text:
    HOWARD STANTON v. STATE.
    No. A-4937.
    Opinion Filed May 13, 1925.
    (235 Pac. 941.)
    (Syllabus.)
    Larceny — Evidence Sustaining Conviction of Grand Larceny. In prosecution for grand larceny, evidence beld to sustain a conviction.
    Appeal from District Court, Wagoner County; E. A. Summers, Judge.
    Howard Stanton was convicted of the larceny of a Ford car, and he appeals.
    Affirmed.
    See, also, 23 Okla. Cr. 193, 213 P. 914.
    Bert Van Leuven, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in Wagoner county, July 20, 1920, Howard Stanton and A. J. Johnson did take, steal, and carry away by stealth, a 5-passenger Ford automobile the property of J. L. Raper. On his separate trial the jury returned a verdict finding the defendant Howard Stanton guilty of larceny of an automobile as charged in the information, and fixed his punishment at confinement in the penitentiary for a term of 5 years. From the judgment rendered in accordance with the verdict on May 28, 1923, an appeal was duly perfected, but no brief in support of the assignments of error has been filed, and no appearance made on behalf of appellant in this court.

The errors assigned are, in substance, that the verdict of the jury is contrary to both the law and the evidence, and that the court misdirected the jury as to matters of law, and erred in its decisions as to questions of law arising during the course of the trial.

The evidence shows that J. F'. Raper, a county commissioner of Wagoner county and merchant at Coweta, where he resides, missed his car from his garage on the morning of July 21, 1920; the car was returned to him by the chief of police of Pawhuska. The car had inner linings between the casings, and he identified it by the number on the engine, although the two last figures had been tampered with.

J. E. Cates, chief of police of Pawhuska, testified: That, in company with 3 or 4 other officers, he met the defendant on August 8th, near the city of Wynona, driving a Ford car described as stolen from Mr. Raper. Chief Cates asked him where he got the car, and the defendant said he bought it from a boy. The number had been mutilated, but by using a glass the original number could be made out. That he notified the owner, Mr. Raper, who came and identified the car.

As a witness in his own behalf, the defendant testified: That he lived in the vicinity of Wynona. That he was in Wynona on July 21, and a fellow was trying to sell the car to Newt Simpson, who said he did not want it. That he then asked about the price, and the man said that he would take $650 for the car. That he offered $600 and finally offered to split the difference, and the man said he could have it. That he paid this man in currency $625, and took from him a bill of sale signed Bert Johnson, with M. M. Weinberger and John Stephens witnesses, dated July 22, 1920.

On cross-examination, the defendant stated that he had won $340 of the purchase price playing poker, and the balance of the money he had collected for pasture rent.

While the defendant is not represented in this court, we have carefully gone through the record and find it free from substantial error. No objection was made or exceptions reserved to the instructions given, and they fully and correctly cover the law applicable to the case.

' The jury evidently did not believe the story of the defendant as to how he secured possession of the car, and we find nothing that gives us the right to say that the interests of justice require a new trial.

The judgment herein is accordingly affirmed.

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


source: Caselaw Access Project

author: BESSEY, P. J.

license: Public Domain

text:
    JOSEPH E. YEATS v. STATE.
    No. A-5436.
    Opinion Filed May 14, 1925.
    (236 Pac. 62.)
    (Syllabus.)
    1. Abduction — Divorced Person Within 6 Months from Divorce Abducting Female Under Age of 15 for Purpose of Marriage. A divorced person in this state, within the 6-month period during which he is prohibited from contracting a second marriage, may be. guilty of dhe abduction of a female child under the age of 15 years “for the purpose of marriage,1” where it is shown the purpose of the abductor was to marry the girl in Texas and to establish a permanent residence there.
    2. Same — Inhibition of Marriage in Decree of Divorce Within 6 Months not Rendering Invalid Marriage in Another Jurisdiction Where Otherwise Valid. Within the meaning of our statute, ' section 1842, Comp. Stat. 1921, defining abduction “lor the purpose of marriage or concubinage,” the inhibition against marriage contained in every decree of divorce until the expiration of 6 months is not one which continues the marital status so as to render invalid a marriage contracted in another jurisdiction where it would otherwise be valid.
    3. Divorce — Marriage of Divorced Person Within 6 Months Invalid if Solemnized , in State, or in Another State to Evade Law. A marriage of a divorced person within the prohibited period is invalid in this state if solemnized here, or if solemnized in a áister state to evade the law of this state.
    4. Abduction — Attempted Common-Law Marriage of Divorced Man to Girl Under Age of 15 Within 6 Months After Divorce Void. An attempted common-law marriage of a divorced man to a girl under the age of 15 years, entered into during the prohibited period after the divorce decree is rendered in this state, is void, and constitutes no defense to a prosecution for the abduction of the. female child.
    Appeal from District Court, Nowata County; C. H. Baskin, Judge.
    Joseph E. Yeats was convicted of abduction, and he appeals.
    Affirmed.
    C. F. Gowdy, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Joseph E. Yeats, plaintiff in error, herein referred to as the defendant, was charged with the abduction of Georgia Fields, the minor daughter of Mr. and Mrs. A. W. Fields. At the trial he was found guilty and sentenced to serve a term of 5 years in the state penitentiary.

The evidence shows that at and before the time of the offense as charged the defendant was the minister in charge of a church at Alluwe, in Nowata county. The parents of the girl connected with this unhappy affair were active members of his church. The defendant was a man 36 years of age, the father of three children, and had been divorced from his wife about 5 weeks prior to this abduction. Georgia Fields had not quite reached the age of 15 years. By reason of their church affiliation and frequent association together this girl and the defendant developed an affection for one another, culminating in defendant’s flight with the girl in an automobile over a circuitous route to Winter, Tex.

This record discloses that the defendant was an illiterate person, with emotional religious tendencies, but incapable of discerning, or at any rate of practicing, the higher principles of morality. Without relating all of the details leading up to and surrounding the deception practiced upon the victim’s parents and others, and the subsequent flight of the defendant with the girl to Texas, it appears that in the course of the protracted evangelistic religious services then being held by the defendant, during which time he gave this girl music lessons and they planned various entertainments, she fell in love with him. They were much in each other’s society, and finally they agreed to marry, and planned to secretly escape to Texas for that purpose. To create an excuse for stealing this child from her parents — an excuse that would seem plausible to the minds of the members of his church — the defendant induced the girl to tell two or three of her girl friends that she was born out of lawful wedlock; that her reputed father, Mr. Fields, was not her real father, and that her home life was restricted and unhappy; that she expected to go to stay with defendant’s parents in Texas, where she might enter school to finish her education. Pursuant to these plans they did go to Texas, where they were soon apprehended and arrested. The girl’s father and mother followed and brought their repentant daughter home. After consulting the county attorney, this prosecution was instituted.

The statute upon which this prosecution is based, section 1842, Comp. Stat. 1921, reads as follows:

“Any person who takes away any female under the age of fifteen years, from her father, mother, guardian or other person having legal charge of her person, without their consent, for the purpose of marriage or concubinage, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding one year, or by a fine not exceeding one thous- and dollars, or by both such fine and imprisonment.”

The information alleged that the defendant took this girl, under the age of 15 years, without the consent of her parents, “for the purpose of marriage.”

The numerous assignments of error urged by defendant may be condensed into two propositions: (1) That the court erred in refusing to instruct the jury that under the evidence this defendant could not have abducted this girl for the purpose of marriage because he could not at that time have entered into a legal marriage, on account of the provision contained in the decree of divorce, prohibiting him from entering into a second marriage until 6 months after its rendition, and the provisions of our divorce statute to the same effect; (2) that the defendant could not be prosecuted for an abduction for the purpose of marriage because the testimony showed that the defendant and this girl had entered into a common-law marriage a few days before the alleged abduction.

In other words, defendant first contends that he could not enter into a legal marriage, and therefore could not be guilty of abduction “lor the purpose of marriage,” within the meaning of the statute; and next contends that he did enter into a legal common-law marriage with this girl at Alluwe, before the abduction, and that therefore the abduction was not “for the purpose of marriage.” These inconsistent defenses will be considered in their order.

Our statute prohibiting remarriage within 6 months after rendition of the decree of divorce, section 510, Comp. Stat. 1921, in part provides:

“It shall be unlawful in any event for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement. * * * Any person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage shall be absolutely void.”

Our divorce statute was borrowed from the state of Kansas. Before our adoption of the state the Supreme Court of Kansas held that the divorce when granted dissolved the marriage relation, and that within that state until the expiration of the 6-month period the penal provisions of the divorce statute applied only to the prohibition. In a few cases the courts say, or by loose language intimate, that the marriage relation between the parties does not actually terminate until the end of that period. This discrepancy also appears in some of the Oklahoma decisions. Wilhite v. Wilhite, 41 Kan. 154, 21 P. 174; Niece v. Ter., 9 Okla. 535, 60 P. 300; Baughman v. Baughman, 32 Kan. 538, 4 P. 1003; Wilson v. State, 16 Okla. Cr. 471, 184 P. 603; Atkeson v. Sov. Camp, W. O. W., 90 Okla. 154, 216 P. 467.

The divorce statute defining bigamy differs from the general statute on bigamy, and provides for a lighter penalty. A second marriage within the 6-month period is an anomalous kind of statutory bigamy, analogous to statutory rape without force.

The Legislature has the right to regulate the contract of marriage and the formalities of its dissolution within the state, but the courts are not in harmony as to just what extraterritorial force and effect will be given to certain collateral domestic policies beyond the limits of the state.

