text:
    LILLIAN WELDRIDGE BRADLEY v. STATE.
    No. A-10777.
    Dec. 10. 1947.
    (187 P. 2d 677.)
    Harold McArthur, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   BRETT, J.

This prosecution arose out of the admitted killing of Walter Bradley, in Tulsa county, Okla., on December 19, 1944, by the defendant Lillian Weldridge Bradley, common-law wife of the deceased, Bradley. In the information the defendant was charged with murder, tried, convicted of manslaughter in the first degree, and sentenced to 25 years in the penitentiary. The proof shows that she shot Walter Bradley, the deceased, five times with a .38 calibre pistol; once at the top of the head on the right side, again on the back side of the head at the base of the brain, another time at the back of the neck between the fifth and sixth vertebrae, a fourth time at the back of the left shoulder, and a fifth time at the right temple; from which wounds he instantly died. All of these wounds were inflicted while the deceased was lying in bed with the covers pulled up above his shoulders and with his face to the wall. The defendant contended that they had been quarreling and that the deceased threatened to kill her as he had killed Charlie York. She said that she was scared that if he got the gun he might kill her. She said that they both reached for the gun, under his pillow; that she beat him to it, jumped up and started firing the pistol. To the contrary, the evidence of disinterested witnesses who were called to the scene of the killing immediately thereafter, said the bedcovers disclosed no evidence of any struggle, the sheets and covers were undisturbed except for the blood upon them. The defendant admits that both of them had been drinking some time before the killing. The defendant testified that the deceased had threatened to kill her on numerous other occasions, but failed to do anything about it; not even attempting to get his gun except on this fatal occasion.

The evidence of the defendant’s guilt is conclusive. No complaint is made of substantial errors occurring at the time of the trial. In this connection, counsel for the defendant says: “Counsel is not unmindful that under the evidence in this case there are no substantial errors which are prejudicial enough to warrant a reversal of the cause.” However, he contends for modification of the sentence herein imposed upon the proposition that counsel for the state propounded a question on cross-examination regarding a fight in which the defendant was engaged subsequent to the charge upon which she is being tried, and says that that question influenced the verdict of the jury. This contention is based upon the following portions of the record, to wit: •

“Q. Let me ask you this question. Isn’t it true that approximately six months ago, since the time you have been charged with this crime here, that you have got in an argument and fight with some man, at approximately 2 o’clock in the morning, and you went to Dr. Motley’s office with a partially severed jugular vein, isn’t that true? Mr. McArthur: We object to that as incompetent, irrelevant and immaterial. A. I did, but— The Court: Overruled, she has answered.”

The foregoing question is clearly incompetent and the objection thereto should have been sustained and the jury admonished by the court to give no consideration whatsoever to the question and its implications, but, it is conceded by the defendant that at most it amounts to nothing more than a technical error. Upon this technicality she seeks to obtain a modification of judgment and sentence from 25 years to a shorter term. The answer to this contention may be found in Harkins v. State, 14 Okla. Cr. 440, 172 P. 469, wherein this court said:

“The fact that the county attorney, on cross-examination of the defendant, asked a few questions which called for incompetent answers, does not of itself establish prejudicial error.”

In the body of the opinion, of the above case, the court, after laying down the general proposition that questions on cross-examination asked for the purpose of prejudicing the minds of the jury by suggesting improper matter for their consideration, may amount to such misconduct as to require the granting of a new trial or the reversal of the case, stated the exception to the rule as follows:

“A question or two was asked the defendant which called for manifestly incompetent answers, but this court would not be authorized to reverse this judgment of conviction merely on this ground where the evidence of guilt is so convincing * * *. We are firmly of the opinion that the record does not establish that the defendant was prejudiced by any ruling of the trial court in this respect, or that the misconduct complained of was so persistent or malicious as to require a reversal of the judgment.”

See Murphy v. State, 72 Okla. Cr. 1, 112 P. 2d 438, 455, wherein this court said:

“It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial right, by the commission of error.”

See, also, Moncrief v. State, 53 . Okla. Cr. 308, 11 P. 2d 538, 539, wherein this court said:

“While the cross-examination went too far and was improper as to some of the questions, yet, in the light of the whole record, we cannot say that it is such an error as requires a reversal of the case.”

That is precisely the situation confronting us in the case at bar. A complete answer to the contention herein, upon which modification of the judgment and sentence is sought, is to be found in part of the language in Harris v. State, 14 Okla. Cr. 489, 173 P. 958, 963, as follows, to wit:

“The alleged errors are technical, but this court is frank to admit that certain things occurred during the trial of this case which should not have occurred; but the doctrine has been thoroughly established that where evidence on the part of the state makes out a case of coldblooded murder, and under defendant’s own testimony he is at least guilty of manslaughter in the first degree, and the conviction is only for manslaughter in the first degree, the judgment of conviction under such circumstances will not be set aside, although certain technical errors occurred during the trial, the defendant being deprived of no constitutional or statutory right. Fitzsimmons v. State [14 Okla. Cr. 80], 166 P. 453. * * *
“If there is any miscarriage of justice in this case, it was because the jury should have returned a verdict of guilty of murder instead of manslaughter.
“* * * where the evidence shows that the defendant killed the deceased, an unarmed man, by shooting him six times, once in the side and five times in the back, merely because he was afraid of him and apprehended that he might get a shotgun and shoot him, it will be useless for him to appeal and ask a reversal of a manslaughter conviction upon technical grounds.”

