text:
    JOHN LA GRONE v. STATE.
    No. A-5084.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 938.)
    F. W. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Ottawa county on a charge of transporting alcohol, the plaintiff in error, hereinafter called defendant, has appealed.

Several assignments are made in the petition in error, but in the brief all are waived, except that the evidence is insufficient to sustain the verdict. The record discloses a state of facts about as follows: The defendant was a resident of Kansas City, Mo., and an aviator engaged in commercial flying and in the sale of aero-planes. On the 2d day of February, 1924, he landed on the private field of Bill Hale near Picher, near the aeroplane shed or hangar of the said Hale. He was about the plane for some minutes after landing, and turned the plane so it could be rolled into the shed. He then started to an automobile on the highway a short distance away. At that time certain officers came to the plane, looked it over, and just east of the shed, some 40 feet from where the plane was, they found three cans of alcohol covered with an old rug. They thereupon arrested the defendant for transporting. There was evidence of tracks apparently leading from the plane to where the alcohol was found. One of the witnesses for the state testified that previously that day an automobile had been there and the parties with it had taken something out of the machine.

Several of the witnesses testified that they saw the defendant land and get out of the aeroplane on the west side, the side opposite from where the alcohol was found; saw him turn the plane toward the shed, none of them saw him take anything out of the plane, and none of them saw him go to the east side of the shed or hangar where the alcohol was found, although none of the witnesses watched him continuously during the time he was there, which was variously estimated from 4 to 15 minutes. The defendant testified in his own behalf that he had a prospective purchaser for a plane, and came to Picher for that reason; that he had permission of the owner to land at the place for the purpose of storing his plane, and placed his plane to enter the shed, and, finding the door locked, had started to a near by car for the purpose of procuring a ride to town, when the officers approached. He testified that he did not transport any alcohol, and had not been at the east side of the shed.

This is the principal part of the material evidence. This court has often held that questions of fact are for the jury, and, where the evidence, although conflicting, reasonably sustains the verdict and judgment, it will not be disturbed in this court for insufficiency. However, unless the evidence is such that the jury may reasonably and logically find the guilt of a defendant, a verdict of guilty will be set aside.

Considering the evidence before us, we think it falls short of that conclusive character necessary to a conviction. At best, it raises only a strong suspicion of the guilt of the defendant, and the verdict should not be permitted to stand.

The case is reversed and remanded, with instructions to the lower court to dismiss.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    CROMWELL COMBEST et al. v. STATE.
    No. A-5107.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 936.)

      Wright & Gill, for plaintiffs in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were tried and convicted on an information charging that in Oklahoma county, August IS, 1923, Cromwell Combest and W. H. Combest “did then and there unlawfully transport intoxicating liquor, to wit, whisky, from a point to your informant unknown in said county and state to a point commonly known and designated as 423 West Reno street ■in Oklahoma City, said county and state."

In accordance with the verdicts of the jury they were each sentenced to pay a fine of $500 and to be confined in the county jail for 6 months. To reverse the judgments they appeal, and assign as error the insufficiency of the evidence to support the verdicts, and that the court erred in the admission of evidence obtained by an illegal search and seizure.

Tom Cavnar, sheriff, testified that he was in the dwelling located at 423' West Reno street, and saw the defendants drive their car from the rear end of the premises to the rear of the house, a distance of probably 50 feet; that he did not remember which one was driving; and he walked up to the car and found it contained two 5-gallon bottles covered by an old top! or probably a canvas; that one got out on one side and one on the other, and he told them to get back in the car, that he was going to take them to jail; that when he arrived at the jail he found that the bottles contained whisky; that it was placed in the vault, and in checking it up he found that it had been poured out the day they poured out other whisky.

Jake Higgibotham testified that he went to the rear of 423 West Reno and found the sheriff had both of the defendants under arrest.

Prior to the commencement of the trial the defendants filed a motion to suppress the introduction of any evidence of the whisky so seized on the ground that the same was obtained by an illegal search and seizure.

At the close of the state’s evidence the defendants moved to exclude the evidence with reference to the search and seizure on the same ground, which motion' was overruled. The defendants and each of them moved for a directed verdict of acquittal in the form of a demurrer to the evidence, which demurrer and motion were overruled.

It is urged by counsel for defendant that a conviction was not authorized, because the state’s evidence was obtained unlawfully without a search warrant and in violation of the defendant’s constitutional and statutory rights, and the further ground that there was no evidence tending to show that the whisky found in the defendants’ car was transported from a place other than the place on the same premises where the defendants were arrested.

This prosecution was under the subdivision of the prohibitory enforcement act (Section 7002, C. S. 1921), which provides that it shall be unlawful for any person “to ship or in any way convey such liquor from one place within this state to another place therein except the conveyance of a lawful purchase as herein authorized.” .

Under the statute it is an essential ingredient of the offense charged that there must be a conveyance of intoxicating liquor from a place beyond to the premises of the defendant. Proctor v. State, 8 Okla. Cr. 537, 129 P. 77; Sherman v. State, 28 Okla. Cr. 117, 228 P. 1110.

In Keith v. State, 30 Okla. Cr. 168, 235 P. 631, it is said:

“The offense charged against the defendant is punishable only by a fine and imprisonment in the county jail, and therefore is not a felony under our statute. Section 1503. Consequently the officers could not lawfully arrest him therefor without a warrant, unless the offense was committed or attempted in their presence.
“It cannot be said that the criminal offense is committed in the presence of an officer, unless the acts constituting the offense become known to him at the time they are committed, through his sense of sight or through other senses; although a person may actually be committing a criminal offense, it is not committed in the presence of an officer within the meaning of the statute, if the officer does not know it. And where the officer could not observe and become cognizant of the act constituting the offense by the use of his senses, it could not be committed in his presence so as to authorize an arrest without a warrant.”

This court has held that, where the possession of an unlawful thing is open and obvious, so that any one within reasonable distance can readily see it, no warrant is necessary, and the evidence thus obtained may be received upon the trial of the accused. However, a search implies invasion and quest, and that implies some sort of force, actual or constructive, much or little. The right of the citizen to be secure in his person and possessions from such unlawful search and seizure is as secure as the Bill of Rights can make it (Const, art. 2, § 30), and this right should be respected by officers and courts. Under the holding of this court in the case of Klein v. State, 26 Okla. Cr. 173, 223 P. 201, the court erred in admitting the evidence over defendants’ objections.

For the reasons indicated, the judgments appealed from herein are reversed.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    CLARENCE FOLEY v. STATE.
    No. A-4890.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 935.)
    A. M. Stewart and Wm. M'. Williams, for plaintiffs in error.
   EDWARDS, J.

From a conviction in the county court of Harmon county on a charge of selling whisky the plaintiff in error, hereinafter called defendant, has appealed. Two assignments of error are argued in the brief: First, that the evidence is insufficient to sustain the verdict; second, error in the instructions of the court.

An examination of the record discloses the following evidence on the part of the state: That one Ramsey and one Robbins went in an automobile to the residence of the defendant, and that the defendant there got in the car, went east, and soon came back, and there was a quart of whisky in the front of the car. There was none there when he received the car. Ramsey testifies that he gave some money to Robbins, and Robbins testifies that he paid the defendant $4 for the whisky. The defendant denied that either of the witnesses was at his place, and that he sold no whisky or placed any in the car. There was a direct conflict between the evidence of the state and that of the defendant. The witness Robbins on cross-examination admitted there was a charge for selling the same whisky to Ramsey filed against him. Ramsey admitted there was a charge of transporting the whisky filed against him.

The interest and the credibility of witnesses and the weight and value that will be given their testimony is for the jury. It is for them to say from all the surrounding facts and circumstances, including the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and frankness, or the lack thereof, who is telling the truth, and who should be believed. When they have done this, it is not for this court to Weigh the evidence or disturb the verdict of the jury, where the evidence, although conflicting, reasonably sustains the verdict.

Upon the second assignment that the court erred in his instructions to the jury complaint is made that the court informed the jury that, if they found from the evidence that the defendant did sell intoxicating liquors to the said Robbins, as alleged in the information, then and in that event they should find the defendant guilty, and did not embody in such instruction that they should find the sale beyond a reasonable doubt. This instruction standing alone would be error, but in the following instruction the jury are told that, if they find that the defendant'did not make the sale, or if they had a reasonable doubt thereof, then they should find the defendant not guilty, and are further instructed that the defendant is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and that the burden is on the state to prove his guilt beyond a reasonable doubt, and, if a reasonable doubt exists in the minds of the jury as to the guilt of the defendant, they should acquit.

These instructions considered together correctly advise the jury that in order to convict the defendant they must find his guilt beyond a reasonable doubt, and, if they have a reasonable doubt of his guilt, they must acquit. It is fundamental that the instructions must be considered as a whole, and, when considered together, if they correctly and fairly state the law, they are sufficient. Davis v. State, 16 Okla. Cr. 377, 182 P. 909; Gunter et al. v. State, 16 Okla. Cr. 476, 184 P. 797.

Upon a consideration of the record we find no reversible error, and the case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


author: BESSEY, P. J.

text:
    RUSH McGAFFEY v. STATE.
    No. A-5020.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 935.)

      E. T. Barbour and Henry C. Hankins, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, defendant in the trial court, was convicted of having illegal possession of 7 pints of whisky, with his punishment fixed by the jury at confinement in the county jail for a term of 6 months and to pay a fine of $500.

