text:
    JOHN A. CASTLEBERRY v. STATE.
    No. A-5037.
    Opinion Filed June 15, 1925.
    (236 Pac. 910.).
    Colbert & Ferris, for plaintiff in error..
    The Attorney General and Fred Iiansen, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that January 3, 1923, John A. Castleberry “did unlawfully transport one-half gallon of whisky from a point near the town of Dougherty in said county to the city of Sulphur, at the residence of Bill Story on Tishomingo avenue.” On the trial the jury returned a verdict finding the defendant guilty, and requesting the court to assess the penalty. By judgment of the court he was sentenced to pay a fine of $50 and to be confined in jail for SO days. He has appealed from the judgment.

But two questions are presented in the brief for the defendant that are based on exceptions reserved, one of which only is deemed deserving of more than a passing notice.

It is urged strenuously that the evidence is insufficient to sustain the verdict. The undisputed facts are that under authority of a search warrant the sheriff and a deputy sheriff visited the premises occupied by Bill Story and others, in Sulphur, and there found, in a grip belonging to the defendant, a half-gallon jar containing corn whisky.

Sheriff Parks testified that Bill Story, his wife, two other women, Dr. Wall, and the defendant were there when he arrived; that the place was a rooming house and a place of public resort; that when he found the whisky, the defendant claimed it and said that he bought it near Dougherty, near the sand mines, and brought it up to this place in a Ford roadster; that the defendant made this statement three or four times to him, and he asked him what he was going to do with it, and the defendant said that he had some friends that he was going to give it to.

John 'Cornell, deputy sheriff, testified that he was present when the defendant claimed the whisky, and heard him make the statement that he bought it close to Dougherty, paid $4 for it, and brought it up here; that the place where Bill Story lived was a rooming house and a place of public resort. The fruit jar with contents was introduced in evidence.

The evidence for the state was admitted over the defendant’s objection that the search warrant was illegal, and the search under it unlawful, because the same issued to search a private residence. At the close of the evidence for the state, he moved to strike and to withdraw the same from the consideration of the jury, on the ground that the evidence so obtained was secured by an unlawful search of the residence of Bill Story, which motion was overruled. The defendant moved for a directed verdict, in the form of a demurrer to the evidence, which motion was denied. ¡

The defendant, as a witness in his own behalf, denied having made the statements testified to by the officers; that the most of the day he was at Dr. Wall’s office getting a crown put on a tooth; that he bought this half gallon of whisky in front of the barber shop in Sulphur from a fellow called Slim, who lived down near Dougherty, and paid him $8 for it; that Bill Story told him later that a fellow left a package looked like a half-gallon fruit jar at his home for him; that when the officers came there he told them that it was his whisky and that it came from Dougherty; that he did not tell them that he brought it from Dougherty; that previous to that he had been renting a room from Bill Story.

The defendant’s testimony as to what he stated to the officers is corroborated by Dr. Wall. Several witnesses testified that they knew the defendant’s character and reputation as to being a law-abiding citizen, and that it was good.

We do not feel called upon to analyze the evidence for the purpose of testing the weight and credibility to be given to the testimony of each witness; that was properly the province of the jury to determine. We have no occasion to determine whether, on the testimony of the witnesses for the state, we should have been satisfied as jurors to find that the defendant was guilty beyond a reasonable doubt. That consideration was for the jurors who heard the testimony of the witnesses, and not for the judges of this court. It is sufficient to say that there is substantial evidence to support the verdict.

It is further contended that the search and seizure was unlawful, and for this reason the court erred in admitting the evidence obtained thereby. It is sufficient answer to this contention that the affidavit upon which the search warrant issued was not introduced in evidence, and no objection to the search having been made by the defendant or any other person at the time, objection to the use of evidence obtained was waived.

Error is also assigned on one of the instructions given by the court. The record shows that the defendant made no request for instructions, and no objection was made or exception taken to the instructions given. In the absence of an exception or a request for a more specific instruction, it will be presumed that the defendant was satisfied with the instructions given by the court.

After considering the whole case, our conclusion is that no prejudicial error appears.

The judgment is accordingly affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    JAMES KELLEY v. STATE.
    No. A-5141.
    Opinion Filed June 19, 1925.
    (239 Pac. 915.)

      A. 0. Manning, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that the defendant, James Kelley, “on or about the 26th day of December, 1923, did then and there willfully, wrongfully, and unlawfully sell and dispose of intoxicating liquors containing more than one-half of one percent, of alcohol by volume measure, to wit, one pint of corn whisky, contrary to,” etc. A demurrer to the information was filed and by the court overruled. The case thereupon proceeded to trial upon the plea of not guilty. The jury returned a verdict, finding the defendant guilty and fixing his punishment at a fine of $200 and two months in jail. To reverse the judgment rendered on the verdict, he appeals.

The first question presented is the sufficiency of the information. It is argued by counsel for the defendant that the information in this case does not comply with the requirements of the statute and fails to state a public offense, in that it fails to state the name of the person to whom the alleged sale was made, or to state that the name of the person is to the state unknown.

The Code of Criminal Procedure, section 2556, C. S. 1921, provides:

“The indictment or information must be direct and certain as it regards:
“First. The party charged.
“Second. The offense charged.
“Third. The particular circumstances of the offense charged when they are necessary to constitute a complete offense.”

It is a well-settled rule in this state that in charging a sale of intoxicating liquor the information should state the name of the purchaser, if it is known; if the name of the purchaser is not known, it must be alleged that such name is unknown. Fletcher v. State, 2 Okla. Cr. 300, 101 P. 599, 23 L. R. A. (N. S.) 581; Lightle v. State, 2 Okla. Cr. 334, 101 P. 608; Banks v. State, 2 Okla. Cr. 339, 101 P. 610; Mitchell v. State, 2 Okla. Cr. 442, 101 P. 1100; Simmons v. State, 2 Okla. Cr. 446, 101 P. 1102; Moss v. State, 4 Okla. Cr. 247, 111 P. 950.

In this case the information was signed and verified by the county attorney. The evidence for the state discloses that at the time the information was drawn, verified, and filed, and at every subsequent stage of the proceedings, the name of the person to whom the sale was supposed to have been made was known to the county attorney. For the reasons stated, the demurrer to the information should have been sustained.

The next assignment is that the court erred in overruling the defendant’s motion at the close of the state’s evidence to advise a verdict of not guilty.

Carl .Seeberger, first witness for the state, testified that on the day alleged Lester Raider told him that he wanted some whisky, and he went to the roundhouse in Fairview; there thex defendant poured something into an oil can. That with Jim Hale he took this can and delivered it to Lester Raider, and Raider paid him $2. That this was about 11 o’clock in the forenoon. That the next morning he gave the money to the defendant. Called by the state in rebuttal, he stated he gave the money to W. H. Campbell; that he told the county attorney all the facts including the name of the party to whom the liquor was delivered. Jim Hale testified in substance to the same facts, save that he did not know what Seeberger did with the money he received from Raider. At the close of the state’s evidence there was a motion by the defendant for a directed verdict on the ground that the evidence was insufficient to connect him with the alleged offense, and because there was no corroborating evidence. The motion was overruled.

The defense was an alibi, supported by the testimony of Mrs. E. M. King, mother of the defendant; that she left the farm, 21 miles west, and came to Fairview with the mail carrier and they met the defendant 15 miles west of Fairview, between 9' and 10 o’clock that morning. The testimony of Jim King, mail carrier, is the same. Three or four other witnesses testified that they saw the defendant leave Fairview about 9 o’clock that morning. H. H. Campbell testified that on December 27th, in the morning, Carl Seeberger gave him $2 and told him to give it to Ed Boyce, who worked at the roundhouse, which he did. As a witness in his own behalf, the defendant testified that he did not sell any liquor to any person; that he never received any money from Carl Seeberger, nor did he know anything about the liquor in question; that he left Fairview at 9 o’clock for the farm, 21 miles west, and met the mail carrier and his mother coming to town about 15 miles west about 10 o’clock, and went on to the farm and did not return to Fairview until 3:30 or 4 o’clock that afternoon.

An examination of the record discloses that there was no evidence that tended to connect the defendant with the commission of the' offense other than that of the two witnesses who upon their own testimony were accomplices, and the rule of law forbidding a conviction upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, is under the statute (section 2701, C. S. 1921), positive and peremptory.

