text:
    LUCIEN B. WRIGHT v. STATE.
    No. A-4826.
    Opinion Filed June 6, 1925.
    (236 Pac. 633.)
    (Syllabus.)
    1. Perjury — Not Necessary that Matter Sworn to is Directly and Immediately Material. In order to constitute perjury, it is not necessary that the matter sworn to should he directly and immediately material. It is sufficient if it is so connected with the matter at issue at to reasonably tend to prove or disprove some fact that is material by giving weight or probability to or detracting from the. testimony of a witness to such material fact.

      2. Same — Degree of Materiality Disregarded. Upon a trial for perjury, the degree of the materiality of the testimony upon which perjury is based is of no importance. Any false testimony given by a witness which detracts from or adds weight and force to the testimony of any witness upon matters that are directly material thereby becomes material itself and constitutes perjury.
    3. Same — Direct Testimony of One Witness and Corroborating Cir cumstances Sufficient Proof of Perjury. To support a conviction for perjury, it is not essential that there be two witnesses to the falsity of accused’s testimony.. It is sufficient if there be direct testimony of one witness and corroborating circumstances, and taken as a whole of such conclusive character as to exclude every other reasonable hypothesis, except that of defendant’s guilt.
    ■4. Same — Corroborating Evidence Held Insufficient to Support Conviction. For corroborating evidence held insufficient, see opinion.
    Appeal from District Court, Oklahoma County; O. L. Price, Judge.
    Luden B. Wright was convicted of perjury, and he appeals.
    Reversed and remanded.
    C. E. McPherren, L. O. Lytle and M. M. Thomas, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below.

Defendant was informed against in the district court of Oklahoma county for perjury alleged to have been committed by the giving of false testimony in a prosecution of Charles A. Elkins in case No. A-5273, wherein the said Elkins was tried for the murder of one J. H. Ferguson, and in which trial the defendant was a witness for the defense. He was convicted and sentenced to serve a term of 10 years in the state penitentiary. The material charging part of the information setting out the offense is:

“* * * Did then and there in said case knowingly, willfully, corruptly, falsely, and feloniously testify, depose, and say in substance and effect that he was not in the room at the time the defendant Elkins fired the shot that killed the deceased J. H. Ferguson, and that the witness Rosa Walker was not in the room at the time the defendant Elkins fired the shot, and could not have been an eyewitness to the firing of said shot. * * *”

Then follows the allegation that said testimony was material, was false and untrue and corruptly made, etc.

Various errors are assigned and argued, only three of which we think it necessary to consider as follows: First, that the record of the trial in which the alleged false testimony was given is not produced, and there is no sufficient proof that the case was at issue or was legally on trial. Second, that there is no proof that the evidence alleged as the basis of perjury was material. Third, there is no sufficient corroboration in proof of the alleged perjury as required by law.

Considering these assignments in the order set out, an examination of the record discloses that there was no production of the record nor any authenticated transcript, nor any waiver of such record, nor was there sufficient parol proof on this point. The journal was not offered in evidence showing the court to have been in session, nor is any proof made that the defendant in the case tried was present or had pleaded to the information, or that a jury had been called and impaneled. The charge on which the defendant was tried was of perjury in a judicial proceeding, and the essential facts to establish the proceeding to have been in a competent tribunal should have been made.

In McFarland v. State, 12 Okla. Cr. 201, 153 P. 619, this court held:

“In a prosecution for perjury, the proceedings, if judicial, in which the oath was taken must be accurately described in the information, and must be proved substantially as alleged. * * *”

In the case of Heflin v. State, 88 Ga. 151, 14 S. E. 112„ 30 Am. St. Rep. 147, the court said:

“ ‘The cause and issue wherein the perjury was committed are proved by the record, which should be in the form and with the verification required by the ordinary practice of the court.’ 2 Bishop’s Crim. Proc. § 933b. The authorities, early and late, on this question seem to be of uniform tenor. 2 Starkie on Evidence, 859; Bull. N. P. 243; 2 Chitty’s Crim. Law, 312a; 2 Archbold’s Crim. Pr. & PI. *602; 3 Russell on Crimes, *95; 2 Roscoe’s Crim. Ev. *843; 3 Jacob’s Fisher’s Digest, 3546 et seq.; 2 Wharton’s Crim. Law, § 1326; 3 Greenl. Ev. § 197; 2 Taylor’s Ev. § 1668. This requirement as to the medium of proof corresponds with the general rule of law, that the proceedings of a court of record are known only by means of the record itself. Collins v. Bullard, 57 Ga. 333; Rutherford v. Crawford, 53 Ga. 139; James v. Kerby, 29 Ga. 684. * * *
“The stenographer’s evidence was all appropriate to open the way to the introduction of the evidence given by Heflin on the trial of Eddleman, and for that purpose it was all admissible; but in order to show the actual existence of the case of State v. Eddleman as a judicial proceeding in the superior court of Fulton county, and its identity with the case described in the bill of indictment, it was necessary to go further and prove by the record an indictment against Eddleman (for he could not have been legally tried without an indictment), and that there was an issue raised upon that indictment, and what that issue was. The bill of indictment in the present case alleges that there was a plea of not guilty, but no evidence whatever as to the plea was adduced. Consequently, the jury trying Heflin did not know by evidence either that Eddle-man was indicted, or upon what issue he was tried. * * *”

This proof by record seems to have been required upon a common-law indictment for perjury. It is the better method of proof of jurisdictional and formal requisites under the Code. But, where there is sufficient parol proof of the authority and regularity of the judicial proceeding, it will be sufficient. Section 11, Cyc. 1449 (c).

Upon the second assignment, i. e., that the evidence is not shown to be material, the record discloses that there was considerable confusion and a conflict between the evidence of the defendant Wright and the witness Mrs. Rosa Walker. They were the only persons immediately present at the time of the killing of Ferguson by Elkins. The testimony of Wright was in substance that he was not in the room where the shooting took place, but in the hall outside the room. In one instance he testified that he was in the hall and the witness Rosa Walker probably three steps behind him. In another instance he testified he was in the hall and she was immediately behind him, and in another instance that he was in the hall and she was about three feet behind him. He does not testify that the witness Rosa Walker could not have seen the firing of the fatal shot from the position where his testimony placed her. The defendant contends that, according to a'diagram introduced in evidence in the Elkins Case, she could have seen the shooting from the spot where defendant’s evidence placed her. The inference to be gathered from his evidence, however, is that she could not have seen the shooting. The witness Rosa Walker testified in one instance that she was in the room where the shot was fired just a short distance from the opening of the door. In another instance she testified that she was at the “shut of the door.” In another instance she testified: “I was in the doorway. You might say in the room.” This testimony of the defendant, Wright, placing her outside the room, may not have been material to the immediate issue, that is, the killing of Ferguson by Elkins and the circumstances thereof, yet it was material, in that it contradicted and affected the testimony of the witness Rosa Walker. That is, it tended to discredit her testimony by showing or tending to show that she was not in a position to have seen the shooting.

It is well settled that in order to constitute perjury the matter sworn to need not be directly and immediately material. It is sufficient if it is so connected with the matter at issue as to have legitimate tendency to prove or disprove some fact that is material by giving weight or probability to, or detracting from, testimony of the witness to such material fact. That is to say, the degree of the materiality is of no special importance. Harris v. State, 119 Ark. 408, 177 S. W. 1144; McVicker v. State, 52 Tex. Cr. R. 508, 107 S. W. 834; State v. Greenberg, 92 Conn. 657, 103 A. 897; U. S. v. Landsberg (C. C.) 23 F. 585; Herndon v. State, 72 Fla. 108, 72 So. 833; State v. Smith, 126 La. 135, 52 So. 244; People v. Macard, 109 Mich. 623, 67 N. W. 968; State v. Moran, 216 Mo. 550, 115 S. W. 1126; Ex parte Metcalf, 8 Okla. Cr. 605, 129 P. 675, 44 L. R. A. (N. S.) 513; Miller v. State, 9 Okla. Cr. 196, 131 P. 181; Coleman v. State, 6 Okla. Cr. 252, 118 P. 594.

The evidence of the defendant placing the witness Rosa Walker outside the room where the shot was fired tended to contradict and discredit her testimony, and thereby weaken and detract from its weight, and, though not material to the immediate issue, it was nevertheless material within the meaning of the law.

Considering the third assignment, that is, insufficiency of the corroboration, the evidence of the witness Rosa Walker was in substance that at the time of the killing there was in the room Ferguson, the deceased, Elkins, who fired the fatal shot, the witness Rosa Walker, and the defendant in this case, Wright. Her testimony on this point is as follows:

“Q. Which room? A. On the east side of the house.
“Q. The room that you were occupying? A. Yes, sir.
“Q. Where was Mr. Elkins when he fired the shot? A. Why he was standing. The dresser sets back a little bit south and west of the door, and he was standing almost in front of the dresser. It would be — say southwest of the door, the entrance.
“Q. Is that southeast? A. Well the dresser sets southwest in the southwest corner of the room, Mr. Powell, and he was standing just a little east of the dresser, which made him almost southwest of the door.
“Q. And where was Ferguson? A. Mr. Ferguson was standing in front of me.
“Q. Where was Judge Wright? A. He was standing at the right of me.
“Q. Where would that put him in the room — standing to the right of you? A. That would put him on the west side of the room.
"Q. Now, is that the position that the occupants of that room occupied at the time the shot was fired? A. Yes, sir.
“Q. And which direction was Elkins from him — from ' Ferguson?' A. He was just a little south of him — a little south of him.
“Q. A little south of him? A. Yes, sir; south of him.
“Q. And you was where? A. Behind Mr. Ferguson.
“Q. Behind Mr. Ferguson. Now, which dirtecition would it be, then, that you occupied in the room? A. North.
“Q. North? A. Yes, sir.
“Q. Now, where was Luden B„ Wright? A. He was on the west side of me.
“Q- On the west side of you? A. Yes, sir; he was standing at the right of me. That would put him on the left side, just between the dresser and the door.
“Q. Between the dresser and the door? A. Yes, sir.”

