text:
    F. J. MEEK v. STATE.
    No. A-8484.
    March 18, 1933.
    Rehearing Denied June 9, 1933.
    (22 Pac. [2d] 933.)

      Robert Burns, for plaintiff in error.
    J. Berry King, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of the sale of three hundred shares of the capital stock of the Globe Casualty Company of Oklahoma City, which stock had not been approved for sale by the Oklahoma Securities Commission, and his punishment fixed by the court at a fine of $1,000 and imprisonment in the state penitentiary for a period of two years.

Defendant acted as his own counsel in the trial court, but did not take the witness stand and offered no evidence in his behalf.

No issue of fact is presented by the petition in error; defendant seeking to reverse the case purely upon questions of law.

It is first contended chapter 24, article 11, Session Laws of 1931, is a revenue raising measure, as defined by the Constitution and laws of Oklahoma, and that the same is unconstitutional, for the reason that it was not introduced and enacted as required by section 33, article 5, of’ the Constitution.

The state in its brief says:

“We readily admit that if said act should be held to be a revenue measure the same is unconstitutional, as it was introduced in the Senate and also was enacted in less than five days prior to the adjournment of the Legislature. However, we cannot concede that the act constitutes a revenue measure.”

The following is the title to' chapter 24, article 11, supra:

“An' act to> prevent fraud in the sale of stock, bonds or other securities defined in this act, sold or offered for sale within the state of Oklahoma; to regulate and supervise the sale thereof; creating a Commission to be known as the Oklahoma Securities Commission, and providing for certain employees and fixing their salaries and making an appropriation therefor; prescribing the powers and duties of certain officers and • employees; defining 'securities’ and certain other terms used in this act; requiring the registration of stocks, bonds and other securities with certain exceptions; requiring the registration of persons selling or offering for sale stocks, bonds or other securities; fixing certain fees to be charged; providing for service of notice, process or pleading in any suit, proceeding or action growing out of the violation of any provision of this act, and consent therefor; providing that sales made in violation of any of the provisions of this act shall be voidable at the election of the purchaser; providing penalties for violations of any provisions of this act; providing for ah appeal by any person who may be dissatisfied with any order or ruling made pursuant to this act, except as provided therein; repealing article 62, chapter 6, Comp. Okla. Stat. 1921, subject to the exceptions and limitations prescribed, and all laws and clauses of laws in conflict with this act; providing punishment for violations of this act.”

The burden is on defendant to establish his contention, and the alleged unconstitutionality must be clearly established, except in cases so clear as to be free from doubt.

Courts will not declare a statute unconstitutional except in cases so clear as to be free from doubt. Key v. City of Ardmore, 30 Okla. Cr. 8, 234 Pac. 793; Ex parte Fuller, 31 Okla. Cr. 289, 238 Pac. 512; Brown v. State, 47 Okla. Cr. 169, 286 Pac. 911; Smith v. State, 47 Okla. Cr. 184, 287 Pac. 835; Pruitt v. State, 47 Okla. Cr. 334, 288 Pac. 390; Dies v. Bank of Commerce, 100 Okla. 205, 229 Pac. 474; Ryan v. State ex rel. Fulfs, 102 Okla. 168, 228 Pac. 521; Spann v. State ex rel. McClain County Free Fair Assn, 152 Okla. 60, 3 Pac. (2d) 861.

Chapter 24, article 11, supra, was enacted to take the place of article 62, chapter 6, C. O. S. 1921 (section 2270 et seq.) Apparently the purpose of the law and the intention of the Legislature in enacting the same was identical with that inspiring the adoption of the original act by the 1919 Legislature. The old law originated in the Senate, as Senate Bill 135, and contained provisions for the collection of fees, although different in amount from that provided in chapter 24, article 11. In discussing the law in Hornaday v. State, 21 Okla. Cr. 354, 208 Pac. 228, !230, this court said:

“The purpose of this statute, as gathered from the title, considered together with the context of the act, appears to be two-fold: First, to prevent stockholders and promoters from perpetrating frauds and impositions on unsuspecting investors in hazardous undertakings; second, to protect credulous and incompetent persons from their own inclinations to speculate in hazardous enterprises, entered into on their own account or on the advice of friends, though not brought about by interested promoters or stock brokers.
“The objects, then, are to prevent fraud and unfair dealing in securities, as well as to prevent honest people, free from sinister influences, from investing in uncertain, ephemeral, ‘get-rich-quick’ stocks and securities. In other words, it is a statute designed in part to protect credulous persons against their own inherent weakness — a weakness akin to the gambler’s hope of winning a prize. We think it is now well settled that both of these objects, within constitutional bounds, properly come within regulations prescribed by the police power of the state.”

This court, in Groskins v. State, 52 Okla. Cr. 197, 4 Pac. (2d) 117, said:

“Chapter 49, Session Laws 1919 (article 62, chap. 6, Comp. St. 1921 [sections 2270-2285]), is not unconstitutional as being in excess of the police power of the state, but is a proper exercise of the police power in an attempt to' protect the credulous and incompetent citizens of the state from frauds and impositions by the sale to them of ‘speculative securities’ in fraudulent or hazardous undertakings.”

There have been many decisions of the Supreme Court of Oklahoma upholding legislative acts providing for the collection of fees, or which in their operation would incidentally be productive of more or less revenue, and which have been attacked upon the same ground advanced by defendant. Gillespie v. First National Bank, 20 Okla. Cr. 768, 772, 95 Pac. 220, holding an act providing for discovery and assessment of unlisted property not to be a bill for raising revenue which must originate in the Senate. Cornelius v. State ex reí. Cruce, 40 Okla. 733, 140 Pac. 1187, considering chapter 246, Session Laws 1913, providing for the mortgage registration tax. Trustees’ Executors’ & Securities Ins. Corp. v. Hooton, 53 Okla. 530, 157 Pac. 293, L. B. A. 1916E, 602, considering the same act. Lusk v. Byan, 69 Okla. 165, 171 Pac. 323, considering section 7, art. 1, chapter 240, Session Laws of 1913, relative to recovery of illegal taxes. Byan v. State ex rel. Fulfs, 102 Okla. 168, 228 Pac. 521, passing on chapter 61, Session Laws 1923-24', relating to1 tax' refunds. Ex parte Tindall, 102 Okla. 192, 229 Pac. 125, passing on chapter 113, .Session Laws 1923, motor vehicle tax. In re Lee, 64 Okla. 310, 168 Pac. 53, 57 L. B. A. 1918B, 144, passing on chapter 87, Session Laws 1915, providing for the appointment of Supreme Court commission and increasing the icost deposit to be collected by the Clerk of the Supreme Court.

In the last-mentioned case, the act under consideration had originated in the Senate. It was contended that this was a revenue measure, and therefore unconstitutional. The court said:

“It is finally claimed that the act of 1915, having originated in the Senate, is invalid because it is a revenue measure, while the Constitution provides in section 33, art. 5 (Williams’, § 95) : ‘All bills for raising revenue shall originate in the House of Representatives.’ From what has been said in the discussion of the first objection to the statute, it prescribes a fee to the public for services rendered by their officers, and is not exacted for revenue, but as compensation. An act prescribing such fees is not a revenue measure within the meaning of the Constitution.”

In re Ambler, 11 Okla. Cr.' 449, 148 Pac. 1061, this court said:

“A statute enacted within the reasonable exercise of the police power of the state may impose reasonable fees, and the imposition of such fees in no manner changes such law from a police regulation to a revenue measure. Such fees are not required tu be based on the cost of the enforcement of the law or the issuance of permits thereunder.”

Revenue laws are those laws only whose principal object is the raising of revenue, and not those under which revenue may incidentally arise.

Revenue bills are those that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue. Anderson v. Ritterbusch, 22 Okla. 761, 68 Pac. 1002; Wallace v. Gassaway, 148 Okla. 265, 298 Pac. 867.

In the case of Colorado National Life Assurance Co. v. Clayton, Ins. Commissioner, 54 Colo. 256, 130 Pac. 330, 332, the Supreme Court of Colorado, construing a similar act, said:

“Revenue bills are those which have for their object the levying of taxes in the strict sense of the words. If the principal object is another purpose, the incidental production of revenue growing out of the enforcement of the act will not make it a bill for raising revenue.”

It thus appears from the title of the act and from the authorities above cited that chapter 24, article 11, supra, is not a revenue raising measure, but is one whose primary purpose is to prevent fraud in the sale and disposition of stocks, bonds, and other securities sold and offered for sale within the state.

It is next contended that chapter 24, article 11, supra, violates section 56, article 5, of the Constitution, the particular objection being that, in addition to regulating the sale of stock and creating the officers and employees necessary to conduct the business of the department, it includes an appropriation to pay the commissioner, clerks, and expenses of operating the department, and is therefore void.

Section 56, article 5, of the Constitution, provides:

“The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the state, and for interest on the public debt. The salary of no officer or employee of the state, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject.”

This section provides first for the executive, legislative, and judicial departments and the interest on the public debt; second, forbids the increase of the salary of any officer or employee; and, third, forbids any appropriation for an office or employment not already provided for by law. These provisions are mandatory, and a general appropriation act, to be constitutional, must be within these provisions.

The Constitution by such action provides that “all other appropriations must be in separate bills, embracing but one subject.”

Defendant contends that an appropriation cannot be made in the same bill which creates the office and defines the duties, but that the appropriation must be in the general appropriation bill or in a separate appropriation bill after the office is created.