A situation similar to the foregoing is presented in the case at bar. Here, as in that case, the evidence on the part of the state, in our opinion, makes out a case of coldblooded murder. Under the defendant’s own testimony she is at least guilty of manslaughter in the first degree. Where, as here, the defendant is not deprived of any constitutional or statutory right, but bases her contention for modification upon one technical error, standing alone, we do not believe we would be justified in the slightest in granting the modification herein sought to be obtained. Therefore, in view of the defendant’s unquestionable guilt, in light of the whole record, the ends of justice would not permit a modification of the judgment and sentence herein. While under the provisions of Title 22 O. S. A. § 1066 we are authorized to modify judgments appealed from, this court has repeatedly held that such modification will be exercised as a judicial act only where justice requires. Merritt v. State, 55 Okla. Cr. 87, 25 P. 2d 340; Anthony v. State, 12 Okla. Cr. 494, 159 P. 934; Oliver et al. v. State, 55 Okla. Cr. 7, 23 P. 2d 718; Bright v. State, 76 Okla. Cr. 67, 134 P. 2d 150, 154, wherein this court said:

“It is not often that this court will,modify a judgment and sentence, and it is only when the ends of justice demand that it will be done.”

We are not confronted in the case at bar, with a situation where the ends of justice demand a modification of the judgment and sentence. Therefore, the sentence is affirmed.

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


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    ROY HARRELL v. STATE.
    No. A-10775.
    Dec. 10, 1947,
    (187 P. 2d 676.)

      C. B. Wood and A. O. Manning, both of Fairview, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., and Ollie G. Gleason, County Atty., Major County, of Fairview, for defendant in error.
   BAREFOOT, P. J.

Roy Harrell was charged in the county court of Major county with the offense of unlawful possession of intoxicating liquor for the purpose of sale; was tried, convicted, and his punishment fixed at 30 days in the county jail, and a fine of $50. From this judgment and sentence he has appealed.

The defendant sets out three specifications of error, and then states that the assignments can be grouped and presented under one specification — that to present them separately would only result in repetition.

The assignment of error complained of is:

“That the court erred in making prejudicial statements to the jury after the cause had been closed and fully argued by both sides, by orally instructing the jury that the court did not want a seven-minute verdict in this case.”

The record discloses that after the case had been concluded, the jury instructed and the case finally closed, the court admonished the jury, as they were being placed in the custody of the bailiff: “I do not want any seven-minute verdict in this case.”

The defendant filed a motion for new trial, in which he set out as error the remarks of the court that he “did not want any seven-minnte verdict in this case”; and evidence was presented in support of the motion.

The record also shows that on the previous day, in a case involving the same offense, and on which three of the jurors in this case sat, the jury had returned a verdict of “not guilty” after being out only six minutes.

Attached to the motion for new trial was an affidavit by one of the jurors who had been a member of the previous jury, and in this affidavit it was stated:

“From the statement of the court, it was understood that the court was dissatisfied with the verdict of not guilty in the case of Oklahoma v. Eaymond Unwin, and that he wanted a verdict of guilty in the case on trial.”

The trial court made a statement, attempting to explain his remark, and the reason therefor, stating that he only intended to inform the jury that his instructions were not in the order they should be, and that it would, therefore, take a longer time to consider them. But no such explanation was given the jury, and we are of the opinion that the statement was such that it could have, and probably did, convey to the jury the thought as expressed in the affidavit of the juror.

Jurors are easily influenced by the remarks of a trial judge, and the greatest care should be observed that nothing is said that can by any possibility he construed as an expression of the court’s views respecting the merits of a criminal case. Courts cannot he too circumspect in their efforts to avoid allowing jurors to discover the opinion of the judge as to the weight of the evidence, or the guilt or innocence of a defendant. Garrett v. State, 74 Okla. Cr. 78, 123 P. 2d 283; Yeargain v. State, 76 Okla. Cr. 356, 136 P. 2d 696: Hill v. State. 76 Okla. Cr. 371. 137 P. 2d 261.

We have not overlooked the rule, often announced by this court, that a juror will not be permitted to impeach the verdict by affidavit after the verdict has been returned; but from a careful examination of the record in this case, we cannot escape the conclusion that the defendant was prejudiced by the remarks of the trial court, and that the judgment in this case cannot be permitted to stand; and, this altogether without regard to the affidavit of the juror, and without regard to the merits of the question of the guilt or innocence of the defendant. It is our opinion that the statement of the trial court was clearly prejudicial to the rights of the defendant, and prevented that fair • and impartial trial contemplated by the law.