There were various discrepancies in the cross-examination and in her further direct examination. As before stated, the testimony of the defendant, Wright, was in substance that he was in the hall, and not in a position to witness the shooting.

Under the quantitative rule of evidence in this state in a prosecution for perjury, it is necessary that the falsity of defendant’s evidence be established by the testimony of more than one witness or by the testimony of one witness, corroborated by circumstances directly and positively sworn to, and of such conclusive character as to exclude every other reasonable hypothesis, except that of the defendant’s guilt. Wharton’s Crim. Law (9th Ed.) § 1319; Hashagen v. U. S., 169 F. 396, 94 C. C. A. 618; Kelley v. State, 51 Tex. Cr. R. 507, 103 S. W. 190; State v. Miller, 80 Wash. 75, 141 P. 293; State v. Young, 153 Iowa, 4, 132 N. W. 813, Ann. Cas. 1913E, 70; Ex parte Metcalf, supra; Shoemaker v. State, 29 Okla. Cr. 184, 233 P. 489.

Here Rosa Walker is the only witness directly contradicting the evidence of the defendant Wright. The state undertook to corroborate her testimony by the testimony of Margaret Reeves and Kenneth Braughton. These two witnesses were asleep in another room in the house in which the shooting took place. The witness Margaret Reeves testified that she did not hear the shot at all, and that Mrs. Walker came to the room, rapped, and called her. She got up and went into the room where the shooting occurred.

The witness Braughton testified that he was in bed-asleep and heard a sound like some one slamming the- door. That his mother, Rosa Walker, came to the door and rapped. That he got up, put on his trousers, and went in where the shooting occurred. Both these witnesses testify that as they came to the room where the shooting occurred El-kins and Wright were coming out of the room. This is some slight corroboration of the testimony of Rosa Walker that Wright was in the room at the time of the shooting, but it is not of the positive and conclusive character contemplated by law. It does not exclude every other reasonable hypothesis than that the defendant was in the room at the time of the shooting.

The evidence of the witness Rosa Walker is that after the shooting she left the room, went down the hall to another room, rapped on the door, and then returned to the room where the shooting occurred before Margaret Reeves and Kenneth Braughton came out. If the defendant Wright was in the hall, there was more than ample time for him to have gone into the room where the shooting occurred — it could not have been more than two or three or four steps away — and under the circumstances it would have been a natural thing for him to do. The corroborating circumstances relied on are not of such character as to clearly turn the scale and overcome the oath of the defendant and the legal presumption of his innocence. The trial court should have directed a verdict at the close of the state’s evidence.

For the reasons assigned, the case is reversed and remanded.

BE-SSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: BESSEY, P. J.

license: Public Domain

text:
    ZEKE GOODWIN v. STATE.
    No. A-4728.
    Opinion Filed June 6, 1925.
    (236 Pac. 636.)
    (Syllabus.)
    1. Intoxicating Liquors — Evidence not Sustaining Conviction for Unlawful Sale. Tbe evidence beld insufficient to support a charge of illegal sale of whisky.
    2. Same — Instruction Held Misleading. Instructions examined, and held subject to criticism.
    3. Trial — County Attorney’s Telling Jury What He Personally Knows About Accused Held Error. Where there is no evidence supporting his statement, it is error for a county attorney to tell the jury what he knows personally about the accused.
    Appeal from County Court, Pittsburg County; S. F. Brown, Judge.
    Zeke Goodwin was convicted of the illegal sale of intoxicating liquor, and he appeals.
    Reversed.
    W. N. Redwine, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Zeke Goodwin, plaintiff in error, defendant in the trial court, was by verdict of a jury in the county court of Pittsburg county found guilty of the unlawful sale of whisky, with his punishment fixed at imprisonment in the county jail for a period of 60 days, and to pay a fine of $50. From the judgment on this verdict, he appeals.

The testimony shows that Wilbur Godfrey, John Stanley, Zen Corn, Sam Corn, Albert Scott, and the defendant together agreed to contribute money to purchase one-half gallon of whisky; that this arrangement was first suggested on the streets of Pittsburg; that some of the parties went out in the country to a hillside, and procured the whisky from a man named Otis Patton; that they returned to a park where a carnival was then in progress, and there distributed and drank a portion of the whisky. From the park they repaired to the home of the defendant, Zeke Goodwin, with the uncertain quantity or portion of the whisky which remained. It seems that Wilbur Godfrey did not go to the park promptly, and that when he did arrive there, he found that his associates in the deal were not there; that he thereupon followed the others to the home of the defendant, and there received from Zeke Goodwin some of the whisky that was left, estimated at about one pint. There was a dispute there as to the amount to be paid by Godfrey, and it appears that Godfrey then paid to the defendant 50 cents, in addition to the amount of money he had previously contributed. So far as can be ascertained from the record, the total amount contributed by all the parties was $6.

It was the theory, of the state that the defendant was the agent of the seller of this whisky, Otis Patton. The theory of the defendant was and is that ah the parties who agreed to this deal were contributors to a common fund to purchase this whisky from Patton, and that the defendant was the agent of the others in this purchase and not the agent of Patton. We think the testimony in the record overwhelmingly supports the theory of the defendant. The fact that the defendant received from one of the parties to the original transaction 50 cents, in addition to the initial contribution, after most of the liquor had been distributed and consumed, would not operate to constitute a sale by the defendant. And this part of the transaction occurred some two hours after the initial arrangement was made and the whisky obtained, and there are indications that the witnesses were more or less under the influence of liquor at the time Godfrey paid the extra 50 cents and obtained his portion of the whisky, and for this reason their testimony as to details is confusing.

The court, over the objection of the defendant, instructed the jury as follows:

“You are further instructed that, since there has been evidence adduced tending to show that defendant accepted money from Wilbur Godfrey to pay for the whisky in question for said Wilbur Godfrey, that if you find from the evidence that defendant acted as an agent of the vendor or accepted more money from Wilbur Godfrey than was paid for the whisky, defendant would be guilty of selling liquor, as charged. In other words, if you find that defendant profited by the sale of said liquor to Godfrey, if same was sold to Godfrey, then defendant would be guilty as charged.”

Under the evidence the clause, “if- you find that defendant profited by the sale of said liquor to Godfrey” may have been misleading. The fact, if it was a fact, that the defendant collected more money than was necessary would not of itself amount to an illegal sale of liquor.

The county attorney, on cross-examination of the defendant, propounded to him a number of incompetent questions to which objections were made, some of the objections being sustained. Notwithstanding the fact that many of the objections were sustained, the improper cross-examination may have prejudiced the defendant. The character of the questions so propounded was as follows:

“Q. You have recently served a term in jail up here, haven’t you?
“Mr. Kedwine: Object to that as incompetent, irrelevant, and immaterial.
“The ‘Court: For what ?
“Mr. Whit: For anything that involves moral turpitude.
“The Court: You will have to state for what.
“Mr. Gocher: Well, we know that he has.
“Q. You drink considerable whisky, don’t you ? (Objected to and objection overruled.)

A statement by the county attorney, in the presence of the jury, that he personally knows that the defendant has recently served a term in jail, was highly improper, where no proof was made or offered supporting such charge.

For the reasons stated, the cause is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    J. W. FOSTER v. STATE.
    No. A-4757.
    Opinion Filed June 6, 1925.
    (236 Pac. 628.)
    (Syllabus.)
    1. Appeal and Error — If Conflicting Evidence Reasonably Supports Verdict, Judgment not Disturbed. Where there is evidence reasonably tending to support the verdict, this court will not disturb the judgment of the trial court, though the evidence be conflicting.
    2. Continuance — Denial of Continuance not Error, in Absence of Showing of Due Diligence. The application for continuance did not show due diligence to obtain the attendance sought.
    3. Instructions Held Sufficient. The instructions examined, and held sufficient.
    Appeal from County Court, Comanche County; John Manning, Judge.
    J. W. Foster was convicted of the illegal sale of intoxicating liquor, and he appeals.
    Affirmed.
    C. R. Reeves, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

This is an appeal from the county court of Comanche county, wherein this plaintiff in error was convicted of selling intoxicating liquor, and his punishment assessed at a fine of $200 and 30 days in jail.

The record discloses that at about 6 o’clock in the evening on January 31, 1923, Private Peter Pitchlynn left Ft. Sill, got on a street car, and went into Lawton. .There he met another soldier, John Simpson, and they decided to buy some whisky. At about 6:30 they went to see plaintiff in error and bought from him a pint of whisky for $2.50, which they then drank. This whisky made them drunk, and they were later arrested and put in jail. While they were in jail, one of the officers, S. A. Logan, told them that if they would tell from whom they had bought the whisky they would be released. Pitchlynn testified that they had bought the whisky from Foster. In this he was corroborated in part by the testimony of one of the officers and by the other soldier. On the witness stand the plaintiff in error, corroborated by some of his relatives, denied the whole transaction.

Where the evidence is conflicting, and there is evidence reasonably tending to support the verdict, this court will not disturb the verdict on the ground of insufficiency of the evidence. •

The application for continuance made in the trial court did not show that due diligence had been exercised to obtain the attendance sought, and the denial of the application was not error.

The amendment of the information, by inserting the word “and” and striking the words “otherwise furnish” was not prejudicial, under the provisions of section 2512, Comp. Stat. 1921.