It must, of course, be conceded that the defendant could not consummate a legal second marriage in this state within the 6-month period, but many of our sister states have held that one might do so in another state where the marriage and divorce laws of the latter contain no such prohibition. They so hold upon the theory that in effect within this state the marital relation is dissolved the moment the decree of divorce is rendered, and that the prohibition against remarriage is in the nature of a penalty which a sister state having a different policy will not enforce, so that within such a sister state a second marriage may be consummated within the 6-month period, valid in that state. If that be true, and if Texas is one of the states so holding, this defendant might within the 6-month period abduct from Oklahoma into Texas a female child under the age of 15 years, for the purpose of a legal marriage in Texas.

In Atkeson v. Sovereign Camp, W. O. W., supra, the court held that a marriage contract entered into in another state within 6 months from the rendition of the decree of divorce in Oklahoma is void in Oklahoma, “or in any other place.” The phrase “in any other place” is dictum, because in that case the validity of the divorce in any other place was not involved. Furthermore, the courts of this state are powerless to decree a marriage void out of the state, so the phrase “in any other place” is meaningless.

In the case of Wingo v. Rudder (Tex. Civ. App.) 120 S. W. 1073, it was stated that such provision in a judgment of divorce rendered in another state is to be regarded as a penalty, and that it is clear, beyond controversy, that a provision imposing such penalty could not be made effective as a bar against Nancy’s entering again into the marital state within the state of Texas; Texas having no such prohibition.

In a recent opinion by the Supreme Court of this state (Mudd v. Perry, 108 Okla. 168, 235 P. 479) the court criticizes the holding in the Atkeson Case thus:

“Many members of the bar (and some of the members of this court) believe that under the law of this state that the inhibition against marriage contained in each decree until the expiration of six months, was not one which continued the marital status, so as to render invalid a marriage contracted in a jurisdiction where it would otherwise be valid.” A

In the notes to Owen v. Owen (178 Wis. 609, 190 N. W. 363), 32 A. L. R. 1142, it is stated:

“When the question as to the validity of the marriage has arisen in a third state or country, that is, a state or country other than that in which the divorce was granted, * * * it has generally been recognized and given effect, assuming that the divorce was effectual to dissolve the former marriage relation, and the remarriage was valid according to the law of the place where it was celebrated, notwithstanding that at the time thereof one of the parties was subject to an inhibition against remarriage imposed by the decree of divorce by statute of the state where the divorce was granted,” citing authorities in support of this rule from Alabama, California, Washington, Indiana, Maryland, Colorado, and Missouri.

In the case of Green v. McDowell, 210 Mo. 517, 242 S. W. 168, it was held:

“A marriage in Tennessee, within six months of a decree of divorce rendered in Oklahoma, was valid, though marriage could not be had within such time in Oklahoma.”

To the same effect is the case of Bauer v. Abrahams, 73 Colo. 509, 216 P. 259, construing the effect of a Kansas decree of divorce prohibiting remarriage within 6 months, wherein the court held that marriage in New Mexico a few days after the Kansas decree was entered was valid; that the prohibition against marriage within the 6-months period had no extraterritorial effect.

So we conclude that the defendant, at the time of the abduction, could have entered into a marriage in Texas, and there is evidence in the record supporting his alleged purpose to do so. Further, there is nothing in the statute indicating that the purpose of marrying must be immediately followed by a marriage. The purpose to marry might relate to some indefinite future time. It may be that the defendant intended to keep this girl with his parents in Texas until the expiration of the 6 months, or until she became of marriageable age. The record shows that she might resume her school work in Texas, and there is nothing in the record indicating that the defendant intended in the meantime to live with her in a state of concubinage, unless such fact may be inferred from his moral delinquencies generally.

The girl, who testified for the state, said that prior to leaving she and the defendant frequently talked of marriage some time in the future; that the defendant contemplated marriage is shown'by the fact that he procured two marriage licenses, one in Kansas and one in Missouri, and that he was so anxious about it that in both cases, to procure the licenses, he committed perjury. His written communications to the girl’s parents indicated that he contemplated marriage. The defendant himself testified that he intended to marry the girl. Where? Presumably in Texas, whither they fled and where he told the girl they would make their home.

The instructions requested, to the effect that, if the evidence showed that the defendant could not legally enter into the marriage relation, he should be acquitted, were properly denied.

If the deduction that the defendant could have entered into a legal marriage in Texas is faulty, this defendant might still be amenable to the penalties of this statute, as- ■ suming that the marriage contemplated would in fact have been illegal. Our statute on bigamy makes it a felony for a married person, while that relation exists, to marry another. Manifestly, the second marriage would be an illegal one, but that does not prevent the operation of the statute. The statutes defining both the crime of bigamy and the\ crime of abduction are designed to preserve the sanctity of domestic relations, and just why, to invoke the respective penalties prescribed, the marriage contemplated in the abduction case must be a legal one and in a bigamy case an illegal one is hard to understand.

In the case of People v. Cerami, 101 App. Div. 366, 91 N. Y. S. 1027, it was said:

“On a prosecution, under Pen. Code, § 282, subd. 1, for the abduction of a female under 18 for the purpose of marriage, evidence to show that defendant was married to another woman at the time of the offense is inadmissible.”

To the contrary, see U. S. v. Zes Cloya (D. C.) 35 F. 493.

We pass now to defendant’s second claim that the defendant and this girl had entered into a common-law marriage a few days prior to their secret flight to Texas. On this feature of the case the record shows that Georgia Fields and two other girls, at a public entertainment at the church on Thursday night preceding this flight on Monday, had gone to a well near by to get a drink of water; that the defendant joined them with a dipper; that the two other girls drank and returned to the church; and that the defendant called Georgia aside, and there, acting as a Christian minister authorized to solemnize marriages, assumed to perform a marriage ceremony between himself and the girl, thus:

“I told her that we would have to go through the ceremony, which we did. And she pledged to take J. E. Yeats to be her wedded husband, and I promised to take Georgia L. Fields as my wedded wife. She concluded the avowal •in the name of the Father, the Son, and the Holy Ghost, Amen, and she said it together with me, and we parted hands and she came back to the house.”

The remarkable ceremonial proceeding thus described was of no force or validity whatever. Since the defendant had just recently been divorced, with a proviso in the decree that he could not remarry for a period of 6 months, "which was clearly effective in this state, and because of the further fact that the other contracting party was under the age of legal consent, this pretended marriage was clearly invalid. Moreover, the conduct of the defendant indicates that he knew that it was invalid — a mere subterfuge to deceive the girl, and for the purpose of creating an excuse for the contemplated abduction, to be used later. There was no public announcement made, no holding out to the public that they were husband and wife. Where persons attempt a marriage in a conventional' way, by procuring a license to marry, as was done in this case, and are prevented from consummating such a marriage by legal impediments, they cannot, by the subterfuge of a so-called common-law marriage, do indirectly what they could not legally do by the more conventional mode. A common-law marriage imports good faith. Words and Phrases, First and Second Series, subject “Marriage”; 18 R. C. L. “Marriage”, §§ 34, 54, et seq.

The lack of good faith and the evil purposes of the defendant are emphasized by the fact that he twice committed perjury in procuring the marriage licenses; that he made a false return on one of them; that he deceived the girl, and deceived and slandered her parents, and otherwise prostituted his holy office as a Christian minister.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    CHARLEY SMITH v. STATE.
    No. A-4863.
    Opinion Filed May 16, 1925.
    (235 Pac. 1119.)
    Appeal from County Court, Garfield County; E. L. Swigert, Judge.

      Charley Smith was convicted of unlawful possession, of intoxicating liquor, and appeals.
    Proceedings ordered abated.
    L. C. McLean, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Charley Smith, was convicted of unlawful possession of intoxicating liquor, and in accordance with t'he verdict of the jury was sentenced to confinement in jail for 90 days and to pay a fine of $300. From the judgment rendered on the verdict, he appealed by filing in this court, September 25, 1923, a petition in error, with case-made. His counsel of record has suggested the death of appellant. It is therefore considered and adjudged that the proceeding in the above-entitled cause has abated, and that the county court of Garfield county enter its appropriate order to that effect.


author: BESSEY, P J.

