligent search of the within described premises on January 24, 1941, and found •three pint bottles, containing altogether' about two pints of alcoholic liquor.
“Everett Stambaugh, Sheriff
“By J. E. Murphy, Deputy.
“Filed Aug. 25, 1941.”
“By Mr. LaRue: We object to the affidavit as incompetent, irrelevant and immaterial. By the Court: Let the objection be sustained as to the affidavit and remove the affidavit from the files and mark the rest of it asi State’s Exhibit No. 1. By Mr. Mitchell: We offer State’s Exhibit No. 2 in evidence. By Mr. LaRue: No objection. By the Court: State’s exhibit number two will be admitted in evidence. They are three bottles of liquor each about half full, containing about one quart of liquor.”

The record further shows:

“Q. Mr. Murphy, are you familiar with the premises described in this search warrant as to whether or not this place, or premises, are a place of public resort? By Mr. LaRue: We object to that question for the reason it is incompetent, irrelevant and immaterial, and calling for a conclusion of the witness. By the Court: Tell wha,t the facts are but not your conclusion about it.”

He Avas then asked seven or eight similar questions, to each of Avliich defendant’s objections were sustained by the court.

The record shows his last question and answer are as follóles:

“Q. Mr. Murphy, testify who you saw around the premises in question, around the 24th day of January, this year- Objection overruled Exception alloAved. A. Well, I suav the officers that were Avith me, and Effiel Hill and another negro Avoman there, buit. I can’t be certain of that, at that time. That is all I remember.”

Everett Stambaugh, sheriff of Custer county, testified, that in company Avith Mr. Murphy, and some of the Weatherford officials, and Mr. Loving', county attorney, in executing a search Avarrant directed to the property on AAhieh Effie Hill lives, Mr. Murphy carrying the warrant, they Avent to the place described, that he did not find anything on Effie Hill’s premises himself, but made some further investigation and looked on the south side of the house and around the garage, and in the cave and hen house “that he discovered some tracks leading south.”

Defendant’s objection overruled.

lie further testified: “I folloAved them out: south to the fence and over the fence into a little pasture in a Avasli in some kind of tin boiler or something, there was seven pints and three half pints of liquor in a sack.”

Motion to strike witness’s testimony overruled. Exception allowed.

“By the Court: Let the record show that state’s exhibit number three consists of seven full pint bottles and three half pint bottles.”

He was then asked:

“Q. Where did you first notice these tracks you testified to? Defendant’s objection overruled. Just out in the yard, the house faces the east end outside leading down the path, it is a street but it is not opened. They were just off this property that we were searching. They lead to the end of the street and there was a fence there and the whisky was over the fence in the pasture.”

Defendant’s objection overruled:

“By the Court: I would like to know where he found the tracks. What Ave Avant to find out from this witness is where the tracks were with reference-to the property of the defendant. I can’t see anything questionable about this question. Q. EArerett, tell us where you found the tracks with reference to the house in which Effie Hill lives? A. Well, I didn’t measure it, but I Avould judge 10 or 15 feet southeast of the front porch. Q. What kind of track Avas it? A. A woman’s track. Q. Then Avhere did you go from there? A. I went south to the fence, and dumb over the fence. Q. Why did you go south? A. Because I have found liquor there before, not in the same spot but near there. By Mr. Mitchell: We offer state’s exhibit No. 3 in evidence. By Mr. LaRue: To which the defendant objects for the reason it is incompetent, irrelevant and immaterial, and it is not shown that this defendant had anything; to do with this liquor or was in any Avay connected AAdth it whatsoever, and for the further reason it has not been shoAvn where the liquor Avas found with reference to the defendant’s property, how far it was away from it. By the Court: Overruled. State’s exhibit No. 3 will be admitted in evidence. Exceptions taken.”