The instructions of the court have been examined and found sufficient.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: EDWARDS, J.

text:
    LON CARSON v. STATE.
    No. A-4776.
    Opinion Filed June 6, 1925.
    (236 Pac. 627.)
    (Syllabus.)
    1. Larceny — Allegation of Ownership of Property Supported by Proof of Any Legal Interest. In a charge of larceny, the allegation of ownership of the property charged to have been the subject of the larceny is a material allegation and must be proved as pleaded, but the allegation of ownership of stolen property is supported by proof of any legal interest or special property or ownership in it, although less than absolute title.
    2. Same — On© in Personal Possession of Property Properlv Treated as “OwMf.” The actual condition of the legal title to property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be treated as the owner who is in personal possession of the property and whose possession was unlawfully disturbed by the taking. The possessor of the goods from whom the thief took them may properly be described as the “owner” of the property in the indictment or information.
    3. Same — Possession of Pistol Sustaining Allegation of Ownership. For facts which are sufficient to sustain the allegation of ownership, see opinion.
    4. Larceny — Grand Larceny — “Value” Used as Meaning Reasonable Selling Price. The expression “market value,” when used to determine the degree of larceny, relates to buying and selling, so that the term “value” may properly be said to be the “reasonable selling price,” and proof of a selling price in excess of $20 is sufficient proof of value to fix the offense of grand larceny.
    5. Same — Evidence Sustaining Conviction for Grand Larceny. Evidence examined, and held to be sufficient to sustain the verdict.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    Lon Carson was convicted of grand larceny, and he appeals.
    Affirmed.
    Womack, Brown & Cund, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant. The defendant was charged by information in the district court of Stephens county with the crime of grand larceny, the larceny of a 45 Colt’s automatic pistol and some clothing. The prosecuting witness, Blumhoff, testified that he left his house, and when he returned found that his trunk had been ransacked and a pistol belonging to him, of the value of $40 or $50 and some clothing, were missing. He ascertained that defendant with another person were at his house in a Ford car about the time of the loss of this property. The day following he went to Duncan, asked the defendant about having been there, and defendant admitted it. He then'asked who got his gun and clothes, and the defendant denied that he got them, but would not talk further. Some time after this the defendant was arrested upon another charge, and the gun was found in his possession. The prosecuting witness identified the gun by certain marks upon it, and also testifed as to the number. The defendant testified that he had bought the gun from one Williams and offered other evidence in corroboration. Upon the trial it developed that the pistol in question was labeled property of the United States, and the prosecuting witness testified that upon his discharge from the Army he was given his uniform, gas mask, this pistol, and possibly some other effects. We are met by the contention that the pistol was in fact the property of the government, and there is a fatal variance between the allegation of ownership and the proof.

The allegation of ownership in a charge of larceny is a material allegation and should be proved as pleaded. 25 Cyc. 88; 36 C. J. p. 859, § 403. The allegation of ownership of stolen property, however, is supported by proof of any legal interest or special ownership although less than absolute title.

This court, in the case of Little v. State, 21 Okla. Cr. 1, 204 P. 305, held:

“The actual condition of the legal title of property alleged to have been stolen is immaterial to the thief; so far as he is concerned, one may be taken as the owner who is in personal possession of the property and whose possession was unlawfully disturbed by the taking. The possessor of the goods from whom the thief took them may properly be described as the owner of the property in the indictment or information.” 36 C. J. § 404.

So in this case, even if the legal title were in the government of the United States and the possession had been delivered to prosecuting witness under the circumstances narrated, his possession of this pistol would be a sufficient ownership to satisfy the requirements of- the law.

The further contention is made that the proof of value exceeding $20 is not sufficient. The law requires that there shall be proof of market value exceeding $20 in order to sufficiently establish grand larceny. Filson v. Ter., 11 Okla. 351, 67 P. 473.

The prosecuting witness testified as follows:

“Q. Just tell the jury what the market value is? (An objection was sustained to the answer, it not being competent.)
“The Court: Just give your judgment what the value of the gun is. A. If a man had to sell it now, it would not bring over $25 or $30. I would not take ten times that for it.
“Q. Tell the jury what in your judgment that gun fs worth. A. $40 or $50.”

In the case of Filson v. Ter., supra, it is said where a witness testifies generally to the value of an article in common use, it will be assumed that the market value is meant, unless it appears from the testimony that the value is based on some other consideration. In the case of Hoffman v. State, 24 Okla. Cr. 236, 218 P. 176, citing the Filson Case, it is held that -the expression “market value,” when used to determine the grade of larceny, relates to buying and selling, so that the term “value” might be said' to be reasonable sale price, and the testimony of the witness Blumhoff, just quoted, fixed the selling price at $25 or $30. This is sufficient proof on the question of value to sustain the verdict.

The further contention is made that the evidence does not sustain the verdict, and our attention is called to the fact that the defendant offered evidence to support his claim that he purchased the pistol. The evidence is sharply conflicting, but its sufficiency is a question of fact, and under the uniform holding of this court is a question for the jury. The jury is in position to observe the appearance of the witnesses on the stand, their manner of testifying, their appearance, candor, and frankness or lack thereof, and their relationship to the defendant in interest. There is ample competent evidence in support of the verdict, and the weight and credibility of the evidence being for the jury, this court will not disturb the verdict for insufficiency.

Other assignments of error are presented and all have received attention. We find no prejudicial error.

The case is affirmed.

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


text:
    TONEY SHESTOKAS v. STATE.
    No. A-4785.
    Opinion Filed June 6, 1925.
    (236 Pac. 629.)
    (Syllabus.)
    Appeal and Error — Necessity for Assigning Error in Petition in Error. Unless the error complained of is so fundamental as to divest the court of jurisdiction, it must be assigned in the petition in error in order to be considered in this court.
    Appeal from County Court, Oklahoma County; C. C. Christison, Judge.

      Toney Shestokas was convicted of returning into possession of real estate after lawful removal, and he appeals.
    Affirmed.
    O. T. Shinn, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court of Oklahoma County on a charge of returning into possession of real estate after lawful removal. He was fined $1, procured a record for appeal upon an affidavit forma pauperis, and appeals to this court.

The record is very deficient. The original complaint is defective; the information based thereon is defective. The evidence is weak, and the trial as exemplified by the record suggests a kangaroo proceeding. However, no demurrer was filed to the information, nor objection to the introduction on the ground of insufficiency made, and no exception taken to any instruction. The only assignments of error are in the overruling of the motion for a new trial and motion in arrest of judgment. The brief argues various questions not presented by the petition in error.

There is, however, sufficient to give the court jurisdiction, and the defects and errors are either waived, or not so fundamentally erroneous as to require a reversal.

The case is affirmed.

BESSEY, P. J., and DOYDE, J., concur.


text:
    Ex parte MRS. H. M. (CRICKET) BENEFIELD.
    No. A-5622.
    Opinion Filed June 6, 1925.
    (236 Pac. 625.)
    Ogden & Krieger, for petitioner.
    The Attorney General and Fred Hansen, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The application for the writ herein prayed shows that the petitioner is now confined in jail by reason of a verdict and judgment of the county court of Carter county, wherein she was found guilty of unlawful possession of intoxicating liquor, with her punishment fixed at confinement in the county jail for a period of 60 days and to pay a fine of $250.

The petitioner claims that the court lost jurisdiction to assess this penalty because the jury commissioners, in selecting the jury, met in the county attorney’s office, and did not use the tax list of the county, as required.by law; that instead they used a list of voters furnished them by the election registrar; that several of the jurors were not taxpayers; and that the jurors were all selected from the vicinity of Wilson, in Carter county, and not from the county at large — all of which was in violation of statutory law.

The Attorney General demurred to the petition, claiming that the things complained of by petitioner are mere irregularities which do not operate to make the judgment and conviction void. The demurrer was by the court sustained.

The record shows that the county court of Carter county had jurisdiction of the person and the offense, and the irregularities in the selection of the jury did not divest the court of his jurisdiction. 12 R. C. L. 1205; In re Wood, 140 U. S. 278, 11 S. Ct. 738, 35 L. Ed. 505; notes and annotations, 11 Ann. Cas. 1053.

Where a petitioner is imprisoned under a judgment of conviction for crime, unless the court was without jurisdiction to render the particular judgment and the judgment is void and not merely voidable, relief cannot be had by habeas corpus, however numerous and gross may have been the errors committed during the trial or in the proceedings preliminary thereto. In re Jake Harry, 6 Okla. Cr. 168, 117 P. 726; In re Tom Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A. (N. S.) 805.

The application for the writ is denied.

DOYLE and EDWARDS, JJ., concur.


author: DOYLE, J.

text:
    L. H. SPEARS v. STATE.
    No. A-5034.
    Opinion Filed June 6, 1925.
    (236 Pac. 446.)
    Rummons & Hughes, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The plaintiff in error was convicted on a charge of unlawful conveyance of intoxicating liquor, and in accordance with the verdict was sentenced to pay a fine of $50 and to be confined in jail for 30 days. From the judgment he appeals.

No brief has been filed and no appearance made in behalf of plaintiff in error. The errors assigned question the sufficiency of the evidence to sustain the verdict. There is not much conflict in the evidence in the case. The officers observed a cousin of the defendant carrying a sack to the defendant’s car which contained two %-gallon jars of corn whisky. They were overtaken by the officer, and the defense was that the defendant did not know that the sack contained whisky.

This only raises a question of fact to be determined by the jury. The credibility of the witnesses and the weight to be attached to the testimony of each is peculiarly a question for the jury, and where the questions of fact were fairly submitted, as we think was done in this case, and there is sufficient evidence to support the verdict, it cannot rightfully be disturbed.

The judgment of the trial court is accordingly affirmed.

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


text:
    H. T. MILES v. STATE.
    No. A-4779.
    Opinion Filed June 6, 1925.
    (236 Pac. 907.)
    Moss & Owen, for plaintiff in error.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant. The defendant was convicted in the municipal criminal court of the city of Tulsa on a charge of having possession of intoxicating liquor with intent to sell, and his punishment fixed at a fine of $500 and six months in the county jail.

The evidence is very brief, and is to the effect that on the date charged certain police officers called up the defendant by telephone and arranged with him to bring a quart of whisky to a room in a bank building and that in a few minutes the defendant appeared there and at first went to the wrong room and inquired of some person there, and in the hearing of one of the officers, if they had called him. As he left this room, he was arrested and a quart of whisky taken from him. The police officer had no warrant of arrest nor search warrant.

