text:
    CHARLES W. WINGER v. STATE.
    No. A-10908.
    Dec. 15, 1948.
    (201 P. 2d 264.)

      John D. Bradley and Shutter & Shutler, all of Kingfisher, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Wayne B. Smith, Co. Atty., of Kingfisher, for defendant in error.
   BAREFOOT, P. J.

Defendant, Charles W. Winger, was charged in the county court of Kingfisher county with the unlawful possession of intoxicating liquor, to wit: 731 pints of whisky; was tried, convicted and sentenced to pay a fine of $200 and to serve 30 days in the county jail, and has appealed.

Defendant presents three propositions for which it is contended this cause should be reversed: that the search warrant was directed to C. C. Crabb, State Investigator, Oklahoma Department of Public Safety; that the affidavit for the search warrant did not state that it was for the purpose of searching a private residence; and that the search warrant was not properly served on defendant.

The first proposition has been decided contrary to the contention of the defendant. In the case of Bowdry v. State, 82 Okla. Cr. 119, 166 P. 2d 1018, 1020, Judge Jones, who wrote the opinion, quoting from the case of Mitchell v. State, 74 Okla. Cr. 416, 127 P. 2d 211, says:

“ ‘Under 74 O.S. 1941 § 149, the officers and members of the State Highway Patrol and such other officers and investigators as the Commissioner of Public Safety shall designate shall have the authority of other peace officers, including the right and power of search and seizure, but excluding the service of civil process.’
“ ‘In order for an investigator appointed by the Commissioner of Public Safety to make a lawful search under the above statute, there must be a specific designation in the search warrant directing him to serve the same or if the warrant is specifically directed to a named officer in a certain county, he may assist such officer if the officer is present and requires his aid.’ ”

In the instant case the search warrant was secured by and upon the affidavit of C. C. Crabb, State Investigator, Oklahoma Department of Public Safety, and was directed to and served by said C. C. Crabb in person.

In the Mitchell case, supra [74 Okla. Cr. 416, 127 P. 2d 212], the warrant was directed “to the sheriff, marshal, policeman or any peace officer in Pontotoc County”, and the court held that the search warrant “could only be served by an officer of Pontotoc County or if an officer of Pontotoc County to whom the writ was directed was present and required it, under the statute, the investigators could have assisted in the search.”

The second and third propositions may be considered together. The search warrant issued in this case on April 27, 1946, and was based upon the affidavit of C. C. Crabb, State Investigator, Oklahoma Department of Public Safety. The affidavit is as follows:

“State of Oklahoma, County of Kingfisher, ss.
“In the County Court in and for said County and State.
“In the matter of the search of a tract of land beginning at the SE corner of the SW% of the SE% of Section 31, in Township 15 North, Range 7 West of Indian Meridian, and running thence west ten (10) rods, thence north sixteen (16) rods, thence east ten (10) rods, thence south sixteen (16) rods to the point of beginning, containing one acre according to the government survey thereof, in the possession of Charles W. Winger.
“C. C. Crabb, who being first duly sworn according to law, deposes and says that on or about the 27th day of April, 1946, in Kingfisher County, State of Oklahoma, the following premises are being used as a place where spirituous, vinous, fermented, and malt liquors, and imitations thereof, and substitutes therefor, are received, manufactured, stored and kept for the purposes and intent of being sold, bartered, given away, or otherwise furnished in violation of the prohibitory laws of the State of Oklahoma, to-wit: A tract of land beginning at the SE corner of the SW14 of the SE% of Section 31, in Township 15 North, Range 7 West of Indian Meridian, and running thence west ten -(10) rods, thence north sixteen (16) rods, thence east ten (10) rods, thence south sixteen (16) rods to the point of beginning containing one acre according to the government survey thereof, in the possession of Charles W. Winger.
“Affiant further states that the basis of this Complaint and the facts upon which it is founded are as follows, to-wit: that said premises so described aforesaid bear the general reputation of being a place where intoxicating liquors, to-wit: Whisky, wines and beer are had, possessed, kept, and received for the purpose of sale and are sold; that numerous persons whose true and correct names are to this affiant unknown have been seen to enter said premises in a sober condition and later stagger forth from said place under the influence of intoxicating liquors; that numerous persons whose true and correct names are unknown to this affiant congregate in and resort to said premises at all hours of day and night for the purpose of buying, selling and drinking said intoxicating liquors; that numerous persons whose true and correct names are to this affiant unknown have been seen to leave said premises at' all hours of the day and night carrying bottles from which they have been seen to drink the contents and the bottles after having been east aside were examined and bore the odor of intoxicating liquor, to-wit: whisky and alcohol, and beer and/or wine; that different individuals have been seen on said premises drinking from bottles and immediately after drinking have been seen to stagger from intoxication and heard to talk in a thick tongued manner; that said premises are frequented by habitual drunkards and constitute a public nuisance and that said premises are used as a public resort.
“Wherefore, affiant asks that a search warrant issue, directed to a peace officer of said county, commanding him to search the above described premises, and to seize all liquors there found, together with the vessels in which it is contained, and all inplements, furniture, and fixtures used or kept in connection with such violations of the prohibitory laws of the State of Oklahoma.
“That said premises are located as herein- described, in the city or town of Okarche in said county and state and used contrary to the form of the statute in such case made and provided and against the peace and dignity of the state.
“(signed) C. C. Crabb
“Subscribed and sworn to before me this 27th day of April, 1946.
“ (Signed) Milton W. Priebe
“(Seal) (County Judge)
“I have examined the facts in the above matter and recommend that a warrant be issued.
“(Signed) Wayne B. Smith,
“County Attorney.”

The search warrant, with the return of the officer, is as follows:

“State of Oklahoma, County of Kingfisher, ss.
- “In the County Court in and for the County of Kingfisher, State of Oklahoma.
“In the Name and by the Authority of the State of Oklahoma:
“To: C. C. Crabb, State Investigator, Oklahoma Department of Public Safety:
“Whereas, on the 27th day of April, 1946, complaint in writing and on oath was made before me and filed in this County by C. C. Crabb, alleging that the following premises are being used as a place where spiritous, vinous, fermented, and malt liquors, and imitations thereof, and substitutes therefor, are received, manufactured, stored and kept for the purpose and intent of being sold, bartered, given away or otherwise furnished in violation of the prohibitory laws of the State of Oklahoma, in the County of Kingfisher and State of Oklahoma, more particularly described as follows:
“A tract of land beginning at the SE corner of the SW1/^ of the SE% of section 31, in township 15 north, range 7 west of Indian Meridian, and running thence west (10) rods, thence north sixteen (16) rods, thence east ten (10) rods, thence south sixteen (16) rods to the point of beginning containing one acre according to the government survey thereof, in the possession of Charles W. Winger, and that liquors are being kept by the said Charles W. Winger for an illegal purpose.
“Therefore, you are commanded forthwith to proceed to said building above described and to search said premises and to seize all liquor there found, together with all vessels in which they are contained and all implements, furniture and fixtures as are kept for such illegal selling, and to safely keep the same and to make return within three days .of this warrant showing all acts and things done thereunder, together with a particular statement of all property seized of the person or persons in whose possession the said liquors are found if any, and if no person be found in the possession of said property your return shall so state, and you are further ordered to keep said property securely until final action be had thereon.
“You are further ordered if any such liquor be found, to immediately arrest the person in charge of said liquor and bring him before me at my office in the city of Kingfisher, for examination.
“Given under my hand and seal of the county court of Kingfisher County, this 27th day of April, 1946.
“ (Signed) Milton W. Priebe
“County Judge.
“Received the foregoing search warrant this 27th day of April, 1946, and executed same at ten o’clock a.m. by searching the premises therein described. Liquor there found consisted of the following: 731 pints of whis-ky, 138 4/5ths qt. of whisky, 16 qts. of wine, 1 pt. of gin, 9 qts. of brandy, 1 y2 pts. of sloe gin, 5 qts. rum, 8 pts. applejack.
“The above described liquor is now in the Kingfisher, County jail, at Kingfisher, Oklahoma.
“Signed this 30th day of April, 1946.
“(Signed) C. C. Crabb
“State Investigator, Oklahoma Department of Public Safety.”

The contention of the defendant is that because the affidavit and search warrant do not contain the exact words “private residence”, and by reason of the fact that the intoxicating liquor seized under the search warrant was taken from the residence of defendant, that the search warrant was void and that the motion to suppress the evidence obtained under the same should have been sustained.

It is provided by Tit. 37 O.S. 1941 § 88, as follows:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

It is contended by defendant that neither the affidavit nor the search warrant states that a search is to be made of a “private residence”, or that it or some part of it is “used as a store, shop, hotel, boarding house or place for storage,” or that it is a place of public resort.

