text:
    FRANK SMITH v. STATE.
    No. A-6509.
    Opinion Filed May 18, 1929.
    (277 Pac. 604.)
    See, also, 40 Okla. Cr. 366, 269 Pac. 376.
    Clay Snodgrass, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for tbe State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called tbe defendant, was convicted in tbe county court of Jackson county of selling intoxicating liquor, and sentenced to pay a fine of $100 and cost, and to be imprisoned in the county jail for 30 days. Motion for new trial was filed and overruled, and tbe defendant has appealed to this court.

Tbe state produced O. L. Willis,, who in substance testified that be met tbe defendant, Frank Smith, in Altus, but did not know exactly what place he met him; defendant gave him a note which had been disposed of by him, reading in substance: “Let this man have this or that.” He did not know the defendant; he was working for F. O. Goen, and that he, James May, F. O. Goen, and Clifford Stewart started to work one morning and drove by a place which he thought was defendant’s place, and he got out and went to the house and knocked on the door, and a lady came to the door and he delivered the note and got a half gallon of whisky; he did not know who the lady was, but said she kind o’ resembled the wife of the defendant. The other parties with him did not know where he got the whisky and did not see the party from whom he got the whisky; they had 'all paid Willis for their pro rata share, which Willis claimed was $5; all the parties with Willis got drunk and were arrested and placed in jail. The witness Willis admits he was promised immunity from prosecution, and that his car in which he was riding when arrested was not confiscated. The testimony further shows that the witness Willis had a very poor memory; that he did not recollect distinctly what occurred excepting he claims the defendant in Altus gave him a note not addressed to any one or signed 'by any one; that he took this note and drove out in the country to a house, and knocked on the door, and delivered the note to a lady, and received a half-gallon of whisky. He does not know who the lady was, but she resembled the wife of the defendant. None of the parties with the witness Willis claim to have seen the defendant anywhere about the place, and in fact there is no contention that the defendant was at home or had. any communication with his wife, if the place where the witness claims he got the whisky was defendant’s home.

The defendant as a witness in his own behalf testified he lived six miles south and two and three-fourths miles east of Altus; he had never gone to school a day in his life; he had no recollection of ever having seen the witness Willis and did not know him; he did not give him a note of any kind. On cross-examination the witness restated that he could write his name; he said he was probably in Altus the day alleged; he could not say definitely, as he went to town almost every day; when he left home the morning of the alleged offense his wife and children were at home. He was then asked if he had offered to lend George Thrush some whisky, and the witness admitted that he had at one time; that he did not think it was on March 31, 1926, the date of this alleged offense; that on this date George Thrush did come and ask him if he had! any whisky, and he did not say he would lend Thrush a half gallon. The defendant admitted he had a little whisky at the house for his own use, but denies he had anything to do with selling any whisky, or sending a note by the witness Willis to any one to let Willis have any whisky.

Mrs. Frank Smith, called as a witness for the defendant, stated the witness Willis had never delivered her a note of any kind and that she had not delivered him any whisky; that she taught her husband to write his name after they were married; that her husband had had some whisky; had been using it as he had been having trouble with rheumatism. On cross-examination the witness, the wife of the defendant, was asked if she and Frank had not had some little trouble a while ago, and . answered, “I don’t consider that ought to come up in this.” She was then asked if she had not stated to the county attorney that the defendant had a half gallon of whisky out there at one time, and the witness said he had had some whisky at the house and that her husband had taken a drink. “I did not see any car come up in front of my house; if any one came to the house I did not know it. There are cars! passing all the time.”

T. J. Burlington testified for the defendant that he had never seen the defendant do any writing but sign his name and the witness often filled out checks for him to sign.

O. L. Willis was recalled and stated that he could not swear he saw the defendant write the note he claims was delivered to him; that he did not remember whether he stated the defendant wrote the note; but defendant gave him the note. This is all the testimony necessary to be set out.

At the close of the testimony the defendant interposed a demurrer on the ground that the testimony was insufficient to warrant a conviction, which demurrer was overruled, and the defendant duly excepted.

The information in this case is sufficient to put defendant on trial for the sale of intoxicating liquors. After a careful consideration of the entire record, there is no testimony whatever which tends in any way to corroborate the prosecuting witness, who is shown to have accepted money from the other parties with him for an interest in the whisky he claims he bought. It is not deemed necessary to further discuss the case. If the defendant is guilty, he should be proven guilty by legal and competent testimony, and not by the uncorroborated testimony of an accomplice -who admits he was testifying and charging, this defendant with the sale of the whisky in order that his new Chevrolet car would not be confiscated.

The testimony shows that the defendant does not write, only signs his name; but there is no testimony corroborating the prosecuting witness showing that he received the note from this defendant. His own testimony is uncertain and indefinite as to the note and the place they got the whisky, and the party from whom they got it. There is no sufficient testimony to sustain the judgment. The demurrer of the defendant to the evidence was well taken and should have been sustained.

The testimony being insufficient to sustain the judgment, the case is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    GEORGE LINDERMAN et al. v. STATE.
    No. A-6573.
    Opinion Filed May 18, 1929.
    (277 Pac. 602.)

      R. C. Roland., for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiffs in error, hereinafter called the defendants, were convicted of a charge of having the unlawful possession of intoxicating liquors with intention of selling, bartering, giving laway, and otherwise furnishing the same to others, and the punishment of C. L. Linderman fixed at $250 fine and' costs, and imprisonment in the county jail for a term of 90 days; and the punishment of George Linderman fixed at $50 fine and costs, and imprisonment in the county jail for a term of 30 days. Motion for new trial was filed, considered, and overruled, and the defendants have appealed to this court.

The state offered testimony of W. C. Keirsey, a deputy sheriff, which, in substance, is as follows: That on the 23d day of August, 1926, he went to the home of the defendants ; that he had a search warrant and searched for liquor. The state then introduced Exhibit A, which was a complaint for a search warrant, and Exhibit B, the search warrant. To the offering of the two' instruments in evidence the defendants objected, for the reason “that the affidavit is not sufficient in law to authorize a search of defendants’ home. And for the further reason that this is a general application for a search warrant signed by W. 'C. Keirsey, without sufficient showing of his knowledge of matters alleged in the affidavit.”

And to this objection they requested the court to al-io w them to ask the witness a few questions. The Court: “Go ahead.” The witness was asked several questions by the defendant, and stated that he had no personal knowledge of the facts alleged, but he had information, and that the affidavit was on information and belief. The defendant then moved to suppress the affidavit and search warrant made on information and belief. On redirect examination of the witness the state showed that the witness claimed to have searched this place about 60 days prior to this time, and that it bore the reputation of being a place where intoxicating liquor may be had, bought, or sold to others. To this question by the state the defendant objected on the ground that it was incompetent, irrelevant, and immaterial. The court overruled the objection, and the defendant saved an exception.

The application for a search warrant was then introduced in evidence, and, omitting the caption, that part we deem, necessary to set out for the purpose of this opinion, is as follows: “W. C. Keirsey, of lawful age, being duly sworn, on oath deposes and says: That in Carter County, State of Oklahoma, on the 21st day of August, 1926, the above named defendant, C. L. Linderman, at number on Sec. No. 15 in the county of Carter, State of Oklahoma, in a certain building described as follows: 1 story wood and all out buildings, in Carter County, did, then and there unlawfully have in their possession and under their control, and do now keep for the purpose of selling, bartering, giving away and otherwise furnishing certain intoxicating liquors, described as follows to wit: Whisky, beer and wine, and other compounds, the same being in-toxieating, and which are capable of being used as a beverage, in violation of law, contrary to the form of the statutes, in such cases made and provided against the peace and dignity of the State of Oklahoma.”