Complaint is also made as to alleged prejudicial remarks of the court. The record discloses, with reference to the ruling of the court on the motion to advise a verdict, the following proceedings:

“Mr. Manning: I desire to argue this motion.
“The Court: I don’t care to hear any argument. (Overruled.)
“Mr. Manning: Very well, I desire to submit one authority (and passes to the court 111 P. opened at page 950; the same being Moss v. State. The Court refuses to look at the citation.)
“Mr. Manning: If the court don’t desire to read the citation, give us exception to ruling of the court.
“The Court: Mr. Manning, you are insinuating that this court is attempting to railroad this prosecution through; you have done it before, and I will have you understand that this court is entitled to some consideration, and if you attempt to do this again I will fine you for contempt of court and send you to jail.
“Mr. Manning: To all of which statements of the court the defendant objects for the reason that they are being made in the presence of the jury and are highly prejudicial to his rights, and creates a prejudice in the minds of the jury against this defendant and his counsel, and excepts to such statements.
“The Court: Exceptions allowed.”

Upon the record before us we are convinced that counsel for the defendant was clearly within his rights; that the remarks of the court were improper and prejudicial to the defendant. By numerous decisions of this court, it is held that attorneys for a defendant are entitled to and must receive fair treatment at the hands of the trial court, and if the conduct of counsel is improper the court should excuse the jury before administering a rebuke or threatening to fine or imprison counsel for contempt. Hicks v. U. S., 2 Okla. Cr. 626, 103 P. 873; Reed v. State, 5 Okla. Cr. 365, 114 P. 1114; McSpadden v. State, 8 Okla. Cr. 489, 129 P. 72; Harrison v. State, 11 Okla. Cr. 14, 141 P. 236; Smith v. State, 12 Okla. Cr. 513, 159 P. 941.

We may remark here that the state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law prescribed for ascertaining his guilt. It is not to shield the guilty, but to protect the innocent, that courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who are guilty. A fair trial is a legal trial, or one conducted in all material things in substantial conformity to law. And one of the first lessons which a county attorney should learn is that the state does not expect and will not tolerate the use of any unfair means or methods to secure the conviction of one charged with crime. If a conviction of the defendant cannot be had fairly, then the state does not ask for a conviction, because such a conviction would be tainted with, if not founded upon, injustice and wrong. An unfair trial in a criminal case is a reproach upon the administration of public justice, and casts grave responsibility, not only upon the prosecuting attorney, but also upon the trial judge.

For the reasons stated, the judgment in this case is reversed, with instructions to the trial court to sustain the demurrer to the information and discharge the defendant.

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


author: PEE CUEIAM.

text:
    PHYLLIS BASKIN v. STATE.
    No. A-5080.
    Opinion Filed June 19, 1925.
    (236 Pac. 900.)
    W. L. Coffey, for plaintiff in error.
    The Attorney General, for the State.
   PEE CUEIAM.

The plaintiff in error and Harrison Baskin were jointly charged with the possession of two and one-half pints of whisky with the unlawful intent to sell the same. On their trial the jury returned a verdict finding the defendant guilty as charged in the information, assessing her penalty at a fine of $250 and confinement in the county jail for six months. From the judgment entered on the verdict an appeal was taken by filing in this court on March 24, 1924, a petition in error, with case-made. No brief has been filed and no appearance made in behalf of the plaintiff in error in this court.

The errors assigned are that the verdict and judgment are contrary to law and not supported by any competent evidence, and the court erred in its rulings on the admission and rejection of evidence.

The evidence for the state is uncontradicted, and shows that a deputy sheriff serving a subpoena saw the plaintiff in error with a bottle of whisky in her hand and followed her through the house and saw her place it in the oven of the stove. The officer said, “Well, Phyllis, I caught you with the goods, haven’t I?” and she said, “Yes”; he then went with her to her room and found a quart bottle two-thirds full of whisky, saying, “Well, Phyllis, I found some more,” and she said, “You sure did.”

Several witnesses testified that the place was a resort for the gang and had the reputation of being a place where intoxicating liquors are kept, stored, and sold.

An examination of the record discloses no reversible error. The judgment of conviction is therefore affirmed.


author: PER CURIAM.

text:
    JIM STEVENSON v. STATE.
    No. A-5122.
    Opinion Filed June 22, 1925.
    (236 Pac. 1118.)
    Burns & Turner, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, Jim Stevenson, was convicted on a charge of transporting intoxicating liquor from some place in Ottawa county to another place therein, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined for 30 days in jail. From the judgment he appealed, by filing in this court on April 14, 1924, a petition in error with case-made. It is assigned as error that the evidence is insufficient to sustain the verdict. No brief has been filed, and the case was submitted on the merits. The testimony of three witnesses for the state is in substance to the effect that they saw the defendant driving along the Peoria and Seneca road and near the home of Henry Bellam, and as the officers approached him he threw from the car a fruit jar full of whisky. For the defense, one witness testified that Henry Bellam’s home was on the Missouri side of the state line. The defendant did not testify. From a careful examination of the case, both as to the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain. The judgment is therefore affirmed.


text:
    D. N. ROSE v. STATE.
    No. A-5177.
    Opinion Filed June 22, 1925.
    (236 Pac. 1118.)
    J. M. Springer, for plaintiff in error.
   PER CURIAM.

Plaintiff in error, D. N. Rose, was convicted on a charge that on July 12, 1923, within the corporate limits of the city of Tulsa, he did have in his possession intoxicating liquor, namely, 35 gallons of Choctaw beer, with the intention of selling the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined for 30 days in the county jail. From the judgment he appeals, but no brief has been filed and no appearance made in his behalf in this court, and we are not advised what plaintiff in error relies upon for a reversal. In cases of this kind we do not consider it the duty of the court to go into a careful examination of the evidence, to determine whether or not the trial court erred in the admission or rejection of testimony. We have examined the information and the instructions of the court, and we have discovered no error which will warrant a reversal of the judgment. The judgment of the lower court is therefore affirmed.


text:
    TOM McCLURE v. STATE.
    No. A-5051.
    Opinion Filed June 22, 1925.
    (237 Pac. 145.)

      Burns & Turner, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that the defendants Tom McClure and Mary McClure, in Ottawa county, July 21, 1923, did have in their possession intoxicating liquor, to wit, whisky, with unlawful intent to sell the same. On the trial the jury returned verdicts finding defendant Mary McClure not guilty, and finding the defendant Tom McClure guilty as charged in the information, and fixing his punishment at a fine of $300 and confinement for 6 months in the county jail. To reverse the judgment he appeals.

The evidence shows that N. D. Wolfe, Ed. Dobbins, and U. S. Jennings, deputy sheriffs, searched the residence of the defendant for intoxicating liquor, and found about one gallon of corn whisky. All the evidence for the state was admitted over the objections and exceptions by the defendant that the search warrant was unlawfully issued, in that the affidavit upon which the same was issued was never signed by the affiant, that it does not describe the particular premises to be searched, or the name of the occupant, and does not allege that the defendant’s residence is a place of public resort.

The affidavit upon which the search warrant issued, introduced in evidence by the state, states:

“I, Nate Wolfe, do solemnly swear that there is probable cause for believing that liquors are being manufactured, sold, given away, and otherwise furnished in violation of the law, that liquors are being kept for the purpose of sale, barter, giving away and otherwise furnishing the same in violation of law, and that said liquors are being kept by John Doe, at Picher in one 4-room house located in Picher between 3rd and 4th Sts. on Columbus St. in Ottawa county, Oklahoma, in violation of law.
“Wherefore, affiant asked that a search warrant issue for said property and that said John Doe be brought before the court and dealt with according to law.
“Subscribed and sworn to before me this 21st day of July, 1923. Jeff Black,
“Justice of the Peace.”

Nate Wolfe testified that he was in such a hurry that he forgot to. sign the affidavit.

The defendant testified that he lived in Picher, Fourth and Columbus avenue, second house from the corner; had been a miner since he was 16 years old; for the last year regularly employed in the St. Louis mine; that 3 or 4 days before the officers searched his house he was in Joplin and bought a gallon of whisky from Lee McIntosh, who delivered the same at his home in a stone jug; that he had a bad lung, and had the whisky for his own use.

At the close of the evidence the defendant moved to advise the jury to return a verdict of acquittal, which motion was overruled. To reverse the judgment, defendant assigns as error the insufficiency of the affidavit upon which the search warrant was issued; the insufficiency and invalidity of the search warrant, from which it results that all the evidence offered by the state, tending to prove the guilt of the defendant was incompetent, because said evidence was obtained through an illegal search warrant.

It is the well-settled doctrine in this state that a search and seizure, forcibly made, under color of a void search warrant, is an “unreasonable search and seizure,” within the meaning of section 30 of our Bill of Rights, which provides:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”

See Gore v. State, 24 Okla. Cr. 394, 218 P. 545.

The statute provides:

“No warrant 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.” Section 7013, C. S. 1921.

These provisions safeguard the citizen in his person, his home, and his property against unlawful and unreasonable search or seizure. Foreman v. State, 8 Okla. Cr. 480, 128 P. 1101; Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Russell v. State, 25 Okla. Cr. 423, 221 P. 113. Manifestly, the affidavit upon which the search warrant issued, even if the same was signed, does not meet the requirements of the constitutional provision and the statute above quoted.

