text:
    M. M. DAY v. STATE.
    No. A-7683.
    Opinion Filed March 14, 1931.
    (296 Pac. 987.)
    King & Crawford and Tom D. McKeown, for plaintiff in error.
    J. Berry King, Atty. Gen., and Edward Crossland, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pontotoc county of manslaughter in the first degree, and his punishment fixed at four years in the state penitentiary.

The homicide occurred in September, 1926. A preliminary examination was held. The magistrate made a finding of probable cause of manslaughter, and transmitted his order of commitment and the record of the proceedings to the district court in the latter part of September. Defendant was admitted to bail. The informa1 tion based on said preliminary was not filed until October 17, 1927, more than one year after the filing of the order and transcript. Defendant filed a motion to dismiss. The state did not attempt to make a showing of good cause for the delay in filing the information. The motion was overruled and the action of the court assigned as error here.

Section 2912, Comp. Stat. 1921, reads:

“When a person has been held to answer for a public offense, if an indictment or information is not filed against him at the next term of court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

This statute, with section 2913, Comp. Stat. 1921, [gives effect to article 2, § 20, of our Constitution, which guarantees to a defendant a speedy trial. Petitti v. State, 11 Okla. Cr. 234, 145 Pac. 305; Ex parte Menner, 35 Okla. Cr. 253, 250 Pac. 541; Harris et al. v. Ogden, 44 Okla. Cr. 418, 281 Pac. 316.

In the Petitti Case, supra, defendant was charged with ^ arson in December, 1910. He was held for action of the \ superior court; the next term being on the first Monday in January, 1911. The transcript of the justice of the peace was not filed until July 30, 1911, and the information was not filed until November 21, 1911. A motion to dismiss was filed, and the state attempted to make a showing of good cause for the delay, as provided for by section 2912, supra. The trial court overruled the motion, but this court held that the showing of good cause was insufficient, reversed the case, and ordered a dismissal. In the case before us, the record is not as favorable for the state as v in the Petitti Case. It can hardly be argued that one charged with crime and held at a preliminary examination for action of the district court is required to demand that an information be filed against him in order to secure his constitutional right to a speedy trial. There is a difference between a demand for a trial by an accused on bail after he has been formally charged in a court where a final trial can be had and a case such as the instant case, in which no information has been filed upon which a final trial can be had. As in the instant case, there was no charge pending upon which a trial could be had and consequently a demand for trial could be made. Where no attempt to show good cause is made, such a delay in filing information as appears from the record before us is inexcusable. We must follow the plain mandate of the law.

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

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


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    DALE STOKES v. STATE.
    No. A-7698.
    Opinion Filed March 14, 1931.
    (296 Pac. 987.)
    John W. Whipple, for plaintiff! in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was convicted in the county court of Payne county of having possession of intoxicating liquor, to wit, one quart of whisky, with the unlawful intent to sell, barter, give away, and otherwise furnish the same to others, and his punishment fixed at a fine of $50, and imprisonment in the county jail for a period of 30 days. From which judgment the defendant appeals.

Petition in error and case-made were filed in this court on the 25th day of October, 1929. No further appearance has been made by the plaintiff in error, nor any further extension asked for time to file brief in support of the assignments of error.

Where no brief is filed and no* personal appearance made, the court presumes that the appeal is without merit or has been abandoned. We have carefully examined the record and find the information properly charged an offense; that the defendant was accorded a fair and impartial trial; that no fundamental or prejudicial errors appear in the record.

The judgment of the trial court is affirmed,

EDWARDS and CHAPPELL, JJ., concur.


author: PER CURIAM.

text:
    ED PULLIAM v. STATE.
    No. A-7714.
    Opinion Filed March 14, 1931.
    (296 Pac. 986.)

      Mauntel & Spellman, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant was convicted in the county court of Woods county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the court at a fine of |50 and imprisonment in the county jail for 30 days.

The evidence of the state was that the officers had a search warrant and searched the premises of the defendant, but did not find any intoxicating liquor in or about the house; that defendant’s bam was on one side of a dim road and the house on the other side; that the officers found a gallon of wine, two quart jars of whisky, and three pint bottles of whisky buried in holes in the ground by the side of the road about 50 or 75 yards from defendant’s house and outside of the fence along the road; that while the officers were there making the search, three different cars drove up to defendant’s place and were detained by the officers, but nothing was said or done by these parties towards buying intoxicating liquor.

Defendant, testifying, denied that he owned the liquor or knew anything about it being there, and called his banker at Capron and other citizens who- testified to his good character.

While the finding of the liquor under the circumstances and the coming of the cars to- defendant’s house were all suspicious circumstances, yet they fall far short of proving; the defendant guilty of the charge of possession of intoxicating liquor with intent to sell the same.

The evidence being insufficient to support the verdict of the jury, the cause is reversed.


author: EDWARDS, J.

text:
    ENOCH GOODBARRY v. STATE.
    No. A-7689.
    Opinion Filed March 14, 1931.
    (296 Pac. 985.)
    R. R. Rittenhouse, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, | Asst. Atty. Gen., for the ¡State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of stealing a cow, and his punishment fixed at two years in the state penitentiary.

The evidence of the state is circumstantial and, briefly stated, is that at the time charged a cow was stolen from the lot of one Brown near the town of Carney. On the night of the theft, defendant was seen driving a Chevrolet coach with a trailer attached, which trailer was fitted with high sideboards such as is generally used for hauling cattle. The person who hauled the cow away from Brown’s place was seen to leave there with this automobile and trailer and was followed from that place to a point south of Chandler on the Meeker road. The next morning the stolen cow was found on the premises of a farmer about two* miles south of Chandler on the Meeker road and the trailer was found on the premises of another farmer near by. Apparently the thief knew he was being followed and adopted this method of escaping detection. The trailer was identified as the property of a man named Soward, from whom defendant had borrowed it. There are other incriminating circumstances not detailed. No evidence was offered by defendant.

It is contended that the evidence is insufficient. We do not SO' read the record. There is ample evidence to sustain the verdict and judgment.

Complaint is made that the court permitted a witness to testify that shoes taken from the person of defendant against his will were placed in certain tracks at the scene of the crime and that they fitted. This, defendant contends, is in violation of article 2, § 21, of the Constitution, in forcing him to give evidence tending to incriminate himself. No authorities in support are cited. The question is not a new one. In Ricketts v. State, 23 Okla. Cr. 267, 215 Pac. 212, this court held:

“Forcibly taking shoes from a defendant under arrest for purposes of comparison of footprints does not violate his constitutional right not to be compelled to give evidence against himself.
“The constitutional provision against unreasonable searches and seizures does not prevent the introduction of evidence of a comparison of footprints with shoes forcibly taken from one accused of crime. * * *
“It is contended that the court erred in admitting the testimony of the witnesses as to the result of fitting the defendant’s shoes with the tracks found near the place where the theft was committed, in that the action of the sheriff in compelling the defendant to tahe off his shoes was in violation of the constitutional provision that ‘no person shall be compelled to- give evidence which will tend to incriminate him’ (Const, art. 2, § 21), and also of the constitutional provision that ‘the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be • violated’ (Const. art. 2, § 30) — citing State v. Sirmay, 40 Utah, 525, 122 Pac. 748, and Davis v. State, 131 Ala. 10, 31 So. 569. * * *
“After careful investigation we have reached the conclusion that the evidence in question was properly admitted. The history of the constitutional provision referred to clearly demonstrates that it was not intended to reach a case like this. Story’s Constitutional Limitations, § 1788.”

In Magee v. State, 92 Miss. 865, 46 So. 529, 532, it is said:

“There has been great confusion in some courts on this subject; but we do not see how it it possible, logically, to sustain an objection to compelling the defendant simply to put his foot in a track for the purpose of identification on the ground that he was privileged by the constitutional provisions referred to against being compelled to testify or to give evidence against himself. He is not, in such cases, giving evidence. He is not testifying as a witness. He is not delivering any testimonial utterance.”

See, also, section 2263, p. 3123, Wigmore on Ev.; Morris v. State, 124 Ala. 44, 27 So. 336; State v. Fuller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A. (N. S.) 762, 9 Ann. Cas. 648.

There was no error in the introduction of this testimony. No- other question calling for any special discussion is presented.

The case is affirmed.

DAVENPOET, P. J., and CHAPPELL, J., concur.


text:
    O. G. PHILLIPS v. STATE.
    No. A-7704.
    Opinion Filed March 14, 1931.
    (296 Pac. 996.)
    Tom Finney, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to- as the defendant, was convicted of the crime of murder, and his punishment fixed at life in the state penitentiary, from which judgment and sentence the defendant has appealed.