The search warrant issued by the justice of the peace, based upon the complaint contained in the statements, supra, does not conform to the description in the affidavit for the search warrant, but reads as follows: “O. L. Lin-derman and John Doe, whose real name is not known, has sundry liquors, on Sect. 15 S. W. of Healdton, Oklahoma, in a certain building described as a 1 story wood building, and all other out buildings on said place in Carter County, Oklahoma.”

There are many errors set forth in the assignments of the defendants, and considerable testimony was taken as to what was found at the place the sheriff claims he searched, the place he searched 'being the home of the defendant, but in the view we take of this record, it is not deemed necessary to set out at length the testimony or the other objections made by the defendants.

It is urged by the defendants with considerable force that the affidavit for the search warrant is indefinite and uncertain, and does not describe the place with that particularity required by the statute. Section 30„ art. 2, of the Bill of Bights, provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

Section 7009, C. O. S. 1921, provides:

“If it shall be made to appear to any judge of any court of record or any justice of the peace that there is probable cause to believe that liquor, the sale of which is prohibited by this act, is being manufactured, sold, bartered, given away, or otherwise furnished, or is being kept for the purpose of being sold, bartered, given away, or otherwise furnished in violation of this Act, such judge or magistrate shall, with or without any endorsement of such complaint by the county attorney, issue a warrant, directed to any peace officer,” etc.

Section 7012, C. O. S. 1921, provides:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

It will be further noted that the affidavit does not charge that the premises were occupied by C. L. Linder-man as a residence. It will also be noticed that the description in this affidavit for the search warrant is indefinite, and does not particularly describe any place to be searched with any degree of certainty, only stating, section 15 in the county of Carter. Under the description in the affidavit for the complaint; no officer unfamiliar with the country could have located definitely the place to be searched. The court will take judicial notice that there have been proper surveys made in all the counties of Oklahoma, and that the lands are described by sections, township, and range, and subdivisions of sections; that the officer, if he had taken pains, could have ascertained and set forth in the affidavit and search warrant a particular description of the place to be searched. It is not charged that the premises they desired to search were owned by the defendant or that he occupied the same as a residence. In the prohibition act there is no form for a search, but the general law as to search warrants, section 2881, C. O'. S. 1921, does set out a form providing that a search warrant shall describe the place to be searched with reasonable particularity. The authority of the officer to make the search is derived exclusively from the provisions of the warrant. The description in the warrant of the place to be searched and the thing to be seized should be sufficient to show jurisdiction, and should not be broad enough to permit a general search, but should be limited by reasonable certainty to the particular place described to comply with the provisions of sections 7009., 7012, and 2881, C. O. S. 1921.

The affidavit for the search warrant, and the search warrant based thereon, under which the officers claim to have been acting when they searched the residence of the defendants, was unlawful for want of a proper description, and void, and any search made by the officers of the defendants’ premises was without authority of law. The objection of the defendants to the introduction of the application for the search warrant, the search warrant, and the testimony of the officer secured by reason of the search, based upon the search warrant, was well taken, and should have been sustained. The search warrant being void, the seizure of any property found on defendant’s premises was unlawful and without authority of law, and was inadmissible as evidence against the defendants. Hall v. State, 34 Okla. Cr. 334, 246 Pac. 642; Brandt v. State, 34 Okla. Cr. 400, 246 Pac. 1106; Cook v. State, 40 Okla. Cr. 219, 267 Pac. 1045; Wofford v. State, 40 Okla. Cr. 18, 266 Pac. 494; Turknett v. State, 36 Okla. Cr. 401, 254 Pac. 985.

The place to be searched is not sufficiently described in the affidavit for the search warrant. All the evidence having been obtained by a search under an invalid affidavit and search warrant, the case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J:

text:
    J. B. GUERIN v. STATE.
    No. A-6550.
    Opinion Filed May 18, 1929.
    (277 Pac. 601.)
    Sigler & Jackson, for plaintiff in error.
    F. M. Dudley, Co. Atty., and Marvin Shilling, Asst. Co. Atty., for the State.
   CHAPPELL, J:

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county for a second and subsequent violation of the liquor law, and his punishment fixed at a fine of $50 and. the costs of prosecution, taxed at $78.20, and confinement in the county jail of Carter county for 60 days. The record discloses that on the 18th day of January, 1926, the defendant was charged with the crime of unlawful and felonious possession of a still, mash, and wort, and that he had heretofore on the 24th day of M'arch, 1924, in the county court of Carter county been convicted of the crime of unlawful manufacture of whisky.

The defendant complains that the court erred in its instructions to the jury. In the case of Tritthart v. State, 35 Okla. Cr. 41, 247 Pac. 1111, this court said:

“Where the instructions as a whole, considered and' construed together, contain no fundamental error nor misstatement of law calculated to mislead the jury to the injury of the defendant, the judgment will 'be affirmed.”

The instructions in the case at bar fairly state the law of the case and contain no substantial error requiring a reversal of the case.

The defendant nest complains that the court erred in taking from the jury the testimony of the witnesses Lindsey, Pry, and Sanders, who testified for the defendant. Defendant undertook to prove by these witnesses that the venue of the action was not in Carter county but in Johnston county. These witnesses testified that they visited the spot where it is said the still was captured by the officers several days after the service of the search warrant, and that, if the place they saw was the location of the still, it was in J ohnston county. This evidence was incompetent for the reason that each of the witnesses admitted that they did not know where the still was captured, which constituted the charge upon which the defendant was being tried.

The evidence is sufficient to support the verdict of the jury, and, the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWARDS', P. J.

text:
    B. H. MURDOCK v. STATE.
    No. A-6922.
    Opinion Filed May 18, 1929.
    (277 Pac. 601.)

      Allen & Allen, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS', P. J.

The plaintiff in error was convicted in the county court of Choctaw county on a charge of pointing a gun at another, and was sentenced to pay a fine of $300 and to be confined six months in the county jail.

Judgment was entered on October 29, 1927, and the appeal was lodged in this court March 2, 1928, which was the 125th day after the rendition of the judgment.

The extreme limit within which an appeal from a conviction for a misdemeanor can be filed in this court is 120 days. Section 2808,, Comp'. Stat. 1921. When an attempted appeal is not filed in this court until the expiration of 120 days, this court acquires no jurisdiction.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    BILL PHILLIPS v. STATE.
    No. A-6567.
    Opinion Filed May 18, 1929.
    (277 Pac. 669.)

      Hodge & Schenk, for plaintiff in error.
    Edwin Dabney, Atty Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Carter county on a charge of possession of spirituous, vinous, fermented malt, and. intoxicating liquors, and sentenced to pay a fine of |50 and costs and to be imprisoned in the county jail for a term of 30 days. Motion for new trial was filed, considered, overruled, and defendant has appealed from the judgment to this court.

A demurrer was filed by the defendant to the information,, which demurrer was considered by the court and overruled, and defendant duly excepted. This is assigned as one of the errors committed by the court. After an examination of the information we hold there was no merit in the demurrer of defendant, and the court properly overruled the same.