Beginning with the first Legislature in 1907-08, and down to the present time, neither the legislative, executive, nor judicial departments of state have so construed section 56, article 5, supra, as evidenced by the following acts: Chapter 3, article 1, Session Laws 1907-08, creating a board of agriculture and making an appropriation; chapter 1, article 1, Session Laws 1907-08, empowering the Governor to employ accountants to audit the territorial accounts and making an appropriation; chapter 1, article 2, Session Laws of 1909; chapter 88, Session Laws of 1910-1911; chapter 37, Session Laws of 1913; chapter 18, Session Laws of 1915; chapter 115, Session Laws of 1917; chapter 169, Session Laws of 1917; chapter 170, Session Laws of 1917; chapter 210, Session Laws of 1917; chapter 32, Session Laws of 1919; chapter 43, Session Laws of 1923; chapter 55, Session Laws of 1923; chapter 43, Session Laws of 1923-24; chapter 71, Session Laws of 1923-24; chapter 1, Session Laws of 1927; chapter 228, Session Laws of 1929; chapter 26, article 1, Session Laws of 1931.

Many other statutes could be cited, but these are sufficient to show the views of the Legislature and the Governor.

In re County Commissioners of the Counties Comprising Seventh Judicial District, 22 Okla. 435, 98 Pac. 557, that court had under consideration an act creating additional district judges, fixing their compensation and making an appropriation, and there said:

“Section 57, art. 5 (Bunn’s Ed. § 130), of the Constitution of this state, ordaining that ‘every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title,’ is mandatory; but its requirements are not to be exactingly enforced, or in such a technical manner as to cripple legislation.
“The title of the act entitled ‘An act to provide for the appointment of additional judges of the district courts of the state where same are found necessary; making an appropriation and declaring an emergency,’ embraces but one subject, namely, ‘the appointment of additional judges of the district courts of the state where same are found necessary,’ the subsequent clause being referable, and so correlated to the subject expressed in the first clause in the title as a natural and legitimate complement to the subject therein expressed.”

In the body of the opinion the court said:

“In order to determine whether or not two subjects are embraced in this title, it is necessary to ascertain whether the clause ‘making an appropriation and declaring an emergency’ is comprehended by the first clause. It provides for the appointment of additional judges of the district courts of the state where same are found necessary. Could, under such title, an appropriation be made to pay the necessary and actual expenses of such judge incident to the performance of his duties outside of the district for which he was originally appointed? We think so.”

In Bryan v. Menefee, 21 Okla. 1, 95 Pac. 471, that court said:

“Before provision can be made in the general appropriation bill for the compensation of any officer or employee in the executive, legislative, or judicial departments of the state, the office must first have been created and the salary or compensation fixed, or the employment authorized, and the compensation provided for either therein or in a separate bill.”

In the body of the opinion, referring, to section 56, article 5, supra, the court said :

“Under this provision the office or position of bookkeeper for the State Treasurer not having been created by the Constitution or laws now in force in the state of Oklahoma, no- provision could be made to cover the compensation therefor in the general appropriation bill until such office shall have been created or such employment provided for by law, and the amount of salary or compensation likewise provided in such act, or in a separate act therefor.”

Mr. Justice Williams, in syllabus 1 of the opinion, uses this significant language:

“Or the employment authorized, and the compensation provided for either therein or in a separate bill.”

In Menefee, State Treasurer, v. Askew, State Game & Fish Warden, 25 Okla. 623, 107 Pac. 159, 27 L. R. A. (N. S.) 537, that court had under consideration an act creating the department of game and fish, and providing for a warden and deputy game wardens, fixing their salaries and authorizing the payment of the same, and held that sections 9 and 10 of article 4 of such act |Laws 1909, c. 19), in connection with sections 3 and 13 of article 6, constituted a valid appropriation as to the salary of the game and fish warden and his necessary traveling expenses and the salaries of the deputy game and fish wardens, but held, however, that the act made no appropriation for a stenographer and for other expenses, for the reason that no definite sum was specified.

In 1915, the Montana Legislature passed an act called the “Farm Loan Act” (Laws 1915, c. 28), creating a department of farm loans, for the operation of such department, to make loans, character of property to be used as security, and, among numerous provisions, included an appropriation for administrative purposes.

In Hill v. Rae, 52 Mont. 378, 158 Pac. 826, 830, L. R. A. 1917A, 495, Ann. Cas. 1917E, 210, the constitutionality of this act was under attack, upon various grounds, including the contention made by the defendant in the case at bar. The Supreme Court of that state said:

“Nor dO' we think there was any violation of section 33, art. 5, which provides that appropriations, other than for the ordinary expenses of the legislative, executive, and judicial departments of the state, interest on the public debt, and for public schools, ‘shall be made by separate bills, each embracing but one subject.’ Counsel for appellant construes this to mean that appropriations for a special purpose shall in all cases be made by a bill containing nothing but the appropriation itself. Where the appropriation constitutes the entire purpose in view, this is doubtless correct; but it is not correct if the appropriation is a mere incident to a larger, but still single, subject of legislation. There is no violation of this provision where the Legislature establishes a bureau or commission, and appropriates funds for its inauguration or to carry out the objects for which it was created.”

To the same effect is State ex rel. v. Turner, 37 N. I). 635, 164 N. W. 924.

Under the above authorities, there can be no doubt the Legislature of Oklahoma may in one act establish a department, provide for the employees, fix their compensation and duties, and appropriate the money for their maintenance and support, limited only that the appropriation cannot be a continuing one, but can only be for a period not exceeding two and one-half years.

It is next contended the act in question is discriminatory, and therefore void. No decisions are cited in support of this contention. Counsel quotes certain provisions of the act, and argues that the same constitute discrimination. Almost identical provisions contained in the acts of other states have been sustained against such an attack. Kreutzer v. Westfahl, 187 Wis. 463, 204 N. W.' 595; Hall v. Geiger-Jones Co., 242 U. S. 539, 37 S. Ct. 217, 61 L. Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643; ■Stewart v. Brady, 300 111. 425, 133 N. E. 310, 314.

In the latter case that court said: “Its classification of the objects of legislation is not required to be scientific, logical, or consistent, if it is reasonably adapted to secure the purpose for which it is intended and is not purely arbitrary. Legislative classification does not have to be so broad and comprehensive as to include all the evils which might by possibility be brought within its terms.”

Under the broad powers conferred upon the Legislature by the Constitution of this state, it had authority to pass the act in question and to fix the classification provided for therein.

Defendant requested the court to instruct the jury that upon his theory of an isolated transaction he could not he convicted unless there had been repeated and successive transactions of like character. The court refused this requested instruction, but on his own motion told the jury (instruction No. 6), in substance, that any person who sold or offered for sale such stock or securities, the sale of which has not been approved or authorized by the Oklahoma Securities Commission, is guilty of a violation of the law. In this connection, however, the court further told the jury, the law does not prohibit the sale of any security or stock in an isolated transaction where the stock is sold by the owner thereof, or by his representative for the owner’s account.

It would have been a proper defense if defendant had proved he was the bona fide owner of the stock charged to have been unlawfully sold in this state, and that the transaction was an isolated one, and that the sale was not made in the course of repeated and successive transactions of like character by him, or on his account by a representative, and he or his representative not being, the underwriter of the security. The court properly instructed the jury upon that issue. In several states ap-' pellate courts have construed the same or similar provisions with reference to isolated transactions: People v. Clum, 213 Mich. 651, 182 N. W. 136, 15 A. L. R. 253; Edward v. Ioor, 205 Mich. 617, 172 N. W. 620, 15 A. L. R. 256; Dows v. Schuh, 206 Mich. 133, 172 N. W. 418; Commonwealth v. Johnson, 89 Pa. Super. Ct. 439; People v. Gillett, 243 111. App. 41; State v. Gerritson, 124 Cr. 525, 265 Pac. 422; Smith v. Crawford, 228 Ky. 420, 15 S. W. (2d) 249.

When instruction No. 6 and the other instructions of the court are all considered together, it appears they correctly state the law, and were as favorable to the defendant as the law and the facts would warrant.

We have carefully considered all the questions raised by defendant, and, finding no fundamental error in the record, the cause is affirmed.

DAVENPORT, J., concurs. EDWARDS, P. J., absent, not participating.


source: Caselaw Access Project

author: CHAPPELL, J.

license: Public Domain

text:
    MARY DUNCAN v. STATE.
    No. A-8481.
    March 25, 1933.
    Rehearing Denied June 9, 1933.
    (22 Pac. [2d] 930.)
    Bruce & Jefferson, for plaintiff in error.’
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Mary Duncan,

hereinafter called defendant, was convicted in the district court of Oklahoma county of the crime of forgery, and, after the jury failed to agree upon the punishment, the trial court fixed it at imprisonment in the state penitentiary for seven years.

Defendant was jointly charged with one Monroe Duncan, her husband, with having forged a certain instrument which affected the rights of A. L. Smith in certain real property located on lot 6, block 5, in the city of Oklahoma City. A severance was granted and the state elected to try Mary Duncan first.

The parties to the business transaction, out of which this prosecution for forgery finally arose, are all Negroes, and the instrument forming its basis is almost unintelligible. It was the contention of the state that this instrument alleged to have been forged by this defendant was one granting a five-year lease to the defendant’s husband, Monroe Duncan, on the real property above described, and for that reason it was an instrument purporting to be the act of another by which a certain interest in real estate was purported to be transferred, and the crime therefore was forgery in the first degree under the first division of section 2119, St. 1931. The trial court took the state’s view of the matter and in effect instructed the jury that the crime, if a crime at all, was forgery under the section above referred to. This court has carefully examined the instrument forming the basis of this prosecution and is unable to say beyond a reasonable doubt that it is such a one as purports to transfer an interest in real property within the meaning of the statute defining forgery in the first degree. However, the court is of the opinion that the instrument is one which may form the basis of a prosecution for forgery as defined by the second subdivision of section 2133, St. 1931, which would make the person doing such an act guilty of forgery in the second degree.

