text:
    TAYLOR v. STATE.
    No. A-11068.
    Jan. 4, 1950.
    (213 P. 2d 588.)

      Cecil E. F. Robertson, Muskogee, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Ed Taylor, alias Ed Shirley, was charged in the district court of Muskogee county with grand larceny, was tried before a jury, convicted, and the jury being unable to agree upon the punishment, left same to be fixed by the court, and the court thereafter entered judgment sentencing the defendant to be imprisoned in the penitentiary at McAlester, Okla., for the term and period of four years. Appeal has been perfected to this court. The petition in error enumerates nine assignments of error. By reason of the manner of presentation, we find that for a proper consideration a summary of the evidence is here necessary.

Miss Cecile McDaniels testified that she was employed by Kaplan & Wilcoxen Jewelry Store, Muskogee, and that on August 8, 1947, at about 11 o’clock in the forenoon, a colored man came into the store to look at some rings; that he was holding some money in his hand and wanted to see a black tray of rings that he stated he had seen a few days before. He wanted a ring for his wife. The tray contained expensive rings. The man did not purchase, and while he was still in the building Miss McDaniels missed a $600 diamond ring. The manager of the store was in Tulsa, and she called the other girl who worked there to find out if she had sold the ring, and she had not. They thought Mr. Kaplan, the manager, had taken the ring to Tulsa, but he returned later that day and they found that he had not removed the ring, and the loss was reported to the police. A description of the ring was given, and also a description of the colored man who was present when the ring was missed. Eventually the officers recovered the ring and it was returned. Witness identified one Walter Giles, a colored man and witness for the state, as the man who had examined the tray of rings and who was in the store when she missed the ring in question. Witness had never before to her knowledge seen the defendant, Ed Taylor.

Walter Giles next testified, stating that his home was Kilgore, Texas, when he was “out”, meaning out of the penitentiary; that he had been convicted six times on felony charges; that he was then serving a five-year sentence for grand larceny, after conviction in Garfield county; that he had known the defendant Taylor for about a year; that Taylor drove in a car from Dallas to Kilgore and got him and they drove to Muskogee. Concerning this he stated:

“Well, we came here to Muskogee one morning. I think it was on Saturday morning if I am not mistaken in the morning, and he furnished me the money, and I was in the car with him and I got out of the car right in front of Kress’ store, and I walked across the street by the bank and I came up about three or four doors down and there was a jewelry shop there and I went in and I stole the ring from the girl. It was worth $600 and I went back to the car and told Ed, ‘Come on, let’s go. I am hot.’ Q. He stayed in the car? A. Yes, he stayed in the car. I said, ‘I am hot, let’s go’ and we went on down there and we got to Haskell or some little town and we taken the left hand road to go back to Texas. Q. What became of the ring that you stole from this young lady? A. I gave it to Ed Taylor. Q. This man here? A. Yes, sir, and we went to Dallas, Texas, and he carried it to a white man and he sold it. Left it there on Sunday night and Monday morning he went back and the white man paid Ed Taylor for it. I saw the white man, but I didn’t have no dealings with him. He didn’t want to have no dealings with me because I didn’t know him. The next morning he gave me my part of the money which was $70, seven $10 bills.”

Witness further testified:

“He went in there and knocked on the door. He said ‘Who is that?’ and he said ‘Ed Taylor’ and he went in and stayed about 30 or 40 minutes.”

Witness stated that they did not get the money for the ring until the next morning. The witness was asked:

“Q. State whether or not there was any agreement between you and him that you was to work this kind of racket, the kind you have told about here? A. That is right. Q. Did you pull off any other, soon after that? A. Yes, sir, I ' did, one time. Q. Where was that? A. Enid, Oklahoma. Q. At Enid, Oklahoma? A. Yes, sir.”

He further stated that he was then serving time for that theft. He also stated that Taylor did not know that be had stolen tbe rings at Enid, and stated that be did not know whether be wonld have given Taylor part of the money be would have gotten for tbe rings or not. He stated, however, that Taylor knew what be was going in tbe store for. He testified that on tbe way back to Texas be and Taylor were arrested at Chickasha, and taken back to Enid, the officers there bad bis stomach X-rayed and tbe two rings be bad swallowed showed up in tbe picture, and that be was given castor oil and tbe rings were recovered. Giles took tbe blame and Taylor was released.

Paul McQuillan, detective in tbe Muskogee Police Department, testified that about August 8, 1947, a lady clerk in Kaplan’s Jewelry store, being tbe one who bad just testified (Miss McDaniels), reported tbe theft of a ring. Mi*. Ryser was assigned to make an investigation, and later witness went'to Dallas, Texas, with Mr. Ryser and they recovered tbe missing ring at a pawnshop there. He further testified that tbe defendant, Ed Taylor, went with them to a grocery store in Dallas, and told them in tbe presence of the grocer about tbe ring and that tbe grocer stated in defendant’s presence that be bad purchased tbe ring from defendant.

Fred Ryser testified that be was a detective in tbe Muskogee Police Department, and testified substantially as McQuillan, but more in detail. He testified that be and McQuillan went to tbe Police Department in Dallas and that a detective accompanied witness, McQuillan and tbe defendant, Taylor, to a pawnshop in Dallas where tbe ring stolen from tbe Kaplan & Wilcoxen Jewelry Store was found. That tbe pawn-broker told them be got tbe ring from an Italian, one Scalise, a grocer, and that Scalise in tbe presence of Taylor told them be purchased the ring from Taylor. Ryser was called as a rebuttal witness, and further testified:

“Q. The defendant here, when you went down there, did you have him arrested by the police there? A. Yes, sir. Q. Just tell how he came to make a statement and how you happened to go out there? * * * A. Paul Mc-Quillan and a man named Bob Abbott, a detective there at Dallas, arrested the defendant at his home and took him to the Police Department there in Dallas. I questioned him in regard to the ring and he volunteered and said that he would take us to the man that he sold the ring to, and that is what we did.”

He further stated that Taylor voluntarily took him to Scalise’s store, and that they did not suggest where they were to be taken.

Sheriff Tennyson of Garfield county testified that the defendant and Walter Giles were together in Enid, Okla. He stated:

“My experience with them was on the 23rd day of August. I issued a pick-up for a car with two negro men and two negro women in it who were suspected of taking some rings out of a jewelry store there and we picked them up near Chickasha and I went down there and brought them back to Enid.”

He further testified that he found four price tags off of rings in the car, and that on the following Friday after pick-up notice that he recovered two rings that Giles swallowed; that he had X-ray pictures made of the stomachs of both Giles and Taylor, and charges were filed against both men, but Giles claimed Taylor did not know about the rings and the charge was dismissed as to him and he was released, but a few days after this the Muskogee officers appeared in Enid investigating the Muskogee theft. Giles was sentenced to serve five years in the penitentiary.

The court permitted the introduction in evidence, for the limited purpose of corroboration of the testimony of Walter Giles, the X-ray picture of Giles stomach, showing two rings, and also the ring tags found in defendant, Taylor’s, car.

For the defense, counsel for defendant introduced the deposition of Charles Scalise taken in Dallas, Texas, who stated that he was engaged in the grocery business at Dallas. He testified that he knew the defendant Ed Taylor and had known him for two years; that he did not know Walter Giles by name, but that he purchased from him a diamond ring, one and a quarter karat with 28 small diamonds around it; that he paid him $100 for it. He denied that Taylor had been present or had advised with him. He claimed that he did not tell the officers who sold him the ring. He stated that he resold the ring and that he had to re-purchase it for the officers.

The defendant Taylor testified that he had lived in Dallas 21 years; that he ran a cafe; that he and Walter Giles met at Kilgore, Texas, in a Scotch ball game, a gambling game, and that he went to McAlester to see about putting in a game, Giles accompanying him, and stayed there one night and then drove to Muskogee and parked in front of the Kress store, and that he went to get some postal cards and Giles was gone about 45 minutes and came back and said: “‘Well, are you and the girls ready to go?’ I says, ‘Yes, I am ready’, so he said, ‘Let’s go’ ”, and that they headed for Wichita Falls by way of Tulsa and Enid, and that they were accompanied by Giles’ wife and her sister; that they were arrested at Chickasha after visiting in Enid, and returned to Enid, and both were charged with stealing some rings at Enid, but that he was released. He further testified that he did not know that Giles had swallowed two rings or had stolen any rings at Enid. He denied disposing of the ring stolen at Mnskogee and his testimony was contrary to most of the testimony of the state’s witnesses. Defendant admitted that he had served in a Federal penitentiary for passing counterfeit money.

For reversal, counsel for defendant sets out nine assignments of error, which are intermingled in argument, some not being argued, and being:

“1. The court erred in its decision of questions of law arising during the course of the trial.
“2. That the court erred in admitting incompetent, irrelevant and immaterial evidence over the objection of the plaintiff in error.
“3. The court erred in overruling the demurrer of plaintiff in error to the evidence.
“4. The court erred in overruling the motion of plaintiff in error for a directed verdict.
“5. The court erred in overruling the motion of plaintiff in error for a new trial.
“6. The court erred in refusing to give the following requested instructions to the jury; defendant’s requested Instructions Nos. 1 and 2.
“7. That the verdict of the jury was contrary to and in disregard of the evidence.
“8. The verdict of the jury was contrary to and in disregard of the instructions of the court.
“9. That the punishment inflicted upon the plaintiff in error was excessive.”