It is true that the affidavit and search warrant do not contain the exact words “private residence”, but the description of the premises in both the affidavit and search warrant is very exact and describes the premises to be searched by metes and bounds. There was only one house located on the premises described, and there is no dispute in the evidence on this point. The intoxicating liquor found by the officers was in this house. It is also stated that the premises described were in the possession of defendant, “Charles W. Winger.” It will be noted that the premises described and to be searched contained only one acre of land. It will also be noted that the affidavit, which was introduced in evidence by both the state and the defendant at the request and insistence of defendant, is very elaborate in stating facts upon which the affidavit is based. In the affidavit these expressions are used: “that the premises are being used as a place were spiritous, vinous, fermented and malt liquors * * ■* are * * * stored and kept for the purpose and intent of being sold”; and: “that said premises are used as a public resort.” These expressions are exact provisions set out in the statute permitting the search of a private residence, either of which permits the searching of the same.

We are of the opinion that the words used in the affidavit were amply sufficient to justify the issuance of a search warrant, and that the search warrant was sufficient to permit the searching of all the premises and buildings located on the premises, including the private residence of defendant.

From the return of the officer in this case, which reveals the amount of intoxicating liquor seized in the building which defendant desires to designate as his private residence, it certainly occurs to us that this “private residence” had lost the sanctity of a homeland that it was being used by the defendant as a place of storage of intoxicating liquor, for the purpose of selling in violation of the laws of this state. Under all of these facts, no court should be called upon to give a technical construction of a statute which would permit this defendant to go free. Certainly the punishment inflicted in this case was in no way commensurate with the crime eommittéd.

We have carefully examined the cases cited in defendant’s brief. It is unnecessary to refer to them in detail. In many of these cases the facts are entirely different from the facts here presented. Some of the cases were reversed under a state of facts which this court as it is now constituted would in all probability have affirmed. McNew v. State, 44 Okla. Cr. 129, 279 P. 978; Hardy v. State, 35 Okla. Cr. 124, 248 P. 874; Staley v. State, 73 Okla. Cr. 355, 121 P. 2d 324.

This court can certainly take notice of the fact that many defendants in this state are disregarding the fact that a man’s residence is his “castle”, and instead thereof are using it for the purpose of storing large and excessive quantities of intoxicating liquor for illegal sale in this state, claiming such premises as a “private residence” only for the purpose of evading the enforcement of the law. The facts in the instant case amply justify this conclusion. The courts should not be called upon to apply a technical construction of the law for the benefit of one who does not even see fit to take the witness stand and explain his possession of the large quantity of liquor found, nor deny the possession of the same on the premises described.

■ The affidavit upon which the search warrant was based stated two of the grounds which justified the search of a private residence, that intoxicating liquor was stored there for the purpose of sale, and that the premises were being used as a place of public resort. The evidence of the officer was that the search warrant was seryed upon the defendant, who was present at the time the search was made.

For the reasons above stated, the judgment and sentence of the county court of Kingfisher county is affirmed.

JONES and BRETT, JJ., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    MAX MOULTON v. STATE.
    No. A-10944.
    Dec. 22, 1948.
    (201 P. 2d 268.)

      Pierce & Pierce and A. L. Brook, all of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant Max Moulton was charged jointly with Dale King with the crime of murder of Carl Bailey Lashley in Muskogee county, Oklahoma. A severance was taken, and Dale King was tried and convicted of first degree manslaughter and sentenced to four years in the penitentiary. The defendant Max Moulton was tried and convicted of first degree manslaughter and likewise sentenced to serve four years in the penitentiary, and he has appealed.

The defendant sets forth several assignments of error, but we shall consider only one which we have concluded decisive of the issues herein involved. This assignment is that the verdict of the jury is contrary to both the law and the evidence.

The record discloses that on or about December 27, 1946, the defendant Max Moulton was operating the Willie Belle Cafe, a small establishment, located on South Main in Muskogee, Oklahoma. That he had in his employ one Dale King as night proprietor who worked from 6:00 p.m. to 6:00 a.m., and who was on duty on the night of this killing. It further appears it had been the habit of Max Moulton to keep a .38 caliber pistol on the refrigerator in the back of the cafe, as protection against robberies. Moulton also kept a black jack under the counter below the cash register. It conclusively appears that unknown to Moulton, Dale King had been in the habit of carrying the pistol in his shirt front as he was doing on the night of December 27, 1946. It appears further that Max Moulton had come into the cafe about 20 minutes before the killing, just after midnight, to check the cash register before retiring for the night. He had just finished checking the cash register- when the fatal altercation herein involved commenced. The record shows that about that time, the deceased Carl Bailey Lashley, Gertrude Smithson, Juanita Swaggerty, Juanita Cranford and Kermit Smithson came into the Willie Belle Cafe. These parties it appears had been on an all-day and evening whisky drinking round at various beer establish-' ments and honkey tonks including the Falstaff Bar, the Roxy Bar and Mac’s Place and elsewhere: By the time these parties arrived at Moulton’s place they were all inebriated and the Swaggerty woman was drunk to the point of being ready to pass out. The deceased Carl Bailey Lashley, the record discloses, was also drunk. The Swaggerty woman sat down on one of the stools along the back end of the place and laid her head on the counter. The Smithson girl was slapping her about the head in an effort to sober her up. Max Moulton observed this and told them they would have to leave in order to avoid his being embarrassed with the police. He threatened to call his wife and have her put the Swag-gerty woman out. Instead, he called on Judy Payne, a waitress in his place, to put her out. Judy Payne undertook so to do, and the Smithson woman intervened. It looked as though a fight between the women was about to ensue, and the deceased Carl Bailey Lashley stepped in saying “I will do the girl’s fighting”, and at this time the record shows the defendant was behind the counter, up front near the cash register. Dale King was standing in the opening between the front and back counter near the middle of the room. Lashley started toward the back and met King, and to whom King said “ I would not do that if I were you”, and Lashley replied “I had just as soon whip you as anybody”, and the fight between King and Lashley was on. Lashley knocked King down and got on top of him and was beating him with his fists. The record is in conflict as to the part Moul-ton played at this time, but at the worst for him, it appears that he may have struck at Lashley over the counter with a black jack which he had procured from underneath the cash register. The record in this regard shows some of the witnesses testified he struck him two or three times, all of which he denies and in which denial, some of the witnesses corroborate him. It is conclusively clear, however, that at this point the defendant withdrew from the fight and left its outcome to King. King kicked Lash-ley off of him into a juke box where Lashley’s head hit on a sharp corner and cut a gash just back of his left ear. It further appears that King’s pistol dropped out of his shirt on to the floor. That he picked it up and got to his feet and as he did so that Lashley rushed him and was met by King, discharging the pistol into Lashley’s temple resulting in his death. There is not a scintilla of evidence to show that defendant knew that King had the pistol but to the contrary the evidence is conclusive that he did not know it. The record is also clear that he did not participate in, advise or encourage, or intend that King should kill Lashley. The record further shows Moulton never came out from behind the counter, had withdrawn from the fight, and was standing behind the cash register when the shooting took place. In fact, the record shows as soon as the shot was fired defendant asked King “Dale, why did you do it?” Moreover, conceding the defendant struck at the deceased, as some of the witnesses say he did, and hit him, he apparently did not hit the deceased with such force as could have resulted fatally. This fact is revealed by the testimony of Don Petering, the undertaker. He said that there were no bruises on Lashley’s head or body except the gash behind his ear and the gunshot wound in his temple. It is therefore apparent under these conditions, even conceding that the defendant struck the deceased, the blows were not such as could have resulted in death. The, state does not contend that the blows did, or even contributed thereto. Moreover, there is not the slightest claim of a conspiracy on the part of King and Moulton to effect the death of Lashley. This is a substantial statement of the record. Under this state of the record the defendant could not be held for manslaughter in any degree for he was not a principal to the homicide;

The defendant was charged under the provisions of Title 21 O.S.A. 1941 § 172, which reads as follows:

“All persons concerned in the Commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.”

Scott v. State, 13 Okla. Cr. 225, 163 P. 553, is a case in point. Therein this court said:

“Proof .that one defendant committed an assault with a dangerous weapon, and that the assault so made and the injury resulting was not and could not have been fatal, and, further, that another defendant, with a different weapon, committed the homicide charged, will not support a conviction for murder or manslaughter against the first person, unless the proof further shows that there was a conspiracy between the parties to perpetrate the homicide, or that the first person aided, abetted, assisted, encouraged, or counseled the party who fired the fatal shot.”

It is true this record may have supported a charge or conviction of assault and battery but as this record shows such assault and battery could not have been fatal. As we said in the Scott case, supra, where the person committing the assault even with a dangerous weapon had withdrawn from the affray before the homicide, such facts would not support a charge of murder or manslaughter committed by another assailant without an agreement or conspiracy between the parties to commit the homicide. Anderson v. State, 66 Okla. Cr. 291, 91 P. 2d 794, is a case construing the foregoing statute, wherein it was said:

“* * * Under the above statute, 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 or encouragement to the perpetrator, however wrong morally, does not in law constitutes such person a participant in the crime.”

See, also, Hubbard v. State, 71 Okla. Cr. 373, 112 P. 2d 174, to the same effect. See, also, Moore v. State, 4 Okla. Cr. 212, 111 P. 822, citing numerous authorities in support of this rule. The defendant took no part in the homicide, did not assent or aid in its commission, advise, encourage or procure its commission. Furthermore, the record shows he did not even assent to or acquiesce in its commission. It merely shows that he was present at the time of the homicide, when without his knowledge Dale King produced the pistol and killed Lashley. It has been held “it is not sufficent to show that the defendant was present, and knew the offense was being committed. The proof must go further, and show, beyond a reasonable doubt, that he was participating in the homicide before or at the time of its commission”. Drury v. Territory, 9 Okla. 398, 60 P. 101, 107.