Cross-examination by Mr. LaRue:

“Q. Everett, how far was it from this fence to where you found this liquor? A. I would say from where I am to the back of the courtroom there, I might be off a little but that would be my best judgment. By the Court: Let your records show it is about 75 feet. Q. Now, is there a house directly across the street from this defendant’s property? A. Not directly, I don’t think. Q. There is one across the street? A. Yes, sir. Q. Do you know if anyone lives there or not? A. I think there is, but I don’t know who. Q. I'hat is in the colored settlement, and there are several houses around there. A. Yes. Q. There are three in that particular vicinity? A. Yes, sir. Q. Anybody going down toward the creek could come down that street, climb over the fence and go down to the creek where you found the liquor? A. They could.”

On redirect examination by Mr. Mitchell, assistant county attorney, he testified over defendant’s objections:

“I have on other occasions been in the neighborhood of this property, I would say a week previous to the time we raided her property, I could not say for sure the exact date, I was just scouting around, I saw cars and people going to and from this particular place, the home of Effie Hill. I would not swear who the people were, I could not determine whether they were colored or white, I thought they were both, but I would not be positive, I could not call any other date. By the Court: Objection overruled. Common usage over a period of time would make it a public resort. By Mr. LaRue: He has to fix the time. By the Court: He fixes it within the period. By Mr. LaRue: He said not too long, it might have been three years or it might have been even longer. By the Court: Overruled. Exception allowed. By Mr. Loving: Was this 'at night or in the day time? A. Nighttime. Objection overruled. Exceptions. Q. Mr. Starn-baugh, have you had occasion to observe this place at any other time? A. Well, I observe places that I think was in the liquor business every once in a while. By Mr. LaRue: We move the answer be stricken and the jury admonished not to consider the answer. By the Court: Gentlemen of the Jury, you are admonished not; to consider the question or the answer, try this law suit on the! evidence. By Mr. Mitchell. Exception. Q. Mr. Stam-baugh, on this first occasion where were you located from the defendant’s property that you observed? A. I was!, south. Q. How far south? A. Approximately a half of a mile. Q. How were you observing the defendant’s property? A. Through field glasses.”

On cross-examination he stated that Effie Hill’s house, the front porch is pretty close to the lot line of the street.

“Q. Then these tracks that you talk about were out in the street, weren’t they? A. I wouldn’t say, I don’t know where the line was? Q. Everett, do you know whose property this exhibit, these eight and one-half pints of whisky were found on? A. I do not. Q. Which sida of this street, if the street went on south, which side of the street would that whisky be on, which side of the street, the east side or west side? A. I could not tell you, I don’t know where the center of the street is there. My best judgment would be about twenty five feet east of the house and one hundred and seventy-five feet south, to where I found the whisky. By Mr. Loving: The state rests. By Mr. LaRue: Comes now the defendant and moves the court to direct the jury to return a verdict of not guilty for the reason that the evidence is wholly insufficient to show that this, defendant is guilty of the offense charged in the information. By the Court: I will deny the motion. By Mr. LaRue: Exception.”

As a witness in her own behalf, Effie Hill testified:

“I live on South State street, in Weatherford, on the 24th of January, Sheriff Stambaugh and some other parties, searched my place, Mr. Murphy got a half pint and a piece of a pint of alcohol in my cabinet, and some tall man that was standing around the house looked down at the corner of the house, and he says ‘Look there/ and he kicked a bottle and I said, ‘What is it?’ He smelled of it, and says, ‘It is water and alcohol mixed’; and that is all they found, that half pint and pint on my cabinet. I do not know anything about the bottle they found outside, that the liquor they said they found out in the pasture was not her liquor, that she never had anything to do with that, and did not know anything about it), until they came up with it, that when she saw the sheriff go off down in the pasture he walked over1 across the street, and said he saw a track that went over the fence, and where he found it Avas good deal further than that church over there, that she don’t know whose liquor it was or is, that the county attorney was there and he said, ‘Effie, we have to find a quart or we can’t prosecute you/ and I said, ‘Help yourself/ and we just put our things back in the cabinet.”

On cross-examination she testified that a bunch of women, Ave call the Notary Club, meet from house to house every Thursday, and get together to have a little fun, and get eggs and make eggnog, and she had that in the house to use it, that the bottle that was near the house was not found by Jim Murphy, it Avas another fellow that had on a Avhite hat, Mr. Murphy Avanted her to unlock the cellar doór and Avhen she unlocked it she saw this old man standing there looking down at a bottle, he smelled the bottle and says, “it is water’ and alcohol mixed.”