Counsel for defendant points out that Walter Giles, in testifying for the state and concerning the rings stolen at Enid, replied to questions by the county attorney as follows:

“Q. Was Ed [the defendant] with you that time? A. Yes, sir. Q. You didn’t dispose of that ring? A. No, he didn’t know anything about them. Q. He didn’t know anything about you getting them? A. He knew I had them but I was aiming to swallow them. Q. Wasn’t you going to give him part of the money for which you sold them? A. I don’t know whether I would or not. Q. Well, you told me and Chai Wheeler, the other assistant county attorney, and Fred Ryser and Paul McQuillan in the presence of Ed Ragsdale, the deputy sheriff back there, not over 30 or 40 minutes ago he was in with you, that he Avent there with you to Enid and stayed in the car while you went in and got the rings and you intended to divide with him after you sold it? A. With Ed, — we went together— Mr. Robertson [counsel for defendant]: I object to this line of testimony. He is impeaching his own witness. The witness has testified that this man knew nothing about that, and he puts the words in his mouth, and I object to that, your Honor please. The Court: Well, the witness, as I recall, said he didn’t know whether he would divide with him or not.”

Following this, the county attorney claimed surprise, and the attorneys argued over just what the witness had said, and the court overruled the above objection. Defendant claims prejudice by the question propounded by the county attorney, and the statement of the court.

The answer of the witness appears to have been interrupted by the objection and to not have been fully and clearly answered. However, following this the attorney for the defendant cross-examined Walter Giles, and brought out that three or four days after Giles was incarcerated at McAlester, Muskogee officers came over and got him and took him to Muskogee, and talked to him there and not at McAlester.

“Q. What did they tell you? A. They never told me. They didn’t ask me anything more than they identified me. They didn’t talk about the case at all. He asked me what I knowed about it and I told him what I knowed about it. I told them I stole the ring and gave it to Ed Taylor and he carried it to Dallas, Texas, and sold it to a white man. Q. That is what you told the officers here in Muskogee? A. Yes, sir. Q. Did they ask you about the ring you stole at Enid? A. No, sir. * * Q. After you were arrested in Garfield county, did the sheriff talk to you about the theft of the ring at Enid? A. Yes, sir. Q. What did you tell the sheriff? Did he ask you if you were the only one in the theft? A. What do you mean? Q. I mean, were the only man concerned in the deal, did he ask you? A. I told him me and Ed were together. Q. You told the sheriff that? A. Yes, sir, I told him that me and Ed was together. Q. And at that time Ed was already arrested? A. Yes, sir, he Avas arrested. Q. You told the sheriff Ed knew about it? A. Yes, sir, I told him we was together. Q. Where did you go from Enid? A. Where did I go from Enid? Q. Yes, sir. A. We tried to go back to Texas but we was caught at Chickasha. Q. And then you was carried back there? A. Yes, sir. Q. And then you plead guilty? A. Yes, sir. Q. Did they file any charge against Ed, do you know? A. I plead guilty. Q. Against Ed? A. I don’t know. I know I plead guilty. I had them and they found them in me.”

While the form of the question propounded the witness Giles by the county attorney is not approved, yet when the Avitness expressed doubt as to whether he was going to divide the money from the eventual sale of the Enid rings with Taylor, that question was never clearly ansAvered, and the county attorney, after the question was propounded and objection made, -argued surprise. And from the testimony it is apparent that he was surprised, but he did not pursue the question, and the defense attorney seemingly avoided the specific inquiry on cross-examination.

Defendant contends that the evidence concerning the Enid theft Avas inadmissible on the ground that it was committed by Giles without the aid or knowledge of defendant. It is true that the defendant denied knowledge and that much of the evidence is disputed, and that Giles expressed doubt as to whether he would have divided the proceeds of the sale with Taylor, and did at one point state that Taylor did not know anything about the Enid rings, but that statement was modified both on direct and on cross-examination. Concerning the credibility of the witness: That Giles and the defendant had both served in the penitentiary is undisputed. Also, that Taylor furnished the car and drove over a hundred miles to get Giles for his Oklahoma trip or trips, is undisputed. That Taylor sat in the car and was available for the get-away after the theft by Giles, is apparent. That the parties were in Muskogee and the theft there was on August 8, 1947, is undisputed; and that the rings at Enid were not stolen until August 23, 1947, is undisputed. From defendant’s testimony, he, Giles and the two women made but one trip to Oklahoma, driving from Muskogee to Enid by way of Tulsa. On that trip Giles was placed in jail and Taylor returned to Dallas, and under such facts Giles could not have disposed of the Muskogee ring. But Giles testified that he and Taylor drove on to Dallas immediately after the Muskogee theft, and the lapse of time would so indicate. But even so, the pattern for the thefts was the same.

We conclude that there was ample evidence adduced by the state for the jury to infer from the circumstances that defendant was implicated in the commission of the crime in Garfield county. Whether the defendant was an accomplice in the commission of said crime was a question of fact for the jury to determine from the entire evidence in the case. Such fact having been established, it then became competent for the state to prove the commission of a crime other than the one for which the defendant was on trial, for the purpose of showing the plan or scheme by which they were operating, or that same was a part of the res gestae.

In the case of Smith v. State, 83 Okla. Cr. 209, 175 P. 2d 348, 349, this court held:

“It is the general rule * * * that * * * evidence of other crimes, either prior or subsequent to the alleged offense, is inadmissible.
“To the general rule that the admission in evidence of other crimes, either prior or subsequent to the alleged offense is inadmissible, there are, liOAvever, certain, exceptions which are as well recognized as the rule itself, as, where the evidence tends directly or fairly to prove guilt of the crime charged, or to connect one with it, or Avhere the crime charged and other offense are closely related or connected; or where such testimony is for the purpose of showing that it was a part of a system or common scheme or plan; or when proof of a separate offense is explanatory of the motive or intent of the offender in the commission of the offense charged.”

This rule has been adhered to in many cases decided by this court, including: State v. Rule, 11 Okla. Cr. 237, 144 P. 807; Boyer v. State, 68 Okla. Cr. 220, 97 P. 2d 779, and Zewalk v. State, 73 Okla. Cr. 202, 119 P. 2d 874.

Photographic evidence of the stomach of Giles showing tAVO rings, one identified as having been stolen at Enid, and the other not then identified as to ownership, was introduced, as was a photograph of price tags off of rings found in defendant, Taylor’s, car at the time he and Giles were arrested for the Enid theft. These photographs were introduced for the sole purpose of corroborating the evidence of the accomplice Giles. There being other evidence and circumstances for the consideration of the jury tending to connect the defendant, Taylor, with the commission of the Enid thefts, and to show that he was aiding and abetting Giles and that he drove to Oklahoma for such purpose, we conclude that it was not error to admit the photographs in evidence for the limited purpose for which admitted. Under the facts brought out, we do not see where this could have constituted reversible error.

Counsel for defendant urges that the trial court should have sustained his motion for a directed verdict of not guilty, contending that the testimony of the accomplice Giles was not sufficiently corroborated to convict defendant of the commission of the crime charged. The statutory rule involved, and being Sec. 742 of Title 22 O.S.A. 1941, reads:

“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof.”

This statute has been construed many times, a fairly recent case being Rushing v. State, 88 Okla. Cr. 82, 199 P. 2d 614, 615, wherein this court held:

“Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.
“Evidence corroborating an accomplice and tending to connect the defendant with the commission of the crime need not be direct, but may be circumstantial only.
“Where there is evidence in corroboration of an accomplice tending to connect a defendant with thé commission of the crime charged, the sufficiency of such corroborating evidence is for the jury.
“Where the sufficiency of the evidence to corroborate an accomplice is challenged, this court will take the strongest view of the corroborating testimony that such testimony will warrant, and, if it can say that there is corroborating evidence tending to connect the defendant with the commission of the offense, it will uphold the verdict.”

See, also, Blumhoff v. State, 72 Okla. Cr. 339, 116 P. 2d 212.

The defendant next contends that the trial court erred in refusing to give defendant’s requested instructions Nos. 1 and 2.

Requested instruction No. 1 related to the question of what constitutes a principal to a crime. The statutory definition, Tit. 21 O.S.A. § 172, reads:

“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.”

Defendant’s contention that there was not sufficient evidence to constitute the defendant a principal is refused by the evidence recited, which, though feonflicting, was sufficient for submission of questions to the jury, and was by the jury resolved in favor of the state and against the defendant. The case is readily distinguishable from Smith v. State, 66 Okla. Cr. 408, 92 P. 2d 582, Anderson v. State, 66 Okla. Cr. 291, 91 P. 2d 794, and other cases by defendant cited.

The requested instruction No. 1 was in part contrary to the above statute defining principal, and the subject was covered by instruction No. 4 given. We do not deem it error that the court refused to give defendant’s requested instruction No. 1. See Wheeler v. State, 66 Okla. Cr. 127, 90 P. 2d 49. We do not, however, approve the instruction given as a model instruction. In fact, it is a very poor one, but after an examination of the entire record, we are convinced that the refusal to give the instruction requested and the giving of the instructions, as given, did not result in a miscarriage of justice, and are convinced that the defendant has not been deprived of a constitutional or statutory right. See Tit. 22 O.S.A. § 1068, and Hall v. State, 80 Okla. Cr. 310, 159 P. 2d 283.

Requested instruction No. 2 reads:

“Gentlemen of the jury, the court instructs you that if you believe from the evidence that the defendant, Ed Taylor, had no part in planning the crime charged in this case, and took no part in its commission, but that after the ring was stolen, the defendant, Taylor, was advised of the theft, and that he helped to dispose of the stolen property, he was not a principal in the theft, and you should discharge him.”