The state, in order to sustain the allegations in the information, introduced the following testimony in substance :

J. C. Settles stated:

“I live IV2 miles south of Idabel; I knew Willie Young in his lifetime; I knew the defendant; I knew when Willie Young was killed in March, 1924; Willie Young was killed at the Butler-Jones Store, at Boss, Okla.; this store is known as the Claibourn Butler Store; I was working in the store, and had been to dinner and came back to the store; Willie Young bought some coal oil and tobacco; Willie Young was on the north side of the store and Phillips on the south side when the shooting started; there were two doors on the west side and one on the east side of the building; Young was not in the store when I left to eat my dinner; when the shooting started, Young was sitting on a box on the north side smoking; I had been in the store four or five minutes when the shooting started; when I returned to the store the defendant was leaning against a counter near the southwest door, about six feet, from Young; no words passed between Phillips and Young that I heard; as I passed between the parties I saw Phillips; he did not do anything as I passed; immediately after I passed between them the firing began; I did not look around when it started; when I did look around I saw Phillips almost between me and Young, going around back of the stove, had his gun pointed at Young; Young was in the act of getting up, with his hands to his bosom; I ran out of the store, when the firing ceased I came back and met Phillips on his way out; I don’t know how many shots were fired they were fired so rapidly; I left the building by the north-Avest door and returned by the same door; as I returned, I met Luther Jones and George Galbert; when I got back Young was lying on his face against the southwest door; I saw three Avounds on the body, one being on the lower part of the breast, one on the left side of the nose betAveen 1 the eyes, and one near the left ear. I did not see the defendant, Phillips, any more until he was brought down for the preliminary examination.”

On cross-examination, the witness testified that the defendant Phillips was working for Olaibourn Butler, and had his room at the Butler house, which was between 50 and 75 yards from the store; there was nothing said by either of the parties before the shooting — “The shooting commenced almost at the time I passed between the parties; when I looked around, Young’s hands was to his bosom; he was in the act of getting up. I left before the firing ceased.”

Luther Jones testified, in substance:

“I was in the store the time Willie Young was killed; bad been there about 15 minutes; when I reached there Willie Young was there; I had not been there very-long until Phillips came in; I heard no conversation between the parties when the shooting commenced; Willie Young was sitting on a keg when the first shot was fired; just before the first shot was fired the defendant, Phillips, was behind the heater; Settles passed me and picked up a box and walked between Phillips and Young; the shooting began; I could see both Phillips and Young; I did not see Phillips pull his gun, but I saw it when it was up; Young was not doing anything at the time, just sitting on a keg.”

On cross-examination, witness testified, in substance, to the same facts as on direct examination.

George Galbert, called as a witness on behalf of the state, testified, in substance, the same as Luther Jones.

The defendant in his own behalf stated:

“I am 28 years old; I was raised near Foreman, Ark.; I made a crop with Cliff Ball in 1923; before it was out I left and went to Texas; I have been in Henryetta Lang-ston’s company; I returned from Texas about cotton picking time and picked cotton with Cliff Ball; I was acquainted with Willie Young; when I returned from Texas I had a conversation with Willie Young about Henryetta Langston; Willie Young asked me if I had quit Henryetta and I told him I had; he said he was glad, of it, that he did not want to go out with a woman some one else was going with; I heard Young and Henryetta was going together; Henryetta was Ode Stewart’s sister-in-law, and was staying there at Ode’s place; Willie Young lived on Ode’s place; about a week prior to the killing I saw Henry-etta on the Fish Lake; I went to where she was and stayed there about 25 minutes; the following Sunday I passed by Willie Young’s place, and Young stopped me and asked me where I was going, and I told him; he said, ‘No, you are not, you are going to Odes and lay around with Henry-etta/ and I said /No/ he said, ‘I heard you had been lying around on the lake with Henry etta; Young said, ‘If I find out you have I am going to kill you/ I saw he was mad, and I rushed away; I turned and waded the lake and home home; I next saw him down where I was plowing the following Monday, in the bushes; I did not have any talk with him; I went to work in the field that afternoon and took my pistol with me to protect myself; this trouble took place on the 13th of March, 1924; I had my dinner and went to the store to get a box of snuff; I saw Mr. Settles when he went into the store; when I went in I spoke to the congregation, and they all spoke but Willie; when Mr. Settles walked between us, Willie Young raised up like he was getting something out of his overalls, and I commenced shooting; about the time I started shooting, Young jumped up in a stooping position, going into his overalls; when Young got up he was coming toward me, and the shooting was done all at once; Young, fell at the southwest door; I went around him and went out; I ran off and went to Texas, and came back to Oklahoma to give up; after I returned, I got scared and went to Arkansas.”

On cross-examination, he admitted he told the officers that were bringing him back from Arkansas that he had not been back to Oklahoma since he killed Young.

Henry McCullough, called as a witness for the defendant, testified:

“I saw some one pass around the Lake near my place; in about a half an hour Willie Young passed and asked how long it had been since O. Gr. Phillips passed, and I said, that I did not know whether he had passed or not; he stopped by the fence a while and went away; he did not act like he was mad.”

Lela McCullough testified for the defendant that on Sunday before Young was killed she saw some one pass their place and later on Willie Young passed through the yard; “I did not understand what he said.”

J. R. Jones, testifying on bebalf of the defendant, stated:

“I went down to the store where the killing took place; I turned the body of Willie Young over and found a thirty-two automatic pistol; the best I remember it was either in the front pocket or the hip pocket; I rather believe it was about the hip pocket; I just saw the back part of the handle; there were two1 or three negroes there and I got the gun.”

The undersheriff, S. R. Bryant, testified to being present and finding an automatic pistol on the body of the deceased; “I think it was in the hip pocket.” Several other witnesses testify to being present at the store and seeing an automatic pistol taken off the person of the deceased. This is in substance the testimony.

Several errors are assigned by the defendant as grounds for a reversal of this case. The only error necessary to be considered is assignment No. 1, that the court erred in overruling motion for a new trial filed by plaintiff in error. The testimony in this case is slightly conflicting. The testimony of the state all tends to show that the defendant shot the deceased while the deceased was sitting on a keg, and that no words passed between them so< far as any of the witnesses knew.

The only conflict in the testimony is in the defendant’s testimony wherein the defendant states he thought the deceased had gone to his bosom for the purpose of drawing a pistol to shoot him at the time he fired the shot.

The testimony shows that after the shooting was over there was found on the body of the deceased an automatic pistol. Under the testimony in this case, the jury had an opportunity to consider its weight and the credibility of the witnesses; their interest or lack of interest in testifying; their means of knowledge and demeanor on the witness stand; and, after considering all of these facts, they found the defendant guilty of murder and assessed his punishment at life imprisonment.

The evidence is sufficient to sustain the judgment. After an examination of the instructions we hold they correctly stated the law as applied to the facts in the case. No fundamental or prejudicial errors appear in the record.

The judgment is affirmed.

CHAPPELL and EDWARD,S, JJ., concur.


author: DAYENPORT, P. J.

text:
    FLOYD JENKINS et al. v. STATE.
    No. A-7836.
    Opinion Filed March 14, 1931.
    (296 Pac. 995.)
    R. D. Miller, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the iState.
   DAYENPORT, P. J.

The plaintiffs in error, hereinafter referred to as the defendants, were each convicted of possession of intoxicating liquor with intent to sell, barter, give away, and otherwise furnish the same, contrary to law; and each was sentenced to pay a fine of $50 and costs and be confined in the county jail for 30 days. From which judgment the defendants have appealed.

Before the case was called for trial the defendants filed a motion to suppress the evidence against them on the ground that the same was secured by an unlawful search and seizure made upon the defendant L. E. Certain’s barn, without his consent, and is violative of article 2, sec. 30, of the Constitution of Oklahoma, and is contrary to the rule announced in Noble v. State, 44 Okla. Cr. 214, 280 Pac. 476. This motion was overruled, and the defendants duly- excepted.

The testimony of the state tends to show that the defendant L. E. Certain was occupying the barn searched by the officers with his teams, and other property, and that the defendant Floyd Jenkins was an employee of his, helping to drive the teams and to take care of them; that the defendants Certain and Jenkins were at the barn the evening the officers came by; the officers admit they had no warrant for the arrest of either of the defendants or to search the defendant’s tarn; they went into the barn lot and into' the barn without the consent of the defendant, who was in the rightful possession of the barn, and occupying the same with his property, and searched the same, and had not at the time of making the search placed either of the defendants under arrest. Both of the officers admit, at the time they went into the barn to search, neither of the defendants was violating any law so far as they could see; they had not arrested either of the defendants until after they went into the barn, and into the harness room of the barn and found a quantity of what the officers say was whisky.

Section 7014, C. O. S. 1921, provides in part as follows :

“When a violation of any provision of this chapter shall occur in the presence of any sheriff, constable, mar-shall, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor,” etc.

There is nO' testimony that either of the defendants violated any law in the presence of the officers. In Whitford v. State, 35 Okla. Cr. 22, 247 Pac. 424, this court in the first paragraph of the syllabus, said:

“Where the offense is not a felony, an officer cannot arrest without a warrant, unless the offense was committed or attempted in his presence.”

The court further said in the second paragraph of • the syllabus:

“Where the officer does not know of the act constituting the offense it is not committed in his ‘presence.’ ”

There is no contention on the part of the state that either of the defendants was committing an offense in the presence of the officers. Under the testimony in this case the search of the barn of the defendant Certain without a warrant for the arrest of the defendants, or a search warrant, was an unlawful search, and the testimony secured by said unlawful search is inadmissible.

The motion of the defendants to suppress the evidence was well taken and should have been sustained. There being no competent testimony to sustain the judgment, the case is reversed.

CHAPPELL and EDWARDS, JJ., concur. -


text:
    BERTHA McHENRY v. STATE.
    No. A-7733.
    Opinion Filed March 14, 1931.
    (296 Pac. 994.)
    L. L. Mosher and T. J. Lillard, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, svas convicted of having choctaw beer, with intent to sell, barter, give away, and otherwise furnish the same in violation of the prohibitory Jaws, and was sen fen cod to'pay a line of $125. and be imprisoned in the county jail for 30 days. Prom the judgment, the defendant has appealed to this court.