That she had lived in this house, her home for the past thirteen years, and her son, four years old, lives' with her.

The case-made covers about 100 pages, and the foregoing, is a substantial statement of the testimony.

Both parties rested and the defendant again moved the court to direct the jury to return a verdict of not guilty, for the reason there is no evidence that the whisky found out in the pasture was her whisky, and there is no evidence to connect her with it, it was therefore incompetent and should be stricken from the record.

For the further reason that the whisky found on the premises of the defendant, is less than a quart and therefore not prima facie evidence of possession with intent to sell.

Objections overruled and exceptions allowed.

The record shows that counsel for the defendant objected to the following statement made by G. C. Loving, county attorney, in his closing argument to the jury:

“That the people who go> down there go for only one purpose and that is for the purpose of purchasing whisky from the defendant Effie Hill. By Mr. LaRue: The reason we object to1 it is that there is no' testimony on which a statement of that kind can be based, and no evidence from which a conclusion can be drawn. By the Court: Overruled. By Mr. LaRue: Exceptions. By the Court: Mr. LaRue; you must follow the procedure of law and the rules of this court. By Mr. LaRue: I know, how to do that. By the Court: I am not going to let you make an argument like you have just made here. By Mr. LaRue: I am going to object to any statement that is prejudicial to my client. By the Court: You are not going to heckle the county attorney as he makes his argument. By Mr. LaRue: We object to the statement of the court. By the Court: Let your record show the objection.”

In the course of his argument, the county attorney also stated:

“Gentlemen, what are you going to do with the defendant over there in the liquor business. Are we going to continue to let her operate. Where people can go and buy liquor. By Mr. LaRue: We object to the county attorney statement that she is over there in the liquor business. By the Court: That is argument, gentlemen of the jury, you will decide this case on the evidence submitted to. you.”

The record shows the following, closing statement by the county attorney:

“I think, gentlemen, if you want her to stop bootlegging in Custer county, I would suggest that you give her six months in the county jail and a one hundred dollar fine, and that is what I trust you will be able to do in this case.”

A consideration of the foregoing record leads to: the conclusion that the judgment in this case cannot be permitted to stand. It is evident that the defendant did not have a fair trial. A fair trial is a legal trial, or one conducted in all material things in substantial conformity to the law. An unfair trial, especially in a criminal case, is a reproach to the administration of public justice. And in this case, there seems to have been a careless disregard of the legal rights of the defendant.

The only competent testimony which in any manner tends to support the verdict was that two pint bottle®, each about half full of liquor, were found in the kitchen of the defendant’s house, and a pint bottle found outside in the yard, containing a small amount of liquor.

Deputy sheriff Murphy testified that “The three bottles contained approximately a quart of liquor.”

The record shows the court stated when “Exhibit No. 2” was offered in evidence: “State’s Exhibit No. 2 will be admitted in evidence. They are three bottles of liquor, each about half full, containing about one quart of liquor.”

It will be observed that the return on the search warrant is: “And found three pint bottles, containing] altogether about two pints of alcoholic liquor.”

The statute (37 O. S. 1941 § 82, Laws of 1933, ch. 153, p. 339, § 3) provides that the keeping in excess of one quart of intoxicating, liquor, “shall be prima facie evidence of an intention to convey, sell or otherwise dispose of such liquors.”

As defined by Webster, “Approximate” is “To bring near, cause to approach” and “Approximation” is “an approach to a correct estimate.”

Obviously, the amount found on the premises described in the warrant was not in excess of one quart of intoxicating liquor.

