text:
    CHARLES STARRETT v. W. F. FREEMAN, District Judge.
    No. A-5774.
    Opinion Filed Nov. 28, 1925.

    (241 Pac. 207.)

      See, also, 32 Okla. Cr. 246, 240 P. 748.
    Keller & Cameron, Breck Moss, H. H. Brown, Guy Sigler, and Ben F. Williams, for petitioner.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

The petition for writ of mandamus to require W. F. Freeman, district judge of the Eighth judicial district to certify his disqualification in a case wherein Charles Starrett is charged, by information filed in the district court of Love county, with the crime of murder was filed in this court on August 28, 1925, alleging that the case is now pending before the said district judge and is set for trial on this 28th day of August, and that on August 24th petitioner filed with the court clerk of Love county his application praying that said W. F. Freeman, district judge, certify his disqualification to try said cause because of the bias and prejudice of said judge against petitioner; that thereafter, on the 25th day of August, petitioner learned of additional facts showing bias and prejudice of said judge against this petitioner, and on the said day he filed a supplemental motion with the court clerk of Love county, and served a copy thereof on the county attorney. Thereafter on this 28th day of August said judge overruled said motion and supplemental motion, and refused to certify his disqualification to try said cause.

It is further alleged that:

“The killing for which this defendant is charged occurred on the 14th day of July, 1925, and that great publicity was given said killing, and the public press characterized it as a killing of the worse kind; that the said judge immediately announced that he intended to call a special session of the court and try said cause, and that although said defendant had been arraigned and entered his plea before the said Asa E. Walden, who took jurisdiction of said case, the said judge, the Hon. W. F. Freeman, directed the clerk of this court to set the docket and to place this particular case on the third day of said docket, notwithstanding there were a large number of criminal cases on said docket which had been pending for many months; and the whole object of calling a special ter in of this court is to try this defendant while the intense feeling engendered by the public press was at its height, and said judge had repeatedly said publicly that he intended to try this case at this time, and that no continuance would be granted, nor agreement of attorneys respected.
“This defendant is informed and believes, and alleges the truth to be, that the counsel for the state and other persons have visited the said judge and discussed this case with him, and that said judge became greatly aroused, and announced his intention to try this case immediately, and, although no appropriation had been made in this county to defray the expenses of this court or to pay the witnesses or jurors, that said court call this term of court for August 24, 1925; that never before in the history of this district has a term of said court been held in said district in the month of August.
“This defendant says that said Hon. W. F. Freeman ■is a man who seeks publicity, and is a great lover of newspaper publicity, and that said judge has stated on several occasions that the reason he was going to try this case was that people were demanding the trial of said defendant, and that said judge is hostile towards said defendant for said reasons; that although the defendant has been arraigned and entered his plea of not guilty before Hon. Asa E. Walden, and said Walden has taken jurisdiction of said case, and has never released said jurisdiction or disqualified himself in said case, that said Freeman called this court and had the docket set for the very purpose of trying this defendant and for the purpose of securing the publicity and advertisement which the trial of this case would give him. The defendant further alleges upon information and belief that the said Hon. W. F. Freeman came to Marietta, and in the absence of the county attorney and without consulting the said county attorney set this docket.
“The defendant says that all the facts above stated show that the said Hon. W. F. Freeman is biased and prejudiced against him, and that he cannot have a fair and impartial trial before said judge. Defendant further says that on the 24th day of August, 1925, the said judge, Hon. W. F. Freeman, impaneled a jury for the present term of court, and after said jury had been sworn and had qualified to try all cases during said term, the said judge made extended remarks to the said jurors, calling their attention to conditions throughout the United States, and particularly to conditions in Love county, and laid undue emphasis upon their duty to convict, and this defendant believes that said remarks were prompted by the bias and prejudice of the said judge against this defendant; a copy of which remarks are hereto attached marked “Exhibit A” and made a part hereof.
“Defendant says that the facts stated herein were only learned by defendant on the 23d and 24th days of August, 1925.”