The record shows that the defendant denied having received the stolen property or that he had any part in disposing of it, or any knowledge of the theft. His entire defense was that he was in no way implicated with Giles in the theft of the ring, and he denied receiving any part of the proceeds of sale. The issue covered by the proposed instruction was not raised by the evidence, and hence the defendant was not entitled to the instruction requested. Moore v. State, 75 Okla. Cr. 222, 130 P. 2d 114.

The judgment of the district court of Muskogee county is, therefore, affirmed.

JONES, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: POWELL, J.

license: Public Domain

text:
    STEPHENSON v. MIRACLE, District Judge.
    No. A-11354.
    Jan. 11, 1950.
    (213 P. 2d 875.)
    Walter A. Billingsley and Clem H. Stephenson, Wewoka, and Harry Stephenson, Okemah, for petitioner.

      Jess I. Miracle, Okemah, respondent.
   POWELL, J.

This case is before us on petition for writ of mandamus to require Hon. Jess I. Miracle, district judge, to disqualify from presiding in any further proceedings against petitioner in a case pending in the district court of Okfuskee county, styled: “In the Matter of the Habeas Corpus of Patricia Stephenson, a minor”, No. 11966, wherein it is sought to declare the petitioner, Robert L. Stephenson, guilty of direct contempt of court.

In the habeas corpus matter mentioned, petitioner, the father of the child sought, had been arrested and brought before the court, who thrice asked petitioner: “Will you immediately bring the baby into court?” to which petitioner twice gave no answer, but the third time replied: “I could not do so myself.” There was no explanation as to why he could not do so. The court without a hearing adjudged the herein petitioner in direct contempt of court and ordered him to jail, until he produced the said child. Robert L. Stephenson applied to this court for a writ of habeas corpus, the case being reported in 89 Okla. Cr. 427, 209 P. 2d 515, and the writ was granted with directions that the petitioner be accorded a hearing on the direct contempt charge, as required by Art. 2, Sec. 25 of the Bill of Rights to the Constitution, and which case may be referred to for detailed treatment of the question.

Petitioner thereafter filed in the district court of Okfuskee county a motion for change of judge, which was verified by petitioner’s oath and testimony was offered in support of the motion, but the court asserted that he was not disqualified and declined to hear any evidence in support of the motion on the statement of counsel that lie wanted to make a record as a basis for seeking a writ of mandamus in this court. The court stated: “There isn’t any nse of offering evidence here if you are going to offer it up there.” A copy of the motion and a transcript of the proceedings before the trial court on hearing of the motion are attached to and made a part of the petition.

Petitioner alleges in his petition that the respondent is disqualified to hear said contempt charge for the following reasons:

“1. That Respondent is a material witness in said hearing.
“2. That bias and prejudice exists on the part of the Respondent and against this Petitioner to such an extent that this Petitioner cannot obtain a fair trial in said matter before the Respondent.
“3. That Petitioner’s brother married Respondent’s sister, and Respondent, consciously or unconsciously, is inclined to lean against Petitioner in order to avoid criticism by reason of said relationship.”

In this court the respondent made return by way of letter addressed to this court dated January 9, 1950, without the service of an alternative writ of mandamus.

Respondent denies being disqualified or prejudiced in the matter, but states that since the application to disqualify has been given wide newspaper publicity, that suspicion would attach to any judgment he might render, and, therefore, he would welcome an order of this court directing him to disqualify.

At the hearing on January 11, 1950, respondent failed to appear in person or by counsel, but petitioner appeared in person and by counsel, and evidence was heard.

Tbe sole question presented in this proceeding is the sufficiency of the application, and the proof in support of the same.

By reason of the statement of the respondent, and the proof introduced in support of the petition, we are of the opinion that respondent should immediately certify to the Chief Justice of the Supreme Court of Oklahoma that he is disqualified in said cause, and that another judge be assigned to hear such cause.

It is so ordered.

BRETT, J., concurs. JONES, P. J., not participating.


text:
    ALLEN v. BURFORD.
    No. A-11313.
    Jan. 11 1950.
    (214 P. 2d 455.)

      Freddie Allen, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore. Asst. Atty. Gen., for respondent.
   POWELL, J.

The petitioner has filed herein his original petition alleging that he is unlawfully confined by Clarence P. Burford, warden of the State Penitentiary, at McAlester, Okla.

The transcript disclosed that the defendant was on August 24, 1948, tried in the district court of Custer county on the charge of forgery in the second degree, being represented by counsel whose fees were paid by the state, and that he was found guilty, and sentenced to serve a term of five years in the State Penitentiary at McAlester. But the sentence was on the same day suspended by the trial judge, the order providing, however, that the defendant be sent to Supply, Okla., and that he should comply with the rules of the state institution (for treatment of narcotics) there and co-operate with the officials and not run away or leave without release. The defendant signed such agreement.

On the 8th day of November, 1948, the county attorney of Custer county filed a motion in the district court of that county praying the revocation of the suspended sentence on the ground that on the 5th day of November, 1948, Freddie Allen was intoxicated in a public place, being on tbe streets of Clinton, Oída., and was arrested by the sheriff of Custer county for said offense, and that he left the institution at Supply without the knowledge or consent of the officers and in violation of the terms of his suspended sentence. On hearing on December 20, 1948, the district court of Custer county revoked the suspended sentence and the defendant was delivered to the warden at McAlester, to serve his sentence.

Petitioner contends that the trial court had no authority under the law to give him a suspended sentence, because he had prior thereto served six prison sentences for forgery, second degree; served two sentences.for burglary, and had been arrested eight times on dope and drunk charges. This latter allegation is borne out by the F. B. I. records attached to the petition filed herein, but there is nothing in the record to disclose that the district judge before whom petitioner was tried had knowledge of such facts. Should he have such knowledge, by reason of Tit. 22 O. S. 1941 § 991, it would have been his duty to have had the defendant transported without delay, in absence of appeal, to the penitentiary.

We must assume that the court did not have this information, the order suspending the sentence setting out as a predicate for the order that the defendant, petitioner herein, had not prior thereto been convicted of any crime in any state or territory of the United States. Also, the fact that petitioner signed the agreement annexed to the order agreeing to all the terms of the order, evidences that he had full knowledge of the contents of the order.

The defendant contends that the court lost jurisdiction of his case when he illegally suspended his sentence and failed to send him immediately to the State Penitentiary, and for such reason could not act further in the matter, and that the subsequent order revoking his suspended sentence was and is void, citing State v. Felts, 63 Okla. Cr. 201, 74 P. 2d 125, and Wallace v. State, 54 Okla. Cr. 90, 14 P. 2d 956. Those cases are not in point as to the questions raised.

As a matter of fact, however, it is not important whether the authorities knew of the former convictions or not, so far as the petition herein is concerned, as the suspension of a sentence does not affect the judgment rendered. It is not impaired or limited, but rather, the time for its execution is merely deferred as a matter of grace, and the suspension is subject to withdrawal by the court for a violation of some of the conditions named in the statute dealing with suspension of sentence. Stone v. State, 86 Okla. Cr. 1, 188 P. 2d 875; Hall v. State, 78 Okla. Cr. 83, 149 P. 2d 268.

The error here was in favor of the defendant, and of this he cannot complain. This principle is involved in Ex parte Maish, 58 Okla. Cr. 271, 52 P. 2d 85. If the county attorney had known of petitioner’s past criminal record, he could have filed a charge under the habitual criminal act. Tit. 21 O. S. 1941 §§ 51 and 52. This he did not do and of this the petitioner cannot complain, being in his favor. Wilson v. State, 89 Okla. Cr. 421, 209 P. 2d 512.

It follows that petitioner is lawfully imprisoned under said judgment and sentence. Wherefore, the writ of habeas corpus will be denied. It is so ordered.

JONES, P. J., and BEETT, J., concur.


author: JONES, P. J.

text:
    WASHBURN v. STATE.
    No. A-11025.
    Jan. 11, 1950.
    (213 P. 2d 870.)
    Kelly & Townsend, Frederick, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, P. J.

The defendant, L. W. Washburn, was charged by a complaint filed in a justice of peace court in and for the district of Frederick in Tillman county, Olda., with the offense of fishing the waters of the state without first having procured a license, was tried, convicted, and sentenced to pay a fine of $10, and the defendant appealed to tlxe county court where the case was tried de novo. He was again convicted in the county court and his punishment fixed at a fine of $10, and an appeal was taken from said judgment to this court.

Counsel for the defendant have filed a brief in support of the many assignments of error. This case was set for oral argument and submission on April 16, 1949. At that time the Attorney General expressed doubt as to whether in view of the weight of the authorities cited in support of the defendant’s contentions that the state would file an answer brief, but requested an extension of fifteen days from that date in which to file said brief in case they desired to do so. No brief has been filed on behalf of the state, and we assume from the failure of the state to file a brief in answer to the authorities cited by the defendant that the state feels that there is reversible error in the record.

We think the Attorney General is correct in his conclusion. Under our view of the case, it is unnecessary to discuss each of the assignments which are separately presented, as it is only necessary to discuss the question that the evidence is insufficient to support the conviction.

The evidence of the state showed that two game rangers while patrolling saw five men seining in an old slough from a distance about 100 yards away. This slough was in a depression on land of Elmer Taylor nearly a mile from Red River. The men were in the water and the rangers testified that they could tell that there were only five of them, but by looking through their field glasses, they were not able to recognize any of the people in the water doing the seining. Instead of going to the slough immediately, the rangers decided to block the old road which led from the slough to the main traveled road so as to trap the fellows as they left the scene of their seining operations. Later, an automobile, which was occupied by six men and a boy, came from the direction of the slough. The car was stopped at the road block and searched by the rangers which disclosed a seine and an old towsack containing twelve fish which one of the rangers described as being hickory shad and the other described as being carp and shad. The occupants of the car were asked to show their fishing licenses, but only four of them had licenses. The defendant was one of those who did not display a fishing license. The defendant’s clothes were dry, and the rangers testified that if he had been engaged in seining, he had changed his clothes because the clothes he had on gave no evidence of having been in the water. Defendant was not the driver nor the owner of the automobile.