There are numerous assignments of error set out in the brief of counsel for defendant, and we have carefully considered the same in connection with the record itself, and believe that none of them are of sufficient merit to authorize this court to reverse the judgment. The verdict of the jury simply found the defendant guilty as charged, and under section 3095, St. 1931, a general verdict of guilty imports a conviction only of the offense charged in the information. The offense charged in the information, as we construe the same, is only that of forgery in the second degree.

Section 2822, C. O. S. 1921 (St. 1931, § 3206), prohibits this court from reversing a case for misdirection of the jury, unless same results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, while section 2820, C. O. S. 1921 (St. 1931, § 3204), gives this court broad power to modify a judgment. It would serve no good purpose to reverse the case, since on the evidence introduced by the state no honest jury could return any other verdict than that of guilty.

Under the instructions of the court, the least punishment the jury could give defendant if they found her guilty, was seven, years, which is the maximum punishment for forgery in the second degree.

From a consideration of the whole record, it is apparent that the case is not one that calls for the maximum punishment, but that substantial justice will be done by reducing the punishment from imprisonment in the state penitentiary for seven years to imprisonment in the state penitentiary for one year.

For the reasons stated, the judgment is modified and the punishment reduced from imprisonment for seven years to imprisonment for one year in the state penitentiary, and, as modified, the cause is affirmed.

DAVENPORT, J. concurs. EDWARDS, P. J., absent, not participating.


author: EDWARDS, P. J.

text:
    W. P. HICKS v. STATE.
    No. A-8457.
    Feb. 17, 1933.
    Rehearing Denied June 16, 1933.
    (23 Pac. [2d] 219.)

      Hall & Thompson, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted of embezzlement in the district court of Cherokee county and was sentenced to serve a term of one year in the state penitentiary. Defendant was treasurer of the school district embracing the city of Tahlequah and outlying territory. The funds of the district were deposited in a Tahlequah bank. On April 3, 1928, defendant drew a check in the sum of $250 against the funds of the district, payable to the deposit bank. This check is indorsed paid on the day of its date, and the testimony is that the payee bank on that date issued its draft on a bank of Muskogee for the amount of the check, which draft was cashed in due course, and returned to the issuing bank. The check against the school district bore a notation by defendant to' the purport that the check was for a draft to Chase National Bank, N. Y. No' draft was made to that bank, but as stated draft was made on the Muskogee bank. Defendant did not take the stand and offered no testimony.

It is first argued there is a fatal variance between the charge and the proof. Section 2899, ,St. 1931, provides what shall constitute a sufficient description of moneys or property embezzled. The information here alleges the embezzlement of—

“* * the sum of $250.00 in good and lawful money of the United States of America, etc. * '*

Defendant insists the proof in its most favorable aspects for the state is of the embezzlement of a draft in the sum of $250 and not of money, citing various authorities. People v. Meseros, 16 Cal. App. 277, 116 Pac. 679; State v. Mispagel, 207 Mo. 557, 106 S. W. 513; Carr v. State, 104 Ala. 43, 16 So. 155. This court has departed from a too literal application of the rule of variance as it obtained at common law and in some of the states. Ostendorf v. ,State, 8 Okla. Cr. 361, 128 Pac. 143; Woods v. State, 22 Okla. Cr. 365, 211 Pac. 519; Tiger v. State, 54 Okla. Cr. 202, 16 Pac. (2d) 889. A similar contention to that here was made in the case of Fulkerson v. State, 17 Okla. Cr. 103, 189 Pac. 1092, in which case this court held:

“Where the defendant, as treasurer of a school district, is charged with the embezzlement of a certain sum of money belonging to the said district, and the proof adduced upon the trial shows that the defendant received, as treasurer of said school district, a certain warrant issued to said school district by the county treasurer and deposited the same to- his personal credit in a bank and after-wards checked against said fund for his personal use, held, there is no fatal variance between the allegations of the information and the proof.”

The rule in the Fulkerson Case was reiterated in Mason v. State, 23 Okla. Cr. Ill, 212 Pac. 1028. In French v. State, 37 Okla. Cr. 350, 259 Pac. 162, 164, in which case a bank official was prosecuted for receiving money, checks, and drafts in an insolvent bank, the proof showed the deposit of a cotton ticket which the bank accepted as a credit. The contention was made this was a variance since it was not the deposit of money, a check, or drafts. This court said:

“We fail to see what difference there is between the transaction that took place than if the bank had passed out on the cotton ticket the cash to the holders of the ticket, and they had immediately passed the same hack for deposit in the bank and had received credit therefor. After this ticket had been accepted by the bank as cash and the credit given, it cannot be said that this was merely a deposit of cotton tickets and not a deposit of a check or of cash.”

So in the instant case we fail to see what is the difference if at the time defendant presented the check against the school district fund the bank had paid him in money and he had then purchased the draft on Muskogee, or if, as was done, they merely accepted the check against the school district funds as money and issued the draft.

It is next argued that the district court of Cherokee county had no jurisdiction. That if any crime was committed it was in Muskogee county, which necessarily fixed the venue in that county. Since we have held in disposing of the foregoing proposition that the purchase by check in Cherokee county of a draft on the Muskogee bank by defendant was a misappropriation of the funds of the school district in Cherokee county, it follows that the venue is in that county. The venue is not affected by the subsequent payment of the draft in Muskogee county.

The contention is made that since the check against the funds of the school district was drawn April 3, 1928, and the information on which defendant was tried was filed on January 23, 1932, the offense was barred by the statute of limitation. The record does not disclose the steps taken prior to the filing of the information. The court, however, took judicial notice of the preliminary proceedings and instructed the jury that the preliminary complaint was filed on March 12, 1931, which was less than three years from the date of the offense charged. Error is not presumed but must be made to appear affirmatively. Every presumption is indulged in favor of the regularity of the proceedings in the trial court. That the preliminary complaint was filed within three years from the date of the offense is not controverted, but the contention is that since the record, does not contain the preliminary proceedings, it does disclose that the prosecution was barred by limitation. Where a preliminary complaint is filed in good faith and a warrant issued thereon, such step arrests the statute of limitations. This contention is, therefore, without merit. Davenport v. State, 20 Okla. Cr. 253, 202 Pac. 18; Jarrett v. State, 49 Okla. Cr. 162, 292 Pac. 888. Upon a consideration of the entire record, we find no material error.

The case is affirmed.

DAVENPOET and CHAPPELL, JJ., concur.


text:
    ROSS LINDER v. STATE.
    No. A-8466.
    June 16, 1933.
    (23 Pac. [2d] 222.)
    Don Cameron, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, Eoss Linder, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of larceny by fraud, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of four years.

This is a companion case to that of Jack Meigs v. State, No. 8476, which has already been affirmed by this court, petition for rehearing denied, on the 18th day of March, 1933, and reported in 54 Okla. Cr. 308, 21 Pac. (2d) at page 49. The questions involved in this appeal are the same as those in the Meigs Case, except that in this case defendant contends the trial court erred in denying his application for a continuance on account of the absence of his codefendant, Meigs.

The application for continuance on its face discloses that Meigs is a codefendant and that his evidence would be merely cumulative of that which would be produced by other witnesses for defendant.

Defendant also introduced what purported to be certificate from a doctor as to the physical condition of the codefendant, Meigs. The state offered evidence to show that Meigs and defendant were in the county attorney’s office two days before the time set for trial and tried to arrange for a continuance, but were notified by the county attorney that the case would be called for trial on the day set. No subpoena was issued for Meigs and no effort made by defendant to bring, him before the court to testify.

Defendant also applied for a continuance on account of the absence of one Floyd Hathcoat, but it appears from the record that this witness was present and testified for defendant.

Applications for continuance are addressed to the sound discretion of the trial court, and its ruling will not be disturbed by this court unless a manifest abuse of discretion appears. Rhea v. Territory, 3 Okla. Cr. 230, 105 Pac. 314; Hughes v. State, 7 Okla. Cr. 117, 122 Pac. 554; Rose v. State, 8 Okla. Cr. 294, 127 Pac. 873; Reed v. State, 14 Okla. Cr. 651, 174 Pac. 800.

This court has also held that the defendant must exhaust his legal remedies to get the witness or witnesses for whom he seeks a continuance. Eose v. State, 8 Okla. Cr. 294, 127 Pac. 873; McCarter v. State, 14 Okla. Cr. 305, 170 Pac. 712.

It is not error to refuse a continuance where it appears that the evidence is merely cumulative. Eoberts v. State, 36 Okla. Cr. 28, 251 Pac. 612.

Defendant could not compel his codefendant to be a witness in his behalf as long as the case was pending against the codefendant. A codefendant may voluntarily testify in a case, but may not be compelled to' do so.

It was not an abuse of discretion, therefore, for the trial court to refuse a continuance because of the absence of the codefendant.

The decision of this court in Meigs v. State, supra, is conclusive as to the other questions raised in this case, as the record in this appeal is practically identical with the record in the Meigs Case.

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

EDWAEDS, P. J., and DAYENPOET, J., concur.


author: EDWARDS, J.

text:
    Ex parte CHARLES A. MURRAY.
    No. A-8415.
    Nov. 29, 1932.
    Rehearing Denied June 23, 1933.
    (23 Pac. [2d] 220.)

      Mauntel & Spellman and L. Z. Lasley, for petitioner.
    J. Berry King, Atty. Gen., and H. C. Crandall, Co. Atty., for respondent.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained by the sheriff of Woods county, that he was charged to have committed a contempt toward the county judge of Woods county on March 30, 1932, and that on April 2, the county judge adjudged petitioner in contempt and sentenced him to confinement in the county jail for a period of six months and issued a commitment thereon.