The defendant then filed a motion to suppress the evidence, in which motion to suppress he alleges that the arrest of the defendant was without authority of law and. against his constitutional rights as a citizen of the state of Oklahoma, and, second., that the evidence sought to be introduced by the state was obtained by means of an unlawful search of defendant’s private residence, and was an unauthorized search and seizure made in violation of the constitutional rights of the defendant. The motion to suppress the evidence was overruled, and defendant duly excepted. The state then called Jess Salyer as a witness. The defendant objected to any testimony whatever in the case being introduced for the reason that all the evidence obtained was secured by an unlawful, illegal, and unwarranted search and seizure, an invasion of man’s home against his constitutional rights, which objection was overruled, and defendant duly excepted. Jess Salyer then testified he was constable of Hewitt township, and that he made application to the justice of the peace of Wilson for a search warrant and secured a search warrant to' search the premises of the defendant; they found about twelve gallons of what he designated as choctaw beer. The state then had the application for the search warrant, and the search warrant identified as State’s Exhibits A and B, and offered them in evidence. The defendant objected to the introduction of Exhibits A and B, as being the application for the search warrant, and Exhibit B being the search warrant, which objection was overruled, and defendant duly excepted..

After an examination of the record in this case, we ido not deem it necessary to set out any more of the testimony. The defendant has assigned a number of errors alleged to have been committed by the trial court, the first assignment being that the trial court erred in overruling defendant’s motion for a new trial. The view we take of this record, this is the only assignment that is necessary to be considered. The defendant in the fourth paragraph of his motion for a new trial directed the court’s attention to the error committed in admitting incompetent, irrelevant, and immaterial testimony, and documentary evidence, over the objection of the defendant, the documentary evidence being the application for the search warrant, the search warrant, and a copy of the analysis made by the chemist as to the alcoholic contents of what the witness claims to be choc beer found at the defendant’s home.

It is urged by the defendant that the court erred in admitting over his objection the complaint for the search warrant and the search warrant, for the reason that the complaint for the search warrant contained the following allegations:

“That the aforesaid premises bears the reputation of being a place where intoxicating liquor may be purchased in violation of the statutes of Oklahoma.
“That the aforesaid premises further bears the reputation of being a place where intoxicating liquors are distilled and manufactured in violation of the statutes, of Oklahoma.”

It is urged by the defendant that these allegations in the complaint having been introduced by the state for the consideration of the jury were as damaging as if the witness had been placed on the stand to testify to the same facts; that the court erred in permitting the state to introduce the complaint containing the allegations, over the defendant’s objection, for the reason that it put in issue the reputation of the defendant’s home and premises without the proper predicate having been laid for the introduction of such testimony.-

The defendant further contends that, before the reputation of the general reputation of his home or place can be legally admitted, it must be shown that the place itself was a place of public resort, not merely that it bore such a reputation. There is no evidence in the record showing that parties resorted to the defendant’s place or home, or that the defendant had in any way whatever been connected with the buying or selling of intoxicating liquorsi at his place. The objection of the defendant to the introduction of the complaint and application for the search warrant and the search warrant was well taken and the court should have sustained the same. It was error for the court to admit the complaint and warrant as to the reputation of the defendant’s place without a proper predicate being laid by the state showing that the defendant’s place was a place of public resort. To justify or sustain a conviction of having intoxicating liquor with intent to violate any provision of the prohibitory laws, there must be evidence sufficient not merely to prove possession, but also to prove criminal intent. Ward v. State, 15 Okla. Cr. 150, 175 Pac. 557; Fitzgerald v. State, 39 Okla. Cr. 320, 264 Pac. 929.

There are other errors assigned, but in the view we take of this record, it is not deemed necessary to discuss them.

The case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: CHAPPELL, J.

text:
    W. O. ADAMS v. STATE.
    No. A-6518.
    Opinion Filed May 25, 1929.
    (277 Pac. 688.)
    Wm. A. Tidwell, for plaintiff in error.
    Tom Finney, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error;, hereinafter called defendant, was convicted in the county court of McCurtain county upon the charge of having possession of a still and sentenced to pay a fine of flOO and costs of the action and to be imprisoned in the county jail for a period of six months, and defendant now brings the case to this court on appeal.

The evidence of the state was that Joe Bolen and S. R. Bright, deputy sheriffs, found a still about four miles from any human habitation upon the bank of a creek; that the officers could see the still under a shed on the bank of the creek and the defendant with one Johns was in the creek with a coil and a box and were trying to sink the box in the creek so the coil would go through the box and act as a cooler; that the defendants were actually engaged in connecting up the still with the coil and box at the time they were arrested by the officers. The officers found about 1,400 pounds of sugar near the still, together with about 3,000 gallons of mash and 240 gallons of tank. At the time the defendants were arrested, Johns said, “Adams just came to get some whisky and said he would stay until they could get some made.” Joe Bolen testifying for the state said he had a conversation with the defendant and the defendant told him “that he came down to this still to get some whisky and they didn’t have any and he decided he would stay and help make some.” Johns pleaded guilty to the possession of a still, and, testifying for the defendant, said that he operated the still but did not know who owned it. The defendant testifying in his own behalf said that he only came the day before his arrest; that he was out fishing and had no interest in the still. Other witnesses testified for the defendant that the defendant lived at Mulberry, Ark., but, their information being based on what the defendant told them, the evidence was withdrawn from the jury.

The defendant first urges that the court erred in overruling his motion for new trial. This court has repeatedly held that the granting of a new trial is within the sound discretion of the trial court, and that this court will not reverse a case for error of the trial court in overruling the motion for new trial unless it affirmatively appears from the record that the trial court abused its discretion in overruling the motion. There is nothing in this record to indicate any abuse of discretion in overruling the motion for new trial.

Defendant next complains that the court erred in his instructions to the jury, complaining particularly of instruction No. 1, which instruction merely states to the jury the substance of section 2, chap. 42, Session Laws of 1923-24. Where the court, in instructing the jury as to the law of the case, sets out the statute under which the defendant is being prosecuted, practically, in the language of the statute, the instruction is not erroneous.

Finally the defendant contends that the punishment is excessive and unjust. Considering the size of the still and the amount of mash and sugar on hand and the evident preparation for the manufacture of liquor on a large scale, it cannot be said that the punishment fixed by the jury was excessive.

The evidence being sufficient to support the verdict, and the errors of law complained of being without merit, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    SAM HOUSTON v. STATE.
    No. A-6486.
    Opinion Filed May 25, 1929.
    (277 Pac. 687.)

      Norman H. Wright, for plaintiff in error.
    J. K. Wright, Co. Atty., and L. W. Harrod, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error,, hereinafter called defendant, was convicted in the county court of Oklahoma county on the charge of having possession of a still and sentenced to pay a fine of $50 and 'be imprisoned in the county jail for a period of four months. Motion for new trial was filed, overruled, exceptions saved, and the case appealed to this court.

The defendant objects first that the evidence is insufficient to support the verdict. This court has often field that the jury are the exclusive judges of the weight of the evidence, and that where there is a conflict in the evidence, or if it is such that different inferences can properly be drawn from it, the verdict of the jury will not be interfered with unless it is clearly against the weight of the evidence or it appears to have been influenced by passion or prejudice. If the jury believed the evidence offered by the state in this case, there is ample to support the verdict. Since the jury found the defendant guilty, it is evident that they did believe the evidence offered by the state, and it was sufficient.

The defendant next urges that the trial court invaded the province of the jury in giving instruction No. 6 which is as follows: “The mere fact that a still or a part of a still or mash barrels were found on the defendant’s premises a considerable distance from his residence is not sufficient to warrant a verdict of guilty, but it is a circumstance, together with all the other facts and circumstances, to be taken into consideration in determining the guilt or innocence of the defendant.”