The testimony on behalf of tlie state is, in substance, as follows:

Charley Allen testified he was chief of police in the town of Wagoner on the 22d day of July, 1929; that he with other parties went down near the defendant’s home and claims to' have seen the defendant starting to deliver a sack of home brew to1 Paul Thompson; there were about 40 bottles in the sack; “I confiscated the choc beer and took it to the city hall.”
“Q. Could you tell whether it was intoxicating? A. It is generally supposed that it was intoxicating; after I took it to' the city hall a lot of it blew up.
“By the Court: Could you tell whether it was intoxicating or not? A. Yes, sir, it was fermented enough to cause the bottles to explode.”

The question of the court was objected to by the defendant. The court did not rule on defendant’s objection.

On cross-examination, witness stated that there were about 40 bottles of choc beer; that he destroyed it; “I threw the bottles against the city hall and broke them; did not take them to’ the county jail.”

Bill Price was called on behalf of the state, and testified he was with Mr. Allen, chief of police, on July 22, 1929, when he arrested Bertha McHenry; she had a sack of home brew bottles taking them to- some fellow in a car; she had hold of the sack taking it to' the parties when Mr. Allen arrested her. On cross-examination, witness stated that the choc beer was brought to town. This is all the testimony introduced on behalf of the state.

At the close of the state’s testimony the defendant made the following motion:

“The defendant moves that the evidence of these witnesses be suppressed and held for naught and the case be taken from the jury, or that the jury be instructed to> return a verdict in behalf of the defendant.
“The state has failed to introduce evidence sufficient to prove that the stuff, or choctaw beer, was intoxicating. There is no evidence before this court or before the jury that the choctaw beer was intoxicating.
“The Court: That is for the jury to determine.”

Which motion was overruled, and the defendant duly excepted. No testimony was introduced on behalf of the defendant.

The first assignment of error presented by the defendant is the court erred in overruling the motion for a new trial filed in said cause on her behalf. This assignment is the only assignment that it is necessary to' consider, as the motion for new trial covers the questions raised in the trial of the case. The view we take of the record it is only necessary to consider the question of the insufficiency of the evidence. The state failed to produce any testimony showing that the choc beer was intoxicating or that it contained more than one-half of 1 per cent, of alcohol measured by volume. There is an entire failure of proof on the part of the state that the contents of the bottles the officers confiscated contained sufficient alcohol to come within the provisions of our statute regulating intoxicating liquors. This court has passed upon this question so many times that it is not deemed necessary to refer to all the decisions of the court. A few of them will suffice to show the former rulings. Richardson v. State, 21 Okla. Cr. 393, 208 Pac. 1052, 1053; Gill v. State, 20 Okla. Cr. 39, 200 Pac. 882; Blue v. State, 21 Okla. Cr. 156, 205 Pac. 774.

The rule announced in Richardson v. State, supra, was recently reaffirmed by this court in the case of Terrell v. State, 43 Okla. Cr. 388, 279 Pac. 365. The evidence is insufficient to sustain the allegations in the information.

The judgment of the lower court is reversed.

CHAPPELL and EDWARDS, JJ., concur.


author: CHAPPELL, J. DAVENPORT, P. J.

text:
    A. M. BROWN v. STATE.
    No. A-7666.
    Opinion Filed Feb. 28, 1931.
    Dissenting Opinion Filed March 16, 1931.
    (296 Pac. 989.)
    T. H. Davidson and Wm. P. Thompson, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county of the crime of embezzlement, and his punishment fixed by the court at imprisonment in the state penitentiary for 18 months.

Defendant contends, first, that the court erred in overruling his motion to quash and set aside the information, for the reason that no legal preliminary had been held.

The complaint was filed with the magistrate on the 13th day of April, 1929, and on the same day a warrant was issued and the defendant arrested and brought before the court, at which time he made bond and was enlarged pending preliminary examination. On the 20th day of April, the state had its subpoenas issued for its witnesses. The cause came on for hearing on the 25th day of April, on which day, and just a few minutes before the case was called for hearing, the defendant filed his application for a change of venue, alleging “that said defendant has reason to believe and does believe that he cannot have a fair and impartial examination before Charles Wheeler, judge of the city court herein,” and prayed therein that said cause be transferred to the next nearest justice of the peace of Muskogee county, or to the county judge for further proceedings. This application for change of venue was denied, and the magistrate before whom the complaint was filed proceeded to- hold a preliminary hearing. After the information was filed in the district court, the defendant filed his motion to1 quash the same for the reason that he had not been given a preliminary hearing before any officer authorized by law to hold the same. This motion was overruled by the trial court.

Section 2485, C. O. S. 1921, provides:

“He must also' allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena: Provided, however, that at any time before the examination is begun, a change of venue may be had, for the same causes and in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace.”

To decide the case, it will be necessary to determine what the Legislature meant by the clause:

“At any time before the examination is begun, a change of venue may be had, for the same causes and in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace.”

The causes for a change of venue at the time of the adoption of this statute were:

(1) That the justice was a material witness.

(2) That he could not have a fair and impartial trial on account of the bias and prejudice of the justice against affiant.

(3) If a jury be demanded, that he could not have a fair and impartial trial by jury on account of the bias and prejudice of the people of the district.

This court has always held that the defendant is entitled to a change of venue at any time before the trial is begun, where he files an affidavit alleging that he cannot have a fair and impartial trial or preliminary examination on account of the bias and prejudice of the magistrate. Rea v. State, 3 Okla. Cr. 276, 105 Pac. 384, 139 Am. St. Rep. 954; Neff v. State, 39 Okla. Cr. 133, 264 Pac. 649, 650; Murray v. State, 43 Okla. Cr. 286, 278 Pac. 407.

In Rea v. State, supra, in paragraph 2 of the syllabus, this court said.:

“Section 15, Bunn’s Const., provides that right and justice shall be administered without prejudice. Under this provision, when a motion, properly verified, is made before the tria,'! begins for a change of judge upon the ground of the bias or prejudice of the trial judge, it is the constitutional right of the party making it that it shall be granted.”

Thus early this court recognized the right of a defendant to a change of venue on account of the bias or prejudice of the judge, and held that such right was grounded in section 6, art. 2, of the Constitution, and defendant could not be deprived of the same.

In the case at bar the affidavit of defendant was insufficient to entitle him to a change of venue under section 2485, supra, and the holdings of this court, for the reason that it failed to allege as a ground for such change the bias and prejudice of the magistrate against the af-fiant.

Section 2966, C. O. S. 1921, provides:

“In criminal proceedings a change of place of trial may be had in a cause triable before a justice under the provisions of this article, or upon which a preliminary examination may be held, at any time after the defendant appears, and before any subpoenas are issued, when he or some one for him files an affidavit that he has reasons to believe and does believe that lie cannot have a fair and impartial examination or trial, as the case may be, before the justice or county judge, whereupon She county attorney, or some one for him, may fib- an affidavit alleging the same disqualification against any one justice to whom it is proposed to send the cause for further proceedings, and thereupon the cause shall be sent to the next nearest justice, who1 is in no way related to the defendant or prosecuting witness on party injured wbo is not a witness and bas been an attorney in tbe cause, and wbo may not be absent or physically be unable to act. Tbe parties may agree upon a justice, whereupon tbe cause shall be sent to that justice. But one such charge shall be allowed. No witnesses shall be subpoenaed for either party until after the defendant has been brought before the justice, and been offered an opportunity to- change the venue or has changed it, if he elects to- change, and the date for the hearing has been fixed.”

Under this section, defendant is entitled to a change of venue only where his affidavit is filed before subpoenas are issued for the witnesses, but witnesses may not be subpoenaed until after he has been given an opportunity to change the venue. It appears from the record that the state did not have its subpoenas issued for its witnesses until seven days after the defendant had been arrested, arraigned, and enlarged on bond, and five days prior to the time of the filing of defendant’s affidavit for a change of venue. While it is the constitutional and statutory right of defendant to have a change of venue, the Legislature may by law, within the limitation of the Constitution, regulate the time and manner of exercising such right. Before the defendant is entitled to a change, he must comply with the requirements of the statute.

In Neff v. State, supra, in paragraph 3 of the syllabus, this court said:

“The statute provides the manner of procedure by which a change of venue may be had for a preliminary examination; the requirements of the statute are mandatory and must be strictly construed.”

Under section 2485, supra, defendant may have a change of venue at any time before examination begins by filing an affidavit alleging that he cannot have a fair and impartial examination because of the bias and prejudice of the magistrate; while under section 2966 he does not have to make affidavit that the magistrate is biased and prejudiced against him, but only needs to allege that he has reason to* believe and does believe he cannot have a fair and impartial examination, but must file this affidavit after he has been arraigned and had an opportunity to change the venue and before subpoenas have been issued by the state.

Section 962, C. O. S. 1921, provides for change of venue in civil cases and enumerates the same grounds as have been heretofore held to be constitutional grounds for a change of venue in criminal cases. Sections 2485, 2966, and 962, supra, must be construed together, and when so construed, they are not in conflict with each other and do not violate section 6, article 2, of the Constitution of Oklahoma.

The affidavit of defendant not having been filed within the time required by section 2966, the court did not err in overruling the application for a change of venue.

The defendant next contends that the information is insufficient to charge an offense under the laws of Oklahoma.

The information is the usual one filed in embezzlement cases, and was sufficient to charge the offense of embezzlement.