In Crabtree v. State, 18 Okla. Cr. 125, 193 P. 1005, it was laid down as a general proposition:

“It may be stated, as a general proposition, that no one can be properly convicted of a crime that he did not commit, or to the commission of which he has never expressly or impliedly given his assent.”

To hold this defendant for manslaughter in any degree on this record would do violence to the rule announced in Crabtree v. State, supra. In view of the foregoing conclusions there can be no doubt that the defendant did not commit this crime and that he did not, expressly or impliedly, assent thereto and, therefore, he could not be a principal.

In view of the fact that the record further discloses that the defendant had been convicted by court martial in 1918 for uttering remarks against the government for which he was sentenced to five years in the penitentiary, and that he was convicted in 1920 for robbery for which he was sentenced to one year in the penitentiary, and that in 1930 he was convicted of forgery and sentenced to two years in the penitentiary, and that he was convicted of lesser offenses, we can but conclude that the verdict of the jury was based upon passion and prejudice due to the defendant’s unsavory prior record. In Hubbard v. State, supra [71 Okla. Cr. 373, 112 P. 2d 174], this court said:

“While it is well settled that this court will not reverse a conviction for insufficiency of the evidence, if there is any substantial evidence, although circumstantial, from which a reasonable and logical inference of guilt arises, the converse rule is also well settled that, it is not only the province but the duty of the court to set aside such a verdict when it is contrary to law and the evidence, or where there is no evidence to support it, or there is a failure to prove some essential matter to establish the offense charged, or where it appears that the verdict was rendered as a result of passion or prejudice. The performance of this duty on the párt of the court is the exercise of legal discretion and judgment as to the sufficiency of the evidence to overcome the legal presumption of innocence to which every one is entitled who is put on trial for an offense.”

For all of the reasons above stated the judgment and sentence herein involved is hereby reversed, with instructions to the county attorney that unless he has additional evidence sufficient to convict the defendant and to hold him for further trial, it is ordered by the court that he be discharged.

BAREFOOT, P. J., and JONES, J., concur.


author: JONES, J.

text:
    Ex parte CHARLES L. MUSGRAVE.
    No. A-11141.
    Dec. 22, 1948.
    (201 P. 2d 272.)

      Charles L. Musgrave, of McAlester, pro se.
    Mae Q. Williamson, Atty. Gen., for respondent.
   JONES, J.

This action in habeas corpus was instituted by the petitioner, Charles L. Musgrave, for the purpose of securing his release from confinement in the State Penitentiary.

Two propositions are presented by the petitioner: First, there is a variance in the allegations of the information from those set forth in the preliminary complaint; second, the punishment imposed upon petitioner’s plea of guilty was excessive and should be modified.

Certified copies of the information and the preliminary complaint are not attached to the petition, but-the petitioner makes the general allegation that in the preliminary complaint he was charged with an attempt to pass a forged instrument, while in the information upon which he was arraigned in the district court, the charge was for the completed offense of forgery.

Without being furnished with copies of the preliminary complaint and the information filed in the district court, we are unable to determine just what allegations were set forth in each of these respective instruments. However, under the statute every person who sells, exchanges or delivers any forged check, or offers such instrument for sale, exchange or delivery, knowing the same to be forged, is guilty of forgery in the second degree. Tit. 21 O.S. 1941 § 1577.

Furthermore, it has been held that the entire preliminary proceedings may be waived in the trial court and are waived by failure to file a motion to quash or set aside the information as provided by the statute before entering a plea on the merits. Ex parte Owen, 82 Okla. Cr. 415, 171 P. 2d 868.

If the petitioner had wished to raise the question that there was a material variance in the allegations contained in the information from those set forth in the complaint filed before the committing magistrate, he should have raised the question by a motion to quash or set aside the information before entering a plea on the merits. Landon v. State, 82 Okla. Cr. 336, 166 P. 2d 781; Sparks v. State, 71 Okla. Cr. 430, 112 P. 2d 434; Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332.

As to the second proposition contended for by petitioner that the punishment is excessive, it should be borne in mind that this is not a hearing on appeal, but is an original action in habeas corpus and in such proceedings only jurisdictional questions will be considered.

The writ of habeas corpus will not be allowed to be used as a substitute for appeal. It has been held that in such a proceeding the Criminal Court of Appeals does not have authority to modify the sentence imposed against one convicted of crime. Ex parte Berryhill, 87 Okla. Cr. 48, 194 P. 2d 214. Ex parte Vanderburg, 73 Okla. Cr. 21, 117 P. 2d 550.

There is attached to the petition an affidavit allegedly executed by M. E. Fariss, who was the proprietor of the Electric Supply Company where defendant allegedly offered for sale the forged check. This instrument purportedly gives the facts surrounding the circumstances that an adjustment be made in the defendant’s sentence.

This instrument and all other matters referred to by petitioner tending to show that the maximum punishment meted out by the trial court on his plea of guilty was excessive under the circumstances are matters which properly should be addressed to the Pardon and Parole Board. They concern matters of clemency and are not matters that may be considered by this court in a ha-beas corpus proceeding.

The writ of habeas corpus is denied.

BAREFOOT, P. J., and BRETT, J., concur.


author: BAREFOOT, P. J.

text:
    ALBERT E. GREER v. STATE.
    No. A-10909.
    Dec. 22, 1948.
    Rehearing Denied Jan. 12, 1949.
    (201 P. 2d 274.)

      Porter & Porter, of Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and John S. Moss, County Atty., Wagoner County, of Wagoner, for defendant in error.
   BAREFOOT, P. J.

Defendant, Albert E. Greer, was charged jointly with Katherine Greer, his wife, and Ben E. Ryan, his wife’s brother, in the county court of Wagoner county, with the unlawful possession of intoxicating liquor, to-wit: sixteen (16) quarts of whisky and gin, and twenty pints of whisky. Before the trial commenced, the case was dismissed as to the defendant Ryan for the reason that he was in the United States armed forces, and not present. The other defendants were tried, and the jury found the defendant Katherine Greer not guilty. The defendant Albert E. Greer was convicted and sentenced to pay a fine of $850, and to serve a sentence of 90 days in jail. From said judgment and sentence he has appealed.

Defendant in his brief says:

“The sole question here presented is: Was the application (affidavit) for the search warrant and the search warrant itself sufficient under the law to make the search and obtain the evidence upon which plaintiff in error was charged and' tried and convicted?”

In order to properly consider this question it is necessary to give a brief statement of the facts as revealed by the record.

A search of premises owned and occupied by defendant near the city of Wagoner was made by the sheriff, under sheriff and three deputy sheriffs of Wagoner county on December 14, 1946. The premises were described in the affidavit and search warrant used in conducting the search as follows:

“That portion of the northeast quarter of the northeast quarter of section 19, township 16 north, range 19 east, lying and situated north and east of U. S. Highway No. 69, containing % of one (1) acre, more or less, situated in Wagoner County, Oklahoma.”

Defendant operated the Skyline Club which was a public place where the public came to be served food and drink, and to dance. The Skyline Club was located in a one-story cement block building on the ground described in the affidavit and search warrant, outside the city limits, and had a Neon lighting around the building under the eaves, and a large sign “Skyline Club” that could be plainly seen from the highway, day or night. It was in this building that all of the intoxicating liquor described in the information was found. Defendant and his wife slept in a nearby, separate building, which was also located on the property described in the search warrant, and ate their meals at the Skyline Club.

The officers testified that on the date above stated, they went to the Skyline Club for' the purpose of searching the same, about 10:30 p.m., and that they had the search warrant, as above stated. Mr. Jeffers, the un: dersheriff, and Sheriff Hall went to the front door, or main entrance and the three deputy sheriffs went to the rear door.

Mr. Jeffers testified that he had the search warrant, and as he stepped in the Club the doorman, Mr. Ryan, met him and told him: “You can’t go in, buddy, without a pass.” He showed him the search warrant, and he and the sheriff went on in. There was very dim lighting in the place, and witness testified that when he first entered the building he could not recognize anyone four feet away. He asked for Mr. Greer, and stated that it was possibly two or three minutes after they entered the Club before he got to Mr. Greer to serve the search warrant, but that he served it on Mr. Greer. He heard someone knocking on the rear door, and heard glass, breaking, and he and the sheriff started to the rear of the building. They met Mrs. Greer in the hall-way between the main club room and the kitchen, with a bushel basket full of bottled liquor. There were approximately 200 people in the Club, eating, drinking and dancing, and quite a number of them appeared to be intoxicated. They found liquor in the booths and on the bar; there were four or five dozen whisky glasses on the bar; empty beer bottles, and whisky bottles partly filled on the tables and on the bar, and he named several brands of whisky that he observed in pint bottles sitting on the tables. While they were searching the place and gathering the liquor Mr. Greer left, and could not be located when the officers were ready to leave. He came in to the sheriff’s office later. All of the liquor found was in the Skyline Club.