The evidence of the state was that the still was upon the premises of the defendant. The defendant admitted in his testimony that the still was on his premises, that he had been told by other parties that it was there, and that he was out where the still was, locating and investigating the report to see if it was true when he was arrested. Since there was no conflict in the evidence as to the still being on the premises of the defendant, it cannot be said that the court invaded the province of the jury in assuming a fact as proved which was not proved. Under the facts in the case the instruction complained of was evidently given by the court in favor of the defendant, and. he could not have been prejudiced thereby.

The defendant next urges that section 2,, chapter 42, Session Laws, 1923-24, which is the act under which the defendant was prosecuted, was unconstitutional. Defendant cites no authorities in his brief and does not point out any section of the Constitution which he complains the act violates. The act is constitutional, and the defendant was properly convicted under it. Kemp v. State, 35 Okla. Cr. 128, 248 Pac. 1116.

Finally the defendant argues that the punishment is excessive. Where the jury hears the evidence, sees the witnesses, and hag an opportunity to observe their demeanor on the witness stand, they are in a better position to determine the amount of punishment to be inflicted than is this court from an examination of the record. This court will not disturb the verdict of the jury unless it is made clearly to> appear from the record that the jury were influenced by passion or prejudice in fixing the punishment. There is nothing in the record to indicate passion or prejudice on the part of the jury.

The defendant in testifying told such an improbable story In explanation of his conduct when found working with the mash near the still that the jury would be justified in disbelieving his story. The evidence being sufficient to support the verdict, and no substantial errors appearing upon the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    F. M. MILLER et al. v. STATE.
    No. A-6487.
    Opinion Filed May 25, 1929.
    (277 Pac. 687.)

      Sam S. Gill, for plaintiffs in error.
    J. K. Wright, Co. Atty., and L. W. Harrod, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Oklahoma county on the charge of having possession of a still, and each of the defendants was sentenced to pay a fine of $250 and each to be imprisoned in the county jail for a period of 4 months. Motion for new trial was filed, overruled, and exceptions saved, and the case appealed to this court.

The defendants argue two questions in their brief. 'First, “the evidence is insufficient to support the verdict.” This court has repeatedly held that, where there is a conflict in the testimony, and where there is sufficient evidence in the record to support the verdict of the jury, this court will not reverse the case.

In the case of Choate v. State, 37 Okla. Cr. 314, 258 Pac. 360, par. 2 of the syllabus, this court said:

“Where there is competent evidence which reasonably sustains the verdict and judgment, a conviction will not be reversed, although the evidence may be conflicting or different inferences may be drawn from it.”

The defendants next complain that the judgment and sentence are excessive. As to the defendant, Mrs. F. M. Miller, we are of the opinion that the punishment should be reduced to a fine of $50 and to imprisonment in the county jail for 30 days; but as to the defendant, F. M. Miller, the punishment does not appear to be excessive.

The judgment is therefore affirmed as to defendant, F. M. Miller, and the judgment is modified as to Mrs. F. M. Miller, and her punishment fixed at a fine of $50 and imprisonment in the Oklahoma county jail for a period of 30 days.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: EDWARDS, P. J.

text:
    MONT FREEMAN v. STATE.
    No. A-6526.
    Opinion Filed May 25, 1929.
    (277 Pac. 685.)
    Jack W. Page, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of unlawfully transporting intoxicating liquor and was sentenced to pay a fine of $50 and to imprisonment in the county jail for a term of 30 days.

Only one contention is made; that is, that the information is insufficient for failure to charge the place from which the liquor was transported. In this particular the information alleges: * * That Mont Freeman * * * did unlawfully and willfully carry, transport and convey intoxicating liquor, to wit: whisky * * * from a point unknown to informant to a point on the public highway, to wit, Porter Avenue and Frank Street intersection in the city of Norman. * * *”

Section 7002, Comp. Stat. 1921, defines the offense sought to be charged. An information charging the unlawful transporting or conveying of whisky should allege the place from which it is transported, if known, and the place to which it is transported. It is not sufficient to allege that it was transported from one place in the state to another place without specifying the place, as such allegation does not sufficiently identify the ¡transaction.! Brown v. State, 4 Okla. Cr. xiii, 115 Pac. 603. But if the place from which the liquor was transported is not known, it may be alleged in the information that the transporting was from a place in the state unknown to the informant to some other place in the county. The information is not defective for failing to state the place from which the liquor was conveyed, where it is alleged that such place was unknown to the informant. Schave v. State, 4 Okla. Cr. 286, 111 Pac. 962.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    MRS. EMMA MURN v. STATE.
    No. A-6511.
    Opinion Filed May 25, 1929.
    (277 Pac. 684.)

      A. C. Sewell, for plaintiff in error.
    W. E. Gotcher, Co. Atty., and Eobt. J. Bell, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pittsburg county upon the charge of having possession of intoxicating liquor, and her punishment fixed at a fine of $100 and imprisonment in the county jail for 60 days. Motion for new trial was filed, overruled, exceptions saved, and the case appealed to this court.

The first objection of the defendant is that the evidence is insufficient to support the verdict. The officers searching the residence of the defendant found some whisky in a glass jar, which the defendant attempted to dispose of by emptying the jar. They could smell whisky that had been dumped into the slop pail, and the sheriff and some of his deputies testified that they knew the reputation of the place kept by the defendant at the time of the raid, and that the place was a place where the public resorted, and had. resorted for a number of years, to drink intoxicating liquor. The officers further testified that they followed a trail leading, from the back door of defendant’s home out from the back door of her house to a field 200 or 300 yards from her bouse, and there found six half-gallon fruit jars full of whisky. Holes had been dug in the ground, the jars placed down in the holes, and the jars covered over with dirt, leaves, and sticks, with little sticks sticking up over each jar to locate where it was. The defendant took the witness stand and admitted she had a small amount of whisky in her house, given her by her former husband because she was sick, and denied any knowledge of the whisky concealed. If the jury believed the evidence of the state, it was sufficient to support the verdict.

The defendant next complains that the court erred in failing to instruct the jury on the law of circumstantial evidence. In the case of Klaber v. State, 35 Okla. Cr. 238, 250 Pac. 142, in paragraph 2 of the syllabus, this court said:

“Where the conviction rests wholly upon circumstantial evidence, and the court gave no instruction on the law of circumstantial evidence, and no instruction on this phase of the evidence was requested, the failure to. so instruct the jury is not necessarily reversible error.”

See, also, Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900.

The defendant next complains that the punishment is excessive. The jury fixed the punishment in their verdict at a fine of $100 and 60 days in the county jail. Under the facts revealed in this case, the punishment fixed is as small as the jury could be justified in fixing.

For the reasons stated, the cause is affirmed.

EDWAKDS, P. J., and DAVENPORT, J., concur.


text:
    MARGARET HERRING v. STATE.
    No. A-6485.
    Opinion Filed May 25, 1929.
    (277 Pac. 683.)
    Sam S. Gill, for plaintiff in error.
    J. K. Wright, Co. Atty., and L. W. Harrod, Asst. . Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on the charge of having possession of intoxicating liquor, and her punishment fixed by the jury at a fine of $200 and confinement in the county jail for a period of four months.

The first objection of the defendant is that the evidence was inadmissible, because the search warrant described more than one place and was issued on information and belief. The description of the premises in the search warrant was as follows: “A three and. two story building being located at 220 1-2 and 222 1-2 N. Broadway, Oklahoma City, Oklahoma, said place being used as a public hotel and rooming bouse, in said county and state. * * *” This description was sufficient to enable the officers to locate the premises to be searched, and that is all that is required.