The defendant next contends that the court erred in permitting the state to introduce a great number of tickets which showed a series of embezzlements of the funds of the Gray Eagle Oil Company.

The defendant was an employee of this company, and was charged with embezzling $6.88 of said company’s funds. The tickets were introduced for the purpose of showing* a plan, scheme, or system of embezzling the complaining company’s money, and under State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807, Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971, and Reeves v. State, 36 Okla. Cr. 409, 255 Pac. 162, were properly admitted in evidence.

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

EDWARDS, J., concurs.

DAVENPORT, P. J.

(dissenting). In dissenting from the conclusions reached by a majority of the court I deem it necessary to state my reasons why I cannot concur in the holding of the court that the affidavit for a change of venue was filed too late, and therefore the motion for change of venue was properly denied by the examining magistrate, and that the motion to quash the information in the district court on the ground that the defendant had not had a proper or legal preliminary examination before a proper legal magistrate as required by law, and other grounds, was properly overruled. Section 6 of article 2 of the Constitution of Oklahoma is as follows:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”

Section 17, art. 7, of the Constitution, is as follows:

“County courts shall also have and exercise the jurisdiction of examining and committing magistrates in all criminal cases. (Bunn’s Ed., sec. 189.)”

Section 17, art 2, of the Constitution, is as follows:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. No person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

As shown by the record in this case, the defendant was arrested on the 13th day of April, 1929, and taken before the examining magistrate and on the same day enlarged on bond and the preliminary set for hearing April 25,1929.

(Sections 2484 and 2485, Comp. St. 1921, read as follows :

“2484. When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also' of his right to waive an examination, before any further proceedings are had.
“2485. He must also' allow to the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon a service of a subpoena: Provided, however, that at any time before the examination is begun, a change of venue may be had, for the same causes and in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace.”

The general presumption is that the courts do their duty; yet in this case the transcript of the record of the examining magistrate purporting to recite what took place when defendant was enlarged on bail is silent as to the magistrate advising the defendants of his rights under sections 2484, 2485, supra.

The transcript further shows that on April 20, 1929, subpoenas were issued for the state’s witnesses, and on the 25th day of April, the day the hearing was to be held, defendant appeared before the examining magistrate, and, before the case was called for hearing, filed the following affidavit, omitting the caption and jurat:

“Comes now the said defendant and asks that a change of venue be granted in this case for the following reason, to wit:
“That said defendant has reasons to believe and does believe that he cannot have a fair and impartial preliminary examination before Charles Wheeler, judge of the city court herein.
“Wherefore defendant prays that said cause shall be transferred and sent to the next nearest justice of the peace of Muskogee county, Okla., or to the county judge of Muskogee county, Okla., for further proceedings herein.”

Section 2966, C. O. S. 1921, reads:

“In criminal proceedings a change of place of trial may be had in a cause triable before a justice under the provisions of this article, or upon which a preliminary examination may be held, at any time after the defendant appears, and before any subpoenas are issued, when he or some one for him files an affidavit that he has reasons to believe and does believe that he cannot have a fair and impartial examination or trial, as the case may be, before the justice or county judge, whereupon the county attorney, or some one for him, may file an affidavit alleging the same disqualification against any one justice to whom it is proposed to send the cause for further proceedings, and thereupon the cause shall be sent to the next nearest justice, who is in no' way related to the defendant or prosecuting witness or party injured who is not a witness and has not been an attorney in the cause, and who may not be absent or physically be unable to act. The parties may agree upon a justice, whereupon the cause shall be sent to that justice. But one such charge shall be allowed. No witnesses shall be subpoenaed for either party until after the defendant has been brought before the justice, and been offered an opportunity to change the venue or has changed it, if he elects to change, and the date for the hearing has been fixed.”

The majority opinion holds that for the defendant to secure a change of venue, under the Constitution, and section 2966, supra, he must file his affidavit before the state has issued subpoenas for its witnesses. With this contention I cannot agree. I do not believe it is within the constitutional power of the Legislature to deprive a defendant of his right to a change of judge, provided he files a proper affidavit before the trial has begun. If the Legislature can abridge or deny the defendant his constitutional right to have his case heard before a judge that is fair and impartial, it can deny him any right under the Constitution guaranteed to him. When defendant filed his affidavit for a change of venue from Judge Wheeler, I insist that Judge Wheeler was without jurisdiction to hear the case, and had no further right to proceed. The only thing left for Judge Wheeler was to certify the case to another magistrate; that any action taken by Judge Wheeler other than to certify the record was void and deprived the defendant of a proper and constitutional preliminary.

The provisions of section 2966, supra, providing that the affidavit must be filed before the state has subpoenas issued, is unconstitutional and void. In this case Judge Wheeler, as judge of the city court of Muskogee, in preliminary matters could exercise no further powers than a justice of the peace or the county judge. In Cress v. State, 14 Okla. Cr. 521, 173 Pac. 854, this court in the first paragraph of the syllabus said:

“Under section 6149, Rev. Laws 1910, a county judge sitting as an examining magistrate loses jurisdiction of a cause pending before him when a legal affidavit for a change of venue is filed. His duty in the case thereafter is purely ministerial, and he can only enter a proper order transferring the cause to another magistrate as the statute provides.”

In Rea v. State, 3 Okla. Cr. 276, 105 Pac. 384, 139 Am. St. Rep. 954, in the second paragraph of the syllabus the court said:

“Section 15, Bunn’s Const., provides that right and justice shall be administered without prejudice. Under this provision, when a motion, properly verified, is made before the trial begins for a change of judge upon the ground of the bias or prejudice of the trial judge, it is the constitutional right of the party making it that it shall 'be granted.”

The court in the opinion of Rea v. State, supra, quotes with approval the case of Day v. Day, 12 Idaho, 556, 86 Pac. 531, 10 Ann. Cas. 260, wherein the Idaho' court construed a similar provision of the Idaho statutes as the provision of the Oklahoma Constitution, and also a section of the Idaho statutes on the subject of a change of venue similar to 2966, C. O. S. 1921. In the Idaho case the court reversed the judgment of the trial court, holding that the provision in the Idaho Constitution was self-operating, and that the Legislature could not legally declare that the bias and prejudice of a judge should be no cause for a change of venue. The case was reversed. This court in Rea v. State, supra, approved the holding of the Idaho court, and said:

“We regard the views expressed by the Supreme Court of Idaho as sound, and we, therefore, hold that under this statute, if a motion for a change of judge, supported by affidavit, upon the ground that the defendant cannot have a fair and impartial trial before the county judge by reason O'f bias and the prejudice of the judge, is made at any time before the trial begins, it comes in time, and should be granted. The limitation contained in the statute that the motion for a change of judge, on the ground of the bias or prejudice or relationship of the judge to a party in interest, must be made before the witnesses are summoned is, by itself, of doubtful validity. Would a judge who was personally interested in the result of a case, or who was related to one of the parties to the cause, become qualified to try the cause merely because an objection to his doing so was not made before witnesses were summoned? If so, then subpoenas for the witness might be issued and served before the defendant had opportunity to make the objection, and thus defeat the mandate of the law. But be this as it may, under section 15, Bunn’s Const. Okla., providing that justice shall be administered without prejudice, a motion for a change of judge upon this ground is in time if made before the trial begins, and the limitation requiring the motion to be made before the witnesses are summoned is in conflict with this provision of our Constitution, and therefore void.”

Our court has cited with approval Lincoln v. Territory, 8 Okla. 546, 58 Pac. 730, 736:

“S0‘, it seems to us that the course of procedure established by the judicial systems of the states and the federal government is the law of the land for Oklahoma, and thus tested, the plaintiff in error was denied a fair and impartial trial. And by an almost unbroken line of judicial decisions it is held that when one accused of crime complies with the provisions of a statute mandatory in its terms, as in the statute in question in the case at bar, the judge is devested of all discretion, and loses all jurisdiction, except to make the order granting the change, and all his subsequent actions are absolutely void. It follows, then, as a matter of course, that the judge who would proceed with the trial after the mating and filing of such an affidavit would do so without power or authority, and the trial would, be a nullity. Therefore we think that not only measured by the weight of reliable authority, but by the principles of equity, justice, and sound law, — measured by the rule of reason, — -the refusal of a change of judge in this case, by the trial court, was error which substantially affected the rights of the defendant, and deprived him of the protection which the law throws around every defendant, and took from him certain constitutional rights.”

The majority opinion cites the case of Neff v. State, 39 Okla. Cr. 133, 264 Pac. 649, 652, as a case in point sustaining the holdings of the court that the affidavit must be filed before the subpoenas issue. An examination of Neff v. State, supra, discloses that the affidavit of Neff asked for a change of venue from the district and county and did not attempt to comply with the Constitution or the statute upon the question of a change of venue from one judge to another in the county; therefore the statement by the court in its opinion, that, “had this affidavit complied with the requirement of the statute, as to setting out grounds of the disqualification, it was not seasonably made as provided by section 2966, above quoted, because it was not filed before any subpoenas had been issued, and it was filed ‘after the defendant’ had appeared, and after he had ‘been offered an opportunity to change the venue.’ ”

This statement of the court was dictum. The question of the compliance with section 2966 was not an issue in the case; therefore I cannot interpret this statement made on a question not in the record in the Neff Case as overruling the holding in Rea v. State, 3 Okla. Cr. 276, 105 Pac. 384, 385, 139 Am. St. Rep. 954, where the direct question was raised that section 2966 violated the constitutional rights of the defendant and the court held that, under the provisions of Oklahoma Constitution, “providing that justice shall be administered without prejudice, a motion for a change of judge upon this ground is in time if made before the trial begins, and the limitation requiring the motion to be made before the witnesses are summoned is in conflict with this provision of our Constitution, and therefore void.”