The contention on which defendant seeks to reverse this case is that the search of his person was in violation of article 2, section 30, of the Bill of Rights, it being contended that, under this provision of the Constitution and the statute enacted in aid of it, the search was done upon a mere suspicion, and was unreasonable and unlawful; that any evidence obtained by means of such search could not be used in evidence against the defendant.

If, under the facts disclosed by the record in this case, the arrest was in violation of the constitutional rights of defendant, the case must be reversed. If, on the other hand, the officers in making the search lawfully arrested and searched the defendant the conviction should be affirmed. As there was in this case no search warrant, the question of the validity of a search warrant is not involved, but, if the arrest of the defendant was lawful, the arresting officer might lawfully search his person. Berg v. State, 29 Okla. Cr. 112, 233 P. 497; Davis v. State, 30 Okla. Cr. 61, 234 P. 787, and authorities therein cited.

The offense charged against the defendant is a misdemeanor and a peace officer may arrest for a misdemeanor without a warrant only for a public offense committed or attempted in his presence. Section 2471, Comp. St. 1921. It is held under similar provisions of law that it is not sufficient if, after the arrest, the search of the person discloses that the person arrested was committing an offense. Ter hold otherwise would be to license the arrest of any person on mere suspicion. The commission of the offense must be known to the arresting officer. However, the term “in his presence” does not mean that the officer shall in every case see the act or acts constituting the offense or attempted offense. The knowledge of the commission of a crime or attempt in his presence may come to him through his other senses, as well as through the sense of vision. Thus in the case of Dilger v. Commonwealth, 88 Ky. 550, 11 S. W. 651, it was held that police officers, who, while on their beat in the nighttime, heard screams coming from an upstairs room, were justified in making an arrest of an accused for beating his mistress as an offense committed in their presence; for, while the offense was not committed in their sight, yet it was within their hearing, and that this was in their presence as contemplated by law. A somewhat analogous case is that of Hawkins v. Lutton, 95 Wis. 492, 70 N. W. 483, 60 Am. St. Rep. 131. See, also, Stoehr v. Payne, 132 La. 213, 61 So. 206, 44 L. R. A. (N. S.) 604, and Commonwealth v. Tobin, 108 Mass. 426, 11 Am. Rep. 375.

It was held in the case of McBride v. U. S. (C. C. A.) 284 F. 416, that knowledge of the commission of the crime coming through the sense of smell was sufficient on which to predicate an arrest without a warrant. In that case an enforcement officer, without a warrant, entered a private inclosure containing a vacant house and barn, and, smelling the fumes from a still, searched the barn and found a still in operation. It was held that his arrest of the operators was lawful.

We think that, if a suspected person informed an officer that he is engaged in the commission of a misdemeanor, although the visual, auditory or olfactory proof is not evident, the officer is justified in acting on the information of the person suspected, although he cannot have the right to act on the information of any other person. Information by the person amounts to an admission, or to a waiver of knowledge derived through the ordinary senses. Here, in substance, the accused said to the officer: I will be over in 10 or 15 minutes with whisky on my person, at that time he appears in response to his agreement. It is true that at the time of his arrest the liquor had not been seen, yet, it cannot be said that the arresting officer had not observed any violation of the law, or an attempt to violate the law. The officer had observed the commission of at least one act constituting an element of attempting to commit the offense with which he was charged; that was, he had observed a manifestation of the intent to dispose of intoxicating liquors. The fact that the accused responded to an offer to purchase and agreed to sell and deliver whisky immediately would have been competent proof of intent, if the accused had been on trial for a charge of possessing whisky with intent to sell, which is the charge in this case. That evidence would have been sufficient proof on the matter of intent to have sustained the verdict.

It was said in the case of State v. Lutz, 85 W. Va. 330, 101 S. E. 434:

“An offense can be said to be committed in the presence of an officer only when he sees it with his own eyes, or sees one or more of the series of acts constituting the offense, and is aided by his other senses or by information as to the others, when it may be said the offense was committed in his presence.”

The question of entrapment is nowhere presented in the record or brief before us, and that phase of the matter is not considered. We believe that the record discloses a sufficient proof of the attempted commission of an offense in the presence of the arresting officer as to bring it within the contemplation of the law authorizing arrest for a misdemeanor committed or attempted in his presence.

The judgment is affirmed.

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


text:
    J. O. PRENDERGRAST v. STATE.
    No. A-4748.
    Opinion Filed June 6, 1925.
    (236 Pac. 903.)
    M. S. Simms, for plaintiff in error.
   EDWARDS, J.

The plaintiff in error will be referred to as defendant, as in the court below, Defendant was convicted in the municipal criminal court of the city of Tulsa for having possession of whisky with intent to sell. Various assignments of error are presented attacking the constitutionality of the court, but as this contention has heretofore been decided adversely to defendant, it will not be further considered here. Buchanan v. State, 30 Okla. Cr. 362, 236 P. 903. Error is also predicated on the fact that the court called a jury for the trial of this case after express waiver by the defendant, which contention has been decided adversely to defendant in the case of Morrison v. State, 31 Okla. Cr. 11, 236 P. 901, just decided.

Complaint is made that evidence, obtained under a search warrant, was permitted to be used in evidence, when the warrant had not been served on the defendant, and that the evidence is insufficient to sustain the verdict, and that the verdict assessing the punishment is excessive. The evidence discloses that the search in question was made under a search warrant, and was served on an employee in charge of the kitchen of the place searched, and that, during the course of the search, the personal room of the defendant was searched and concealed in a chair were found five pints of whisky. Various other empty bottles were found, and in the kitchen a whisky glass that had just been used. Proof was admitted that the reputation of the house as a place where whisky was kept for sale was bad. Defendant testified in his own behalf, and his testimony was that he knew nothing about the whisky.

The evidence is ample to sustain the verdict. Its weight and credibility was for the jury and the verdict will not be disturbed on the ground of insufficiency. Where the charge is possession with intent to sell, the reputation of the place as a place where whisky is kept for sale is admissible. Bland v. State, 18 Okla. Cr. 514, 196 P. 732; Davis v. State, 16 Okla. Cr. 372, 182 P. 908; Caffee v. State, 11 Okla. Cr. 263, 145 P. 499.

We find no reversible error, and the case is affirmed.

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


text:
    BONNIE COLLINS v. STATE.
    No. A-4747.
    Opinion Filed June 6, 1925.
    (236 Pac. 902.)
    M. S. Simms, for plaintiif in error.
   EDWARDS, J.

The plaintiif in error will be referred to as defendant, as in the court below. The defendant was convicted of unlawful possession of intoxicating liquor, and appeals. Several assignments of error are presented attacking the act creating the municipal criminal court of the city of Tulsa. This having been decided adversely to the contentions made will not be further considered. Buchanan v. State, 30 Okla. Cr. 362, 236 P. 903.

Complaint is also made for the reason that the court called a jury for the trial of the case, although the defendant had expressly waived a jury trial. This contention has also been decided adversely to the defendant. Morrison v. State, 31 Okla. Cr. 11, 236 P. 901, just decided.

It is also contended that evidence obtained by an illegal search warrant was used against defendant. The evidence on this point is ambiguous. The search warrant described the Empress rooms, but evidently gave the wrong house number. In the absence of a showing of bad faith, we think there is no such irregularity as would make void the search warrant. The next contention is that the evidence is insufficient to sustain the verdict. The record discloses that the place searched was certain rooms at the Empress Rooming House, one of which was occupied by the defendant, and nothing was found in that room. In the kitchen five half-pints of whisky were found. There is no evidence that the kitchen was in the control of the defendant, or that she had any connection with it. It was essential to prove that the defendant was in the possession of this whisky in order to convict. The record does not contain such proof and the verdict is, therefore, not sustained by the evidence.

Other errors are assigned, but as the case must be reversed for insufficiency of the evidence, they will not be discussed.

The case is reversed.

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


text:
    J. C. MORRISON v. STATE.
    No. A-4751.
    Opinion Filed June 6, 1925.
    (236 Pac. 901.)

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

The plaintiff in error will be referred to as defendant. The defendant was convicted of unlawful possession of intoxicating liquor in the municipal criminal court of the city of Tulsa and appeals by case-made which does not contain the evidence.

Several assignments of error are presented in the very able brief by counsel for defendant, several of which are directed to the constitutionality of the act of the Legislature creating the said court. The contention that the creation of the court is unconstitutional has been decided adversely to the contention of defendant in the case of Buchanan v. State (No. A-4749) 30 Okla. Cr. 362, 236 P. 903, and on the authority of that case this contention will not be further considered. It is assigned as error that the court called a jury in the trial of the case, although the defendant had expressly waived a jury trial by filing a written waiver, citing: Section 20, art. 7, state Constitution; In re Opinion of the Judges, 6 Okla. Cr. 18, 115 P. 1028; Cowden v. State, 5 Okla. Cr. 71, 113 P. 202; Soper v. State, 22 Okla. Cr. 27, 208 P. 1044.

We find no fault with the law announced that a defendant may waive a trial by jury. We have found noth-', ing in the record that indicates that the state also waivea a trial by jury, nor is our attention called to any decision holding that a trial court, even though a waiver is made by both parties, may not of his own volition have a jury pass on the facts. The right is not given to a defendant to elect whether he will be tried by the court or by a jury. The state is entitled to a jury, although the defendant may expressly waive a jury. The Constitution (section 20, art. 7) contemplates that in order for a waiver to be effective both parties should waive the right to have the issues of fact determined by a jury. Cowden v. State, supra; In re Wilkins, 7 Okla. Cr. 422, 115 P. 1118. There was no error in the calling of a jury by the trial court.

