text:
    BOB KILLOUGH v. STATE.
    No. A-9066.
    Sept. 4, 1936.
    (60 Pac. [2d] 808.)
    Morrill & Snodgrass, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience hereinafter referred to as the defendant, was by information charged with the possession of a still capable of being used in the manufacture of whisky; was tried, convicted, and sentenced to pay a fine of $50 and to be confined in the county jail for a period of 3’0 days.

The testimony on behalf of the state shows the sheriff of Jackson county and a number of his deputies went out in the country to a farm.' known as the Helms farm looking for a still; they finally located it in a ravine; at the still were eighteen barrels of mash. Curley Sanders was in a dugout a short distance from where the still was found. Sheriff H. A. Savage stated:

“I arrested Sanders and sent him to town; in a few minutes Benton Walker came and kicked at the door of the dugout; Walker had a ten or twelve gallon galvanized tank tied on his car, and a thirty-gallon barrel of gasoline in the turtle. I arrested Walker and sent him to town. This still was located on what is known as the Helms place; I found one of the Helms boys was living on the farm; the house was about three-quarters of a mile from where I found the still; you could not see the still from the home place.”

The still was identified by the witnesses and introduced in evidence.

Witness further stated Curley Sanders pleaded guilty and was fined $50 and sentenced to 30 days in jail. Rogers Helm, testifying, for the state, stated:

“Ralph Helm is my brother; the still was located on the Helm’s place which belonged to the heirs and was under the control of Ralph Helm. Benton Walker rented this place from my brother for the purpose of locating a still on the land down in the canyon by the spring-branch; my brother was to get $20 a week for the privilege of their keeping the still on the place; I had no interest in it.
“I saw Bob Killough down at the still while Benton Walker was in jail; he hauled whisky away from it, said he would have to take the whisky and sell it to get Benton out of jail; the still was taken away for a few days and brought back to where it was previously located; I saw Benton Walker, Curley Sanders and Bob Killough at the still. The defendant Killough said as long as he had anything to do with the still he would see somebody was there to take care of it.”

On cross-examination the witnesses in substance stated the same facts as they did on direct examination, and positively denied having any interest in the still or whisky made at the still. He further stated they gave him some whisky, but that he did not drink and the whisky was so bad he poured it out. There is no evidence on the part of the defendant contradicting any of the statements made by the state witnesses.

Motion for a new trial was filed, considered, overruled, and the defendant duly excepted. The defendant has assigned nine errors alleged to have been committed in the trial. In his argument two of these errors are argued. The first is that the court erred in not telling the jury that Rogers Helm and Ralph Helm were accomplices with the defendant in this case.

While the testimony in this case borders very closely on the line of the Helm boys being accomplices and being interested in this still, it is not sufficient to show the Helm boys were accomplices. The Helm boys admit they knew the still was being run on their land and that Ralph Helm had rented the land on which the still was located and operated. Rogers Helm knew it was being operated, but neither of the boys complained or objected to it being operated on their land; both denying they had any interest in the still.

The testimony in this case is not sufficient to show these boys were accomplices with the parties who owned and operated the still. Their conduct, however, is not such as is expected of good law-abiding citizens; if not aiding and abetting, they acquiesced in the defendant and his associates violating the law and did not report the fact that the defendant was operating a still on their, farm to the officers.

The next and only question argued by the defendant is the improper conduct of the county attorney. The statement of the county attorney is not reported by the stenographer, and is only available by reason of a statement of the attorney for the defendant and the county attorney incorporated in the record; the defendant’s attorney insisting, the county attorney stated:

“No witness has denied that the defendant made certain statements to' the witness Helm, and that no witness has taken the witness stand to deny it.”

The county attorney admitted he made the following statement:

“No witness on the part of the defense had disproved or denied the evidence of the state.”

The substance of the statement complained of was finally incorporated in the record at the suggestion of the court that the record show that the attorney stated:

“The statement made by the witnesses for the state is not disputed.”

This court has repeatedly held:

“A conviction Avill not be reversed on the ground of alleged misconduct of counsel for the state, unless, upon consideration of the whole case, this court can say that the prosecuting attorney was not only guilty of misconduct, but that such misconduct might have in some degree influenced the verdict of conviction.”

Murray v. State, 24 Okla. Cr. 113, 217 Pac. 891; Payne et al. v. State, 21 Okla. Cr. 416, 209 Pac. 334.

No motion was made by the defendant to have the court exclude the statement of the county attorney from the jury. After considering the statement made by the county attorney, we are forced to believe that the county attorney had in mind that the defendant had not denied the statement of the Helm boys and was trying to impress this fact upon the jury, and that the defendant had offered no testimony to prove his innocence.

The statement contained in the record has been carefully examined and considered, and the authorities cited in support of the contention of the defendant, and it is the opinion of the court that the statement attributed to the county attorney does not amount to a comment upon the failure of the defendant to testify. The guilt of the defendant is not denied. The testimony is amply sufficient to sustain the judgment. The defendant was accorded a fair and impartial trial under the law and the facts, and shows no legal reason for reversal of this case.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    O. W. SHINN v. OKLAHOMA CITY.
    No. A-9019.
    Sept. 5, 1936.
    (61 Pac. [2d] 1126.)

      Dudley, Hyde, Duvall & Dudley, for plaintiff in error.
    Harlan Deupree, Municipal Counselor, and A. P. Van Meter, Ass’t. Municipal Counselor, for defendant in error.
   DOYLE, J.

(after stating the facts as above). The contention of the defendant in this case is that this ordinance is unconstitutional, invalid, and void.

It is first argued that said ordinance embraces two distinct subjects, namely, loan brokers and money loaners, and is therefore invalid under section 6362, O. S. 1931, which provides in part as follows:

“Provided, further, that no ordinance shall contain more than one subject, which shall be clearly expressed in its title.”

And under section 2, art. 5, of the Charter of the City of Oklahoma City, declaring that:

“Every ordinance of the Board of Commissioners shall embrace bnt one subject, which shall be clearly expressed in its title. * * * provided that if any subject be embraced in any ordinance contrary to the provisions of this section such ordinance shall be void only as to so much of the ordinance as may not be expressed in the title thereof.”

The rule of law applicable to this contention is stated in 25 •Ruling Case Law, § 88, page 842, as follows:

“The term ‘subject’ as used in these provisions is to be given a broad and extended meaning, so as to allow the Legislature full scope to include in one act all matters having a logical or natural connection. If all parts of an act relate directly or indirectly to' the general subject of the act, it is not open to the objection of plurality. To constitute duplicity of subject, an act must embrace two or more dissimilar and discordant subjects, that by no fair intendment can be considered as having any legitimate connection with or relation to each other. * * * Matters which constitute, apparently, two distinct and separate subjects are not so, in the meaning of the constitutional provision, unless they are incongruous and diverse to each other. While this provision is mandatory, yet it is to be construed liberally. It is not intended nor should it be so construed as to prevent the legislature from embracing in one act all matters properly connected with one general subject.”

And in section 90, page 884, Id., it is said:

“The ‘subject’ of an act is the matter or thing forming the groundwork of the act, which may include many parts or things, so long as they are all germane to it and. are such that if traced back they will lead the mind to the subject as the generic head. There can be no surer test of compliance with the constitutional requirement of singleness of subject than that none of the provisions of an act can be read as relating or germane to any other subject than the one named in the title. An act is not unconstitutional because more than one object is contained therein where the objects are germane to the main subject, or they relate directly or indirectly to the main subject, and have a mutual connection with and are not foreign to the subject of such act, or when the provisions of the act are of the same nature and come legitimately under one subject.”

In the case of Smith v. State, 47 Okla. Cr. 184, 287 Pac. 835, it is said:

“The purpose of the Constitution, declaring that every act shall embrace but one subject, which shall be expressed in its title, Avas not to hamper legislation but to check and prevent deception therein.”

In State v. Coyle, 7 Okla. Cr. 50, 122 Pac. 243, this court said:

“Every legislative act is presumed to be constitutional, and the courts should not declare an act to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained.”

In thd case of Bartlesville Elec. L. & P. Co. v. Bartlesville Interurban Ry. Co., 26 Okla. 453, 109 Pac. 228, 29 L. R. A. (N.S.) 77, the Supreme Court said:

“The requirement of a statute that the subject of any ordinance enacted by a city council shall be clearly expressed in the title is complied Avith where the title calls attention to the general subject of the legislation in the ordinance, and does not tend to mislead or deceive the people or council as to the purpose or effect of the legislation, or to1 conceal or obscure the same.”

In the case of Ruth v. Oklahoma City, 143 Okla. 62, 287 Pac. 406, was involved the question whether the subject of the ordinance, namely, to vote bonds and to acquire a park with the money, was related so as to warrant both being included in the one ordinance, and the court held that the subjects were properly related and the ordinance embraced but one general subject. The second paragraph of the syllabus holding:

“Title of ordinance calling attention to general subject of legislation, not tending to mislead, deceive, conceal, or obscure, is sufficient.”

It is obvious that the title is sufficient. The evident purpose of the whole scope of the ordinance is the regulation of chattel mortgage and salary loans and the regulation of loan brokers dealing in such loans, and to enforce the enactment by proper penalties; and all this may be comprehensively said to be the subject of the ordinance. It follows that the ordinance does not embrace more than one subject, as that language has been and should be construed.

It is next insisted that under said ordinance the city attempts to exact a license tax for the purpose of regulation and to impose certain regulations upon the business of loan brokers and money lenders, whereas, the business of money lending is a legitimate one and not subject to the visitorial powers of regulation sought to be imposed.