The judgment and conviction is therefore reversed.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    J. D. GENTRY v. STATE.
    No. A-10785.
    Dec. 10, 1947.
    (187 P. 2d 1010.)

      Wm. H. Lewis, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The single proposition presented by this appeal is whether the evidence is sufficient to sustain the conviction of defendant for unlawful possession of intoxicating liquor.

On April 4,1946, certain policemen of Oklahoma City, armed with a search warrant, went to apartment No. 3 at 15 N. W. 5th street in Oklahoma City, which was occupied by defendant and his wife. Apartment No. 3 is one of five apartments at this address. In a search of the premises, the officers found one pint of tax-paid whisky with the seal unbroken in defendant’s apartment, and in the backyard of the apartment building, under an old car body, they found three pints of tax-paid whisky, two of which were identical in description with the one found in the apartment. The defendant admitted that the one pint of whisky found in his apartment belonged to him, but made no statement concerning the three pints of whisky found under the old car in the backyard. The state also introduced evidence that a Federal Retail Liquor Dealer's License had been issued to J. D. Gentry at 15 N. W. 5th, Oklahoma City, by the Collector of Internal Revenue, showing the payment of the special Liquor Dealer’s Tax to the United States Government for the period January 1, 1946 to June 30, 1946. No evidence was offered on behalf of defendant.

It is contended by counsel for defendant that there was no connection shown between the defendant and the three pints of whisky found' in the backyard, and that eliminating these three pints of whisky from consideration, there was an insufficient quantity in defendant’s possession to make a prima facie case against him and that therefore the evidence is insufficient to sustain the conviction.

This court has held that where the proof of the state discloses that less than a quart of whisky is found in the possession of the accused, it is not a sufficient quantity to make a prima facie case, and where the state fails to introduce any further evidence in an attempt to establish the unlawful intent with which the- possession is had, the court should sustain a demurrer to the evidence and order the defendant discharged. Thomas v. State, 70 Okla. Cr. 404, 106 P. 2d 836.

There would be considerable merit to the argument presented on behalf of defendant, if it were not for the fact that the evidence of the state showed that the defendant had been issued a Federal Retail Liquor Dealer’s Certificate showing the payment of the special Liquor Dealer’s tax to the Federal Government.

37 O. S. 1941 § 81 provides:

“The payment of the special tax required of liquor dealers by the United States by any person within this State, except local agents appointed as hereinbefore provided, shall constitute prima facie evidence of an intention to violate the provisions of this Chapter.”

This case is analogous to Sparks v. State, 77 Okla. Cr. 428, 142 P. 2d 377, 378, in which case the arresting officers found the defendant in possession of one and one-half pints of whisky and also a Federal Retail Liquor Dealer’s License such as was issued to the defendant in the instant case. In disposing of that case, it was stated:

“This court is very hesitant about affirming a conviction for unlawful possession of intoxicating liquor where the amount found in possession of the offender is less than one quart and were it not for all the other attendant circumstances, as hereinabove outlined, we would not hesitate to reverse this case because of the insufficient quantity seized by the officers on the occasion of their raid.
“An intent to sell is the gist of the offense of unlawful possession of intoxicating liquor. The possession in excess of one quart is prima facie evidence of an intent to sell under our statute, 37 O. S. 1941 § 82, but that does not mean that a conviction may not be had where there is possession of less than one quart.
“We also have a statute which provides that the payment by the defendant of the special liquor dealer’s tax to the United States Government, which may be shown by the possession of a federal retail liquor dealer’s license, constitutes- prima facie evidence of an intent to sell, where the accused is found in possession of intoxicating liquors. 37 O. S. 1941 § 81. * * *
“In view of these circumstances, we are impelled to the conclusion that the evidence is sufficient to sustain the conviction.”

The judgment of the court of common pleas of Oklahoma county is affirmed.

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


text:
    Ex parte E. O. SMITH.
    No. A-10899.
    Dec. 15, 1947.
    (187 P. 2d 1003.)

      Sigler & Jackson, of Ardmore, for petitioner.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Charles A. Milor, County Atty., of Marietta, for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner, E. O. Smith, seeks to secure his release from confinement in the State Penitentiary.

This petitioner was charged together with Louis Beck and H. I. Campbell, with having committed the crime of perjury in the trial of the case of one Alex Bawls in the district court of Love county, upon a charge against the said Rawls of attempted rape. All three of the men were arraigned at the same time and the procedure followed was identical in each case.

The petition alleges in substance that the petitioner stands committed to the State Penitentiary to serve a term of four years by reason of a judgment pronounced by the district court of Love county, on March 30, 1946, upon a plea of guilty allegedly entered by the petitioner to the crime of perjury.

The petition alleges that the conviction and sentence is void for the following reasons, to wit: That petitioner was arrested on March 29, 1946; that he was ignorant of court proceedings and had never been in court before in his lifetime; that in a consultation with the county attorney, he was told that if he would plead guilty he would be given a suspended sentence, and that if he did not plead guilty he would be convicted and serve a term in the State Penitentiary. That he was locked up in jail and was not permitted to communicate with his family or any one else; that when he was taken before the court he was not represented by an attorney, and that he had no money with which to employ an attorney, and did not know that he could have an attorney appointed to represent him. That he pleaded guilty for these reasons, but that he was not guilty of the crime charged.