The sheriff of Tillman county testified for the state that the slough which was being seined belonged to him and that he had given permission to T. C. Coombs to fish it. He further testified that he had no objections to anybody seining the slough; he stated that he had owned the place for 25 years and that during that period of time Red River had overflown four or five times to where the overflow reached the slough, and fish in the slough could have passed back and forth from the river to the slough during the overflow; that during the time of high water, there would be a period of from 12 to 36 hours when there would be an overflow that would enable fish to swim from the river to the slough and vice versa.

We do not think that the circumstantial evidence of defendant being in the car was sufficient to convict him of this offense. It is conceded that there were two passengers in the automobile who were not engaged in the seining.

Furthermore, the evidence of the state failed to show that the waters in which the alleged fishing occurred were public waters subject to regulation by the Legislature under the exercise of police power.

In the case of Newman v. Ardmore Rod & Gun Club, 190 Okla. 470, 125 P. 2d 191, 192, the Supreme Court of Oklahoma stated:

“Plaintiffs lakes are entirely enclosed by its own land and are not located on a stream where fish may freely pass to and from other waters. In such case the fish, while yet uncaught, it is said constitute the private property of the owner of the lake; that the public is entirely withoxxt interest in the lake or in the fish, and that the Legislature cannot touch the same under the guise of police power. This is supported by the text in 26 C. J. 599, wherein it is said: ‘The right of fishing in a small lake or pond inclosed by the owner’s land and having no communication through which fish are accustomed to pass to other waters belongs exclxxsively to the owner thereof; .but it has been held otherwise as to lakes having outlets to other waters through which fish are accustomed to pass.’ See, also, 22 Am. Jur. 699. * * *
“We therefore hold that the statute in question does not purport to authorize the commission to regulate fishing seasons in private lakes of this character where the fish are not free to pass in waters to and from the same.”

We do not believe that the fact four or five times during a period of 25 years there was an overflow which lasted for a few hours which would have permitted fish to have passed from the slough to the waters overflowing the land was sufficient to authorize the court to conclude that the slough was of such a public character that the fish were free to pass to and fro from the same so as to authorize regulation of its fishing by the state.

The slough did not have an. outlet through which fish were accustomed to pass to other waters. It was not on a stream. As a private pond entirely enclosed by the owner’s land, it was not subject to regulation by the state.

The statute under which this prosecution was brought recognizes the lack of control which the state has over the fishing in private landlocked lakes. Tit. 29 O. S. 1941 § 67, provides:

“It shall be unlawful for any resident of the State of Oklahoma sixteen (16) years of age or older to fish in any manner without first having applied to and secured from the State Game Warden or his authorized agents, an annual fishing license. Said license shall be obtained at a cost of $1.25, of which said sum $1.00 shall be paid into the State Treasury to the credit of the Game Protection Fund, and twenty-five (25^) cents to be retained by the person issuing such license. A license so secured shall not be transferable to any other person. The holder of said license shall be entitled to fish in any waters of this State, other than those privately owned.”

The judgment and sentence of the county court of Tillman county is reversed and the defendant discharged.

BRETT and POWELL, JJ., concur.


author: BRETT, J. JONES, P. J.

text:
    LANGLEY v. STATE.
    No. A-11037.
    Jan. 11, 1950.
    (213 P. 2d 886.)

      Jack Spivey and Wade Arends, Oklahoma City, A. L. Commons, Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant, John Langley, was charged by information with the crime of the murder of Fred Eby by shooting him with a .45 automatic pistol, in Quapaw, Ottawa county, Okla., on March 31, 1947. The information alleged that as a result of the shooting, Fred Eby suffered mortal wounds in the upper rear portion of his right shoulder and left side of his neck, from which wounds he lingered and died on April 21, 1947. The defendant was tried and convicted by a jury and his punishment fixed at 25 years in the penitentiary, and judgment and sentence pronounced accordingly.

The defendant’s motion for new trial and petition in error sets up numerous assignments of error, but the record discloses all of them to be highly technical and without substance save those covered in defendant’s proposition No. 2. Proposition No. 2 relates to his contention that the court erred in admitting in evidence state’s demonstrative photographs Exhibits 3, 11, and 12. In State’s Exhibit No. 3, Ben Eby, a brother of the deceased, appears pointing towards the ground at the southeast corner of the house where the record shows the deceased Fred Eby fell in his flight from the scene of the crime. Exhibits Nos. 11 and 12 are photographs in which the sheriff and the special prosecutor appear pointing toward certain bullet holes in the north wall of the kitchen, above and to the right of the east door of the kitchen wherein the shooting took place. In these exhibits there is a steel poker pushed into the most westwardly hole in the wall. The sheriff and prosecutor, respectively, in Exhibit No. II, appear, pointing toward the poker and to the hole protruding from the most westwardly hole, and to the eastwardly hole to the right and over the east door of the kitchen. In Exhibit No. 12 presumably the special prosecutor’s arm can be seen pointing toward the eastwardly hole in the wall from which the poker is protruding. In each the object of the poker and the pointing was to demonstrate the state’s theory as to how the holes got there. It being the state’s purpose to show, from the angle in which they entered the wall, the position and place from which they were shot, that they were not shot therein at the time and place as testified to by the defendant, but at a time subsequent to the crime, for the purpose of defense at the time of trial. The defendant contends the admission of these exhibits was erroneous and highly prejudicial. In this connection he relies upon the case of Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111, hereinafter referred to.

In order to fully understand the issue herein raised, it, is necessary we resort to a brief resume of the theory of the prosecution and the defense as revealed by the evidence of both. The state’s theory was that the defendant suspected Ben Eby of having relations with his wife Willie Langley. The record discloses that he made accusations to Ben Eby concerning the same. Probably as an outgrowth of this feeling the defendant and his wife had been divorced only two or three days before the shooting. A few hours before the shooting the defendant came to Henry Eby’s beer joint and there he saw his wife drinking with the Eby boys and other parties. He observed Ben Eby throw his arms around Mrs. Langley in a caressing attitude. The record further shows that John Langley and his wife, Willie Langley, had been running a beer joint in the front part of their place and that they lived in the back rooms. When the divorce was granted it appears that Willie Langley moved the license from the place, and thus stopped the sale of beer by her former husband. John Langley took the residue of beer he had on hand and turned it over to a man by the name of White at another establishment. No doubt Langley was incensed by the action of his wife in taking away the beer license, as well as what he believed to be the relation between Ben Eby and her and concerning which he had talked to Ben Eby. The defendant, the day and night before the killing, had indulged in some drinking though the record does not disclose at the time of the crime he was drunk. It appears that the defendant was seen near the back door of Henry Eby’s beer establishment with his .45 automatic pistol and that at that time he made a threat against the Ufe oí Ben Eby and his former wife, Willie Langley. The sheriff was called and after awhile the defendant left the establishment. Here, the scene changed and the defendant went to other places in his truck accompanied by other persons. Brooks Rogers was in the party, and they went to the beer establishment (or Green Place), formerly run by John and Willie Langley. When Willie moved out after the divorce her clothes were moved to one of the cabins behind this place. It was suggested, apparently by Rogers, that they throw through the window of the cabin some beer bottles they had. The state’s evidence discloses this suggestion amplified the defendant’s hitherto belligerent mood. The record shows the defendant drew his .45 gun on Rogers and threatened to kill him, stating he wanted to kill somebody any way, and he would like to see Ms brains splattered out there. One of the men, Charley Wren, tried to leave when this occurred, and it appears that the defendant forced him at pistol point not to do so, but got in the truck and to drive until the truck stalled, and then Langley took the wheel. All this the defendant in substance denied. The evidence further shows that Henry Eby closed his beer establishment about 12 o’clock and Fred and Ben Eby went to Picher. About 3:30 a.m. on March 21, 1947, they returned to Quapaw, and went to the back door of the place where John Langley and Willie Langley had run the beer joint and made their home. The record shows they thought John Langley was at that time staying at his farm home. They did not expect him to be there. The record shows Fred Eby wanted to get a bottle of beer. He knocked on the back door and said “Willie, it is Ben and Fred. Get up. We want a bottle of beer.” The back door was pushed open and John Langley, who it appears from the state’s case was lying in wait, opened fire on Ben and Fred Eby. Fred was shot and fell. Empty .45 shells were found on. the ground outside the door. Ben Eby ran about 20 yards, stopped and heard the defendant calling trying to wake up two women, Janie Flippins and his former wife, Willie Langley. The record discloses that from the dying declaration of Fred Eby as to the affair, he fell and pulled himself up on some rocks near the side of the house. The next day blood was observed on these rocks at the southeast corner of the house. These are the rocks heretofore referred to and pictured in Exhibit No. 3. The state’s case further tended to show the Ebys were not armed and that Ben Eby had never owned a pistol, but did have a .22 rifle. The sheriff came to the premises about 6 a. m., on the morning of the shooting, and found no bullet holes in the kitchen where the shooting occurred. He returned again about 9:30 a. m., the same day, and he said he found none. About three weeks after, he returned and found two bullet holes, one in the north wall and one over the door in the east end of the kitchen, which he testified would have to have been fired from the position and angle he was standing and the prosecutor was standing, with the gun held in the manner they were pointing, as reflected in photographic Exhibits 11 and 12, taken on October 18, 1947. By this evidence the state sought to leave the impression that the defendant or someone else had shot the bullet holes in the wall at a later time than the shooting herein involved, as a predicate for the defendant’s defense.