There is but one assignment of error urged in plaintiff in error’s brief, which is that the court erred in overruling defendant’s motion to suppress evidence obtained by a search and seizure. Upon consideration of this motion, the court ruled as follows:

“The court, being fully advised from the evidence introduced, finds that the evidence on the part of the state was obtained, not pursuant to a search warrant, but by the consent of the defendant whose premises were invaded at the time and place mentioned. I overrule the motion to suppress evidence.”

The reasons given by the court for overruling the motion are supported by the record.

From the testimony of Charles Steward:

“Q. As a matter of fact, House didn’t serve the warrant on McGaffey as McGaffey informed him that he didn’t need one. A. Yes, sir.
“Q. And I believe you said that McGaffey said, ‘Go ahead and search,’ that he didn’t want a search warrant? A. Yes, sir.”

From the testimony of Henry McMullen:

“Q. Did McGaffey invite you into the house? A. Yes, sir.
“Q. Did he ask you for a search warrant? A. No, sir.
“Q. Did he consent to your searching the house? A. Yes, sir.
“Q. What did he say? A. He said, ‘Come on in, hoys, you are welcome any time; there isn’t anything here.’ ”

From the testimony of W. M. Washington:

“Q. When you went to the defendant’s home, what did you see? A. Two of us went to the back end and two to the front end. He told us to come in. He said, ‘You are welcome at my house all the time.’
“Q. Did he know you were the law? A. Yes, sir.
“Q. What did he say? A. ‘Help yourselves; there is nothing here.’
“Q. He gave you permission to search the place? A. Yes, sir.”

Other evidence discloses that the officers had a search warrant, but that, after they were invited to enter the house and go ahead and search it, they made no effort to serve the warrant; that they tore it up and made no return thereon to the court out of which it issued.

The motion to suppress the evidence was properly overruled by the trial court.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    O. B. HELM v. STATE.
    No. A-5029.
    Opinion Filed Oct. 17, 1925.
    (240 Pac. 133.)

      W. S. Paden, I. C. Sprague, and Tom Finney, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   PER CURIAM.

From a conviction of manslaughter, upon a charge of murder, in the district court of Me-Curtain county, the plaintiff in error, hereinafter called defendant, has appealed.

The cause was tried in August, 1923, and the appeal lodged in this court in February, 1924. Upon the submission of this case, no appearance for oral argument was made, and no briefs have been filed in support of the appeal. It is well settled that where a defendant is convicted for a felony and prosecutes an appeal to this court, and no briefs are filed in support of the assignments of error, and no appearance for oral argument made, this court will not make a diligent search for errors on which to predicate a reversal, but will read the evidence to ascertain if it supports the verdict, and will examine the record for jurisdictional errors, and, if none appear, the judgment will be affirmed.

We have examined the record with care, and find no jurisdictional defect. We have further read and scrutinized the evidence, and find it amply supports the verdict and judgment. The defendant was prosecuted upon an information charging the crime of murder, and was by the verdict of the jury convicted of manslaughter in the first degree, and the assessment of the punishment left to the court, which was by the court fixed at nine years in the penitentiary. It would serve no useful purpose to set out the details of the crime for which the defendant was convicted. The defendant was fairly tried, and his appeal is without merit.

The case is affirmed.


text:
    JIM THOMAS et al. v. STATE.
    No. A-5159.
    Opinion Filed Oct. 17, 1925.
    (240 Pac. 133.)
    Wm. T. Powell, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in' error were tried and convicted on an information charging that on November 21, 1923, Jim Thomas and Bill Barnard did unlawfully convey one-half gallon of whisky from a place unknown in Cotton county to another point in said county on the northwest quarter of section 7, township 8 south, range 11 west, I. M. The jury leaving their punishment to be fixed by the court. Motion for new trial was duly filed and overruled, and on January 8, 1924, the court sentenced each defendant to pay a fine of $100 and to be confined in the county jail for 30 days.

To reverse the judgment, they appeal and assign as error the insufficiency of the evidence to support the verdict, and that the court erred in the admission of evidence obtained by an illegal search and seizure.

J.- D. Kerr, sheriff, testified:
“We were walking around in the road when we heard parties advancing and we stepped into the timber; it seemed to be some other parties, I heard them say something about some whisky; we walked back out to the road and stopped Jim Thomas and Rill Barnard in the front car. about that time I heard something break, I found a broken fruit jar in the front of the car and something running on the floor. I presumed it was whisky from the smell of it.”

On cross-examination he stated that he left Walters about 10 o’clock at night; that it was clear moonlight night; that the defendants lived about three miles in a direct line from where he stopped their car.

He further testified as follows:

“Q. You say you know-they had whisky? A. No, sir; I know it smelled like corn whisky, but I do not know it was.
“Q. Mr. Kerr, isn’t it a fact you did not have a search warrant at the time of the arrest? A. It is a fact that I did not.”

A. M. Black, deputy sheriff, testified that he was with the sheriff when they stopped Jim Thomas and Bill Barnard; that he said to them, “This is the law, stop, and consider yourselves under arrest”; that after they stopped the car they found a broken fruit jar that smelled of whisky.

All the evidence in the case was admitted over the defendant’s objections that it had been obtained by means of an unlawful arrest and an unreasonable search and seizure made in violation of the constitutional rights of the defendants.

At the close of the state’s evidence, the defendants made a motion to strike all the evidence on the same ground. The motion was overruled. The defendants then moved for a directed verdict on the ground that the state had failed to establish facts sufficient to constitute a public offense. This was also overruled.

In the case of Klein v. State, 26 Okla. Cr. 173, 223 P. 201, it was held that, in a prosecution for transporting intoxicating liquor, evidence obtained by search of the defendant’s automobile without a search warrant is inadmissible, in view of Const. art. 2, § 30. And see Keith v. State, 30 Okla. Cr. 168, 235 P. 631.

It follows that the evidence challenged in this case was obtained by the officers by an unlawful search and seizure and contrary to section 30, art. 2, supra, and was improperly received in evidence in violation of their constitutional rights.

The last contention, based on the theory that the evidence relied on to establish the defendants’ guilt, even if its competency be admitted wholly fails to do so, we think, is well taken.

For the reasons stated, the judgments appealed from herein are reversed, and cause remanded, with direction to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    WILL JOHNSON v. STATE.
    No. A-5028.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 943.)
    I. C. Sprague, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   PER CURIAM.

From a conviction in the district court of McCurtain county on a charge of manslaughter, the plaintiff in error, hereinafter called defendant, has appealed.

This cause was tried in August, 1923, and the appeal was filed in this court in February, 19'24. Several extensions were granted counsel for defendant to file brief. The last extension has long since expired, and no briefs were ever filed.

Where, upon a conviction for a felony, appeal is prosecuted to this court, and no briefs are filed in support of the assignments of error, and no appearance for oral argument made, this court will not search the record for errors on which to predicate a reversal of the case, but will read the evidence to see if it supports the ver-diet and will examine the record for jurisdictional errors, and, if none such appear, the judgment will be affirmed.

We have examined the record in this case and find no jurisdictional defect. We have further carefully read the evidence, and find that it amply supports the verdict and judgment. The charge upon which the defendant was prosecuted is manslaughter, while under the evidence on the part of the state the defendant might well have. been prosecuted on a charge of murder. It would serve no particular purpose to set out in detail the evidence. Suffice it to say that the defendant was fairly tried, and the appeal is without merit.

The case is affirmed.


text:
    STATE ex rel. CONLEY et al. v. PARKS.
    No. A-5835.
    Opinion Filed Oct. 17, 1925.
    (239 Pac. 941.)
    T. M. McCombs, for petitioners.

      The Attorney General, for the State.
   EDWARDS, J.

This is an original proceeding in mandamus to require Hon. J. T. Parks, District Judge of the First Judicial District, to certify his disqualification in an action pending in the District Court of Sequoyah county, wherein the state of Oklahoma prosecutes the petitioners Bess Conley and J. M. Conley on a charge of murder. In the petition it is alleged that the said respondent as district judge is biased and prejudiced against the petitioners so they cannot receive a fair and impartial trial. They further allege that the petitioners have had two trials in said Sequoyah county, in each of said trials a special judge presided, and each of which resulted in a mistrial. It is alleged: That petitioners are prosecuted on a charge of murdering one John Horn, and that the respondent has been a lifelong friend of the family of the deceased, and especially a personal friend of Bud Horn, brother of the deceased, who has taken a lead in the prosecution of said case. That since the said trials the Hon. H. D. Pitchford, county attorney of Sequoyah county, moved the court to dismiss said action for the reason that in his judgment a conviction could not be had, and that another trial was a useless expense. Thereupon the respondent presiding over the court at the time became angry and severely criticized the county attorney, and when petitioners’ counsel undertook to say something also criticized them, and in open court and from the bench stated that he did not care what the county attorney thought about the case; he did not believe the relatives of the deceased wanted the case dismissed. That he had personally talked with them about the case, and from his investigation of the case thought the petitioners could be convicted. That he would get in communication with the relatives of the deceased and tell them to get the case ready for trial. That the trial judge went to his chambers and wrote a íetter to said Bud Horn, asking that he come down that he might discuss the case with him. That said Bud Horn did come down, and that the respondent discussed the case in the chambers of said respondent and upon numerous other occasions. That thereafter respondent was in the town of Stilwell, and there approached E. B. Arnold, who is an attorney at law and is related to tlie deceased, and discussed the merits of the case with the said Arnold, and told the said Arnold that if he would promise to prosecute said case as it should be prosecuted he would appoint him as special county attorney in the case. That said Arnold formerly had been judge of the district court of said district, and by reason of relationship to the deceased had certified his disqualification to preside in said cause. That said respondent following said conversation at Stilwell with said Arnold, and without any conference with the county attorney and without knowledge or information to the petitioners herein, appointed said Arnold special county attorney, and entered the same on the judge’s trial docket. Then follow allegations touching the setting of the case for trial and continuances at different times, in which it is inferentially sought to show that petitioners had not been treated fairly. It is then alleged: That at one time it was agreed that the case be continued until September 21, 1922, but counsel for the petitioners at that time stated that he would not under any consideration, after the court’s attitude in the case, be placed at the court’s mercy, and while he would agree to continue the case, he was going to have his witnesses there on the 21st day of September and be ready for trial, and on the morning of September 21st, when court convened, the county attorney stated to the court that the case would be continued. Then the respondent again flew into a rage, and severely criticized the counsel for petitioners and the county attorney, and from the bench ordered the clerk to get Judge Arnold on the telephone stating that the case had been set for trial, and because these petitioners were not ready was no excuse for it being continued; at which time the respondent was informed that petitioners were present with their witnesses and counsel and were ready for trial.