The record is not in very good shape, but from the exhibits, oral admissions, and the briefs it seems to be undisputed that petitioner was charged by preliminary complaint with a felony. He was brought before the county judge as a committing magistrate, and, when asked concerning the case, he broke into an angry response, and used toward the magistrate vile, profane, and abusive language, accompanied by threats of personal violence which we deem it unnecessary to set out. The county judge at the time informed petitioner his language was contemptuous, and constituted a direct contempt of court but he would continue that charge until April 2, at 2 o’clock in the afternoon, when he would be given an opportunity to make defense. He was returned to jail on the felony charge until April 2, when he was brought before the judge, and a change of venue granted on that charge. The county judge then asked if he had anything to say why sentence should not be imposed for his contemptuous conduct of March 30. Petitioner made answer, stating in substance he was under a mental strain, and had not had an opportunity at that time to see his wife nor family, nor had conferred with counsel; that he did not know what he said, and, if anything he said was disrespectful, he was sorry and wished to apologize. The judge then imposed the sentence for contempt. In this proceeding we consider only the question of the jurisdiction of the court and the want of due process of law.

The said commitment recites that:

“* * * On the 30th day of March 1932, the above named, Charles A. Murray, did in the presence of the judge of the county court * * * commit a direct contempt of said court in the immediate presence of said court by then and there cursing and abusing said judge and threatening to kill said judge and calling the court vile and indecent names, as appears from the record filed in said cause.
“And now on this 2nd day of April, the same being the appointed day by said court for the rendering of sentence for said contempt as above set forth and as set forth in the records and minutes of the court, it is the judgment of the court that the said Charles A. Murray be confined in the county jail for a period of six months dating from this date. * * *”

Petitioner was confined on this commitment until about May 5, at which time a petition for writ of habeas corpus was filed with the district judge of Woods county on the ground the commitment was void, that, if any contempt was committed, it was condoned, and the court lost jurisdiction by postponing the contempt proceeding from March 30 to April 2; and further the commitment itself is void. This latter reason we gather, on account of the failure of the commitment to set forth the substance of the contempt as required by section 1959, Stat. 1931, but in stating conclusions only. The district judge heard the petition and granted a writ discharging petitioner. About this time an amended commitment was issued by the county judge to correct the defects in the first commitment by setting out the substance of the offense. It is under this process petitioner is held. The amended commitment is not pleaded and does not appear in the record or stipulation. Upon the filing of the petition in this court, a rule to show cause was issued, but no return to the rule has been filed. Upon the day fixed for the return of the rule petitioner was admitted to bail.

The burden is on petitioner to show the commitment void. McGorray v. Sutter, 80 Ohio St. 400, 89 N. E. 10, 24 L. R. A. (N. S.) 165, 131 Am. St. Rep. 715; Ex parte Fowler, 3 Okla. Cr. 196, 105 Pac. 180.

If the court in the first instance had jurisdiction to render judgment and sentence defendant, a defect in the commitment may be corrected during the term of the commitment. Ex parte Alexander, 5 Okla. Cr. 196, 113 Pac. 993; Ex parte Harry, 6 Okla. Cr. 168, 117 Pac. 726; In re Wilkins, 7 Okla. Cr. 422, 115 Pac. 1118; Ex parte Williams, 102 Okla. 170, 228 Pac. 494; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 Pac. 486; 29 C. J. pages 25-27 and authorities cited; section 704, Stat. 1931.

Petitioner next contends that the contempt, if any, was a direct contempt, and occurred on March 30, but that the court by failure to punish the petitioner at that time lost jurisdiction to punish on April 2.

A direct contempt requires no formal charge, since the act constituting the contempt is in the immediate view, hearing, and presence of the court. Ex parte Dawes, 31 Okla. Cr. 397, 239 Pac. 689; Lynn v. State, 38 Okla. Cr. 313, 260 Pac. 1069; Moore v. State, 41 Okla. Cr. 310, 272 Pac. 1032.

The meager record before us does not disclose any condonation of the contempt; at the time it was committed the court took cognizance of it, and in substance advised petitioner. his conduct and language was a contempt. Further proceedings were as above stated. Under this state of the record, it is insisted defendant was denied his constitutional right to be heard as provided by section 25, art. 2, state Const. Ex parte Sullivan, 10 Okla. Cr. 465, 138 Pac. 815, Ann. Cas. 1916A, 719; Ex parte Dawes, supra.

This contention is not tenable. While the language of the court in informing the defendant of his opportunity to be heard may not be technically correct, yet the court offered petitioner an opportunity to be heard, and petitioner so understood it, and' in fact made the only excuse or defense possible under the facts. We see no reason to interfere with the judgment.

The writ is denied.

DAVENPORT, P. J., and CHAPPELL, J., concur.


author: DAVENPORT, J.

text:
    EDGAR COLLIER v. STATE.
    No. A-8559.
    June 23, 1933.
    (23 Pac. [2d] 393.)

      H. A. Johnson, and J. P. Murray, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of possession of intoxicating liquor, and was sentenced to pay a fine of |250 and to serve 180 days in the county jail, and appeals.

The defendant has assigned and argued fifteen errors alleged to have been committed by the trial court. After a careful examination of the record, the only error deemed necessary to consider is that the court erred in overruling the defendant’s motion to suppress the evidence.

The motion for a new trial and motion to suppress the evidence raises the question of the competency of the evidence introduced by the state, and challenges the sufficiency of the affidavit upon which the search warrant under which the officers searched the private residence of the defendant was issued. If the affidavit for the search warrant is insufficient to' predicate the search warrant upon, then all the testimony against the defendant was inadmissible, and the motion of the defendant to suppress the evidence and his motion for a new trial should have been sustained.

Section 2639, Oklahoma Statutes 1931, is as follows:

“No warrant1 shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

Prior to calling the case for trial, the defendant moved to suppress the evidence on the ground that the search and seizure was unlawful, for the reason that the search warrant was based on an insufficient affidavit, which motion was overruled, and defendant excepted. When the case was being tried, the defendant objected to the evidence offered by the state on the ground that it was procured by an unlawful search and seizure, the officer not having a valid search warrant, which objection was by the court overruled, and defendant saved his exceptions.

It being admitted by the state that the residence searched was the residence of the defendant, it is necessary that the allegations in the affidavit should show that some part of the residence was used at the time as a store, or a shop, or hotel, or boarding house, or a place for storage, or a place of public resort. It is not necessary to set out the affidavit in full; it is only necessary to say that the attempt in the affidavit to' charge a public resort falls far short of the necessary statutory requirement. The affidavit states a certain resort in, upon, and about a certain described tract of land. There is no statement in the affidavit that charges the residence of the defendant was a place of public resort at the time the affidavit was made. It names a certain public resort somewhere in, upon, or near the lands described in the affidavit, but fails to state that the home of the defendant was a place of public resort.

The affidavit is insufficient to> comply with section 2639, Okla. Stat. 1931. In Blackwell v. State, 54' Okla. Cr. 401, 22 Pac. (2d) 1041, this court, in construing an affidavit using the same language as contained in this affidavit, held, that the affidavit for the search warrant was insufficient to authorize the issuing of a search warrant to1 search defendant’s home, citing Duncan v. State, 11 Okla. Cr. 217, 144 Pac. 629; McClure v. State, 31 Okla. Cr. 60, 237 Pac. 145; Loveless v. State, 43 Okla. Cr. 146, 277 Pac. 672.

This court has repeatedly held that evidence obtained by a search of a defendant’s home under a search warrant issued without authority of law and a proper affidavit, for the sole purpose of obtaining evidence against the defendant, in violation of section 30 of the Bill of Rights, is inadmissible. The conviction of the defendant, having no competent evidence to support it without the use of the evidence unlawfully obtained, must be reversed. The judgment of the lower court is reversed, and the case remanded.

EDWARDS, P. J., concurs. CHAPPELL, J., not participating.


text:
    FLOYD LIKES v. STATE.
    No. A-8465.
    June 23, 1933.
    (23 Pac. [2d] 394.)

      Corn & Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county of a second and subsequent violation of the liquor law, and was sentenced to pay a fine of $50 and to serve one year in the penitentiary. The information in substance charges defendant was convicted in May, 1931, in the county court of Dewey county, that judgment was entered and became final, and thereafter, in February, 1932, as a second and subsequent violation of the prohibitory liquor law, he had in his possession a copper still and still worm.

The law prohibiting possession of a still or still worm is section 2, c. 26, ,S. L. 1913 (section 6991, C. O. S. 1921), (section 2632, Okla. Stat. 1931), and is: “For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50.00) dollars, nor more than two thousand ($2,000.00) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the state penitentiary, * *” which section is amendatory of section 16, c. 70, S. L. 1910-11. This latter act was held unconstitutional in so far as the minimum punishment fixed by it was greater than that fixed by the Constitution. See Ex parte Smith, 24 Okla. Cr. 415, 218 Pac. 708; Hildebrandt v. State, 19 Okla. Cr. 30, 197 Pac. 852. See, also, Nowakowski v. State, 6 Okla. Cr. 123, 116 Pac. 351.

The argument is made that, since section 6991, defining the second violation as a felony and fixing an increased maximum punishment, provides that to constitute an offense the second violation must be “of the provisions of this act,” the having possession of a still, enacted in 1913, is not a part of “this act,” and is not an offense. If the statute making it an offense to' have the possession of a still or still worm, and the provisions of section 6991, supra, were the only provisions of law applicable, a more difficult question would be presented.

By the enactment of chapter 70, S. L. 1910-11, the Legislature evidently intended to provide an enlarged punishment for any second violation of the prohibitory liquor laws, whether the same were enacted prior or subsequent to the enactment of chapter 70. This may be gathered from the title to said act, which discloses such purpose and by the terms of sections 18 and 19 (sections 6993 and 6994, C. O. S. 1921). The latter section is as follows:

“Wherever the words ‘this act’ appear in any of the laws of this state enacted for the suppression of the liquor traffic, commonly called prohibition laws, they shall be construed to mean and include all such prohibition laws of this state.” See in this connection Jones v. State, 9 Okla. Cr. 646, 133 Pac. 249, 48 L. R. A. (N. S.) 204; Dunbar v. State, 15 Okla. Cr. 513, 178 Pac. 699.