Complaint is also made that the record does not show the filing of any verified complaint, nor the issuing of a warrant. Neither does the record show that any objection was made to any irregularity of the proceeding prior to the arraignment of the defendant, or the information and his plea of not guilty thereto. So even if the warrant of arrest were illegal and no objection was made in apt time before plea to the information, the objection, if it hadi any validity, is waived. Bowen v. State, 5 Okla. Cr. 605, 115 P. 376.

The complaint is made that the court erred in overruling defendant’s challenge to the jury panel. The recordl discloses that, subsequent to the plea of not guilty, defendant asked for leave to withdraw his plea in order to file a demurrer to the jurisdiction of the court, a motion to quash the information, demurrer to the information, and a challenge to the panel of jurors. Leave was granted to withdraw for the purpose of filing a demurrer to the information, and a motion to quash the-panel of jurors, and for no other purpose. The demurrer to the information was properly overruled. The challenge to the panel was filed. Counsel said:

“Mr. Ward: Defendant files challenge to the panel and tenders the same evidence as tendered in the Buchanan Case.”

Motion was overruled by the court. Defendant excepts. Whether the tender of evidence was competent and material or was even received in evidence, we are not advised. It is not in the record. Complaint is also- made of the court’s instruction No. 5, on the presumption of innocence, which is:

“The court instructs the jury that the law presumes the defendant to be innocent until proven guilty beyond a reasonable doubt; such doubt to authorize an acquittal upon reasonable doubt alone, must be a substantial doubt of the defendant’s guilt, with a view to all the evidence in the case and not a mere possibility of the defendant’s innocence.”

The instruction is inartful and unnecessary, but, as in other of the instructions, the jury are fully told of the -burden of proof, the presumption of innocence, and the things necessary to be proven beyond a reasonable doubt in order to find the defendant guilty, there is no such error as calls for a reversal of this case. It is further assigned as error that the punishment is excessive, but, the evidence not being before the court, we are unable to determine this contention.

The case is affirmed.

BEiSSEY, P. J., and DOYLE, J., concur.


text:
    BOB QUALLS v. STATE.
    No. A-5013.
    Opinion Filed June 6, 1925.
    (236 Pac. 446.)

      J. H. Foster and Womack, Brown & Cund, for plaintiff in error.
    George F. Short, Atty. Gen., and V. P. Crowe, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Stephens county, October 17, 1923, the defendant, Bob Qualls, “did willfully and unlawfully transport intoxicating liquor, to-wit, six half gallons of whisky from a place in section 14, 1 north, seven west, Stephens County, Okla., in the S. W. 14 of the N. E. % of said section to a place about 30 feet from the point of beginning.” On the trial the jury returned a verdict, finding the defendant guilty as charged in the information, and fixing his punishment at confinement in jail for 60 days and a fine of $200. From the judgment entered upon the verdict, he appeals.

The assignments of error question the sufficiency of the information and the sufficiency of the evidence to support the verdict.

The undisputed facts are that two officers on the afternoon of the day alleged went to a pasture where they discovered a still being operated by two men named Boone and Sparks. The defendant was standing by with a sack containing six half-gallon jars of corn whisky. When the officers appeared, the defendant ran with the whisky about 30 feet, and on command of the officers stopped with the whisky at that point.

As a witness in his own behalf he testified that he had no intention of going anywhere with the whisky; that when the oificers stepped out he ran four or five steps, or about 15 or 20 feet, with the whisky.

The pasture, it appears, was owned by Frank Crawford, who lived at Durant, and was leased by Bill Houk for the year. The defendant had no claim on the lease, but he did have 17 head of cattle in the pasture. It also appeared that Boone and Sparks, who operated the still, had worked for the defendant.

We deem it sufficient to say that under repeated decisions of this court the information is sufficient. Chapman v. State, 28 Okla. Cr. 208, 230 P. 283; Simmons v. State, 28 Okla. Cr. 329, 230 P. 757; Wise v. State, 28 Okla. Cr. 324, 230 P. 930; Thompson v. State, 27 Okla. Cr. 309, 227 P. 892. As to the sufficiency of the evidence there can be no doubt.

It is urged on behalf of the defendant that the sentence was excessive, and should be reduced, in case the conviction should be sustained. The Attorney General calls the attention of the court to the case of Cook v. State, 26 Okla. Cr. 119, 222 P. 703, and states: “Upon the authority of that case we respectfully urge that the punishment in the case at bar is not excessive.” When no error appears in the record, and the punishment imposed is warranted by the law and the facts in the case, it will not be reduced by this court because of apparent undue severity. To so reduce it would in such case be an act of clemency, and not a judicial review of the trial.

Finding no material error in the record, the judgment of the lower court is affirmed.

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


author: PER CURIAM.

text:
    NATE HANTMAN v. STATE.
    No. A-4750.
    Opinion Filed June 6, 1925.
    (236 Pac. 443.)
    Jno. L. Ward, for plaintiff in error.
   PER CURIAM.

The plaintiff in error was convicted in the municipal criminal court of Tulsa on a charge of vagrancy, under section 1956, Comp. St. 1921. An appeal was filed in this court on June 28, 1923. No briefs have been filed by appellant as required by the rules of this court. If the matter is not of sufficient importance to appellant to present the contentions of error relied upon this court will not search the record for errors on which to reverse, but, where no fundamental error appears on the face of the record, will affirm the judgment of the lower court.

The case is affirmed.


text:
    KINK EPPERSON v. STATE.
    No. A-5015.
    Opinion Filed June 6, 1925.
    (236 Pac. 442.)

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

In the information in this case, Kink Ep-person and Verna Epperson, his wife, were charged with possession of intoxicating liquor, with the unlawful intent to sell the same. On their trial the jury returned a verdict, finding Verna Epperson not guilty, and finding Kink Ep-person guilty as charged in the information, leaving his punishment to the court. November 19, 1923, the court pronounced judgment and sentenced the defendant Kink Epperson to be confined in the county jail for six months and to pay a fine of $500 and the costs. From the judgment he appeals, but no brief has been filed and no appearance made on his behalf in this court.

The errors assigned question the sufficiency of the evidence to support the verdict; the rulings of the court on the admission and rejection of testimony.

The undisputed facts are that John Stout, city marshal of Picher, arrested the defendant on complaint of his wife for occupying a room in a local hotel with another woman; she then in the presence of the defendant stated to the officer that she wanted him to come down to their house and get his plant, and the defendant said, “Go ahead; I will take that jolt.”

The city marshal testified that he with two or three other officers went to the defendant’s home in Picher and found eight or nine bottles of whisky in an outhouse on the lot. The defendant did not testify.

An examination of the record fails to disclose any error in the admission or rejection of evidence, or in the instructions given to the jury, and the evidence is clearly sufficient to sustain the verdict.

The judgment of the lower court is accordingly affirmed.

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


text:
    T. A. CRAIG v. STATE.
    No. A-5025.
    Opinion Filed June 12, 1925.
    (236 Pac. 909.)
    Burns & Turner, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

Plaintiff in error, T. A. Craig, was convicted on a charge of transporting whisky from a point unknown to a point on Frisco street in the city of Picher. On the trial the jury returned a verdict finding the defendant guilty as charged in the information and adding, “The jury recommends leniency.”

The record shows that the defendant requested that the question of punishment be submitted to the jury, and asked that the jury be directed to retire and fix the punishment, which requests were denied. Thereupon the defendant objected to receiving of the verdict, which objection was overruled. Motion for new trial was overruled, and the court sentenced the defendant to be confined for 60 days in the county jail and to pay a fine of $500. Exceptions reserved.

The state relied for this conviction upon the testimony of N. C. Cox and C. E. Fletcher, deputy sheriffs; each testified that they saw the defendant driving an old farm wagon on Frisco street in Picher, with chickens, guinea hens, and eggs in it; that they stopped him and searched his wagon to see what he had in it, and found two half-gallon iarg of whisky in a sack covered over with hay just back of where he was sitting in the wagon; that the defendant lived just across the state line in Kansas on a farm with his wife, a very feeble old lady, and he told them that he was taking the whisky home for his wife. The defendant did not testify.

Of the various assignments of error, it is only necessary to notice one, that the court erred in refusing the request of the defendant to allow the jury to assess and declare the punishment in their verdict.

The Code of 'Criminal Procedure provides:

“In all cases of a verdict of conviction for any offense against any of the laws of the state of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.” Section 2750, C. S. 1921.
“Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.” Section 2751.

Under the first section in all cases of a verdict of conviction, the jury has the right to assess and declare the punishment in their verdict, and, upon the request of the defendant, the jury must assess and declare the punishment, unless they fail to agree on the punishment to be inflicted; and if they find the defendant guilty and fail to agree on the punishment or to declare it in their verdict, then the court may assess and declare the punishment as provided by section 2751. These sections deliminate the respective provinces of the court and jury as to the assessment of punishment in criminal cases.

To the constitutional right of a speedy and public trial by an impartial jury of the county in which the crime shall have been committed, the statute gives the supplemental right to have the jury assess the punishment, where the defendant demands it. A refusal to instruct the jury of this right, when requested by the defendant, is prejudicial error, as being a denial" of a substantial right given to him under the statute. Dew v. State, 8 Okla. Cr. 55, 126 P. 592; McSpadden v. State, 8 Okla. Cr. 489, 129 P. 72; Oelke v. State, 10 Okla. Cr. 49, 133 P. 1140.

For the error indicated, the judgment is reversed, and the cause remanded, with direction to grant a new trial.

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


text:
    J. C. PATRICK v. STATE.
    No. A-4942.
    Opinion Filed June 12, 1925.
    (236 Pac. 911.)

      E. H. Gipson and D. W. Tracy, for plaintiff in error.
    George F. Short, Atty. Gen., and Charles Hill Johns; Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that in Beckham County, August 6, 1923, J. C. Patrick did—

“have the possession of certain spirituous, vinous, fermented, malt and intoxicating liquor, to-wit: About a half gallon of beer in a half gallon fruit jar, with the unlawful intent then and there on the part of him, the said J. C. Patrick, of violating the provisions of the prohibitory liquor laws of Oklahoma.”