The respondent, by telephone, in the hearing of the jury and other parties, in a very angry manner, said to said Arnold:

“You promised me that you would prosecute this case, and that was the reason I appointed you, and 1 want you to get down here by 1 o’clock and do as you promised.”

The respondent then passed the matter until 1 o’clock, and said Arnold came down from Stilwell and immediately was met at the courthouse by Bud Horn, brother of the deceased, and they went to the respondent’s chambers, or vault in the clerk’s office, -and at this time the respondent was in the courtroom talking to the county attorney and other attorneys there, and said Bud Horn came into the courtroom and called respondent out, and said Bud Horn, respondent, and said Arnold had a lengthy consultation in reference to the case in the respondent’s chambers. After discussing the matter for some time, respondent and Bud Horn remained in respondent’s chambers, and Arnold was sent to confer with counsel for petitioners and the county attorney. Said Arnold stated that respondent had a proposition to make that if counsel would agree to continue the case, and would file a motion to disqualify him, he would continue it for the term; that if counsel did not like that or did not want to do that, then he was going to continue it for a few days more and give the state some time, and order the jury back and try the case.

Petitioners further allege that they have presented an application and motion to respondent to disqualify for the reason herein set out and respondent has denied said motion. Upon the allegations as set out and others contained therein petitioners pray that this court issue a writ of mandamus requiring respondent as district judge to disqualify. Upon the petition so filed, verified, and supported by affidavits, an alternative writ of mandamus was issued ordering the respondent to show cause why he should not be disqualified, and the respondent has filed a response which is in substance that he is not conscious of any bias or prejudice against the petitioners; that they are strangers to him, and that, while respondent has endeavored for more than a year to bring said cause to trial, has thus far been unsuccessful. Then follow allegations explanatory of certain orders of continuance and assignments for trial, and an admission that a petition to disqualify was presented to him and denied, and that if not disqualified he can try said case fairly and impartially. Section 2633, Comp. Stat. 1921.

There is no denial of the allegations of statements made by the' defendant from the bench, nor the writing to the brother of the deceased, Bud Horn, nor the consultations and statements alleged as made in open court and in chambers and to relatives of the deceased, and we conclude that respondent intends thereby to admit the allegations as made.

The question for our determination then is: Do the allegations disclose that respondent herein entertains bias or prejudice which would disqualify him as presiding judge in the trial of the petitioners ? Section 6, art. 2, of the Bill of Bights, among other things, provides that right and justice shall be administered without sale, denial, delay or prejudice. Prejudice to disqualify a trial judge has been held to mean a personal prejudice against him. Lewis v. Russell, 4 Okla. Cr. 130, 111 P. 819; Saddler v. Crump, 30 Okla. Cr. 157, 235 P. 263.

Prejudice is a state of mind which is ordinarily not capable of being proven by direct and positive evidence. It can generally be proven only by the circumstances, environment, association, relationship, and conduct of the person who entertains it. It is often not known to be held by the person entertaining such prejudice; that is to say, one may have a prejudiced state of mind upon a subject, against an idea, cause or person, and be wholly unconscious that he had any prejudice. In fact, upon casual thought, we are aware that many persons are prejudiced upon public questions, in matters of politics or religion, or on many other subjects, and by reason of such prejudice incapable of giving a dispassionate consideration to such question, and at the same time be totally unconscious that he is prejudiced, and would be quick to repudiate a suggestion that his state of mind is other than fair and open. We are sure that the learned district judge, respondent in this case, is not conscious of any prejudice against the petitioners, and that he had no doubt of his ability to fairly and impartially preside at the trial; but in the light of the allegations made In the petition and the failure of the respondent to deny them, we think there is such a showing as entitles the petitioners to a change of judge, being mindful of the rule announced by this court in the case of Ex parte Ellis, 3 Okla. Cr. 220, 105 P. 184, 25 L. R. A. (N. S.) 653, Ann. Cas. 1912A, 863, where it was said:

“* * * The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not be shaken, and provided that right and justice should be administered without prejudice. By virtue of this constitutional provision, who can doubt or question the absolute and unqualified right of the citizen when called to answer in a court of justice to demand that his trial shall be before an impartial judge and by impartial jurors? Any other doctrine would place the rights of the citizen which were intended to be protected by this constitutional provision at the mercy or control of the court or judge thereof. * * *”

For the reasons assigned, the application for change of judge should have been granted by the respondent, and, the respondent having failed to disqualify, the writ of mandamus is awarded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    VAN HENRY et al. v. STATE.
    No. A-4718.
    Opinion Filed Oct. 17, 1925.
    (240 Pac. 128.)
    Neal & Neal and C. C. Williams, for plaintiff in error.
    George F. Short, Atty. Gen, for the State.
   EDWARDS, J.

From a conviction on a charge of conjoint robbery, the plaintiff in error, hereinafter called defendant, has appealed.

The plaintiff in error was charged jointly with Van Henry. Both were convicted, and a sentence of five yedrs imposed. The appeal was joint; Van Henry having accepted a pardon, the appeal as to him has been dismissed. An examination of the record discloses: That on the night of the 3d day of December, 1922, one Myron W. Cromer was held up by two persons in the town of Howe, assaulted, and robbed. Cromer was a stranger in the town, on his way from his home at Fondillac, Kan., to Hartford, Ark. That he got off a Kansas City Southern train at Howe about 1:3Q a. m., went to a restaurant, and on his way back to the depot was robbed as stated.

The evidence of the witness Cromer on this point is as follows:

“Q. State your name, please. A. Myron W. Cromer. Q. Where do you live? A. Fondillac, Kan. * * * Q. Do you know the defendants, Van Henry and Hoy White? A. Yes, sir. Q. Did you see them that night? A. Yes, sir. Q. Where did you get off the train — at the depot? A. Yes, sir; right at the depot. Q. Where did you see these boys? A. Inside the depot. Q. Where did you next see them, Mr. Cromer? A. When I was coming back from the restaurant, at the time they held me up. Q. You say they held you up? State to the court what took place, what they did, if anything. A. You see, I went to the restaurant to get a bit of lunch; I left my grip, and when I stepped back to get it, and I had got about to the engine, at the depot platform and this, fellow here— Q. (interrupting) Which one? A. That fellow White there, he accosted me with a pistol, and says, Tut ’em up’; and I says, T know you, you are just one of these here fly guys, anyway;’ and I says, T haven’t got nothing;’ and he kicked me; * * * I had put my hands down, and they knocked me down like this (indicating); they had already got my folder. Q. When did they get your folder ? A. As I went down; I was knocked out, and as I went down, Smith here went in behind me and got it ,qut of my pocket. Q. Smith is this man Van Henry or Van Smith? A. Yes, sir. Q. All right, what happened then? A. Well, one of them said, ‘Come on, let’s get away from here;’ and they went over the track and I went back in the restaurant. * * *”

This is the principal evidence of the commission of the crime except some circumstantial evidence from other witnesses. The defendant’s assignments of error may be summarized as follows: First, insufficiency of the evidence; second, error in the admission of incompetent evidence, particularly the admission of the transcript of the evidence of Cromer taken at the preliminary.

Upon the first assignment, the insufficiency of the evidence, we have examined the record with care and find that there is ample evidence to sustain the verdict and sentence. The evidence of the injured person, Myron W. 'Cromer, alone would be sufficient on that point. But in addition there is corroboration upon some points by several other witnesses. When the evidence is sufficient, although conflicting, its weight and value is for the jury, and it is for them to say whom they will- believe or disbelieve. This court will not disturb the verdict on the ground of insufficiency of the evidence.

Upon the second assignment, the record discloses that at the preliminary trial the witness Myron W. Cromer, the person robbed, was produced as a witness for the state, examined at length, and cross-examined, his evidence taken in shorthand and transcribed. At the trial, the witness did not appear, and a transcript of his evidence was admitted in evidence over the objection of the defendant.

It is earnestly contended that there was no sufficient predicate for the introduction of said transcript; that it was not made to appear by competent testimony that the witness Cromer was not a resident of the state or of Le Flore county, that the evidence upon this point was hearsay, and no proper diligence to procure the attendance of the witness was used, citing Temple v. State, 15 Okla. Cr. 176, 175 P. 733; Davis v. State, 20 Okla. Cr. 203, 201 P. 1001; Golden v. State, 23 Okla. Cr. 243, 214 P. 946.