The defendant’s evidence in effect was that he was in his home alone asleep. He testified he was awakened by the sound of someone at his screen window attempting to get in. He looked out of his unlighted room and saw two men. They went to the back door. One of them said “knock the door open, and let’s go in and kill the son of a bitch”. That was the door of the kitchen. The defendant said that he was standing in the middle door between the kitchen and the southeast bedroom. He said the men broke the door in. When the door was broken in, he hollered and fired two shots right up in the corner over the door. One of the men fell on the floor, and the other jumped in and there was a third shot and a blaze from what can only be presumed to have been a gun in the hands of the one who jumped in. (No bullet hole was found to support the firing of a pistol in the hands of the Ebys.) Langley said he fired back, making in all according to him four shots. The next thing he knew Fred Eby said he was shot. He dressed and went out and Fred Eby was getting in a car across the street. The defendant does not question the sufficiency of the evidence to sustain the conviction.

The sole and only question of merit presented to the court and urged in the defendant’s brief relates to Exhibits 3, 11 and 12. While technically it was error to permit Exhibit No. 3 to be introduced in evidence, it can be reconciled within the rule as laid down in Roberts v. State, supra, and other authorities on the subject. It is not denied that save and except for the presence of Ben Eby in the picture pointing to the rocks at the southeast corner of the house, that it was a faithful reproduction of the location of the southeast corner of the house, and the rocks on which the record discloses blood was found the day following the shooting. It establishes the location of the rocks and the place where the decedent, according to the record, fell, and pulled himself up on his feet, after falling. The presence of Ben Eby in this picture pointing was not demonstrative of a theory or hypothetical situation but of a factual situation otherwise established by the evidence and not disputed. It was not an attempt to re-enact the accident but was an attempt to point out admitted things and a place, to wit, the rocks at the southeast corner of the house. As was said in Hudman v. State, 89 Okla. Cr. 160, 205 P. 2d 1175:

“Photographs are admissible in evidence to illustrate or clarify some issue of the case where such photograph is shown to be a faithful reproduction of whatever it purports to reproduce.”

The appropriate way to have presented this fact would have been to have pictured the southeast corner of the house minus Ben Eby pointing to the rocks, and then had the witness locate the place and the rocks in the picture. Nevertheless, the pointing in this picture by Ben Eby was an appropriate aid to the jury in applying the evidence. Had the location of the rocks in this case not been pointed out in some manner, because of the overgrowth of grass, the photograph would have been meaningless to the jury. Of course, the proper way to have done this would have been as we have hereinbefore indicated. We believe this to be in keeping with the rule announced in the first syllabus quoted from Roberts v. State, supra, citing to the same effect Cooper v. State, 61 Okla. Cr. 318, 67 P. 2d 981, 982. This conclusion finds support in the rule laid down in Hall v. State, 78 Fla. 420, 83 So. 513, 8 A.L.R. 1034, in substance, holding that photographs are admissible where such photographs do not themselves constitute a picture version or interpretation of the character of the actual occurrence of the crime. On no basis can Exhibit 3 be construed in any other way than as a purely factual representation. By no means does it constitute an interpretation or picture version of the actual occurrence, or character of the crime. Exhibit No. 3, while on the borderline, was not of such a nature as to be prejudicial to the defendant’s rights, and its admission was therefore harmless.

In relation to the claimed error in the admission of Exhibits 11 and 12, this case presents a more difficult but not irreconcilable situation. Before discussing the issue in relation thereto, it is well that we analyze the evidence as to the admitted and conclusive facts. The defendant admitted that he had accused Ben Eby of having relations with Willie Langley, the defendant’s wife, and had talked to him about it. It is also admitted by the defendant that he had engaged in a round of drinking the night of the killing. It is further admitted by the defendant that he saw Ben Eby caress his wife in Henry Eby’s beer parlor. It conclusively appears that undoubtedly the attentions of Ben Eby to Willie Langley was one of the causes of the divorce between the defendant and his former wife, Willie Langley. Moreover it conclusively appears that because of it he made threats against Ben Eby and his wife, Willie Langley, during the night preceding the shooting. The evidence to support his ill will towards Ben Eby is clear and convincing. The evidence to support the defendant’s anti-social and ill temper toward everybody in general, even his friends who were with him the early morning of the shooting, is likewise conclusive. It is admitted by defendant Langley that he shot Fred Eby and from the wounds thereby inflicted he died. From what appears in this record it may be likewise concluded that the shot he fired was actuallly directed towards Ben Eby. In this connection it conclusively appears that the Ebys were not armed. The record further shows that the Ebys did not fire a gun in the direction of the defendant, for if they had done so, as he said they did, evidence of the shot would have been found in the west wall of the kitchen where the shooting occurred. No such evidence was discovered, not even by the defendant himself. It is admitted by the defendant that he fired 3 shots, 2 of which formed the basis for the controversy in relation to Exhibits Nos. 11 and 12,. These shots the defendant contends were fired by him on the night and the occasion he shot Fred Eby and he says to scare his assailants away. These admissions and conclusive facts bring us to a consideration of Exhibits 11 and 12. At the outset of this consideration it must be recognized that the Attorney General concedes that exhibits 11 and 12 fall within the purview of Roberts v. State, supra, and were therefore technically inadmissible. He'further says that “this is exactly what the court held in the Boberts case was improper”. With this conclusion we cannot agree. We are of the opinion that the Boberts case is clearly distinguishable from the situation in the case at bar. The rule announced in the Boberts case was in relation to photographic evideuce designed to portray or depict the state’s theory of the actual occurrence of the alleged crime, while the photographic exhibits Nos. 11 and 12 herein involved were not offered as proof of the state’s theory as to how the crime was committed. Proof of the crime was established by clear and convincing evidence, exclusive of exhibits 11 and 12. Exhibits 11 and 12 were not offered to prove the facts of the crime or to establish the state’s theory, but instead were offered to establish the occurrence of what the state contends happened subsequent to the crime, as a means of portraying what the state believed to be a fabricated defense. The state’s position is not without strong support in this contention. Officers of the law are presumed to do their duty. These presumptions are rebut-table. 22 C.J.S., Criminal Law, § 589, p. 906, Notes 96 and 97, and p. 907, Note 11. We can only presume such in relation to the sheriff of Ottawa county. We must presume that the sheriff made a reasonably thorough inspection of the premises at 6 a. m., and that he returned again at 9:30 and made another reasonably thorough inspection of the premises. He found no bullet holes in the kitchen wall either time. But the defendant offers Mr. Burks, who says he inspected the premises at 3 o’clock the same day and the bullet holes were in the northeast corner wall. The record does not purport to account for what may have transpired between 9:30 a. m., and 3 p. m. Regardless of whether the defendant fired the bullet holes as he claimed, or whether someone else fired them at a subsequent time, this presented a disputed question of fact. This issue of fact was one for the jury to determine. The jury decided it in favor of the state and against the defendant. It was not error to submit this issue to the jury. In Hudman v. State, supra, it was said:

“We have had occasion many times to discuss the admissibility of photographs and have held that the question of the admissibility of such photographs in evidence is a matter addressed to the discretion of the trial court. Jackson v. State, 67 Okla. Cr. 422, 94 P. 2d 851.”

Moreover, it has been said that the competency of photographs as evidence is a matter for the court’s determination, the weight to be given to the photographs is for the jury. 2 Wharton Evidence 774, Note 2; State v. Witzel, 175 Wash. 146, 26 P. 2d 1049. In this connection, the rule has also been announced that evidence of subsequent circumstances is admissible if it throws light on the transaction, or tends to expose a fabricated defense or false testimony on behalf of the defendant. 30 C.J. p. 205, Note 90; 40 C.J.S. Homicide, § 247, p. 1187, Note 44; Maxwell v. State, 146 Ga. 10, 90 S. E. 279; Bates v. Commonwealth, 189 Ky. 727, 225 S. W. 1085; Hughes v. State, 97 Tex. Cr. R. 607, 262 S. W. 745, wherein Judge Lattimore said:

“We think it provable against the accused that he had attempted to manufacture false testimony in his own behalf and that no error was committed in the admission of this testimony.”

Such, basically, is the situation in relation to the ultimate facts sought to be established by state’s Exhibits Nos. 11 and 12. It clearly appears, as we have hereinbefore indicated, they were not offered to prove circumstances of the shooting resulting in the death of Fred Eby but were offered to prove a fabricated case of self-defense in relation to things which the state’s evidence tended to show occurred subsequent to the crime. For this purpose, in proper form and with proper explanation from the sheriff, they would not have been objectionable. What the law seeks is the goal of truth, it should never shackle itself with technicalities lest it be outrun in the race of justice, by its strongest competitor, falsehood. The only objection to state’s Exhibits Nos. 11 and 12 that can be rightly made is not as to the ultimate facts sought to be established by them, but is as to the manner of proof. In Roberts v. State, supra, we said [82 Okla. Cr. 75, 166 P. 2d 113] :

“Posed photographs taken some time subsequent to the controversy with men in various assumed positions, and things in various assumed situations, intended only to illustrate hypothetical situations are incompetent and inadmissible as evidence.”