At the hearing before this court, counsel for defendant introduced as evidence in support of the petition the affidavit of the petitioner together with the affidavits of his father and his wife, which affidavits read as follows:

“My name is E. O. Smith. I am 30 years old and have lived in Love county, Oklahoma, all my life and I live with my father. I was never arrested prior to the time I was arrested upon the charge which I am now confined in the penitentiary. I was arrested on March 29 at about 10 o’clock and placed in jail. I had no attorney and did not have any money with which to employ an attorney and did not know that I was entitled to have an attorney represent me. After 1 was arrested I was taken before the county attorney of Love county, Oklahoma, and he then informed me that if I plead guilty that I would get a suspended sentence and if I refused to plead guilty that I would have to serve a term in the penitentiary. I had no way of knowing whether this was right or wrong and I thought he knew what he was talking about and I then plead guilty. When I was taken before the justice of the peace on Saturday morning I was not represented by any lawyer and I was not informed that I was entitled to one. At about 2 o’clock on Saturday I was taken before the district judge and was not then informed that I was entitled to an attorney or that one would be appointed for me if I had no money with which to employ an attorney. I would not have plead guilty had I not believed what the county attorney told me and I plead guilty because he informed me that I would get a suspended sentence if I plead guilty and not because I was guilty. I had no opportunity to consult my father or anyone else and did not consult with anyone prior to the time I entered my plea of guilty. I was kept in jail from the time I was arrested until I plead guilty, except for the time I was taken to the county attorney’s office.”
“My name is Dan Smith. I am 61 years old and I live at Thackerville, Love county, Oklahoma, where I have lived practically all my life. I am the father of E. O. Smith and I was well acquainted with the sheriff of Love county, Oklahoma, the county attorney of Love county and the district judge. I understand that E. O. Smith was arrested on or about the 30th day of March, 1946, and that he plead guilty on that date and was sentenced to the penitentiary for a period of four years. I bad no notice -whatever of his arrest and had no opportunity to talk to him prior to the time he plead guilty. As soon as I heard of his arrest I went to see him and he then informed me that prior to the time he plead guilty in this case that the county attorney had informed him that if he would plead guilty that he would recommend a suspended sentence and that is the reason why he plead guilty.”
“My name is Carmell Smith and I live in Marietta, Oklahoma. My husband, E. O. Smith, was arrested on Friday afternoon March 29, 1946, and I did not know of his arrest until later that night and the next morning I visited him in the jail and he then informed me that he was going to receive a suspended sentence and that he would be home that day. This was before he plead guilty and I only had an opportunity to talk to him for a few moments in the presence of the sheriff and his deputy.”

In support of the commitment and to refute the statements of the defendant, the state introduced in evidence the minutes of the court proceedings entered at the time of the arraignment of the accused of the district court, which reads:

“Entered Plea of Guilty after being duly arraigned, Court advised him he had a right to reserve plea for 24 hours, and a right to be represented by Counsel, all of which defendant waived and entered his plea of guilty. Court advised him he had a right to have sentence deferred for 48 hours, but he could also waive that right and the Court would pass sentence immediately; to all of which he agreed.
“Therefore the Court sentenced the defendant to spend 4 years in the State Penitentiary at McAlester, Oklahoma.”

Also introduced in evidence by the state was the affidavit of Judge J. I. Goins, who was the district judge who pronounced judgment and sentence against the petitioner upon Ms plea of guilty. In said affidavit, the judge stated that at the time of the arraignment of the accused, he was fully informed by the court as to his rights under ■ the law. He was told that he had a right to talk with a lawyer before entering his plea and that he had the further right to reserve his plea for 24 hours, but that he had the privilege, if he wished, to waive those rights and enter his plea at that time of either guilty or not guilty. That the defendant expressed a desire to waive his right to talk to an attorney, and the right to delay his entering his plea of 24 hours, and entered his plea at that time of guilty to the crime charged in the information and asked that sentence be pronounced at once. He was thereupon sentenced to serve a term of four years imprisonment in the State Penitentiary.

George Roberson, deputy sheriff of Love county, testified that he was in the office of Charles A. Miller, county attorney, on March 29, 1946, when the said Charles A. Milor was talking to E. O. Smith. The county attorney stated to E. O. Smith that he had obtained evidence as to his guilt of perjury. E. O. Smith admitted his guilt and stated that he was not in the western part of Love county on the 7th day of February, 1946, as he swore at the trial of A. R. Rawls, but that he was at the city hospital in Ardmore where his wife was confined. That Smith asked at that time to make a statement and tell about the whole affair and said he would feel better about it. No threats, duress or promises of any kind were made by C. A. Milor or any one else to secure a confession from the said E. O. Smith. The county attorney advised the said E. O. Smith during the confession, after a written statement had been taken by the secretary of the county attorney, that if he wished an attorney to represent him that the court would appoint one for him. That at no time during the time in which E. O. Smith was in the office of the county attorney did the county attorney make any promise to him that he would receive a suspended sentence if he would enter a plea of guilty. The deputy sheriff further testified that he was present the next day on March 30, 1946, when all three of the defendants, Smith, Beck and Campbell, appeared before Judge Goins and entered their plea of guilty. The witness corroborated the affidavit of' Judge Goins as to the accused being advised of all their rights before they entered their pleas of guilty, but that Smith and each of the other men told the court that they did not want an attorney, but that they wanted to enter their pleas of guilty and get it over.