G. F. Gartner, deputy sheriff, testified that he went into the Skyline Club through the kitchen door, and that it was opened from the inside. There were around 200 people present at the Club when the officers arrived. Mr. Greer was behind the counter, or front bar, and on the back bar witness saw different sized glasses, and two partly empty “fifths” of whisky. - He observed empty whisky bottles, Seven-Up bottles, and empty whisky and hi-ball glasses in the booths.

Chester Hall, the sheriff, testified that he followed Mr. Jeffers when he entered the Skyline Club, and that he saw Jeffers serve the search warrant on Mr. Greer, and corroborated Mr. Jeffers with reference to meeting Mrs. Greer in the hall-way with the bushel basket f(ull of whisky.

It is unnecessary to further quote from the evidence offered by the state. Both the defendant and his wife testified, but their evidence was such that it does not affect the issue here presented.

From the above statement, and the previous decisions of this court, we are of the opinion that the court did not err in overruling the motion to suppress the evidence presented in this case. Nor was the defendant in any way deprived of his fundamental rights and constitutional guarantees, as provided by section 7, article 2, of the Constitution of Oklahoma, and Amendment article 5 of the Constitution of the United States.

In the first place, under the previous decisions of this court, as applied to the facts here presented, it was not necessary for the officers to have a search warrant in order to search the Skyline Club. It was a place of public resort, and the officers, the same as any other citizen, had the right to enter it, and, if after entering, they saw the commission of a misdemeanor in their presence, as they did in. the instant case, they had the right under 37 O.S. 1941 § 89 to arrest the offender and search his person and his immediate surroundings.

In the case of Overturf v. State, 69 Okla. Cr. 303, 102 P. 2d 623, 624, it is said:

“Furthermore, in this case the officers did not need a search warrant. The place of business * * * was open to the public; the public was invited to enter their bar and purchase drinks of various kinds. The liquor which was seized was sitting on the floor in plain sight of the officers. Under circumstances such as these, no search warrant was necessary as the offense was committed in the presence of the officers. See White v. State, 45 Okla. Cr. 103, 281 P. 824; Grimes v. State, 65 Okla. Cr. 99, 83 P. 2d 410; Martin v. State, 43 Okla. Cr. 273, 277 P. 950; Rhodes v. State, 46 Okla. Cr. 219, 287 P. 812.”

In Clasby v. State, 78 Okla. Cr. 45, 143 P. 2d 430, 433, it is said:

“Under this testimony, we do not think it was the duty of the court to sustain the motion. These officers were in a public place, where they had a right to be. They saw bottles of whisky in their presence. They had a right to investigate, and they found approximately two quarts of liquor. They made no arrest until later. The proof revealed that the liquor was in a place operated and managed by the defendant. The amount of liquor found was by the law- prima facie evidence of possession Avith the intent to sell, convey, or otherwise violate the law. S.L. 1933, Chap. 153, p. 339, sec. 3, 37 O.S.A. 1941 § 82. There Avas no evidence offered to rebut this presumption.”

In the case of Passmore v. State, 87 Okla. Cr. 391, 198 P. 2d 439, 441, the facts were almost identical with the facts here presented. It was there held:

“HoAvever, under the evidence presented in this case, it was not necessary for the sheriff to have a search Avar-rant to lawfully search defendant’s place of business. When he entered the Club, which was open to the public and which the sheriff and other officers had the right to enter the same as any other Citizen, he saw violations of the la>v being committed in his presence by the defendant.
37 O.S. 1941 § 89 provides:
“ ‘When a violation of any provision of this Chapter, shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor*, * * *.’
“In. construing this section of the statute, it has often been held by this court that where a misdemeanor is. committed in the presence of an officer, he has the right to arrest without a warrant, and after the arrest, to search the defendant and his immediate surroundings. Overturf v. State, 69 Okla. Cr. 303, 102 P. 2d 623; Brown v. State, 74 Okla. Cr. 246, 125 P. 2d 234; Mullins v. State, 75 Okla. Cr. 417, 133 P. 2d 239; Clasby v. State, 78 Okla. Cr. 45, 143 P. 2d 430.”

We are, therefore, of the opinion that the judgment of the county court of Wagoner county should be affirmed. It is so ordered.

JONES and BRETT, JJ., concur.


text:
    CHARNER M. TIDWELL v. STATE.
    No. A-11101.
    Jan. 5, 1949.
    (201 P. 2d 800.)
    Charner M. Tidwell, of McAlester,'pro se.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The petitioner, Charner M. Tidwell, brought this original action in habeas corpus to secure his release from confinement in the State Penitentiary. In the. verified petition it is alleged that petitioner was charged in the district court of Delaware county with the crime of murder; that he entered a plea of not guilty, but was. tried and convicted by a jury and sentenced to serve 30 years’ imprisonment for murder. The petition recites the purported facts in the alleged charge of murder against the said Charner M. Tidwell, and further recites the evidence allegedly introduced against him by the state in the trial of said case.

It is further contended that the trial court failed to correctly instruct the jury and that the commitment by which the petitioner is confined in the penitentiary is invalid.

We have examined the certified copies of the papers attached to the petition, together with the supporting-papers attached to the response filed on behalf of the warden.

It appears that the petitioner was charged with murder and was found guilty of the included offense of manslaughter in the first degree and sentenced to serve 30 years’ imprisonment in the State Penitentiary. There is nothing in the record to show that the judgment and sentence is void, or that the court who pronounced the judgment was without jurisdiction.

Unless the judgment and sentence is void for lack of jurisdiction, the Criminal Court of Appeals will not in a habeas corpus proceeding interfere with a judgment pronounced by a trial court.

In the recent case of Ex parte Matthews, 85 Okla. Cr. 173, 186 P. 2d 840, this Court held:

“On habeas corpus, court generally will pursue its inquiry only through the record of proceedings and judgment or sentence, and unless it is affirmatively shown by the record, or the face of judgment or sentence, under which petitioner is confined, that judgment or sentence is void, he is not entitled to his discharge and writ will be denied.”

The writ of habeas corpus is denied.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    P. A. HOOKER et al. v. STATE.
    No. A-10905.
    Jan. 5, 1949.
    (201 P. 2d 933.)
    Arthur L. Cavanagh, of Lawton, for plaintiffs in error.

      Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendants, P. A. Hooker and William J. Alley, were jointly charged by information filed in the county court of Comanche county with unlawful possession of intoxicating liquor. On February 25, 1947, the defendants were arraigned and each of them separately entered his plea of guilty to said charge and the trial court thereupon proceeded to render judgment and sentence on said date by assessing a fine of $100 and costs and 30 days each in the county jail.

The record further shows that on March 6, 1947, the defendant P. A. Hooker filed a motion for permission to withdraw his plea of guilty and substitute a plea of not guilty on the ground that, at the time of entering his plea of guilty, he was not represented by counsel and that at such time he was laboring under a great mental strain, and that he entered his plea of guilty without being properly advised as to all of his legal rights.

On March 6, 1947, the trial court,, after hearing the evidence on the motion, overruled it.

Thereafter, on March 8, 1947, the defendant William J. Alley filed a motion similar to the one filed on behalf of the defendant Hooker, which motion was heard and overruled on the same date with an exception allowed to the defendant.

The petition in error with case-made attached was filed in this court on July 5, 1947.

The Attorney General has filed a motion to dismiss the appeal for the reason that the appeal was not filed in this court until more than 120 days from date of said judgment and sentence. No response was filed to the motion to dismiss the appeal and an examination of the record discloses that the motion is well taken and should be sustained.

In the ease of Stansbury v. State, 78 Okla. Cr. 206, 146 P. 2d 137, 138, this court held that the time for taking an appeal begins to run from the date of the pronouncement of the judgment and sentence and not from the date of an order overruling a motion to withdraw a former plea of guilty and to substitute therefor a plea of not guilty.

By statute it is provided that in. misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered with a proviso that the trial court may for good cause shown extend the time within which such appeal may be taken not exceeding sixty days. 22 O.S. 1941 § 1054.

In Stansbury v. State, supra, -we stated :

“This court has repeatedly held that the right of appeal is regulated by statute. The time within which an appeal must be lodged with the Clerk of this court, and all the duties imposed upon the person appealing, as well as the privileges granted are such as defined by said statute, and these provisions must be substantially complied with. Otherwise, this court cannot review a record on the merits. See Pinchback v. State, 14 Okla. Cr. 302, 170 P. 714. This rule has been uniformly followed since the same was announced in a long line of earlier cases, among which are the following: Cloyd v. State, 6 Okla. Cr. 530, 119 P. 1125; Lyons v. State, 6 Okla. Cr. 581, 120 P. 665; Johnson v. State, 10 Okla. Cr. 306, 135 P. 1154; Waggoner v. State, 13 Okla. Cr. 715, 167 P. 237.
“This court has also specifically held that
“ ‘There is no provision of (the) law which vests direction in the appellate court to hear and determine appeals when they are not taken within the time provided by the statute.’ Howey v. State, 9 Okla. Cr. 453, 132 P. 499.