text:
    JOHN L. WELCH v. STATE
    No. A-4766.
    Opinion Filed May 16, 1925.
    (236 Pac. 68.)
    (Syllabus.)
    1. Statutory Provisions. Section 2471, Comp. Stat. 1921, provides that an arrest may be made without a warrant (1) when the person arrested has committed a felony, although not In the officer’s presence; (2) when a felony has been committed and the officer has reasonable cause for believing that the person arrested committed it; and (3) on a charge made, on reasonable cause, of the commission of a felony by the person arrested.
    2. Arrest — Arrest Without Warrant of Person in Possession of Property Alleged to Have Been Stolen. Where personal property is said to have been stolen, it is not incumbent upon a peace officer to first ascertain whether the person in whose possession it is found claims ownership in the property.
    3. Arrest — Arrest Without Warrant not Unlawful Where Reasonable Ground to Believe Accused Guilty of Felony. If a constable or other peace officer arrest a person without a warrant he is not hound to show in his justification a felony actually committed to render the arrest lawful, but if he suspects one on his own knowledge of facts, or upon facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of a felony, the arrest is not unlawful.
    4. Same — Arrest Without Warrant Justified Despite Subsequent Events. If the facts are such that a reasonably prudent man would have believed accused guilty, and would have acted upon that belief, a police officer is justified in making an arrest without a warrant, although subsequent events proveí that no offense had been committed.
    5. Same — Reasonable Grounds for Believing Accused Guilty. To justify an arrest without a warrant, the officer must not act upon facts indicative of guilt when at the same time he has knowledge of other facts indicative of innocence. In such a cas'e the reasonable grounds should be deduced from a consideration of all the facts known to the officer.
    6. Evidence — Written Return to Search Warrant Best Evidence — . Exclusion Erroneous. The written return to the execution of a search warrant is ordinarily the best evidence of what the executing officers did. The refusal of the court to permit the defendant to show this by the written return, under the circumstances here, was error.
    7. Arrest — Accused not to be Subjected to Unnecessary Restraint. An accused person is not to be subjected to any more restraint than is necessary for his arrest and detention.
    8. Jury — Jurors Who; Have Opinion Based on Rumor or Newspaper Reports not Necessarily Disqualified. Jurors who have formed or expressed an opinion based upon common rumor or newspaper reports are not necessarily disqualified.
    9. Jury — Overruling Motion to Suppress Panel Because no Negroes Included not Error. Where a jury panel is challenged on the ground that no negroes were drawn on the panel, and the jury commissioners testify that they selected the jurors from the tax rolls of the county without any discrimination against negroes, and the showing is not specifically controverted, the trial court commits no error in overruling the motion to suppress the panel.
    Appeal from District Court, Muskogee County; Guy F. Nelson, Judge.
    John L. Welch was convicted of murder and sentenced to life imprisonment, and he appeals. Reversed and remanded on rehearing.
    Original opinion withdrawn.
    W. H. Twine, H. T. Walker, and C. W. Wesley, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   BESSEY, P J.

The amended information in this case charges that the plaintiff in error, John Welch, a negro, willfully and unlawfully, with a premeditated design to effect the death of Homer Teaff, shot the said Homer Teaff with a pistol and a rifle and struck him on the head with a cotton hoe, crushing his skull, from which mortal wounds so inflicted by the defendant Homer Teaff died, done with the felonious intent to kill and murder Homer Teaff.

The evidence shows: That one Frank L. Hendricks, a negro cotton farmer, lived on Brushy Mountain in Muskogee county, adjoining the cotton farm and premises occupied by the defendant and his wife, negroes about 58 and 30 years of age, respectively, and that. Hendricks had recently been in possession of both farms. That growing out of some business transactions the two men became bitter enemies. That a short time prior to this homicide the home of the defendant on these leased premises was burned while the defendant was in Muskogee, under circumstances indicating that the burning was done to conceal a robbery. After the fire benevolent neighbors and friends gave the defendant some galvanized sheet iron, from which he constructed a temporary shack home; they also gave to him and his wife some quilts, counterpanes, cooking utensils, and other articles. On and prior to the 27th day of June, 1922, the defendant and his wife had been chopping cotton on his premises, and while doing so they fastened the windows and locked the door of their tin shack.

On the 27th day of June this neighbor, Hendricks, made an affidavit for a search warrant, as follows:

“Frank L. Hendricks, being duly sworn, says: That John L. Welch, on the 22d day of June, 1922, in the county of Muskogee and state of Oklahoma, did then and there feloniously take, steal and carry away one 32 Winchester rifle, eyeglasses, one pair black slippers, two feather pillows, two quilts, one hair brush, one comb, one pair scissors, one spool white thread, of the value of $25, the property of said Frank L. Hendricks; and that he, the said Frank L. Hendricks, suspects that such property is concealed on the premises of John L. Welch, 9 miles southeast of Muskogee, on Brushy Mountain road, in a galvanized iron house.
“Frank L. Hendricks.
“Subscribed and sworn to before me this 27th day of June, 1922.
“Charles Wheeler, “Judge of the City Court.”

Upon this showing, on this same day, the judge of the city court issued a search warrant, directed to the sheriff, a part of which reads as follows:

“You are therefore commanded, in the daytime, to make immediate search, of the person of John L. Welch, or in the premises situated at 9 miles southeast of Muskogee, on Brushy Mountain road, for the following described property: One 32 Winchester rifle, eyeglasses, one pair black slippers, two feather pillows, two quilts, one hair brush, one comb, one pair scissors, one spool white thread1 No. 50, and if you find the same, or any part thereof, to bring it forthwith before me at Muskogee.”

The return on the search warrant is as follows:

“State of Oklahoma, Muskogee County — ss.:
“Return.
“I received this warrant on the 27th day of June, 1922, and executed the same as follows: By finding and seizing the following described property: Nothing found.
“I,-, the officer by whom this warrant was executed, do swear that the above inventory contains a true and detailed account of all the property taken by me on this, warrant.
“Subscribed and sworn to before me this 29th day of June, 1922.
“J. D. Robbins.
“Homer Teaff.”
“Indorsed.
“Original Search Warrant. The State of Oklahoma v. -, Defendant. Filed June 29, 1922. Marion Davis, Clerk of City Court.”

The defendant sought to introduce this return in the manner following:

“Mr. Walker: We offer in evidence the return on the back of this search warrant, and ask that it be marked Defendant’s Exhibit F.
“Mr. Crump: Object to it. I don’t think it is competent.
“The Court: Sustained.
“Mr. Walker: Exception.”

The refusal of the court to permit this return to go to the jury is assigned as error. The assignment will be treated later in the opinion.

Under authority of this search warrant, on the day it was issued, two deputy sheriffs, W. O. Manley and the deceased, Homer Teaff, went to the shack home of the defendant, while the defendant and his wife were in a field about a quarter of a mile distant chopping cotton, and in the absence of the defendant and his wife, according to the testimony of Manley, they broke into the shack and seized certain articles which they carried to the house of Hendricks, where Hendricks and his wife identified portions of the property seized as their property, whereupon these officers delivered and turned over to the Hendricks this property which they claimed. They then retraced their steps and proceeded to the cotton field for the purpose of apprehending and arresting the defendant and his wife.

From this point on the recital of the facts and circumstances by different ones of the state’s witnesses is confusing. Manley, the surviving deputy sheriff, testified in part as follows:

“Q. What did you do then or undertake to do, after you received the information as you testify, and after you found the property identified as stolen property in the Welch house? A. Undertook to arrest John Welch and his wife.
“Q. Where were they at the time you undertook to arrest them? A. In a cotton patch, hoeing cotton.
“Q. How far from the house? A. Right at a quarter of a mile from the house to where they were hoeing cotton, and directly north of the highway 50 steps.
“Q. Tell what you said to him — what occurred there at the time you made the arrest, until you got him arrested? A. I walked up in front of him, and he (Teaff) said for him to consider himself under arrest; he said we found ■some stuff, stolen stuff, identified by Hendricks, and would have to take him to town.
“Q. What did he say? A. He said, T haven’t got anything in my house belongs to that son-of-a-bitch.’ ”
“Q. What did you do then? A. Told Homer to put the handcuffs on him.
“Q. Did he do it? Yes, sir.”

If the search and seizure were made as above outlined and the testimony of this surviving officer is true, these two officers were justified in making this arrest without a warrant, under the provisions of section 2471, Comp: Stat. 1921, a portion of which provides that an arrest may be made without a warrant (1) when the person arrested has committed a felony, although not in the officer’s presence; (2) when a felony has been committed and the officer has reasonable cause for believing that the person arrested committed it; and (3) on a charge made, upon reasonable cause, of the commission of a felony by the person arrested. .

Where personal property is said to have, been stolen, it is not incumbent upon a peace officer to first ascertain whether the person in whose possession it is found claims-ownership in the property. That is a judicial function, an issue to be decided by some court.

In a case recently decided by the Supreme Court of the United States, Carroll v. United States, 45 S. Ct. 45 S. Ct. 280, 69 L. Ed., in an opinion written by Chief Justice Taft, this statement occurs:

“If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient. * * * If a constable or other peace officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful ; but if he suspects one on his own knowledge of facts; or upon facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is not unlawful.
“But, as we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts * * * which in the judgment of the court would make his faith reasonable.”

Owing to the divergent statements of witnesses for the state, just what ¡tlook place after the defendant was arrested and manacled cannot be definitely stated, except that when the smoke of the battle cleared away one of the officers was dead, with a bullet hole through his heart and his skull crushed, and the handcuffed defendant and his wife, armed with a Winchester rifle and the empty revolver of the dead officer, had escaped into the jungles where they remained for a period of eight days, until they secretly surrendered to an officer who spirited them away i)o Tulsa to avoid mob violence.

There is evidence tending to show that after the two officers had placed handcuffs on the defendant, the defendant disarmed Officer Teaff and shot him with his own (Teaff’s) pistol; other portions of the state’s testimony indicate that either the defendant or his wife struck Teaff with a hoe, fracturing his skull;' still other testimony indicates that defendant’s wife may have shot Teaff with her Winchester rifle; and from the testimony of another state’s witness it appears that during the melee, during which shots were fired from three different guns, Officer Manley, in his effort to shoot the defendant while ¡the defendant and Teaff were struggling, may have accidentally shot Teaff.

Assuming that the officers had a right to make this arrest without a warrant and were not ¡trespassers, if the defendant fired the gun shot which proved fatal he, of course, was guilty of murder; or manslaughter as the case may be; or if he struck the blow with the hoe which crushed Teaff’s skull, a fatal wound, he was likewise guilty; if his wife, acting in conjunction with him, fired the fatal shot or struck the fatal blow, he would be guilty; or if the surviving officer accidentally killed the other in an attempt to subdue the defendant while engaged in the commission, of a felony, to wit, an attempt to escape and kill the arresting officer, the defendant would be guilty. So then, so far as the rights of the defendant were concerned, the direct cause of the death of the deceased would be immaterial.