Spyker Black, justice of the peace, Marietta district, Love county, Oklahoma, testified that he was present at the time E. O. Smith made a sworn statement to the county attorney concerning his guilt of perjury. That at no time while Smith was in the county attorney’s office did the county attorney promise him that he would receive a suspended sentence, but on the contrary the county attorney told the accused that the judge would fix his punishment at some period of time from 2 to 20 years. That after the stenographer had prepared the statement as given to her by E. O. Smith, the county attorney asked him to read it and as to whether those were the facts and that if he wanted to sign as his own free will and act that he could do so. That Smith signed the statement. That later all three defendants, Smith, Campbell and Beck were arraigned before him as justice of peace upon a complaint charging them with perjury; that Dan Smith, the father of E. O. Smith, accompanied him to the office and was present throughout all the proceedings. That he advised the defendants of their various rights, including the right to have 24 hours before making a plea. That they could talk to an attorney before entering a plea and could have a preliminary examination, but that each of said defendants wanted to enter a plea of guilty and have the proceedings sent on up to the district court.

Ruth Glaseo, the stenographer who took the written statement of the defendants, corroborated the other witnesses as to the circumstances surrounding the taking of the written statement and specifically stated that no threats nor promises of any kind were made to secure the confession or to induce a plea of guilty.

Charles A. Milor, county attorney of Love county, swore that:

“On the 29th day of March, 1946, in company with one Orren Wester, Sheriff of Love county, I went to the Ardmore Hospital where I obtained conclusive evidence that E. O. Smith had committed perjury in the trial of Alex Rawls. We returned to Marietta that morning and arrested E. O. Smith, about 8 o’clock. E. O. Smith was brought to my office. I showed him the evidence we obtained of his guilt of perjury. Smith was brought to my office by Deputy Sheriff George Robinson of Love county, and at no time was George Robinson out of my presence. E. O. Smith admitted his guilt in the face of this conclusive evidence, which showed he was not in the western part of Love county, as he had testified, but that he was in Ardmore at the hospital with his wife. He asked to make a statement and make a clean breast of the whole thing; said he would feel better about it. His statement was taken by Lavon Griffith, and Speaker Black, George Robinson and myself were present. No threats, duress or promises were used as inducement to secure this confession. In fact, the said E. O. Smith was warned that he would not receive a suspended sentence under any circumstances. He was advised of his right to counsel and to trial, which he said that he did not want. He was returned to the jail and visited by his wife and members of his family. George Eobinson, myself and Dan Smith, the boy’s father, were present at one visit, just before he went before the justice of the peace, at which time I advised his father that it would be impossible for me to recommend a suspended sentence for E. O. Smith. He was advised of his right to counsel by his father at that time. He was then advised by the justice of the peace at the preliminary hearing of all his rights, and the complaint was read to him. At no time was a suspended sentence mentioned by myself. He was also advised that if he could not employ an attorney, one would be appointed for him by the court. He was so advised by the justice of the peace and the district judge, J. I. Goins. He signed a confession and was taken before district judge J. I. Goins in the latter part of the afternoon of the 30th approximately at five o’clock. His father and a number of spectators were present. He there entered his plea of guilty after being fully advised by the court.
“Louis Beck was picked up on the 29th at approximately 9 o’clock and brought to my office. I advised him of the fact that E. O. Smith had entered a plea of guilty and signed a confession. I at no time suggested that he enter a plea of guilty, nor did I ask him to make a confession. He entered his plea of guilty in the justice court and in the district court after being fully advised by both judges of all of his rights.
“H. I. Campbell was arrested by the sheriff and George Eobinson, and brought to my office, where he voluntarily made a full confession of guilt. No threats, duress or promises were used as inducement to secure his confession. He made this confession after being fully advised by myself as to all of his rights.
“H. I. Campbell, Louis Beck and E. O. Smith Avere all taken before the justice of the peace and the district judge at the same time, and each and every one of them were advised of their right to an attorney, and at no time were they advised that there was any possibility of their receiving a suspended sentence.”

It has been held that the remedy' of habeas corpus is available wherever it has been found that the court in which the petitioner was convicted had no jurisdiction to try him, or that in its proceedings petitioner’s constitutional rights were denied. Ex parte Meadows, 70 Okla. Cr. 304, 106 P. 2d 139; Ex parte Stinnett, 71 Okla. Cr. 184, 110 P. 2d 310.