“In the last case cited above, the court also expressly stated that under said statute prescribing the time of taking said appeal, said time begins to run from the date the judgment is rendered and not from the time of overruling of the motion for a new trial. To the same effect, see Clark v. State, 18 Okla. Cr. 145, 193 P. 1008, 1009; Heath v. State, 22 Okla. Cr. 122, 210 P. 560; Criner v. State, 37 Okla. Cr. 313, 258 P. 359; Easterwood v. State, 38 Okla. Cr. 72, 259 P. 181.”

The appeal not having been filed within the time fixed by statute, this court is without jurisdiction to determine said cause upon its merits.

It is therefore ordered, that the appeal herein be and the same is hereby dismissed.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    Ex parte BOBLEE CARTWRIGHT.
    No. A-11132.
    Jan. 5, 1949.
    (201 P. 2d 935.)

      Boblee Cartwright, pro se., and R. C. Searcy, of Tulsa, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding for a writ of habeas corpus brought by Boblee Cartwright, petitioner, wherein he seeks release from the custody of C. P. Bnrford, warden of the State Penitentiary at McAlester. In his petition as amended he alleges the cause of his restraint is by reason of a judgment and sentence in the district court of Tulsa county, Oklahoma, on the 7th day of June, .1946, wherein he was being prosecuted for the murder of Fred M. Stahl. He alleges that in pursuance of conviction and judgment thereon he was sentenced to the penitentiary for life. He complains that the conviction and sentence thereon was wrongful, unlawful and void in that the petitioner was denied some of his constitutional and statutory rights. The basis for this contention is as follows: That on May 24, 1946, a preliminary complaint was filed in the court of common pleas of Tulsa county charging him with the murder of Fred M. Stahl. Petitioner alleges that he was never arraigned on said complaint, and never given an opportunity to plead thereto or given a preliminary hearing thereon. Further, he alleges that notwithstanding the lack of a preliminary hearing, on June 7, 1946, he was arraigned before Honorable Harry L. S. Halley, judge of the district court of Tulsa county, on the information pending therein. And that at the time of his arraignment in the district court petitioner waived preliminary hearing in said case and entered his plea of guilty to the charge of murder as laid in the information, and the sentence he is serving was imposed. He further alleges that he was unfamiliar with court proceedings of any kind, and was not aware of the fact that he was entitled to a preliminary hearing. He says he did not understand the meaning and purport thereof, until his incarceration in the penitentiary at McAlester. He further alleges that his plea of guilty was induced by one Tony Benson, an investigator in the county attorney’s office, who told him that he had “better do something and do it quickly or he would burn” for said murder. He says that said officer talked in such an authoritative manner as to greatly frighten him, so that he was induced to enter his plea of guilty.

The writ of habeas corpus is limited to cases in which the judgment and sentence are clearly void. Ex parte Matthews, 85 Okla.Cr. 173, 186 P.2d 840; Ex parte Darr, 84 Okla.Cr. 352, 182 P.2d 523; Ex parte Walker, 84 Okla.Cr. 190, 180 P. 2d 670; Ex parte Tollison, 73 Okla. Cr. 38, 117 P. 2d 549; Ex parte West, 62 Okla. Cr. 260, 71 P. 2d 129; Ex parte Keel, 62 Okla. Cr. 277, 71 P. 2d 313; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.

It is fundamental that where a petition for writ of habeas corpus is filed, the burden is upon the petitioner to sustain the allegations thereof, and every presumption favors regularity of the proceedings had in the trial court. The general rule often announced by this court is that error must affirmatively appear from the record; it is never presumed. Ex parte Matthews, supra.

We have also often held that where a disputed question arises as to what occurred upon arraignment of one accused of a crime, great weight will be given to the recitation in the minutes of the court proceedings as to what occurred. Ex parte Meadows, 70 Okla.Cr. 304, 106 P.2d 139; Ex parte Matthews, supra.

The court minutes as contained in the record disclose, among other things, that in case No. 49,429, pending in the court of common pleas of Tulsa county, Oklahoma, on May 27, 1946

“Deft. Cartwright in open court for arr. represented by Lawrence Elder, Mr. Dunn, Mr. Ward. Co. Atty. given permission to amend inf to state true name Bobby Lee Cartwright. Inf read, advised of rights, pleads not guilty. Preliminary, June 10, 1946. Held without bond. Com. Iss (H) ”

The record further discloses as revealed by the minutes of the district court of Tulsa county, Oklahoma, in Criminal case No. 12,521 that the defendant appeared with counsel, C. Lawrence Elder, in open court before Honorable Harry L. S. Halley and entered his plea of guilty. No motion to quash or plea in abatement or any other attack on the court’s jurisdiction was presented.

The record further discloses that the defendant at the time he entered said plea was a man 39 years of age and that he had served three prior sentences, two in the penitentiary at McAlester, Oklahoma, and one in the State Penitentiary at Lansing, Kansas. The age, experience, and prior record of the petitioner makes it clear, he was not inexperienced or ignorant in such matters.

As to the matter of waiver of a preliminary hearing under conditions as herein involved, this court has spoken. In Sheller v. State, 58 Okla.Cr. 204, 52 P.2d 105, this court said:

“Preliminary examination of accused charged with felony may be waived before committing magistrate, or entire preliminary proceedings may be waived in trial court and is waived by failure to file motion to quash or set aside information in apt time (St.1931 §§ 2937, 2940-2942 [22 O.S. 1941 §§ 493, 496-4981; Const, art. 2 § 17).”

See Anderson v. State, 21 Okla.Cr. 177, 204 P. 132; Cooper v. State, 31 Okla.Cr. 217, 238 P. 503; Neff v. State, 39 Okla. Cr. 133, 264 P. 649.

This court has further held that a preliminary examination is a right accorded which the accused may waive, under Const, art. 2, § 17, prescribing “No person shall be prosecuted * * * for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.” Further, where the defendant is arraigned on an information and pleads to the merits, he waives the right to a preliminary examination, or if one was held, any irregularity therein. Neff v. State, supra. Moreover,' where a defendant voluntarily entered a plea of guilty, he will be deemed to have waived any right he may have had to question the fact that he did not have a preliminary examination. And, further, where one is charged in the district court by information, and desires to raise the question of not having had a preliminary examination, this should be done by plea in abatement, or by motion to quash the information. Sparks v. State, 71 Okla.Cr. 430, 112 P. 2d 434; Herren v. State, 72 Okla. Cr. 254, 115 P. 2d 258, 259; Stamper v. State, 25 Okla.Cr. 324, 220 P. 67; Robbins v. State, 12 Okla.Cr. 294, 155 P. 491; Quinton v. State, 10 Okla.Cr. 520,139 P. 705, and in Ex parte Owen, 82 Okla. Cr. 415, 171 P.2d 868, 871:

“We call particular attention to the case of Landon v. State, 82 Okla.Cr. 336, 166 P.2d 781, in which it is held:
“ ‘The right to have a preliminary examination is for the benefit of the accused and proper proceeding to raise question of failure to have preliminary examination is by a motion' to quash or set aside the information before entering a plea to the information.
“ ‘ Where defendant voluntarily enters a plea to the information and goes to trial, he will be deemed to have waived any right he may have had to question the fact that he did not have a preliminary examination * * *.’
“See also Ex parte Miller, 82 Okla.Cr. 315, 169 P.2d 574 ;***."

The record in this case fails to disclose that any such attack was made before the plea of guilty was entered. In view of the recitals contained in the court’s minutes, that the defendant was represented by and had the advice of able counsel, and had been advised of his rights in the court of common pleas, and vvith full knowledge thereof, pleaded guilty, to the information and did not question the jurisdiction of the court by motion to quash or set aside the information, and considering the prior experience of petitioner, we cannot conclude other than that the petitioner’s plea of guilty was made after the waiver of his right to a preliminary hearing. It is obvious this contention of the petitioner is without merit.

His next contention is based entirely upon the element of duress created by the alleged conversation with Tony Benson, which is supported only by his testimony in relation thereto. This court has repeatedly held as against such collateral attack in a habeas corpus proceeding the judgment is valid unless the contrary ¿ppears in the record. Ex parte Motley, 86 Okla.Cr. 401, 193 P.2d 613; Ex parte Matthews, supra. Moreover, such proof as is offered by the petitioner in this connection must be corroborated by clear and convincing proof. Ex parte Matthews, supra. No such proof is before us in this proceeding. In light of the foregoing, the petitioner has not sustained the burden that he was denied constitutional or statutory rights he did not waive, that his plea of guilty to the information was entered through ignorance, inexperience or lack of advice, but, to the contrary, from the record it appears he waived a preliminary hearing, and his plea of guilty was voluntarily made. Under this record, it is apparent the court had jurisdiction of the person of the defendant, jurisdiction of the subject matter and authority under the law to pronounce the judgment rendered. This court has repeatedly held that in a habeas corpus proceeding inquiry is limited to those questions. Ex parte Matthews, supra; Ex parte Vanderburg, 73 Okla.Cr. 21, 117 P.2d 550; Ex parte Massengale, 67 Okla.Cr. 181, 93 P.2d 41; Ex parte Barnette, 67 Okla.Cr. 300, 94 P.2d 18; In re Swaim, 66 Okla.Cr. 30, 38, 89 P.2d 363; Ex parte Keel, 62 Okla.Cr. 277, 71 P.2d 313; Ex parte Newman, 67 Okla.Cr. 401, 94 P.2d 556; Ex parte Davis, 68 Okla.Cr. 29, 95 P.2d 915; Ex parte West, 62 Okla.Cr. 260, 71 P.2d 129. It therefore appears that the jurisdiction of the court in this proceeding was well grounded. For all of the aforesaid reasons the petition for writ of habeas corpus is accordingly'denied.