By numerous holdings of this court it is settled law that, where a witness has testified at a preliminary hearing against an accused, and has been cross-examined, or the privilege of cross-examination offered, if, at a subsequent trial involving the same issue, it is satisfactorily made to appear that the witness has died, become insane, or has permanently left the state without collusion or procurement, or where the witness is sick and unable to attend, or his whereabouts cannot with due diligence be ascertained, a transcript of the testimony of such witness may be introduced as his evidence, and the use thereof will not be a violation of the constitutional right of an accused to be confronted with the witnesses against him. Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Temple v. State, supra; Davis v. State, 20 Okla. Cr. 203, 201 P. 1001; Davis v. State, 15 Okla. Cr. 386, 177 P. 621; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 P. 453; Exleton v. State, 30 Okla. Cr. 224, 235 P. 627.

Before a transcript of the evidence of a witness given at a former trial is admitted, there should be a showing that the witness cannot be produced, due to some one or more of the exceptions named. The restrictions judicially placed on the admission of this class of evidence should be strictly observed, since it is obvious that this privilege is subject to abuse, and that witnesses who were perfunctorily examined upon a preliminary hearing may be purposely out of the reach of the .process of the court, where it might be to the interest of the state to avoid further cross-examination by use of the transcript of their former testimony. It is generally held that where a witness is temporarily absent in another state, or out of the jurisdiction of the court, and proper diligence has not been observed to procure his attendance, a transcript of his evidence should be rejected.

In the case of Davis v. State, 20 Okla. Cr. 203, 201 P. 1001, supra, it was said:

“We think that this court in former opinions has followed a rule sufficiently liberal in permitting testimony taken at a former trial or a preliminary hearing to be used in the absence of the witness, and that this court should not, by judicial construction, extend or enlarge upon the rule announced in former decisions. In many instances the prosecuting officer might prefer to have the testimony taken at a former hearing read to the jury rather than to run the risk of having the witness appear upon the witness stand to be subjected to a rigid cross-examination in the presence of the jury. To lay down the rule that a mere showing that a resident witness is in another state and that no effort or diligence to produce the witness in open court need be shown might enable public prosecutors and others, if it appeared to their interest, to cause witnesses to absent themselves from the jurisdiction of the court to escape further cross-examination. To say that no diligence is required to produce the witness in open court, where it is impossible to do so, is not in keeping with the spirit or the letter of the constitutional guaranty that a defendant in a criminal action has a right to be confronted face to face with the witnesses against him. Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Baldock v. State, 16 Okla. Cr. 203, 182 P. 265; Temple v. State, 15 Okla. Cr. 176, 175 P. 733. * * *”

This is the correct rule, and we adhere to it fully. The question for our determination here is: Was this rule violated? The witness Cromer testified upon his preliminary examination that he lived at Fondillac, Kan. For the purpose of laying a predicate for the introduction of his testimony, the county attorney testified, in substance, that Cromer was a resident of the state of Kansas, that he had investigated and knew that he was not a citizen of his county and state, and he had inquired of relatives of said witness at Hartford, Ark., as a basis for his testimony, that the witness was a nonresident, and that he had sent a subpoena for the witness to the place of his residence at Fon-dillae, Kan. This testimony was admissible, and the information upon which the county attorney based his testimony of the residence and absence of the witness from the state was not incompetent as hearsay. Fitzsimmons v. State, supra; Davis v. State, 15 Okla. Cr. 386, 177 P. 621, supra.

This evidence we think clearly distinguishes this case from the case of Baldock v. State, supra, and Davis v. State, 20 Okla. Cr. 203, 201 P. 1001, supra.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    FRANK BROOKS v. STATE.
    No. A-5032.
    Opinion Filed Oct. 17, 1925.
    (240 Pac. 136.)
    Frederick L. Brimi, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Frank Brooks, plaintiff in error, defendant in the trial court, was convicted of transporting one gallon of whisky, with his punishment assessed at a fine of $200 and confinement in the county jail for a period of 90 days.

Three police officers were sitting in a car on the outskirts of Ponca City, when the defendant, with a girl companion, drove by on the highway leading from the Osage country. The officers suspected that the defendant was conveying whisky, and gave chase over a devious route until both cars ran off the pavement. The defendant had difficulty in getting through a mud hole, and while stopped there broke and spilled the contents of a gallon jar which the officers said contained whisky. The officers identified it as whisky by its odor, and one of them tasted some of the liquid which remained in one of the fragments of glass, and stated that it was whisky.

There are three assignments of error urged in the brief: First, that the court erred in refusing a continuance; second, that the conviction rests upon evidence obtained by an illegal search and seizure; third, that the court erred in refusing to give the instructions proffered by the defendant.

The motion for a continuance recites that the defendant had employed an attorney to" defend him who resided in Ponca City, but that this attorney was not present when the case was called for trial; whereupon the defendant employed attorneys who resided at Newkirk, the county seat, where the trial was to be held, but that these attorneys had no time properly to prepare for trial.

The record shows that this defendant was' arrested on the 18th day of July, 1923', and that the trial was not had until October 24, 1923. It would appear therefore that the defendant had not exercised due diligence in preparing for trial. A motion for a continuance is addressed to the sound discretion of the trial court, and the court did not abuse his discretion in this case in refusing a continuance upon the showing made. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Richards v. State, 15 Okla. Cr. 582, 179 P. 777.

The defendant did not take the witness stand or call any witnesses in his behalf. One of the officers, who made the arrest, testified for the state as follows:

“Q. You had been chasing him, you say? A. Yes, sir; I started in pursuit of him at the southeast comer of Ponca City, on Fourteenth street.
“Q. That was because of the fact that he was driving fast? A. Well, not in particular; he wasn’t driving very fast when I took in pursuit of him; I knew his reputation and what his business was; that was the reason for it.
“Q. It was on account of his business that you were chasing him? A. Yes, sir.
“Q. That is the only reason you had for chasing him? A. Yes, sir.
“Q. Did you have a search warrant? A. No, sir.”

The other officers’ testimony on this point was in substance the same as that quoted.

No objection was interposed by the defendant or his counsel to the reception of the testimony of the officers, on the ground that it was evidence obtained by an illegal search and seizure. Furthermore, the defendant’s counsel cross-examined the officers at length upon this evidence.

It has been held that to make such objection available, it must be interposed at the first opportunity presented. In this case, it should have been made, either at the beginning of the trial, by a motion to suppress or reject such evidence, or in the course of the examination, so soon as it became apparent that the state would rely upon it. Otherwise, defendant waives his right to be heard on this question.

A defendant will not be permitted to speculate on the outcome of evidence said to have been procured by an illegal search and seizure, without objection thereto, and then when it later appears that such evidence operates to his prejudice seek to take advantage of his right to make such objection for the first time.

The defendant asked the court to instruct the jury that an officer who is not armed with a search warrant, or a warrant of arrest, issued by a proper magistrate, has no right or authority to search the person or belongings of one suspected of a misdemeanor; and that any evidence secured by a search without such warrant is not proper for the consideration of the jury; and that the mere belief of the officers, however good and well-intentioned, is not a substitute in law for a search warrant, or warrant of arrest.

It is not necessary to a determination of this appeal for this court to decide whether or not this was an illegal search. But if it was indeed an illegal search and seizure, these instructions were properly refused by the court, for the reason that the defendant, as before stated, had waived his right to have such evidence excluded.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    CHARLIE BROOKS et al. v. STATE.
    No. A-5119.
    Opinion Filed Oct. 17, 1925.
    (240 Pac. 138.)

      Tom Payne, for plaintiffs in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Plaintiffs in error, defendants in the trial court, were convicted of having unlawful possession of whisky, with the punishment of Charlie Brooks fixed by the jury at six months in jail and a fine of $500, and that of Oliver Brooks at 90 days in jail and a fine of $250.

According to the testimony of the state’s witnesses, the defendants, at the time of their arrest were occupying as a residence a place in Okmulgee, built, designed, and equipped as a place of business, the front portion of which extended out to the sidewalk; and that it was a place of public resort. The officers were watching the place to discover whether or not intoxicating liquors were being kept there in violation of law. One of the officers testified that looking through the glass front of the building, he saw defendant Oliver Brooks with a bottle of something in his hand which they thought was whisky, and that as they were about to enter the place the lights went out. The officers' then went in and searched the premises and found in the drum of a stove a bottle containing about six ounces of whisky; in a hole or plant in the front room they found a quart more.

Oliver Brooks testified that he had procured the whisky only that evening; that it was his, and that he had it for his own use; that his brother Charlie, his codefendant, had nothing to do with its being there. The premises described belonged to Charlie Brooks, who claimed that he had been away from Okmulgee for some time, and had just returned the day previous; he denied having any interest in the liquor, and stated that he had no knowledge that it was on the premises.

There are three assignments of error urged in the brief: First. That the conviction rests upon evidence obtained by an illegal search and seizure. Second. Error in admitting testimony concerning the reputation of the place. Third. That the evidence is insufficient to support the verdict.

The evidence, though not conclusively, indicates that these officers made the arrest, and the search and seizure incident to it, after they had seen one of the defendants with the bottle of whisky in his hand. True, they did not know positively that the contents of the bottle was whisky, but what they observed was under such circumstances as might justify them in making the arrest, as shown by the record.

Whether they were so justified or not is immaterial to a determination of the admissibility of the evidence here, for the reason that no proper request was made at the trial to exclude the evidence obtained by an unauthorized search and seizure, if indeed it was such.