In Ex parte Meadows, supra, this court held [70 Okla. Cr. 304, 106 P. 2d 141]:

“In a felony case, where the defendant is unable to employ counsel and is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law.
“A judgment of conviction of one who did not effectively waive his constitutional right to the assistance of counsel for his defense is void as having been rendered without jurisdiction.
“Where a disputed question arises as to what occurred upon arraignment of one accused of a crime, this court will give great weight to the recitation in the minutes of the court proceedings as to what occurred.”

A strong presumption of legality attaches to any judgment and sentence which is regular upon its face. To overcome such presumption in a proceeding in habeas corpus in which it is alleged that in the proceeding before the trial court at the time the judgment and sentence was pronounced, the court lost jurisdiction to pronounce the sentence by reason of the denial of some of the constitutional rights of the accused, the burden is upon the petitioner to establish his right to release by clear and convincing proof.

In the instant case there is a conflict in the evidence of the petitioner and that of the state. There is also a conflict in the statement of the petitioner and that of his wife in that the petitioner swore that he was not allowed to see or communicate with any person prior to the time he entered his plea of guilty; while his wife testified that she talked to the petitioner before he was taken before the justice of peace at the time of the preliminary examination.

After a thorough consideration of all of the facts and circumstances surrounding the arrest, the filing of charges, the arraignment of the accused, the plea of guilty and sentence, we are of the opinion that the petitioner has failed to sustain the burden of showing by clear and convincing proof that in the proceedings before the district court, the court lost jurisdiction to pronounce sentence by reason of a failure to advise the defendant of his constitutional rights in connection with the charge which had been filed against him.

The writ of habeas corpus is therefore denied.

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


text:
    Ex parte H. I. CAMPBELL.
    No. A-10898.
    Dec. 15, 1947.
    (187 P. 2d 1008.)

      Sigler & Jáckson, of Ardmore, for petitioner.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Charles A. Milor, County Atty., of Marietta, for respondent.
   JONES, J.

This is an original proceeding in habeas corpus wherein the petitioner, H. I. Campbell, seeks to secure his release from confinement in the State Penitentiary.

The petitioner ,was charged by information filed in the district court of Love county with the crime of perjury. He together with one E. O. Smith and Louis Beck were charged with having committed the crime of perjury in the trial of the case of one Alex Bawls, in the district court of Love county, upon a charge against the said Bawls of attempted rape.

The petition for habeas corpus is in identical language with that considered on this day in the case of Ex parte Smith, 85 Okla. Cr. 299, 187 P. 2d 1003. The facts concerning the arrest and plea of guilty by the defendant are substantially the same in each of the cases of E. O. Smith, Louis Beck and H. I. Campbell, and the comment we made in the disposition of the case of Ex parte Smith, supra, applies to the disposition of this case.

The writ of habeas corpus is denied.

BABEFOOT, P. J., and BBETT, J., concur.


text:
    Ex parte LOUIS BECK.
    No. A-10897.
    Dec. 15, 1947.
    (187 P. 2d 1009.)

      Sigler & Jackson, of Ardmore, for petitioner.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Charles A. Milor, County Atty., of Marietta, for respondent.
   JONES, J.

This is an original proceeding in babeas corpus wherein tbe petitioner, Louis Beck, seeks to secure bis release from confinement in tbe State Penitentiary.

Tbe petitioner was charged by information filed in tbe district court of Love county with tbe crime of perjury. He together with one E. O. Smith and H. I. Campbell were charged with having committed tbe crime of perjury in tbe trial of tbe case of one Alex Rawls in tbe district court of Love county, upon a charge against tbe said Rawls of attempted rape.

Tbe petition for habeas corpus is in identical language with that considered on this day in the case of Ex parte Smith, 85 Okla. Cr. 299, 187 P. 2d 1003. Tbe facts concerning tbe arrest and plea of guilty by the defendant are substantially tbe same in each of tbe cases of E. O. Smith, H. I. Campbell and Louis Beck, and tbe comment we made in the disposition of tbe case of Ex parte Smith, supra, applies to tbe disposition of this ease.

Tbe writ of habeas corpus is denied.

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


author: BABEFOOT, P. J.

text:
    JESS BIRD v. STATE.
    No. A-10843.
    Dec. 17, 1947.
    (188 P. 2d 242.)

      P. J. Lucas, of Tulsa, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and Sim T. Carman, County Atty., Osage County, Oklahoma, of Pawhuska, for defendant in error.
   BABEFOOT, P. J.

The defendant, Jess Bird, was charged with the crime of burglary in the second degree, second offense, in the district court of Osage county; was tried, found guilty, and his punishment assessed at eleven years in the State Penitentiary at McAlester, and he has appealed.

Defendant’s first proposition for a reversal of this case is:

“The verdict in this case is contrary to the law and the evidence in that the testimony of the accomplices for the State in this case was not corroborated in the sense of the law sufficient to connect the defendant Avith the crime charged.”