This opinion has not been overruled by this court in any case in which its constitutionality has been called into question as in this case, and in my opinion is the law in this state. The record fails to show that, when the defendant was arrested and enlarged on bail, the court advised him of his rights to see counsel and to a change of venue. The courts of this country are open to- the rich and poor alike. This court should not presume the court performed its duty when the record does not show the examining magistrate advised the defendant of his rights.

I earnestly insist that the defendant’s motion for a change of venue under the Oklahoma Constitution was filed in time, and that the examining magistrate was without jurisdiction to further proceed with the preliminary after the defendant’s affidavit was filed, and, when he proceeded with the preliminary examination, he violated the constitutional rights of the defendant and denied him of a fair and impartial trial guaranteed him by our Constitution.

I further insist that the motion to quash the information filed by the defendant in the district court was well founded and should have been sustained.

For the reasons stated, this case should be reversed, with directions to the trial court to sustain the motion to quash the information.


text:
    JESS ALLEN v. STATE.
    No. A-7934.
    Opinion Filed March 21, 1931.
    (296 Pac. 1113.)
    Shelton & Shelton, for plaintiff: in error.
    J. Berry King, Atty. Gen., for the .State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Oklahoma county of having the unlawful possession of intoxicating liquor, and his punishment fixed at a fine of |250 and imprisonment in the county jail for a term of 6 months.

The judgment was entered in March, 1930, and the appeal filed in this court in July, 1930. No briefs in support of the appeal have been filed. An examination of the record discloses sufficient evidence to sustain the judgment. No jurisdictional nor fundamental error is made to appear.

The case is affirmed.


text:
    W. A. PECK v. STATE.
    No. A-7184.
    Opinion Filed March 21, 1931.
    (297 Pac. 323.)

      King & Crawford, Trice & Davison, and J. F. McKeel, for plaintiff in error.
    J. Berry King, Atty. Gen., and W. C. Lewis, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Pontotoc county of the crime of altering and falsifying a public record, and his punishment fixed by the jury at imprisoment in the state penitentiary for 30 days.

The evidence of the state was that the defendant was county clerk of Pontotoc county; that the board of county commissioners of said county entered into a written contract with one O. S. Deal to act as delinquent tax collector for said county for a period of two years; that this contract was duly approved and signed by the county commissioners and filed in the office of the county clerk; that the minutes of the board of county commissioners made at the time the contract was entered into' recited that the contract was for two- years; that Deal gave bond in the sum of $5,000 for the term of two years and filed said bond with the county clerk; that thereafter the board of county commissioners entered into a contract with one O. A. Tucker, a brother-in-law of the defendant, as tax collector; that thereafter the defendant exhibited this contract with Tucker to Mrs. Noble Johnson, who was at that time employed as a deputy in the defendant’s office; Mrs. Johnson . stated defendant directed her to erase the word “two” in the minutes of the board' of county commissioners and change the same to “one,” thus making the record read a contract for one year instead of two; that defendant then took the written contract between Deal and the county commissioners and told Mrs. Johnson that, if she was asked about it, she was to say she did not know what became of it; that thereafter this record was further altered by taking the letter “s” from the word “years” in the same record and making this singular to' correspond with “one”; that these erasures and alterations were made by Mrs. Johnson under the directions and orders of the defendant; that she had no interest in any contract and no' reason to make the same except to act in her clerical capacity on the orders of her superior officer; that defendant told this witness at the time the erasures and alterations were made that his brother-in-law would have a profit of $10,000 out of the deal. Defendant denied any knowledge of the contract or particular knowledge of the record claimed to have been falsified or altered, and denied that he ever gave Mrs. Johnson orders to make the changes.

The defendant contends first that the evidence is insufficient to support the verdict of the jury, because Mrs. Johnson, the witness who testified directly to the alteration of the record, was an accomplice, and that she was not corroborated. The evidence is voluminous, and it would serve no good purpose to set it out here.

It is urged by the defendant that the testimony in this case is insufficient to sustain a conviction, for the reason that Mrs. Noble Johnson is an accomplice, and that there was no testimony corroborating the testimony of the accomplice.

We have gone through the record with a great deal of care and find several witnesses testified as to facts showing the making of the contract and filing of same with the county clerk, but we fail to find any testimony corroborating Mrs. Johnson as to the defendant directing, her to make the erasures and changes in the contract as alleged in the information.

Section 2701, C. O. S. 1921, reads as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely, show the commission of the offense or the circumstances thereof.”

The state contends that the witness Johnson was not an accomplice of the defendant in falsifying the record, and for that reason it is not necessary that her testimony be corroborated. With this contention we do not agree, as the record discloses that Mrs. Johnson was acting with the defendant in changing the record, and therefore was in law his accomplice. The question then to be determined by this court is the question as to' whether or not there is any corroboration of the testimony of Mrs. Johnson.

In Cokely v. State, 28 Okla. Cr. 431, 231 Pac. 330, it is held:

“That the evidence of a self-confessed accomplice is insufficient to sustain a conviction.”

In Kelley v. State, 31 Okla. Cr. 51, 236 Pac. 915, the court said:

“To allow a conviction to stand upon accomplice testimony, uncorroborated by other evidence, tending to- connect the defendant with the commission of the offense, would be in direct violation both of the letter and spirit of section 2556, C. S. 1921. The requirement in this respect cannot be satisfied by any amount of corroborative evidence -which, does not tend to connect the defendant with the commission of the offense charged.”

In Stevens v. State, 31 Okla. Cr. 247, 238 Pac. 216, in the second paragraph of the syllabus, the court said:

“Under section 2701, C. S. 1921, one cannot be convicted upon the uncorroborated testimony of an accomplice ; but the testimony of the accomplice must be corroborated by such evidence as in itself, and without the aid of testimony of the accomplice, tends in some degree to connect the defendant with the commission of the offense.”

This court has repeatedly held that one cannot be convicted upon the uncorroborated testimony of an accomplice; that the testimony of an accomplice must be corroborated by such evidence as in itself, and without the aid of the accomplice, tends to connect the defendant with the commission of the offense.

We hold there is no corroborative testimony of the accomplice showing the defendant’s connection with the falsifying the record. It follows that the defendant’s motion for a new trial should have been granted, and the judgment appealed from must be reversed.

EDWARDS, J., concurs. CHAPPELL, J., dissents.


text:
    ADDIE BARNETT v. STATE.
    No. A-7910.
    Opinion Filed March 21, 1931.
    (296 Pac. 324.)

      L. 0. McLean, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Plaintiff in error was convicted in the county court of Garfield county of the crime of unlawful possession of intoxicating liquor, and her punishment fixed by the jury at a fine of $500 and six months’ imprisonment in the county jail.

The state has filed a motion to dismiss the appeal, from which it appears that after the defendant was convicted she was enlarged upon supersedeas bond; that she has left the state and is a fugitive, and her whereabouts are unknown.

It is settled by many decisions of this court that, where a defendant has been convicted and perfects an appeal to this court, the appeal will not be considered unless the defendant is where she can be made to respond to any judgment or order which may be rendered in the case. Where defendant becomes a fugitive from justice pending the determination of the appeal, this court upon proper motion will dismiss the same. The appeal is dismissed.


text:
    EARL PENLEY v. STATE.
    No. A-7387.
    Opinion Filed March 21, 1931.
    (297 Pac. 307.)

      John T. Levergood, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie 'county for having the illegal possession of whisky and was sentenced to pay a fine of $500 and to serve six months in the county jail.

Certain officers with a search warrant searched the residence of defendant and found two and one-half gallons of whisky and a number of empty bottles. Only one witness testified for the state. Defendant did not testify and offered no evidence. The jury did not agree on the punishment and same was assessed by the court.

The affidavit to procure the search warrant and the search warrant are challenged. A close question is presented, but under the rule that the burden is on defendant to show a prejudicial error, the proceeding will be upheld. It is also insisted the court erred in permitting the sheriff to summon talesmen to serve on the jury. The search was made by his deputy, who was the sole witness. This objection was not made until after the jury was impaneled and then only by an oral objection, although it appears it 'was known to counsel before the jury were examined. Some objection is made to the instructions of the court. Considered and construed together, there is no error in the instructions requiring a reversal. Upon the whole case the punishment assessed is excessive and is modified by reducing the same to a fine of $200 and confinement in the county jail for a term of 60 days.

As modified, the case is affirmed.


text:
    BARNES TAYLOR v. STATE.
    No. A-7694.
    Opinion Filed March 21, 1931.
    (297 Pac. 307.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of choc beer, containing more than one-half of 1 per cent, alcohol measured by volume, and capable of being used as a beverage, with the unlawful intent then and there on the part of the defendant to- sell, barter, give away, or otherwise furnish the same to others unlawfully, and in violation of the prohibitory law, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for two months. Prom which judgment the defendant appeals.

The testimony shows that the officers went to the defendant’s home searching for a pair of shoes that was claimed to have been stolen; the defendant told him all he had was some choc beer in the basement; they were in the defendant’s home under a search warrant for shoes and not for intoxicating liquor.