Of the numerous assignments of error urged by the defendant, only such will be noticed as appear worthy of consideration.

The defendant claims that if the facts stated in the excluded written return to the search warrant are true, the testimony of the surviving officer, Manley, concerning the search and seizure is false; and that if he testified falsely concerning the search and seizure, that might raise an inference that his testimony concerning the circumstances of the arrest or attempted arrest, upon which this conviction rests, might also be false.

This return shows three unusual features: (1) It bears the signature of one of the executing officers who lost his life within an hour or two after its execution; (2) it appears to have been verified two days after it was executed, and the sheriff, whose name appears thereon along with that of the dead officer, was not present at its execution; and (3) the signatures and verification are otherwise irregular. Section 2888, Comp. Stat. 1921, provides that a return to a search warrant shall be verified by the affidavit of the officer. Teaff, being dead, of course, could not verify this search warrant, and it may be that the sheriff assumed to and did make this verification after his death.

If the testimony of Manley is true, the officers were justified in making this arrest without a warrant. If, on the other hand, in the execution of this search warrant, nothing was found and no property seized, as shown by the officers’ return on the search warrant, it would appear that the officers had no right to make this arrest without a warrant; that they were trespassers in this cotton field where the defendant and his wife were at work. If this be the case, the defendant and his wife had a right to forcibly resist an illegal arrest to the same extent as they might resist any other trespasser.

It would have been possible for the deceased, Teaff, to have made a return on this search warrant before going to the field to make this arrest. And if this return was true, the defendant may have committed no crime for which he would have been subject to arrest without a warrant; raising an inference that this may have been a framed prosecution based upon false testimony. At any rate, whatever the facts may have been, the jury were entitled to the evidence shown by the return to assist them in determining whether these officers were justified in making this arrest without a warrant. The exclusion of the return, over the objection of the defendant, was error.

The defendant challenged the jury panel, on the ground that no negroes were drawn on the panel. He urged that nearly one-third of the inhabitants of Muskogee county are negroes; that many of them have large real estate holdings, and are owners of valuable personal property, and are listed on the tax rolls from which the jury list is drawn; and that for more than ten years last past no negro has been permitted to sit on a jury in a court of record in Muskogee county.

Upon this point, the defendant cannot predicate error upon discriminations against his race in other cases, extending over a period of previous years. The question is, Was there such discrimination in this particular case? Each of the three jury commissioners testified in the trial court, to the effect that all prospective jurors were selected as provided by statute, from the tax rolls, from men with whom one or another of the commissioners was acquainted; that the selections were made from those they considered best qualified, without any race discrimination; that the number of negroes on the tax rolls was not nearly so great, proportionately, as the number of white persons. These commissioners were examined at length, and all claimed, very positively, that no one was rejected for jury service oh account of race.

A negro defendant cannot, as a matter of right, complain that there were no members of his race on the jury. He is, of course, entitled to a fair and impartial jury, without discrimination. Under the showing made the court committed no error in refusing to suppress the panel. The trial court and this court will be bound by the uncontrover-ted showing made, affecting the particular case, despite the fact that the trial judge may have suspected from the general showing made and from his own observations as a trial judge that there has been discrimination against negroes for jury service in Muskogee county. We realize that it is inherently difficult to impeach jury commissioners on this issue, but the trial court must not decide this issue on mere generalities. Smith v. State, 4 Okla. Cr. 328, 111 P. 960, 140 Am. St. Rep. 688; McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735; Franklin v. South Carolina, 218 U. S. 161, 30 S. Ct. 640, 54 L. Ed. 980; Peters v. State, 22 Okla. Cr. 245, 211 P. 428.

At the first trial of this cause the jury failed to agree, and for that reason the jury was discharged and a new trial ordered. In the former trial the trial judge, Benjamin V. Wheeler, permitted the defendant to introduce evidence tending to show that the articles said to have been seized under authority of the search warrant, and for the alleged theft of which the defendant was arrested, were in fact the property of the defendant; that these were things which had been given to the defendant by benevolent neighbors after his house and personal effects had been consumed by fire.

In the second trial, which we are here considering, the trial court refused to permit the defendant to offer proof to show that the articles seized in fact belonged to him, upon the theory that the real ownership of the property was immaterial if the proof showed that the officers made the seizure upon a sufficient showing of reasonable or probable cause. Eliminating the written return of the officers, there was no showing made and no offer to show that the officers were apprised of the fact that the articles in question may have been donated to the defendant. The officers might be justified in making an arrest solely upon information obtained from the affidavit for a search warrant, from the search warrant itself, and from information obtained in making the search. Under such circumstances, actual ownership in the defendant would not justify the defendant in resisting arrest, or in forcibly effecting his escape after arrest. But if the return of the officer had been admitted in evidence, as it should have been, proof of the true ownership in the defendant of the articles donated to him by his neighbors would be competent, if such proof tended to show that these officers may have had some knowledge of these facts, and that the arrest was not in fact made in good faith upon sufficient cause.

When a peace officer is about to make an arrest without a warrant, he should act upon all the information he has acquired. If a peace officer has information that one has committed a felony, and at the same time has information from another source that no felony was in fact committed, the information from both sources should be considered together to determine his right to make an arrest without a warrant.

The use of the term “probable cause” or “reasonable cause” itself imports that there may not be absolute, irrefutable cause. If a showing of absolute cause were a condition precedent to a lawful arrest without a warrant, no officer could safely make an arrest without a warrant, for if that were the rule, whenever a defendant so arrested secured an acquittal by a jury, the arresting officer could be prosecuted for false arrest. The rule is well stated in Grau v. Forge, 183 Ky. 521, 209 S. W. 369, 3 A. L. R. 642, as follows:

“If the facts are such that a reasonably prudent man would have believed accused guilty, and would have acted upon that belief, a police officer is justified in making an arrest without warrant, although subsequent events prove that no offense had been committed, or, if committed, that accused had no connection with it, where the statute authorizes arrest without warrant when the officer has reasonable grounds for believing that the person arrested had committed a felony, although not in his presence.”

Defendant claims that the officers brought on the affray by beginning to shoot when there was no necessity for violence or cause to use firearms; that an officer must not use mortal force until there is a manifest necessity to do so, and that there was no such necessity here shown.

After the officers placed the handcuffs on the defendant, the defendant, according to his testimony, said to his wife, who was about 100 feet away, “Come, sweetheart, get the gun and come on,” referring to a Winchester rifle leaning against a stump about 40 feet beyond where the wife stood; that as she went toward the gun Officer Manley fired at her; that she then ran to the gun and began firing at the officers. Daisy Welch, the wife, testified in part as follows:

“Q. Any body bothering your husband when they started off; that is to say, was there any trouble of any kind when they started off? A. The man that handcuffed him hit him over the head with his gun.
“Q. Did your husband say anything to you after they started off? A. After they started off he did.
“Q. What did he say then? A. Told me to get the gun, sweetheart.
“Q. What did you do then? A. I went to get it.
“Q. You went to get the gun, and then what happened? A. Man began shooting at me.
“Q. How many times did this man who shot at you fire at you before you reached the stump? A. Three times in succession and twice afterwards.”

Officer Manley testified that after the defendant was manacled, the defendant in a loud and angry tone of voice ealled to his wife to get the Winchester; that she ran to get the gun; that she was ordered to stop; that she fell and seized the gun and began shooting. Two other witnesses who were passing along the road nearby testified that the officer beckoned to her to stop before the shooting began.

This feature of the difficulty was covered in the instructions thus:

“The defendant is not to be subjected to any more restraint than is necessary for his arrest and detention. An officer has no right, in the absence of resistance or flight, to use any force or violence upon one whom he is arresting for any offense; If you find from the evidence that the officers, or either of them, was using or attempting to use any force, violence, or a deadly weapon upon the defendant or his wife, and that neither of them was attempting to resist or flee, then, in that event, you are instructed that the defendant might use such force as a prudent man would use to protect his life, or to prevent the infliction of serious bodily injury upon him, or to protect the life of his wife, or the infliction of serious bodily injury upon her.”

We think that this instruction correctly and sufficiently covered that issue.

The question of the qualifications of jurors who had formed or expressed opinions based upon common rumor or newspaper reports, as shown by the record, comes within the rule announced in Littrell v. State, 22 Okla. Cr. 1, 209 P. 184, based upon section 2678, Comp. Stat. 1921, wherein it was held that such opinions did not necessarily constitute a disqualification. The several other assignments of error are of minor importance, and are not sustained by the record.

On account of the exclusion from the evidence of the return on the search warrant, and, incidentally, of other evidence which might shed light upon the question of whether the arresting officers had probable cause to make the arrest without a warrant, the cause is reversed and remanded.

The warden of the penitentiary is ordered to deliver the defendant to the sheriff of Muskogee county, to be detained by him pending further proceedings in the trial court.

DOYLE and EDWARDS, JJ., concur.


text:
    BOB SIMPSON v. STATE.
    No. A-5072.
    Opinion Filed May 16, 1925.
    (236 Pac. 55.)
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Bob Simpson' was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    Counts & Counts, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Bob Simpson, was convicted on an information charging that in Pittsburg county, August 12, 1923, he did have in his possession certain intoxicating liquor, to wit, about three gallons of whisky, with the unlawful intent to sell the same, and, in accordance with the verdict of the jury, he was sentenced to be confined in the county jail for a term of four months and to pay a fine of $250. From the judgment he appeals.