The defendant next complains that the evidence was insufficient to support the judgment and sentence. Before the Criminal Court of Appeals will reverse a conviction upon the ground that the verdict of the jury is contrary to the evidence, it must find that there is no testimony in the record from which the jury could rationally conclude that the appellant was guilty, unless it appears from the record that the jury were influenced by improper motives in arriving at their verdict. This has always been the rule of the court.

Defendant next urges that the trial court should have instructed the jury on the law of circumstantial evidence. It is only where the evidence of the state is entirely circumstantial that it is necessary for the court to instruct on the law of circumstantial evidence. The defendant tendered no instruction to the court on circumstantial evidence. This court has repeatedly held that, if the defendant desires special instructions, it is his duty to prepare and present the same to the trial judge and request that such special instructions be given.

The evidence being sufficient to support the verdict of the jury, and no sufficient errors of law appearing upon the record to require a reversal, the cause is affirmed.

EDWARD'S,, P. J., concurs.

DAVENPORT, J., dissents.


text:
    ALICE JAMES v. STATE.
    No. A-6522.
    Opinion Filed May 25, 1929.
    (277 Pac. 682.)
    Carter & Murray, for plaintiff in error.
    Roy O. Carver, Co. Atty., and Chas. B. Duffy, Asst. Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on the charge of having possession of intoxicating liquor with intent to sell the same, and sentenced to pay a fine of $50 and be imprisoned, in the county jail for a period of 30 days.

The first error complained of is that the court erred in overruling defendant’s motion to suppress the evidence seized under the search warrant, for the reason that the affidavit for the search warrant was insufficient to authorize the issuance of a search warrant. The charging part of the affidavit reads as follows:

wit: Lot 12, Block 32, tbe original town site of Tonkawa,
“Fred Long, being first duly sworn on oatb, deposes and says: That as to tbe following described premises, to Kay County, Okla., tbe Main Booms, Said premises being in tbe possession of tbe true name of tbe party unknown. That one J. E. Hurry told your informant that be was in the above described premises a very short time ago and be saw tbe lady who runs tbe place sell three pints of whisky to men that were there or came there. That several other persons whose names are not known to your informant at this time has told your informant that whisky was being sold and kept on tbe above described premises.
“Your affiant says further: That be is a peace officer of Kay county, has received numerous complaints from persons who go there or live in tbe neighborhood that the prohibitory laws of the State are being violated on the premises. The premises are a public place and conducted as a rooming house for the public. Your affiant says that: The general reputation of the place and premises in the community and neighborhood is that it is a place where intoxicating liquor is being kept, concealed and sold.”

In the case of Ray v. State, 43 Okla. Cr. 1, 276 Pac. 785, this court said:

“An affidavit for a search warrant can be made on information and belief only when it sets out facts positively sworn to showing probable cause. * * *
“Where the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible, and the court will not permit the accused, after the warrant has been executed, to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of the affiant’s information or the means by which it was obtained.”

Measured by the rule above stated, the affidavit in the case at bar was wholly insufficient to justify the issuance of a search warrant.

Fred Long, tbe officer making the affidavit in tbe case at bar, did not claim to know of bis own personal knowledge any of tbe facts set out in the search warrant, but merely states that he has been told tbe facts by other persons, naming one of them. Tbe affidavit should be made by some person who knows tbe facts and tbe facts should be stated in tbe affidavit. It would have been an easy matter to procure the affidavit of J. E. Hurry as to tbe sale of tbe three pints of whisky alleged in tbe affidavit. This affidavit of Hurry could have been attached to tbe affidavit of tbe officer. It is not required that tbe affidavit for the search warrant shall be in one document, but tbe charge made in tbe affidavit for search warrant may be supported by affidavit of other persons who know tbe facts in tbe case. The additional affidavit should be made before tbe search -warrant is issueid and should.be attached to and made a part of tbe affidavit for tbe search warrant and filed with tbe magistrate before tbe search warrant is issued. Tbe defendant having filed her timely motion to suppress tbe evidence, and tbe affidavit being insufficient on its face to support tbe issuance of tbe search warrant, it was error for tbe court to overrule the motion.

Tbe evidence obtained under tbe search warrant being tbe only evidence in tbe case, and it being incompetent, it follows that tbe cause must be reversed.

Reversed and remanded, with instructions to dismiss tbe case.,

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    ROY BATES v. STATE.
    No. A-6600.
    Opinion Filed May 25, 1929.
    (277 Pac. 676.)
    Madden & Hubbell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of keeping and maintaining a bawdyhouse and a place for persons to visit for lewd, obscene, and indecent purposes at his home near Walters, Cotton county, Oklahoma, and his punishment left to the court. The court imposed a sentence on the defendant of a fine of $250. Motion for new trial was filed, considered, overruled, and the case appealed to this court.

The state in order to maintain the allegations in the information called S. E. Cook, who in substance testified he was deputy sheriff; that he went with Sheriff Hooper to the home of Boy Bates at night; we drove up in the yard; the first thing he remembers was some hoys and girls came out of the house, some of them were cursing; it sounded like there was a fight; one of the girls said something about not going back with the son of a bitch, but he did not see the defendant at that time; they were dancing in defendant’s home; the girl was talking to a boy; I did not see either of the parties; I did not understand all the conversation; two' girls came out of the house fighting; the boys did not try to separate the girls; we separated them; I went in the house and defendant was in the room dancing; there was probably 65 or 70 people at the dance; I had been to defendant’s home about a year and a half previous to this time. Witness was then asked by the county attorney if he ever had a conversation with the defendant about the conduct of his wife, which was objected to by the defendant’s attorney as being incompetent, irrelevant, and immaterial. The objection was overruled, and defendant excepted. Witness then answered : “Yes., the sheriff did in my presence.” This was about a month or two before we went to the house while the dance was going on; the sheriff told the defendant in my presence there had been complaint about the place he was conducting over there; the defendant told the sheriff there was nothing wrong going on over there; the sheriff then asked defendant what did he mean by having his wife going around with other men, and defendant said that he did not object, and that she was doing nothing wrong. Witness was then asked by the county attorney as to the reputation of defendant’s home being a place where persons visit for lewd, obscene, and indecent purposes. He-fendant objected, which objection was by the court overruled, and defendant duly excepted. Objection was again interposed to the question and answer, and was overruled by the court, and the witness then stated the reputation was bad. The witness stated Cordie Brown had been working at this house. Several pages are then taken up by the record with questions, objections, and answers as to Cordie Brown’s reputation.

The witness further testified: I had been to defendant’s home to one dance; I went there one night and took a young man with me for the purpose of trying to get ■some whisky. This was objected to by defendant, the objection overruled, and defendant saved an exception. On cross-examination the witness stated they were running two sets, one in each room; I did not see the defendant outside; I suppose he was in the house; I saw his wife and children in the house; the defendant could not have heard the cursing on the outside while he was dancing; I did not see defendant make the girls that were quarreling get out of the house; the fight was outside in the yard; I don’t know if defendant told the sheriff he made the girls get out of the house; I don’t know who did the cursing on the outside; I heard some cursing, but I don’t know where the defendant was at the time; I did not see any lewd, obscene, or indecent acts in the home of the defendant; no sir, I at no time saw any lewd, obscene, or lascivious acts at the defendant’s place; the only thing I saw was some girls have a fight in the yard and heard some curse words; J. S. Eder told me defendant’s place had a bad reputation; it had had that reputation for at least six months; I don’t want to give the names of others who told me about this place; two boys from Duncan told me there was going to be a dance out there that night; I did not see Roy Bates follow the girls out of the house; after the fight they went into the house and went to dancing.