No objection was made to the testimony offered by the state. In order that it may be considered by this court, it was necessary for the defendant to object to the same and ask that it be excluded from the jury. The record does not disclose any objection made by the defendant. There being no fundamental or prejudicial errors in the record, the judgment of the lower court is affirmed.

CHAPPELL and EDWARDS, JJ., concur.


text:
    WAYNE McCOOL v. STATE.
    No. A-7676.
    Opinion Filed March 21, 1931.
    (297 Pac. 308.)
    Corn & Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAYENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Dewey county of being drunk in a public place, and his punishment fixed by the court at a fine of $100 and imprisonment in the county jail for 30 days.

The evidence of the state is that a dance was being held at the home of C. C. Allens on the 29th day of May, 1929; that the neighbors attended. The charging part of the information is as follows:

“That Wayne McCool, a person at and within the county of Dewey and state of Oklahoma, and on or about the 29th day of May, 1929, did then and there intentionally, unlawfully and wrongfully, be and appear in a public place, to wit: The dance at the home of O. 0. Allens, located on the southeast quarter of section twenty-eight, in township 16 N. R. 16 W. I. M., while he the said Wayne McCool was then and there drunk and intoxicated,” etc.

The defendant drove to within a short distance of the Allens’ home, where the dance was being held, in company with Bill Jones. The officers claim that the defendant was drunk. The defendant claims that he was not drunk, and several of the parties with him when he left the dance testify that the defendant was not drunk.

At the close of the testimony, the defendant demurred to the evidence on the ground that it was insufficient to sustain a conviction, and there was a fatal variance in the pleadings and the proof. It is urged by the defendant that the proof on behalf of the state is insufficient to sustain a charge of being drunk and intoxicated in a public place as provided in section 7028, C. O. S. 1921, and .that his demurrer to the evidence should have been sustained.

After a careful study of the record, we are of the opinion that the evidence is insufficient to sustain the charge in the information of being drunk and intoxicated in a public place as described by the statute, and that the demurrer of the defendant to the evidence should have been sustained.

For the reasons stated, the judgment is reversed.

EDWARDS, J., concurs. CHAPPELL, J., dissents.


text:
    BURL JENNINGS v. STATE.
    No. A-7933.
    Opinion Filed March 21, 1931.
    (297 Pac. 308.)
    R. H. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., for the .State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Caddo county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $250, and to serve 90 days in the county jail.

Judgment was rendered in April, 1930, and the appeal lodged in this court in July, 1930, more than 60 days after the judgment was entered. An extension of time to make and serve case-made was allowed, hut no extension of time to file the appeal in this court was ever made. This court does not acquire jurisdiction. Section 2808, Comp. St. 1921; Stumpf v. State, 6 Okla. Cr. 159, 117 Pac. 648, 649; Wilson v. State, 24 Okla. Cr. 268, 217 Pac. 1057.

The appeal is dismissed.


author: PEE CUEIAM.

text:
    SAM HOWARD v. STATE.
    No. A-7903.
    Opinion Filed March 21, 1931.
    (297 Pac. 309.)

      W. F. Duncan, for plaintiff in error.
    Tbe Attorney General, for the State.
   PEE CUEIAM.

Plaintiff in error was convicted in the county court of Blaine county of the crime of unlawful possession of intoxicating liquor, and his punishment assessed by the jury at imprisonment in the county jail for a period of five months and by a fine of $400.

Judgment was rendered on the 14th day of February, 1930, and the appeal filed in this court on the 17th day of June; no briefs have been filed, and no appearance made for oral argument.

The appeal was not filed until 123 days after the rendition of the judgment. Where the appeal is not filed in the time provided by law, this court obtains no jurisdiction, and the appeal will be dismissed.


text:
    KIT CARSON v. STATE.
    No. A-7759.
    Opinion Filed March 28, 1931.
    (297 Pac. 311.)

      D. E. Ashmore, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of selling, whisky to W. N. Jones, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail. Prom which judgment and sentence the defendant appeals.

The testimony of the state witnesses, W. N. Jones and Watson Hayes, is positive that the defendant sold W. N. Jones some whisky on the 21st day of June, 1929.

The defendant denies he sold any whisky to the witness Jones. The record discloses a direct conflict in the testimony.

Pour errors have been assigned by the defendant as grounds for reversal of this case. They will be grouped together and considered under assignments 2 and 3; that the court erred in overruling the supplemental motion, and in overruling his motion on the ground of newly discovered evidence.

A motion for a new trial is addressed to the sound discretion of the court, and, unless that discretion has been abused and the rights of the defendant prejudiced thereby, this court will not disturb the judgment. Peters v. State, 35 Okla. Cr. 367, 250 Pac. 1032; Waller v. State, 19 Okla. Cr. 329, 199 Pac. 224.

The defendant argues that his supplemental motion for a new trial should have been sustained for the reason that it was supported by the affidavit of a number of citizens that they would not believe the state witnesses on oath. The trial court in passing' on the defendant’s motion for a new trial, which motion was based on newly-discovered evidence, directed attention to the fact that all the witnesses who made the affidavits as to the truth and veracity of the state witnesses were residents in or near Durant where the trial was held, and that there was no showing by the defendant as to why these witnesses were not called in the trial.

The court did not err in overruling the defendant’s supplemental motion for a new trial on the ground of newly discovered evidence.

This court has repeatedly held that, where there was a conflict in the testimony, that was a question for the jury, and, if there was any competent evidence to sustain the verdict, this court would not set the verdict aside. There is sufficient evidence to sustain the verdict. The defendant was accorded a fair and impartial trial. The court properly instructed the jury as to the law. No prejudicial or fundamental errors appear in the record.

The judgment is affirmed.

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


author: CHAPPELL, J.

text:
    THEODORE GROSS v. STATE.
    No. A-7767.
    Opinion Filed March 28, 1931.
    (297 Pac. 309.)

      Billingsley & .Stanley and Ira J. Banta, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of the crime of manslaughter in the first degree, and his punishment fixed by the court at imprisonment in the state penitentiary for 20 years.

The evidence of the state was that the deceased was employed by defendant, and that a difficulty arose between them over money matters; that during the difficulty defendant struck at deceased with a chair and that deceased was escorted out of defendant’s premises; that defendant-followed deceased from the back room into the front room and threw two soda pop bottles at deceased as he was going out the front door; that defendant followed deceased out of the premises and continued to assault him with the ice pick; that after deceased had fallen to the ground defendant stooped over him, while he was prostrate on the ground, and stabbed him several times in the breast with the ice pick; that at the time defendant was placed under arrest, immediately after the infliction of the fatal wounds, and before defendant knew that he had killed the deceased, and while he still had the ice pick in his hand, defendant stated to the officers that the pick was the instrument with which he had assaulted the deceased, and that, if he thought he had not done a good job by killing him, he would go- back and finish him up; that deceased died in a local hospital shortly after the assault.

Defendant denies that he brought on this difficulty, and contends that the deceased assaulted him, and that all he did was done in his own self-defense.

Defendant contends first that the court erred in instruction No. 5 given to the jury.

This instruction bears upon defendant’s guilt of the crime of murder and sets out a state of facts which, if believed by the jury beyond a reasonable doubt, would justify the jury in finding, the defendant guilty of murder. It has no bearing upon the question of defendant’s guilt or innocence of the crime of manslaughter, of which he was convicted.

This court has held that, where one is charged with murder and convicted only of manslaughter, instructions bearing- on tbe question of bis guilt or innocence of murder will not be considered on appeal in the absence of a showing that the defendant was injured thereby. Byars v. State, 7 Okla. Cr. 650, 126 Pac. 252; Elliott v. State, 18 Okla. Cr. 230, 194 Pac. 267; Littleton v. State, 19 Okla. Cr. 461, 200 Pac. 716; McElwee v. State, 49 Okla. Cr. 325, 294 Pac. 214.

It is also contended in connection with the argument made against this instruction that, Avhen it is considered with instructions numbered 14 and 15, bearing on self-defense, it will be seen that the defendant was prejudiced of his right of self-defense 'by the giving of instruction No. 5. It is a cardinal principle that one who invokes the right of self-defense must, himself, be without fault in bringing on the fatal difficulty. Evans v. State, 8 Okla. Cr. 78, 126 Pac. 586; Wadsworth v. State, 9 Okla. Cr. 84, 130 Pac. 808; Larry v. State, 10 Okla. Cr. 340, 136 Pac. 596, 597; Beason v. State, 18 Okla. Cr. 388, 195 Pac. 792, 795; Berry v. State, 23 Okla. Cr. 223, 213 Pac. 909.

It would be a manifest travesty of justice for the court to leave the impression with the jury that a person could himself bring on a fatal difficulty and then be permitted to invoke the law of self-defense without in good faith withdrawing therefrom. In instruction No. 5 the trial court told the jury a state of facts which, if believed, disclosed that the defendant did not withdraw from the difficulty after he entered into it, but pursued the deceased until he slayed him. Such a state of facts certainly would deprive the defendant of the right to invoke the law of self-defense.

When instruction No-. 5 is considered in connection with the facts and circumstances of the case and in connection with instructions numbered 14 and 15, it clearly states tbe law and is as liberal to tbe defendant as tbe evidence requires.

It is next contended that tbe trial court erred in permitting tbe state to read tbe transcript of tbe testimony of one N. E. Greer given at tbe preliminary examination without requiring tbe state to establish a proper predicate for the admission of this class of evidence.