The Attorney General has filed a confession of error m part as follows:

“Counsel for the defendant have set up as one of their assignments of error that the court erred in not sustaining the defendant’s motion and objection to the introduction of any evidence or testimony obtained by reason of the search and seizure made by the officers for the reason that the search and seizure was in violation of the defendant’s rights .as guaranteed him under the Fourth and Fifth Amendments of the Constitution of the United States and sections 21 and 30 of the Bill of Rights of the Constitution, of the state of Oklahoma. We have carefully examined the record and find that the defendant made timely objection to the introduction of any testimony in conformity with the rules laid down in the case of Gore v. State, 24 Okla. Cr. 394, 218 P. 545. We have carefully compared this affidavit for a search warrant with the affidavits in the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249, and Kirk v. State, 30 Okla. Cr. 198, 235 P. 624, wherein this court reversed a conviction upon the ground that the purported affidavit contained in those cases was not sufficient to authorize the proper magistrate to issue a search warrant.
“It is a well-defined principle that the finding of probable cause is a judicial function to be exercised by a magistrate alone and it cannot be delegated to the maker of an affidavit. To permit the party making the affidavit to decide in conclusions or ultimate facts instead of requiring the facts to be stated, by virtue of which the conclusion or ultimate fact is found, is in fact delegating a judicial function to the affiant and substituting the maker of the affidavit for the magistrate, leaving the magistrate a mere automaton and his duties purely perfunctory. The statements set forth in the affidavit must be of facts and of the nature concerning things which would make the same competent as evidence in court as tending to prove the same ultimate facts or conclusions.
“Applying the rules laid down in the above-cited cases to the affidavit for the search warrant in question, we are of the opinion that the assignments of error set up by counsel for the defendant are well taken, and respectfully submit to this honorable court this confession of error.”

We have examined the record, and in our opinion the confession of error is well founded and should be sustained.

The judgment of the lower court is therefore reversed.


text:
    C. A. LUSTER v. STATE.
    No. A-5038.
    Opinion Filed May 16, 1925.
    (235 Pac. 935.)
    Appeal from County Court, Okmulgee County; W. A. Barnett, Judge.
    C. A. Luster was convicted of the illegal possession of intoxicating liquor, and he appeals.
    Reversed.
    Carter & Carter, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. A. Luster, was convicted upon an information charging that on October 25, 1923, he did have the possession of certain intoxicating liquor, to wit, 11 gallons of corn whisky, with the unlawful intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined for 90 days in jail and to pay a fine of $250. From the judgment he appeals.

The Attorney General has filed a confession of error in part as follows:

■‘‘The only question raised by plaintiff in error in his brief is that in this case there was an illegal search and seizure. The record shows that the officers went to the home of plaintiff in error for the purpose of searching for intoxicating liquors, but they also found and confiscated four guns owned by plaintiff in error. It was contended there was no valid search warrant in this case, for the reason that the purported search warrant herein was based on information and belief, and that it was also issued to search a place other than the one occupied by plaintiff in error.
“Under the rule laid down by this court in the case of Gore v. State, 24 Okla. Cr. 394, 218 P. 545, such warrants based on rumors, information, and belief, are invalid and insufficient to suport a valid search and seizure. It is the law of this state and has been the uniform ruling of this court that, where a search warrant is issued authorizing the officers to search certain premises for intoxicating liquors, they did not have the right to exceed the authority thereunder and search for and seize any other articles and property except that which they were authorized to search for and seize. In this case the purported warrant attempted to authorize them to search for and seize intoxicating liquor; they exceeded their authority by seizing and keeping plaintiff in error’s guns.
“When the state rested the following proceedings were had: ‘Mr. Carter: I renew my motion at this time to strike out all evidence offered on behalf of the state, for the reason that the search warrant under which they searched the premises was illegal and void. It gave them authority to search the residence of John Doe, section 9-14-11, when the evidence in this case shows the defendant’s residence in section 10-14-11. The search was by force and without authority of law. (Motion overruled. Exception.)’
“Under the testimony the location of plaintiff in error’s place was made a matter of fact, whereas the laws of this state, under the holding of this court, prescribe that the location of such places should be described with definiteness and certainty.
“We therefore submit to this honorable court that under the evidence in this case the search and seizure made were not in accordance to law, and were insufficient to support the judgment and sentence, and we therefore, respectfully submit our confession of error.”

An examination of the record discloses that the confession of error is well founded.

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


author: DOYLE, J.

text:
    MARY ZEDDA v. STATE.
    No. A-4921.
    Opinion Filed May 16, 1925.
    (235 Pac. 939.)
    (Syllabus.)
    1. Trial — Argument by State’s Counsel Held to Constitute Misconduct. Counsel for the state, in argument to the jury, must confine himself to the evidence in the case, and should not go beyond the limits of legitimate argument and comment thereon.
    2. Same — Comment on Failure of Accused to Testify in Own Behalf Reversible Error. Where a defendant is on trial charged with the commission of a crime, and fails to testify in her own behalf, and the prosecuting attorney comments upon such failure in his argument to the jury, such comments constitute reversible error.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Mary Zedda was convicted of selling intoxicating liq-our, and she appeals.
    Reversed.
    Wilkinson & Hudson, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the Staté.
   DOYLE, J.

The information in this case charged that in Pittsburg county, July 11, 1923, Mary Zedda did “unlawfully sell certain intoxicating liquor, to wit, about one quart of Choctaw beer to one Lawson.” On the trial the jury returned a verdict of guilty, fixing her punishment at confinement in jail for 3'0’ days and a fine of $200. She has appealed from the judgment rendered upon the verdict.

The state introduced three witnesses. Thad Wilkes, ■deputy sheriff, testified that, with Deputy Sheriff Bomar, he was driving to Hartshorne, and, passing defendant’s house in Krebs, saw the witness Lawson coming from the house and going toward his car with a bundle in his hand; that he jumped from his car and ran up behind Lawson and reached over and took the bundle from him; that they all went into the house and the defendant said she sold it to him; that she did not want him to get into trouble about what she did, and Lawson said he bought it from her. Witness further testified that the package contained Choctaw beer. He was then asked: “Was it intoxicating?” Over the defendant’s objection of incompetency, and calling for a conclusion, witness answered, “Y'es, sir.”

W. M. Lawson testified that he was the owner of the O. K. Transfer Company, at McAlester; that he moved the defendant’s brother from Krebs to Coalgate and on his return stopped at her house; that the defendant gave him either a quart or half gallon of Choctaw beer, and he started home with it, and just as he reached his car the officers took it from him and brought him back to the house; that he did not hear her tell the officers that she sold the Choctaw beer to him; that he did not buy it, she just gave it to him.

J. S. Bomar, deputy sheriff, testified:

“We saw Lawson going from the house to his car across the street. He had something wrapped up in paper under his arm. Wilkes stopped the car and we ran after him. Wilkes seized the package and asked him where he got it. He said, ‘Over there at that house.’ Wilkes said, ‘Lets go on over there,’ and we all three went into the house and met this lady. Wilkes asked her, ‘Did you sell this man this beer?’ She said, ‘Yes ; he got it from me,’ and she said to Lawson, T sold it to you and I don’t want to get anybody in trouble for anything I do. Tell him where vou got it.’ And Lawson said, T bought it from her.’ ” *

At the close of the evidence for the state the defendant moved for an instructed verdict of acquittal, which was overruled. The defendant did not testify.

The errors assigned are in substance that the evidence is insufficient to support the verdict; that the court erred in its rulings in the admission of evidence, and misconduct in the argument of counsel.

(2) The record discloses that counsel for the defendant waived argument and requested that the arguments be taken by the court reporter. In the opening argument to the jury the assistant county attorney said:

“Mr. Lawson didn’t voluntarily sign this information in this case; he didn’t voluntarily come into this court on the witness stand. He said, ‘Yes; I got it from her, I got this Choc from her,’ but that is as far as he will go. He put up some kind of a tale about a gift, but, gentlemen of the jury, the state will gladly rest its case, not alone upon that, but principally upon these two deputy sheriffs who are sworn to enforce the law whether they wish to or not; they are bound to do so. Mr. Bomar’s testimony is the same as Mr. Wilkes, perhaps a little more complete in some things. He said to this man, ‘Where did you get this?’ The man at first said, T don’t know.’ He finally said, ‘Did you get this over there?’ and the man said, ‘Yes.’ Then they went to the house, the three of them, and the question was asked of the defendant, ‘Did you sell this man this beer?’ and she said ‘Yes.’ She said ‘Yes,’ gentlemen of the jury, a full and complete confession to these officers, and she said to this man Lawson, ‘Go and tell the truth; I don’t want to get any man in trouble for what I do.’ Gentlemen of the jury, it is not so much a question of the guilt or innocence of this party; that has been confessed by her own mouth. It was confessed by her in the presence of these two officers whom you can’t doubt and whom I can’t doubt; two men sworn to enforce the law and tell the truth on the stand; men who have no interest whatever in the matter, except to tell the truth and to enforce the law, but, gentlemen of the jury, in the fixing of the punishment in this case in view of the circumstances which have been brought out by the state, we ask for the maximum penalty, in view of the fact that the defendant has not denied by one single witness one act or one word, anything said or — ”

Counsel for defendant interrupted, saying:

“We object for the reason that he is now arguing that the defendant did not go on the stand.”
The Court. “He did not say that. Overruled.”