A trial Was had thereunder. The defendant was found guilty, and his punishment fixed at 30 days in jail and $50 fine. From the judgment entered upon the verdict, he appeals.

Of the various assignments of error we deem it only .necessary to consider the one — that the evidence is insufficient to support the verdict.

J. A. Dunagan, city marshal of Erick, and deputy sheriff, testified that he saw the defendant at the gin talking to George Barrett, and saw them leave in Barrett’s car, and he waited for them to come back, and saw the defendant when he returned carrying a jar into his house, so he got a search warrant, searched the defendant’s home, and found this jar, which was introduced in evidence, and arrested the

defendant; that the jar contained Choc beer; that he stuck his tongue into it. He was then asked how Choc beer was made and what are the ingredients and answered: “I don’t know exactly; they use a lot of hops and some coloring.”

C. D. Eawson testified that he was with Dunagan at the time he searched the defendant’s house; that Dunagan asked the defendant if he had anything to drink, and the defendant said, “No”; that Dunagan found the jar; that the defendant was sitting in a rocking chair with his shoes off.

The jar and its contents was introduced in evidence.

The witness Dunagan was recalled and asked: “Do you know whether Choc beer is intoxicating?” and answered, "Yes, sir; it is.”

For the defense, J. W. Barrett testified that he was talking to the defendant at the gin; the defendant said that he had eczema on his feet and took off his shoes and showed him his feet which were swollen and bleeding; that he told him that it could be cured and they got in his car and drove to his home three miles in the country; there witness prepared a wash for his feet, that he made up of vinegar, salts and bismuth; that it had no alcohol, hops, or malt in it, but had some red wall paper soaked in it; that the jar introduced in evidence was the same jar.

Mr. Cornels testified that he was employed at the gin and heard George Barrett ask defendant about his feet, and was present when the defendant pulled his shoes off; then they left in Barrett’s car.

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

“I live at Erick with my wife and three children; employed as engineer in the Douglas gin; I told Mr. Barrett that I had eczema, and he said he could cure it, and if I would go with him he would give me something to cure it; we went to his house in his car and he prepared the foot medicine and then drove me back to my house; I pulled off my shoes and bathed my feet and about that time Mr. Dunagan came in and took the jar; I told him I wanted it to bathe my feet; I think the jar introduced in evidence is the stuff Mr. Barrett gave me; I could not swear it, but it looks like it.”

At the close of the evidence the defendant moved for a directed verdict of acquittal on the ground that the evidence was insufficient to warrant a conviction. Which motion was denied. We do not think that the evidence is sufficient to warrant the verdict of the jury. Before a jury is authorized to find a defendant guilty in any criminal case, there must be evidence sufficient to prove that an offense has been committed. In this case the evidence is insufficient to show that the contents of the jar was intoxicating liquor. Assuming that it was intoxicating liquor, there is no direct or positive evidence tending to show an intent on the part of the defendant to violate the prohibitory liquor laws.

Because the evidence is insufficient to sustain a conviction, the judgment of the lower court is reversed.

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


text:
    FRANK YOUNGEAGLE v. STATE.
    No. A-4913.
    Opinion Filed June 13, 1925.
    (236 Pac. 915.)

      Rowe & Besly, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Plaintiff in error, Frank Youngeagle, was charged, tried, and convicted of the unlawful possession of whisky, with his punishment assessed at confinement in jail for 30 days, and to pay a fine of $50.

The evidence shows that plaintiff in error and other Indians accompanying him, knew where a keg containing whisky was secreted, and that they repaired to this place to drink. Youngeagle became intoxicated and was lodged in jail on a charge of being drunk. It seems that while he was in jail and still under the influence of liquor the officers sought to obtain information from the accused as to where he had obtained the whisky. As an inducement to him to tell, the officers promised him his release if he would furnish them with the desired information. Youngeagle then stated that he had bought the whisky from a man named Studer, and told where the whisky was hidden. The officers went out and seized the whisky, and then took the accused to the office of the county attorney, where he verified a complaint against Studer for selling whisky, whereupon the accused was set at liberty in accordance with the promises made by the officers who had him in custody.

At the trial of Studer Youngeagle changed his story, and said he got the whisky from another person, describing him. By a verdict of a jury Studer was acquitted, and the jury attached to their verdict the following':

“We also recommend that Frank Youngeagle be prosecuted for perjury.”

At the trial of Youngeagle, over the objection of his counsel, the state was permitted to introduce in evidence this recommendation made by the jury in the Studer Case. This written recommendation had no tendency to prove any issue in this case. It was an unauthorized attempt to impeach the accused by hearsay evidence, and was not competent for that or any other purpose, and was, of course, highly prejudicial to the defendant.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    J. C. CHANDLER v. STATE.
    No. A-4824.
    Opinion Filed June 13, 1925.
    (236 Pac. 917.)

      R. A. Wilkerson, T. C. Wilson, A. L. Battenfield, and A. W. Fisher, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Mayes county on a charge of rape in the second degree, and sentenced to a term of one year in the state penitentiary.

The petition in error assigns various matters, but the brief is limited to the one contention that the court excluded competent and material evidence offered by plaintiff in error in his defense. In the direct testimony of the witness Marie Washam, the state proved that by reason of the intercourse between the defendant and the prosecuting witness she became pregnant. Oñ cross-examination the defendant sought to show acts of intercourse with others than defendant. Here the court interrupted and announced, in substance, that evidence of illicit relations between prose-cutrix and any other person was incompetent, and after some colloquy between the court and counsel, the court said:

“I understand what you mean. Our courts hold that you cannot show any relation of this prosecutrix with anybody else. It is no defense. It should not be permitted to go into testimony in the case.
“By Mi. Wilson (for Defendant) : Unless — if the state shows and proved a state of pregnancy as a part of their case — as corroboration.
“By the Court: No,'that does not make any difference.
“By Mr. Wilson: Your Honor, we can show that the pregnancy could have been caused by some one else, as an offset to that corroboration. * * *
“By Mr. Gore (for the State) : Your honor, pregnancy is only shown as a corroborative circumstance of intercourse.
“By Mr. Wilson: Yes, and we can show that it might have been caused by somebody else. The defendant at this time offers and desires to show by this witness— inasmuch as the state has already shown pregnancy as an element of their proof — the defendant desires to show, and offers to prove, that that pregnancy might have been caused by other parties than the defendant, in order to offset that corroborative circumstance which the state had already put in.”

The court excluded the offer of proof, and exceptions were taken.

In a case of this kind, where by reason of age prosecu-trix is incapable of giving her consent to sexual intercourse, it is generally immaterial that prosecutrix had intercourse with some other man. But where the state in its case in chief proves pregnancy in corroboration of the act of intercourse, then it is competent for the defendant to offer evidence that some other person, at about the time of the alleged offense, had intercourse with the prosecutrix for the purpose of rebutting the corroboration shown by the pregnancy. If, however, the fact of pregnancy is first ■ brought out by the defendant on cross-examination or otherwise, he will not be permitted to then offer evidence of other acts of intercourse for the rebutting of the evidence drawn out by himself. People v. Kilfoil, 27 Cal. App. 29, 148 P. 812.

The Supreme Court of Kansas lays down the extreme rule that, where pregnancy is proven, it is prejudicial error to deny the defendant the right to examine fully concerning the relation of prosecutrix with other men at about the time of her conception, although no distinct offer is made to show improper relations. State v. Gereke, 74 Kan. 196, 86 P. 160, 87 P. 759, citing in support of the rule 5th Cyc. 600, note 30. Maynard v. People, 135 Ill. 416, 25 N. E. 740.

We think, however, that the doctrine there announced is too broad, and that the right to cross-examine or to offer evidence should be limited to cases where the state proves pregnancy. The evidence of other acts of intercourse should be admitted only when they occurred at about the time of the conception, and for the sole purpose of rebutting the corroboration of pregnancy. The correct rule, we believe, is stated in the case of Fuller v. State, 23 Ariz. 489, 205 P. 324, as follows:

“Stated shortly and simply, he had a right to account for the result, i.e., the child, by showing that it was due to another cause, i. e., the sexual intercourse of another. His right to do this was coequal with the right of the state to support the allegation of rape by showing the outcome of the act. If appellant could show that he was not the father of the child directly charged to be his, it was most material to his defense, and he should be allowed to prove it by all relevant evidence. There is no dissent in the authorities from these propositions.”

See, also, O’Chiato v. People, 73 Colo. 192, 214 P. 404.

There is nothing inconsistent with this view in the holding of this court in the case of Walker v. State, 8 Okla. Cr. 125, 126 P. 829. In that case error was predicated on the general question as to whether or not prose-cutrix had had intercourse with any one else. The question was not definite in time, and seemed to have been asked, not to rebut the corroboration of pregnancy, but to impeach the prosecutrix by proof of unchaste conduct, or general bad character, and for that purpose was clearly inadmissible. But the court said:

“We think the court properly sustained the objection to this question. If the question was definite in time or confined to about the time of the commission of the alleged crime, it might be competent cross-examination, in that the answer might tend to show that a man other than the defendant had sexual intercourse with the prosecutrix, and could have been the father of the child. Bice v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; Knowles v. State, 44 Tex. Cr. R. 322, 72 S. W. 398; People v. Flaherty, 79 Hun, 48, 29 N. Y. Supp. 641.”

In this case, while the question may not have fixed the time definitely, yet the offer of proof, as stated to the court, was intended to show that, at about the time of the conception, the prosecutrix had intercourse with other men, and her pregnancy was due to intercourse with some one other than the defendant, who could have been the father of the child. Under these circumstances and for this purpose, the evidence was competent, material, and relevant, and its exclusion was prejudicial error requiring a reversal.

The case is reversed and remanded.