It has been repeatedly decided by this court that evidence obtained by a search of the defendant’s home, under a search warrant issued without authority of law, and for the sole purpose of obtaining evidence against him, in violation of section 30 of the Bill of Rights, is inadmissible against him. Said section of the Bill of Rights is a pledge of the faith of the state government that the people of the state, all alike, shall be secure in their persons, houses, papers, and effects against unreasonable search and seizure. This security has vanished, and the pledge is violated by the state that guarantees it, when officers, acting under color of state-given authority, make search and seizure unlawfully.

The defendant’s conviction in this case, having no sufficient foundation to support it without the use of evidence which had been unlawfully obtained, must be reversed.

The judgment of the lower court is reversed, and case remanded, with direction to discharge the defendant..

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


text:
    J. B. LANGHAM v. STATE.
    No. A-5101.
    Opinion Filed June 22, 1925.
    (237 Pac. 144.)
    Wilkinson & ¡Saye, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that the defendant, J. B. Langham, did have in his possession a gallon and one-fifth gallon of whisky with the unlawful intent to sell the same. On the trial, the jury returned a verdict, finding the defendant guilty as charged in the information, and leaving his punishment to the court. December 12, 1923, the court rendered judgment and sentenced him to be confined in the county jail for 60 days, and to pay a fine of $200. From the judgment he appeals, but no brief has been filed and no appearance made in his behalf in this court.

The errors assigned question the sufficiency of the evidence to support the verdict. The evidence shows that officers visited the home of the defendant and there found one gallon of whisky and a pint of whisky in another jar.

I. B. Gossett, chief of police of Duncan, testified that he saw Max Sewell standing in the door and two men in a car in front of the door, and heard Sewell ask the defendant if he had anything, and how long it would take to get it, and the defendant said a few minutes. Then he followed the defendant into a feed house and met him with a gallon of whisky in his had. The two men in the car jumped out and ran away.

W. F. McKenzie testified that he heard a conversation between the defendant and Mr. Sewell; that Sewell said, “I want three pints, how long will it take you to get it?” and defendant said, “Just a few minutes”; and Mr. Gossett followed the defendant and took the gallon of whisky from him; that they also found some whisky in a fruit jar.

At the close of the evidence for the state, the defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

The testimony of the defendant in his own behalf was that he had the whisky for his own personal use, and that he did not buy it to sell.

The evidence is sufficient to sustain the verdict, and finding no material error, the judgment appealed from is affirmed.

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


text:
    L. A. ANDERSON v. STATE.
    No. A-5058.
    Opinion Filed June 22, 1925.
    (237 Pac. 137.)

      Burns & Turner, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, L. A. Anderson, was convicted on a charge of unlawful possession of intoxicating liquor; the jury leaving the punishment to be fixed by the court. November 17, 1923, the court rendered judgment and sentence, the defendant to be confined for 90 days in the county jail, and to pay a fine of $300 and the costs of the case. From the judgment he appeals.

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error has been filed.

The evidence for the state, which is undisputed, shows that two deputy sheriffs under authority of a search warrant visited the premises occupied by the defendant, a rooming house, where they found a jug containing about three quarts of whisky, and also found a small amount of whisky behind a bar in a pool hall on the premises. The defendant did not testify.

The information is sufficient, the instructions of the court fairly stated the law of the case, and, after an examination of the record, our conclusion is that the appeal in this case is wholly destitute of merit. The judgment of the lower court is accordingly affirmed.

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


author: EDWARDS, J.

text:
    WILLIAM SWEARINGEN v. STATE.
    No. A-5343.
    Opinion Filed June 22, 1925.
    (237 Pac. 136.)

      M. D. Hartsell, for plaintiff in error.

      Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State
   EDWARDS, J.

For brevity and convenience, the plaintiff in error will be referred to as defendant. The defendant was charged by information in the district court of Muskogee county with the crime of rape in the first degree, alleged to have been committed on the person of Ovie Swearingen, a daughter of the defendant, of the age of 13 years at the time of the commission of the offense alleged.

The preliminary proceedings filed against the defendant were brought about by reason of a complaint made by Ovie Swearingen to certain women residing in the rooming house where they lived, and upon disclosures made to them and to the county attorney. Upon a preliminary hearing had on said complaint Ovie Swearingen, her sister, and her mother, all apparently under the influence or in fear of defendant, testified for him, and thereupon the court continued the hearing, and the witnesses were ordered held. Subsequently the preliminary hearing was reopened, and further testimony taken, at which time Ovie Swearingen and Rosa Swearingen each testified that her former evidence was false; that she had been induced to give such testimony; and thereupon testified fully as to the offense. The defendant was held for the district court, duly informed against, and upon a trial was convicted and sentenced to serve a term of 15 years in the state penitentiary.

Various errors are assigned as ground for reversal. It is urged that there is a material variance between the information and the original complaint, particularly in the charging of the date: it being charged in the complaint that the offense was committed on the 10th day of January, 1924, and the information alleged the crime to have been committed on the 10th day of January, 1922, and that orders of continuance were made in the preliminary examination in the absence of defendant and his counsel. No authorities in support of the contention made are cited, and the record discloses that the charge made in the preliminary complaint was fully developed, and there could have been no surprise or prejudice to the defendant by reason of the discrepancy in evidence, particularly in view of the statute of this state and the holding of this court, in substance, that it is not necessary to prove the commission of the offense upon the exact date alleged. Section 2559, Comp. St. 1921; Ostendorf v. State, 8 Okla. Cr. 360, 128 P. 143; Star v. State, 9 Okla. Cr. 210, 131 P. 542.

It is further contended that it was error in the court in not requiring the state to elect upon what circumstance or act it would rely for a conviction prior to the taking of evidence. From the record it appears that several assaults upon the person of Ovie Swearingen were made, and the evidence of such acts given both at the preliminary and on the final trial. The defendant at several times during the proceeding moved the court to require the state to elect upon which act it would rely, which motion was denied until a portion of the evidence had been heard. Then the state elected an act of the approximate date of October 25, 1923. The defendant contends this election was not timely. In a prosecution for rape it is competent to prove other acts of intercourse between the parties committed prior to the act relied upon for conviction. Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Myers v. State, 6 Okla. Cr. 389, 119 P. 136; Cecil v. Ter., 16 Okla. 197, 82 P. 654, 8 Ann. Cas. 457; Branham v. State, 16 Okla. Cr. 308, 182 P. 525. And acts of intercourse subsequent to the act relied upon may be proven. Morris v. State, supra, in which the case of Cecil v. Ter., supra, was overruled.

In the case at bar acts both prior and subsequent to the act on the date alleged were offered in evidence. It was necessary that the state elect the particular act upon which it would rely for a conviction. McLaughlin v. State, 2 Okla. Cr. 348, 102 P. 713; Hughes v. State, 7 Okla. Cr. 117, 122 P. 554; Montour v. State, 11 Okla. Cr. 376, 145 P. 811; Petty v. State, 11 Okla. Cr. 646, 150 P. 91.

There is a wide difference in the holding of the courts of the various states as to the proper time for an election. 31 C. J. 790, § 360 (II), reads:

“In some of the state courts a motion to compel an election is too late when made after plea, but in the federal courts it may be made at any time before the conclusion of the trial, and according to the weight of authority, where distinct and separate felonies of the same character, punishable in the same manner, and to be established by the same evidence, are charged together, the court may in its discretion refuse to compel an election before the introduction of evidence by the state, but may reserve its decision until the close of the state’s evidence and before accused is placed upon his defense. Indeed, it is held that, where an election is necessary, the appropriate time to elect is the close of the testimony on behalf of the state. * * *”

See Williams v. U. S., 17 Okla. 28, 87 P. 647.

We perceive no prejudice to the defendant by the delay in election until a portion of the evidence had been heard.

The defendant further contends that the evidence is insufficient to sustain the verdict, particularly that there is not sufficient proof of penetration. The evidence is revolting, and will not be set out here. The only direct evidence on this point other than two physicians who made an examination is that of Ovie Swearingen. Her evidence is sufficient on that point. However, the physicians who made an examination testify that the hymen was unbroken. They further testify that, while complete intercourse without a rupture of the hymen was possible, it was not probable; that there could have been an entrance of the outer part of the female organ without any rupture of the hymen; and the evidence of Ovie Swearingen seems to support that view of the evidence. Any penetration, however slight, is sufficient to constitute the crime of rape. Section 1836, Comp. St. 1921.

“The slightest' penetration, however, of the body of the female by the sexual organ of the male is sufficient; it is not necessary that the penetration should be perfect; nor that there should be an entering of the vagina or rupturing of the hymen; the entering of the vulva or labia is sufficient.” 33 Cyc., p. 1422 (II).