Counsel in their brief say:

“Our contention in this regard is that the business of lending money is not one affecting the public health, morals, or general welfare, or clothed with a public interest, either historically, or in view of its nature, so as to authorize the city to regulate it by an exercise of the police power;, further that the regulation imposed is clearly unreasonable, arbitrary, capricious and oppressive, and bears no logical relation to the object of the legislation.”

Oklahoma City is under a charter form of government, adopted under the authority and in pursuance of section 3 (a), art. 18 of the Constitution, and this question must be determined upon a consideration of the powers granted under the constitutional provision, the statutes and under its charter.

In the case of In re Jones, 4 Okla. Cr. 74, 109 Pac. 570, 31 L. R. A. (N. S.) 548, 140 Am. St. Rep. 655, it is said:

“The powers of a municipal corporation are only those granted by express words; those fairly implied in, or incident to, the powers expressly granted; and those indispensable to the declared objects and purposes of the incorporation.”

Under the constitutional provision (section 3 (a), art. 18) a city adopting a charter is accorded full power of local self-government and as such municipal corporation, under its charter it has power to enact, ordain, and enforce ordinances for the purpose of protecting the public peace, order, health, morals, and safety of the inhabitants, even though general statutes exist relating to the same subjects. In re Simmons, 4 Okla. Cr. 662, 112 Pac. 951.

Whatever power the Legislature possesses under the Constitution has been delegated to the municipality, and the question for consideration here is, not whether the court, in the exercise of a sound discretion, will hold the ordinance to be just, reasonable, or wise, but whether, resolving all doubts as to the exercise of legislative authority by its agent as would be done in favor of a statute enacted by the legislative consideration and control, which ordinance is unconstitutional, invalid, and void.

If there is any reasonable relation between the public health, safety, morals, or to the public welfare and the object of the ordinance, said ordinance must be upheld.

An act or ordinance is not arbitrary, oppressive, and unreasonable because it makes it a misdemeanor for a person to engage in a designated business or exercise a designated privilege without first taking out a license and paying a license tax.

The authority to levy and collect a license tax for the privilege of carrying, on any business is found in section 63'89, St. 1931, providing in part as follows:

“The city council shall have authority to levy and collect a license tax on * * * bankers, brokers, pawnbrokers.”

Under the statute the city council or board of commissioners of a city operating under the charter form of government, have authority to provide a penalty for any failure to pay the tax provided for by ordinance.

McQuillin in his work on Municipal Corporations, vol. 3, p. 493, par. 1107, announces the rule:

“Imposition of a fine or other punishment for conducting, a business without first paying the license tax levied thereon is a proper method to compel payment.”

In Ex parte Marler, 140 Okla. 194, 282 Pac. 353, 354, it is said:

“An ordinance providing a fine and imprisonment as a means of forcing a license tax does not trench upon the constitutional inhibition against imprisonment for debt as contained in section 13, article 2, Constitution of Oklahoma, providing: ‘Imprisonment for debt is prohibited, except for the non-payment of fines and penalties imposed for the violation of law.’ ”

In the case of Grider v. City of Ardmore, 46 Okla. Cr. 33, 287 Pac. 776, 777, this court approved the rule stated in 37 Corpus Juris, p. 187, as follows:

“In the absence of positive evidence to the contrary, however, such acts or ordinances are presumed to be reasonable, and the courts will not interfere unless their unreasonableness and oppressiveness is clearly apparent, the burden of proving their unreasonableness or invalidity being on the one who asserts it, usually the licensee.”

In Julian Oil & Royalties Co. v. Oklahoma City, 167 Okla. 384, 29 Pac. (2d) 952, the Supreme Court held as follows:

“If there is room for fair debate as to whether a municipal ordinance is arbitrary or unreasonable, the court will not substitute its own judgment for that of the legislative body charged with the primary duty and responsibility of determining the question.”

And see Magnolia Petroleum Co. v. Wright, 124 Okla. 55, 254 Pac. 41; Beveridge v. Harper & Turner Oil Trust, 168 Okla. 609, 35 Pac. (2d) 435.

In the case of Gibbons v. Missouri, K. & T. Ry. Co., 142 Okla. 146, 285 Pac. 1040, 1043, it is said:

“Only in cases, however, where the Legislature exceeds its police powers, will the courts interfere or set up their judgment against that of the Legislature. State v. Mrozinski, 59 Minn. 465, 61 N. W. 560, 27 L. R. A. 76.
“As was said by Mr. Chief Justice Clarke,- speaking for the United States Supreme Court in the case of Cusack Co. v. City of Chicago, 242 U. S. 526, 37 S. Ct. 190, 61 L. Ed. 472, L. R. A. 1918A, 136, Ann. Cas. 1917C, 594, the courts will interfere with the legislative authority only when it is plain and palpable that the action of such authority has no real or substantial relation to- the public health, safety, morals, or to the general welfare.”

In City of Oil City v. Oil City Trust Co., 151 Pa. 454, 25 A. 124, it is said:

“What business or occupations so far affect the public welfare and good order as to require to be licensed, is a matter of legislative consideration and control, which, when exercised in good faith, is outside of the jurisdiction of the courts.”

In the case of Sanning v. City of Cincinnati, 81 Ohio St. 142, 90 N. E. 125, 25 L. R. A. (N. S.) 686, it is held:

“The state may, in the exercise of the police power, license and regulate chattel mortgage and salary loan brokers; and it may delegate authority to do so to municipal corporations.”

In the opinion it is said:

“It is almost an axiom that anything Avhich is reasonable and necessary to> secure the peace, safety, morals, and best interests of the commonwealth may be done under the police power; and this implies that private rights exist subject to the public welfare.”

And again:

“ ‘The general power of the Legislature to determine what is necessary for the protection of the public interests being clear, judicial inquiry is necessarily limited to determining AA’-hether a particular regulation is reasonable, impartial, and Avithin the limitations of the Constitution. The Legislature is the judge of the mischief and the remedy, and of what shall be state policy, subject to the restrictions just mentioned.’ The right to labor, to contract, to do business, or to' engage in any of the common occupations of life is one of the inalienable rights of the citizen (Butchers’ Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co., 111 U. S. 746, Mr. Justice Bradley, 762, Mr. Justice Field, 756, 4 S. Ct. 652, 28 L. Ed. 585 [588, 590]), and may be regulated, therefore, by the state only, to promote the public Avelfare, and this brings us to the question: What possible public good can be sub-served by regulating brokers in chattel mortgages and in salary loans, and, if the business is subject to regulation under the police power, are the provisions of the ordinance unreasonable?
“Usury laws are of ancient origin, and, while the utility of such legislation is still open to question, such laws are in force in this state, and in a majority of the states, and we think it too late to question the power of the state to enact them. One of the ways in which such laws are circumvented is by a commission to a broker. The class that obtains such loans comprises the most needy and improiddent, and consequently the most susceptible to fraud and extortion, and surely legislation to prevent such evasions, or fraud and extortion, may rest upon the same grounds as usury laws.”

In State ex rel. Ornstine v. Cary, 126 Wis. 135, 105 N. W. 792, 794, 11 L. R. A. (N. S.) 174 (writ of error dismissed in 204 U. S. 669, 27 S. Ct. 788, 51 L. Ed. 672), a statute limiting the amount of interest, and the sum to be charged for examination, views, fees, appraisals, commissions, renewals, and charges of every kind, that might be taken for money loaned upon chattel security, or secured by assignment of wages, and making a violation thereof a misdemeanor, punishable by fine or imprisonment, or both, was held to be a reasonable and valid exercise of the police power, and not an infringement of the right of personal freedom or liberty of contract guaranteed by the State Constitution.

In the opinion the court says:

“The making of such contracts and ensuring performance by pledge of personal property so readily and generally results in inflicting injuries on the borrower through unreasonable exactions that they are held as injurious to the community and as much against public policy as the unreasonable charges of interest. This injurious consequence affords a sufficient ground for the regulation by law, and is as proper for the protection of the borrower as a limitation on the rate of interest. We are of opinion that legislation restricting the infliction of such oppressive and unjust exactions is justifiable as a reasonable and appropriate exercise of the police power.”

Many other cases might be cited, but we do not consider it necessary. Our conclusion is that the ordinance is not unconstitutional, invalid, and void on the ground of being unreasonable, arbitrary, and oppressive.

Finally, it is contended that the ordinance is discriminatory in that it exempts national and state banks, trust companies, and building and loan associations, and for this reason denies equal protection of the law as required by the Fourteenth Amendment to the federal Constitution.

It is generally agreed that the licensing and regulation of any business which concerns and affects the public or general welfare of a state lie within the police power of the state, and that the Legislature of a state, in the exercise of such power, may make any reasonable classification which it deems necessary to the purpose intended to be attained by the legislation. State v. Hill, 168 La. 761, 123 So. 317, 69 A. L. R. 574.

In State v. Ware, 79 Or. 367, 154 Pac. 905, 906, 155 Pac. 364, a statute regulating the persons engaged in lending money, providing for license and exempting banks from its application, the Supreme Court of Oregon held does not violate the “privileges and immunities” clauses of the federal Constitution.

In the opinion the court says:

“It is a fact of common knowledge that in the larger cities and towns there are men whose business it is to prey upon the necessities of the improvident and the unfortunate by lending money at exorbitant rates of interest with the effect that in many instances the borrower becomes the bond slave of the lender, if, indeed, he possesses enough character to prevent his desperation from driving him into overt acts of crime. These lendings and borrowings are usually so small in amount that the banking institutions make no pretense of engaging in the business, and hence arises the duty of the state to protect the unfortunate victim of rapacity so far as it is practicable. It requires no argument to establish the truth that this is a proper exercise of the police power.” In re Home Discount Co. (D. C.) 147 F. 538; City Council of Augusta v. Clark & Co., 124 Ga. 254, 52 S. E. 881; Cowart v. Greenville, 87 S. C. 35, 45 S. E. 122; Wessell v. Timberlake, 95 Ohio St, 21, 116 N. E. 43, Ann. Cas. 1918B, 402; State v. Hurlburt, 82 Conn. 232, 72 A. 1079; Mutual Loan Co. v. Martell, 222 U. S. 225, 32 S. Ct. 74, 56 L. Ed. 175, Ann. Cas. 1913B, 529.