In the case of Frank Brooks v. State, 32 Okla. Cr. 72, 240 P. 136, just decided by this court, it was held that an objection to the reception of evidence, obtained by an unauthorized search, and seizure, should be made either at the beginning of the trial, by a motion to suppress or reject such evidence; or in the course of the examination, so soon as it becomes apparent that the state would rely upon it; otherwise the right to object is waived. That a defendant will not be allowed to speculate on the outcome of evidence claimed to have been obtained by an illegal search and seizure without objecting thereto, and then, when it later appears that such evidence had operated to his prejudice, seek to take advantage of the right of objection for the first time.

No proper objection or exceptions were saved at the trial to the introduction of evidence tending to show that the place where this liquor was found was a place of bad reputation. Quoting from the record:

“How long have you known this place? A. I have known it since January, 1921.
“Q. Do you know the general reputation of this place in that neighborhood as being a place where intoxicating liquors are kept and sold, or otherwise? Do you know that reputation? A. I do.
“Q. What kind of reputation did it have? A. The reputation was bad.
“Q. State whether or not it had the reputation of being a place where liquor was kept and sold. A. It did.
“Q. What did you find in this big bottle you spoke of ? A. Corn whisky.”

It will be observed that no objection whatever was made to the testimony quoted.

Quoting from the testimony of another state’s witness:

“Q. At the time you made the arrest, and for some time prior thereto, did you know the reputation of this place?
“Mr. Payne: Object to that. a
“The Court: Overruled.
“Mr. Payne: Exception. That is not the proper way to prove the reputation of a place.
“Q. You know the reputation of that place as being a place where intoxicating liquors were kept and sold, or otherwise, answer that question ‘Yes’ or ‘No.’ A. Yes, sir.
“Q. Did it have such a reputation? A. It did.”

Here an objection was interposed, but it was qualified by the statement of defendant’s attorney, “That is not a proper way to prove the reputation of a place,” indicating that the objection was not to the admission of such testimony, but to the manner of its introduction. The defendants therefore waived the right to insist now upon this objection, for the same reason pointed out in the treatment of the preceding assignment of error.

Concerning the question of the sufficiency of the evidence, the testimony on the part of the state, and of the defendants was hopelessly conflicting. Evidently the jury did not believe the testimony of the defendants. Charlie Brooks was the owner of the place, had lived there for some time, and was in charge of it; Oliver Brooks was there in actual physical possession of some of the whisky. Other whisky was found in a secret cache, apparently made there for such purpose. Under such circumstances, the weight of the testimony, and the credibility of the witnesses, was. for the jury.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


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    BILL FOLEY v. STATE
    No. A-5023.
    Opinion Filed Oct. 17, 1925.
    (240 Pac. 147.)
    Don Cameron and D. E. Ashmore, for plaintiff in, error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the state.
   BESSEY, P. J.

By verdict of a jury in the superior court of Okmulgee county the plaintiff in error was found guilty of having illegal possession of intoxicating liquor, with his. punishment fixed at imprisonment in the county jail for a term of six months, and to pay a fine of $500.

This defendant and a companion were apprehended in the nighttime by officers along the railroad tracks near Henryetta, each having under his arm a gallon jar said to contain whisky. As the officers approached the two men ran, threw the jars, and broke them on the railway track. The officers said they knew it was whisky by its odor; one of them also recovered and tasted a small quantity of the liquid remaining in one of the broken fragments of a jar. 'When asked by the officers why they broke the jars, one of the men replied: “Didn’t want to get caught with it.”

Three assignments of error are urged: First. That the proof that it was whisky was insufficient. Second. That there was insufficient proof of intent to violate the prohibitory law. Third. That a showing of bad reputation and evidence tending to show the commission of other offenses was improperly admitted.

That the contents of these jars was whisky might properly be established by the senses by tasting it, seeing it and from the odor emanating from it, or by attending circumstances. In this case all of these contributed to its identification, and it was sufficiently shown to be whisky.

The intent to violate the prohibitory law may be shown by direct evidence or by circumstances. The declaration of the defendants that they broke the jars to destroy evidence, and the fact that they were apprehended in the act of transporting liquor under circumstances which indicated that it was had for an illegal purpose, were sufficient evidence of an unlawful intent to go to the jury, and their finding on that issue will not be disturbed by this court.

In the course of the examination of a witness for the state this question was propounded by the county attorney:

“Q. Do you know of your own knowledge the reputation of these fellows as to peddling whisky, or in the way of giving away or otherwise furnishing intoxicating liquors ? (To this question an objection was interposed by defendant).
“The Court: If he knows of his own knowledge .he may answer.
“The County Attorney: I allowed I could go back as far as two years.
“The Court: I want to look this up. Sustained for the present.”

The record shows that the question was not answered. To another witness this,question was propounded:

“Q. I will ask you, if, since your acquaintance with the defendants, or either of them, you have had occasion to search either of them and find whisky in their possession? A. No, sir.”

It will be observed that the question first quoted was not answered, and that to the second question a negative answer was given favorable to the defendant; and the state was bound by that answer.

The direct and circumstantial evidence shown in the record convinces us that this defendant was guilty as charged beyond a reasonable doubt; and that the penalty prescribed by law should be in some degree enforced against him. We are inclined to believe, however, that the attempt made by the county attorney to show a bad reputation and the commission of other violations of the prohibitory law may have led the jury to believe that the defendant was an old offender, and may have caused them to assess the extreme penalty. Without reciting in detail all of the record indicative of the inference that the defendant was an old offender, the record does show that the inference might properly be deduced from the testimony given and sought to be introduced, and to that extent it was unfair to the defendant. Worley v. State, 31 Okla. Cr. 253, 238 P. 225; Grubbs v. State, 30 Okla. Cr. 256, 235 P. 1115; Upton v. State, 12 Okla. Cr. 593, 160 P. 1134.

The judgment of the trial court is modified to a fine of $250 and 90 days in jail, and as so modified is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    RALPH MOORE et al. v. STATE.
    No. A-5182.
    Opinion Filed Oct. 21, 1925.
    (240 Pac. 153.)

      Orban C. Patterson and Victor Sniggs, for plaintiffs in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen.., for the State.
   DOYLE, J.

The information in this case charged that in Canadian county, December 19, 1922, Ralph Moore and Theodore Moore “did then and there willfully and unlawfully have in their possession intoxicating liquor, to wit, corn whisky, for the purpose of selling, bartering, and otherwise furnishing the same contrary to,” etc.

On the trial the jury returned a verdict finding them guilty and. fixing the punishment of each at confinement in the county jail for 30 days and a fine of $300. From the judgment rendered upon the verdict the defendants appeal.

Upon arraignment the defendants and each of them interposed a special plea of former acquittal, reciting that they are the identical persons tried and acquitted of the same charge in the same court in case No. 4318, and in support of the plea of former acquittal introduced the record, including the judgment of acquittal in said cause.

The information in cause No. 4318 charged that in Canadian county, December 19', 1922, Ralph Moore and Theodore Moore did manufacture corn whisky by the use of mash and a still.

The court of its own motion overruled this plea. Thereupon defendants filed a motion to quash the information on the ground that they were the defendants in cause No. 4318, in this court, and that by reason of the former information, trial, and acquittal by a jury in the case tried on the 20th day of February, 1923, they have been in jeopardy for the identical offense charged in this case, and this is a prosecution for that of which they have been acquitted, which motion was overruled and exception allowed.

The evidence shows that on December 19, 1922, Jack Smith, sheriff, together with his son, Jim Smith, and Lee Eyan, deputy sheriff, went to a tract of land northeast of Calumet, which appears to have been allotted to an Indian and unoccupied by any person; that upon arriving there they saw three men near a still. One of the men ran away and was not arrested. The other two men, the defendants in this case, remained. At the place where the defendants were standing was a whisky still and 25 gallons of whisky; the still was connected up and warm: The defendants claimed to have no interest in the still or the liquor, and stated that they lived some two or three miles northeast of the place; that they had started to their brother’s farm, a short distance away, taking with them a shotgun for the purpose of hunting; that they had seen some quail, and were led out of their path while shooting quail, and had in their possession one quail; that they did not know who the man was that ran away, and did not know who the still belonged to.

Sheriff Smith testified that his testimony in the former trial of the defendants in this court, wherein they were charged with manufacturing the corn whisky seized on this occasion upon which the defendants were acquitted, was the same as his testimony in this case.

Lee Eyan, deputy sheriff, testified in substance to the same facts as did Sheriff Smith.

Jim Smith was also called by the state, and testified in substance to the same state of facts.

The state rested, and there was a motion by the defendants for a directed verdict upon the plea of former acquittal, and in support thereof the defendants introduced the information and the verdict of the jury in case No. 4318. The motion was by the court overruled.

The defendant Theodore Moore testified that he and his brother, his codefendant, were on the way to obtain a tractor from another brother who lived in the vicinity, and that they took a shot gun with them and shot a quail, which was in their possession at the time of their arrest; that he had no interest or control over the land where the still and whisky was found; that this made a third trial he was having because of having been near the still; that he and his codefendant were tried in this county court for the manufacture of the whisky which was found at the still, and acquitted; that he was also tried in the federal court involving the same offense and was acquitted.

The defendant Ralph Moore testified to the same facts as did Theodore Moore.

Two other witnesses testified that they saw the defendants hunting a short time before their arrest.

At the close of the evidence there was a request by the defendants that the court submit the issue of former jeopardy to the jury, and that the jury be furnished with the information and verdict in the former case, which motion was denied.