Considering all the evidence on this point, we believe this court would not be warranted in reversing this case for insufficiency of the evidence.

It is next contended and argued at some length that the trial court committed reversible error in commenting on the weight of the evidence and in statements made in the presence of the jury. The trial judge on several occasions showed some acerbity and a disposition to bandy remarks with counsel for defendant. We are mindful of the rule that statements or language of the court which might indicate to the jury the court’s opinion of the credibility of the witnesses, weight of the evidence, facts proven, or the guilt of the defendant is prejudicial. Kirk v. Territory, 10 Okla. 48, 60 P. 797; Westfall v. State, 30 Okla. Cr. 115, 235 P. 270.

In several instances the court verged on a violation of this rule. There was possibly some excuse for his remarks in an instance or two, as the principal witness, Ovie Swearingen, was of tender years, and the ordeal of her testimony apparently painful, and it appears to us from an examination of the record that counsel for the defendant unduly prolonged, and was unnecessarily minute in his examination of this witness on the details of the offense charged. It is true that one defending should not neglect the development of any evidence beneficial to his client, or which might eKcit the truth and assist the jury in arriving at a just and true verdict. But when a matter of this nature is sufficiently thorough, it is the province of the court within reasonable bounds to interpose and limit further examination, but in doing so he should be careful not to indicate His opinions or impressions of the case in the hearing of the jury.

During the course of a trial the temper of the trial judge is often ruffled by what may seem unnecessary prolixity or groundless contentions, but, if he has the proper judicial temperament, he will maintain control of himself, deal courteously with counsel, and observe that poise and dignity which is expected and demanded of one in the high position he occupies. The conduct of the trial judge in this case is disapproved, but it is held not to be reversible error.

Various other matters are presented in the briefs, all of which have had our careful attention. Upon the whole case we find no error that requires a reversal. The case is affirmed.

BESSEY, P. J„ and DOYLE, J., concur.


text:
    R. C. DANIELS et al. v. STATE.
    No. A-5170.
    Opinion Filed June 22, 1925.
    (237 Pac. 142.)

      King & Crawford, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that George Bingham, R. C. Daniels, W. M. Rich, and W. C. Chandler, did on or about the 5th day of September, 1923, make and manufacture certain intoxicating liquor, to-wit, corn whisky by a process of distillation.

On the trial of the three last-named defendants the jury returned a verdict finding them guilty as charged in the information and assessing the penalty at 3'0 days in jail and a fine of $50 each, with the recommendation that the jail sentence be remitted.

From the judgment rendered on the verdict they appeal. No brief has been filed and no appearance made in this court on behalf of the defendants.

The state introduced three witnesses. N. 0. Hornsby testified that he was walking with W. E. Willingham through the woods about three and one-half miles east of Frahcis, and found the three defendants on trial and one Mr. Bingham sitting down apparently eating a lunch, some six feet from a still that was in operation; whisky was running out into a bucket; several barrels were around there, and lot of jars, and two tow sacks, and each contained five jars of corn whisky; two barrels of mash; and they were using an oil tank for a boiler, connecting a galvanized pipe with the thump keg, which was copper.

The testimony of W. E. Willingham, constable at Francis, was substantially the same as that given by the first witness for the state.

W. W. Walker, deputy sheriff, testified that the whisky and the still worm were turned over to him. The same was introduced in evidence.

At the close of the state’s case defendants moved the court for a directed verdict, which motion was denied.

Each of the defendants testified in explanation of his presence at the still when the officers arrived. The explanation given by each was that they had accidentally run on the still and stopped to talk with those present. Each denied any connection therewith. It appears that the defendant Bingham was convicted in the federal court in this connection.

We have examined the record, and we are satisfied that the defendants had a fair and impartial trial. Finding the evidence sufficient and no prejudicial error of law occurring at the trial, the judgment appealed from is affirmed.

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


text:
    JOHN AGEE v. STATE.
    No. A-5090.
    Opinion Filed June 22, 1925.
    (237 Pac. 146.)

      P. Mounts and W. H. Hussey, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

In this case the information charged that on September 14, 1923, John Agee did unlawfully sell one-half gallon of corn whisky to Harry Dugan, Jess Harris, and Jim Hester, for the sum of $7.50. On the trial the jury returned a verdict finding him guilty and leaving the punishment to the court. The judgment and sentence of the court was that the defendant pay a fine of $100 and be confined in jail for 45 days..

The defendant is not represented by counsel in this court, and no brief in support of the assignments of error, which question the sufficiency of the evidence to support the verdict, has been filed. The three alleged purchasers of the whisky testified on behalf of the state. Six or seven witnesses testified on behalf of the defendant.

The credibility of the witnesses and the weight to be attached to the testimony of each was for the jury to determine. We have no right to set aside their verdict, if the evidence on behalf of the state is sufficient to support it. Without going into the details of the testimony, we are clearly of opinion that the verdict is supported by the evidence.

The judgment is accordingly affirmed.

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


text:
    TOM McCLURE v. STATE.
    No. A-5052.
    Opinion Filed June 22, 1925.
    (237 Pac. 146.)
    Burns & Turner, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, Tom McClure, was convicted on a charge of unlawful possession of intoxicating liquor, and, in accordance with the verdict of the jury, was sentenced to be confined for 30 days in jail to pay a fine of $50. From the judgment rendered on the verdict, he appeals, but no brief has been filed, and no appearance made on his behalf in this court. The errors assigned question the sufficiency of the evidence, and that the court erred in refusing requested instructions.

This conviction is based on the undisputed testimony of one witness, Bonnie Turner, who testified that she saw the defendant, Tom McClure, and his co-defendant, Claude Brown, in a Studebaker car driven by the defendant, McClure, near the smelter at Hockerville, and her husband bought a bottle of liquor from Claude Brown; that she noticed other bottles loose in the car.

The evidence is sufficient to sustain the verdict, and, the instructions fairly state the law applicable to the case, and the judgment of the lower court is affirmed.

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


text:
    J. J. JONES v. STATE.
    No. A-5104.
    Opinion Filed June 22, 1925.
    (237 Pac. 468.)
    J. F. Thomas, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted on a charge that he did have in his possession three gallons of whisky, with intent to sell the same, and in accordance with the verdict of the jury was sentenced to pay a fine of $100, and to be confined for 30 days in jail. From the judgment an appeal was taken by filing in this court, April 5, 1924, a petition in error with case-made.

The errors assigned question the sufficiency of the evidence to support the verdict, and that the court erred in admitting incompetent testimony. No brief has been filed, and the case was submitted on the merits.

The evidence shows that two deputy sheriffs went to the defendant’s place, five miles northwest of Lawton, and, under authority of a search warrant, searched the premises ; that the defendant told them to go ahead and search; that they did not need any search warrant. About 30 feet from the house in the yard they found six one-half gallons of corn whisky in a box. As a witness in his own behalf, the defendant denied any knowledge of the whisky being there.

In cases of this kind we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission of evidence. It is a well-established rule that, where the testimony is conflicting, and is fairly submitted to the jury, a new trial will not be granted, if the testimony is sufficient to sustain the verdict.

From a careful examination of the case, both as to the law and the evidence, we have failed to discover anything whereof the plaintiff in error has just right to complain.

The judgment of the lower court is therefore affirmed.


text:
    EARL MARTIN et al. v. STATE.
    No. A-5081.
    Opinion Filed June 23, 1925.
    (237 Pac. 138.)
    F. W. Church, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Ottawa county, on or about the 27th day of October, 1923, Earl Martin and Earl Cunningham “did then and there willfully and unlawfully point a pistol at and towards the person of Ray Dean.”

The jury returned a verdict finding the defendants guilty as charged in the information, and requesting the court to assess the punishment. The judgment and sentence of the court was that each defendant serve 90 days in the county jail, and pay a fine of $500. An appeal was taken by filing in this court petition in error with case-made March 24, 1924, but no brief has been filed and no appearance made on behalf of the defendants in this court. It is assigned as error that the evidence is not suificient to support the verdict.

The testimony of three witnesses on behalf of the state supported the allegations of the information, and their identification of the defendants as the parties who committed the crime is positive. The defendants attempted to prove an alibi, and each testified in his own behalf, and denied any connection with the crime.

It is the province of the jury to determine disputed matters of fact. We have no right to set aside their verdict if the evidence in behalf of the state is suificient to support it. Without going into the details of the testimony, it is our opinion that the evidence in this case is amply sufficient to support the verdict.

No other reason for reversing the judgment having been assigned, and no substantial error appearing in the record, the judgment of the lower court is aifirmed.

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


text:
    CHARLEY WORLEY v. STATE.
    No. A-5152.
    Opinion Filed June 23, 1925.
    (237 Pac. 135.)