In Hover v. Oklahoma City, 133 Okla. 71, 271 Pac. 162, the Supreme Court held that:

“An ordinance of a city will not be declared void under the Fourteenth Amendment to 'the Constitution of the United States on the ground that it denies to a party the equal protection of the law, if within the sphere of its operation it affects alike all persons similarly situated.”

It follows that said ordinance is not arbitrary in its classification and therefore not unconstitutional, invalid, and void as discriminatory class legislation.

From a consideration of the foregoing authorities, and for the reasons stated, we are of opinion that the ordinance under consideration in the case at bar must be justified and upheld as a proper exercise of the police power.

The judgment of the lower court is therefore affirmed.

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


author: PER CURIAM.

text:
    Ex parte ROY TITUS.
    No. A-9046.
    Sept. 10, 1936.
    (60 Pac. [2d] 810.)
    C. B. Leedy, for petitioner.
    L. L. Com, Co. Atty., for respondent.
   PER CURIAM.

Petitioner, Roy Titus, convicted of a violation of the prohibitory liquor laws in the county court of Dewey county, was adjudged to be confined in the county jail for 30 days and to pay a fine of $150.

From the petition and return to the rule to show cause it appears that after petitioner had served his jail sentence he gave a stay bond with good and sufficient sureties thereon to stay payment of said fine and costs for the period of 30 days, which bond was accepted and approved by the county court of Dewey county, and he was released from custody. That thereafter, on October 12, 1935, said county court entered an order forfeiting said, stay bond and directed the county attorney of said county to collect the same, and, if necessary, to institute proceedings for that purpose. That on the 21st of November, 1935, said county attorney filed an action in the district court of Dewey county to recover on said stay bond, and service of summons was duly had on petitioner and sureties on said stay bond on the 23d day of November, 1935. That on November 18, 1935, said county court issued a commitment to the sheriff of Dewey county, and the said petitioner was committed to the sheriff of Dewey county, and the said petitioner was committed to the county jail of said county.

This case was set on the January, 198'6, docket. No appearance was made in behalf of the petitioner and no appearance has ever been made in his behalf in this court and no brief has been filed.

The question as to whether or not the judgment and sentence in this case has been executed and satisfied cannot he determined from the petition and the return. It appearing that petitioner has abandoned his case, the same will he dismissed for want of prosecution.


author: DAVENPORT, J.

text:
    DAISY NEWCOMER v. STATE.
    No. A-9076.
    Sept. 10, 1936.
    (60 Pac. [2d] 810.)
    J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter for convenience referred to as the defendant, was by information charged with the possession of intoxicating liqnor; was tried, convicted and sentenced to pay a fine of $100 and be imprisoned in the county jail of Oklahoma county, for 45 days. The record was properly saved and the defendant appeals.

The substance of the testimony on behalf of the state is that on the 13th day of April, 1935, three officers went to 715 S. W. 33rd street, Oklahoma City, Okla. where they found a small quantity of whisky, part of it on the bed wrapped in paper, and a part on the floor of the room in the house. The officers testified the defendant in this case lived at this place. The defendant, her sister, and one other witness testify that she had not lived at that place since March, but lived at 914 S. W. 35th street. One of the officers claims when they found the whisky the defendant stated the whisky belonged to' her, the others were not definite as to what the defendant did say. One of the officers testified that the defendant’s children were there with her.

The state also called a fellow by the name of Day who testified to buying a pint of whisky from the defendant about 5 o’clock in the afternoon of the same day the defendant was arrested about noon. Another witness was called who claimed he bought a pint of whisky from the defendant a day or so before this arrest was made, but on cross-examination he did not know who it was he bought it from at 715 S. W. 33rd street. The proof shows conclusively this was the home of Mr. and Mrs. John Head; Mrs. Head being a sister of the defendant, and that some time prior to March, 1935, the defendant in this case had lived at the Head home.

The testimony of the witnesses, Bailey and Hay, who testified to having bought whisky from the defendant, one before and the other subsequent to the arrest, was admitted over the objection of the defendant and exceptions duly saved.

Neither of the officers saw the defendant in possession of this whisky, and the proof conclusively shows that the whisky found by the officers was in the home of Mr. and Mrs. John Head. The only testimony of the state tending to connect the defendant with the whisky is the statement of one of the officers in which he testified the defendant told him it was her whisky.

The defendant testifying in her own behalf stated she was living at 914 S. W. 35th street, and had been since March, 1935; that she did not have any children; that she had nothing to do with the whisky, and that she did not tell the officers it was her whisky. She says when the officers got her to jail and started to lock her up they asked her if she was going to plead guilty, and she said she was not, and they told her they would turn her over to the federal authorities.

Mrs. Head testified for the defendant, and stated the whisky was brought to her place by a man named Mitchell, who at the time of the trial was somewhere in Kansas unknown to the witness.

Ruth Lawrence, testifying for the defendant, stated that at the time of the alleged offense, on April 13, 1935, the defendant was not living, at the Head place; the reason she knew this was she had visited the defendant at her home at 914 S. W. 35th street.

The officers did not remember seeing any one at the Head home the day they made the arrest, but Mrs. Head stated her brother and a man named Bootie were eating their noon meal in her dining room at the time the officers came, and her father was on the outside of the house. She further testified her sister, Daisy Newcomer, had nothing to do with the Avhisky found at her house.

The foregoing, is the substance of the testimony of both the state and the defendant.

Eleven errors have been assigned by the defendant as grounds for reversal. The defendant in her brief discusses first, the question of thé admissibility of the evidence of O. E. Day, who testified to having bought a pint of whisky from the defendant at 5 o’clock or a little after, on April 13, 1935, which as shown by the record is some three or four hours after the testimony shows the defendant was arrested by the officers and placed in jail. The defendant in her argument insists that it was error for the court to admit the testimony of Day as to the alleged purchase of the whisky from the defendant several hours after the record shows the defendant was arrested and taken to jail, as it could throw no light upon the question of the possession of the whisky claimed to have been found by the officers, or the intent of the person to Avhom it belonged to barter, sell, give away, or otherwise furnish to others.

In this case the testimony of the state as to what the defendant should have said with reference to the ownership of the whisky found in the Head home is directly contradicted by the defendant and other witnesses who were present and did not hear her say the whisky was hers.

The testimony shows the officers stated the defendant’s children Avere there at the place, while the testimony of the defendant shows she does not have any children. While the testimony in this case is closely contested, it is difficult to say just what would have sufficient weight to cause the jury to render a verdict of guilty.

The contention of the defendant that the testimony of the Avitness Day, as to the purchase of the whisky some time subsequent to the arrest of the defendant is inadmissible, is well taken. It has been uniformly held by the courts that previous offenses necessarily involving such guilty knowledge are admissible. As to those transactions Avhich occur subsequent to the one in question, the weight of authority and of reason is against the admissibility of the testimony. Any other rule Avould widen the scope of the inquiry beyond the bounds within which defendant could fully prepare his defense. Coblentz v. State, 84 Ohio St. 285, 95 N. E. 768.

The error of the court is admitting, the testimony of the witness Day as to the purchase subsequent to the time of the arrest of the defendant is a reversible error.

There are other errors assigned, but it is not deemed necessary to consider them. The judgment of the trial court is reversed.

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


text:
    LEOTIS ALTIZER v. STATE.
    No. A-8800.
    Sept. 10, 1936.
    (60 Pac. [2d] 812.)

      Nat Henderson, E. F. Lester, and W. G. Stigler, for plaintiff in error.
    The Attorney General and Jess L. Pullen, Asst. Atty. .Gen., for the State.
   DOYLE, J.

The information in this case charged in substance that Leotis Altizer did in Haskell county on or about the 18th day of November, 1933, commit the crime of assault with intent to kill by making an assault upon W. L. Parker, with a deadly weapon, to wit, a pistol, and did attempt to shoot and kill the said W. L. Parker. The jury by their verdict found the defendant guilty of assault with a dangerous weapon and assessed his punishment at imprisonment for one year in the state penitentiary. On February 21 the verdict was returned and filed. On February 23', 1934, motion for new trial was duly filed.

On March 11, 1934, an appeal bond was filed which recites:

“The said Leotis Altizer, principal, has appealed to the Criminal Court of Appeals of the State of Oklahoma from a judgment of conviction rendered against him for the crime of assault with a dangerous weapon.”

On September 5, 1934, what purports to be a partial transcript of the record was filed in this court.

The Constitution of this state gives to every defendant in a criminal case the right of appeal. The statutes provide the method and time of exercising this right.

Section 3189, St. 1931, provides:

“An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment against him; and upon the appeal any decision of the court, or intermediate order made in the progress of the case may be reviewed.”

The statute authorizes two methods by which an appeal may be taken to this court.

First, after due notice (section 3193), by filing in this court a case-made with a petition in error attached.

Second, by filing a transcript of the record duly certified, with a petition in error attached. Sections 3197, 3198.

With either method in a felony case the appeal must be lodged here within six months from the date of the rendition of the judgment. Section 3192.

When this is not not done within the time allowed by statute, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed. Dunn v. State, 18 Okla. Cr. 493, 196 Pac. 739; Heath v. State, 22 Okla. Cr. 122, 210 Pac. 560; Dodson v. State, 24 Okla. Cr. 280, 217 Pac. 899; Primrose v. State, 26 Okla. Cr. 138, 222 Pac. 702.