It is also argued that the information is insufficient, in that it does not allege the still and still worm were possessed' by defendant to make intoxicating liquor or could be so used, or that it had not been registered with the proper United States officer, and certificate of registration filed. This court has decided this point adversely to defendant’s contention. Casey v. State, 48 Okla. Cr. 97, 289 Pac. 363; McCarty v. State, 50 Okla. Cr. 80, 296 Pac. 521; Driggers v. State, 45 Okla. Cr. 200, 281 Pac. 982.

Finally, it is argued the court erred in requiring defendant to1 go to trial over his objections, in less than 10 days after a plea of not guilty, basing the contention on section 582, C. O. S. 1921. The information was filed March 8, and on March 25 the county attorney served notice on defendant’s attorney he would ask to have the case set for trial May 2. On that date defendant demurred to the information, which was overruled; defendant then moved to strike the case from the assignment for the reason he had not had 10 days in which to prepare for trial. The following occurred:

“By the Court: And the court states that the defendant’s counsel was notified more than 10 days prior to the date of arraignment that the case would be called for trial at this time and the court now announces that if counsel for the defense desires to prepare a motion for continuance on the ground of absent evidence which he has been unable to procure by reason of lack of time, the court will allow him time to prepare same and will hear same, otherwise the objection to- going to trial will be overruled. By Mr. Corn: Please note the exception of the defendant. By the Court: Have you any other ground for continuance? By Mr. Corn: Otherwise the defendant is ready for trial.”

Section 582, O. O. S. 1921, is a part of the Civil Code of Procedure, and is not applicable to criminal procedure. A defendant in a) criminal case is entitled to a reasonable time to prepare for trial; the time allowed for trial after plea is largely discretionary. What is a reasonable time depends on the facts and circumstances in each case. What might be a reasonable time tO' prepare for trial in one case might be wholly inadequate in another. The facts in the instant case fail to show an abuse of discretion. The dictum in the case of Westbrook v. State, 14 Okla. Cr. 423, on page 438, 172 Pac. 464, does not support the contention here made, for there, although a death penalty case, the trial within a ten-day period was held not ground for reversal. See, also, Hogan v. State, 42 Okla. Cr. 188, 275 Pac. 355; Lester v. State, 47 Okla. Cr. 156, 287 Pac. 758.

From the whole record we are satisfied defendant had a fair trial. No reason to disturb the judgment is made to appear.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    Ex parte PAUL WYATT.
    No. A-8526.
    June 30, 1933.
    23 Pac. [2d] 719.)
    J. A. D. Collins, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus. The petitioner alleges that he is illegally restrained of his liberty by the sheriff of Greer county, Okla. That he had a preliminary examination before a justice of the peace in and for the city of Mangum, wherein he was charged with the crime of robbery with a deadly weapon, and was held to the district court by the justice of the peace, committed to jail, and. is now incarcerated in the jail of Greer county, Okla.

The petitioner further alleges that the court was without jurisdiction to sit as an examining magistrate for the reason that he had filed an affidavit for change of venue. Response was filed by the sheriff of Greer county in which he admits he holds the defendant under a commitment issued by the-justice of the peace.

The question raised by the petitioner cannot be settled by habeas corpus. The writ of habeas corpus cannot take the place of a writ of error, or of an appeal. Ex parte Wood, 21 Okla. Cr. 252, 206 Pac. 541; Ex parte Adams, 42 Okla. Cr. 27, 274 Pac. 485.

The writ is therefore denied.


text:
    OTIS GREEN v. STATE.
    No. A-8506.
    June 30, 1933.
    (23 Pac. [2d] 506.)
    Amos T. Hall, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of the crime of first degree manslaughter in the killing of Tecumsa Gary, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of four years.

The evidence of the state was that defendant and deceased were negroes; that the killing occurred in front of a negro hotel in the negro section of Tulsa; that both parties had been drinking; that defendant became involved in an argument with deceased over another negro; that, after striking deceased with his gun, he walked away about fifty feet and remained there for a few minutes, and that he then came back to where deceased was standing and shot him three times with a .38 caliber revolver; that he kept the crowd back and refused to permit the deceased to be helped by any bystander until the officers came; that he then surrendered his gun and admitted the shooting.

Defendant, testifying for himself and supported by other witnesses, sought to justify the killing on a plea of self-defense. As is usual in such cases, the evidence is sharply conflicting; that of the state being sufficient to support a conviction of murder. .The defendant’s own testimony discloses that he engaged in a mutual combat with deceased, thereby rendering his plea of self-defense devoid of merit. Under his own evidence he was at least guilty of manslaughter in the first degree. The jury apparently accepted his explanation in fixing the degree of the homicide.

Defendant’s counsel contends that the. court erred in admitting certain incompetent evidence.

An examination of the record discloses that the court sustained objections to the first evidence complained of and admonished the jury not to consider the same. In view of the fact that the ruling was favorable to defendant, there is no error presented to this court with respect to that part of the evidence.

All other claims of admission of incompetent evidence have reference to the cross-examination of defendant where the state’s counsel asked him if he had not been convicted in police court of assault with a knife on a girl commonly called “Red.” Over the objection of defendant’s counsel, he answered “Yes.”

This court has repeatedly held that the state may show conviction of any crime for the purpose of affecting credibility. Key v. State, 10 Okla. Cr. 206, 135 Pac. 950; Davis v. State, 15 Okla. Cr. 386, 177 Pac. 621; Graham v. State, 28 Okla. Cr. 266, 230 Pac. 763; Smith v. State, 34 Okla. Cr. 396, 246 Pac. 1104; Reagan v. State, 35 Okla. Cr. 332, 250 Pac. 435; Strickland v. State, 46 Okla. Cr. 190, 284 Pac. 651.

In Gore v. State, 25 Okla. Cr. 214, 219 Pac. 153, this court said:

“In this state the accused may be interrogated concerning other convictions for crime. Whether an offense involves moral turpitude is not the test in this state.”

This evidence was competent for another reason. On direct examination defendant had said that he had been convicted of the crime of forgery and had served a term in the penitentiary, but had never been convicted of any other offense. Having opened the subject, the state had a right to cross-examine him as to other convictions besides the one admitted by him.

It is also contended that there was prejudicial misconduct on the part of special counsel assisting the state in the prosecution in his oral argument to the jury.

There is no recital in the case-made to the effect that the argument complained of was ever made in the trial court. The only record of any such argument is contained in an affidavit of the attorney for defendant attached to and made a part of his motion for a new trial. This court has held such a record not sufficient to raise the question of improper argument in this court. Irvine v. State, 10 Okla. Cr. 4, 133 Pac. 259; Gaines v. State, 18 Okla. Cr. 526, 196 Pac. 719; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900.

A careful examination of the record discloses that the defendant had a fair trial.

The evidence supporting the verdict of the jury, the cause is affirmed.

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


text:
    W. M. SMITH v. STATE.
    No. A-8490.
    June 30, 1933.
    (23 Pac. [2d] 506.)

      Anglin & Stevenson and Melton & Melton, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Grady county of manslaughter in the first degree, and was-sentenced to- serve a term of four years in the state penitentiary.

The homicide occurred in August, 1931. Trial was in May, 1932. The appeal was lodged in this court in October, 1932. No briefs in support of the appeal have been filed.

We have read the record with care. The evidence discloses that, at the time charged, defendant, with a pistol, shot and killed one Edith Jones, who was the wife of Mays Jones, companion of defendant at the time. It appears they were pursuing Neal Parnell, who was joy-riding with Edith Jones. Defendant, it appears, took it upon himself to avenge a real or apparent marital wrong done Mays Jones, and shot at Neal Parnell, and in doing so killed Edith Jones. He defended on the ground of self-defense. The jury evidently did not believe the defense. The evidence fully sustains the judgment. The punishment assessed is lenient. No error of any consequence occurred at the trial.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J. DAVENPORT, J.

text:
    MAYE SPRATT v. STATE.
    No. A-8471.
    June 16, 1933.
    Dissenting Opinion June 20, 1933.
    Rehearing Denied June 30, 1933.
    (23 Pac. [2d] 223.)

      John L. Ward and Oran N. McCain, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen. (John Ladner, of counsel), for the State.
   Plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of manslaughter in the second degree, and her punishment fixed by the jury at imprisonment in the county jail for the term of one year and to pay a fine of $1,000 and costs of the prosecution.

Defendant was charged with having murdered her .husband, D. O. J. Spratt, on the 7th day of November, 1931. The killing occurred while Mrs. .Spratt and her husband were on a hunting expedition in Tulsa county by a load from a shotgun in the hands of defendant; the load entering his back. The theory of the state was that Mrs. Spratt killed her husband intentionally for the purpose of collecting insurance on his life, she having taken out a $5,000 policy on his life, without his knowledge, about six months before the killing. This was a policy which would pay her $10,000 in case of an accident and $5,000 otherwise. In addition to this insurance, deceased had himself taken out two other policies, in which the defendant was beneficiary.

The defense was that, while she was carrying a shotgun and walking behind her husband, she stumbled and fell, and the gun was accidentally discharged, and the killing therefore was excusable.

Defendant’s counsel earnestly contend that the evidence is insufficient to establish either the corpus delicti or support the verdict of the jury.

The record is voluminous, and there is much evidence bearing on both theories of the case. Without entering into a lengthy discussion of the case, it is sufficient to say that the evidence supports the verdict of the jury.