The principal question presented by the record and the errors assigned is that of former jeopardy.

The constitutional guaranty not to be twice put in jeopardy is found in section 21 of the Bill of Rights, and is as follows:

“Nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.” Const, art. 2, §21.

Our Criminal Procedure provides:

“No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted exeept as hereinafter provided for new trials.” Section 2350, Comp. Stat. 1921.

And further that—

“When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.” Section 2626, Comp. Stat. 1921.

And further that—

“Where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense.” Section 2558.

It appears that both informations were verified by the oath of the sheriff, Jack Smith; that the names of the witnesses indorsed on both are the same.

In Estep v. State, 11 Okla. Cr. 103, 143 P. 64, we said:

“A series of criminal charges cannot, under our system of jurisprudence, be based upon the same criminal act or transaction; a single criminal act cannot be split up or subdivided into two or more distinct offenses and prosecuted as such. If the state elects, through its authorized officers, to prosecute an offense in one of its phases or aspects, and upon his trial the defendant is acquitted by a jury, it cannot afterwards prosecute the same criminal act or series of acts under color of another name. The state will not be permitted to split or divide up an offense into divers parts, and punish each moiety. * * * A jeopardy on one information will bar a second whenever the proof shows the second case to be the same criminal act or transaction.
“To give our constitutional provision the force evidently intended by the language used, and to render it effectual, the decisive test is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to the one information will equally sustain the other. The constitutional guaranty of immunity from a second prosecution is, in its nature, a restraint on the courts, and constitutional provisions for the security of the personal rights of the citizen should be liberally construed.”

In the case of Jackson v. State, 11 Okla. Cr. 523, 148 P. 1058, we said:

“A plea of former acquittal is sufficient whenever it shows, on its face that the second information is based upon the same criminal act or transaction. In determining whether there has been former jeopardy, the court is to look at the language of the first information, and if, under that information, the offense for which conviction is sought in the second prosecution might have been punished, then the defendant has been in jeopardy. The true test to make the plea a bar is whether the evidence necessary to support the second information would have been sufficient to procure a legal conviction on the first. The two informations allege the same date and have reference to the same intoxicating liquors, and while the offenses charged are not necessarily the same, they are of the same nature and kind. The acquittal under the first information was a finding that the defendant did not have possession of the liquors in question, and this finding was conclusive.”

In the case of Ex parte Nielsen, 131 U. S. 176, 9 S.Ct. 672, 33 L. Ed. 118, it was held by the Supreme Court of the United States that—

“The conviction of the petitioner of the crime of unlawful cohabitation was a bar to his subsequent prosecution for the crime of adultery, committed during the same period, where the adultery charged in the second indictment was an incident and a part of the unlawful cohabitation, for which he had been convicted.”

On the record before us we are convinced that the court erred in overruling the plea of former acquittal, and, when at the close of the state’s evidence in chief it appeared that the evidence adduced was the same as that on the first information in our opinion the court should have directed a verdict of former acquittal.

The judgment of the lower court is therefore reversed, and the cause remanded, with direction to dismiss.

BESSEY, P. J., and EDWAEDS, J., concur.


text:
    EARL BEST et al. v. STATE.
    No. A-5149.
    Opinion Filed Oct. 22, 1925.
    (240 Pac. 159.)
    Babcock & Trevathan, for plaintiffs in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

The plaintiffs in error were tried and convicted upon an information charging that in Canadian county, on or about the 1st day of February, 1924, they, the said Earl Best, Horace Hickam, and Jim Best, did then and there attempt to manufacture intoxicating liquors. March 10, 1924, the court rendered judgments in accordance with the verdicts returned by the jury and sentenced the defendant Earl Best to pay a fine of $250 and be confined in the county jail for 30 days, the defendant Horace Hickam to pay a fine of $250 and be confined in the county jail for 30 days and the defendant Jim Best to pay a fine of $125 and be confined in the county jail for 30 days.

The errors assigned and relied upon for a reversal of the judgments are that the court erred in permitting the officers to testify as to evidence obtained by them under an unlawful search and seizure, and that the evidence is insufficient to sustain the verdicts returned by the jury and judgments rendered thereon.

The undisputed facts are that the defendants Earl and Jim Best resided for 20 years on a farm on the south side of the South Canadian river, with their father and mother during their father’s lifetime, and for two years thereafter with their mother. There are two houses on this farm, just across the section line from each other. The old home place was at the time in question rented and occupied by Mr. Horn and the smaller house on the north side of the road was occupied by Jim Best, his family, and his mother until they left the farm. Mrs. Best’s furniture was left in the house, ancf a thresher and tractor were left there, which Jim Best, his brother, Earl, and Horace Hickam operated in the neighborhood, during the season of 1923.

The sheriff and three deputies each testified that on February 1, 1924, they searched the premises occupied by the defendants and found a still about 150 yards from the house buried under a bluff; also found about 4 barrels of mash buried about 20 yards beyond the still, and another barrel of mash up in a canyon. Down the river about 250 yards on another tract of land they found a cave and in it was a 5-gallon jug and a barrel; that they loaded the still on their car and destroyed the mash and went to the house; that while there the defendants Earl Best and Horace Hickam drove up in a car; that they arrested them without a warrant. The still found and seized was introduced in evidence.

The witnesses for the state admitted that the search and seizure was made without a search warrant. The record shows that before the commencement of the trial counsel made a motion to suppress all the evidence which the state seeks to use on the ground that it had been obtained by means of an unlawful search of the premises occupied by the defendants, and was an unreasonable search and seizure made in violation of the constitutional rights of the defendants. All the evidence for the state was admitted against the objections of the defendants.

At the close of the state’s evidence the defendants moved to strike all the evidence, whether by way of exhibits, or by way of testimony obtained by reason of the search, and to withdraw the same from the consideration of the jury on the ground that the search was made in violation of their constitutional rights. The motion was overruled. They then moved for a directed verdict on the ground that the state had failed to establish facts sufficient to connect them with the alleged offense. This was also overruled.

On the part of the defense the evidence shows that Jim Best left the farm and moved to El Reno, December 29, 1928'; that about the middle of January Earl and Jim Best went to the farm to butcher a hog that had been left on the premises and that they helped one of their neighbors to butcher a hog that day; about 10 days later they went ont to see Mr. Braugh, who had erected an oil derrick in the vicinity, about going to work on the oil well, and they went down and stayed at the house that night; that about the 20th of January the three defendants went out and did some threshing for Mr. Elberts, a neighbor, and the next morning went up to see Mr. Braugh at the oil well, and then returned to El Reno; that on the 1st of February Earl Best and Horace Hickam, having been led by Mr. Braugh to believe that work on the oil well would begin about that time, drove out from El Reno to the oil well and talked with Mr. Braugh, and then drove down by the Best place, and, seeing the officers in front of the place with a still tied on their car, they stopped. The officers asked them who they were, and, on being told, arrested the two boys, Earl Best and Horace Hickam.

As witnesses on their own behalf, they denied any knowledge of the still or the mash found. As to the times the defendants were out to this place and what they we^e doing while there, they are corroborated by other witnesses.

It has been repeatedly held by this court that where a conviction is based solely on evidence obtained by an unreasonable and unauthorized search and seizure, admitted over timely objection and exception, the judgment of conviction will be reversed.

A reasonable and lawful search and seizure is provided for in the Constitution by means of a search warrant, supported by oath or affirmation, showing probable cause (Bill of Rights, § 3'0), and of-ms are unreasonable and unlawful within the meaning or che constitutional provision.

In the case of Gore v. State, 24 Okla. Cr. 394, 218 P. 545, this court held that:

“Any articles, papers, or property seized by the officers or agents of the court, under color of an unreasonable or unauthorized search and seizure, taken from the home, office, or private premises of one accused of an offense, should not be used as evidence against an accused, where timely objections are made to the introduction of such evidence so illegally obtained.”

And further that:

“The same rule will apply to objections made to oral testimony of the officers relating to such illegal search and seizure.”

And further that:

“The reception of evidence so obtained is in conflict with sections 21 and 30 of the Bill of Eights, giving one accused of crime immunity from becoming a witness against himself, and inhibiting unauthorized searches and seizures.”

We hold, therefore, that the evidence challenged in this case was taken by the officers by an unlawful search and seizure and contrary to section 30, art. 2, of the Bill of Eights, and was improperly received in evidence against the defendants in violation of their rights under that clause of section 21, art. 2, of the Bill of Eights, giving one accused of crime immunity from becoming a witness against himself.

The judgments appealed from herein are accordingly reversed, and the cause remanded, with directions to dismiss.

BESSEY, P. J., and EDWAEDS, J., concur.


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    MAGGIE McDANIELS v. STATE.
    No. A-5189.
    Opinion Filed Oct. 22, 1925.
    (240 Pac. 149.)

      M. D. Hartsell, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Muskogee county, November 28, 1923, Maggie McDaniels did sell one pint of whisky to Leo Askew for $2. On the trial the jury returned a verdict finding defendant guilty as charged in the information, and fixing the punishment at a fine of $300 and confinement in the county jail for 30 days. From the judgment rendered on the verdict, she appeals.

The assigned grounds of reversal are: The court erred in overruling the challenge to certain jurors; that the court erred in overruling defendant’s objection to the introduction of evidence on the ground that the information fails to state facts sufficient to constitute a public offense; that said information is duplicitous, and that the court erred in overruling the defendant’s motion for a directed verdict of acquittal on the ground that the testimony is insufficient to sustain a conviction.