On objection of defendant to tbe reading of the transcript of the evidence of tbe absent witness, Greer, it was made to appear by tbe state that at tbe preliminary examination tbe witness Greer was present and testified and was cross-examined by tbe defendant’s counsel; that in a former trial of tbe case it was shown that tbe witness Greer was absent and beyond tbe jurisdiction of tbe court, and at such trial tbe state was permitted to read the transcript of Greer’s evidence taken at the preliminary to tbe jury. For some reason not made clear in the record, three was a mistrial, and tbe case was set down and called for trial regularly at another term of court; that in tbe meantime the state bad bad a subpoena issued for the witness Greer; that, at tbe request of the county attorney, tbe sheriff and tbe evidence man out of tbe county attorney’s office bad made a personal search for the witness and had been unable to find him within tbe jurisdiction of the court; that tbe transcript of tbe evidence taken at tbe preliminary examination and introduced in tbe former trial whs a past of ilu* case-made, ana such part of tbe case-made th.: '.raaseilpt «nd shoving made at tbe time was offered in (vide nee by tbe state for tbe purpose of establishing tbe anther ti city of such transcript. Upon this showing the court permitted tbe state to read tbe transcript of the evidence of tbe witness Greer, and defendant now contends that is was reversible error to permit such evidence to be read to the jury, because no proper showing of diligence had been made.

This court has held in cases similar to- the one at bar that this showing was sufficient to entitle the state to read the transcript of the evidence in the trial. Fitzsimmons v. State, 14 Okla. Cr. 80, 166 Pac. 453; Weil v. State, 47 Okla. Cr. 88, 287 Pac. 752.

It further appears from the record that the facts testified to by the witness Greer at the preliminary examination were proved by other witnesses who were present and testifying in behalf of the state in the trial of the case.

Under the showing made by the state, it was not error for the trial court to- permit the reading of the transcript of the evidence of the absent witness, Greer.

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

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


text:
    ROY TRAINER v. STATE.
    No. A-8023.
    Opinion Filed March 21, 1931.
    (297 Pac. 325.)

      Corn & Corn, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Dewey county of the crime of rape in the first degree, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of 15 years.

. The evidence of the state was that Cora Elizabeth Parks, the complaining witness, was under the age of 14 years at the time the crime of rape was committed; that she was not acquainted with the defendant; that late in the afternoon of June 8th she had gone to the schoolhouse at Camargo to attend a 4-H Club meeting; that on arriving at the schoolhouse about dark she learned the meeting was not going to be held, and started back home; that the night was dark and cloudy, and that she passed the Cinnamon Restaurant on the streets of Camargo, and several men were in front of the restaurant; that as she passed down the street and near a gin she was accosted by a party who said: “Don’t be afraid; it’s Roy”; .that this party walked a short distance with her, and threw her on the ground, and, in spite of her objections and by overcoming her resistance, had intercourse with her; that immediately on reaching home she told her mother and sisters what had happened, and told them she thought it was Roy Chill; that it was dark, and she could not see who it was, but she thought it was Roy Chill, as he was the only Roy she knew; that Roy Chill was arrested and charged with the crime and later released, when it was established to the satisfaction of the authorities that he was at another place; that an investigation was then conducted, and it was learned that Roy Trainer, the defendant herein, was in the town of Camargo at the time of, and just preceding, the rape, and was at the Cinnamon Restaurant at the time the prosecuting witness passed; that at that time defendant remarked that “he was going to get some of that before morning”; that soon after he followed the girl; that Glen Diew, Ed. Blakey, John Soliday, and John Fassauer were all in front of the restaurant; that defendant also said, “Here is where I am going to get a woman”; that about half an hour afterward defendant returned to the •restaurant, and was asked if he got the job done, and he said that he did; that one of defendant’s shirt sleeves had been torn; that defendant had been drinking, and the complaining witness testified that she could smell liquor on the .breath of the man who had raped her; that the next day defendant left the country and was gone for more than a year, when he returned and gave himself up to the authorities.

Defendant, testifying, denied that he had committed the crime, and said he left the country because some of his friends gave him $25 and asked him to leave so he would not have to be a witness against Roy Chill.

The evidence of the state is wholly circumstantial, but, when considered together, it points unerringly to the guilt of the defendant.

Attorneys for the defendant in their brief have combined assignments of error numbered 2, 3, 4, 5, and 6, which assignments pertain to the amending of the original information.

After the jury had been impaneled and the case called for trial, the county got leave to amend the information by interlineation by inserting the words, “a male person over the age of 18 years.”

This court has held that proof that the defendant was over the age of 18 years at the time of the commission of the alleged act is not indispensable to a conviction; the age of the defendant being a matter of defense and not a material element of the crime. Williams v. State, 17 Okla. Cr. 452, 190 Pac. 892; Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668.

Wharton’s Criminal Law, vol. 1, page 941, par. 740, lays down the rule as follows :

“An indictment for rape need not specify the sex of the defendant. The allegation that the accused did commit the crime of rape carries with it (1) that the accused is a male person, and i,2) that he is capable of having committed the offense charged.”

The information in 1he case at bar falls squarely within the above rule, and wa« sufficient to charge the offense. Thompson v. State, 17 Okla. Cr. 215, 187 Pac. 819.

This court has repeatedly held that the information may be amended as to form, after the jury has been impaneled, where the same can be done without prejudice to the substantial rights of the defendant. Carroll v. State, 24 Okla. Cr. 26, 215 Pac. 797; Clark v. State, 35 Okla. Cr. 300, 250 Pac. 551; Leyerle v State, 31 Okla. Cr. 179, 237 Pac. 871; Potter v. State, 47 Okla. Cr. 264, 288 Pac. 362.

Defendant also contends under this assignment that the court erred in permitting the state to indorse the names of the wii nesses E. S. Collier and Walter Towers upon the information and permit such witnesses to testify in chief, without such names having been served on the defendant 2 days before the trial.

Collier testified that the defendant told him he was 22 years of age, the defendant, testified that he was 22 years of age. Towers testified that the defendant had left the state and been gone for more than a year. The defendant testified that the day following the commission of the crime he left the state and was gone 15 months.

In Manning v. State, 7 Okla. Cr. 368, 123 Pac. 1029, this court said:

“Where a witness in a capital case is permitted to testify over objection that the name of such witness was not furnished the defendant two days before the case was called for trial, such failure to furnish the defendant with the name of such witness and permitting such witness to testify will not be reversible error where it is shown that the witness did not testify as to any material fact against the appellant.”

See, also, Havill v. United State, 5 Okla. Cr. 334, 115 Pac. 119; Fowler v. State, 8 Okla. Cr. 130, 126 Pac. 831; Ford v. State, 23 Okla. Cr. 46, 212 Pac. 444.

Neither the age of the defendant nor his whereabouts after the commission of the crime were material elements of the crime, and were no part of the proof the state was required to offer to' establish the offense.

The defendant took the stand and testified that he was 22 years of age, and that he had been absent from the state for 15 months. It is apparent from the record that the defendant was neither injured nor prejudiced by the admission of such testimony.

Defendant next complains that the court erred in refusing the proffered instruction of the defendant on circumstantial evidence. The instruction offered 'by the defendant was a correct statement of the abstract principle of law, but the same was sufficiently covered in the instructions given by the court upon its own motion.

An examination of the record discloses that the defendant was accorded a fair and impartial trial, that the errors complained of are without substantial merit, and that the evidence supports the verdict of the jury.

For the reasons stated, the cause is affirmed.

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


author: PEE. CURIAM.

text:
    L. DUNCAN v. STATE.
    No. A-7601.
    Opinion Filed March 21, 1931.
    (297 Pac. 312.)
    Babb & Bennett, for plaintiff in error.
    J. Berry Kng, Atty. Gen., for the State.
   PEE. CURIAM.

The plaintiff in error was convicted of assault with intent to do bodily harm, and was sentenced to serve a term of one year in the state penitentiary.

The judgment was entered in April, 1929, and the appeal lodged in this court in October, 1929. No briefs in support of the appeal have been filed. The case-made contains no notice of appeal, as required by section 2809, Comp. ,St. 1921, and none has been filed in this court. This is jurisdictional, and, where the notice is not given as required by law, this court does not acquire jurisdiction. Means v. State, 10 Okla. Cr. 581, 139 Pac. 1155; Kittrell v. State, 19 Okla. Cr. 56, 197 Pac. 1072; Sharer v. State, 40 Okla. Cr. 420, 269 Pac. 511.

The appeal is dismissed.


text:
    EARL PERRIN v. STATE.
    No. A-7269.
    Opinion Filed March 21, 1931.
    (297 Pac. 314.)
    John Levergood, for plaintiff in error.

      J. Berry King, Atty. G-en., and Edward Crossland, Asst. Atty. Gen., for tbe State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the superior court of Pottawatomie county of the crime of attempt to rape, and his punishment fixed by the jury at confinement in the state reformatory at Granite for three years.