That the court erred in admitting the intoxicating liquor found in the pasture cannot be doubted. There should be some proof that the defendant was in possession of the intoxicating liquor found in the pasture or such circumstances from which it may be reasonably and logically inferred, such as proof of the ownership, or control of the land where it was found, or such connection with it that it can be said that there is proof of possession. The evidence fails to show that the pasture was in the possession or under the control of the defendant, or that the intoxicating liquor was hers, or that she had possession of the same. Mater v. State, 9 Okla. Cr. 380, 332 P. 383; Benson v. State, 10 Okla. Cr. 16, 133 P. 271, 274; Crowder v. State, 47 Okla. Cr. 197, 287 P. 739.

In the statement of the court as shown by the record as to how far the liquor was found inside the pasture fence that, “let the record show that it is about seventy five feet”, was in effect a comment upon the weight of the evidence, and the further statement of the court overruling the defendant’s objection to the sheriff’s statement, “Common usage over a period of time would make it a public resort.”

We cannot escape the conclusion that the defendant was prejudiced by the trial court’s comments on the evidence.

Jurors are easily influenced by the remarks of a trial judge, find the greatest care should be observed that nothing is said that can by any possibility be construed as an expression of the trial judge’s views respecting the merits of a criminal case. Courts cannot be too circumspect in this regard.

Under our system of criminal jurisprudence, the jury are the exclusive judges of the weight and credibility to be given to the testimony of a witness, and the comments of the trial court constituted an improper invasion of the province of the jury.

In Harrison v. State, 11 Okla. Cr. 14, 141 P. 236, 237, we said:

“It is the duty of trial courts to refrain from allowing their actions or words to indicate to the jury their opinion, of the credibility of any witness who testifies in the case upon trial before them, or of the merits of any such case.”

And see Koontz v. State, 10 Okla. Cr. 553, 139 P. 812, Ann. Cas. 1916A, 689; Stricker v. State, 26 Okla. Cr. 141, 222 P. 704; Westfall v. State, 30 Okla. Cr. 115, 235 P. 270; Little v. State, 72 Okla. Cr. 273, 115 P. 2d 266.

It is also insisted that the county attorney in his closing argument to the jury made improper and prejudicial remarks, and that the court erred in overruling the defendant’s objections thereto.

It would seem from the record that the county attorney who 'accompanied the officers when the raid on the defendant’s residence ivas made, his statement was under the circumstances highly improper. If the county attorney knew that the defendant was guilty, he should have taken the stand as a witness so- that the defendant could have the benefit of confrontation and cross-examination. A prosecuting attorney should confine his argument before the jury to a fair discussion of the issues in the case, and improper remarks objected to- at the time will be considered and construed in reference to- the evidence. Childs v. State, 13 Okla. Cr. 461, 165 P. 622.

In Cline v. State, 57 Okla. Cr. 206, 47 P. 2d 191, 195, we said:

“It is improper for a prosecuting attorney to state his opinion as- to- the defendant’s guilt, or to- state facts not proven by the evidence, or otherwise to get before the jury that which amounts to- his own testimony. But he may state his opinion as to the defendant’s guilt when he also states that this opinion is» based upon the evidence in the case.”

It appearing that the objectionable remarks were largely in reference to the evidence hereinbefore held inadmissible and prejudicial, we deem it unnecessary to further discuss the same.

A fair and impartial trial is guaranteed to all persons, whether innocent or guilty, and it is the duty of the trial court to uphold this guaranty.

The defendant was entitled to the full benefit of the legal presumption of innocence, and could not properly be convicted unless the evidence established her guilt beyond a reasonable doubt.

We think that under the undisputed facts and circumstances in this case- the trial court should have sustained the defendant’s motion for a directed verdict of acquittal.

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

JONES, P. J., and BAREFOOT, J., concur in the conclusion.

BAREFOOT, J.

(concuiuing). I am of the opinion that this case should be reversed and remanded to the county court of Custer county for further proceedings; but do not- agree with that part of the opinion which states that the trial court should have sustained the defendant’s motion for a directed verdict of acquittal.

JONES, P. J., concurs.


text:
    HIRAM PRATHER v. STATE.
    No. A-10189.
    April 28, 1943.
    (137 P. 2d 249.)

      W. J. Hulsey, of McAlester, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and S. H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, P. J.