Robert Lemmons was called on behalf of the state, and testified he was 21 years of age; he was acquainted with Roy Bates and his wife; he lived with them last year and year before last. Witness was then asked by the county attorney:

“Did you ever have sexual intercourse with defendant’s wife? A. No, sir, I did not.
“Q. Why did you tell me that? Don’t you remember telling Mr. Cook and me that you did have sexual intercourse with defendant’s wife? A. I never did tell you that.
“Q. Who did you talk to since you talked to Mr. Cook and I? A. Have not talked to any one since that.
“Q. Did you, I will ask, talk to Pumphandle Bill? A. Pumphandle Bill, no, I don’t remember if I did.
“Q. Did you ever stay alone with defendant’s wife at the home? Did you ever stay alone with defendant’s wife? A. I don’t remember if I did or not.
“Q. Do you remember when Cordie Brown was out there? Did you ever see the defendant intimate with Cordie Brown? A. I never did.
“Q. Was you intimate with her? A. No.
“Q. You knew what kind of a girl she was? A. No.”

Witness then stated he did not know how long she stayed out there; the witness, in response to the county attorney’s question, could not tell how many dances had been given at defendant’s home during the time he worked out there; there had been several. Witness was then asked if he ever saw men go there to visit Roy’s wife, and answered, “No, sir. I never did, no sir.” I was out there and worked at any kind of work the defendant had to do. Witness was then asked:

“Q. Yon are positive, absolutely positive, that you never told Mr. Cook about your hugging, and kissing, and about your intimate relation — having sexual intercourse with the wife of the defendant, Roy Bates? A. Yes.
“Q. Down to Moffel Drug Store? A. No sir, I did not.”

The state then called A. Landis, who testified he knew Roy Bates; he worked at defendant’s house that fall during cotton picking; he did not remember who all was there; the defendant and his wife and Robert Lemmons is all I remember; he had seen defendant’s wife and Lem-mons together quite often; saw them in the field picking cotton, then about the house getting, meals together; I have seen them leave together in the car; I did not see any misconduct between them. On cross-examination witness stated Robert Lemmons was working for the defendant; he was picking cotton and helping Roy’s wife around the house; there were several people there during cotton picking time; at the time he saw them together he was there working, also his son; never saw anything improper; I would have to say I only saw them together.

Hugh High, called as a witness, testified he went by the home of defendant one evening with defendant’s son, and that Mrs. Bates was on the bed with Winford Riddles when they went in the house; the doors were open; I come with my father when I came in to talk with the county attorney about the matter.

Ted Edmonson was called by the state, and testified, in substance:

That he had been to defendant’s home to a dance; he was there the night the sheriff came out and disbursed the fight; I did not see any drinking out there that night; I did not smell any whisky; I did not hear any cursing.

“Q. Didn’t you tell Mr. Qook a few minutes ago you did? A. _ No, sir.
“Q. Did you hear cursing and obscene language there? A. No, sir.
“Q. Didn’t you just talk to Mr. Cook and I? A. No, sir, I never.”

I did not know who all was at the dance; I took Cordie Brown to the dance; I did not know what kind of a girl she was; I did not hear anybody cursing out there; I did not see a fight between the girls; I was not in the room; I was in the room where they were dancing; I don’t know where the fight begun; I do not know how many rooms there are in the house; I was dancing in the room where I could see through the door and could see they were having some trouble; I had never seen girls fight before; I could not hear what the defendant said to the girls; I got to the dance about 9 o’clock. On cross-examination he stated he never saw anybody around defendant’s home do anything lewd, obscene, or indecent. Witness was then asked:

“Q. Everything was orderly and peaceful around defendant’s home? A. Yes, sir.
“By the Court: You should make the witness your witness or defendant’s witness.
“Mr. Hubbell: Moves the court to strike from the consideration of the jury all the evidence of this witness.
“The court: You may cross-examine witness but should make him your own witness.
“Mr. Hubbell. Then it is tlie holding of this court that we cannot ask this witness, on cross-examination, whether at any time at the home of this defendant he saw any person carrying on any indecent, lewd or lascivious acts?
“The Court: It is the holding of the court that if you ask the witness that question you will have to make him your own witness, and that opens it up for the county attorney to cross-examine him.”

To which ruling of the court defendant excepts, and exceptions are by the court allowed.

The state called Charlie Bece, who stated he had been to defendant’s home a few times to dances; I do not remember whether I have been there in the last two or three months; I don’t remember who all was at the dance when I was there; I saw Ted Edmonson there; I don’t remember seeing Cordie Brown or Thelma Brown; I knew Cordie Brown; I saw the Brooks girls there; that was the night they had the fight; I don’t know what the fight came up over; I was outside the house; I saw the fight between the girls; I did not hear what was said; Boy separated them; I don’t remember hearing them do any cursing. The county attorney then asked the witness:

“Q. What was it you said to me about the cursing? A. I did not say anything.
“Q. Who have you talked to since then? A. I did not talk to you and Mr. Cook.
“Q. You did not talk to Mr. Cook and me? A. No, sir.
“Q. Did you hear somebody cursing there? A. No, sir, I don’t remember it.
“Q. Did you see anybody drunk out there? A. I don’t remember if there was. I did not smell any liquor.”

Witness then stated he went to the dance with Homer Thomas; I did not ask how the fight came np; I don’t know Pumphandle Bill; I know the salesman that works for the Chevrolet car; I don’t remember whether he was there or not.

Sam Thompson, called as a witness for the state, in substance stated he had been to defendant’s place at a dance; he played the violin; they would have several sets, four couple to the set; I heard a little cursing in the house and the defendant called them down; there was a fight; I don’t recall what was said; I did not hear the girls curse; Mr. Bates was standing near the door and told them not to fight; as soon as the disturbance was over the defendant came back and started dancing again; I don’t remember whether defendant’s wife was dancing, but I suppose she was; I don’t know whether Pump-handle Bill was there or not; I did not see him at defendant’s house often; I have seen him there on one or two occasions; I do not know whether Pumphandle Bill is married, nor do I know his wife was with him at the dance; I did not see any whisky or any drinking; parties were going in and out of the house; I was playing the violin; I could not say I smelled whisky at the dance.

Jesse Coats testified that he had been to the dance at defendant’s house; I only saw a fight one time; I heard some cursing on the outside of the house; I was not dancing; I was looking on.

Jesse Gillam, a witness for the state, in substance stated he had been to defendant’s house at different times to dances; I did not see any drinking; I did not see any of the girls smoking cigarettes; I don’t know whether they came up to the door drinking or not; I never saw them smoke in the house.

Thei’man Fletcher testified he knew defendant; he had heard of Cordie Brown; I did not dance any the time I was over there at the dance; I was watching the others; there were no boys doing any cursing in the house; there was a little outside; they were just on the inside of the yard; I did not smell any whisky in the house. On cross-examination he stated he heard them cursing at other parties; he was asked if he knew Pumphandle Bill, and said, yes, sir, I don’t think he was there that night.