Section 3146 provides:

“When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the, offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action:
“First. The indictment and a copy of the minutes of the plea or demurrer.
“Second. A copy of the minutes of the trial.
“Third. The charges given or refused, and the in-dorsements, if any, thereon; and,
“Fourth. A copy of the judgment.”

An examination of the purported transcript of the record filed in this case discloses that the same does not contain a copy of the judgment and does not otherwise show that the same was filed in this court within six months from the date of the rendition of the judgment. It further appears that said purported transcript of the record was not certified to by the clerk of the court.

■On August 10, 1935, motion to amend case-made was filed herein to amend the case-made in order to show the judgment rendered by the trial court. Leave to amend was granted but no such amendment has been made.

In the case of Coates v. State, 33 Okla. Cr. 333, 244 Pac. 62, this court held:

“An appeal to this court, in a felony case, must be lodged here within six months from the date of the rendition of the judgment of conviction, and this period cannot be extended by subsequent orders of this or the trial court.”

In Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 370, it is held that: If the transcript of the record is not properly certified to by the clerk of the court, the appeal will be dismissed. On rehearing this court further held:

“A certificate to1 a transcript of the record from a district court, not verified by the seal of such court, is no more than so much blank paper, and will not give this court jurisdiction to consider an appeal upon such pretended transcript of the record.”

Upon the record before us and for the reasons stated, we are of the opinion that this court has never acquired jurisdiction of this appeal; the attempted appeal in this •case is therefore dismissed, and the cause remanded to the district court of Haskell county with direction to enforce the judgment and sentence.

EDWABDS, P. J., and DAYENPOBT, J., concur.


author: FURMAN, P. J.

text:
    W. W. WARREN v. STATE.
    No. A-597.
    Opinion Filed May 23, 1911.
    (115 Pac. 812.)
    1. APPEAL AND ERROR — Harmless Error — Selection of Jury. Even though the trial court may improperly overrule a challenge for cause to a juror, yet if the defendant peremptorily challenges said juror, and if it appears that the defendant did not exhaust all of his peremptory challenges, and that no objectionable juror was forced on the defendant, the error of the court in improperly overruling such challenge will be harmless, and will not be ground for the reversal of a conviction.
    2. TRIAL — Names of Witnesses — Appeal—Grounds for Reversal-Right to Be Confronted With Witnesses.
    (a) The constitutional requirement that in homicide eases the defendant shall be furnished at least two days before the case is called for trial with a list of the witnesses who will be called in chief to prove the allegations of the indictment or information, together with their post-office addresses, does not apply to witnesses who are called to testify as to the residence of absent witnesses whose names have been furnished to the defendant, and to the further fact that such witnesses testified in the preliminary examination of the defendant, and that the defendant was present, and that an opportunity was afforded him for cross-examining such witnesses.
    (b) It is the duty of counsel for appellant in their briefs to clearly set forth the ground upon which they rely for a reversal, and to give the reasons for and the authorities relied upon to support the objections which they make to any matter which occurred in the trial of the cause in the lower court.
    (e) The constitutional provision which guarantees to a defendant the right to be confronted by the witnesses against him is fully complied with when the defendant has had the opportunity to cross-examine the said witnesses in a preliminary'trial before a justice of the peace. When this has been done, and upon a subsequent trial of the said cause, if it is satisfactorily proven that such witnesses have, since the former trial, died) become insane, left the state, or that their whereabouts cannot with due diligence be ascertained, or are sick and unable to testify, the testimony of such witnesses given upon said former' trial may be proven upon the subsequent trial.
    3. APPEAL AND ERROR — Exclusion of Evidence — Sufficiency of Record. Wheri a defendant seeks a reversal in this court on account of an alleged error on the part of the trial court in refusing to admit evidence offered, the record must show what this offered evidence was, so that this court can determine as to whether or not it was material and proper testimony, and as to whether or not the defendant was injured by its exclusion.
    4. NEW TRIAL — Verdict—Degree of Crime — Ground for Reversal.
    (a) When a defendant is on trial for murder, and the jury under proper instructions find him guilty of manslaughter, this court will not grant a new trial upon the ground that the defendant, should havp been either convicted 'of murder or acquitted.
    (b) The jury have the absolute right to fix the degree of a crime of which a defendant is convicted when the court submits to them the different degrees, and this court will not disturb their verdict upon the ground that they have found the defendant guilty of a less degree of offense than that which the evidence establishes.
    (Syllabus by the Court.)

      Appeal from District Court, McCurtain County; D. A. Richardson, Judge. '
    W. W. Warren was convicted of the offense of manslaughter in 'the first degree, and his punishment was assessed by the jury at imprisonment in the state penitentiary at McAlester for a period of 10 years, and he appeals.
    Affirmed.

      Spaulding & Carr and Armstrong & Etheridge, for appellant.

      Smith C. Matson„ Asst. Atty. Gen., for the State.
   FURMAN, P. J.

First. Appellant complains that the court erred in overruling his challenge tb the juror Monteith. It is not necessary to discuss the merits of this challenge because the record shows that Monteith did not sit on the jury, and the record fails to show that appellant had exhausted his peremptory challenges, or was forced to accept any objectionable jurymen on account of his having been forced to use a peremptory challenge on Monteith. Therefore, even if the court had erred in overruling appellant’s objections to the juror Monteith, appellant did not suffer any injury thereby, and-therefore cannot now' be heard to complain.

Second. Appellant’s second assignment of error is as follows :

“The court erred in admitting the testimony of Tom Graham, Joseph Barnes, J. J. McLain, and the purported testimony of George Sullivan and Ida Sullivan, purported to have been taken at the preliminary trial of plaintiff in error.”

Appellant in -his brief does not state the grounds upon which his objections were based to the testimony of Tom Graham, Joseph Barnes, and J. J. McLain. Therefore his objections to the testimony of these witnesses have been waived. This court has often stated that it will not search the record trying to discover errors which are not clearly set out in the brief of counsel for an appellant. The brief for an appellant should not only show that objections were^ made to the testimony of a witness, but must go further and state specifically what these objections were, and give the reasons for and the authority supporting the objections made. See rule, 4 of the Criminal Court of Appeals (1 Okla. Cr. x, 101 Pac. vii). When this is riot done, the objections will be held to be waived, and the court will not hunt for reasons why the objections should have been sustained. We cannot act in the double capacity of counsel for either side and as a court.

In examining the record, we find that the objection was made in the lower court to the testimony of these witnesses upon the ground that appellant had not been served with their names and post-office addresses two days before the case was called to trial. As this is a question that is liable to arise in the trial of any homicide case, we will waive the failure of appellant to present this matter in the brief, and will pass upon it as though it were properly presented in the brief. The latter part of section 20, art. 2, of the Constitution, is as follows:

/‘At least two days before the case is called for. trial he [defendant] shall be furnished with a list of witnesses who will be called in chief to prove the allegations of the indictment or information, together with thier post-office addresses.”

It is seen upon its very face that this provision of the Constitution only applies to witnesses who are called in chief to prove the allegations of the indictment or information. This does not apply to either of the witnesses above named. Neither of them testified to a single substantive fact in the most remote degree tending to prove the allegations contained in the indictment. In fact, so far as this record goes, neither of said witnesses knew anything about the merits of this cause. Their testimony was simply introductory for the purpose of showing that George Sullivan and Ida Sullivan could not with due diligence be found in McCurtain county, and, when last heard from, they were in the state of Arkansas, and therefore beyond the jurisdiction of the court, and could not be reached by its process, and the further fact that there was a preliminary trial of this defendant before a justice of the peace of McCurtain county wherein he was charged with the murder *of .the deceased, and that appellant was present at said preliminary trial and was represented by counsel, and was offered full opportunity to cross-examine, and did cross-examine, said witnesses. Their testimony was simply preliminary to the introduction of the evidence of the witnesses so examined at said preliminary examination, and therefore said witnesses did not come within the case described in the Constitution.

In their brief, counsel for appellant contends that the testimony of George Sullivan and Ida Sullivan, taken before J. J. McLain, justice of the peace, at the preliminary examination of plaintiff in error, and which was read to the jury, was inadmissible because it was in violation of section 20 of article 2 of the Constitution, which provides that in all criminal prosecutions the accused shall be confronted by the witnesses against him, and was also in contravention to section 64-89 of Snyder’s Compiled Laws of Oklahoma of 1909, which provides that in a criminal case the defendant is .entitled to be confronted by the witnesses against him, in the’presence of the court. This is the only objeclion which counsel for appellant presented in their brief to the testimony of George Sullivan and Ida Sullivan given upon the preliminary trial of appellant, and therefore it is the only '■objection which will be considered by .this court.

We have no direct statute in this state with reference to the introduction of the testimony of a witness given upon a former trial of the case, when such witness has since died or left the .state, or for any reason is beyond the jurisdiction of the court, •and therefore cannot be placed upon the witness stand. Section 6494 of Snyder’s Compiled Laws of Oklahoma of 1909 is as follows :

“The procedure, practice and pleadings in the district courts •of this state, in criminal actions or in matters of criminal nature, not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law, and assimilated as near as may be with the procedure, practice and pleadings of the United States or federal side of said court.”

The common law in force in the United States can only be found in text-books and in the decisions of various courts of this country. We must therefore look to these sources to see whether or not the objections offered by counsel for appellant in this case are well founded.