Defendant was charged jointly with Charles Cordrey, LeRoy Kirk, and Jack Eldridge with breaking into a certain brick building in the town of Hominy, Osage county, occupied and used by A. M. Millsaps as a grocery store and market, and taking therefrom 800 pounds of sugar and some cash. It is further alleged in the information that defendant had on May 6, 1940, entered a plea of guilty to the crime of burglary in Osage county, and had been sentenced to serve a term of two years in the Oklahoma State Penitentiary.

At the trial of defendant, his codefendants LeRoy Kirk and Jack Eldridge both testified for the state. Both of these codefendants testified that defendant participated with them and Charles Cordrey in burglarizing the Millsaps store, and taking the sugar therefrom, as alleged.

Defendant’s first contention is based on 22 O. S. 1941 § 742, which provides:

“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.”

The construction of this statute has been before this court upon many occasions. It would unduly lengthen this opinion to attempt to discuss the cases, and we merely cite a few, which fully announce the law as applied to this statute : Cole v. State, 61 Okla. Cr. 57, 65 P. 2d 547; Hufford v. State, 61 Okla. Cr. 141, 66 P. 2d 529; Howerton v. State, 65 Okla. Cr. 457, 88 P. 2d 904; Spivey v. State, 69 Okla. Cr. 397, 104 P. 2d 263; Scott v. State, 72 Okla. Cr. 305, 115 P. 2d 763; Blumhoff v. State, 72 Okla. Cr. 339, 116 P. 2d 212; Richardson v. State, 76 Okla. Cr. 101, 134 P. 2d 375; Plaxico v. State, 78 Okla. Cr. 353, 148 P. 2d 201; Anderson v. State, 79 Okla. Cr. 194, 153 P. 2d 245, and the cases cited therein.

As we said in the case of Bichardson v. State, supra, [76 Okla. Cr. 101, 134 P. 2d 376], “each case stands upon the facts of that case, and subject to the legal principles announced in the many cases.”

The witnesses LeBoy Kirk and Jack Eldridge both testified to burglarizing the premises described and taking the sugar. They testified that all four of the defendants drove in an automobile to the home of one John Hendricks and the defendant got out of the car and attempted to sell some of the sugar to him. This was in the nighttime, and immediately after the burglary.

John Hendricks testified that he had known defendant for 15 years, and that he lived next door to the defendant in Hominy. That defendant came to his door about 9 or 10 o’clock and knocked, waking him, and asked if he wanted to buy some sugar. He did not buy the sugar. The next morning he heard about the store being burglarized.

Willard Hull testified that some one whom he did not know came to his room ten miles east and one mile north of Hominy about 1:30 in the morning and tried to sell him some sugar, which he did not buy. He offered it for $40 per 100 pounds, and told witness he had about 400 pounds. This witness also testified that the party had a flashlight, which the evidence shows the parties had at the time of the commission of the burglary. He testified that the party told him he was out of gas, and that the car turned around and went toward Melvin Duncan’s house.

Both accomplices testified to going to the Hendricks and Hull homes, and that defendant in person went to each of these houses. They then went to Melvin Duncan’s home to get some gasoline. Melvin Duncan was a brother-in-law of the eodefendant Charles Cordrey, and he let them have five gallons of gas.

Vassey Tyler testified that the defendant came to his home on Tuesday night following the Millsaps burglary, and wanted to sell him some sugar, and that he did not buy it. He told defendant Irving Miller might want to buy some. Irving Miller testified to some one coming to his home after he had gone to bed on Tuesday night following the Millsaps burglary and offering to sell him some sugar. He did not know who it was, but he understood the party to say his name was “Bed Bird.” The accomplices testified to accompanying the defendant to these places.

Charles Cass, the sheriff of Osage county, testified to finding 330 pounds of sugar in 10 pound bags, in a pasture. It was found where the two acomplices had stated it had been left, and the sheriff further testified that defendant had admitted to him that he was at the residences of John Hendricks and Willard Hull on the morning or night of August 26 1946, and tried to sell them sugar. He also admitted being at the home of Melvin Duncan. In this conversation, defendant told the sheriff he was trying to sell some sugar for some boys out of Tulsa. He did not state their names, and did not give a description of them. He also admitted to the sheriff that he had attempted to sell sugar to Vassey Tyler and Irving Miller on Tuesday night, after the burglary of the Millsaps store.

There were other facts and circumstances proven which tended to corroborate the testimony of the accomplices, but we do not consider it necessary to go further into the same. The above is amply sufficient to corroborate their statements, and to comply with the rule that the testimony of an accomplice must be corroborated, as announced in the many cases that have been before this court, some of which are cited above.

The second contention of the defendant is:

“The evidence to sustain the conviction in this case for second offense is insufficient and therefore contrary to law.”

To substantiate the allegation of the information as to defendant’s prior conviction of a felony, the state offered the court clerk of Osage county who identified the files of the prior case, and identified the judgment and sentence entered by the court, and the same was introduced in evidence. The sheriff of Osage county testified that deiendant was the identical person named in said judgment and sentence.