      J. I. Coursey, for plaintiff in error.
    The Attorney General and Charles Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

On an information charging that the defendant, Charley Worley, did, in Adair county, on the 9th day of November, 1923, sell 1% pints of whisky to Jim Batt and Sam Adair, he was tried and convicted, and his punishment fixed at a fine of $400 and confinement for 60 days in the county jail. On November 17, 1923, the court rendered judgment in accordance with the verdict. From the judgment an appeal was taken by filing in this court on May 5, 1924, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal for the reason that said appeal was not filed within the statutory time allowed by section 2808, C. S. 1921. An examination of the record discloses that the appeal had not been filed within the 120 days after the rendition of the judgment. The statute provides:

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

The uniform holding of this court is that, when an appeal is not perfected within the time fixed by the statute, this court does not acquire jurisdiction of the appeal. Hamlin v. State, 12 Okla. Cr. 321, 155 P. 904; Story v. State, 17 Okla. Cr. 237, 187 P. 508.

The attempted appeal not having been filed in this court within the time prescribed by law, the motion to dismiss is sustained. It is so ordered, and the case remanded to the county court of Adair county, with instructions to enforce the judgment and sentence.

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


text:
    L. KELLEY v. STATE.
    No. A-5137.
    Opinion Filed June 23, 1925.
    (237 Pac. 143.)
    A. W. Whitfield, for plaintiff in error.
    The Attorney General, for the .State.
   DOYLE, J.

The information in this case charges that in Okmulgee county, on the 17th day of May, 1923, L. Kelley did have the- possession of two gallons of corn whisky, with the intention of selling the same. On the trial the jury returned a verdict finding the defendant guilty, and fixing his punishment at a- fine of $500 and confinement in the county jail for 6 months. From the judgment he appeals. The errors relied on for reversal are that the verdict and judgment is not sustained by sufficient evidence, and that the court erred in admitting incompetent evidence.

The evidence shows that John Russell, sheriff, and four deputies visited the premises occupied by the defendant, 3 or 4 miles northeast of Beggs; and about 200 yards south of the home of the defendant they found some whisky concealed under a brush pile. The defendant was absent when the place was searched, but arrived there before the officers left.

Ernest Hulsey, deputy sheriff, testified that the defendant had a little store and residence combined; that John Russell, Bowman, and Martin went east and he found the liquor before they came back; that he found the whisky under different brush piles along the side of the road; that he did not think the whisky was found on the defendant’s premises.

Over the defendant’s objections he was permitted to testify that he knew the whisky belonged to the defendant before he found it, because the defendant’s wife told him that she was real jealous, and that she wanted him to put the defendant in jail, and told him where the whisky was.

Bert Martin testified that he did not know whether this whisky was found on the defendant’s place or not.

■George Bowman testified that the whisky was found about a quarter, he guessed, south of the defendant’s house; that a white man lived within 200 yards of the defendant’s place, and when the defendant appeared he would not admit that the whisky was his.

Tom A. Brown testified that, with Ernest Hulsey, he found a quart and a soda pop bottle full of whisky under a brush pile, but did not know whether or not the whisky was found on the defendant’s land.

At the close of the state’s evidence, there was a motion by the defendant for a directed verdict on the ground that the evidence was insufficient to connect him with the alleged offense. The motion was overruled, and exception reserved.

The testimony of the defendant in his own behalf is as follows:

“When I got home they said they searched me with a John Doe search warrant. One of them asked: ‘Is your name Kelley?’ I said: ‘Yes, sir.’ He said: ‘We want to talk to you; we are the law. WNere have you been ?’ I said: T have been to Slick.’ And one of them spoke up and said: ‘We got the whisky, and now we got you.’ I said: ‘No; I haven’t any whisky.’ Mr. Russell said: ‘Do you handle liquor?’ I said: ‘No, sir.’ Mr. Bowman said: ‘Put up your horse.’ And I started to do it, and Mr. Russell hit me. I said: ‘There is no use doing that.’ ‘Don’t tell us that stuff,’ Mr. Bowman said. ‘We didn’t find anything on your premises, but you know this is your whisky.’ I told him I didn’t know anything about it. The pipe line runs along east side of the road; I don’t know anything about this whisky they said they got there, but it was not found on my place the way they described it. They said they got it on the section line south of the house, and that is all open country. My land is fenced.”

In rebuttal, John Russell, sheriff, testified that when the defendant drove up he asked him if he was Kelley; he said, “Yes;” he then told him he was under arrest, and the defendant said, “No; I am not,” and then he hit him; that he did not know whether or not the whisky was found on the defendant’s place.

While the defendant is not represented in this court, we have carefully gone through the record, and we are convinced that it contains no testimony tending to connect the defendant with the liquor found by the officers, if we except the statement of the witness Hulsey as to what the defendant’s wife told him. That this was hearsay testimony is not open to question, and its admission was prejudicial error.

We are of the opinion that, as a matter of law, the verdict of guilty on the evidence in this case cannot be sustained. The judgment of the lower court is therefore reversed.

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


text:
    L. C. TUTTLE et al. v. STATE.
    No. A-5078.
    Opinion Filed June 24, 1925.
    (237 Pac. 138.)
    W. L. Coffey, for plaintiffs in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiffs in error were convicted on an information charging that they did have in their possession six gallons of Choctaw beer, which contained more than one-half of 1 per cent, of alcohol, measured by volume and capable of being used as a beverage, with intent to sell the same, and in accordance with the verdict of the jury were each sentenced to pay a fine of $50 and be confined in jail for 60 days. From the judgment they appeal, but no brief has been filed and no appearance made in their behalf in this court.

The errors assigned question the sufficiency of the evidence to support the verdict. The evidence for the state shows that: About 2 o’clock on the morning of the date alleged, Ervin Jeter, constable of Sand Springs, found the defendants in an alley in the town of Sand Springs. He asked them what they were doing, and the defendant Tuttle said: "You sure got me this time, Mr. Jeter.” That, defendant Will Cash was carrying a half-bushel which contained fruit jars full of Choctaw beer. H. R. Rowe, graduate chemist, testified that he made an analysis of the Choctaw beer purported to have been seized by Officer Ervin Jeter from the defendants, and found that it contained 6.23 per cent, of alcohol measured by volume. As witnesses in their own behalf, the defendants each testified that they did not have anything to do with the beer, but just happened to be there at that time.

There was evidence to support the verdict, and, finding no error prejudicial to the rights of the defendants, the judgment of the lower court is affirmed.


author: DONLE, J.

text:
    J. C. BROWN v. STATE.
    No. A-5099.
    Opinion Filed June 24, 1925.
    (237 Pac. 141.)

      Pardue & Davis, for plaintiff in error.
    The Attorney General, for the State.
   DONLE, J.

The information in this case charged that in Carter county, May 21, 1923, J. C. Brown did “have in his possession certain intoxicating liquor, to-wit, one-half pint of whisky, with the unlawful intent to sell the same.”

On the trial the jury returned a verdict, finding him guilty as charged in the information, and fixing the penalty at a $500 fine and confinement in the county jail for six months. To reverse the judgment rendered on the verdict he appeals, and alleges that the evidence is wholly insufficient to sustain the verdict and judgment, -and that certain testimony was erroneously admitted.

D. Bell, deputy sheriff, testified that at 8 o’clock in the evening of May 21, 1923, he was out behind a store building in Dillard, standing in the shadow of a henhouse, and saw the defendant, J. C. Brown, reach down under the corner of the building and get something; that Bob McCand and Bill Brown were standing there; that he shot his flashlight on the defendant as he threw and broke a soda pop bottle, and he found a little whisky in the broken bottle and arrested the defendant; that the defendant denied he had anything to do with the bottle.

The testimony was admitted against the objection of the defendant that the same had been obtained without a search warrant, or a warrant for the arrest of the defendant. The state rested and the defendant moved for a directed verdict, on the ground that the state had failed to establish facts sufficient to constitute a public offense. The motion was overruled.

The testimony of the defendant in his behalf is as follows :

“I started to go to bed. I had some chickens out there, and some kids had been fooling around there, and I went to look into the chicken house. Mr. Bell stepped out and flashed his light on me and told me to stop or he would shoot me or something like that. I said, ‘Don’t shoot me; I haven’t done anything.’ Then he searched me. There were three or four others standing around there. The next morning he came and arrested me.”

Bill Brown testified that he was the defendant’s nephew; that he saw D. Bell pick up a broken bottle and walked up to witness, stuck it right up under his nose, and said that he might want him as a witness on this case, and he said, “All right”; that he did not see J. C. Brown there at the time.

In rebuttal the state called Bob Short, deputy sheriff, Dock Holder, and W. M. Combs, and asked each of these witnesses: “Do you know the general reputation of J. C. Brown as a man who handles whisky?” Against the defendant’s objection each answered, “Yes, sir.”