There is no higher or safer authority on the subject of evidence than Mr. Wigmore. In our judgment he has made the ■clearest and most satisfactory explanation of the reasons which support the constitutional and statutory provisions upon the subject of confrontation that we have found in the books. In section 1395, 2 Wigmore- on Evidence, he explains this matter as follows:

“It is generally agreed that the process of confrontation has two purposes, a main and essential one, and a secondary and subordinate one. (1) The main and essential purpose of confrontation is to secure the opportunity of cross-examination. The opponent- demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining of immediate answers. That this is the true and essential significance of confrontation is- demonstrated by the language of counsel and judges from the beginning of the hearsay rule to the present day. * * * Thus the main idea in the process of confrontation is the opportunity of cross-examination. The former is merely the dramatic ’feature, the preliminary measure, appurtenant to the latter. (2) There is, however, a secondary advantage to be obtained by the personal appearance of the witness. The judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness’ deportment while testifying, and a certain subjective moral effect is produced upon the witness. * * * -This secondary advantage, however, does not arise from the confrontation of the opponent and the witness. It is not the consequence of those two being brought face to face. It is the witness’ presence before the tribunal that secures this secondary advantage, which might equally be obtained whether the opponent was or was not allowed to cross-examine. In other words, this secondary advantage is a result accidentally associated with the process of confrontation, whose original and fundamental object is the oppenentjs cross-examination. The question, then, whether there is a right to be confronted with opposing -witnesses, is essentially a question whether there is a right of cross-examination. If there has been a cross-examination, there has been a confrontation. The satisfaction of the right of cross-examination (under the rules examined ante, $$ 1371-1393) disposes of any objection based on the so-called right of confrontation. Nevertheless, the secondary advantage, incidentally obtained for the tribunal by the witness’ presence before it — the demeanor evidence — is an advantage to he insisted upon wherever it can be had. No one has doubted that it is highly desirable, if only it is available. But it is merely desirable. Where it cam not be obtained, it need not be required., It is no essential part of the notion of confrontation. It stands on no better footing than other evidence to which special value is attached; and, just as the original of a document (ante, § 1192) or a preferred witness (ante, $ 1308) may be dispensed with in case of unavailability, so demeanor evidence may be dispensed with in a similar necessity. Accordingly, supposing that the indispensable requirement of cross-examination has been satisfied, the only remaining inquiry is whether ■the demeanor evidence, to be obtained by the witness’ production before the tribunal, is available. This inquiry — the conditions of unavailability of demeanor evidence by reason of death, illness, and the like — remains now to be made. But first the effect must be considered of the constitutional sancr tion in the United States, of the principle of confrontation; for this has often erroneously affected the judicial attitude towards demeanor evidence. In the United States most of the Constitutions have given a permanent sanction to the principle of confrontation by provisions requiring that in criminal cases the .accused shall be ‘confronted with the witnesses against him’ or '“brought face to face’ with them. The question thus arises whether these constitutional provisions affect the common-law requirement of confrontation, otherwise than by putting it beyond the possibility of abolition by an ordinary legislative body. The only opening for argument lies in the circumstance that these brief provisions are unconditional and absolute in form; i. e., they do not say that the accused shall be confronted ‘except when the witness is deceased, ill, out of the jurisdiction, or otherwise unavailable,’ but imperatively prescribe that he ‘shall be confronted.’ Upon this feature the argument has many times been found that, although the accused has had the fullest benefit of cross-examining a witness now deceased or otherwise unavailable, nevertheless, the witness’ presence before the tribunal being constitutionally indispensable, his decease or the like is .no excuse for dispensing with his presence. That this argument is unfounded cannot be ■doubted; and the answer to it may be put in several forms: (1) There never was at common law any recognized right to an indispensable thing called confrontation as distinguished from cross-examination. There was a right to cross-examination as indispensable, and that right was involved in and secured by confrontation. It was the same right under different names. This much is clear enough from the history of the hearsay rule (ante, '51364), and from the continuous understanding and exposition of the idea of confrontation (ante, 5 1395). It follows that, if the accused has had ■ the benefit of cross-examination, he has had the very privilege secured to him by the Constitution.”

He cites a great number of American and English cases as sustaining the doctrine announced. We have often examined the citations made by Mr. Wigmore, and, having invariably- found ’them to be accurate, we are disposed to accept his statements and citations with reference to these authorities as being correct. In section 1398 he says:

“In dealing with depositions and former testimony, our courts have almost unanimously received them in criminal' prose•cutions, as not being obnoxious to the constitutional provision.”

In section 1404 he says:

“Where the witness is out of the jurisdiction, it is impossible to compel his attendance, because the process of the trial’ court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.”

In Underhill on Criminal Evidence (2d Ed.) § 265, we find the following:

“If the accused has once enjoyed his right to confront witnesses, his constitutional right to meet the witnesses against him: face to face is not violated by the admission of the testimony of such a witness who is absent at a subsequent trial.”

In the case of Sullivan v. State, 6 Tex. App. 337-338, 32 Am. Rep. 580, that court said:

“The next important inquiry is, Was it competent for the state to prove, under the circumstances disclosed by the record, what the witness Dean had testified to before the examining court? The Constitution (article 1, § 10, of the Bill of Rights) declares that ‘in all criminal prosecutions’ the accuse'd ‘shall be-confronted with the witness against him.’ The Code of Criminal Procedure, art. 24, provides that ‘the defendant upon a trial shall be confronted with the witnesses, except in certain cases, provided for in this Code, when depositions have been taken.’ In treating of constiutional provisions similar to the one-above set out, and found in all the constitutions of the several states and in that of the United States, Mr. Cooley lays down as the correct rule, deducible from the authorities, and which we adopt as correct, the following: ‘The testimony for the people in criminal cases can only, as a general rule, be given by witnesses who are present in court. The defendant is entitled to be confronted with the witnesses against him; arid if any of them be absent from-the commonwealth, so that their attendance cannot be compelled, or if they be dead, or have become incapacitated to give evidence, 'there is no mode by which their statements against the prisoner can be used for his conviction. The exceptions to this rule are of cases which are excluded from its reasons by their peculiar circumstances; but they are far from numerous. If the witness. was sworn before an examining magistrate, or before a.coroner, and the accused had an opportunity then to examine him, or if there were a former trial, on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick, and unable to testify, or has been summoned, but appears to have been kept away by the opposite party.’ Cooley’s Const. L/im. Orig. pp. 363, 364. • Agreeably to Mr. Greenleaf, ‘upon the question whether this kind of evidence is admissible in any ■other contingency except the death of the witness, there is some discrepancy among American authorities.’ I Greenl. on Ev. $ 163, note. The rule in the text appears to be that, ‘when the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any suit between the same parties. It is also received if the witness, though not dead, is out of the jurisdiction, or cannot be found after diligent search, or is insane, or sick and unable to testify, or has bean summoned, but appears to have been kept away by the adverse party. But testimony thus offered is open to all the objections which might be taken if the witness were personally present.’ ”

In the case of Commonwealth v. Cleary, on page 39 of 148 Pa., on page 1112 of 23 Atl., the Supreme Court of that state said:

“Where, upon a subsequent trial, the witness is dead, or beyond the jurisdiction of the court, there seems no good reason why his testimony taken upon the former trial, and clearly proved, should not be admitted. To deny this right would in many instances seriously interfere with the administration of justice, if not wholly defeat it. The defendant is not injured in such case, because he has been brought face to face with the witness, and has cross-examined him when the testimony was taken. In Brown v. Commonwealth, 73 Pa. 321 [13 Am. Rep. 740], it appeared that on the preliminary hearing before the committing magistrate, the defendant and his counsel being present, witness was examined whose testimony was taken down by defendant’s counsel, and, the witness having died before the trial, the notes of his evidence, proved by the counsel under oath, were offered in evidence, objected to and admitted. It was contended that by the Constitution of this state the defendant was entitled to meet the witness face to face. It was held by this court in an elaborate opinion by Chief Justice Read that the notes of the hearing before the magistrate were properly admitted. The question was so elaborately discussed in that case that no further reference to it is needed.”

In the case of Lucas v. State, 96 Ala. 51, 11 South. 216, the Supreme Court of Alabama said: .

“At a preliminary examination of the defendant Dock Tilley was examined as a witness by the state, and his testimony was. reduced to writing. On the trial, after the indictment, Dock Tilley was absent, and, against the objections of the defendant, his testimony as given on the preliminary examination was admitted against him. The rule in such cases is that if a witness dies, or becomes insane, or has gone beyond the jurisdiction of the state permanently, or for such an indefinite time that his return is merely contingent or conjectural, the testimony of such witness may be proven on a subsequent trial. Pruitt v. State [92 Ala. 41], 9 South. 406; 1 Greenl. Ev. (14th Ed.) par. 163, and notes; Lowe v. State, 86 Ala. 52, .5 South. 435; South v. State, 86 Ala. 617, 6 South. 52; Perry v. State, 87 Ala. 30, 6 South. 425.”

In the case of State v. Walton, 53 Ore. 562, 99 Pac. 433, the Supreme Court of Oregon said:

“The Constitution (section'll, art. 1) provides that in all criminal prosecutions the accused shall have the' right ‘to ■ meet the witnesses face to face,’ and it is contended that the admission of the testimony of the witnesses Johnson and Hogeboom, given on the former trial of the accused, was an infringement of this right. The Constitution' of the United ¡[States, and of most states of the Union, contains similar provisions, and the general, if not the universal, holding of the courts is that their essential purpose is to secure to an accused the right of cross-examination, and, if he has once enjoyed that right, no constitutional privilege is violated by the ¿dmission of the testimony of such a witness, who is dead or absent from the state, at a subsequent trial. Underhill Crim.Ev. § 255; 2 Wigmore, Ev. § 1397; State v. Nelson, 68 Kan. 566, 75 Pac. 505; People v. Dowdigan, 67 Mich. 95, 38 N. W. 920; State v. Byers, 16 Mont. 565, 41 Pac. 708; Territory v Evans, 2 Idaho (Hasb.) 651, 23 Pac. 232, 7 L. R. A. 646; Marler v. State, 67 Ala. 55, 42 Am. Dec. 95; State v. McO’Blenis, 24 Mo. 402, 69 Am. Dec. 435; State v. King, 24 Utah, 482, 68 Pac. 418, 91 Am. St. Rep. 808 (note, 61 Am. St. Rep. 886).”