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


text:
    FRANK JACKSON et al. v. STATE.
    No. A-4811.
    Opinion Filed June 13, 1925.
    (237 Pac. 129.)

      R. L. Suddath, for plaintiffs in error.
    George F. Short, Atty. Gen., and Baxter Taylor, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiffs in error will be referred to as defendants. From a conviction in the district court of Creek county on a charge of burglary, the defendants appeal. The information charges that they broke and entered a certain freight car on the tracks at Depew, in said county and state, and said burglary was committed with intent to take, steal, and carry away, with intent to convert the said goods, describing them, all of the ag-' gregate value of $740, to their own use and benefit, with intent to permanently deprive the said St. Louis & San Francisco Railroad Company thereof. No demurrer was filed to the information, and no objection to the introduction of evidence made. After conviction, a motion in arrest of judgment was filed. Only two assignments of error are argued in the brief: First. Error in overruling motion for new trial on account of the insufficiency of the evidence. Second. Error in overruling motion in arrest of judgment on account of insufficiency of the information.

In determining the question presented, the latter contention will be considered first. The statute under which the defendants are charged, omitting the parts not pertinent here, is section 2063, Comp. St. 1921:

“Any person who breaks and enters * * * any * * * railroad car * * * in which any property is kept, with intent to steal therein or commit any felony, is guilty of burglary in the second degree.”

The statute further provides (section 2563, Comp. St. 1921) that an indictment or information is sufficient if, among other requisites, it can be understood therefrom that the offense was committed at some place in the jurisdiction of the court, and that the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended, and the section following provides that no indictment or information is insufficient by reason of a defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. Section 2822, Comp. St. 1921, generally referred to as the harmless error statute, is as follows:

“No judgment shall he set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of. evidence, or as to error in any matter of pleading or procedure,, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

Here it is argued by defendants that the information is defective in failing to allege the ownership of and fully describe the car burglarized, and that it does not charge the ownership of the property- in any person.

Burglary may be committed by breaking and entering a car in which property is kept with intent to steal therein or commit any felony. The allegation in the information here is sufficient to show that property was in the car, and that the breaking was either with the intent to steal or, if the allegations are insufficient to show an intent to steal, the intent to commit grand larceny is alleged, which would satisfy the statute. It may be gathered from the information, although defectively stated, that the property and the railroad car were in the possession of the St. Louis & San Francisco Railroad Company. Where, however, a defendant goes to trial without demurring to an information or making any objection to the introduction of evidence, every intendment and inference to support the information will be indulged in. Ralston v. State, 16 Okla. Cr. 634, 185 P. 831; Clark v. State, 11 Okla. Cr. 494, 148 P. 676; Ex parte Spencer, 7 Okla. Cr. 113, 122 P. 557; Gourley v. State, 8 Okla. Cr. 598, 129 P. 684.

The theory of the holdings of this court that objections to an information should be made by demurrer is that substantial justice may be done. If a defendant believes an information to be defective he should raise the objections by demurrer. Failing to do this, and waiting until a jury is impaneled and then raising an objection, may seriously retard the administration of justice. But even then, when it is clear that the facts stated do not constitute a public offense, an objection to the introduction of evidence will raise the issue. But if, by any reasonable construction or intendment, the information can be upheld when raised in that manner, it will be done. When not raised in that manner, and a defendant speculates upon the result of trial, an objection by motion in arrest of judgment can raise only the objection to the jurisdiction of the court over the subject-matter, or that the facts stated do not constitute a public offense. Section 2616, Comp. St. 1921; Stone v. State, 12 Okla. Cr. 313, 155 P. 701. And in such case the rule that all intendments and inferences will be indulged in to sustain the information obtains.

'Giving effect to the various provisions of our statute and particularly provisions of the harmless error statute, and under the record of this case, we believe that the information, giving it the inferences and intendments suggested, is sufficient.

There can be no question but that the defendants knew they were charged with breaking into and entering a railroad car in the possession of the St. Louis & San Francisco Railroad Company at Depew, Creek county, with the intent to steal property in said car. They are not prejudiced by the failure to describe the car by number and initials; it is not likely that they gave much consideration to the markings on the car. In so holding we are not unmindful of the former decisions of this court in the cases of Simpson v. State, 5 Okla. Cr. 57, 113 P. 549; Sullivan v. State, 7 Okla. Cr. 307, 123 P., 569, and Parker v. State, 13 Okla. Cr. 460, 165 P. 622, holdifig in effect that the indictment or information in each-, of .these cases was fatally defective. In these cases, however,, it is to be borne in mind a challenge was made by. .'demurrer before plea, and the rule as to intendment and inferences, above stated, does not apply. The decisions in the cases of Simpson v. State, supra, and in Sullivan v. $tate, supra, were rendered prior to the taking effect of the statute in question. We incline to the view that the holding,in the Simpson, the Sullivan, and the Parker Cases, supra, requires a greater strictness in charging burglary1 than is warranted under the present condition of our law.

Upon the further contention that the evidence is insufficient to sustain the verdict’ of the jury, we have examined the record fully, and to our mind the guilt of the defendants is established by an abundance of evidence, and the verdict and punishment imposed was not excessive. No good purpose will be served" by setting out the evidence in detail.

The case is affirmed.

BESiSEY, P. J., and DOY1LE, J., concur.


text:
    L. F. CLAUSSEN v. STATE.
    No. A-5111.
    Opinion Filed June 13, 1925.
    (236 Pac. 1118.)
    J. Q. A. H,arrod, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

L. F. Claussen was convicted in the county court of Oklahoma county of maintaining a public nuisance, and appealed to this court. Satisfactory proof having been here made, showing that the plaintiff in error departed this life on the 11th day of March, 1925, the appeal is ordered abated.


text:
    Ex parte RICH WALKER.
    No. A-5581.
    Opinion Filed June 13, 1925.
    (236 Pac. 919.)
    See, also, 23 Okla. Cr. 385, 214 P. 734.
    E. T. Barbour, for petitioner.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Rich Walker, the petitioner, avers that on the 14th day of December, 1922, by a judgment of the district court of Oklahoma county, predicated upon a verdict of a jury, he was adjudged guilty of a violation of the narcotic drug laws, with his punishment fixed at confinement in the penitentiary for a term of four years and to pay a fine of $5,000, the judgment further providing that:

“In default of payment of said fine the same shall be enforced by imprisonment until the fine shall be satisfied, at the rate of one dollar per dáy.”

Petitioner says that he has served his four-year sentence, with time off for good behavior, and that the fine so imposed is unauthorized and void, and that his further detention by the warden of the penitentiary is unauthorized.

In the case Ex parte Bowes, 8 Okla. Cr. 201, 127 P. 20, it was said:

“In all cases of conviction when a fine is imposed,” the court may “order the defendant committed to jail until the fine is paid, and * * * the power of the court to order a defendant sentenced to paya fine to be committed is not confined to cases where a fine only is inflicted, but also extends to cases where both imprisonment and fine are inflicted.”

It was further held in the Bowes Case that the power to punish by fine and imprisonment until such fine is paid did not include the power to include costs of prosecution and to adjudge that upon failure to pay such costs by the defendant that they, in addition to the fine, shall be satisfied by imprisonment.

The ruling in that case was predicated upon the provisions of section 6917, Comp. Laws 1909, providing:

“A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine is satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine.”

Subsequent to the holding in the Bowes Case, an attempt was made by the revisors of the statutes to amend this statute, as shown by section 5958, R. L. 1910 (section 2775, Comp. St. 1921), which is as follows:

“A judgment that the defendant be imprisoned and pay a fine and costs may also direct that at the end of the prison sentence he be imprisoned until the fine and costs are satisfied, specifying the extent of the imprisonment, which cannot exceed one day for every two dollars of the fine and costs.”

This section, however, never became effective, because the 1910 revision of the laws was a revision of the laws in force and effect on February 25, 1911, and between that date and the date of the approval of the revision (May 16, 1913) the Legislature passed another act, approved and made effective March 29, 1913 (chapter 112, Session Laws 1913; section 6332, Comp. ¡St. 1921), which is as follows:

“The fees herein provided for the clerk of the district • court, the clerk of the superior court, the clerk of the county court, the sheriff, the county attorney, the constable, and the justice of the peace, as provided in this act, and all costs in the prosecution of all criminal actions shall in case of conviction of the defendant be adjudged a part of the penalty of the offense of which the defendant may be convicted, whether the punishment for such offense be either imprisonment, or fine, or both, and fixed either by the verdict of the jury, or judgment of the court trying the case, and the payment of such fees and costs in addition to the payment of the fine assessed, shall be enforced by imprisonment until the same shall be satisfied, at a rate of one dollar per day of such fees and costs, or fine, or both, whether the defendant shall perform labor on the public road or highway, or remain in prison.”

This is the law as it now stands. Therefore that part of the judgment providing for the satisfaction of the fine and costs at the rate of $1 per day was in accordance with the express terms of the statute now, and then, in force and effect, and in harmony with the former decisions of this court. Smith v. State, 12 Okla. Cr. 513, 159 P. 941.

This court can therefore extend no relief to the petitioner so long as the fine and costs assessed against him remain unsatisfied, either by payment or by confinement at the rate of $1 per day.

The application for the writ is denied.

DOYLE and EDWARDS, JJ., concur.


text:
    JOHN CAMPBELL v. STATE.
    No. A-4752.
    Opinion Filed June 13, 1925.
    (237 Pac. 133.)
    M. S. Simms, John L. Ward, and George Paschal, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, John Campbell, here referred to as the defendant, was convicted in the municipal criminal court of Tulsa of the crime of vagrancy, an offense against the state under the provisions of section 1956, Comp. Stat. 1921. The jury assessed the penalty at a fine of $100, and imprisonment in the county jail for a period of 30 days. From the judgment on the verdict the defendant appeals.