And therein, quoting from Colonial Refining Co. v. Lathrop, 64 Okla. 47, 166 P. 747, L.R.A. 1917F, 890:

“ ‘The probative value of photographs depends upon their accuracy. They must be shown by extrinsic evidence to be faithful representations of the place or subject, as it existed at the time involved in the controversy. And photographs taken to show more than this, with men in various assumed positions, and things in various assumed situations, intended only to illustrate hypothetical situations, and to explain certain theories of the parties, are incompetent.’ ”

And quoting from Massey v. Ivester, 168 Okla. 464, 33 P. 2d 765:

“ ‘Photographs purporting to depict the conditions at the point of accident may be admitted in evidence, if it is proven or admitted that the objects surrounding the scene of the accident are in the same condition as they were at the time of the acts complained of, but may not be admitted as a “stage setting” for the purpose of re-enacting the accident.’ ”

The foregoing rules of law clearly apply as to the facts of the crime itself, and had exhibits 11 and 12 been offered in relation thereto, we would be compelled to hold them reversible error in light of these cases. But since they were not offered in relation to the facts of the crime itself, but as to subsequent occurrences, there are many cogent reasons why their introduction in the form herein submitted is harmless. First, because primary facts of the shooting are established by extrinsic, clear and conclusive evidence other than the photographs represented in Exhibits 11 and 12; second, had the photographs not been used at all, a conviction would most assuredly have been the result, because the evidence otherwise supports the same; third, the photographs are only incidental to the real issue, and should not be permitted to control the outcome of the case where as herein the evidence of guilt is clear and conclusive, as was said in Bates v. Commonwealth, supra [189 Ky. 727, 225 S. W. 1086]:

“It is not only the province but the duty of the court to determine, in the light of the entire record, whether errors therein are such as have affected the real rights of a party and prevented him from having a fair trial upon the real issue.”

So far as the real issue is concerned herein, the defendant had a fair and impartial trial and that is the test as to whether he has been denied his substantial rights. Fourth, the photographs exclusive of the poses of the sheriff and special prosecutor and the use they made of the poker strongly support the defendant in his contention that he did fire the two shots in the northeast corner of the kitchen in an attempt to frighten the Ebys when he said they broke the door in. Finally, in light of the entire record, the error as to Exhibits Nos. 11 and 12 was not fundamental, and if the case was again submitted for a second trial to an intelligent and honest jury, we do not believe it could or would arrive at any verdict other than that of guilty. Janeway v. State, 62 Okla. Cr. 264, 71 P. 2d 130, 131. Moreover where the record does not result in a miscarriage of justice and does not constitute a substantial violation of the defendant’s constitutional or statutory rights, the same will not warrant a reversal of the case. Jackson v. State, 84 Okla. Cr. 138, 179 P. 2d 924. In light of the foregoing, we are of the opinion that Exhibits 11 and 12 did not constitute a miscarriage of justice and clearly fall within the provisions of Title 22, O. S. 1941 § 1068, reading in part as follows, to wit:

“No judgment shall be set aside or new trial granted by any appellate court of this State in any case, * * * on the ground of * * improper admission or rejection of evidence, * * * unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

For all of the above and foregoing reasons, the judgment and sentence herein imposed is accordingly affirmed.

JONES, P. J., and POWELL, J., concur.

JONES, P. J.

I think state’s exhibits 3, 11, and 12 were posed photographs by the sheriff and special prosecutor, in which they attempt to reinforce the theory of the state as to how and when certain shots were fired causing bullet holes on the inside of the house, and as such posed photographs were clearly inadmissible under the law set forth in Roberts v. State, 82 Okla. Cr. 75, 166 P. 2d 111.

However, the guilt of the defendant was so clearly established that I do not believe the admission of these photographs in evidence was reversible error. The assessment of the punishment at 25 years when the evidence fully justified a conviction for murder shows the jury was lenient towards the accused. For that reason, I concur in the conclusion that the judgment should be affirmed.


author: BRETT, J.

text:
    JOHNSON v. STATE.
    No. A-11092.
    Jan. 18, 1950.
    (213 P. 2d 873.)
    Ryan Kerr, Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., attorneys for defendant in error.
   BRETT, J.

The defendant was sentenced on May 3, 19á8, to pay a fine of $50 and costs and to serve 30 days in jail for being in unlawful possession of two and two-thirds pints of tax paid whisky.

The Attorney General has filed his motion to dismiss the appeal for the reason that more than 60 days have elapsed since judgment was rendered and the appeal perfected in this court, and alleges that this court lacks jurisdiction to hear said appeal. The record reveals that the judgment and sentence was entered herein on May 3, 1948, and that the appeal herein was filed on July 3, 1948, which was 61 days after sentence was pronounced. Under the provisions of Title 22, § 1054 O.S.A. 1941:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. * * *”

This makes a total of 120 days in which an appeal may be taken in a misdemeanor case, provided orders of extension are procured to carry the original appeal beyond the 60 days. The record discloses that no order extending time beyond the 60 days was obtained in this case. Unless the appeal is filed within the statutory period, this court has no jurisdiction to hear and determine the appeal. Nix v. City of Tulsa, 85 Okla. Cr. 374, 190 P. 2d 840; Jackson v. State, 86 Okla. Cr. 6, 188 P. 2d 878. In Nix v. City of Tulsa, supra, this court said:

“When an appeal in misdemeanor case is not taken within the sixty days prescribed by the statute, 22 O. S. A. § 1054, the record or case-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.”

See, also, Jackson v. State, supra. For the reasons hereinbefore stated, the purported appeal should be and is hereby dismissed, and the cause remanded to the trial court, with directions to enforce its judgment and sentence. It is so ordered.

JONES, P. J., and POWELL, J., concur.


text:
    JOHNSON v. STATE.
    No. A-11093.
    Jan. 18, 1950.
    (213 P. 2d 874.)
    Ryan Kerr, Altus, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   BRETT, J.

The defendant was sentenced on May 3, 1948, to pay a fine of $50 and costs and to serve 30 days in jail for being in unlawful possession of two and two-thirds pints of tax paid whisky.

The Attorney General has filed his motion to dismiss the appeal for the reason that more than 60 days have elapsed since judgment was rendered and the appeal perfected in this court, and alleges that this court lacks jurisdiction to hear said appeal. The record reveals that the judgment and sentence was entered herein on May 3,1948, and that the appeal herein was filed on July 3, 1948, which was 61 days after sentence was pronounced. Under the provisions of Title 22, § 1054 O.S.A. 1941:

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. * * *”

This makes a total of 120 days in which an appeal may be taken in a misdemeanor case, provided orders of extension are procured to carry the original appeal beyond the 60 days. The record discloses that no order extending time beyond the 60 days was obtained in this case. Unless the appeal is filed within the statutory period this court has no jurisdiction to hear and determine the appeal. Nix v. City of Tulsa, 85 Okla. Cr. 374, 190 P. 2d 840; Jackson v. State, 86 Okla. Cr. 6, 188 P. 2d 878. In Nix v. City of Tulsa, supra, this court said:

“When an appeal in misdemeanor case is not taken within the sixty days prescribed by the statute, 22 O. S. A. § 1054, the record or case-made must affirmatively show that the trial court or judge thereof for good cause shown extended the time; otherwise this court is without jurisdiction to review the judgment, and such appeal will be dismissed.”

See, also, Jackson v. State, supra. For the reasons hereinbefore stated, the purported appeal should be and is hereby dismissed, and the cause remanded to the trial court with directions to enforce its judgment and sentence. It is so ordered.

JONES, P. J., and POWELL, J., concur.


text:
    HURST v. PITMAN.
    No. A-11303.
    Jan. 18, 1950.
    (213 P. 2d 877.)

      Harley V. Hurst, pro se.
    Shelton Skinner, Co. Atty., Earl P. Enos, and John L. Green, Assts. Co. Atty., Shawnee, for respondent.
   JONES, P. J.

The petitioner, Harley V. Hurst, is an inmate of the United States penitentiary at Leavenworth, Kansas, where he is serving a sentence of 15 years pronounced against him by the United States District Court for the Western District of Oklahoma, upon a plea of guilty to an indictment charging him with the crime of bank robbery, which sentence was pronounced on May 13, 1917.

The petitioner alleges that on or about March 19, 1917, he was arrested in Pottawatomie county, Okla., and delivered to an investigator from the State Bureau of Criminal Investigation, who transferred him to the county jail of Lincoln county; that he remained in the county jail in Lincoln county for 21 hours, at which time he was transferred to the Garfield county jail; that later he was transferred to the federal jail in Oklahoma City; that while he was incarcerated in the federal jail in Oklahoma City, he was assured by Leo Kuykendall, an agent of the Federal Bureau of Investigation, and by Rex Hawks, Chief of the Oklahoma State Bureau of Investigation, that if petitioner would enter a plea of guilty to the federal charge of bank robbery, no state charges would be filed against him; that accordingly, on May 13, 1947, the petitioner entered, a plea of guilty to the federal charge and was immediately, after sentence was pronounced, transported to the federal penitentiary at Leavenworth, Kansas; that thereafter, on June 3, 1947, the county attorney of Pottawatomie county, Okla., advised the warden of the federal penitentiary that he had filed three charges of burglary against the petitioner in the justice of the peace court of Randall Pitman, Jr., in the city of Shawnee in Pottawatomie county, and asked the warden of the penitentiary to place a “hold” or “detainer” against the petitioner so that he could be returned to Pottawatomie county, for trial at the conclusion of his federal sentence.