This question has been previously passed upon by this court in the case of Hawkins v. United States, 3 Okla. Cr. 660, 108 Pac. 565. This court there said:

“Under the decisions of the Supreme Court of Arkansas, tvhere the defendant has been confronted with a witness in a former trial of the same cause, whether before a coroner or justice of the peace .sitting as an examining magistrate, or upon an application for bail, or upon a trial in the circuit court, and where the witness testified under oath, and opportunity for cross-examination was afforded the defendant, the testimony given by such witness on such former trial may be proved in the final trial as secondary- evidence, if it is first satisfactorily proven that the witness has since died, become insane, left the state, or that his whereabouts cannot with due diligence be ascertained, or that he-is sick and unable to testify.”

Applying the principles above enunciated to the case át bar, we find that it was proven to the satisfaction of the trial court that the whereabouts of the witnesses George Sullivan and Ida Sullivan could not with due diligence be ascertained, and that, when they were last heard from, they were in the state of Arkansas. The trial court having found these facts, and there being evidence in the record supporting' this finding, we cannot disturb his decision upon this question. It was also proven that George Sullivan and Ida Sullivan testified ’on the 10th day of July, 1908, before J. J. McLain, a justice of the peace for McCurtain county, Okla., in this case when this defendant was having his preliminary trial before said justice, charged with the murder of A. L. Lamb, and that this defendant was present at said trial, and was represented by counsel, .and upon trial both of the said witnesses were fully cross-examined by counsel for appellant. Under these conditions, we'think that the trial court did not err in permitting the testimony given by said witnesses upon said examining trial to be read to the jury. Counsel for appellant cite the case of James Watkins v. United States, 5 Okla. 729, 50 Pac. 88. An examination of that case shows' that it is not in point. Watkins was on trial charged with the offense of perjury. The United States was plaintiff-and James Watkins was defendant. He offered in evidence the depositions of one John A. Watkins and one Ardill R. Johnson, taken in a civil suit wherein John A. Watkins was plaintiff and Chas. E. Schofield was the defendant. These depositions were by the trial court excluded, and, Watkins being convicted of perjury, upon appeal the Supreme Court of Oklahoma Territory sustained the ruling of the lower court and excluded the depositions. In the Watkins case the depositions offered were not taken in the same case between the same parties and the United States was not represented, and could not have been represented when said depositions were taken. They were therefore properly held to be inadmissible, and that case has no relation whatever to the case before us.

Third. The third assignment of error is as follows:

“The court erred in refusing to admit the testimony offered by the plaintiff showing the cause of the ill feeling that existed between him and the deceased.”

No effort was made in the brief of appellant or in the case-made to show what facts he desired to prove which were excluded by the judge. In the case of Price v. State, 1 Okla. Cr. 375, 98 Pac. 455, this court said:

“Defendant complains of the action of the trial court in sustaining objections to questions propounded to his witnesses,'but the record does not show, except inferentially, the facts which defendant expected to prove by the witnesses, if they had been permitted to answer the questions to which objections were sustained. In the absence of such showing in the record, this court cannot review the rulings of the trial court or hold that material error was committed in the rejection of competent testimony. In order to avoid, mistakes, the jury should have, been withdrawn, and the court should have heard the testimony. . Then the record should have shown what the rejected evidence was. This court would then have been in a position to pass intelligently upon the question. As this record stands, we cannot say that the court committed material error in the ruling complained of.”

Passing upon this very question in the case of White v. State, 4 Okla. Cr. 160, 161, 111 Pac. 1017, 1018, this court said:

“When the defendant attempts to prove threats made against him, and objections to the questions asked the witness are sustained, it is the duty of counsel for the defendant to incorporate in the record a statement as to what he expects to prove by the witness if allowed to testify. This court could then be in a condition to determine as to whether or not such offered evidence was material and proper. To reverse a case simply because a witness was not permitted to answer a question when there is no showing in the record that such answer would have been favorable to the defendant is to trifle with the law. We have no means of knowing what the answers would have been, and therefore cannot see whether the defendant was deprived of material testimony. Suppose this cause was reversed because the trial court refused to permit the witness to answer the questions which were asked him, and upon a second trial the court finds that the answers to such questions were not material; it is clear that the action of the court in reversing the cause would be unjust to the state. It is a very easy matter when objections to questions are sustained for counsel for the defendant to write out what answers they expect to obtain from the witness and hand it to the trial court, and have it incorporated in the record as a part of the case. We could then intelligently pass up the question as to whether or not the defendant was injured by the refusal of the court to admit this testimony. The writer of this opinion remembers a case which was reversed on account of the failure of the trial court to allow a witness to answer certain questions as to what the deceased had said. Upon the second trial the same questions were propounded to the witness, and he replied: ‘He didn’t say nothing.’ Had this answer been incorporated in the first record, the reversal and delay of a second trial would have been avoided. The better practice would be to have the jury retire and let the court hear what answers the witness would make. This should be incorporated in the record. Then the matter could be intelligently passed upon both in the trial court and in this court. Neither counsel for the state nor for a defendant should be permitted to make oral statements in the presence of the jury as to what evidence they desire to introduce in reply to questions which have been objected to. This is a very unfair and dangerous practice. Improper impressions may thereby be made upon the minds of the jurors which cannot be effaced.”

So far as the brief of counsel for appellant and the record in this case go, there is nothing to show that appellant was deprived of any material or competent testimony by the ruling of the court. The presumption is that all proceedings of the trial court were regular; and, if the defendant desires this court to review any rulings of the trial court, the burden is on him to show that such ruling was erroneous.

Fourth. The fourth assignment of error is that “the court erred in giving the jury an instruction on manslaughter.” Counsel, for appellant does not complain that the jury were improperly instructed on the subject of manslaughter, but their .contention is that he should have been convicted of murder, or that he should have been acquitted. We agree with counsel for the appellant in the statement that there is evidence in this record which would sustain a verdict for murder, but there is also testimony which shows that appellant was laboring under the most intense excitement and passion at the time of the fatal difficulty. The testimony shows that, after appellant had shot and killed the deceased, appellant fired a shot at George Sullivan, who had taken no part in the difficulty, and who was running away from the scene of the homicide, and that appellant then picked up a Winchester and attempted to'shoot Hardis Lamb, a son of the deceased, who had taken no part whatever in the difficulty, and that he would have shot said Hardis Lamb if he had not been stopped by a bystander.

Defendant himself testified that before the fatal shot was fired the deceased grabbed at the gun or beard of the defendant, and that the deceased caught the defendant by the beard, and that deceased had cursed and abused the defendant before doing this. In the light of this testimony, the jury may have decided that the defendant was laboring under such intense excitement and passion at the time that he fired the fatal shot as to reduce the offense from murder to manslaughter. It is true that this may be considered as rather a strained construction to place upon the evidence; yet it is a possible and legitimate deduction to be drawn from the evidence, and the court therefore did not err in submitting this issue to the jury. But let that be as it may, the defendant cannot be heard to complain that he has been convicted of a less offense than the one which he actually committed.

In the case of State v. Lindsey, 19 Nev. 50, 5 Pac. 823, 3 Am. St. Rep. 778, 779, 780, the Supreme Court of Nevada has expressed our views upon this question:

“But suppose the jury, in charity for the faults and weakness of the human race, sympathy for the prisoner, or any other mistaken view of the law or the facts, lessens the offense to murder in the second degree, is the prisoner to go free? Does not the case stand precisely upon the same plane as a verdict of murder in the second degree, in any case not enumerated in the statute, where there is a willful, deliberate, and premeditated killing? Is it .not as much the duty of the jury in such a case to find the prisoner guilty of murder in the first degree as in the cases specially enumerated in the statute? Suppose the jury in such a case, where the evidence is positive, clear, plain, and satisfactory beyond a reasonable' doubt, regardless of all the testimony, and in violation of the well-settled principles of law, should find the prisoner guilty of murder in the second degree, would the prisoner be entitled to a new trial upon the ground that the verdict is against the evidence? Is it not a fact that juries-frequently render just such verdicts, and the result cannot be accounted for upon any theory other than that of a compromise of opinion? Why should such verdicts be allowed to stand? The answer is plain. The reason is that the statute leaves the question of degree to be settled by the verdict of the jury. A verdict finding the prisoner guilty of murder without mentioning the degree would be a nullity. In State v. Rover, 10 Nev. 388, 21 Am. Rep. 745, this court referring the the statute which we have quoted, said: ‘By this statute murder is divided into first and second degrees, depending upon the particular circumstances in. which the crime is committed; and whether it be of the first or second degree is a fact to be specially found from the evidence adduced, without reference to any special facts which may be stated in-the indictment, In case of a trial, the jury before whom the trial is had, if they find the defendant guilty, are required to find this fact,' and to designate by their verdict whether their guilt be of the first or second degree; and, in case of a'plea of confession, the court is required to determine this question of fact by the examiantion of witnesses in open court. It is therefore apparent from the plain and positive provisions of the statute that a verdict which fails to designate the degree of murder of which the jury find the defendant guilty is so fatally defective that no judgment or sentence can be legally pronounced thereon.1 10 Nev. 391, 21 Am. Rep. 746. A judge should always inform the jury of the degree which the law attaches to murder, by whatever means the crime may have been committed; but in eyery case it .is the province of- the jury, if the prisoner is found guilty,, to determine and fix the degree by their verdict, and the courts cannot deprive the jur-y of their right to fix the degree by imperatively instructing them, in a case where the crime was committed by administering poison (or in any other case), that if they find the prisoner guilty they must find him guilty of murder in the first degree. Robbins v. State, 8 Ohio St. 193; Beaudien v. State, 8 Ohio St. 638; Rhodes v. Commonwealth, 48 Pa. 398; Lane v. Commonwealth, 59 Pa. 375; Shaffner v. Commonwealth, 72 Pa. 61, 13 Am. Rep. 649. Wharton, in discussing the degrees of murder, says: 'But however clear may be the distinction between the two degrees, juries not infrequently make use of murder in the second degree as a compromise, when they think murder has been committed, but are unwilling, in consequence of circumstances of mitigation, to expose the' defendant to its full penalties.’ 2 Wharton’s Crim. Law, §. 1112. In Rhodes v. Commonwealth, 48 Pa. 398, the court said:- 'Under proper instructions from the bench, it is not only the right of the jury to ascertain the degree, but it is the right of the accused to have it ascertained by them. * * * No doubt cases of murder in the first degree have been found in the second, but this must have been anticipated when the statute was framed, and has certainly been observed under its operation, and yet it has remained upon our statute book since 1794 unaltered in this regard. Possibly the very distinction of degrees was invented to relieve such jurymen’s consciences as should be found more tender on the subject of capital punishment than on their proper duties under evidence. Many men have probably been convicted of murder in the second degree who, really guilty of the higher crime, would have escaped punishment altogether but for this distinction in degrees so carefully committed by the statute to juries.’ The jury have the■ undoubted power to fix the crime in the second degree when it ought, under the law and the facts, to be fixed in the first. 'We need not speculate why it was so provided. It is sufficient that it is so written, and we cannot change, alter, or depart from it.’ Lane v. Commonwealth, supra. Our attention has not been called to any case where a verdict of murder in the second degree has been set aside upon the ground that the testimony was suda as to make the crime murder in the first degree. But, on the other hand, the direct question involved in this case has been decided adversely to appellant. State v. Dowd, 19 Conn. 388; Lane v. Commonwealth, supra. In the latter case the court said: ‘It has never yet been decided in Pennsylvania that a verdict of murder in the second degree might not be given in a case of murder by poison. That it may be given is as unquestionable as the power of the jury is under the act to give it, and impossible for the court to refuse it.’ If the jury fix the crime at murder in the second degree, in a case where the law and the facts make it murder in the first degree, it is an error in favor of the prisoner, of which the law will not take any cognizance, and of which the prisoner ought not to complain.”

Mr. Bishop’s New Criminal Procedure, § 596, is as follows:

“The jury have the absolute power to fix the degree, as, if in the opinion of the court which it should state for their guidance the evidence proves, however conclusively, the first degree, they can still return a verdict for the second. The defendant has no ground of complaint. Of course, the proofs must establish murder of one sort or the other.”

In the case of Jordon v. State, 22 Ga. 558, the Supreme Court declined to grant a new trial when a defendant had been found guilty of manslaughter, although in the opinion of the court he was clearly guilty of murder. In the case of Fagg v. State, 50 Ark. 508, 8 S. W. 830, the Supreme Court of that state said:

“It is contended by the appellant that the evidence adduced at the trial leads to but one of two conclusions — that is, that the killing was murder in the first degree or justifiable homicide— and therefore that the jury could not legally return a verdict of manslaughter: Conceding the premises to be correct, the conclusion does not follow. Where the evidence and the instructions of the court demand a verdict of murder, but the jury finds manslaughter, there is no alternative but to sentence, the prisoner accordingly. Bishop, Cr. Pr. § 642. Such is the effect of the judgments in Allen v. State, 37 Ark. 435; Green v. State, 38 Ark. 310. The principle of those cases is that the court cannot withhold from the jury the power to return a verdict according to their will for any grade of the offense charged against a defendant. The courts can only instruct juries as to their duty, giving them in charge the law applicable to the facts and no other. If there is no evidence whatever tending to establish a lower grade of homicide than murder in one instance, or voluntary manslaughter in 'another, the court should decline to give to the jury instructions as to any lower grade of homicide (Benton v. State, 30 Ark. 328; Allen v. State, supra), and it is the jury’s duty to take the court’s exposition of the law as that applicable to the case. But the court cannot direct a verdict from the higher offense nor restrain the jury from returning it for the lower grade. Flynn v. State, 43 Ark. 289; Adams v. State, 29 Ohio St. 312.”

We do not think that this court has the right to set aside a verdict for manslaughter if we were of the opinion that the defendant should have been convicted of murder.

Fifth. The fifth assignment of error is as follows: “The court erred in refusing to arrest the judgment and overruling plaintiff in error’s motion for a new trial.” In their brief counsel for appellant under the fifth assignment of error simply reiterate what they have previously said under other assignments of error.

We find no error in the record, and the judgment of the lower court is therefore in all things affirmed.

ARMSTRONG and DOYLE, JJ., concur.


text:
    OPINION OF THE JUDGES.
    No. A-1172.
    Opinion Filed May 29, 1911.
    •HOMICIDE — Plea of Guilty — Punishment—Validity of Statute.' The statute providing (sec. 2275, Snyder’s Stat.) that upon a plea of guilty of murder the court shall determine whether the defendant shall be punished by death or _ by imprisonment for life at 'hard labor is constitutional and valid, and where a defendant who has been informed against for a capital crime in a court of competent jurisdiction pleads guilty, such court is authorized to pronounce judgment and sentence against such defendant according to law. In such a case there is no issue to be submitted to a jury.
    (Syllabus by the Court.)
   John Henry Prather, and Bud Johnson, James Holmes, Charlie Posey and Elijah Turner, were jointly informed against by the county attorney of Oklahoma county for the crime of murder alleged to have been committed on the 9th day of March, 1911, by shooting one W. H. Archie, with the premeditated design to effect the death of him the said W. H. Archie, and of which mortal wound so inflicted the said W. PI. Archie did then and there die. '

Said information was presented and filed in the district court of Oklahoma county, on March 16, 1911.

The defendant, John Henry Prather, was arraigned in open court on March 11, and it being made to appear to the court that said defendant was unable to employ counsel, the court appointed William Harrison, an attorney, to defend him, and allowed-time to plead.

On March 22, the defendant John Plenry Prather entered his plea of -guilty. April-24, 1911, was fixed by the court as the time for pronouncing judgment and sentence upon'said defendant.

On April 24, 1911, the court, upon considering said plea of .guilty entered by the defendant John Henry Prather, pronounced its judgment and sentence as follows: '

“It is therefore ordered, adjudged, and decreed by the court that the said John Henry Prather be executed by being hanged by the neck until he is dead, and that such execution shall take place on Wednesday, the 21st day of June, 1911, between the hours of 10 a. m. and 2 p. m. of said day, within the walls of the county jail, or within the jail-yard of the county jail of Oklahoma county, Oklahoma, or'some other private and convenient place within the said county and state, and that he be and is now remanded to the custody of the sheriff of Oklahoma county, state of Oklahoma, to be by him closely confined within the walls of the county jail of Oklahoma county, Oklahoma, until the day of execution,' when, and where he is to remove him for the purpose of carrying out the full judgment of this court, and that the clerk of the district court in and for Oklahoma county, Oklahoma, issue a warrant directing the full execution of the judgment and sentence in this behalf, against the said defendant John Henry Prather, and the said sheriff of Oklahoma county, Oklahoma, is directed and required to execute said warrant with dispatch and in the manner and form required by law, and see to it that the said defendant John Henry Prather at the time arid place aforesaid is so hanged by the neck until-he is dead. And' that the clerk of said court and the said sheriff of Oklahoma county, Oklahoma, issue and give all due and .proper notice.
“Whereupon the court notifies the defendant John Henry Prather of his right of appeal.
“W. R. Tayeor, Judge.”

Upon a judgment and sentence of death the provisions of the statute require (sec. 6927, Snyder’s Stat.):

“The judge of the court at which a conviction requiring a judgment of death is had, must immediately after the conviction, transmit to the Governor, by mail or otherwise, a statement of the conviction and judgment, and of the testimony given at the trial.”

Sec. 6928, Snyder’s Stat.:

“The Governor may thereupon require the opinion of the judges of the Criminal Court of Appeals, or any of them, upon the statement so furnished.”

In accordance with the requirement of the statute, the clerk of the district court made a certified statement of the conviction and judgment, and the presiding judge of the court, Hon. W. R. Taylor, transmitted the same to the Governor.

On May 24, 1911, the Governor presented for the consideration of this court the transcript of the record, requesting the opinion of the judges of this court as required by the statute. To this inquiry the following reply was returned:

OPINION OF THE JUDGES:

To his Excellency, Lee Cruce,

Governor of Oklahoma.

The judges of the .Criminal Court of Appeals responding to your official communication of the 24tl>inst., which presents for the consideration of the judges of the court a certified copy of the record of the conviction of John Henry Prather, who was on April 24, 1911, by the judgment of the district court of Oklahoma county, sentenced to death upon his plea of guilty of murder, which' judgment and sentence is that such execution shall take place on Wednesday, the 21st day of June, 1911, with the request that we give an> opinion thereon as prescribed by sec. 6928, Snyder’s Stat., we hereby respectfully submit the following opinion of the judges:

From an examination of the records of this court we find that 'no appeal has been taken in said cause. As we view the law, this provision of the statute (sec. 6928, Snyder’s Stat.) contemplates an advisory opinion of the judges where an appeal has not been taken from a judgment and sentence of death.

“The proposition then presented would be, has there been an observance of all the formalities of the law essential to the taking of human life? Or has the trial, conviction, and sentence of death been in accordance with the law of the land?” (Opinion of the Judges, 3 Okla. Cr. 315.)