The defendant moved that the testimony of each, witness be stricken, for the reason that the defendant has not put his reputation in issue in this case, and that the jury be instructed to disregard the same. Which motion was overruled.

It was prejudicial error to admit this testimony. The state cannot attack the character of the defendant, unless he puts his character in issue by introducing evidence of good character. See Todd v. State, 30 Okla. Cr. 410, 236 P. 437, and cases collated.

The motion to strike the evidence for the state, for the reason stated, should have been sustained.

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

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


text:
    WILLIAM SODERBERG v. STATE.
    No. A-5128.
    Opinion Filed June 24, 1925.
    (237 Pac. 467.)
    Lillard & Edwards and J. T. Michael, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, William Soderberg, was convicted on an information charging that on October 17, 1923, he did unlawfully transport intoxicating liquor, to-wit, whisky, from a point unknown to the intersection of Robinson and Reno streets, Oklahoma City, and in accordance with the verdict he was sentenced to pay a fine of $500 and to be confined in jail for six months. From the judgment an appeal was taken by filing in this court April 15, 1924, petition in error with case-made. No briefs have been filed. When the case was called for final submission no appearance was made on behalf of the plaintiff in error, and the cause was submitted on the record.

The errors assigned question the sufficiency of the evidence to support the verdict. The evidence shows that the officers took five pints of corn whisky from the defendant; that when they met him one said, “Bill, how many have you?” and the defendant said, “A couple”; that some were in his inside pockets and some in his outside pockets.

The defendant testified that he was coming from Capitol Hill, and a fellow in a Ford asked him to ride, and he got into the car and drove to Reno street, and the officers came over and searched the car and took some bottles and a jug out of the car; that he did not know whether there was liquor in them or not; that he had not seen the man he rode with since; that he did not tell the officers anything, and did not carry any bottles in his pockets.

The test of the legal sufficiency of the evidence is whether or not there is evidence of substantial nature tending to establish the allegations of the information. In testing the weight of the evidence on appeal, we merely concern ourselves with its legal sufficiency, and, if there is one witness' whose testimony tends to support the material allegations in the information, we are not at liberty to disturb the verdict on account of the insufficiency of the evidence.

It follows that the judgment of the lower court will be affirmed.


text:
    ED DILLARD v. STATE.
    No. A-5077.
    Opinion Filed June 24, 1925.
    (236 Pac. 919.)

      W. L. Coffey, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Tulsa county, September 4, 1923, Ed Dillard “did unlawfully, willfully, and knowingly permit a gaming table and other device to be set up and used for the purpose of gambling, and did then and there unlawfully, willfully, and knowingly permit gambling in a house belonging to and in the possession and under the control of said defendant.” On the trial the jury returned a verdict finding him guilty as charged in the information and fixing his punishment at a fine of $100 and confinement in the county jail for 30 days. From the judgment he appealed, by filing in this court March 22, 1924, petition in error with case-made.

The errors assigned question the sufficiency of the evidence to support the verdict and judgment of the court. No brief in support of the assignments of error has been filed, and when the case was called for final submission no appearance was made in behalf of appellant. The information was drawn under section 1926, C. S. 1921.

An examination of the record leaves no reasonable question in our minds as to the sufficiency of the evidence to justify the submission to the jury of the question as to the defendant’s guilt. Three officers testified that they observed a gambling game in the back room of appellant’s place of business; three or four men were playing cards, each having money on the table, in view of appellant; that they arrested the gamblers and appellant. The testimony of appellant as a witness in his own behalf is as follows:

“I have a barber shop, cold drink stand, and barbecue pit; if gambling was going on in the back room that night, I did not know it. I never permitted or agreed for any persons to play cards for money in my place.”

Upon an examination of the whole record we find no prejudicial error. The judgment is therefore affirmed.

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


text:
    D. W. TERRY et al. v. STATE.
    No. A-5127.
    Opinion Filed June 24, 1925.
    (237 Pac. 465.)
    H. F. Tripp, for plaintiffs in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, and G. B. Fulton, Asst. Attys. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, D. W. Terry and H. H. Cooper, were jointly tried and convicted on an information charging illegal possession of intoxicating liquor, and, in accordance with the verdict, D. W. Terry was sentenced to pay a fine of $500 and to be confined in the county jail for 6 months, and H. H. Cooper was sentenced to pay a fine of $100 and be confined in the county jail for 60 days. To reverse the judgment, they appeal.

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

“The sole question, which is presented in this appeal, is whether or not ¡O. P. Estes, judge of the Oklahoma City police court, could legally issue a search warrant commanding any peace officer to search the premises therein described and designated in such complaint and warrant, and to seize all such liquor, vessels, implements, furniture, fixtures, etc., used or kept for the illegal manufacture, etc., of such liquor. From an examination of the record, we find that the defendants filed a motion to suppress incompetent evidence and testimony, wherein they challenged the legality of the purported search warrant.
“In the case-made, we find Defendants’ Exhibits A and B, which are an application for the search warrant in the instant case and the purported search warrant therein. The purported search warrant is signed by O. P. Estes, as police judge of the Oklahoma City police court. In the case of Gore v. State, 24 Okla. Or. 394, 218 P. 545, this court said: ‘A search and seizure forcibly made under color of a void search warrant is an “unreasonable search and seizure,” within the meaning of section 30 of our Bill of Rights.’
“The sole question which is involved is whether or not the judge of the police court of Oklahoma City, Okla., has the authority to issue a search warrant pursuant to the provisions laid down in section 7009, C. O. S. 1921, which is, in part, as follows: ‘If it shall be made to appear to any judge of any court of record or any justice of the peace that there is probable cause to believe that liquor, the sale of which is prohibited by this act, is being manufactured, * * * such judge or magistrate shall, with or without any endorsement of such complaint by the county attorney, issue a warrant, directed to any peace officer. * * *’
“Section 2444, C. O. S. 1921, defines a 'magistrate: ‘A magistrate is an officer having power to issue a warrant for the arrest of a person charged with a public offense.’
“Section 2445, C. O. S. 1921, defines who are magistrates: ‘The following persons are magistrates: First. The justices of the Supreme Court. Second. The judges of the Criminal Court of Appeals. Third. The district judges. Fourth. The superior court judges. Fifth. The county judges. Sixth. Justices of the peace. Seventh. Police court judges.’
“From an examination of these two sections above quoted, we find that the same are general statutes, under article 5, chapter 7, C. O. S. 1921, which is under the general statutes regarding criminal procedure. Section 7009, supra, is found under article 2, chapter 52, C. O. S. 1921, which is under the special statutes regarding the prohibitory laws of the state of Oklahoma. Section 2876 to 2896, C. O. S. 1921, are with reference to search warrants generally.
“In the cas.e of Citizens’ State Bank of Vici v. Gettig, 77 Okla. 48, 187 P. 217, the Supreme Court of Oklahoma said: ‘A statute which is enacted for the primary purpose of dealing with a particular subject, and which prescribes the terms and conditions of that particular subject- matter, supersedes a general statute which does not refer to the particular subject-matter, but does contain language which might be broad enough to cover the subject-matter if the special statute was not in existence.’
“In the case of Gardner v. School District No. 87 of Kay County, 34 Okla. 716, 126 P. 1018, the Supreme Court of Oklahoma said: ‘A statute which is enacted for the primary purpose of permitting refunding bonds to be issued, and which prescribes the terms and conditions upon which they may be issued and the form and manner of their execution, supersedes a general statute which does not refer to refunding bonds, but which does contain language which might be broad enough to cover them if the special statute was not in existence.’
“A late case upon the construction of special statutes is the case of Muskogee-Times Democrat v. Board of Commissioners of Muskogee County, 76 Okla. 188, 184 P. 591, wherein the .Supreme Court of Oklahoma said: ‘Where there are two provisions of the statutes, one of which is special and particular and clearly includes the matter in controversy, and where the special statute covering the subject prescribes different rules and procedure from those in the general statute, it will be held that the special statute applies to the subject-matter, and that the general statute does not apply.’
“We have carefully examined the record in the instant case, and are of the opinion that the errors, assigned by the defendant with reference to the unlawful search and seizure, are well taken, for the reason that the search and seizure in the instant case came under an alleged violation of the prohibitory laws of the state of Oklahoma, and in said chapter containing prohibitory laws we find a special statute with reference to search warrants (section 7009, supra), said statute specifically delegates the authority of issuing search warrants regarding alleged violations of the prohibitory laws to judges of courts of record and justices of the peace, as this is a special statute, and applying the rules laid down in the above-cited cases, we think it would supersede the general statutes above cited, should they be in conflict.
“We therefore respectfully submit to this honorable court this confession of error.”