It is insisted that the language used was in violation of the provision of the Code of Criminal Procedure which prohibits comment upon the failure of a defendant to testify in his behalf.

Section 2698, C. S. 1921, provides:

“The person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

The statute is plain and unambiguous, and, where its terms are violated, the court has no discretion, but must grant a new trial. Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Brown v. State, 3 Okla. Cr. 445, 106 P. 808.

In Nowlin v. State, 7 Okla. Cr. 27, 115 P. 625, it is said:

“It matters not what we may think of the policy of this statute. It is mandatory, and therefore we have no discretion in the matter, but it is our plain duty to enforce it. It must not be violated, directly or indirectly, either in its letter or spirit.”

In Weinberger v. State, 8 Okla. Cr. 441, 128 P. 160, it is said:

“The statute.is in accordance with the constitutional guaranty that ‘no person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided.’ ” Const, art. 2, §21.
“The clear intent of the statute is that the jury in determining their verdict shall entirely exclude from their consideration the fact that the defendant did not elect to testify, and any reference by the prosecuting attorney in his address to the jury to the fact that the defendant did not testify constitutes misconduct, and, under the terms-of the statute, the trial court has no discretion, but must-grant a new trial.”

In our opinion the language used was clearly a comment upon the fact that the defendant did not take the stand to deny or explain her admissions or confession as-testified to by the witnesses for the state. The only persons present at the time in question were the witnesses for the state and the defendant, and she was the only person who could deny the statements testified to by the-witnesses for the state.

It is immaterial what words are used if they are clearly calculated to direct the attention of the jury to the fact that the defendant has not testified in her own behalf, and that by such failure some inference might be indulged against her. It follows that the argument made was a. plain violation of the statute quoted.

In the closing argument to the jury the county attorney said :

“She is a woman, but she is not entitled to any more protection than we are. Every criminal is not a man. I say to you men she is guilty — guilty as can be. She has violated the laws of Oklahoma, trampled them under foot, and now tells you — comes into the temple of justice here and asks you to turn her loose, you, six good and lawful men, I say you will not turn her loose. You will not do it. I don’t believe that you will send her back to Krebs to continue that hell hole there, but that you will say to her, ‘Though you be a woman, though you be a foreigner,, you must pay the price.’ ”

'Counsel for defendant objected, saying:

“That is not proper argument — ‘hell hole.’ She is not charged with maintaining a disorderly house or a ‘hell hole’ but merely with the sale of one quart of Choctaw beer. I ask that the jury be instructed to disregard that.
“The Court: Overruled. Exception.”

The right of argument on the testimony is one which exists in the trial of cases in our courts in order that each side represented may, as fully and fairly as possible, present the facts so that the truth may be ascertained. In doing this, the largest and most liberal freedom of speech is allowed. However, there are, and must be, limitations to this freedom of speech, and no counsel should ever forget his duty to the court in the administration of justice, but should conduct his case with dignity and courtesy. When he occupies the position of prosecuting attorney, his relation to the administration of justice is more pronounced. Justice to the state and the defendant should be his sole aim, and, in the prosecution of his case, he should refrain from mere personal abuse. That the statement of the county attorney went beyond the limits of legitimate argument or comment is not open to question. His statement, “I say to you men she is guilty — guilty as can be,” was not a comment on the evidence, but it was the independent testimony of the county attorney, and his concluding statement was an unwarranted personal attack upon the character of the defendant.

Other statements of counsel were gratuitous and not based upon the evidence. The authorities are uniform in holding any statement improper that is calculated to inflame the minds of the jurors, arouse their prejudice, or appeal to their passions. We can find no foundation or warrant in the record for the statement of the county attorney, and we are convinced that the statement which we have quoted must have aroused prejudice and passion against the defendant outside of and independent of the evidence in the case.

A person accused of crime is entitled to a fair and impartial trial, conducted according to the established principles of law, the most important of which is that the vérdict of the jury shall be founded only upon competent evidence.

Upon the record in this case, we are convinced that the defendant did not have that fair and impartial trial to which she was entitled under the law.

The judgment of the lower court is accordingly reversed.

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


text:
    BOB HANNA v. STATE.
    No. A-5082.
    Opinion Filed May 18, 1925.
    (235 Pac. 928.)
    (Syllabus.)
    Evidence — Accomplice Testimony — Corroborating of One Accomplice by Another Insufficient to Authorize Conviction. Under Code of Criminal Procedure (section 2701, C. S. 1921), providing that “a conviction cannot be bad upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof,” one accomplice cannot corroborate another so as to authorize a conviction upon the testimony of the two accomplices alone.
    Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.
    Bob Hanna was convicted of selling intoxicating liquor, and he appeals.
    Reversed.
    F. W. Church, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that the defendants Bob Hanna, Jim Montgomery, and Bill Edison did, in Ottawa county, on the 13th day of November, 1923, sell to Poly McAffery one pint of intoxicating liquor. The case was dismissed as to the defendants Jim Montgomery and Bill Edison, and they testified as witnesses for the state.

On the trial of the defendant Bob Hanna, the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at confinement for 90 days in the county jail, and a fine of $3'00. From the judgment rendered on the verdict, he appeals.

The undisputed facts are that on the date alleged, in Picher, Jim. Montgomery, a taxi driver, had, as a fare, one Poly McAffery to the Black Hawk mine. Before leaving town McAffery requested Montgomery to get him some whisky; Montgomery drove around to a certain place where he found the defendant Bob Hanna; both Montgomery and McAffery told Hanna that they wanted to get whisky; Hanna told Montgomery that the boy had some; then they found Bill Edison and he went around into the alley, and was gone a few minutes, and returned with two half pint bottles of whiskey.

Edison got into the taxi, and during the drive Edison delivered the two bottles of whisky to McAffery, who paid Edison $3 for the same. Then they returned to the place from which they had started, and Edison and McAffery got out of the car.

Edison testified that Hanna was to give him 25 cents on every bottle of whiskey he sold for him.

The chief of police of Picher arrested Edison and McAffery on Columbus street, and found 2 half pint bottles of whisky, on McAffery.

The Attorney General has filed a confession of error which we adopt as the opinion of the court:

“Plaintiff in error, Bob Hanna, in his brief sets up two assignments of error, one directed at the instructions, and the other, which we think is well taken, is that the evidence in this case was insufficient to sustain the verdict of the jury and the judgment and sentence of the court, for the reason that the only evidence in the case, excepting that of Mr. ¡Stout, was the testimony of Montgomery and Edison, and these two men were accomplices, and their testimony was uncorroborated by any evidence whatsoever, except by each other, and that as it is a rule of law in this state that a person cannot be convicted upon the uncorroborated testimony of accomplices, and that, as the only evidence in this case was the testimony of accomplices, that, therefore, the evidence was insufficient to sustain the verdict of the jury in this case.
“We will first cite the rules of law as determined by this court in this state, and then apply them to the facts in this case. Section 2701, C. O. S. 1921, provides as follows: ‘A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof,’
“In the case of Buchanan v. State, 4 Okla. Cr. 645, 112 P. 32, 36 L. R. A. (N. S.) 83, 112 P. 32, this court held: ‘All persons who take part, participate, or engage in an offense are guilty as principals. It is immaterial as to whether they have any interest in or receive any financial gain from the commission of such crime. The law of agency applied in civil cases has no application in criminal cases, and no man can escape punishment when he participates in' the commission of a crime upon the ground that he simply acted as agent for any party. Any person who acts as a messenger or agent of the buyer in going after, purchasing, and bringing back prohibited liquors is thereby aiding and assisting in the sale of such liquors, and may be prosecuted and convicted for such sale.’
“In the case of Cantrell v. State, 10 Okla. Cr. 304, 135 P. 1158, this court said: ‘All persons who take part, participate, or engage in the commission of a crime are guilty as principals, and any person who acts as a messenger or agent of the buyer, in going after, purchasing, and bringing back intoxicating liquors is thereby aiding and assisting in the selling of such liquors, and may be prosecuted and convicted for such sale.’
“In the case of Hendrix v. State, 8 Okla. Cr. 530, 129 P. 78, 43 L. R. A. (N. S.) 546, the court defines an accomplice as follows: ‘One culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily co-operates or aids or assists in the commission of the crime.’
“Under the rulings of this court and the evidence following it is clear that Montgomery was an accomplice the same as Edison.
“It is observed that under this testimony when Montgomery was asked by McAffery to get him some whisky that Montgomery did everything that he could possibly do to be considered acting in the nature of a go-between. He drove to Hanna’s stand, talked to Hanna,'then talked to Edison, made all of the arrangements, took Edison and McAffery out in his car for the purpose of permitting Edison to make a delivery and collect the money, and then returned them to Hanna’s place. Under the rulings of this court a go-between is an accomplice. In this case the only evidence was that of the accomplices, and was not corroborated by any other evidence whatsoever. When the testimony of these two accomplices is excluded from this record, the only testimony or evidence remaining is that of the chief of police. Mr. Stout, who mereW said that he saw the two men on Columbia street and found two half pint bottles of whisky on them, and that Hanna was arrested the next day.
“We therefore respectfully submit to this honorable court that the incriminating evidence against the plamtiff in error in this case was based upon the testimony of two accomplices which was not corroborated in any manner, and that therefore the evidence in this case was insufficient to sustain the verdict of the jurv and the judgment and sentence of the trial court, wherefore, we respectfully submit this confession of error.”

We are clearly of the opinion that the confession of error is well founded, and, for the reasons therein stated, the judgment of the lower court is reversed.