The petitioner further alleged that he had once been in the custody of Pottawatomie county officers and by them voluntarily surrendered to the F. B. I., and this voluntary action on the part of the Pottawatomie county officials constituted an abandonment of their prosecution; that he had made repeated demands upon the officials of Pottawatomie county to give him an immediate trial on the charges pending against him, or in the alternative that said charges be dismissed so that no detainer would be filed against him in the federal penitentiary. The petitioner then prays for a writ of mandamus directed to the justice of the peace ordering him to dismiss said charges pending against him, or in the alternative to grant him an immediate hearing upon said charges.

The respondent in his response moves to dismiss the action for two reasons: First, the Criminal Court of Appeals has no jurisdiction to issue the writ of mandamus in any case; second, the Criminal Court of Appeals has no jurisdiction to issue the writ of mandamus to the justice of the peace for the reason that the justice of the peace is not a court of record and no appeal will lie from an order of the justice of the peace to the said Criminal Court of Appeals, and that the petition should be presented to the Supreme Court or the district court of Pottawatomie county.

The motion to dismiss was presented in the response in which it was further alleged that the petitioner was not entitled to release upon the facts of the particular case for the reason that he had never been in the jurisdiction of Pottawatomie county, nor the justice of the peace court of Pottawatomie county; that said officials had filed charges of burglary against the petitioner as quickly as they had determined that he was one of the parties who committed the crime of burglary charged against him and two other individuals. The respondent further alleged that he stands ready and willing and anxious to afford the petitioner a preliminary examination as quickly as the warrants of arrest have been served on the petitioner and he is brought before said justice of the peace.

A hearing was had upon the petition and the facts disclose that petitioner was arrested by W. L. Chandler, a policeman of Shawnee, sometime in March, 1947, and he was immediately delivered to two officers, one of whom was an agent of the Federal Bureau of Investigation, and the other an agent of the State Bureau of Investigation; that said officers were waiting in the police station in Shawnee for the petitioner, and immediately after the policeman, W. L. Chandler, arrived with Hnrst, he was delivered to said officers who departed from the city of Shawnee with said Hurst in their custody; that the policeman had no knowledge that the said Hurst had allegedly committed any crimes in Pottawatomie county, and did not inform the sheriff and county attorney, or any of the officials of Pottawatomie county, that he had arrested the said Hurst, but he was arrested at the request of the aforesaid agents of the respective Bureaus of Investigation and delivered to them at their request; that the agents took the petitioner to Chandler, Okla., and thereafter to Garfield county, Okla.; that later, while the petitioner was in the Garfield county jail, he was interviewed by the sheriff of Pottawatomie county, but refused to make a statement concerning certain burglaries which had been committed in Pottawatomie county; that thereafter, while the said Hurst was confined in the federal jail in Oklahoma City, he was again interviewed by the sheriff and assistant county attorney of Pottawatomie county, at which time the said Hurst voluntarily admitted participating in the burglary of various places in Pottawatomie county which are named in the four criminal complaints filed against the petitioner in Pottawatomie county; that after these confessions were made, the sheriff of Pottawatomie county verified certain complaints charging the petitioner with the crime of burglary allegedly committed in Pottawatomie county, which complaints were filed on April 18, 1947, before the respondent, Randall Pitman, Jr., justice of the peace in the city of Shawnee, and warrants of arrest were issued at that time for the said Harley V. Hurst, Isaac Barber, and Carl A. Doll, who were allegedly implicated in the burglaries; that neither the sheriff nor any of his deputies, nor the county attorney, nor his assistants, ever agreed with the petitioner, Hurst, nor with any other person, that they would not prosecute the cases pending against the petitioner in Pottawatomie county.

The evidence further showed by the testimony of Rex Hawks that he was Chief of the State Bureau of Investigation at the time Hurst was arrested; that Hurst was arrested in connection with several burglaries of banks, stores, and post offices in the State of Oklahoma; that a gang of such people were involved, and it later developed that they had committed over 400 burglaries in the State of Oklahoma; Hawks admitted that he promised some of the persons implicated along with petitioner in the burglaries, that if they would make a full statement as to the burglaries which had been committed and would plead guilty to the federal charges pending against them, that he would ask all state officers hot to prosecute on any of the state charges ; that he did ask Pottawatomie county officials not to prosecute Hurst, but they insisted upon going ahead with their prosecution.

The first question presented for consideration is the matter of jurisdiction. The contention that this court has no authority to issue the writ of mandamus in any case is wholly without merit. Eubanks v. Cole, District Judge, 4 Okla. Cr. 25, 109 P. 736; McLeod v. Graham, 6 Okla. Cr. 197, 118 P. 160; Brummitt v. Higgins, 80 Okla. Cr. 183, 157 P. 2d 922; Castleberry v. Jones, 68 Okla. Cr. 414, 99 P. 2d 174; Fisk v. Venable, Judge, 61 Okla. Cr. 360, 68 P. 2d 425.

The jurisdiction of this court to act in this particular case is attacked on the ground that in no case may the Criminal Court of Appeals issue the writ of mandamus to a justice of the peace court, for the reason that its right to issue the writ is solely in aid of its appellate jurisdiction, and since no appeal will lie from the justice of the peace to the Criminal Court of Appeals, that mandamus may not issue to the justice of the peace court.

The Constitution of Oklahoma, article 7, section 2, provides that the appellate jurisdiction of the Supreme Court shall extend to all civil cases and to all criminal cases until a Criminal Court of Appeals with exclusive appellate jurisdiction in all criminal cases shall be established by law.

Under this authority granted by the Constitution, the first Legislature after statehood created the Criminal Court of Appeals as it exists today. Tit. 20 O. S. 1941 §§ 31-48. In said legislative act, the Criminal Court of Appeals was given exclusive appellate jurisdiction in all criminal cases appealed from the district, superior, and county courts, and all other courts of record that may be established by law. Tit 20 O. S. 1941 § 40. It was further provided that said court may issue such writs as may be necessary to exercise its jurisdiction. Tit. 20 O. S. 1941 § 41.

In Eubanks v. Cole, supra, this Court stated [4 Okla. Cr. 25, 109 P. 741] : damns to an inferior court is in the nature of appellate jurisdiction. The term ‘appellate/ in the constitutional phrase, ‘a Criminal Court of Appeals with exclusive appellate jurisdiction in criminal cases/ is not used in a restricted sense, but in its broadest sense, as embracing the power and jurisdiction to review and correct the proceedings of inferior courts in criminal cases, brought before it for determination, in the manner provided by law. The statute prescribes the procedure by which such proceedings shall be brought before this court, and among the other modes prescribed the writ of mandamus may be a proper proceeding. Snyder’s St. §§ 2016, 6224. The Supreme Court of the United States, with a few enumerated exceptions, has the only appellate jurisdiction under the Constitution of the United States, and Congress has not the power to confer original jurisdiction on it. Consequently that court cannot ordinarily issue an original writ of mandamus. Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60. However, the practice of issuing such writs as an exercise of its appellate jurisdiction and in aid of its appellate jurisdiction has been asserted and upheld in numerous cases.

“Upon a careful consideration of the law, we are of opinion that this court has the jurisdiction and power to issue the writ of mandamus where the same is a proper proceeding in a criminal case. As we view it, the proceeding in this case seeks only to invoke the exercise of the exclusive appellate jurisdiction of this court. This is a court of special jurisdiction, limited in the exercise of its powers exclusively to criminal cases, and it is undoubtedly true that, except in cases where under the law this court has original jurisdiction, all exercise of power in other cases must be in virtue of its appellate jurisdiction, and the writ of mandamus can be issued only in the exercise or in aid of its appellate authority. A man-

“In the case of Ex parte Crane, 5 Pet. 190, 8 L. Ed. 92, which was an application for a mandamus to the circuit court of the United States for the Southern district of New York, eommandng the court to review the settlement of several bills of exceptions, Chief Justice Marshall, delivering the opinion of the court, said:

“ ‘A doubt has been suggested respecting the power of the court to issue this writ. The question was not discussed at the bar, but has been considered by the judges. It is proper that it should be settled, and the opinion of the court announced. We have determined that the power exists. Without going extensively into this subject, we think it proper to state, briefly, the foundation of our opinion. In England the writ of mandamus is defined to be a command issuing in the king’s name, from the Court of King’s Bench, and directed to any person, corporation, or inferior court of judicature within the king’s dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of King’s Bench has previously determined, or at least supposes to be consonant to right and justice.’ Blackstone adds: ‘That it issues to the judges of any inferior court commanding them, to do justice according to the powers of their office, Avhenever the same is delayed; for it is the peculiar business of the Court of King’s Bench to superintend all other inferior tribunals, and therein to enforce the due exercise of these judicial or ministerial powers with which the crown or Legislature have invested them, and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice.’ 3 Bl. Com.”

The respondent is correct in his contention that our authority to issue the writ of mandamus is limited to those cases where it is in aid of our appellate jurisdiction, and that by statute appeals will only lie directly from courts of record to this court. However, where the proceeding is before a justice of the peace court, sitting as a committing magistrate for the purpose of holding a preliminary examination for one accused of committing a felony, the proceedings before said justice of the peace may be reduced to writing and filed with the transcript in the district court in case the accused is ordered held to await trial before the district court. If one accused of crime is convicted in the district court, and later appeals to this court, he may urge and present the question of alleged errors before the committing magistrate in connection with the preliminary examination which were a denial of his statutory or constitutional rights; thus it is apparent that although an appeal will not lie directly from a justice of the peace sitting as a committing magistrate to this court, the procedure before the justice of the peace is a step in the prosecution of an individual for a felony which may be reviewed by this court on appeal from a conviction in a court of record, and for that reason the Criminal Court of Appeals has authority to issue the writ of mandamus to a justice of the peace court when said court is sitting as a committing magistrate for the purpose of holding a preliminary examination for one accused of a felony.