The state’s evidence shows that Leo Askew and R. D. Jones, deputy sheriff, with two other persons stopped in front of defendant’s store in Oktaha, on the date alleged; that Askew left the car and went into defendant’s grocery store. He testified that he bought a pint of whisky from defendant, paying her therefor two one dollar bills.

R. D. Jones testified that he waited in the car directly in front of the store until Mr. Askew called him, and that he then went in, and Mr. Askew had two pop bottles of whisky, and told him the money therefor was in her apron pocket; that he arrested defendant and took from her apron pocket two one dollar bills, that he identified by marks he placed thereon a few minutes before.

At the close of the state’s evidence, there was a motion on the part of the defendant for a directed verdict, which was overruled.

The defendant did not testify.

We have carefully considered the assignments of error, and we are convinced that each and all of them are without merit. The question argued in support of the challenges to certain jurors is not presented by the challenges as made. There is nothing in the objections to the information, and the testimony is so conclusive as to the guilt of defendant, that nothing can be said in her defense.

The judgment of the lower court is accordingly affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


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    W. W. PEARD v. STATE.
    No. A-5190.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 158.)

      Hoyt & Butler, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in Dewey county, March 4, 1924, W. W. Peard, “did then and there knowingly, willfully, and unlawfully make and manufacture by a process of distillation, intoxicating liquor, to wit, whisky.” On the trial, the jury returned a verdict finding him guilty as charged in the information, but failed to agree on the punishment. April 12, 1924, the court rendered judgment and sentenced the defendant to pay a fine of $300 and be confined for ninety days in the county jail.

The errors relied on, and upon which the defendant asks for a reversal, are as follows: That the court erred in permitting the officers to testify as to evidence obtained by them under an unlawful search and seizure, and that the evidence is insufficient to sustain the verdict and the judgment rendered thereon.

The record shows that, prior to the trial, defendant filed a motion to suppress all the evidence in the case, on the ground that the affidavit upon which the search warrant issued does not comply with the law, in that it does not allege that such residence is used as a store, shop, hotel, boarding house or place of storage, or is used as a place of public resort as provided in section 7013, C. S. 1921, and that said residence is described in said affidavit and warrant as follows: “S. % of Sec. 16-18 20, W. I. M. Dewey county” — and that said description does not state what township or range the said section is located in. Which motion was by the court overruled.

The evidence shows that on March 4th, C. C. Jones, sheriff, together with J. F. Watts and L. L. Libby, and two others went to the home of the defendant and made search of the premises, finding two barrels of “mash” buried in a shed, and a broken jar, two cream cans and a couple of jugs in the cellar of the house. These articles were intro1 duced in evidence. All the evidence for the state was admitted over the objections of the defendant.

At the close of the case for the state the defendant moved to strike all the evidence, whether by way of exhibits or by way of testimony obtained by reason of the search, and to withdraw the same from the consideration of the jury, on the ground that the search was made in violation of his constitutional and statutory rights, which motion was overruled. Defendant then moved the court to direct or advise the jury to find a verdict of not guilty, upon the ground that the evidence in the case wholly failed to sustain the offense charged in the information, which'motion was overruled.

On the part of the defense, the evidence shows that defendant is a farmer and stock raiser, and that the contents of the barrels found was hog feed; that the cans and jugs had had no whisky in them. Several witnesses qualified as character witnesses, and testified that defendant’s reputation for being a law-abiding citizen was good. As a witness in his own behalf, the defendant denied that he had ever made or handled whisky; that he had lived on that farm about 25 years.

Under the statute ('section 7013, C. S. 1921) no officer is authorized to search a private residence, occupied as such, unless it or some part of it is used as a store, shop, hotel, boarding’ house or place for storage, or unless such residence is a place of public resort, and no magistrate in this state has the power to issue a warrant to search a private residence, unless it is made to appear that such private residence comes within the exceptions stated in said section. Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Williams v. State, 30 Okla. Cr. 39, 234 P. 781.

It follows that the search and seizure shown in this case was an invasion of the constitutional and statutory-rights of the defendant, and that the evidence complained of was improperly admitted.

Assuming that the testimony was admissible, it was insufficient to sustain the offense charged.

For the reasons stated, the judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


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    JOHN SATTERFIELD v. STATE.

      No. A-5040.
    Opinion Filed Oct 24. 1925.
    (240 Pac. 151.)

      J. N. Fortner, for plaintiff in error.
    George F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of McCurtain county upon a charge of larceny of domestic animals, the plaintiff in error, hereinafter called defendant, has appealed.

The defendant relies upon two propositions: First, insufficiency of the evidence; second, error of the court in admitting incompetent evidence.

The first assignment requires no discussion. There is an abundance of evidence to sustain the verdict, and we think it not necessary to review the positive character of this testimony. If this were the only assignment of error, we should promptly affirm the case. The second assignment, that the court admitted incompetent evidence, is directed to testimony of several witnesses tending to prove defendant guilty of other independent larcenies of live stock. The fundamental rule of evidence that the issue in a criminal trial is single and the testimony should be confined to the one offense charged in the information was almost wholly ignored. The information charged the larceny of a certain cow belonging to Jenkins Riley. The following excerpts from the'evidence will disclose the nature of those errors. In the testimony of the witness Skiwall, the following took place:

“Q. Did Granville Allen, in your presence, on Sunday before the trial had on August 6, 1923’, say that Mr. Sat-terfield got one of his cattle and when he found it or caught up with it he paid for it? (Objection, overruled, exception). A. He did. * * * Q. John Satterfield present? A. No. * * *”

The witness F. R. Abbott was permitted to testify as follows:

“Q. You know David Galloway? A. Yes, sir. * * * Q. I will ask if about one week before John Satterfield was arrested charged with the offense for which he is being tried he didn’t come to your office in Idabel and state to you that John Satterfield was getting the C. L. Ellers cattle, had gotten two and killed one and sold it to the Kuykendall market? (Objection, overruled, exception.) * * * A. The statement is not exact. Q. Did he make it in substance?
“A. Yes, sir. * * *”

Houston Hutchinson gave this testimony:

“Q. Did you lose any cattle in 1921? A. Yes, sir. (Objection, overruled, exception.) Q. What were you doing in John Satterfield’s pasture? A. Looking for my yearlings. Q. Did you find any of the cows you lost? A. No, sir. (Objection, overruled, exception.) Q. Ever find your 'yearlings? (Objection, overruled, exception.) A. He offered to pay me for my calf. Q. Who do you mean by he? A. Mr. Satterfield. Q. Offered to do what? A. To pay me for the yearling he made away with. (Objection, overruled, exception.) Q. Tell the jury again. (Objection, overruled, exception.) A. Gentlemen, while out there looking for my stock — I had lost three head, one horse— and was looking for them, I was informed he had them and I went to find my stock— Q. Tell the jury what he offered to pay for? A. For my yearling, offered me a red sow. Mr. McClimons didn’t like red hogs, and I said I couldn’t take it, couldn’t take anything but money, and he said, T will bring the hog to you. * * *’ ”

Here the court took a hand, and the following took place:

“By the Court: Q. You say he offered to pay for the yearling? A. Yes, sir. Q. Did you lose that yearling? A. I lost the mother to this calf, and he put a brand on it and made away with the cow. Q. He branded the yearling? A. Yes, sir. Q. You gave him your consent? A. No, sir. Q. On before you knew it? A. Yes, sir. Q. And after it was on it you say he offered to pay for it? A. Yes, sir; I will tell you how it was. Q. No. When did you find out the brand was on your yearling? A. Yearling came to the cowpen. Q. You say some one told you about it? A. No, sir. Q. How come him to talk to you ? A. He saw the yearling in my cowpen.
“The Court: Objection overruled, and motion to strike denied.
“Mr. Fortner: To which the defendant excepts. * * *
“Mr. Hudson :■ Q. Did you ever find the cow that went off with the calf ?
“Mr. Fortner: Objected to as incompetent, irrelevant, and immaterial.
“The Court: Overruled.
“Mr. Fortner: We except. A.-. Q. And the calf come home with Satterfield’s brand? A. Yes, sir. * * *”

The matters referred to in the testimony of the witnesses set out are about matters entirely different to the charge of larceny of the cow of Jenkins Riley, and are not offered as tending to show a plan or scheme, nor is it within any exception under which evidence of other offenses might be admissible. It is of course elemental that the commission of one crime is not admissible in evidence upon the trial of a defendant for another. This testimony in no wise tended to prove the defendant guilty of the larceny of the Riley cow, unless it be that under the idea that if he was guilty of the larceny of other animals he was probably guilty in the case on trial. The evidence could not be other than highly prejudicial.

This court has had occasion frequently to announce the rule of law governing this class of testimony. In the case of Smith v. State, 5 Okla. Cr. 67, 113 P. 204, it was said:

“The issue on a criminal trial is single, and the testimony should be confined to the issue; and on trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses. Whart. Crim. Ev. par. 104; 1 Bish. Crim. Proc. par. 1120; State v. Hughes, 3 Kan. App. 95, 45 P. 94; King v. State, 66 Miss. 502, 6 So. 188; Stone v. State, 7 So. (Miss.) 500; McClure v. State, 148 Ala. 625, 42 So. 813. The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice in criminal prosecutions. Bishop says that ‘to permit such evidence would be to put a. man’s whole life in issue on a charge of a single unlawful act, and crush him by irrelevant matter which he could not be prepared to meet.’ 1 Bish. Crim. Proc. par. 1124.”