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


text:
    C. H. BOSWELL v. STATE.
    No. A-5086
    Opinion Filed May 18, 1925.
    (235 Pac. 1117.)
    Appeal from County Court, Woods County; J. J. Glas-ser, Judge.
    C. H. Boswell was found guilty of illegal possession of whisky, and he appeals.
    Appeal dismissed.
    H. A. Noah, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, C. H. Boswell, was by a verdict of a jury found guilty of having unlawful possession of a quantity of whisky, with his punishment assessed at confinement in-the county jail for a period of four months and to pay a fine of $250. The trial court rendered judgment accordingly. On the motion of the plaintiff in error, showing that he has abandoned this appeal and has surrendered to the sheriff of Woods county, and is not serving the sentence imposed by the trial court, it is ordered that this appeal be and the same is hereby dismissed. It is further ordered that the judgment of the trial court be executed according to its terms.


text:
    ROBERT COOPER v. STATE.
    No. A-4978
    Opinion Filed May 23, 1925.
    (235 Pac. 1118.)
    Appeal from County Court, Blaine County; W. F. Duncan, Judge.
    Plaintiff in error was convicted in the county court of Blaine county on a charge of unlawful possession of intoxicating liquors, and appeals.
    Affirmed.

      Ben Smith, for plaintiff in error.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Blaine county in August, 1923, on a charge of having possession of intoxicating liquor. He was convicted, and sentenced to pay a fine of $50 and to serve 30 days in the county jail. No briefs have been filed. We have examined the record, and no error is apparent. The evidence was conclusive, the instructions fair, and no exceptions taken during the course of the trial to the ruling of the court nor the instructions. The case is- affirmed.


text:
    Ex parte TED ELLIOT.
    No. A-5546.
    Opinion Filed April 25, 1925.
    (235 Pac. 1118.)
    Application of Ted Elliot for writ of habeas corpus to be let to bail.
    Writ allowed.
    Womack, Brown & Cund and Sandlin & Winans, for petitioner.
    The Attorney General and J. H. Long, Co. Atty., for the State.
   PER CURIAM.

This is an application by habeas corpus on the part of the petitioner, Ted Elliot, to be let to bail upon a charge of rape in the first degree pending in the district court of Jefferson county on a change of venue from the district court of Stephens county. The cause has been submitted on the petition, affidavits, and on a certified transcript of the record taken at the preliminary hearing. The case was set down for oral argument, and has been fully presented to this court on the part of both the petitioner and the state. Since the argument this court has examined the record of the testimony taken at the preliminary, and is of the opinion that the petitioner should be admitted to bail in the sum of $10,000, with good and sufficient surety, to be approved by the court clerk of Stephens county.


text:
    H. B. HOUSER v. STATE.
    No. A-5047.
    Opinion Filed April 28, 1925.
    (235 Pac. 1118.)
    Appeal from County Court, Kay County; J. L. Roberson, Judge.
    H. B. Houser was convicted of having illegal possession of whisky, and he appeals.
    Appeal dismissed.
    David L. Carter and J. Earl Smith, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

It having been suggested to this court by the attorneys of record for plaintiff in error that H. B. Houser is deceased, and that therefore this appeal should be dismissed, it is hereby ordered and adjudged that this cause should abate, and the appeal is accordingly dismissed.


text:
    ORD MASHORE v. STATE.
    No. A-5147.
    Opinion Filed May 16, 1925.
    (235 Pac. 1118.)
    Appeal from County Court, Caddo County; R. L. Lawrence, Judge.
    Ord Mashore was convicted of maintaining a nuisance and appeals.
    Proceedings ordered abated.

      J. W. Osmond and H. W. Morgan, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Ord Mashore, was convicted on a charge of maintaining a place in the city of Anadarko, where intoxicating liquors were kept and possessed for sale, and in accordance with the verdict of the jury he was sentenced to be confined for 30 days in jail and to pay a fine of $200. To reverse the judgment an appeal was perfected by filing in this court on May 2, 1924, petition in error with case-made. When the case was called for final submission, his counsel of record, in open court, announced the death of the plaintiff in error and moved to abate the proceedings. It is therefore considered and adjudged that the proceedings in the above entitled cause, especially under the judgment therein rendered, has abated, and that the county court of Caddo county enter its appropriate order to that effect.


text:
    GEORGE MATHIS et al. v. STATE.
    No. A-5230.
    Opinion Filed April 28, 1925.
    Appeal from County Court, Greer County; Jarrett Todd, Judge.
    George Mathis and Ves Mathis were convicted of manufacturing intoxicating liquor, and they appeal.
    Appeal dismissed.
    Stewart & Williams, for plaintiffs in error.
   PER CURIAM.

The plaintiffs in error were convicted under an information charging that in Greer county, on April 3, 1923, they did manufacture intoxicating liquor, to wit, two gallons of whisky, and in accordance with the verdict of the jury they were each sentenced to pay a fine of $50 and be confined for 30 days in the county jail. From the judgment, entered March 1, 1924, an appeal was perfected. On February 16, 1925, counsel of record for plaintiffs in error filed their motion to dismiss the appeal. The motion to dismiss is sustained, and the cause remanded to the lower court, with direction to cause its judgment to be carried into execution.


author: EDWARDS, J.

text:
    BUCK BUCHANAN v. STATE.
    No. A-4749.
    Opinion Filed April 11, 1924.
    Rehearing Denied May 23, 1928.
    (236 Pac. 903.)
    (Syllabus.)
    Constitutional Law — -Elections—Jury—Municipal Corporations — Statutes —Statute Creating Municipal Courts Held a “General Law,” and not to Deny Jury Trial, and not to Violate Constitutional Provis* ion as to Primary Election and not Unconstitutional as Attempt to Amend Charter of Tulsa, and not Unconstitutional as Conferring on Municipal Court Power to Try Misdemeanors Aboye Jurisdiction of Justice of Peace.
    (a) Chapter 199, Laws 1919, creating and relating to municipal courts in cities having more than 59,000 and less than 80,000 inhabitants, is not unconstitutional as denying an accused the right of a trial by jury.
    (b) Said act is not unconstitutional as being special legislation, but is a “general law” within the meaning of the Constitution.
    (e) Said act is not unconstitutional as violating section 5, art. 3 of the Constitution, providing for a mandatory primary system.
    (d) Said act is not unconstitutional as an attempt by the Legislature to amend the city charter of the city of Tulsa.
    (e) Said act is not unconstitutional as conferring upon the municipal court power to try misdemeanors above the jurisdiction of a justice of the peace.
    Appeal from Municipal Criminal Court of City of Tulsa; G. E. Warren, Judge.

      Buck Buchanan was convicted of the crime of transporting whisky, and appeals.
    Affirmed.
    John L. Ward, George Paschal, and M. S. Simms, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

For brevity the plaintiff in error will be referred to as defendant as in the court below.

The defendant was charged in the municipal criminal court of the city of Tulsa with the crime of transporting whisky, was tried by a jury and sentenced to serve a term of 6 months in the county jail and to pay a fine of $500, from which judgment and sentence appeal is prosecuted.

Various errors in the procedure of the trial are assigned, and in addition the question of the constitutionality of the act creating the municipal criminal court is attacked and argued at considerable length. In view of the importance of this question, the constitutionality of the act will be first considered. The act in question is chapter 199 of the Sessions Laws of 1919, creating municipal criminal courts in cities having a population between 50,000 and 80,000. -

It is assigned that the act in question is unconstitutional for the following reasons: First, because it denied an accused the right of a trial by jury; second, because, in violation of section 32, section 46, and section 59, of article 5 of the Constitution, being the sections referring to the enactment of special and local laws; third, because in violation of section 5, art. 3, of the 'Constitution, being the section providing for mandatory primary system; fourth, that the act in question is unconstitutional, being an attempt by the Legislature to amend the charter of the city of Tulsa; fifth, because the act is unconstitutional in conferring power to try misdemeanors of which justices of the peace have no jurisdiction; sixth, because the act is in contravention of section 57, art. 5, of the Constitution, being a section requiring that the subject of an act be expressed in the title.

Owing to the number of the questions raised, it will be necessary that the discussion of the various points and the citation of authorities considered applicable be limited, in order that this opinion shall not be unduly lengthy. Considering the assignments in order, the section of the act in reference to trial by jury provides:

“Except in cases where a violation of a city ordinance is charged wherein the penalty provided for the violation of such ordinance does not exceed a fine in the amount of twenty dollars ($20.00), all persons charged before such municipal criminal court shall be entitled to a trial by jury, provided, that in the event of the failure of such persons to demand a jury trial the right thereto shall be deemed to have been waived, and a trial may be had before the judge, and the judgment and sentence imposed by said judge shall be as effective as if the same had been rendered and imposed by a jury.” Section 11.

It is then further provided that appeals from the municipal criminal court shall be to the Criminal Court of Appeals. It is argued that, inasmuch as this section does not give a jury trial for violations of city ordinances, it is contrary to section 19 of article 2 of the Bill of Rights, which provides that the right of a trial by jury shall remain inviolate. The section in question is not subject to the objection made. It is held by this court, in numerous opinions, that in the matter of petit offenses prohibited by a city ordinance, where the punishment does not exceed a fine of $20, the accused is not entitled to a trial by jury as a matter of right. Ex parte Johnson, 20 Okla. Cr. 66, 201 P. 533; Ex parte Daugherty, 21 Okla. Cr. 56, 204 P. 937; Ex parte Bochmann, 20 Okla. Cr. 78, 201 P. 537; Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097; Cumpton v. City of Muskogee, 23 Okla. Cr. 412, 225 P. 563.