Upon a careful examination and consideration of the record in this case, we are of opinion that the confession of error is well founded. The judgment of the lower court is therefore reversed.


text:
    BUCK BUCHANAN v. STATE.
    No. A-4853.
    Opinion Filed June 27, 1925.
    (237 Pac. 624.)

      Crossland, Ward & Chase, for plaintiff in error.
   EDWARDS, J.

The plaintiff in error appeals from the verdict of a jury finding him guilty of having possession of intoxicating liquor with intent to sell, and fixing his punishment at a fine of $200 and 5 months in the county jail. Various assignments of error are made in the petition in error, being principally directed to the contention that the municipal criminal court of Tulsa is unconstitutional. This contention has heretofore been decided adverse to the defendant (Buchanan v. State, 30 Okla. Cr. 362, 236 P. 903), and will not be further adverted to here.

No briefs have been filed in this case, but the court is advised that the brief filed in the case last referred to should be considered in this case. We have examined the record, ¿nd find that the evidence amply supports the verdict. There is no error apparent that would require reversal. The case is affirmed.

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


author: BESSEY, P. J.

text:
    LOLA THRASHER v. STATE.
    No. A-4838.
    Opinion Filed June 27, 1925.
    (237 Pac. 139.)

      Joe S. Eaton and Carter & Carter, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Lola Thrasher, plaintiff in error, for convenience here referred to as the defendant, was by verdict of a jury found guilty of perjury, with her punishment fixed at imprisonment in the penitentiary for a term of five years. From the judgment on the verdict she appeals.

The charge and conviction of perjury were based upon the alleged falsity of testimony given by the defendant in a habeas corpus proceeding brought by Dan O’Hara for the purpose of being admitted to bail upon a charge of murder then pending against him. It was shown by testimony on the part of the state, and admitted by the defendant, that in the habeas corpus proceeding Lola Thrasher testified in substance as follows:

“Q. And if the Henryetta Grocery store is in the middle of the block, then you were back about a block away from it? What time did you and Dan O’Hara get together that evening? A. Left my house about 7:3'0.
“Q. Were you together all that time? A. Yes, sir.
. “Q. And do I understand you to tell the court then that you and Dan O’Hara were together from 7:30 until after this shooting took place? A. Yes, sir.
“Q. Tell the court where you went and where you were. A. We left the house about 7:30 and went to my sister’s, drove around town, got some gas, and Mr. Dan said, ‘It is after 9 o’clock, let’s go home,’ and we came home, come down through town to go home, sat on the porch awhile, and the baby went on to bed, and he said, Ts there any ice water?’ and I said there wasn’t. He said, ‘Let’s go and get a drink,’ and I said, ‘All right,’ and we got in the car and went to the Frisco ¡Cafe, and got a Coca-Cola and they brought it out to the car to us.
“Q. And you tell the court you were with Dan O’Hara constantly from 7:30 up to 10 o’clock? A. Yes, sir.
“Q. He was not away from your presence? A. No, sir.”

At the trial on the perjury charge it was shown by the state, and practically admitted by the defendant, that Dan O’Hara was not in the company and presence of the defendant at all times between the hours of 7:30 and 10 o’clock on the night in question; that the defendant resided in Henryetta, in a house situated on a 35-foot lot, and that her mother resided in a house on a 50-foot lot adjoining; that between 8 and 9 o’clock on the night in question the defendant took her little daughter, six years old, from her own home to the home of defendant’s mother, for the purpose of putting her to bed there, and that the defendant, in assisting the child to disrobe and get settled for the night, covered a period of time of from 25 to 40 minutes; and that during that time the defendant was not in the presence and company of Dan O’Hara. It further appears from the record that during this period of time Dan O’Hara went back to the business part of town, where he was seen by different persons, and that according to his own statement he returned to the home of the defendant before she returned from her mother’s house. Defendant claimed that she did not know that O’Hara left her home during this interval, as she found him on the porch where she had left him when she went to put the child to bed.

It is contended by the defendant that she did not know the meaning of the word “constantly” when she testified in the habeas corpus proceeding, and that, since Dan O’Hara was at her home when she left to put the little girl to bed, and was there when she returned, she assumed, and had a right to assume, that he had been there all the time, and could not have been near the place where the homicide occurred during that time, and that she did not know nor realize that she had testified falsely when she said they were together constantly from 7:30 until 10 o’clock.

Defendant stated, and her statement was corroborated by her attorneys, that after she had testified as above quoted she explained to O’Hara’s attorneys about the interval of time during which she was at her mother’s with the little girl, and inquired whether she ought to go back on the witness stand and make a correction, and that the attorneys advised her that it was unimportant and not necessary.

The testimony of the defendant, in chief and on cross-examination, at the trial of the cause here on appeal indicates that she was a woman of limited mentality. The attorneys found it difficult to make her understand some of the questions propounded, and were compelled to reform the questions and state them in more simple language before she knew how to answer. In this appeal defendant and her attorneys claim that at the habeas corpus hearing she did not know nor comprehend that she testified falsely when she said she was with O’Hara from 7:30 until 10 o’clock p. m.; that, because she left O’Hara on her front porch when she went to put her little girl to bed, and found him still there when she returned some minutes later, she assumed, and had a right to assume, that he remained there during this interval, and therefore could not have been at the scene of the homicide shortly after 9 o’clock; that her good faith in testifying as she did was demonstrated by the fact that, after she realized that her testimony was inaccurate, she made the suggestion that she ought to go back on the stand and explain about putting the baby to sleep at her mother’s; that she made this suggestion to the young attorney, Carter, who was assisting his father in the habeas corpus proceeding, and that the young man called his father’s attention to the discrepancy in her testimony, and that the father said, “I don’t believe it is important.” In this defendant was corroborated by both father and son.

This state of facts, if true, would seem to indicate that the attorneys were more to blame than this defendant, and that she at that time wanted to” correct her testimony by supplying omissions inadvertently made, but made in good faith. The fact that the jury in the course of their deliberations twice returned into court for further instructions upon this feature of her testimony indicated that this was considered the decisive issue in the case.

After the jury were brought into court by the bailiff, the court inquired of them what it was they wanted to know. The foreman replied that they wanted to have a transcript of the questions asked the defendant in the previous case and what she said about it in this case. The court ordered the reporter to read her testimony, which was done, and the jury retired for further deliberations. Later they again came into court, and requested instructions on the meaning of the words “constantly” and “continuously.” The court defined these words in the language found in Webster’s dictionary. The foreman then asked this question : “Is it the law that any one can go back on the stand and rectify their mistakes?” To this the court replied: “Gentlemen, you will have to look to your instructions for that.” Since the instructions given did not cover that specific point, we think the jury should have been informed that she had that right, and that, if the jury believed that such were the facts they might be considered in support of her claim of good faith.

This, especially when considered in connection with the fact that her proffered testimony tending to show good faith was denied, or at least impaired to such an extent as probably to confuse the jury, as is shown by the following excerpt from the record:

“Q. Now, when you testified up there at Okmulgee, on the hearing on the habeas corpus writ, I will ask you if you intended to testify, or give any testimony, or evidence, that was false?
“Mr. Williams: We object, as incompetent, irrelevant, and immaterial, what was the intention of the witness at that time.
“The Court: Sustained.
“Mr. Eaton: We except.
“Q. What was your purpose and intention, if you had any, in giving your testimony in this hearing? Was it for the purpose—
“Mr. Williams (interrupting) : Just wait a minute; object to counsel putting the answer in the witness’ mouth.
“The Court: Let him finish.
“Q. (continuing) : —to corruptly and falsely testify in Dan O’Hara’s behalf to that court?
“Mr. Williams: We object to that as incompetent, irrelevant, and immaterial at this time.
“The Court: Sustained.
“Mr. Eaton: We except.
“Q. State whether or not at the time you testified to the evidence here, in which they have now charged you with committing perjury—
“Mr. Williams: To which we object—
“Mr. Carter: Wait.
“Mr. Williams: I thought you were through.
“Q. (continuing). —if you knew you were testifying falsely, or did you think you were testifying to the truth?
“Mr. Williams: To which we object. The witness had no right to think at that time, or this time. It is incompetent, irrelevant, and immaterial at this time.
“The 'Court: Overruled.
“Mr. Eaton: Read the question. (Question read). A. I thought I was testifying to the truth. I am sure I didn’t go up there to testify falsely.
“Mr. Williams: To which we.object, and ask that the jury be instructed not to consider the answer.
“The Court: Everything but the answer to the question asked will go out.
“Mr. Eaton: We except to the ruling of the court, wherein he excludes the answer of the witness.
“Q. State to the court and jury whether or not you had any intention of stating anything in that hearing but the truth.
“Mr. Williams: To which we object as incompetent, irrelevant, and immaterial.
“The Court: Sustained.
“Mr. Eaton: We except.
“The Court: That was shown by the preceding question.
“Mr. Eaton: To which ruling of the court we except.”