This is an appeal from a conviction for murder with the sentence of death in the district court of Pittsburg- county.

The charge of murder of Warden Jess Dunn filed against the defendant, Hiram Prather, is an outgrowth of an attempt on the part of four long-term convicts to escape from the State Penitentiary, which attempt resulted in the death of Warden Jess Dunn, Deputy Sheriff Tab Ford and three of the four convicts. The defendant, Hiram Prather, was the only convict who survived.

The facts established by the proof of the state show that about 10 a.m. on Sunday morning, August 10, 1941, Warden Jess Dunn was in the prison yard at the State Penitentiary with one J. H. Fentriss, who had been employed by the State Board of Public Affairs to install a communication and public address system at the Penitentiary. Warden Dunn and Fentriss were in the yard making a check to determine where to install the communication equipment when they were seized from behind by four convicts, three of them armed with sharp dirk knives and one of them with a razor. The knives and razor were held a.t the throats of both Dunn and Fentriss, their hands were tied behind them, and with a convict on each side of them Warden Dunn and Fentriss were marched to the first of two east gates of the Penitentiary. A few minutes’ controversy there occurred before the guards at the tower in charge of the first gate would open the gate to allow the four convicts and the two kidnapped men to pass. It was only after one of the convicts, holding a sharp knife to the breast of Warden Dunn, had commenced pressing the knife toward the heart of the warden to where blood was streaming out of the wound and showing on the warden’s shirt, that the guard in charge of the gate opened the same to allow them to pass. A short distance from the first east, gate was a second gate which formed the outer boundary of the prison walls. Another argument with the guards at this gate occurred which finally resulted in the guards lowering a pistol and a 30-30 Winchester rifle which were seized by the convicts. After passing through the outer gate the convicts, together with their hostages, seized an automobile and commenced to flee.

During the period of time which had been taken by the arguments with the tower guards, the officers of Pitts-burg county had been notified and Deputy Sheriffs Bill Alexander, Bob Pollock and Tab Ford drove to the Penitentiary. They arrived shortly after the convicts had fled and immediately commenced pursuit. The convicts took a road from the Penitentiary which led to a barrier where the road was being repaired. When • they reached this barrier they turned their car and started back. Deputy Sheriff Alexander saw them approaching and blocked the road with his automobile, forcing the convict car to1 stop. A gun battle ensued between Deputy Sheriff Alexander, armed with a rifle, and the convicts, resulting in the deaths of the parties hereinbefore mentioned. The defendant Prather, together with convicts Beavers and Anderson, attempted to flee from the car after it stopped and take refuge in a ditch adjacent to the road. After Alexander had killed Beavers and Anderson, Prather came out of the ditch with his hands in the air and surrendered. Warden Dunn and convict McGee were both dead in the front seat of the automobile. The proof showed that Warden Dunn had been shot three times in the back of the head, close to the right ear, by one of the convicts armed with a pistol.

The testimony of all of the witnesses was to the effect that the man who’ sa.t on the right side of the rear seat was the one who fired the shots that killed Warden Dunn and the proof showed that the defendant was the convict who sat at this position.

In this connection the witness Fentriss testified that he was sitting in the middle of the back seat. He further testified as follows:

“Q. (By Mr. Hulsey, counsel for defendant) Do you say and tell this jury that Prather, the defendant, was the man that was sitting at your right? A. Yes, sir. Q. Did you see him with a gun? A. Yes, sir. Q. What kind of gun? A. Pistol.”

He further testified that when the shooting commenced he rolled over to the bottom of the car and did not actually see the shots fire that killed the warden.

Officer Alexander also testified that the convict, on the right-hand side of the rear seat Avas armed Avith a pistol and fired the first shot.

None of the three bullets fired into the head of the Avarden emerged, but tAvo of them were removed and a ballistic expert testified that he fired a test bullet from the pistol used by the convicts and that this test bullet, Avhen compared with the two bullets removed from the head of Warden Dunn, shoAved conclusively that they had all been fired from the same gun.