See Smith v. State, 3 Okla. Cr. 629, 108 P. 418. Also Vickers v. U. S., 1 Okla. Cr. 452, 98 P. 467; Hill v. State, 3 Okla. Cr. 686, 109 P. 291.

In the case of Cantrell v. State, 12 Okla. Cr. 534, 159 P. 1092, it was held:

“It is error prejudicial to the rights of the person on trial for the court to permit evidence of the general reputation of such person for the commission of the same or similar crimes to the one charged. The law is that the prisoner at the bar can be tried only for the crime charged against him, and not upon his reputation for having committed other crimes.”

The following cases are also enlightening on this subject: Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916 A, 989; Baldwin v. State, 11 Okla. Cr. 228, 144 P. 634; Appleby v. State, 11 Okla. Cr. 284, 146 P. 228; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383.

The admission of this evidence clearly deprived the defendant of a fair and impartial trial.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


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    DAVE BYNUM v. STATE.
    No. A-5048.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 150.)
    Fred L. Hoyt and John Butler, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen, for the State.
   EDWARDS, J.

From a conviction in the county court of Dewey county, the plaintiff in error, hereinafter called defendant, has appealed.

Three assignments of error are presented. First. Insufficiency of the information. Second. Insufficiency of the evidence. Third. Error of the court in refusing requested instructions. The information charges that the defendant did, in Dewey county, transport intoxicating liquor, to-wit:

“One-half gallon of whisky from a point in Dewey county, Okla., unknown to informant to another point one mile south of the town of Leedey, Dewey county, Okla., in the section line, contrary, etc. * * *”

Defendant contends that the information is insufficient in that the section line is not identified; that a point on the section line one mile south of the town of Leedey may vary considerably, and that it does not apprise the defendant of the particular spot to which the whisky is alleged to have been transported, citing Robbins v. State, 12 Okla. Cr. 412, 157 P. 1027, in which case the information charged transporting of intoxicating liquor “from some point in Beaver county to your informant unknown to K. of P.. Lodge Hall, a place then and there in Beaver county.” In the Robbins Case, the information did not allege the town or place where the K. of P. Hall mentioned was located or fix the place other than in Beaver county. There might have been different K. of P. Halls in Beaver county, and it was the duty of the pleader to allege the town or location. In this case, the location to which the liquor was transported is fixed at a point on the section line one mile south of the town of Leedey.

Section 2555, Comp. St. 1921, is in part as follows:

“The indictment or information must contain: * * * Second. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

Section 2564, Comp. St. 1921, provides:

“No indictment or information is insufficient, nor can the trial, judgment or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

An information which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for trial, and so defines and inden-tifies the offense that the accused, if convicted or acquitted, will be able to defend himself in case he be informed against again for the same offense by pleading the record of such former conviction or acquittal, is generally held sufficient. Smythe v. State, 2 Okla. Cr. 286, 101 P. 611, 139 Am. St. Rep. 918; State v. Feeback, 3 Okla. Cr. 508, 107 P. 442; Price v. State, 9 Okla. Cr. 359, 131 P. 1102. Particularly is this so where such claimed defect cannot prejudice the defendant.

An examination of the record discloses that the defendant was arrested at the particular spot where the whisky was found, and to which spot the state alleges it was transported. There could have been no prejudice by reason of the place being indefinite. The information is sufficient.

Upon the contention made that the evidence is insufficient, it appears that the witness Riddle observed some person hide liquor in a canyon near his house a mile south of Leedey. He observed such person drive a Ford car into the canyon, and remain there some 15 minutes, then leave and go to town; the witness then went toward town and met the defendant returning. For several days a car which he took to be the same car had been coming in and going out of the canyon. He identified the car as being the same by appearance and by a loose glass in the rear. Officers, being apprised of the hidden whisky to which parties were making frequent visits, lay in wait and arrested the defendant at the spot. The defendant testified that he did not place the whisky there and had nothing to do with it.

The evidence was such that the jury could reasonably and logically find the guilt of the accused, its weight and sufficiency was for the jury. While the witness Riddle was somewhat cautious in his identification, we believe the jury were fully warranted in finding the guilt of the accused. This court will not disturb it on the ground of insufficiency.

The third assignment is based on the refusal of the court to give a requested instruction to the effect that the transportation of whisky to constitute an offense must be from one point or place within the state to another point or place, and that merely lifting the whisky from the ground and returning it would not be such transportation. This instruction was covered fully by the charge of the court, and there was no error in refusing the requested instruction.

Upon a consideration of the entire case, the defendant was fairly tried, the evidence reasonably supports the verdict, the issues of law were fairly submitted, and no prejudicial error appears.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    DREW YOUNGBLOOD v. STATE.
    No. A-4885.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 140.)

      Bond & Lewis, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, here referred to as the defendant, was convicted of having illegal possession of 10 gallons of whisky, with his punishment fixed by the jury at a fine of $100 and 30 days in jail.

The evidence discloses that the defendant lived on a farm near the section line road. Opposite his home and farm buildings, across this road, was an unoccupied pasture, through which there was a neighborhood road; there was an entrance to this pasture through an open gate just opposite defendant’s house. Near this opening in the pasture and in other parts of it there were trees and underbrush, interspersed with open spaces. On occasions, particularly on Sundays, the pasture was frequented by campers, picnickers, and outing parties.

Two officers went to the home of the defendant with a search warrant, to look for intoxicating liquor; no evidence of liquor was found on the premises of the defendant, but the officers found in this pasture, about 300 feet from the defendant’s residence, 10 gallons of whisky in glass jars, hidden under leaves and brush; also in the pasture, about a quarter of a mile away, they found a barrel of mash; and still further on they found a still and more mash.

Neither of the officers assumed to know who placed the whisky where it was found, or to whom it belonged. The defendant denied ownership of the whisky, or any knowledge of its presence where it was found, and said that he knew nothing about the still.

The defendant, among other assignments of error, attacks the sufficiency of the evidence. The only circumstance pointing to the guilt of the defendant was the proximity of the liquor to the residence of the defendant. This amounted to a strong suspicion that the defendant was implicated, but is insufficient to establish guilt beyond a reasonable doubt. It was not exclusive of several other reasonable explanations, one of which is that the real culprit, to protect himself, may have placed the liquor in this pasture near defendant's place to cast suspicion upon the defendant.

This court has no inclination to be kind to bootleggers} when the proof is sufficient to so classify defendants; but the rule applicable to the quantum of proof and reasonable doubt in liquor cases must necessarily be the same as in other cases.

The cause is reversed and remanded.

DOYLE and EDWARD'S, JJ., concur.


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    HENRY WALLS v. STATE.
    No. A-5116.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 146.)
    W. T. Cleeton, for plaintiff in error.
    Geo. F. Short, Atty Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Pawnee county the plaintiff in error, hereinafter called defendant, has appealed.

Only one assignment of error is argued in the brief of the defendant; i. e., that the court erred in his instructions to the jury. Instruction No. 7, in part, is as follows:

“The prosecution of this offense is not an issue between the defendant and the officers of the law, but the defendant is being prosecuted for an offense against the state of Oklahoma. * * *”

And instruction No. 8 is as follows:

“You are instructed that it is no less an offense to sell intoxicating liquor for any purpose to a sheriff or prosecuting attorney, or to an agent, detective, or representative of either than it is to sell to any one else; and a sale made to such officer or agent or detective, though solicited by him for the purpose of detecting the commission of the offense and of instituting prosecution therefor, is punishable the same as if the sale had been made to any other person and for other purposes.”

These instructions assume the sale of whisky. This was a controverted question, and the assumption by the court that the sale was made is prejudicial.

The case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


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    JAKE REINHART et al. v. STATE
    No. A-5110.
    Opinion Filed Oct. 24, 1925.
    (240 Pac. 139.)

      H. F. Tripp, for plaintiffs in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Oklahoma county upon a charge of having possession of intoxicating liquor with intent to sell, the plaintiffs in error, hereinafter called defendants, have appealed.

Two assignments of error are argued: First, that the evidence is insufficient to sustain the verdict; second, error of the court in admitting evidence obtained by an illegal search. Upon the first assignment we do not deem it necessary to review the evidence. An examination of the record discloses sufficient evidence from which the jury might reasonably and logically find the defendants guilty. If this were the only error relied upon, this court would promptly affirm the ease.

The second assignment is based upon the admission of evidence which defendants contend was procured by means of an unlawful search. The witnesses for the state were several members of the police force of Oklahoma City. They testified, in substance, that under the authority of a search warrant issued out of the police court of Oklahoma City they raided the place of business of the defendant Reinhart, in which the defendant Terry was an employee, and two bottles of whisky in the possession of said Terry were broken in the sink, and for that reason the officers were unable to produce the same in court.

It is argued that the search warrant testified to was issued by an officer having no authority to issue search warrants under the provisions of the enforcement act. This contention is well taken. Under the Enforcement Act (section 7009; Comp. Stat. 1921), the authority to issue search warrants is specifically delegated to judges of courts of record and justices of the peace. A police judge Is without authority to issue warrants for search in connection with alleged violations of the liquor law. The warrant relied upon in this case was a nullity, and a search predicated upon the authority of such warrant was illegal. Terry et al. v. State, 31 Okla. Cr. 91, 237 P. 465.

The case is reversed and remanded, with instructions to the lower court to dismiss.

BESSEY, P. J., and DOYLE, J. concur.