C. O. Hooper, the sheriff of Cotton county, was called as a witness, and stated he was called out to see about some drunks. He testified in substance the same as S. E. Cook, except he detailed going out to defendant’s home previous to the time of this dance; he talked to defendant about his wife driving to town with another man; that he was out there with Mr. Cook the night of the dance; I could hear them cursing in the house; some of the fellows smelled like they had had a drink; one had.had a drink too many; the defendant was not drinking; he was pretty sober; the girls came out of the door fighting, and I heard them cursing before they fought; I am acquainted with defendant’s home as being a place where persons go for lewd and lascivious acts.' The defendant objected, and the court overruled the objection. He was also advised as to the reputation of Cordie Brown, which was bad. Objection was made, and the county attorney asked the question :

“Q. Are you acquainted with Cordie Brown, as being a person of lewd, lascivious character? A. Yes, sir.
“Q. Is that reputation good or bad? A. It is bad.”

Witness further stated while the dance was going on defendant was in the house dancing; I don’t know whether Boy was dancing with his wife or not. On cross-examination he was asked several questions as to Cordie Brown’s reputation, and witness did not remember who called him to go to defendant’s home, or why they wanted him to go; he did not find anybody drunk when he went out there, hut Tom’s two boys had been drinking, without stating how he got the information; Mrs. Bates and the fellow that was driving with her had a watermelon in the car; they were in a Ford touring car; I did not see anything wrong between Mrs. Bates and the party with- whom she was driving; I didn’t see any lewd or lascivious conduct ; I did not think it was all right for this man to be out with another man’s wife; when the girls at the house came out swearing and fell across the car, one was on top the other on the running board; I never made any arrest for that fight; I separated them and left them alone; I never heard any one else swear in the house; the girls were the only ones I heard swearing; I did not stay until the dancers left; they may have stayed until daybreak; we left about 11 or 12 o’clock. In answer to the question:

“Did you see anything lascivious there? A. There was a fight there. I learned of the reputation from one who worked at the courthouse. I did not mean old man Pete’s boy, I mean the stone contractor. I. mean by the things of this kind and the place he run out there.
“Q. You mean having a dance occasionally? A. Yes, and other things. Lots of people complained about it, and two parties about Duncan told me about the place; and lots of other people.”

Mr. Lemmons told me his boy said the place had a bad reputation. His son worked there on shares. Mr. High is another one, he complained. I don’t remember, there were several others, they are all I can remember.

The foregoing is the testimony offered by the state.

Mrs. Bates, the wife of defendant, was called and testified they lived on a farm, cultivated three quarter sections ; that her husband ran a threshing machine and hay bailer; that she had two children; she was acquainted with Cordie Brown; that Cordie Brown worked for her; she picked some cotton and worked around the place; she came on Sunday and left Tuesday or Wednesday; Dnd Harrell came for her; I did not know anything about the reputation of this girl; I had only seen her at the dance; we had a number of cotton pickers working for us at that time; Thelma Brown worked for us a while, helped shock wheat and oats; I knew nothing about her character and did not know her reputation; she had no callers while she was at our house; I remember the occasion of the sheriff, Mr. Hooper, and Mr. Cook being near my house when Fred Man and I drove back from the grocery store where we had gone to get some groceries; we had groceries in the front seat and a watermelon in the back seat; it was not much after dark; we had been gone about three quarters of an hour; I did not see the girls that had the fight at our house at the dance; I was in the kitchen with some other ladies and the children. On cross-examination the witness was asked if she did not know Thelma Brown had been indicted for being drunk, and! she said no; she was acquainted with Bill Petty; he had not been coming out to her house every night; he came to dances on one or two different occasions; I did not see his wife; I knew he was married; I don’t remember dancing with him.

“Q. Did you have intimate relations with Pump-handle Bill? A. Never did.”

I knew W. F. Colston; I think he was married; I don’t think he was at our house unless he come to a dance; I have gone with Robert Lemmons on business trips quite often, but not at night; I was not lying, on the bed with Winford Riddles; Ted Edmonson never brought any girls to our house to stay all night; some boys and girls got stuck in the mud and came to our house and stayed all night; the girls slept in the beds and the boys set up. Witness was then asked several questions about the character of parties that came to the dances, and about herself, all of which she answered promptly and clearly, and stated no improper relations existed between her and any of the men, nor had there been to her knowledge any immoral conduct by any of the girls that came to the dances.

The defendant then testified in his own behalf, giving his place of residence, and his age as 29 years; he had been a witness once before in court; he farmed three quarter sections of land, raised cattle, and run a threshing machine and hay bailer; hired considerable help; that he had a dance at his house October 16, 1926; he did not know what time of the day or night Mr. Hooper and Mr. Cook came out there; did not hear the girls swearing in the house; I heard some boys swear some and called them down; after the girls quit fighting, I went back and went to dancing; I heard some cursing on the section line about an hour and a half after the fight; the girls got to fighting out by the car, and Cleve and Mr. Cook run in and separated them; Cleve came on in the house and I went on dancing; they called me out and told me I had to stop the cursing, and I told them I stopped it in the house, why don’t you make them behave, and he said everything seemed nice enough in the house; Cordie-Brown was not at this dance, nor was Thelma Brown; the only misbehaving I saw at the dance was the girls fighting; no lewd, lascivious characters are permitted in my house if I know it; Thelma Brown was at my house the last of May; she wanted to get a job cooking; she shocked some wheat and oats; I did not know the reputation of Thelma Brown at that time for being a lewd, loose character; no men of lewd or lascivious character come to my house; I had a number of people picking cotton at the time; I remember Mr. Hooper and Mr. Cook coming to my house in the summer; Fred Man was there with the Fletcher boys at the time; he came to collect $4.25 I owed him; when Fred Man came my wife and children were at home; at my suggestion my wife went for some groceries; I was fixing my car and asked Fred to let my wife use his car to make the trip to the store, and he said his car was not running good and he had better drive for her; they were gone just a little while; they got groceries and a watermelon; my wife does my running around while I am at the threshing machine; she picks cotton and takes down the weights of the cotton; I told Mr. Hooper I permitted my wife to attend to my business, and I did not want to be jealous, and the sheriff told me he did not see how I could stand to see her go' around with other men and not get jealous; the sheriff wanted to know if there was any whisky at our place, and I did not have any; he said somebody was handling whisky; I did not know anything about the whisky.

On cross-examination witness stated, in answer to the question of the county attorney, that he did not know Thelma Brown at Ryan; I did live at Ryan; I did not go on her bond at Waurika, nor did I know she was in Waurika; I did not know she was in trouble; I did not know there was anything the matter with Cordie Brown; I hired just anybody I could get to help me; I hire women to help my wife, and to do anything they can in the field and pay them for it; I was not intimate with Cordie Brown, and I did not go into her room while she was taking a bath; I did not know the sheriff was after her at that time; Nellie Smith has not been to my house that I have seen; I had not heard of Nellie Smith being in any trouble; I told all parties when they were at my house to a dance they would have to behave themselves; I left it to the young folks to do the inviting; I did not care how many came just so they behaved themselves; some times I have smelled whisky, but as long as they behaved themselves I did not raise any objections; I did not hear these girls cursing before the fight began; I separated them when they began to fight and told them they would have to respect my house or leave.

The defendant called Harvey Landis and Nesby Sharp, who testified as to having worked at defendant’s place. They stated they had not seen any immoral or indecent conduct by any parties around defendant’s place; that defendant was working a number of men and that his wife worked) along with them in doing the housework and picking cotton.

This is, in substance, the testimony on behalf of the defendant.