Upon the second assignment above sex out, it is stipulated that there was no publication of notice of the intended enactment of the law in question under section 32, art. 5, of the Constitution. The act in its terms is general, providing that, in cities of the state having a population of more than 50,000 and not exceeding 80,000 inhabitants, as determined by the last preceding federal census, or of the last preceding special federal census, there is created a court of record, etc. The courts take judicial knowledge of the cities of the state and their population, and, at the time of the enactment in question, according to the census mentioned, Tulsa was the only city of Oklahoma coming in the purview of the classification stated, and, the classification being based on a past census, no other city in the future would fall within the act in question. So as far as the act is concerned, it might as well have referred to the city of Tulsa by name as to have made the classification it did, which could affect only the city of Tulsa. This the defendant argues rendered the act in question special legislation, and in conflict with the provisions of the Constitution referred to, and in support of this contention the following authorities are cited: State v. Ellet, 47 Ohio St. 90, 23 N. E. 931, 21 Am. St. Rep. 772; Ex parte Falk, 42 Ohio St. 638; Kelley v. State, 6 Ohio St. 269; Nichols v. Walter, 37 Minn. 270, 33 N. W. 800; Commonwealth v. Patton, 88 Pa. 258; Devine v. Commissioners, 84 Ill. 590; State v. Mitchell, 31 Ohio St. 592-607; State v. Herrmann, 75 Mo. 340; Hatfield v. Garnett, 45 Okla. 438, 146 P. 24.

These various authorities state the general principle under the constitutional provision under consideration, and, if the inhibition applies to the creation of courts, and the act in question is special legislation, it is unconstitutional ; but this we think is no longer an open question. Section 1, art. 7, of the Constitution specifically confers on the Legislature power to establish courts inferior to the Supreme Court, but, even without this provision of the Constitution, the Legislature had inherent power to provide laws for the people upon proper subjects. The limitation upon the power of the Legislature to pass local or special laws (section 46 of article 5) enumerates various subjects, but does not include the creation of courts, and the power to create courts is then limited only by the provision of section 1, art. 7, that they shall be inferior to the Supreme Court, and section 59, art. 5, that the Legislature shall not pass a special act where a general law can be made applicable.

The question when an act of the Legislature is general or special is sometimes difficult of determination, and it has generally been held that the question must be determined by the generality with which it affects the people as a whole, rather than the extent of the territory over which it operates, and, if it affects equally all persons who come within its range, it is neither local nor special. In order for a law to be general in its nature, and to have a uniform operation, it is not necessary that it shall operate upon every person and every locality in the state. A law may be general and have a local application. This principle is discussed in the following cases: Chickasha Cotton Oil Co. v. Lamb, 28 Okla. 275, 114 P. 333; Diehl v. Crump, 72 Okla. 108, 179 P. 4, 5 A. L. R. 1272; Burks v. Walker, 25 Okla. 353, 109 P. 544; Williams v. State, 19 Okla. Cr. 307, 199 P. 400; Leatherock v. Lawter, 45 Okla. 715, 147 P. 324; Hatfield v. Garnett, 45 Okla. 438, 146 P. 24; City of Sapulpa v. Land, 101 Okla. 22, 223 P. 640.

And the particular act in question has been held to be a general law by this court in the case of Bishop v. City of Tulsa, 21 Okla. Cr. 457, 209 P. 228, 27 A. L. R. 1008. The first syllabus of said opinion is as follows:

“Chapter 199, Laws 1919, creating and relating to municipal courts, and providing that the act shall apply to cities having more than 50,000 and less than 80,000 inhabitants, as determined by the last preceding federal census, is a ‘general law,’ and not special within the meaning of the Constitution.”

The next assignment of error is that the act is in conflict with section 5, art. 3, of the Constitution, which provides that the Legislature shall enact laws for the nomination of candidates by primary election, and that, as the municipal judge provided for by the act in question is to be appointed, it is in conflict with this provision of the Constitution. The clause of the Constitution referred to applies to elective officers and has no application where officers are appointed. We know of no provision of the Constitution or law that prohibits the appointment of judges in courts which may be created. The wisdom of the Legislature in so providing for appointment may be a proper subject of criticism or difference of opinion. But the fact that the judge provided for in the act in question is made appointive does not render the act unconstitutional.

It is urged at some length that the act is unconstitutional as constituting an attempt by the Legislature to amend the charter of the city of Tulsa, and an attempt to legislate on purely municipal matters. It has become settled law in this state that, where a city charter has been adopted by the people under the provisions of section 3, art. 18, Const., such charter becomes the organic law of the city, and its provisions supersede all laws of the state in conflict therewith, in so far as such laws relate to purely municipal matters. It is equally well settled that such charter provisions do not supersede the general laws of the state of general concern in which the state has a sovereign interest, and, where the provisions of the said charter conflict with the general laws of the state of this character, such laws will prevail. It is self-evident that the state has a sovereign interest in the enforcement of the criminal laws against the traffic in intoxicating liquor and other crimes within the city of Tulsa as well as elsewhere in the state. See, in this connection, State ex rel. Burns v. Linn, 49 Okla. 526, 153 P. 826, Ann. Cas. 1918B, 139; Walton v. Donnelly, 83 Okla. 233, 201 P. 367; Lackey v. Grant, 29 Okla. 255, 116 P. 913; Owen et al. v. City of Tulsa, 27 Okla. 264, 111 P. 320; In re Initiative Petition, 89 Okla. 134, 214 P. 186; City of Sapulpa v. Land, supra.

It is next urged that the act is unconstitutional in.conferring jurisdiction unon municipal courts for the trial of misdemeanors where jurisdiction had been conferred on the county court; it being contended that jurisdiction of the county court is made “exclusive” by the Constitution, § 12, art. 7. In discussing the jurisdiction of superior courts, Justice Hayes, speaking for the Supreme Court in the case of Burks v. Walker, supra, said:

“A careful reading of the various provisions of the Constitution by which jurisdiction is conferred upon all the courts, except the Supreme Court, will readily disclose that it was the policy of the framers of the Constitution in a great measure to leave the question of jurisdiction of the various courts of the state subject to legislative disposition and control. And when the condition of the courts and their dockets at the time of the framing of the Constitution is recalled, it can be readily understood why the framers of the Constitution did not undertake to fix by hard and fast rule the jurisdiction of the inferior courts of the state. * * *”

Since under our Constitution the Legislature has the right to create courts and fix their jurisdiction, there would appear to be no sound reason why jurisdiction could not be given to try offenses for violations of both city ordinances and the laws of the state. At any rate there is no constitutional inhibition against the same. In the case of State ex rel. Burns v. Linn, supra, the Supreme Court of this state held:

“The state may impose upon the local officers of the city of Tulsa specific duties in the matter of the enforcement of the laws of the state having force and effect within the city, and may provide penalties for failure to discharge such duties, and in respect to the duties so imposed the municipality and its officers are the agents of the state, and subject to its command and control at all times.”

And in the early case of Ex parte Whitehouse, 3 Okla. Cr. 97, 104 P. 372, this court, upon this point, held that section 12, art. 7, of the Constitution, should not be construed to confer exclusive jurisdiction upon the county court in misdemeanor cases above the jurisdiction of a justice of the peace, but that the Legislature had the power to confer such jurisdiction on superior courts. It would follow that it would have power to confer such jurisdiction on municipal courts as created by the act in question.

(2) Lastly it is argued that section 17 of the act in question is unconstitutional, in that said section provides that all fines, costs, and proceeds of forfeited bonds shall be placed in the city treasury, in that the title of the act does not express such purpose as required by section 57, art. 5, of the Constitution. A determination of this contention would be of no avail to the defendant, for, if this provision of the act in question (section 17) were held unconstitutional, it would not affect the remainder of the act and would not in any manner affect the trial of the defendant. It would go merely to the matter of the distribution of the fine and costs collected under the judgment. This is a question of a civil nature entirely, and properly determinable by the Supreme Court and not this court.

Turning next to the consideration of the errors of procedure complained of, an examination of the case-made discloses no question properly preserved other than the constitutionality of the act creating the court, hereinbefore considered. The evidence adduced at the trial is not incorporated in the case-made. In the case-made there appears the information, the calling of the case for trial, a request of the defendant to withdraw his plea of not guilty and for leave to file the following instruments: ' A demurrer to the jurisdiction, a motion to dismiss, a motion to quash the information, a general demurrer, and a challenge to the panel of jurors. Then follows a statement by the court that leave was granted to file a motion to quash the panel, and a motion to quash the information, and exception taken. Then a waiver of the right to trial by jury and a statement by the county attorney that the defendant had theretofore demanded a jury trial, the overruling of the waiver of jury trial by the court and exception. Then appear copies of the demurrer, motion to dismiss, motion to quash, general demurrer, and challenge, to the panel, but what evidence, if any, was introduced, in support thereof, of the motion to quash, the motion to quash the panel, or the ruling of the court thereon, the verdict of the jury, the motion for a new trial, and the notation that same is overruled by the court, exceptions taken, a motion in arrest of judgment, and no ruling or exceptions thereon, appear. A supersedeas bond and notice of appeal complete the record presented. The only exceptions shown are to the action of the court in refusing to permit a waiver of a jury and denying leave to file demurrer, and to the overruling of the motion for new trial.

No error prejudicial to the defendant is made affirmatively to appear from the record, and the case will therefore be affirmed.

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