The evidence of the state was that the prosecuting witness, Jessie Webb, was 11 years of age at the time the crime was committed; that she left her home about 11:30 a. m. of that day and went to a neighbor’s and remained until 5 p. m., when she started to return home; that on the way home the defendant caught her in his arms and carried her into a brush or briar patch at the side of the road and laid her on the ground and attempted to have sexual intercourse with her by tearing her clothing, putting his hand upon her, urging her not to resist, and attempting to induce her to consent; that the prosecuting witness resisted and succeeded in escaping from him without his having accomplished the rape; that immediately on arriving home she told her mother. She is corroborated by her mother, who testified that immediately upon her reaching home she told of the affair, and at that time she was crying and that she found her underclothes torn. She is corroborated by the officers who made the arrest of defendant, who testified that there was red mud on defendant’s knees and clothing. She is corroborated by the defendant himself, who testified that shortly after she passed the residence of one Partain on her way home, he arrived at the Partain home. It was shown that this offense was committed within a few hundred feet of Partain’s residence.

The defendant testified that he was 19 years of age; that he passed the house where the prosecuting witness was about 5 o’clock, and saw ber there; that he knew if she went home she would have to go down that road where she claimed the crime was committed, but he claimed he Avent to Partain’s through the field and Avas not at the place where the crime was alleged to have been committed and did not commit it.

The defendant contends first that the information is not sufficient to charge the offense of attempt to commit rape.

The charging part of the information reads as follows :

“Earl Perrin, then and there being, did then and there unlawfully, knowingly, willfully, feloniously, intentionally and wrongfully, and violently attempt to rape, ravish and carnally know one Jessie Webb, a female person, of the age of 11 years, and not the wife of him the said Earl Perrin, by then and there taking hold of her the said Jessie Webb, with his hands, and throwing her back upon the ground and then and there pulling up her clothing and tearing her clothing from her body, and taking hold of her private parts, and he, the said Earl Perrin, by means of the aforesaid acts, did then and there intend to have unlawful sexual intercourse Avith her the said Jessie Webb, but he the said Earl Perrin failed to commit the crime of rape upon the said Jessie Webb and was prevented from the commission and perpetration of said crime of rape by the resistance of her the said Jessie Webb.”

To constitute the crime of attempt to commit rape it is necessary to allege the intent of the defendant, some acts done toAvards the commission of the crime, and the failure to accomplish the purpose. This information meets all of these requirements, and was sufficient to charge the offense.

The defendant says that the information, if it charges anything, charges assault with intent to rape.

The state might have elected to prosecute upon the-charge of assault with intent to rape; but since they did not do so; but elected to- prosecute under section 2297, C. O. S. 1921, the information was sufficient and properly charged the crime of attempt to- commit rape.

The defendant next contends that the court erred in unduly restricting the cross-examination of the witness Mrs. J. A. Webb, who is the mother of the prosecuting witness. The record discloses the following proceedings:

“Q. The feeling between Charles McCormick and your family has been bad for years?
“Mr. Lewis: Objected to as incompetent, irrelevant- and immaterial.
“The Court: Sustained.
“Mr. Levergood: Exception.”

Defendant made no effort to show that there was any relationship between Charles McCormick and the defendant, nor the families of the witness and McCormick. It was immaterial what the feeling might be between the witness and McCormick, or between the families, unless the witness and the defendant were connected with it in such a way that it would be made to appear to the jury that because of ill feeling the witness was prejudiced. The court did not err in sustaining the state’s objection to- this examination.

Defendant next complains that he was not permitted to show by Emery Carr that defendant had been in the creek bed where there was red sand and mud.

When objection was sustained, the defendant made the following offer of proof:

“Mr. Levergood: Comes now the defendant and offers to show by the witness that he, the defendant, helped said Carr feed bis bogs and gather bis stock, and that the said bogs and stock were in the creek bed of Pond Creek.”

This offer of proof does not say that the defendant was in the creek bed of Pond creek, bnt that the bogs and stock were in the creek bed. He does not offer to show that there was any red mud or sand in the creek bed of this creek. All that was attempted to be shown by the defendant himself upon this subject was:

“Did you assist Emery Carr on the evening of the 19th in feeding, his stock?”

The defendant was not asked if he was in the creek bed of Pond Creek, but if he helped Emery Carr feed his stock. There was no’ offer to prove that the defendant got the mud that was testified by the state to have been on his clothes in Pond creek or anywhere else. The offer of proof was insufficient to present any question for this court.

Defendant next contends that the story told by the complaining witness is unreasonable, unsupported, and impeached.

There is no merit in this contention. The story told by the little girl is reasonable, and she is corroborated upon every material fact in the case by other witnesses and by the facts and circumstances as shown by the evidence.

We have not overlooked other contentions made by the defendant; but in so far as they are not met by what has already been said, the court finds it unnecessary to consider them for lack of substance.

For the reasons stated, the cause is affirmed.

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


text:
    SAM HALL v. STATE.
    No. A-7942.
    Opinion Filed March 21, 1931.
    (297 Pac. 319.)
    Marvin Shilling, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of selling whisky to J. P. Bruce, a minor, and was sentenced to pay a fine of $100, and be imprisoned in the penitentiary at McAles-ter for one year. Prom the judgment the defendant has appealed.

The testimony on behalf of the state, in substance, is as follows:

J. P. Bruce testified he went to the defendant on the night of July 27, 1929, and bought three half pints of whisky, paying $3 for the whisky.

Vernon Young testified he was with J. P. Bruce and. saw him buy the whisky and pay for it.

Some of the officers testify to finding these young men drunk and putting them in jail. The boys admit the officers told them if they would tell where they got the whisky they would turn them loose.

The defendant’s defense is an alibi. He called witnesses to show that he left his home about 7 o’clock in the evening and was at the farm of Mr. Ellis until about 10 o’clock at night, and therefore was not in Ardmore at the time of the alleged offense. The defendant did not testify.

Several errors are assigned by the defendant as grounds for reversal of this case. The first assignment of error is that the court erred in overruling his motion for a new trial. It is argued by the defendant that his testimony was sufficient to show that he was not in Ardmore at the time of the alleged offense, and therefore could not be guilty. On the other hand, the testimony of the state is positive that three half pints of whisky were purchased from the defendant by the state’s witnesses. The testimony is in direct conflict, and this court will not attempt to settle a conflict in the testimony but will leave that to the jury. This court has often held that where the testimony is conflicting if there is any competent testimony to warrant the court in submitting the case to the jury and the jury found the defendant guilty, it would not disturb the verdict.

The testimony in this case is sufficient to sustain the yerdict. There are no errors in the record sufficient to justify this court in reversing the case.

The judgment of the lower court is affirmed.

CHAPPELL and EDWARD,S, JJ., concur.


text:
    W. E. BRADLEY v. STATE.
    No. A-7696.
    Opinion Filed March 21, 1931.
    (297 Pac. 321.)
    H. A. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having possession of intoxicating liquor, with the unlawful, willful, and wrongful intent then and there to sell, barter, give away, and otherwise dispose of the same to others, contrary to the statutes, and was sentenced to pay a fine of $50 and be confined in the county jail for two months. Prom which sentence and judgment the defendant has appealed.

Before the trial began, the defendant moved the court to quash the search warrant and objected to any testimony secured by reason of the search warrant, for the reason that the search warrant did not describe the premises occupied by the defendant, and that the premises on which the state witnesses claim they found whisky there was no search warrant for. This motion was overruled, and the defendant excepted. An examination of the record shows that the motion to quash was properly overruled, as the testimony in the trial of the case shows that the officers went to the place of business and home of this defendant with a search warrant which described the premises to be searched as to the northwest quarter of section 10, township 24 east of the Indian meridian; that the property described in the search warrant is not the property upon which the defendant’s home and business were located; that the defendant was located on section 3, township 24 east, of the Indian meridian, and there was a public road running along the section line between the defendant’s place of business and home, and where the officers allege they found some whisky. All of the officers admit they did not find any whisky around the defendant’s place of business, where they searched without a warrant; that they had no warrant for the arrest of the defendant.

The officers further testify they searched the defendant’s place of business and found nothing; they went across the highway which ran along the section line onto another piece of property about 50 to 100 yards from the road, and in a briar patch or grass they found several pints of whisky. They also testify that tracks led from the highway near the defendant’s place of business to where they found the whisky.

The defendant testified in his own behalf, and stated he had nothing to do' with section 10, township 24 east of the Indian meridian; that his property was located on section 3, township 24 east of the Indian meridian; that his property was on the highway between Stillwater and Ponca City; that it was a public highway and generally traveled; that he was located near the Salt Fork bridge on the river, and that people come and go up and down the river fishing and hunting. Defendant states positively that he did not have any control over the land where they claim the whisky was found; that he never saw any of the whisky, nor did he know anything about it being there until after the officers found it; that the water in Salt Fork is salty along there and people frequently come back and forth to get water at his well; that there is a camp ground near where the officers found the whisky.

The defendant was asked if he had ever been convicted on a liquor charge, and answered that he had, for the sale of one pint of whisky; he frankly stated he had been twice convicted. This is the testimony.

The first error assigned is that the court erred in overruling the motion of plaintiff in error for a new trial. The third assignment is that the verdict of the jury is not supported by competent evidence and the same is contrary to the law and evidence. These two assignments will be considered together. There is no testimony in the record tending to show that the defendant knew anything about the whisky being where it was, and it is clearly shown by the state’s testimony that there were no indications around his place of business that whisky was being kept there, nor were there any containers showing that the defendant was handling whisky. The fact that the officers found whisky on property other than that occupied by the defendant, and near to the defendant’s property, amounts to nothing more than a suspicious circumstance. The testimony falls far short of proving the defendant guilty of possession of intoxicating liquor with intent to sell the same.

The evidence being insufficient to support the verdict, the cause is reversed.

EDWARDS and CHAPPELL, JJ., concur.