BAREFOOT, P. J., and JONES, J., concur.


author: JONES, J. JONES, J.

text:
    A. J. PRICKETT v. STATE.
    No. A-10910.
    Nov. 24, 1948.
    Opinion on Rehearing and Rehearing Denied Jan. 5, 1949.
    (200 P. 2d 457; 201 P. 2d 798.)

      Falkenstine & Fisher, of Watonga, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, A. J. Prickett, was charged by information filed in the county court of Custer county, with unlawfully setting up and operating a certain slot machine, to wit: a marble board * * * which setting up, operating and conducting was. for the purpose of having and allowing said slot machine to be played by others for money, property, currency, checks, chips, tokens, credits and other representatives of value, etc.

.Upon a trial to a jury, the defendant was found guilty, and in conformity to the verdict of the jury the defendant was sentenced to pay a fine of $100 and costs, and has appealed.

The evidence introduced by the state and defendant showed substantially the following facts: The defendant was engaged in operation of marble or pin ball machines in several counties and had placed one of the machines styled “Marines At Play” in the Veatch drugstore at Custer City. This machine had been in the drugstore for five or six weeks before it was seized by the sheriff. During this period of time, the machine was played by both adults and minors.

Albert Gorshing, sheriff of Custer county, testified that on April 9, 1947, he seized the machine in question after watching some highschool Idds play it at Custer City. The machine was exhibited to the jury and was described by the sheriff as a marble board machine. The sheriff identified a slip of paper which was pasted to the machine which read as follows:

“Marines At Play
One re-play for each time ‘Special’ bumpers are hit.
One re play for each letter bumper hit after Marines is lit.
To light Marines, hit letter bumpers in rotation, ‘M’ first, ‘A’ second, etc.
15 Re-Plays for lighting numbers 1 to 12
To light numbers, hit red bumpers or non-lettered bumpers when lit.
Furlough Free Ball
To get free ball from furlough, ball must pass thru furlough granted.
Each time ball goes thru center rollover it' registers 1,000— when red bumpers are lit, it registers one of the numbers 1 to 12.
44,000 — 1 Ee-Play
46,000 — 2 Ee-Plays
One Re-Play
for each 2,000 scored starting with 48,000.
Score Void if machine is tilted.”

The machine was operated by depositing five cents in a slot for which the player received five balls. The machine was played by releasing a plunger against the ball and as the ball hit different bumpers on the face of the machine, it would light up the letter and cause the score made by the operator to mount.

The assistant county attorney testified at length concerning the operation of the machine. He placed a nickel in the slot in the presence of the jury, pushed a lever which released five balls and then showed how another lever fed one ball at a time into the slot where it is struck by the plunger operated by the player. He further showed how if the player was fortunate enough, that his ball went into a certain hole after striking the various bumpers on the machine, the ball would be returned to a player for a replay. While the witness was playing the machine, one of his balls went in the furlough ball hole and was returned to the player. He further testified that the machine was made in Chicago and constructed so as to give automatic free games for certain scores, depending mostly upon the luck of the operator.

The defendant and his wife testified that defendant was the owner of the machine in question, and was operating similar machines in Blaine, Dewey and Custer counties. He admitted that the machine was constructed so as to give automatic free plays for a high score, and also would give a free ball, but that be bad pulled tbe. electrical points apart at tbe time tbe machine was installed so as to prevent the free play or the free ball. When asked to explain how the machine when played by the assistant county attorney before the jury gave a free ball when the ball went into the furlough ball hole, he said that the mechanism of the machine had been changed after the machine was set up for operation; that the electrical points were so delicate that it might have been that the points were jarred when the machine was moved in handling by the sheriff.

On re-direct examination, the defendant admitted that even with the electrical contact points pulled apart so as to prevent the furlough ball from automatically returning to the operator, that the ball would return for a free play if another ball was shot by the player and came in contact with certain bumpers, which bumpers when hit would release the furlough ball for a free play.

Despite the fact that this court, in the case of Couch v. State, 71 Okla.Cr. 223, 110 P.2d 613, specifically held that a five ball marble machine operated for amusement only came within the prohibition of the slot machine statute (Tit. 21 O.S.1941 § 970), the defendant contends that by reason.of the subsequent opinion of this court in the casé of Delano v. State, 82 Okla.Cr. 258, 168 P.2d 659, such machine is legal and its operation in the manner in which it was being operated did not constitute a violation of the law.

Prior to the passage of the 1939 act- under which the prosecution was instituted, the law against the operation of slot machines was passed in 1916, was set forth in section 2193 of the 1931 statutes, is now set forth in the statutes as Tit. 21 O.S.1941 § 944, and reads as follows:

“Any person who sets up, operates or conducts, or who permits to be set iip, operated or conducted in pr about his place of business, whether as owner, employee or agent, any slot machine for the purpose of having or allowing the same to be played by others for money, property, checks, credits or any representative of value shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of.not less than twenty-five dollars, nor more than one hundred dollars; or by imprisonment in the county jail for a term of not more than thirty days, or by both such fine and imprisonment.”

. Under the 1916 act, the ingenuity of man was constantly being used to try to comply with the letter, of the act but to invent some machine that would violate the spirit of the law. State v. Johnson, 15 Okla.Cr. 460, 177 P. 926; Nelson v. State, 37 Okla.Cr. 90, 256 P. 939; Colbert v. Superior Confection Company, 154 Okla. 28, 6 P. 2d 791; Rogers v. Douglass, 181 Okla. 32, 72 P.2d 823; Mackay v. State, 65 Okla.Cr. 149, 83 P.2d 611.

The endeavor to develop coin operated or slot machines so as to circumvent legislative and judicial condemnation has been well stated in People v. Gravenhorst, Sp. Sess., 32N.Y.S.2d 760, 765, discussed in the 148 A.L.R. 880, in which it is stated:

“The type of machine which first met the condemnation of our court * * * was one in which the player by inserting a coin had the chance either of losing the amount played, or securing as a gain, other coins of varying denomination, the payment being in actual money. * * * An obvious effort to nullify the effects of the above (condemnation) was presented when the slot machine interests eliminated the pay-offs in money and substituted therefor the return to the successful player of additional merchandise, slugs or tokens, the latter being exchangeable for gum, mints, cigars, etc. Machines of this type were like' wise condemned. * * * To avoid judicial disapprobation which the element of chance brought down upon these contrivances, the manufacturers proceeded to introduce a device to indicate to the operator in advance of play, exactly what the pay-off would be. The court held this subterfuge unavailing, remarking that the player gambles not so much on the immediate return but on the expectation that the indicator will show an opportunity for profit on his next play. * * * In their ceaseless endeavors to circumvent legislative and judicial condemnation, the contrivers next developed a machine resembling a cash register with a lever on the side, and in front, a column of packages of mints. Upon the deposit of a coin and the operation of the lever a package of mints was released. In addition the machine caused three cylinders to revolve at different rates of speed. Upon each cylinder were certain symbols and an incomplete sentence. The inscriptions on the three, however, when the cylinders ceased to spin and when these inscriptions were read together, formed complete sentences of a humorous vein. These machines sometimes delivered metal tokens which were purported to have no cash or trade in value and to be capable of use only for further amusement. These types of machines were declared illegal in numerous State and Federal decisions. * * * The next development in these machines * * * are known as the pin ball type of slot machine. * * * As an added inducement to the playing of these devices, a mechanism was inserted into the contrivance whereby the operator on attaining a certain score would be entitled to one or more free games which were automatically furnished.”

The case of MacKay v. State, supra, decided October 21, 1938, was the last expression of this court in applying the slot machine act that was in existence prior to the passage of the 1939 law. In that opinion, Judge Barefoot reviewed the decisions of this court and the Supreme Court of Oklahoma in slot machine cases, and gave a lengthy review of many cases from other jurisdictions which construed statutes similar to the Oklahoma statute. In deciding that case, this court held that the name given a machine does not determine whether it should be classified as a slot machine, but that question is determined by the manner and result of its operation; that the machine is prohibited if it is so operated that one who plays it stands to win or lose money, trade, or checks, by hazard or chance.