This part of the examination may have confused the jury. The objections to some of the questions were improperly sustained, although it appears that the court permitted one of the answers of the defendant, or a part of it, to go to the jury; on the contrary the exception saved at that point by Mr. Eaton would seem to indicate that the court did not rule in defendant’s favor.

This want of clarity, considered with the fact that the jury were for a time in doubt upon the question of whether the defendant made an honest mistake or omission in her testimony, makes it necessary for this court to hold that the defendant did not have a full and fair opportunity to show that she honestly believed that she. was testifying truthfully. The repeated sustaining of the objections to the questions relating to her purpose and intent may have led the jury to believe that her claim of good faith was incompetent and inadmissible.

In the case of Mathes v. State, 15 Okla. Cr. 382, 177 P. 120, it was shown that Mathes, in the trial of another case, testified that he had removed the splints from the arm of an injured person in March, 1914. The time of the removal of the splints was a material issue in that case. At the trial on the perjury charge these questions were asked him:

“Mathes, did you have any intention of swearing falsely in any of the answers to the questions propounded to you in the former trial? Was it your purpose or intention to swear falsely in these matters you have been asked about in the trial of the case with Dr. Gross ?”

The trial court refused to permit the witness to answer these questions. On appeal of the case this court said:

“It is an elementary proposition that knowledge of the falsity of the alleged perjured testimony is an essential and indispensable element of the crime of perjury. * * * It follows that the defendant had a right to testify as to his intention of swearing falsely as to the statements made by him as a witness in the case in which the defendant is charged with perjury, such testimony to be considered by the jury in connection with all the other evidence and circumstances in the case, and the court committed reversible error in refusing to permit the defendant to answer said questions as to his intention and purpose in testifying as he did in the trial of the case in which the perjury is alleged.” Cassady v. State, 18 Okla. Cr. 568, 197 P. 171; Pilgrim v. State, 3 Okla. Cr. 49, 104 P. 383; Cutler v. Ter., 8 Okla. 101, 56 P. 861.

Without a full opportunity to show honesty of purpose and good faith, it might operate as a grave injustice to send this woman of limited understanding to the penitentiary for a term of five years, and more particularly so since it is shown that her attorneys were probably responsible for her failure to correct her testimony before the hearing closed in the habeas corpus proceeding.

The judgment of the trial court is reversed and the cause remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    LEVI ROBERTS v. STATE.
    No. A-4835.
    Opinion Filed June 27, 1925.
    (237 Pac. 148.)
    James A. Embry, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is a companion case with Reed v. State, No. A-4870, 32 Okla. Cr......., 240 P. 132. The two cases, so far as the state is concerned, are predicated upon the same state of facts, and substantially the same evidence. The assignments of error all go to the sufficiency of the evidence to sustain the verdict. The plaintiff in error here was a white man, living with two daughters, the elder one of whom is the prosecuting witness. He was engaged in the illicit making of whisky and had assisting him one William Reed, a negro, plaintiff in error in No. A-4870. The charge upon which he was convicted is for an alleged act of intercourse between the negro and the elder daughter, then 16 years of age, on compulsion of the plaintiff in error. It is not contended that the evidence is not sufficient upon the face of it, but it is contended that the evidence is unbelievable and improbable, and that other contradictions reduce its probative effect. Holdings of this court, upon the sufficiency of the evidence to sustain a conviction for rape, are cited in the following cases: Morris v. State, 9 Okla. Cr. 241, 131 P. 731; Allen v. State, 10 Okla. Cr. 55, 134 P. 91; Ex parte Ledington, 18 Okla. Cr. 53, 192 P. 595; Douglas v. State, 19 Okla. Cr. 257, 199 P. 927; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617.

From these cases, and from other holdings of this court, it is settled law that a conviction for rape may be had upon the uncorroborated evidence of the prosecutrix. But where her evidence is contradictory or inherently improbable, or where she is successfully impeached, her testimony standing alone is insufficient to warrant a conviction. The sufficiency of eyidence in cases of rape is often a difficult question, since, as Lord Hale suggested, it is a charge easy to make and difficult to defend against. But, on the other hand, if a denial of a defendant shall prevail over the testimony of a victim, the guilty may often go free, for in many instances it is impossible to procure testimony to corroborate a prosecutrix. See Johnson v. State, 5 Okla. Cr. 1, 112 P. 760; Reeves v. Territory, 2 Okla. Cr. 351, 101 P. 1039.

The evidence in this case, it is true, is hard to believe, because of the shocking depravity shown by it. The defendant is evidently of very low type, an ex-convict, engaged in violating the law and, from the evidence, in a drunken and belligerent mood when the crime was committed. The prosecutrix, while only 16 years of age, was also a victim of her surroundings and had given birth to a bastard child.

The prosecutrix testified fully, and was vigorously cross-examined, and while there are some features of her testimony which were contradictory, yet on the main points tending to prove the offense she was not shaken. There were several witnesses, whose testimony tended to corroborate her, and while the defendant denied his guilt, we are not able to say that the prosecuting witness was successfully impeached. The jury heard the evidence, saw the witnesses, and realized the consequences of their verdict. They were fairly instructed upon the law, and it was their province to determine the question of fact, and to return a verdict of guilty, only if convinced beyond a reasonable doubt of the guilt of the defendant. It is advanced as an argument that the jury must have doubted the guilt of the defendant, since the punishment is fixed at 15 years, the minimum provided by law for first degree rape. But we think this does not follow, but that the jury, in fixing the punishment, considered rather the depravity and low place in the social scale of all the parties. This is not a case falling within any of the exceptions wherein a conviction for rape may not be had on the evidence of the prosecutrix. The testimony establishes the guilt of the defendant. He was fairly tried, and the verdict will not be disturbed.

The case is affirmed.

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


text:
    W. M. CAMPBELL v. STATE.
    No. A-4849.
    Opinion Filed June 27, 1925.
    (237 Pac. 147.)
    W. R. Withington, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst.. Atty. Gen., for the State.
   BESSEY, P. J.

W. M. Campbell, plaintiff in error, in this opinion designated the defendant, was convicted of the illegal manufacturing of intoxicating liquor, and by a. verdict of a jury his punishment was fixed at confinement in the county jail for a period of 6 months and a fine of $500.

There are three assignments of error urged which are worthy of consideration: First, it is contended that the admission of the major portion of the evidence was improper, for the reason that the evidence was obtained by means of an unauthorized search and seizure. This claim cannot be sustained, because the whisky and still seized were found and taken from an unoccupied apartment, and there was no invasion of the private premises of the defendant. Moreover, this objection was not properly raised in the trial court, and cannot be successfully urged for the first time here. Gore v. State, 24 Okla. Cr. 394, 218 P. 545.

It is next contended that the evidence is insufficient to support the verdict. The defendant and his family occupied some rooms on the lower floor of a two-story apartment house, southwest of the packing plants in Oklahoma City. This apartment house contained sixteen rooms, some of which were vacant. In one of the unrented rooms, located immediately above one of the rooms occupied by the defendant, the officers found a still, some barrels of mash, and seven gallons of whisky. There was a brick flue extending up from this lower room into and through the room above, where the still was found. Planks had been laid on the floor above, and these were covered with a layer of bricks, upon which the cooker of the still rested; the cooker being connected with the flue vent. A discarded barrel of mash was sitting on the ground near one of the windows of a room occupied by the defendant.

When the still, mash, and whisky were discovered and seized, the defendant was in his own apartment below, and when arrested he denied ownership, or knowledge of the existence of the still, and so testified at the trial. Access to the upper floor of this apartment house was by means of an outside stairway. The defendant testified that at the time of the trial he was a farmer, but that at the time of his arrest he was employed at the packing house on the night shift, and that he and his family had been living in this apartment about five weeks; that on the evening of his arrest, when supper was ready to be served, there was a young man there whom defendant had seen about the place several times, and that defendant invited this young man to eat supper with them; that while the meal was in progress they heard a commotion upstairs, and that the young man quickly got up from the table and ran away; that the officers fired several shots at him as he was fleeing, and then came back and placed the defendant under arrest.

None of the other inmates of the house were interrogated as to the ownership or operation of the still, and none of them were witnesses at the trial.

The conviction in this case rests largely upon the assumption that the young man who fled from defendant’s apartment must have been interested in the operation of the still, and that defendant was implicated with him. This presumption alone is insufficient to support the verdict.

The evidence tending to connect the defendant with the operation of the still was purely circumstantial. An instruction on circumstantial evidence was requested and denied. It cannot be said that the evidence excluded every other reasonable hypothesis than that of the guilt of the defendant.

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.