It is apparently undisputed that Warden Dunn Avas killed by a pistol in the hands of one of the convicts, but it was the contention of the defendant that the shots Avhich killed the Avarden were fired by conAdct McGee and not the accused. This contention is not based on any testimony of the defendant, as no evidence was offered in his behalf, but- is based AAdiolly upon a discrepancy appearing in the testimony of one of the state’s witnesses, Avho said that the convict Avho did the shooting had on Avhat is described as weed-row clothes, which were blue denim with small stripes, while the testimony of the Deputy Warden showed that the defendant Hiram Prather had been Avorking in the mess hall and Avas dressed in white.

Another physical fact, however, disputing the claim of defendant that Roy McGee fired the fatal shots at the warden, was the fact that McGee was sitting in the front seat with the warden and was found slumped over dead against the warden after the shooting had ended. The fact that the warden was shot in the hack of the head, close to the right ear, makes it practically physically" impossible for the convict McGee to have fired the fatal shots.

But irrespective as to which of the convicts actually fired the shot which killed the warden, they were all equally guilty of murder for the reason that they were jointly engaged in a conspiracy to commit a felony and the killing arose out of the commission of that felony, making all of the joint participants equally guilty of murder under the law.

In the brief of the defendant two contentions are presented: First, the admission in evidence of a written confession allegedly given by the defendant but which was never signed by him. Second, the punishment was excessive under the facts.

The statement in question is one given by the defendant in the warden’s office at the State Penitentiary a few hours after the attempted escape, in the presence of the county attorney, two deputy Avar dens and the county attorney’s stenographer who took stenographic notes' of a conversation had between the county attorney and the defendant. When the county attorney’s reporter took the witness stand to testify concerning this incident, she swore that she took accurate stenographic notes of all the questions asked by the county attorney and the answers given by the defendant, and that subsequently she correctly transcribed her stenographic notes of said proceeding. After the transcript Avas prepared the statement Avas never presented to the defendant for his signature and one of the objections now raised pertains to the fact that the instrument in writing was not admissible in evidence without the signature of the defendant, but could only be used for the purpose of refreshing the memory of one of the parties ivlio was present at the time of the transaction.

When this witness first identified the written statement, counsel for defendant objected to its introduction for the reason “that defendant was not informed of his constitutional rights before the statement was made.” When this objection was made the trial court excused the jury and in the absence of the jury heard the evidence offered by the county attorney of the facts surrounding the examination of the accused. These parties testified that said statement was freely and voluntarily made, no promises given nor threats made, nor any statements made to induce the defendant to make the statements. The defendant did not testify on this question and no one disputed the testimony of the parties who were present that the defendant freely and voluntarily answered the questions asked by the county attorney.

The statement itself is not so important and did not shed any light upon the background of the attempted escape nor relate any facts which were not proved by other witnesses, and in the statement the defendant specifically denied firing- the shots which killed the warden, but stated that he was armed with a rifle. The only damaging statement made by the defendant, insofar as the questions as to who actually shot the deceased Jess Dunn was concerned, was his admission that he was riding on the right-hand side of the rear seat. This admission of the defendant is important because it was definitely established by all of the witnesses for the state that the shot that killed Warden Dunn was fired by the convict who was riding on the right-hand side in the rear. seat.

In Mays v. State, 19 Okla. Cr. 102, 197 P. 1064, 1065, it is stated:

“The fact that the defendant was under arrest and in jail, and Avas1 not warned that any statement made by him might be used against him, Avill not affect the admissibility of any Aroluntary statement made by him, which would otherwise be competent.
“The fact that statements of the defendant offered as a confession of murder were made to the arresting officer in answer to questions which assumed his guilt, and that the officer told him that it would be better to tell the truth, does not show that the confession was not voluntary.”

In Jewell v. State, 41 Okla. Cr. 389, 273 P. 366, 367, we held:

“A statement freely and voluntarily made by a defendant, otherwise competent, is not rendered incompetent by the fact that he was under arrest at the time, was not represented by counsel, and that same was made in response to questions propounded by the officers for the state.”