It is next contended that the court erred in refusing to sustain defendant’s challenge of the juror D. P. Oak for cause; the particular objection to such juror being that he had an opinion which he had formed from reading the newspapers.

The mere fact that a juror has a settled impression or opinion as to the merits of the case, resulting from reading newspaper accounts or from current rumor, and not obtained from personal knowledge of the facts or from witnesses Avho purport to knoAV the facts, does not necessarily render the juror incompetent. Littrell v. State, 22 Okla. Or. 1, 209 Pac. 184. To the same effect are: Gentry v. State, 11 Okla. Or. 355, 146 Pac. 719; Agent v. State, 18 Okla. Or. 282, 194 Pac. 233; Warren v. State, 24 Okla. Cr. 7, 215 Pac. 635; Leard v. State, 30 Okla. Or. 191, 235 Pac. 243.

There being nothing in the record to indicate that defendant, after exercising her peremptory challenges, was unable to obtain a fair and impartial jury, it was not reversible error to overrule the challenge for cause.

It is next contended that the court erred in overruling the supplemental motion for a new trial on the ground that the juror Allen Fletcher, being a nonresident of the county of Tulsa, was disqualified.

Counsel for the state contend that the question of the disqualification of juror Fletcher cannot be considered by this court because it is attempted to be raised in a supplemental motion for a new trial and supplemental case-made, which was filed out of time and is not properly before this court. Notwithstanding this objection, and without passing on the merits of the question, the court will consider it as though it was properly raised and dispose of it.

In Cooper v. State, 27 Okla. Cr. 278, 226 Pac. 1066, this court said:

“The disqualification of alienage is cause for challenge of a juror propter defectum, on account of personal objection, and if, voluntarily, or through negligence or want of knowledge, such objection fails to be insisted on, the conclusion that the judgment is thereby invalidated is wholly inadmissible. The defect is not fundamental, as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it. It is the duty of the defendant to question the jurors on their voir dire as to their qualifications; and if he fails to do so, he waives any objections on that point, even though the disqualification is unknown to him until after the rendition of the verdict.”

To the same effect is Perry v. State, 38 Okla. Cr. 202, 259 Pac. 657.

It is attempted to be shown by the supplemental motion for a new trial that this juror was a nonresident of Tulsa county. In the voir dire examination of this juror, neither the state nor the defendant inquired concerning the residence of the proposed juror.

Considering the record and the authorities above cited, the court did not err in overruling the supplemental motion for a new trial because of the claimed nonresidence of said juror.

It is next contended that the court committed fundamental error highly prejudicial to defendant during the trial by making remarks upon the weight of the evidence in ruling upon the various issues arising during the trial, thereby causing the jury to .believe the court believed the defendant guilty and the jury should convict.

It is not necessary here to set out the circumstances under which the remarks ,of the court were made nor the remarks themselves. The question of whether the remarks of the court are prejudicial are peculiar to each case when considered in the light of the record, and no fixed rule can be laid down with respect thereto. The record discloses that counsel for the state and defendant were contending over the admission and rejection of testimony, and that in reply thereto the court made some statements relative to circumstantial evidence and other matters, none of which appears to be prejudicial or in any wise calculated to influence the jury adversely to defendant.

It is next contended the court committed fundamental error in admitting, over defendant’s objection, incompetent, irrelevant, and immaterial evidence, and rejecting competent, relevant, and material evidence offered by defendant.

We have carefully examined the record, particularly with reference to the assignments set out in defendant’s brief, and find nothing of a serious nature. In most instances the evidence complained of was clearly admissible, and in the others the admission or rejection of the testimony could not have in any wise affected defendant adversely.

Defendant’s counsel urge, inasmuch as the defendant, if guilty at all, was guilty of murder, and that, since the verdict of the jury is clearly a compromise, and the punishment fixed wholly inadequate to the crime, if committed by her, for that reason the case should be reversed.

Juries in the trial of women charged with murdering their husbands usually seek some excuse to either refuse punishment or minimize same. If this court should reverse such cases merely because it is satisfied that the punishment inflicted is wholly inadequate to the crime, then much crime would go unpunished. It is the duty of this court to see that the defendant is given a fair and impartial trial. The burden of fixing the punishment is upon the jury. The mere fact that in the instant case this court might think the punishment was wholly inadequate would furnish no legal ground for reversing the case.

The defendant had a fair and impartial trial. The evidence would have justified the jury in finding defendant guilty and inflicting a more severe punishment.

For the reasons stated, the cause is affirmed.

EDWAEDS, P. J., concurs.

DAVENPORT, J.

(dissenting). In dissenting from the majority opinion, I do so for the reason I am thoroughly convinced that the trial court committed a number of errors sufficient to warrant a reversal.

I insist that the statement, if made at all by the deceased at the hospital to the officer , as claimed by him, was not made under a sense of impending death, and that the admission of the testimony of the officer as to what had taken, place at the hospital was reversible error; that many other statements of the court in the trial of the case and the admission of evidence, over the objection of the defendant, were prejudicial to the rights of the defendant, and was an error sufficient to réverse the case.


text:
    CLAUDE OLIVER et al. v. STATE.
    No. A-8519.
    June 16, 1933.
    Rehearing Denied July 18, 1933.
    (23 Pac. [2d] 718.)
    Jesse H. Dunn, Jess L. Pullen, and Mathers & Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted of murder on their pleas of guilty, in the district court of Murray county, and were each sentenced to death.

Preliminary complaint was filed before a magistrate on November 19th. Preliminary examination was waived on November 22d, a transcript transmitted to the district court, and on the same date an information charging defendants with murder was filed in the district court. The defendants were arraigned and pleas of not guilty entered.

On December 3d, the court appointed Jess L. Pullen and Jesse H., Dunn, leading members of the bar of Murray county, to represent defendants. On the 12th day of December, defendants, with their counsel, appeared in court and announced that they desired to> withdraw their pleas of not guilty and enter pleas of guilty. The court thereupon informed defendants a jury was in attendance and that they were entitled to a jury trial if they desired. That if a plea of guilty should be entered the court must assess either the death penalty or imprisonment for life at hard labor. The court then inquired of the defendants and their counsel if any inducement or promise had been held out by any official or any one else that in the case of a plea of guilty the minimum punishment might be assessed, to which question each of the defendants and each counsel answered in the negative, then stated in substance that with that knowledge and understanding of the consequences they desired to withdraw their pleas of not guilty and enter pleas of guilty. The pleas of not guilty were then withdrawn and pleas of guilty entered, and the passing of sentence deferred.

Thereafter, on December 14th, defendants and their counsel again appeared before the court, who then heard the testimony of several witnesses, touching the facts and circumstances of the crime charged, with a view of learning the circumstances of the crime charged, either in aggravation or mitigation that he might correctly exercise his discretion in fixing the punishment. Section 3140, Okla. Stat. 1931. Each of the counsel then addressed the court, making an earnest plea for the lesser punishment of life imprisonment.

The facts shown by the record are brutal in the extreme and are about as follows: Defendant Claude Oliver was 28 years of age, defendant George Oliver, 18 years of age. Some time before the homicide it was agreed between them that one of them would marry and take out life insurance on his wife and afterwards they would kill her and collect the life insurance. Defendant Claude Oliver was agreed upon as the one to get married and he did so, marrying the deceased, whose name appears in the record as Della Oliver. After the marriage something more than ¡§5,000 insurance was taken out on the life of the wife, and it was then planned they would take her out in an automobile, kill her, and run the car off a culvert. They arranged with a negro to be a witness of the death of the wife to prove it accidental if need for such proof should arise. They selected the place for the crime and then went on the highway to the chosen spot, stopped the car, and while Claude Oliver, the husband, was out of the car under a pretext of repairing a tire, George Oliver struck Della Oliver on the head with a heavy file. She managed to get out of the car and ran to her husband, Claude Oliver, for protection. He held her and told George Oliver to finish the job, and George Oliver then struck her several times with a heavy piece of iron from an automobile spring, killing her. She was then put in the car and the car run off a culvert and wrecked.

The most earnest contention is made that under the circumstances shown, the death penalty should not be permitted to stand. The plea is more in the nature of one for clemency than one for a legal right.

Upon a plea of guilty of murder the punishment must be assessedl by the court, and must be either death or imprisonment for life. Section 2222, Okla. ,Stat. 1931. It is proper practice for the court receiving such .plea to investigate the facts, and, if he deems it necessary, to take evidence, in order to arrive at the just punishment to be assessed. The facts here disclosed show a heartless murder, coldly planned and deliberately and cruelly executed. The motive — a procuring of money for the life of the victim. The age of the defendant George Oliver appeals to this court, as no doubt it did to the trial court; but under the admitted facts, if this crime is not deserving* of the death penalty, then indeed few crimes justify it. It is not the province of this court to extend clemency. That belongs to the chief executive. When this court reduces a punishment assessed by the trial court, it does so as a matter of justice under the law and not for reasons of sympathy or by way of clemency. Turner et al. v. State, 8 Okla. Cr. 11, 126 Pac. 452; Fritz v. State, 8 Okla. Cr. 342, 128 Pac. 170.

The case is therefore affirmed.

The original time for the execution having passed, owing to the pendency of the appeal, it is considered, ordered, and adjudged by this court that the judgment and sentence of the district court of Murray county be carried out by the electrocution of the defendants on Friday, August 25, 1933.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    J. H. BROWN v. STATE.
    No. A-8551.
    June 9, 1933.
    Rehearing Denied July 18, 1933.
    (23 Pac. [2d] 719.)
    J. F. Boettcher, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff .in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of maintaining a disorderly house, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of nine months.

The Attorney General has filed a motion to dismiss the appeal, because notice of appeal was not served on the county attorney or the court clerk of Oklahoma county, nor was any summons in error issued and served on the Attorney General or the issuance and service of same waived by said officer.