Upon a careful examination of the record we find that the information sufficiently and correctly charges the crime of murder. The defendant had the benefit of counsel, and the record shows that said defendant made a voluntary written confession which details the facts of the murder of W. H. Archie, as charged in the information, wherein defendant states that after he and his codefendants robbed said Archie, he, the defendant, with a forty-four caliber revolver, shot him.

The record further shows that this defendant being called as a witness on the tidal of his codefendants, and being first duly sworn, testified that he held the revolver in his hand when it was discharged. On cross-examination he stated that he had been convicted of a felony and served a term of imprisonment in the penitentiary.

Without considering this defendant’s admissions and confessions of guilt, his testimony as a witness is alone conclusive, of his guilt of the crime charged.'

Sec. 2275, Snyder’s Stat., provides:

“Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment (or information) for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same.”

The sole question presented for our consideration is whether, according to a proper judicial construction, the concluding clause of the above section authorized the district court to pronounce and enter a judgment of death upon the defendant’s plea of guilty, or whether, on the contrary, it is necessary under the statute to submit the question whether he shall be punished by death or imprisonment for life at hard labor to the discretion of a jury.

There is no reason why this provision of the statute is not constitutional and valid. A conviction of crime may be had in three ways; either by the verdict óf a jury, or by findings of fact by the judge where a jury is waived (sec. 20, art. vii, Const.), or by a plea of guilty. Where a defendant who is indicted or informed against for a capital crime in a court of competent jurisdiction pleads guilty, the court is authorized to pronounce judgment and sentence against such defendant according to law. The authority thus granted is not in any degree affected or controlled by the previous provisions contained in said section 2275, Snyder’s Statutes, that:

“Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury.”

And that: •

“Upon trial of an indictment for murder, the jury, 'if they find the defendant .guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith.”

The foregoing provisions apply only to cases where there is a trial upon an indictment or information for murder on a general plea of not guilty.

It is evident that the foregoing provisions of our criminal code were not designed to abrogate the well-established rule of the common law, by which a party' indicted for an offense, however grave its nature, may enter a plea of guilty thereto, if he sees fit so to do. In such cases there is no issue to be submitted to a jury on which a verdict can be founded. All that the court is required to do is to render judgment and pass the sentence of the law affixed to the crime.

The record shows that the defendant John. Henry Prather is guilty of a wanton and deliberate murder. It would seem that never was a murderer more guilty. All good citizens must acknowledge the justice of the penalty of the law in such a case.

We are of opinion that the defendant John Henry Prather has been adjudged to suffer the just penalty of the law in the manner prescribed by law, and upon his trial the formalities of law essential to the taking of human life have been fully observed.

Very respectfully,

The-Criminar Court oe Appears.

Opinion by DOYEE, J.; FURMAN, P. J., and ARMSTRONG, J., concur.


author: ARMSTRONG, J.

text:
    ROBERT BROCK v. STATE.
    No. A-589.
    Opinion Filed June 6, 1911.
    TRIAL — Instructions—Definition, of Offense. It is the duty of the trial court to instruct the jury as to the law of the case on trial, and this includes a definition of the offense sufficient to inform the jury what facts are necessary for the proof to establish in order to justify them in finding a verdict of guilty, and when this is not done a conviction had will be set aside.
    (Syllabus by the Court.)

      Appeal from District Court, McClain County; R. McMillan, Judge.

    Robert Brock was convicted of assault with intent to rape, and appeals.
    Reversed and remanded.

      Ben F. 'Williams, Jr., H. R. Jacobs, C. T. Rice„ and S. A. Horton, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for defendant in error, ant in error.
   ARMSTRONG, J.

Plaintiff in error was. convicted at the February, 1999, term of the district• court of McClain coun-c ty on a charge of assault with intent to commit rape, and sentenced to three years in the penitentiary.

There are many assignments of error urged for a reversal of this cause, most of which appear to be well taken but involve questions that have been passed upon heretofore. Only one of the assignments we find, necessary to consider, to wit, the assignment to the-effect that the court erred in not defining in his instructions to the jury the offense alleged in the indictment. There is only one instruction in the record which indicates that the court intended in any way to define the crime charged. This instruction is as follows:

“You are told that rape is serious felony, one of the gravest 'kind, and an assault upon a female to commit rape is also a felony, and that every person who is guilty of an assault with intent to commit rape is guilty of a felony.”

There is nothing in this charge to indicate to the jury what facts they must find true before they can find a verdict of guilty. That the trial court must define the offense charged is elementary. It is his duty to instruct as to the law of the case, and this includes a definition of the offense in the language of the law sufficient to inform the jury what facts are necessary for the proof to establish in order to justify the finding of a verdict of conviction.

The policy of the law is that all persons shall have a fair and impartial trial. It cannot be said that a fair and impartial trial has been had unless the jitry has been properly instructed as to the law of the case, and when the instructions do not fully present all the material issues raised, the judgment of conviction must be set aside.

The instruction of the court, quoted supra, does not even attempt to define the offense charged, or inform the jury what essential propositions must be established by the proof in order to justify the verdict of guilty. The saying by the court that a certain offense is a serious felony certainly does not help a jury in determining the issues.

, There are other errors urged, but we do not consider them material to the issues in this case; most of them are merely incidental to the trial and are not likely to occur on a re-trial of this cause.

The judgment is reversed, and the cause remanded for a new trial,

FURMAN, P. J., and DOYLE, J., concur.


text:
    ED BOWMAN v. STATE.
    No. A-628.
    Opinion Filed June 6, 1911.

      Appeal from County Court, Tulsa County; N. J. Gubser, Judge.

    Ed Bowman was convicted of violating the prohibitory law, and appeals.
    Reversed and i-emanded.

      Ramsdale & Brown, for plaintiff in error.

      Smith C. Matson, Asst. Atty. Gen., for defendant in error.
   PER CURIAM.

Plaintiff in error was tried in the county court of Tulsa county, on the 6th day of December, 1909, on a charge of selling intoxicating liquor, the allegation in the information being that one J. F. Thompson and plaintiff in error sold one half-pint of whisky. On the 10th day of December he was sentenced by the court to pay a fine of five hundred dollars and costs, and be confined in the county jail for six months.

Two witnesses were introduced on behalf of the state, and none by the defendant. The first witness was Tom Laster, his testimony in. chief being as follows:

“Q. You state, Mr. Laster, that the first time you saw Mr. Bowman was about eight o’clock on the night of September 16th, sitting in front of the door of a restaurant on Main St. in the city of Tulsa. You have also stated that you went into this restaurant two different times that night, and bought a half-pint of whisky on one occasion, and then went back again, at which time you arrested the man Thompson, and Thompson called the defendant into the restaurant. Is that right? A. Yes, sir. Q. State, if anything, what was said. A. Thompson said, 'This fellow says he is a deputy sheriff, and has arrested me; and Bowman ■says, T can’t help iti’ Q. What happened then? A. I held him for a few minutes and Mr. Newblock came from across the street, and we went back of the stove to see if we could find any more whiskey, but couldn’t, so brought him to jail. Q. Where was Bowman at that time? A. In the building. Q. I will ask .you how much whisky you bought of Thompson? A'. A half a pint and arrested him with a‘bottle in his hand ready to sell it. (Defendant objects to this and moves that it be stricken out. Motion sustained. ) Q. Do you know what he was going to do with the other bottle that he had in his hand? (Defendant objects to the question as calling for a conclusion of the witness. Objection sustained.) Q.'You say he had a bottle in his hand, Mr. Raster? A. ■Yes, sir. Q. State whéther there had been any conversation concerning that bottle. A. Yes, sir. I asked him if he had any more whisky. He says, ‘Yes, how much do you want?’ I say, ‘A half-pint.’ Q. What did he do then, if anything? A. Went- behind the bar and got it and laid it upon the counter and still had his hand on it when I took hold of him and arrested him. Q. Was anything paid for that half-pint of whisky? A. Not for that one. Q. Did you pay for any half-pint bottle? A. Yes, sir; I paid fifty cents for the first one. Q. What county did this take place in? A. Tulsa county. Q. What year? A. 1909. Q. What month? A. September. Q. What day of the month? A. 16th.”

The second witness, D. F. Pettis, testified ,as follows:

“Q. State your name? A. D. F. Pettis. Q. Where do you live? A. Tulsa, Oklahoma.. Q. What is your business? A. I am in the real estate business. Q. Do you know Ed Bowman? A. Yes, sir. Q. Mr. Pettis, I will ask you if you know where the defendant Ed Bowman had a place of business during the month of September, this year? A. Yes, sir. Q.-. Just state to the jury where it was? A. It was on north Main street by the Brady hotel. Between there and the next brick building .up this way on part of lot 1, I believe, block sixty. Q. What sort of a building was it? A. A little frame or box building. Shanty we call it. Q. Which side of the street was it on?’ A. On the west side of the street’ fronting east. Q. How far from the Moore hotel? A. About one hundred and twenty-five feet. Q. On which side of the street with reference to that? A. On. the same side of the street. ’Q. Did you own the property? A. No. Q. Have it in charge? A. Yes, sir. I was agent. Q. Did you know who collected the rent from it in August? A. I collected the rent for the ground. Didn’t have charge of the building. Q. Who did you collect the rent for the ground from? A. Ed Bowman. Q. When did he pay it? A. During the month of September. There was some back rent due and he paid me about the 13th of September for the balance of August.' That was all I got. That is, at that time. Q. Do you know how long he had been paying that ground rent there? A. About a year. Q. Was there any other piece of property that he paid you rent for in that block? A. No, sir. Q. That is the only one? A. Yes, sir.”

It is clear from the foregoing testimony that Thompson sold the witness the whisky in question. There is nothing whatever in the record connecting Bowman with the sale or with Thompson’s business. The judgment is wholly unsupported by the evidence.

This cause is reversed and remanded.