See, also, O’Neil v. State, 38 Okla. Cr. 391, 262 P. 218; Tarkington v. State, 41 Okla. Cr. 423, 273 P. 1015; Anderson v. State, 8 Okla. Cr. 90, 126 P. 840, Am. Cas. 1914C, 314.

In all of these cases the real question for determination is Avliether there has been any threat or promise of such a nature that the prisoner Avould be likely to tell an untruth from the fear of the threat, or hope of profit from the promise.

The court, in the instant case, imposed a greater burden on the state than required by law for the reason that prima facie all confessions are presumed to be voluntary and admissible in evidence and the burden is on defendant, if the same is challenged, to show that the same was made under such circumstances as to render it involuntarily made and inadmissible. Here the trial court, in order to be exceptionally fair to the accused, required the state to assume the duty of proving in the first instance that the statement was voluntarily made. This was done. No counter-showing was offered by the defendant and the statement was admitted in evidence. After admitting the same in evidence the court, by proper instruction, submitted the question to the jury as to whether it was voluntarily made, and further advised the jury that if they were of the opinion that the statement was involuntarily made they should disregard the same.

We cannot agree with counsel’s contention that the statement which was reduced to writing was inadmissible for the reason that the same was not signed by the accused. Here it appears undisputed that the reporter took all of the statements made by the accused and correctly transcribed the same. One of the chief reasons that courts view alleged admissions of guilt with caution is because there is sometimes a tendency by over-zealous officers, when statements are orally made, to add or detract from some of the words used by the accused to' lend color to his admissions. This same objection is not possible where a reporter takes down the identical words and correctly transcribes them.

In Bosko v. People, 68 Colo. 256, 188 P. 743, it is held:

“Where a stenographer who took the confessions of defendants in form of questions and answers testified that the confessions as transcribed by her were correct, the confessions were admissible without proof of the signatures of defendants affixed thereto.” In discussing this proposition the court stated: “It is contended that these confessions were inadmissible because the signatures thereto' were not proven. The absence of such proof is: wholly immaterial. They did not depend thereon for their admissibility. Had the signatures been proven, the confessions1 plight have been admitted without the testimony of the stenographer. They would then have depended for their admissibility upon the proof of the signatures and been admitted under the rule governing written confessions. In the absence of such proof their admissibility rested entirely upon the evidence of the stenographer who took them. Her testimony is not of the execution of written documents, but of oral conversations, supplemented by the transcript of those conversations from her shorthand notes and the presentation thereof to the court; hence the objection is without merit.”

In State v. Haworth, 24 Utah 398, 68 P. 155, 156, it is held:

“A purported confession of defendant in a homicide case, taken down in writing by the person to whom the confession is made, is admissible, though not signed by the defendant.”

We come now to the consideration of the contention of counsel that the punishment assessed the defendant is excessive. Counsel’s argument is based solely upon' the proposition that the accused did not fire the fatal shots. In the first place, as shown by the evidence herein-above discussed, the jury would have been fully justified in concluding beyond a reasonable doubt, that the defendant was the person who fired the shots that killed Warden Dunn. But aside from that fact, the proof conclusively showed that the defendant and the other1 convicts conspired together to commit a felonious act, to wit, to escape from the Penitentiary, and during the existence of this conspiracy and while in furtherance thereof, the warden was killed; then, under our law, the defendant is just as guilty of the crime of murder1 as if he, instead of one of his associates, as is claimed by him, fired the fatal shot. Turner v. State, 8 Okla. Cr. 11, 14 126 P. 452; Holmes v. State, 6 Okla. Cr. 541, 542, 119 P. 430, 120 P. 300; Davis v. State, 31 Okla. Cr. 109, 237 P. 471.