Where no' notice of intention to appeal is served on the county attorney or court clerk, and where no summons in error is issued and served, and where the Attorney General has not waived the issuance and service of summons in error, this court acquires no jurisdiction of the appeal. Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173; Aubrey v. State, 38 Okla. Cr. 271, 260 Pac. 783; Sharer v. State, 40 Okla. Cr. 420, 269 Pac. 511.

It appears from the reeord that the contention of the Attorney General is well taken, and the motion to dismiss the appeal should be sustained.

For the reason stated, the appeal is dismissed.

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


text:
    FRANK GREEN v. STATE.
    No. A-8432.
    July 21, 1933.
    (24 Pac. [2d] 301.)
    L. Z. Lasley, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

An opinion affirming this case was rendered on the 18th day of November, 1932. Petition for rehearing was duly filed and upon consideration was granted and the opinion withdrawn.»

Defendant in his petition for rehearing calls the court’s attention to that part of instruction No. 3 where the trial court said:

“Any person convicted of violating the last preceding paragraph of these instructions is guilty of a felony and shall be punished by imprisonment in the state penitentiary for any period of time not less than one year nor more than five years.”

Defendant excepted to the giving of this instruction and assigned the same as error in his motion for a new trial and in his petition in error in this court.

Under this instruction and other instructions, the jury found the defendant guilty and fixed his punishment at imprisonment in the state penitentiary for a period of one year.

The record discloses that defendant filed his motion for a new trial, which was by the court granted; that later, on motion of the county attorney, the court withdrew this order granting a new trial and proceeded to render judgment on the verdict of guilty, fixing his punishment at a fine of $50 and imprisonment in the county jail for a period of 30 days.

In Beck v. State, 14 Okla. Or. 3, 166 Pac. 753, this court said:

“A trial court has no authority to authorize the jury by his instructions to fix any punishment other than that provided by the statute.”

Patterson v. State, 44 Okla. Cr. 298, 280 Pac. 862, announces the same rule.

The case at bar differs from Cornett v. State, 40 Okla. Cr. 172, 267 Pac. 869, and other similar cases, in that the court instructed the jury that the punishment was less than that fixed by statute and no exceptions or objections were taken to the instructions or verdict, nor any question raised in the motion for a new trial. In those cases the court said since the error was beneficial to defendant, he could not be heard to complain. In Patterson v. State, supra, while the instruction was favorable to-defendant, yet this court said it was reversible error where the court, over objection of defendant, instructed the punishment was less than that fixed by law, while in the case at bar the court instructed the jury the minimum punishment was imprisonment in the penitentiary for one year, when under the statute (St. 1931, § 2622) it was a fine of not less than $50 nor more than $2,000, and imprisonment for not less than 30 days in the county jail nor more than five years in the state penitentiary.

For error in giving the instruction complained of, the cause is reversed.

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


text:
    STATE v. J. PAUL MATHIES.
    No. A-8493.
    July 21, 1933.
    Motion to Modify Decree Denied Aug. 11, 1933.
    (28 Pac. [2d] 594.)

      Jas. L. Hale, Co. Atty., J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State,
    Babh, Bennett & Babb, for defendant in error.
   EDWARDS, P. J.

The information was filed in the district court, in part alleging—

“* * * that * * * J. Paul Mathies * * * was a duly elected and qualified and acting county commissioner * * * and * * * then and there in his official capacity as such county commissioner at a regular meeting of the board of county commissioners * * * did willfully, unlawfully, intentionally, fraudulently and feloniously approve and allow a certain unlawful, fraudulent, and unauthorized claim against the said LeFlore county * * * said claim being against the road fund, for the sum of one hundred and three dollars ($103.40) and forty cents, and purporting to be for labor performed by one J. H. Bowman on the county highways of said LeFlore county, that said claim was, as the said J. Paul Mathies then and there well knew, unlawful, fraudulent, and unauthorized in this to wit: That said J. H. Bowman did not perform the work or labor charged for in said claim * * * contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the state of Oklahoma.”

A demurrer was filed, as follows:

“1st. That the information is not direct and certain in regard to the offense charged, in that the information does not state with directness and certainty whether the defendant is charged with approving- and allowing a fraudulent claim, or whether he is charged with approving and allowing a claim not specifically authorized by law.

“2nd. That the information attempts to charge the defendant alone with the commission of an offense which he could not commit alone, i. e., knowingly allowing a fraudulent and unauthorized claim.

“3rd. That the information is duplicitous in that it attempts to charge more than one offense.”

The state contends the information properly charges a crime under the provisions of section 5968, Okla. Stat. 1931, which section is:

“Any member of the board of county commissioners, * * * knowingly, willfully and intentionally allowing any claims or entering into any contract on the part of such county* * * not specifically authorized by law, shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment in the penitentiary for a term not to exceed five years,, and the official bond of said officer shall in any event be liable for the amount or amounts of money so unlawfully expended or misappropriated.”

Defendant’s counsel argue that the facts pleaded do not constitute a crime as defined by section 5968; that this section refers only to “unauthorized” claims; that, since the county commissioners have full authority to allow claims against the highway or road fund, the particular claim pleaded was authorized by law; that the acts alleged make the claim! pleaded a fraudulent claim as distinguished from an unauthorized claim; and that the liability of defendant is fixed by section 5964, Okla. Stat. 1931, which statute is:

“Every officer of any county, * * * who shall hereafter order or direct the payment of any money or transfer of any property belonging to such county * * * in settlement of any claim known to such officers to be fraudulent or void, or in pursuance of any unauthorized, unlawful or fraudulent contract or agreement made or attempted to be made for any such county, * * * by any officer thereof, and every person, having notice of the facts, with whom such unauthorized, unlawful or fraudulent contract shall have been made, or to whom, or for whose benefit such money shall be paid or such transfer of property shall be made, shall be jointly and severally liable in damage to all innocent persons in any manner injured thereby, and shall be furthermore jointly and severally liable to the county * * * for double the amount of all such sums of money so paid, and double the value of property so transferred, as a penalty, to be recovered at the suit of the proper officers of such county * * * or of any resident taxpayer thereof, as hereinafter provided.”

Defendant’s counsel further argue that defendant cannot legally be charged with allowing an unauthorized or fraudulent claim, for the reason that a claim can be allowed only by the board of commissioners or a majority thereof, and one member cannot be guilty, and an information attempting to charge one alone is insufficient. The state argues that, where a member of a board of county commissioners willfully allows a claim against the county, knowing at the time that the claim is false and fraudulent, and where no legal authority for its payment exists, the member is guilty of a crime under section 5968, as charged; that is, that such a claim is never authorized by law.

A statute must be construed in accordance with the legislative intent. The legislative intent is to be ascertained from the language used, and the various provisions of a statute must be considered and construed in arriving at such intent. Section 5964, supra, is civil in its nature. It forbids officers having the control and disposition of the moneys of a county or other subdivision from ordering the payment of its moneys to a purpose not authorized by law. To protect the county or other subdivision, it provides that any such officer who shall violate the provisions of such section by ordering the payment of money for such illegal purpose shall be liable for double the amount SO' paid, to be recovered by civil suit. This section does not define a crime nor provide a criminal punishment. Section 5968, above quoted, however, does define a crime by an officer having control of the disbursement of the funds of the county or other subdivision in the ordering or allowing the payment for a known illegal purpose and fixes a punishment. A charge against the county, based on false and fraudulent claim for services, is never authorized by law, and a county commissioner who, shall knowingly allow such a claim, knowing it is false and fraudulent, is guilty of allowing an unauthorized claim. While the two sections in part cover the same class of acts, they do not do so in their entirety and are- not in conflict. The information, while not a model in form, yet is sufficiently definite in its allegations to apprise defendant of the particular offense intended to be charged and what he must be prepared to meet, and so defines and identifies the offense that accused, if convicted or acquitted, would be able to defend himself in case he should be again charged with the same offense.

There is no merit in the claim that one member of a board of county commissioners may not alone commit the offense defined by section 5968, supra. The information as above quoted alleges in substance that defendant was acting in his official capacity with the other members of the board at a regular meeting. It is true that a claim cannot be allowed by a single member but must be approved by a majority of the board of commissioners. It is not essental, however, that all the members of the board of commissioners, if guilty, be charged together. While, as stated, a majority of the board is necessary, to allow a claim, yet it does not follow that all the members of the board voting to allow a fraudulent claim would be guilty of a crime, for one member may have knowledge of the false and. fraudulent character of the claim and another member may be without any such knowledge, and act in good faith. Even in cases of riot, where the crime can be committed only] by three or more persons acting to-j gether (section 2534, Okla. Stat. 1931), where one of three charged is tried separately, a conviction or acquittal of one will not affect the right of the state to try any other of the participants. Simmons v. Territory, 11 Okla. 574, 69 Pac. 787.

The demurrer was improperly sustained on any count.

The case is reversed and remanded, with instructions to the lower court to set aside its order sustaining the demurrer, to overrule the demurrer, and for further proceedings in conformity with this opinion.

DAYENPOET and CHAPPELL, JJ., concur.


author: PEE CUEIAM.

text:
    Ex parte GUY FOSTER.
    No. A-8600.
    July 21, 1933.
    (24 Pac. [2d] 297.)
    Frank Burkett, for petitioner.
    J. Berry King, Atty. Gen., and Draper Grigsby, Asst. Co-. Atty., for respondent.
   PEE CUEIAM.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained by the sheriff of Oklahoma county by reason of a charge of adultery before a committing magistrate and a preliminary hearing thereon, upon which petitioner was held for the action of the district court. That there is no legal or competent evidence tending to prove the commission of an offense by petitioner and that he is unlawfully restrained.

Upon an examination of the transcript of the testimony we are satisfied the contention of petitioner is correct; that there is no legal or competent evidence sufficient to show probable cause.