The only evidence supporting the accusation was given by detectives and peace officers of Tulsa, three of whom said the defendant was engaged in the whisky business; that he had no “regular” occupation; that he was seen at various times loitering or driving a car; that he lived in a rented residence which, had been raided for whisky. Two detectives said that the general reputation of the place where defendant lived as being a place where intoxicating liquor was kept for sale was bad. Another said that for a time the defendant stayed at the Colorado hotel, and that the reputation of this hotel was likewise bad.

Section 1956, Comp. Stat. 1921, the statute upon which this prosecution is based, is as follows:

“The following persons are vagrants within the meaning of this article:
“First. An idle person who lives without any means, or who has no visible support and makes no exertion to obtain a livelihood by honest employment.
“Second. Any person who strolls or loiters idly about the streets of any city, or town, having no local habitation and no honest business or employment.
“Third. Any person who strolls about to tell fortunes or to exhibit tricks not licensed by law.
“Fourth. Any common prostitute, any manager or controller of a house of prostitution or ill fame or any one employed therein as barkeeper, caller of figures for dances, or habitual frequenter thereof.
“Fifth. Any professional gambler or gambler commonly known as a tin-horn gambler, card player or card sharp.
“Sixth. Any person who goes about to beg alms, who is not afflicted or disabled by a physical malady or misfortune.
“Seventh. Any habitual drunkard.
“Eighth. Any person who abandons or neglects or refuses to support his family.”

This statute became effective February 28, 1903, and in its original form was not separated into paragraphs. For the sake of convenience this statute was paragraphed by subsequent compilers.

In the information the defendant, in separate paragraphs, was charged with being a vagrant on the 16th day of January, 1923, by violating each and every one of the eight subdivisions of the statute above quoted.

The unfilled blank spaces which occur in several of the paragraphs or counts of the information, considered in connection with its inconsistencies and absurdities, indicate that it was a printed form for quick and convenient use, a “drag-net” information designed to cover and include every kind of vagrancy. Manifestly, this man could not be a prostitute, as charged; he could not, at one and the same time, be an idle person with no occupation and engaged in the business of fortune telling or of gambling.

These all-inclusive accusations are to be condemned, where there is no foundation in fact for some of the charges and no expectation to support some of them by proof. To hold otherwise would be to encourage perjury and be unfair to the person accused. The person who made oath to this accusation probably committed perjury, so far as the allegations related to prostitution, fortune telling, and some other things therein stated.

The defendant complains that the information is duplicitous, that the averments are not stated in such “manner as to enable the defendant to know the specific nature of the act with which he was charged; that the information is disjunctive, ambiguous, and contradictory within the spirit and the letter of sections 2555, 2556, and 2558, Comp. Stat. 1921.

Our statute on vagrancy seems to have been borrowed from the California Code, which defines vagrancy in almost the same terms, and is in the same form, as our own. Section 647, Deering’s Penal Code of California.

In the original California Code, as in our own, the description of the different acts which constitute vagrancy were all contained in one paragraph, separated by semicolons. Later, the compilers of the Codes of California, like our own, separated the statute into distinct numbered paragraphs. In the California compilations each paragraph is separated from the others by the disjunctive “or.” Whether the paragraphs are so separated, or separated by semicolons only, or each paragraph closes with a period makes no difference. The omissions and commissions named in both statutes must necessarily be considered as disjunctive, because they grow out of different derelictions, many of them in no way related one to another, and each standing alone would constitute a complete charge of vagrancy.

Our statute, section 2558, Comp. Stat. 1921, provides:

“The indictment or information must charge but one offense; * * * and where the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count.”

So the “means” of committing a single offense may be stated in the alternative; in other words, in the disjunctive. But the different ways or methods of committing a single offense should be stated conjunctively; using the word “and” or some equivalent expression. And, where separate acts constitute separate offenses, though of the same character, they cannot be consolidated into a single charge. Being a prostitute may constitute vagrancy; being a tin-horn gambler, a fortune teller, a beggar, an habitual drunkard, or a wife deserter, each constitutes vagrancy. Although of the same name, they are different, distinct offenses. Slover v. Ter., 5 Okla. 506, 49 P. 1009; Barrow v. State, 17 Okla. Cr. 340, 188 P. 351, 9 A. L. E. 207; Berg v. State, 29 Okla. Cr. 112, 233 P. 497.

Whether, in this case, the pleader intended to state the means or acts constituting the offense in the conjunctive or in the disjunctive cannot be definitely ascertained from the record. Neither the word “and” nor the word “or” was used to connect the several descriptive paragraphs. The averment was that “John Campbell was unlawfully and wrongfully a vagrant in this, to wit,” followed by the several paragraphs, consecutively numbered, describing different classes of vagrants. But be that as it may, the motion to quash and the demurrer to the information sufficiently called the court’s attention to the defects of the information, and the demurrer should have been sustained, or the accusation reformed by striking out some of the paragraphs, so as to charge the different ways of committing one offense, possibly in the conjunctive. If the pleader intended to say that the offense was committed in one way or another, under the circumstances like this, such pleading would be too indefinite and insufficient.

As was pointed out in the Slover Case, the Legislature may simplify and prescribe modes of procedure, so long as the forms authorized are not such as will deprive the accused of his right to be confronted with a single accusation apprising him of the nature and character of the offense charged. State v. Pettit, 74 Wash. 510, 133 P. 1014; Joyce on Indictments, 442, and cases cited.

The proof in this case did not support, singly or collectively, any one or more of the paragraphs in the information. For the reasons stated, the cause is reversed and remanded.

DOYLE and EDWAEDS, JJ., concur.


author: EDWAEDS, J.

text:
    ROY JEFFERSON v. STATE.
    No. A-4792.
    Opinion Filed June 13, 1925.
    (236 Pac. 914.)
    H. H. Thomas, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWAEDS, J.

Plaintiff in error appeals from a conviction for burglary in the second degree. The only contention argued for reversal of this case is that the evidence is insufficient to sustain the verdict. On the night of August 20, 1922, a drugstore at Poteau was burglarized and a large quantity of jewelry stolen. Considerable of this jewelry was afterwards recovered from Pink Hopkins, and from where it was secreted by Edwin White, a co-defendant. Hopkins was tried and convicted. The White boy, who was 14 years old, testified for the state, as did also the wife and daughter of Hopkins. White, who appeared to testify freely and fully, stated in his evidence that he and Hopkins committed the burglary; that plaintiff in error, Roy Jefferson, was not there. The only evidence tending to connect him with the burglary is that of the wife of Pink Hopkins, who appears to be unduly prejudiced because of the conviction of her husband, and of the daughter, Ethel Hopkins, whose testimony is in the main derived from her mother and is hearsay. The defense was an alibi.

We do not deem it necessary to set out the evidence in detail. Suffice it to say that this is a case of “Old Dog Tray,” where the association of a young man with an older man of criminal tendencies has gotten him into trouble.

The salutary rule, as has frequently been announced by this court, is that the jury are the exclusive judges of the credibility of the witnesses, and where there is evidence from which the jury may reasonably and logically draw the conclusion of the defendant’s guilt, although the evidence is conflicting, the verdict will not be disturbed. Still, where there is a dearth of evidence and the guilt of an accused is not a logical deduction from the facts proven, the evidence is insufficient and the verdict will be set aside. Benson v. State, 10 Okla. Cr. 16, 133 P. 271; Owens v. State, 11 Okla. Cr. 113, 143 P. 204; Ren v. State, 9 Okla. Cr. 671, 132 P. 1131.

We do not find the verdict sufficiently supported by the evidence, and, on account of insufficiency, the case is reversed and remanded.

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


text:
    CLAUDE LOGAN v. STATE.
    No. A-4864.
    Opinion Filed June 15, 1925.
    (236 Pac. 920.)
    D. M. Martindale, for plaintiff in error.
   DOYLE, J.

The information in this case charges that on the 29th day of March, 1923, within the corporate limits of the city of Tulsa, the defendant, Claude Logan, did transport intoxicating liquor; namely, one quart of Jamaica ginger from an unknown point to a point at the corner of First street and Cincinnati avenue in said city. On the trial the jury returned a verdict finding the défendant guilty as charged in the information, and fixing his punishment at a fine of $500 and imprisonment in the county jail for a period of six months. The court overruled a motion for new trial, and rendered judgment on the verdict, to reverse which the defendant appeals.

Of the various errors complained of it is only necessary to consider the one that the court instructed the jury on the theory that the defendant was being prosecuted for unlawful possession instead of transporting intoxicating liquor.

Instruction No. 1 reads:

“In this case the state of Oklahoma prosecutes defendant, Claude Logan, upon an information charging that on the 29 day of May, 1923, and anterior to the presentment hereof in the city of Tulsa, county of Tulsa, and state of Oklahoma, the defendant did unlawfully and wrongfully have in his possession certain intoxicating liquor, to wit, two pints of Jamaica ginger, with the intent then and there upon the part of the said defendant to sell, barter, give away, and otherwise furnish and dispose of the same in violation of the prohibitory laws of the state of Oklahoma. To the charge in the information the defendant has entered his plea of not guilty, and upon this issue the case is submitted to you for your consideration. Given and excepted to'by the defendant. G. E. Warren, Judge.”

In instruction No. 4 the court also misdirected the jury as to the offense charged.

It needs no argument to sustain the error complained of. The defendant was on trial only for the offense charged in the information, and that was unlawful transportation of intoxicating liquor, and should be convicted only of the offense charged in the information, and it was prejudicial error for the court to so substitute another offense in the instruction given for the one charged in the information.

Upon examination of the record we deem it proper to say that the evidence introduced by the state was obtained by an unlawful search of the defendant’s person without a warrant for his arrest, and neither the liquor so seized nor the evidence of the possession thereof so acquired was admissible against him. Keith v. State, 30 Okla. Cr. 168, 235 P. 631.

We think the motion to direct an acquittal, when the state rested its case, should have been sustained.

For the foregoing reasons the judgment appealed from is reversed, and the case remanded, with direction to dismiss.

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