This was the status of the law in Oklahoma pertaining to slot machines when House Bill No. 125 was introduced in the Seventeenth Legislature in 1939, by Representative Creekmore Wallace of Oklahoma county. A review of the legislative history of that act is interesting. Representative Wallace declared that it was his purpose to make the act all inclusive and to eliminate all coin operated mechanical amusement devices, irrespective as to whether the result of its play was largely controlled by the element of chance or hazard or by skill of the operator. The majority of the committee to which this bill was referred by the House of Representatives brought in a report recommending that the bill do not pass. Representative Stovall presented a minority report recommending that the bill do pass. The minority report was adopted and the bill was placed on the calendar for final action. Later after debate on the bill, a motion to refer the bill to a special committee which would have had the effect of killing or amending the bill so as to restrict its application, lost by the narrow vote of forty-seven to fifty-six. The bill then passed the House of Representatives without any change being made in the bill as introduced by Representative Wallace. The Senate then passed the bill with only minor revisions in that part of the bill pertaining to the duties of Peace Officers, but no change was made in Sections 1, 2, 6 or 7. The House of Representatives concurred in the Senate amendments. The bill was passed and approved by the Governor with the emergency clause attached on April 28,1939.

The following are the pertinent provisions of this act:

“Section 1. That, for the purpose of tbis Act ‘slot machine’ is defined to be:
“First: Any machine, instrument, mechanism or device that operates or may be operated or played mechanically, electrically, automatically or manually, and which can be played or operated by any person by inserting in any manner into said machine, instrument mechanism or device, a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value; and
“Second: Any machine, instrument, mechanism or device that operates or may be played or operated mechanically, electrically, automatically, or manually, and which can be played or operated by any person by paying to or depositing with any person, or by depositing with or in any cache, receptacle, slot, or place a coin, chip, token, check, credit, money, representative of value, or a thing of value, and by which play or operation such person will stand to win or lose, whether by skill or chance, or by both, a thing of value.
“Section 2. That for the purposes of this Act ‘a thing of value’ is defined to be any money, coin, currency, check, chip, token, credit, property, tangible or intangible, amusement or any representative of value or any other thing, tangible or intangible, calculated or intended to serve as an inducement for anyone to operate or play any slot machine or punch board.
* # * •
“Section 6. That it shall be unlawful for any person to have in his possession any slot machine or punch board, or sell or solicit the sale, take orders for the sale of, or lease or rent any slot machine or punch board in this State, and any person violating the provisions of this Section shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars or by imprisonment in the county jail for. a term of not more than sixty (60) days, or by both such fine and imprisonment.
“Section 7. Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted, in or about any place of business, or in or about any place, whether as owner, employee or agent, any slot machine for the purpose of having or allowing same to be played by others for money, property, tangible or intangible, coin, currency, check, chip, token, credit, amusement or any representative of value or a thing of value, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00) Dollars, or by imprisonment in the county jail for a term of not more than sixty (60) days, or by both such fine and imprisonment.” 21 O.S.1941 §§ 964, 965, 969, 970.

The 1916 act (Tit. 21 O.S. 1941 § 944) prohibited the setting up of a slot machine for the purpose of having the same played for money, property, checks, credits, or any representative of value. There was no attempt in the 1916 act to define a “representative of value” as used in the act, but the 1939 act herein involved specifically defined the term “thing of value”, and by its definition a thing of value is amusement or any other thing tangible or intangible, calculated or intended to serve as an inducement for any one to play any slot machine. The language of the 1939 act is broad and restrictive enough to eliminate all forms of coin operated machines, but the act would be inapplicable in so far as it would affect the operation of a machine which could not by any reasonable intendment be considered as dangerous or injurious to the public health, safety or morals.

Immediately after the passage of the 1939 law, an action in habeas corpus was instituted in the Criminal Court of Appeals of Oklahoma, by the operator of a certain slot machine, to wit: a Cenco Marble Board .for the purpose of testing the constitutionality of said act and to determine whether, if said act were constitutional, it applied to the machine in question. Under the stipulation of facts, among other things, it was agreed:

“That said marble, pin and ball machine aforesaid, is operated mechanically, automatically and manually and may be played by inserting a coin in a slot whereupon five balls, or marbles, are directed into a chute for playing, by the player, by lifting the marbles, or balls, upon a chute that are played on the surface by plunger operated by the player: upon being played on such board the balls, or marbles, strike pins, springs or slots thus creating a score which is shown upon the board being a part of the device, no prizes are automatically offered, or paid in any sum, neither is there any cash, merchandise, checks or other things of value given, offered or obtained for the player of same, but the player plays said device for his own temporary amusement and no inducement is held out to him whereby he may obtain or lose anything of value on account of playing said machine, as aforesaid.”

This court, in an opinion by Judge Doyle, handed down on June 14, 1939 (Ex parte Davis, 66 Okla. Cr. 271, 91 P. 2d 799) sustained the constitutionality of said act. It was further held that under the police power the state had the right to determine what is dangerous and injurious to the public morals and the public welfare of its inhabitants. It was held that the machine described by the stipulation of facts was prohibited by the act and upheld the right of the Legislature to legislate against tliis character of . machine without regard to whether or not the machines are kept or operated for gambling purposes.

Subsequently, one Charles Couch was convicted in the court of common pleas of Oklahoma county, with operating a slot machine, to wit: a Five Ball Marble Board located in his cafe in Oklahoma City, which machine was operated for amusement only although it was so constructed that a free game could be given if a certain bumper on the board was struck by a ball, but the mechanism which automatically gave the free game was not connected so as to give the free game at the time the machine was being operated. The score of the operator was achieved largely by the element of hazard or chance. This court, in affirming the judgment of the - lower court, followed the decision of Ex parte Davis, supra, and held that the Legislature had in mind such machines at the time the broad prohibition was adopted as set forth in the 1939 act. Couch v. State, 71 Okla. Cr. 223, 110 P. 2d 613.

Thereafter, the 1939 act again came before this court for interpretation in the case of Delano v. State, 82 Okla. Cr. 258, 168 P. 2d 659, 660. In that case, this Court discussed the 1939 act more fully than was done in Couch v. State, supra, and laid down certain rules to govern the determination as to whether a mechanical device may be considered a- slot machine under the statute as follows:

“Before a mechanical device may be considered a slot machine under statute, 21 O.S. 1941 § 964, it must be shown that it is: First, a machine, instrument, mechanism or device that operates or may be operated or played mechanically, electrically, automatically, or manually ; second, which can be played or operated by any person by inserting in any manner into said machine, instrument, mechanism, or device a coin, chip, token, check, credit, money, representative of value, or thing of value; third, by which play or operation such person will stand to win or lose; fourth, whether by skill or chance, or both; fifth, a thing of value.”

The Hitler Electric Ray Machine involved in that case was compared to the ordinary shooting gallery. The score one made upon the machine was dependent solely upon the skill of the player in shooting the gun which was loaded with an electric ray. The electric beam was shot from the gun in the same manner that leaden bullets were fired from a rifle in an ordinary shooting gallery.

In the body of the opinion it is stated:

“It has not been pointed out by the state whereby the machine in question is injurious to public morals so that this court might say that the Legislature had in mind prohibiting the operation of said machine in the passage of the statutes in question. The machine is not dangerous, and for this court to hold that its operation was prohibited by statute would render liable to prosecution an individual operating music box machines, cigarette or candy coin vending machines, automatic parking meters, coin meters on transportation busses, pay toilets, or weighing machines. These are all mechanical devices whereby a person inserts a coin and receives something commensurate in value to the coin deposited. As shown by section 972 of the statute, supra, the Legislature declared the slot machines as defined by section one of the act to be gambling devices. It was at the evil of gambling to which the statute was directed. The machine involved can in no way be said to be a gambling device. It is true that persons may gamble on their skill and the score they might make in shooting at Hitler’s image, but the same argument would apply to shooting in any ordinary shooting gallery where a person deposits the consideration with the owners of the gallery and is permitted so many shots with lead bullets for the consideration paid to the operator.
“In recent years there has been a continuous increase of coin operated automatic devices' in establishments patronized by the public, particularly in those places of business furnishing meals or amusement. Many of the machines were manufactured so as to come within the law, but the law against gambling was being circumvented by the giving of tokens good for free games for certain scores made on the machine. These tokens were often redeemed by cash or merchandise. To hit at this evil the Legislature defined '‘amusement’ as a ‘thing of value.’ After the passage of the law, any machine giving a free game for high scores would come within the prohibition of the statute.
“The state virtually concedes that the machine is not a gambling device. Bouvier’s Law Dictionary, Rawle’s Third Revision, p. 1331 defines gaming ‘as a staking on chance where chance is the controlling factor.’ As already shown, the hits registered upon Hitler’s image were dependent upon skill.
“In Couch v. State this court did not interpret the section of the statute wherein it provides that a player must win or lose something of value. We were concerned chiefly with the question as to whether amusement was a thing of value, the defendant contending under the doctrine of ejusden generis that it was not. It appears to us that the phrase ‘win or lose’ inserted in the statute was therein placed so as to require the player to win or lose something by his play. It was not necessary that he win or lose, but if the machine is one whereby he might win or lose something of value by his play, then the operation of the machine is prohibited- by the statute.”

Council now state that in view of the opinion of this court in Delano v. State, supra, that the marble or. pin ball machine herein involved is not within the prohibition of the statute, and that if it is within the prohibition of the statute, then all mechanical coin operated devices, such as music box machines, cigarette or candy-vending machines, coin meters on transportation busses, weighing machines, etc., are unlawful.