The writ is awarded, and if petitioner is not held on any other charge, his release is ordered.


text:
    CHARLIE GRIFFITH v. STATE.
    No. A-8375.
    July 21, 1933.
    (24 Pac. [2d] 297.)
    R. S. Ragsdale, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Cotton county of the unlawful possession of a still, and his punishment fixed by the jury,at a fine of $50 and imprisonment in the county jail for a period of 60 days.

The appeal in this court was dismissed on the 30th day of September, 1932, for failure to serve notice of appeal on the county attorney.

Defendant filed his petition for rehearing, and attached to the same a stipulation of the county attorney that notice had been duly served on him. The petition for rehearing was thereupon granted, and the case is now before this court for decision on the merits.

It appears from the record that the sheriff of Cotton county had a fugitive warrant issued in Texas for the arrest of one Arnold; that W. T. Stapp, one of his deputies, went to the Arnold place for the purpose of making the arrest, and was informed that Arnold was working for defendant on an adjoining farm; that Stapp went to defendant’s farm; that defendant pointed out Arnold, and Stapp made the arrest; that, while going to the field to make the arrest, Stapp smelled whisky mash cooking, and could hear the roar of a gas burner; that, on returning with his prisoner, he went to' a small outbuilding, and there found a still with liquor running from it; that defendant asked the officer to “just forget it,” saying he had to make a living for his children.

It is contended that, since the officer was a trespasser on tile premises of defendant, the search and seizure was illegal and the evidence inadmissible. There is no merit in this contention.

The evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


text:
    CLIFFORD WILSON v. STATE.
    No. A-8504.
    July 21, 1933.
    (24 Pac. [2d] 296.
    Jno. L. Ward, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was convicted of receiving stolen property with the felonious intent to deprive the owner thereof, and was sentenced by the court to imprisonment in the state reformatory, at Granite, for a term of five years, and appeals.

Thirty errors have been assigned by the defendant as grounds for reversal of this case. Many of the errors assigned have merit, but the only assignment of error we deem necessary to consider is 14, wherein it is urged by the defendant that the court erred in giving instruction No. 6, over the objection of the defendant, which instruction is as follows:

“As to the defendant knowing that the stocks were stolen, it is not necessary that somebody should have told Mm that they were stolen, hut it is necessary that he must have actually known that they were stolen or that he knew such fact as made him believe that in all probability they were stolen, and in ascertaining whether or not he had such guilty knowledge you will take into consideration all of the facts and circumstances which may have been introduced in evidence, and you will consider the time of receiving the stock, the defendant’s conduct with them afterwards, and his effort to dispose of them, if any, and all other facts and circumstances, and if after such consideration you find beyond a reasonable doubt that he knew that the stocks were stolen at the time he received the same, or that he knew such facts as made him believe that in all probability they were stolen, and he received them under those circumstances, that is sufficient as to his knowledge of them being stolen. And if you find these facts beyond a reasonable doubt, and also find the other facts necessary to constitute the crime charged beyond a reasonable doubt, then it will be your duty to convict the defendant.”

The defendant insists that the instruction prejudiced his rights before the jury, and that the following language used in the instruction complained of: “Or that he knew such facts that made him believe in all probability they were ¡stolen,” in the first paragraph and the words “in all probability” just preceding the last paragraph, are erroneous.

Under the foregoing statement, the jury was permitted to return a verdict against the accused, on less proof than is warranted by the law.

Analyzing the foregoing instruction, the court told the jury in substance that, if the defendant knew such facts as would lead him to believe the stocks were stolen, ' or that if he knew such facts as would lead him to believe that in all probability they were stolen, that would be sufficient as to Ms knowledge of the stocks being stolen. The instruction did not correctly state the quantum of proof the law requires to establish guilty knowledge. Guilty knowledge must be proven, either by direct evidence or by proof of facts and circumstances connected with the transaction. In' the instruction above set out, the jury is told, not that belief that the stocks were stolen would be sufficient proof of knowledge, but that the existence of the facts that led him to believe, or knowledge of facts as made him believe in all probability, was sufficient. This is less than the law requires, and is erroneous.

The instruction also amounts to a comment by the court on the weight of the evidence. The weight and circumstances of the evidence are not a matter for the consideration of the court in its charge to the jury, and the statement in the instruction that the circumstances enumerated are sufficient as to his knowledge of the property being stolen is an invasion of the right of the jury. The jury must be left free to determine for itself whether the facts and circumstances in the evidence are sufficient to satisfy the law. McGill v. State, 6 Okla. Cr. 512, 120 Pac. 297; Weaver v. State, 30 Okla. Cr. 309, 235 Pac. 635.

The instruction complained of did not correctly state the law. For the reasons stated herein, the case is reversed.

EDWABDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte HOMES BRAMBLE.
    No. A-8598.
    Aug. 1, 1933.
    (24 Pac. [2d] 299.)

      Blanton, Curtis & Blanton, for petitioner.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Clarence Bowie, Co. Atty., for the State.
   CHAPPELL, J.

Homer Bramble filed his petition in this court for a writ of habeas corpus, alleging that he was illegally restrained of his liberty by L. W. Barnhill, sheriff of Garvin county, and confined in the county jail of said county.

Petitioner further alleges that he is charged with the offense of robbery with firearms committed on the 20th day of December, 1982, in the robbery of the First National Bank of Lindsay, Okla.; that he had a preliminary examination before an examining magistrate and was bound over to the district court without bail; and that his application for bail has been denied by the district court of Garvin county.

By the provisions of chapter 44, Session Laws of 1925, robbery with firearms is a capital offense.

Upon the hearing, petitioner introduced a transcript of the proceedings had upon his application for bail in the district court, together with the affidavit of petitioner; thereupon the state introduced a transcript of the record on the trial of Homer Hinkle, a codefendant of petitioner, with the verbal testimony of L. W. Barnhill, sheriff, and others.

Under this evidence the proof is evident and the presumption great.

The writ is therefore denied.

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


text:
    Ex parte JOHN H. GRAY.
    No. A-8599.
    Augr. 1, 1933.
    (24 Pac. [2d] 1118.)
    John Crawford and Jim Bolen, for petitioner.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

This is an original petition filed by John H. Gray, in which he alleges and states that he is unlawfully imprisoned and restrained by Clyde Kyser, sheriff of Pontotoc county, Okla.; that the cause of said restraint is that he is held by the sheriff without bail, charged with the crime of murder; that the district judge has denied him bail, and the petitioner asks this court to enlarge him on bail. The petition further states that the restraint is illegal and unauthorized, in that the proof of the guilt of the petitioner is not evident nor the presumption great.

The petitioner, in support of the allegations in his petition, offers the testimony taken by the examining magistrate. After carefully reading the testimony taken by the examining magistrate, we hold that the petitioner is not entitled to the relief prayed for in his petition. Therefore the writ is denied.

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


text:
    LOY HARRINGTON v. STATE.
    No. A-8532.
    Aug. 4, 1933.
    Rehearing Denied Aug. 11, 1933.
    (28 Pac. [2d] 596.)
    A. C. Brewster, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Mayes county of grand larceny, and was sentenced to serve a term of one year in the state penitentiary.

Plaintiff in error was charged with the larceny of a pistol of an alleged value of $25. The testimony is challenged as insufficient, and, while not overwhelming, it is nevertheless ample to support a verdict of guilty.

Upon the question of the value of the property stolen, however, we think it is not clearly proven that it was of a value exceeding $20. The testimony is that the pistol was a secondhand automatic, somewhat out of repair, and is valued by one witness as low as $7. The principal witness for the state testified that it had a. value, “something about $25.” This proof of value is too- uncertain to- support the higher grade of larceny, but is sufficient to support a conviction for petit larceny. The judgment is therefore modified from grand larceny to the included offense of petit larceny, and the punishment fixed at a fine of $100, and a' term of 30 days in the county jail. Lebo v. State, 40 Okla. Cr. 116, 267 Pac. 288; Mayberry v. State, 44 Okla. Cr. 134, 279 Pac. 934.

As modified, the case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    LEE JACOBS v. STATE.
    No. A-5540.
    Aug. 4, 1933.
    (24 Pac. [2d] 295.)
    W. R. Chestnut, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Ottawa county of grand larceny, and ivas sentenced to serve a term, of two years in the state penitentiary.

At the time charged, in the month of May, 1932, there was stolen from the owner, in Miami, an electric drill used in the welding business. The owner testified a fair price would be $35. In the latter part of July defendant sold this drill in Galena, Kan.

Defendant testified he sold a drill in Galena, but claimed he bought it in 1931 from some tourist whom he. did not know. There seems to be no question but that the drill sold by defendant was the drill stolen. Evidently the jury did not believe the explanation of defendant that he purchased it from some mysterious stranger.

The evidence sufficiently sustains the verdict and judgment. The court is of the opinion, however, that the punishment assessed is excessive under the circumstances, and that justice will be served by reducing the punishment from a term of two years in the penitentiary to a term of one year in the penitentiary.

As modified, the case, is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    TILLMAN BEAN v. STATE.
    No. A-8552.
    Aug. 4, 1933.
    (24 Pac. [2d] 298.)
    C. B. Leedy, for plaintiff in error.

      J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of burglary and was sentenced to* serve a term of three years in the state penitentiary. Judgment was rendered on October 6, 1932. The appeal was lodged in this court March 30, 1933.

A motion to dismiss the appeal has been filed setting out that subsequent to the judgement defendant was arrested in the state of Texas and is beyond the jurisdiction of this court.

It is held by this court that where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider appeal unless defendant is where he may be made to respond to any judgment or order which may be rendered in the case.

Since defendant is beyond the jurisdiction of this court and where he cannot be made to respond to the judgment or order of the court, the appeal is dismissed.