It is our view that- irrespective of the question as to- whether the accused or his confederates fired the fatal shot, the facts are such as justify the exaction of the extreme penalty fixed by the law. It is well that the citizens of Pittsburg county by their verdict have warned that convicts who attempt to escape from the walls of the State Penitentiary and kill another person while so doing shall pay the extreme penalty. This was a most willful and vicious murder without any extenuating circumstances. Prior to firing the fatal shots into the warden’s head the convicts had repeatedly stabbed and tortured him with their knives to try to> force him to give orders to the tower guards and later to the deputy sheriffs who- overtook them. The only explanation of the warden’s death is that the convicts, seeing their attempted escape was being thwarted, shot the person who to- them was a living symbol of the officers of the law who were blocking their escape. A kindly and efficient warden, loyal to his trust, was killed by the dastardly acts of' defendant or one of his fellow conspirators. Any other verdict than the extreme penalty would have been a travesty upon justice and an open invitation to the convicts, especially 'those who were already under life-sentence for crimes committed by them, to take the law into- their own hands and kill and kill and kill, if need be, to effect a getaway, knowing that if frustrated their punishment would be no greater than the sentence which they were already serving.

On account of the gravity of this case, and by reason of the fact that the death penalty has been imposed, we have scrutinized the record carefully to see whether any error was committed which is sufficient to require this court to reverse the judgment or modify the sentence which was imposed. We have found none.

The judgment of the district court of Pittsburg county is accordingly affirmed.

The time originally appointed for the execution of the defendant Hiram Prather having passed pending this appeal, if is ordered, adjudged and decreed by this court that the judgment and sentence of the district court of Pittsburg county be carried out by the electrocution of the defendant Hiram Prather by the warden of the State Penitentiary at McAlester, Olda., on Wednesday, July 14, 1943.

BAREFOOT and DOYLE, JJ., concur.


text:
    Ex parte DON BAKER.
    No. A-10350.
    May 5, 1943.
    (137 P. 2d 242.)

      Mathers & Mathers, of Oklahoma City, and William M. Stringer, of Moberly, Mo., for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original proceeding in habeas corpus filed by Don Baker to secure his release from confinement in the State Penitentiary.

. The sole contention of petitioner is that he was tried for the murder of one. Lawrence Rich and was convicted by a jury and sentenced by the court to serve 45 years in the State Penitentiary for the crime of manslaughter in the first degree. That under the facts said killing was the result of injuries received by the deceased during an armed robbery, and that under the statute, since the killing occurred allegedly while the petitioner was committing a felony, to-wit, robbery, the crime would be murder or nothing, and that since the court erroneously submitted the issue of manslaughter in the first degree, that the court was without jurisdiction to accept and receive said verdict.

A rule to show cause was issued, and at the hearing before this court a certified copy of the information filed against defendant was introduced in evidence. Said information alleges the murder to have been committed on the 29th day of September, 1936, by making an assault upon one Lawrence Rich with a certain blunt and dangerous weapon, identity unknown, with the premeditated design to effect the death of the said Lawrence Rich, and did strike in and upon his head Avith said weapon, then and thereby inflicting certain mortal wounds from which the said Lawrence Rich did on December 26, 1936, die.

Since the information does not charge the crime of murder committed while in the act of committing a felony, but alleges an assault with a premeditated design to effect death, the court properly submitted the issue of manslaughter in the first degree in view of the fact surrounding the homicide.

However, it has been called to our attention by the Attorney General that after the conviction of petitioner his case was appealed to this court where the judgment was modified to a term of 25 years’ imprisonment in the State Penitentiary and affirmed. Baker v. State, 65 Okla. Cr. 136, 83 P. 2d 586.

In the case of In re Booth, 74 Okla. Cr. 406, 126 P. 2d 751, it is stated:

“The Criminal Court of Appeals will not issue writ of habeas corpus where accused has appealed his judgment of conviction, the judgment is affirmed and questions raised in habeas corpus proceedings were in existence and known to petitioner at time of appeal and were matters which properly should have been presented by appeal.
“Criminal Court of Appeals will not permit an accused to appeal his judgment of conviction and speculate upon his chances of securing a reversal and then, after the judgment of conviction is affirmed, come into court in a habeas corpus proceeding and raise the same or other grounds which might entitle the petitioner to- a new trial or his release from custody, unless the question raised is such as to show that the judgment is wholly void.”

The writ of habeas corpus is denied.

BAREFOOT, J., concurs. DOYLE, 3., concurs in conclusion.