It was not the purpose of the legislative act to condemn a machine simply because its initial operation was commenced by depositing a coin in a slot. We see in actual operation every day machines which are coin operated and might technically be designated as slot machines, but which no human mind ever associated with something condemned by law. These would include parking meters, pay toilets, cigarette vending machines, etc.

In Ex parte Davis, supra, Couch v. State, supra, and Delano v. State, supra, this court was not favored with a brief by the state upon the questions involved, and in the instant case a brief is filed without the citation of authorities although, authorities upon the questions involved are plentiful. Some of them are annotated in 132 A.L.R. 1004, 135 A.L.R. 104, and 148 A.L.R. 880.

In the case of State ex rel. Green v. One 5¢ Fifth Inning Base Ball Machine, 241 Ala. 455, 3 So. 2d 27, 29, the Supreme Court of Alabama held that the machine there involved was a gambling device under the Alabama code, though it was played only for amusement.

In the opinion it is stated:

“Defendant insists this act is penal and subject to strict construction, all of which may well be conceded. But here the language is plain and unambiguous. We take judicial knowledge of conditions generally known of all men, that prevailed in this State prior to the passage of this act and evidently inspired the same. What were known as ‘slot machines’, ‘pin ball machines’, ‘one armed bandit’ machines and various other mechanical devices and inventions were distributed throughout the State, stimulating the gambling spirit in the citizens and corrupting the morals of the people.
“It was to curb this evil that the 1931 Act was passed. A question similar to that here presented was before the Florida court, and the following observation taken from the opinion of that court in Eccles v. Stone, 134 Fla. 113, 183 So. 628, 631, is applicable here:
“ ‘It is a matter of common knowledge, of which we must take judicial cognizance, that the lure to play the slot machine had become so great as to undermine the morals of many and to lead to the commission of or the indulgence in vices and crime to procure the coins with which to play the machines.
“ ‘So the legislature of 1937 carried out the mandate of the majority of the people of the State, and the members their pledges to their constituency, to pass acts which would prohibit the operation of coin-operated gambling-devices in this State and enacted Chapter 18143.
“ ‘It is also a matter of common knowledge that pursuant to the passage of that act the popular slot machine with its set of pictured wheels, its alluring jackpot and its pull lever, generally known as the one-armed bandit, faded away from the public places and immediately in the places where they had stood were set up the mechanical horse races, marble pin games and other coin-operated mechanical devices, adapted and fit for fast, easy gambling; and it is a matter of common knowledge, of which we cannot plead ignorance, that these machines are generally used as gambling devices and that the gambling element is the principal lure which causes them to be played by the public.’ ”

In the case of Alexander v. Martin, 192 S. C. 176, 6 S. E. 2d 20, 23, the court stated:

“It is clear that the law condemns any devices pertaining to games of chance, of whatever name or kind, except certain types of machines therein mentioned which are so constructed as to give a certain uniform and fair return in value for each coin deposited therein, and in which there is no element of .chance. Petitioners argue that while in the playing of their machines there is present some element of chance as to the score which may be made, there is no hazard or chance involved in what the player received, — which is the amusement he derives .from the playing of the game.
“While it is true that the player receives the same number of balls for each coin deposited, he may or may not make the same score for each coin’s worth of balls played. This in itself is an element or contingency, dependent upon chance, and would make of the machine an unlawful device, inasmuch as the law above quoted condemns all vending or slot machines or other devices pertaining to games of chance, which display different pictures, words or symbols at different plays, or different numbers, whether in words or figures, or which deposit tokens or coins at irregular intervals, or in varying numbers to the player or in the machine.
“In addition to this, contingent upon the score recorded for a player, free games are awarded. Therefore, it is clear that the lure and inducement to the player to operate the machine is the chance of occasionally being allowed to play a game or games without additional cost. This feature, we think, clearly pertains to a game of chance, And this is true, whether the machine is played for amusement or for other returns, such as money.
“Amusement is recognized by the courts as a thing of value, and where the amount of amusement given the player of the machine is determined by chance or hazard, such machine is held to be a gambling device.”

In the case of Stanley v. State, 194 Ark. 483, 107 S.W. 2d 532, the Supreme Court of Arkansas held (Syllabus) :

“A novelty baseball game machine operated by placing coin in slot so as to release plunger and five steel balls for play on a field set with bumper springs which directed balls into various slots as outs or runs, thus determining winning score as recorded on electric score board was subject to seizure under statute as a ‘gambling device,’ notwithstanding no prize was offered for any particular results, since only reasonable and profitable use to which it might be put was as a game of chance (Crawford & Moses’ Dig. § 2630).”

In all of the many cases cited by the various courts of the United States, we have found none with a statute as broad and comprehensive as the Oklahoma statute. In many of them, such as the three just above cited, the statutes merely prohibit gambling devices and left the interpretation to the courts as to whether the machines involved were gambling devices under the statute. The inducements to gamble presented by machines similar to the one here in controversy were influential factors in causing the Oklahoma Legislature to act. It was this gambling influence that enabled the Legislature to act under their police power, otherwise the act would be invalid.

Under the Oklahoma law, amusement has been defined to be a thing of value. It is true that for each coin deposited in the machine, the operator receives the same number of balls, but there is not a uniform score received by each operator for each. coin deposited. The amount of amusement won or lost by the operator is determined largely by hazard or chance, or, as testimony discloses in this case, by “luck of the operator”. It is apparent that the operator receives some amusement for each coin operated. However, the amount of amusement, received is not uniform and always the same. It varies with each coin deposited. He can win more amusement, that is, receive a higher score, if the goddess of chance smiles upon him and the balls which he propels strike the correct bumpers on the machine. We make this observation for reason that counsel for the defendant contends that the proof affirmatively discloses that the machine in question at the time of its operation did not permit free balls or free games to be awarded to the player. We do not agree that the record affirmatively discloses this fact. The evidence of the state is to the contrary. However, regardless of whether the free ball or free game was given, the operation of the machine in question is prohibited by the statute.

The manner and result of the operation of the machine in question establishes to our mind that it comes under the classification of a slot machine as defined by the statute in Tit. 21 O.S. 1941, § 964 et seq. With this conclusion established, it becomes unnecessary to decide the other questions presented.

The judgment of the county court of Custer county is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.

On Rehearing.

JONES, J.

Permission was granted to counsel representing parties allegedly operating machines similar to the one out of which this prosecution was instituted to file briefs amici curiae in support of the petition for rehearing filed by the defendant.

Counsel in their briefs have stated that there are a large number of these machines in operation in Oklahoma in drugstores, cafes, pool halls, and other establishments, and that some cities have licensed their operation.

It should be borne in mind that since the passage of the law in 1939, 21 O.S. 1941 § 964 et seq., prohibiting the operation of these máchines, this court has twice held that pinball or marble machines operated for amusement only were prohibited by the act. Ex parte Davis, 66 Okla. Cr. 271, 91 P. 2d 799; Couch v. State, 71 Okla. Cr. 223, 110 P. 2d 613.

To have held otherwise would have nullified the legislative act which prohibited the setting up of these machines “to be played by others for money, property, tangible or intangible, coin, currency, check, chip, token, credit, amusement, or any representative of value or a thing of value.” 21 O.S. 1941 § 970.

It is apparent that the Legislature intended to absolutely prohibit the operation of these machines. No plainer language could have been employed to express the legislative-intent to prohibit the operation of these machines irrespective as to whether they were played for free games, prizes, or merely for the amusement of the player.

It was properly a function of the Legislature to determine in the exercise of the police power whether the operation of such machines tended to be injurious to the health, safety, morals, or general welfare of the public. It is not within the power of the court to strike down a legislative enactment unless it is clear that there is no reasonable basis upon which the act might be sustained. There is a strong presumption in favor of the constitutionality of every legislative act, and in so far as slot machines are concerned, it is a matter of common knowledge that they are generally adapted to fast, easy gambling; that the label “for amusement only” placed on many machines is a subterfuge to deceive enforcement officials and hamper them in prosecutions for gambling. The Legislature with a full knowledge of these conditions has prohibited the operation of such machines for amusement or for any other purpose.

Counsel have reiterated that the opinion herein is contrary to the ruling in Delano v. State, 82 Okla. Cr. 258, 168 P. 2d 659. There is a reasonable basis for this contention in view of some of the statements made in the Delano case. As was stated in the opinion herein, there has been a noticeable absence of briefs in the adjudicated cases. Our opinion and research in the absence of thorough briefs on behalf of the state in the former cases have been directed to the point raised by the defendant in each of said cases. We have made a more thorough research into the decisions of courts of other jurisdictions and the statutes of other states and the legislative background of the 1939 act in the instant case than in any of the others. If the state had fully briefed the Delano case and had argued their cause with their known ability and enthusiasm, the Delano opinion might have been decided on another basis than the one which was discussed.

To .avoid any confusion in the application of the rules of law set forth in the opinion in the instant case, and in the other cases construing the 1939 act, it is ordered that the decisions in those cases in so far as they conflict with the opinion herein, if there is any conflict, are modified to conform to the opinion herein.

The petition for rehearing is denied and the mandate is ordered to be issued immediately.

BAREFOOT, P. J., and BRETT, J., concur.