It is certain from the historical background and the language used in the Constitution and statutes, that the framers of our Constitution and the Legislature intended, after the creation of the Criminal Court of Appeals, to vest it with exclusive jurisdiction in all criminal matters and to limit the Supreme Court to exclusive jurisdiction in all civil cases.

As was stated in Ex parte Owens, 37 Okla. Cr. 118, page 190, 258 P. 758, 782:

“Under the Constitution and laws of our state the two appellate courts are co-ordinate and exclusive in their respective appellate jurisdictions. Neither can interfere with nor control the other. Neither is sub-ordinate to nor dependent upon the other, but both are responsible to the people from whom they each derived whatever power they respectively possess.”

The Supreme Court of Oklahoma agrees with the view that this court has exclusive jurisdiction in all criminal cases, or in matters calling for the construction of penal provisions.

It was thus stated by them in the case of Smythe v. Smythe, 28 Okla. 266, 114 P. 257, 259:

“This being a criminal case this court has no jurisdiction to review the same. It may be that the appellate jursdiction of the Criminal Court of Appeals in this case may be invoked by the plaintiff in error. Further, in all criminal cases, or matters calling for the construction of penal provisions by proceedings in habeas corpus, the jurisdiction of that court should be invoked, rather than this.”

Although we have jurisdiction to issue the writ of mandamus to the respondent, the facts in the instant case do not justify the issuance of the writ.

The petitioner has never been in the jurisdiction of said justice of the peace court. Warrants of arrest have been issued for Hurst, but have not been served for the reason that he is outside of the State of Oklahoma serving a sentence of imprisonment in a federal penitentiary in another state. The justice of the peace is not authorized nor required to set a date for the preliminary examination of one accused of crime until after the accused has been arrested and brought before the committing magistrate for arraignment upon the complaint filed against him.

The petitioner evidently rests his case upon the Oklahoma constitutional provisions which state that “right and justice shall be administered without sale, denial, delay, or prejudice”, Article 2, section 6, and further “in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed.” Article 2, section 20.

Petitioner cannot be tried upon the question of his guilt or innocence of the felony charges filed against him until after he has had or waived a preliminary examination, and been ordered held to await trial in the district court. It is not possible to give him a preliminary examination until after he has been arrested and brought before the committing magistrate. When one accused of a felony is brought before a committing magistrate upon a warrant of arrest, he may do one of two things: He may demand a preliminary examination, or he may waive it.

We can see where the placing of a detainer against the petitioner might result in depriving him of certain privileges in the penitentiary, and might even as stated by the petitioner result in the refusal of the federal authorities to consider him for a parole. However, these are matters under the control and regulation of the federal authorities and one which is beyond our control. Our only concern is whether the respondent justice of the peace court has proceeded in a manner required by law. It is apparent that he has, and for that reason the writ of mandamus is denied.

BRETT and POWELL, JJ., concur.


text:
    HOOD v. STATE.
    No. A-11069.
    Jan. 18, 1950.
    (213 P. 2d 883.)

      Frank Leslie, Tulsa, for plaintiff in error.

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

Homer Gafford and Jacqueline Hood were charged in the court of common pleas of Tulsa county with possession of nine pints of tax-paid whisky. They filed a motion to suppress, with was overruled, counsel then filed a motion for severance, praying that the defendants be tried separately, which was overruled, and thereafter defendants were tried before a jury, and neither testified. At the close of the state’s case, each defendant demurred to the evidence, and Homer Gafford’s demurrer was sustained, but the demurrer of Jacqueline Hood was overruled. The jury found said defendant guilty of possession of intoxicating liquor as charged and fixed her punishment at 30 days imprisonment and a fine of $250.

For reversal of this case defendant Jacqueline Hood sets up 17 assignments of error in petition in error, which are argued together.

The Attorney General has orally expressed to the court his intention not to file a brief because of the strength of the defendant’s position, both from the evidentiary as well as the legal standpoint.

Counsel for defendant contends that the court erred by failure to suppress the evidence, contending that it was obtained by illegal search and thus violated art. 2, sec. 30, of the Bill of Rights. On hearing of the motion, the search warrant involved was introduced in evidence by defendant, and Jacqueline Hood and Homer Gafford were set out therein as living in a four or five room house at 707 North Quincy Street, Tulsa. The return shows that search was made of the premises described and that warrant was served on one Claudene Ponder, and nine pints of tax-paid whisky found in her possession.

The evidence of Roy Rains and Carl Teenor, deputies, called by defendant in support of motion to suppress, discloses that they and other officers went to the address set out in the warrant. They did not find the defendants at the address, but found the place occupied by Claudene Ponder. They found one room at the back padlocked. Mrs. Ponder disclaimed having a key, but advised the offices where they might obtain a key, and Deputy Teenor went next door at 709 North Quincy street, and there got a key. The defendant Jacqueline Hood lived there, and she gave the deputy the key sought. He did not have a warrant for the search of 709 North Quincy. The key obtained opened the lock to a room of the house described in the search warrant. The room contained what the officers described as “junk”, the nine pints of whisky and empty whisky cartons. Deputy Teenor stated that they took the whisky and advised Mrs. Ponder that they would notify her if they needed her. There was no evidence on motion to suppress as to any further connection of defendants with the room at 707 North Quincy.

The defendant cannot complain of the evidence obtained by authority of the search warrant in question for the reason that, on motion to suppress, the evidence disclosed that the property searched was not occupied or under the control of defendant, and there was no evidence to connect defendant with the room except the possession of a key to the lock in question. The defendant did not deny having a key and readily delivered the same to the officer without search on his part.

Of course, the warrant in question calling for search of 707 North Quincy street could not be used as a basis for search of 709 North Quincy Street. This court decided that issue in Scogin v. State, 61 Okla. Cr. 348, 68 P. 2d 111, and Flowers v. State, 88 Okla. Cr. 252, 202 P. 2d 233, but the key was not mentioned in the motion to suppress, the liquor was not obtained at any address other than the one mentioned in the search warrant, and it is not necessary to determine whether or not the defendant was assumed to have delivered the key to the officer under coercion, as argued, it not being to any room in defendant’s residence. This court has many times held that the constitutional provision guaranteeing immunity from unlawful search and seizure is personal, and one accused will not be heard to object that search of property or premises of a third person is a violation of his constitutional rights. Plumlee v. State, 78 Okla. Cr. 201, 146 P. 2d 139, and Love v. State, 83 Okla. Cr. 403, 177 P. 2d 846. The officers had authority to break the lock at 707 North Quincy street, and did not have to bother with seeking a key.

The case came on for trial May 17,1948, and the state was given permission over the objections of the defendant to endorse the name of Claudene Ponder as a witness. The state first used Deputies Teenor and Rains, whose evidence on direct examination was substantially the same as on motion to suppress, except that it was brought out that there was another lady and also some children at Mrs. Ponder’s home when they searched it. The evidence of Deputy Wisenhunt brought out nothing additional.

The state called Claudene Ponder, who testified that she lived at 707 North Quincy, that she rented from Dorothy Lane Hood and paid her rent at an address on North Victor; that the officers on February 3, 1948, searched her home and found nine pints of whisky in a room that was locked with a padlock, that the defendant Jacqueline Hood, who lived next door, had some things stored in the room consisting of a white ice box, card table, her little boy’s wagon and some clothing. Witness further testified that her husband also had a key to the room, had a tool box in there along with some other things, including the whisky in question. She disclaimed that she and defendant visited back and forth, and denied that any one with a key to the locked room could have gone in and out when she would not be at home, testifying that there was but one way to get to the room, and that was through the back and front doors to her home, and that she always locked her doors on leaving. She denied having a back porch and denied that other persons had a key.

The state sought to impeach this witness on the ground of surprise. The court permitted this over the objections of the defendants, although it was by the county attorney admitted that when he questioned the witness just prior to calling her as a witness, and being the first time he had talked with her, that he discovered that witness would testify as she subsequently did. This is stipulated in the case-made. But the court permitted the state to ask its witness leading questions and impeaching questions, and two- of the officers were permitted to testify that Mrs. Ponder had told them that Jacqueline Hood had a key to the room and that the Hoods reserved the room. If such was so they were thus attempting to get hearsay testimony before the jury, as they knew what Mrs. Ponder would testify to prior to her taking the witness stand.

In Bond v. State, 90 Okla. Cr. 110, 210 P. 2d 784, 785, this court held:

“When a party places a witness upon the stand with notice that such witness 'will testify adversely to such party, he cannot impeach the witness in any manner.”

See also Flauhaut v. State, 66 Okla. Cr. 417, 92 P. 2d 587, and Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57.

At the close of the evidence the defendants demurred, setting up failure of the state to show that either of the defendants had possession of the whisky, and alleging that the state proved that the whisky was owned by the husband of Mrs. Ponder. The demurrer was sustained as to Homer Gaff or d, but overruled as to Jacqueline Hood. The demurrer should have been sustained as to Jacqueline Hood. The only evidence that would in any way implicate her was that she had a key to the room at 707 North Quincy street, where she had household articles stored. The uncontradicted evidence offered by the state shows that the whisky was owned by a Mr. Ponder; that Ponder had a key and that Jacqueline Hood rarely visited the storage room where the whisky was found, and could not even enter the room until admitted to the house at 707 North Quincy by the occupants, who had control.

Other errors are pointed out, particularly concerning the instructions to the jury, but it is unnecessary to consider the other specifications of error, there not having been sufficient competent evidence for the jury to consider.

For the errors pointed out, the conviction is reversed and the cause remanded.

JONES, P. J., and RRETT, J., concur.