We think the case of John Bassett v. State, 42 Okla. Cr. 126, 274 P. 893, has properly decided the question here involved. It is there stated:

“Where a prior conviction is alleged to enlarge the grade or degree of the crime or the punishment under section 6991, Comp. Stat. 1921 [37 O. S. 1941 § 12], it is not necessary that the entire record be introduced in evidence in order to prove the prior conviction. Such conviction may be proven by the verdict of the jury and the judgment, sentence, and commitment, properly identified, or by other. competent evidence.”

See also Files v. State, 16 Okla. Cr. 363, 182 P. 911; Halbert v. State, 18 Okla, Cr. 378, 195 P. 504; Rogers v. State, 34 Okla. Cr. 15, 244 P. 461; Bassett v. State, 42 Okla. Cr. 126, 274 P. 893; Smiley v. State, 51 Okla. Cr. 364, 1 P. 2d 829; Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109; Spann v. State, 69 Okla. Cr. 369, 103 P. 2d 389.

We are of the opinion that the introduction in evidence of the judgment, sentence and commitment of former conviction, or proof of the suspension of the sentence, as in this case, with the identification by the sheriff of Osage county, as to the defendant being the identical person named in said judgment and sentence, was sufficient in the absence of any evidence to the contrary, to prove beyond a reasonable doubt that the defendant' was the person so charged and convicted in accordance with the rules announced in the cases above cited.

It is next contended:

“The information in this case charging the defendant with burglary, second degree, second offense, was insufficient to confer jurisdiction of the court to try the defendant on the charge of burglary, second degree, second offense.”

This contention is based upon the opinions in the cases of Tucker v. State, 14 Okla. Cr. 54, 167 P. 637, and Fowler v. State, 14 Okla. Cr. 316, 170 P. 917.

While not in direct language, these cases have practically been overruled by the case of Littlejohn v. State, 32 Okla. Cr. 401, 241 P. 210, 212.

The facts in the instant case are very similar to those in the Littlejohn case. Here the information charges that defendant entered a plea of guilty to the charge of burglary in the district court of Muskogee county, the same being a felony under the laws of the State of Oklahoma, and was “for the commission of said offense by said court at said time, sentenced to serve a term of two years in the Oklahoma State prison, at McAlester, Oklahoma.” It was said, in the Littlejohn case :

“It also alleges that upon the plea of guilty entered by the defendant in the former conviction, the defendant was by the court sentenced to the penitentiary; which allegation is in substance that judgment was by the court entered upon the plea of guilty. The sentence introduced in evidence as the state’s Exhibit B is in fact a judgment and sentence of the court.
“* * * This court takes judicial knowledge that under the law the selling of intoxicating liquor to a minor is a felony of which district courts have jurisdiction. * * * It is not essential that the information should plead the record in the former conviction. That is, it is not essential that it set out the information, plea of guilty, or the verdict of the jury and the judgment of the court. It is sufficient on this point if it definitely and certainly pleads a prior conviction in a court of competent jurisdiction of a specific violation of the prohibitory liquor laws.”

See, also, Rheuark v. State, 78 Okla. Cr. 121, 144 P. 2d 754; Daves v. State, 77 Okla. Cr. 343, 141 P. 2d 603.

The fourth contention of the defendant is as follows:

“The trial court committed error in admitting hearsay evidence in this case on the part of the state, which was prejudicial to the constitutional and fundamental rights of the defendant.”

This contention has reference to the testimony of the two accomplices with regard to sales and attempted sales of the. sugar, taken in the Millsaps burglary, to Mr. and Mrs. Lunsford, of Cleveland, J. A. Burke, Vassie Tyler and Irving Miller.

In the conversations with Mr. and Mrs. Lunsford and J. A. Burke, the defendant was not present, but he was present and conducted the conversations with Tyler and Miller with reference to the attempted sale of the sugar. These conversations were on Tuesday following the burglary of the Millsaps store on Sunday night, and had reference to the sale of the sugar that had been hidden on the night of the burglary.

There was some evidence to justify the conclusion that the parties had agreed for Kirk and Eldridge to sell 200 pounds of the sugar and keep the proceeds, and for Cordrey and the defendant to sell 200 pounds, and keep the proceeds.

There can be no question but that there was a conspiracy among all the parties to burglarize the Millsaps store and to sell and dispose of the stolen sugar. The conspiracy was not completed until the sugar was sold. If this is true, the declarations of one or more of the conspirators is admissible against the others. Aside from this, the evidence in this ease was sufficient to convict the defendant, regardless of this evidence. The evidence at the time of the attempted sale to Tyler and Miller was in the presence of defendant. The court only submitted the testimony of the conversations with Mr. and Mrs. Lunsford for the purpose of showing the disposition of the sugar taken in the Millsaps burglary. In this we do not think there was error.

We have read the case of Bohannon v. State, 24 Okla. Cr. 103, 215 P. 1078, relied upon by the defendant. The facts in that case have no application here. There no conspiracy was shown. Here there was. There evidence was insufficient to sustain the conviction. Here it is sufficient.

Finding no error, the judgment of the district court of Osage county is affirmed.

JONES and BRETT, JJ., concur.