The defendant alleges many errors committed by the trial court. His first assignment being that the court erred in overruling the motion of plaintiff in error for a new trial. The fourth, the court erred in overruling defendant’s demurrer to the evidence offered on behalf of the state. The sixth assignment is the court erred in overruling defendant’s motion for a directed verdict, after all the evidence was in and both the state and defendant had rested.

The defendant in this case is prosecuted under section 1890, Comp. Stat. 1921, which provides:

“Any person who keeps any bawdy-house, house of ill-fame, of assignation, or of prostitution, or any other house or place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene or indecent purpose, is guilty of a misdemeanor and upon conviction shall be fined in any sum not less than One Hundred Dollars nor more than Five Hundred Dollars for each offense.”

The question to be determined is: Is the testimony in this case sufficient to sustain the charge against the defendant? It is urged by the defendant that the record; does not contain a line of evidence tending to support the charge in the information. In order to sustain the offense charged in the information under our statute, it must be established that the house in question was in fact a bawdyhouse, or place for persons to visit for unlawful sexual intercourse, or for any other lewd, obscene, or any other indecent conduct, and that the defendant was the owner thereof.

In Patterson v. State, 9 Okla. Cr. 564, 132 Pac. 693, this court had the statute in question under consideration, and in the first paragraph of the syllabus it says:

“On the trial of a person charged with keeping a bawdyhouse, the issue is, Did such person in fact keep a bawdyhouse? and not, Did he keep a house which had the reputation of a bawdyhouse?”

In Putman v. State, 9 Okla. Cr. 535, 132 Pac. 916, 46 L. R. A. (N. S.) 593, this court, in the first paragraph of the syllabus, said:

“In prosecutions for keeping a house of ill fame, it is competent to introduce evidence of the general reputation of the house in the neighborhood in 'which it is situated as to its being a place where lewd and lascivious persons of both sexes congregate for the purpose of unlawful cohabitation or sexual intercourse. But such evidence alone will not support a verdict. It must be corroborated by some other fact or circumstance tending to prove the character of the house.”

In this case the sheriff and his deputy testify as to the reputation of the defendant’s house, for being a place where lewd characters congregate for the purpose of illicit cohabitation; the sheriff stated the name of a number of parties that told him of the conduct that was supposed to have been indulged in at defendant's home. The state called a number of witnesses, and it must be bound by its own witnesses who testified they had been to defendant’s home at different times working for the defendant and that they had never seen any lewd, lascivious, or indecent conduct indulged in at defendant’s home. The sheriff and his deputy and the county attorney lay great stress upon the fact that upon a few occasions the wife of the defend.ant had been seen at a picture show with one of the hands the defendant had employed, and that on another occasion she had driven to a store to get some groceries with Fred Man. The sheriff claims he spoke to the defendant about his wife driving to town with another man, and defendant told him he did not see anything wrong with that; his wife had to run errands for him when he was busy. He tried by the questions propounded to state’s witnesses and to the defendant’s witnesses to show that some of the women who attended the dances at defendant’s home had been seen smoking cigarettes, and that married men attended the dances sometimes not accompanied by their wives. There is no positive testimony in the record showing that the home of defendant was maintained as a bawdy-house as defined by our statute. All of the witnesses who testified for the state, except the sheriff and his deputy, state they had been to defendant’s home to dances, and that they had never seen any improprieties or acts of sexual intercourse or indecent conduct of any of the parties at the home.

The state failed to show by any competent testimony that there was any immoral or indecent conduct indulged in at defendant’s home with the knowledge or consent of the defendant, if any was indulged in; the testimony on behalf of the state is only rumor. The sheriff and his deputy place 'great stress on the fight that two girls got into) at defendant’s home, that they used some curse words, and they heard another girl use profane words about going home with some man, but the officers, who had heard so much rumor and reputation of the place, remained there and did not arrest these girls for fighting, nor the parties they claim to have heard using curse words. The proof on behalf of the state does show that when the girls got into the disturbance the defendant separated them and told them they would have to leave or behave themselves. The defendant stated he let the young folks invite the people to the dances, and as long as they behaved themselves he did not inquire into the character or reputation of the parties.

We do not believe the action of defendant’s wife, in driving, to the store in the young man’s car for the purpose of getting groceries, is sufficient to sustain the charge.

In Francis v. State, 16 Okla. Cr. 513, 185 Pac. 126, this court in the opinion said:

“The general reputation of the house kept by the defendant is established beyond a reasonable doubt as being a house of ill fame; but there is no evidence tending to show that persons of both sexes who resorted to the house were persons of lewd and lascivious character, or that the inmates of said house were of other than chaste character, or that any immoral acts were committed in said house with the knowledge of the defendant. Hence the evidence is insufficient to sustain a conviction, unless the apparel worn by the girls seen in said house, and the statements alleged to have been made by the defendant to Wilson and to the sheriff, coupled with the general reputation of the house as a bawdyhouse, make out a case.
“In a prosecution for keeping a bawdyhouse, undenied legal evidence that the house in question has the general reputation of being a bawdyhouse is not sufficient alone to sustain a conviction for keeping a bawdyhouse. Mrs. B. Putman v. State, 9 Okla. Cr. 535, 132 Pac. 916, 46 L. R. A. (N. S.) 593.
“ ‘The offense defined by the statute is not keeping a house which is reputed to be a “bawdyhouse” but keeping one which is so in fact.’ Patterson v. State, 9 Okla. Cr. 564, 132 Pac. 693.”

There being no testimony to sustain the allegations, except the testimony of the sheriff and his deputy, as to the reputation of defendant’s home, and there being no positive testimony as to the allegations in the information, we hold that the evidence is insufficient to sustain the judgment. The demurrer of the defendant to the evidence of the state.was well taken and should have been sustained.

The judgment is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    J. W. TYMER v. STATE.
    No. A-6482.
    Opinion Filed May 25, 1929.
    (277 Pac. 676.)

      Orban Patterson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having possession of intoxicating liquor, and was sentenced to serve a term of 60 days in the county jail and to pay a fine of $200.

The record discloses that at the time charged an officer with a search warrant went to the place of business of defendant, which was a secondhand furniture store and at which place defendant and his wife also lived: As the officer walked into the building, he discovered defendant in a recess or cache under the stairway, passing out whisky to a woman standing by. Thirty-two' half-pint bottles of whisky were found and seized. The defendant did. not take the stand and offered no evidence.

The contention is made that the defendant’s motion to suppress the evidence should have been sustained for the reason that the search was illegal. The officer was somewhat confused in his testimony. At first he testified that he procured the search warrant from one justice of the peace, but on it appearing that the records of this justice disclosed no search warrant issued on that day he corrected his testimony to state that it was another justice of the peace, and the affidavit and warrant were produced. The affidavit and the search warrant described the place to be searched as 327 West Reno street, Oklahoma City, while the return thereon described it at 327 West Third street. It is undisputed that defendant lived at 327 West Reno, the place described in the affidavit and search warrant and the place that was searched and where the whisky was found. This being so, the error in the return of the search warrant does not render it invalid. Cornelius on Search and Seizure, § 223.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    ALBERT FISHER v. STATE.
    No. A-6789.
    Opinion Filed June 1, 1929.
    (277 Pac. 1118.)
    C. F. Gowdy, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the district court of Nowata county of assault with a dangerous weapon, and his punishment fixed at imprisonment in the county jail for a term of one year.

The appeal is by transcript, which was lodged in this court in October, 1927. No briefs in support of the appeal have been filed. An examination of the record discloses no substantial error.

The case is affirmed.