On the 28th day of August a hearing was had upon the petition, and, upon a consideration of the same, and the affidavits filed in support thereof, and the argument of counsel, it was by the court ordered and adjudged that the writ be denied, the trial having been passed over one day pending this application. The respondent was directed to proceed with the trial.

Under the statute bias and prejudice of the presiding judge to such an extent that a fair and impartial trial cannot be had is sufficient cause to entitle the defendant to have a change of judge. Section 2629, C. S. 1921. The statute further provides that:

“Any party to any cause pending in a court of record may in term time or in vacation file a written application with the clerk of the court, setting forth the grounds or facts upon which the claim is made that the judge is disqualified, and request said judge so to certify, after reasonable notice to the other side, same to be presented to such judge, and upon his failure so to do within three days before said cause is set for trial, application may be made to the proper tribunal for mandamus requiring him so to do.” Section 2633, C. S. 1921.

Under this section of the statute, if a seasonable application for a change of judge be filed in proper form, and the judge does not admit his disqualification and refuses to certify the same, a petition may be filed for a writ of mandamus to require him to do so; and the question of his disqualification will then be tried out and determined in the appellate court upon the petition and response, and such proof as may there be offered. Whitfield v. Walden, District Judge, 31 Okla. Cr. 332, 239 P. 266. And under this section a defendant seeking to disqualify a trial judge must follow the procedure prescribed. Here it appears that the application was filed for the first time three days before the day set for trial, and the supplemental application was filed on the date set for trial, and no notice of the filing of such application had been given. The witnesses had all been subpoenaed and were in attendance of the court. However, we base our decision upon the higher ground that the facts as set forth in said petition and the affidavits in support thereof are insufficient to entitle petitioner to the relief prayed for.

It is a well settled doctrine in this state that in order to disqualify a trial judge and compel him by mandamus to certify his disqualification on account of bias and prejudice the applicant must show a clear legal right to a writ; otherwise such application will be denied. Lewis v. Russell, Judge, 4 Okla. Cr. 129, 111 P. 818; Ingles v. McMillan, Judge, 5 Okla. Cr. 130, 113 P. 998, 45 L. R. A. (N. S.) 511.

It follows from what has been said that the writ should be and is accordingly denied.


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    J. E. SCHRIMPSHER v. STATE.
    No. A-5129.
    Opinion Filed Nov. 28, 1925.
    (241 Pac. 201.)
    Morris & Tant, for plaintiff in error.
    George F. Short, Atty. Gen., and Randell S. Cobb, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the district court of Oklahoma county for the crime of conjoint robbery, the plaintiff in error, hereinafter called defendant, has appealed.

The record discloses that the defendant, together with one Homer Arthur and Lige Hopcus, were informed against for the crime of conjoint robbery. The case was tried on the 28th day of September, 1923. On the 25th day of September the defendant had been tried in the same court upon another charge of conjoint robbery, which trial resulted in a hung jury. On an examination of the jurors on their voir dire, it developed that 9 of the jurors of the 12 called into the box sat as jurors in the case against the defendant when tried on the 25th of September. The defendant exhausted all nine of his peremptory challenges, and there still remained upon the jury 2 jurors who sat in the other case. Counsel for defendant developed this state of facts rather fully, and questioned the jurors rather closely about their state of mind. To some of the questions seeking to develop the state of mind of the jurors by reason of their service in the other case objections were sustained, but, in the main, the court was fairly liberal in permitting interrogations upon the effect, if any, their having been on a prior jury would have. The jurors stated in substance that the fact that they sat on the other trial, upon the same kind of charge, and had made up their minds on the facts in that case, and had made up their minds on the credibility of the witnesses who testified in that case, would not influence them in the instant case.

The questions propounded disclose that in each case the defense was an alibi supported by the same witnesses, and depending, in part at least, on the same state of facts. It also appears that there was some conflict, or claimed conflict, between the evidence of these witnesses given at the former trial and the trial in the instant case. It is contended that this state of the record discloses a case of actual or implied 'bias; that the jurors who served in the previous case were not impartial, as contemplated by the provisions of the Constitution; that the overruling of the challenge for cause was an abuse of discretion. The state contends that by the provisions of sections 2655, 2675, 2676, 2680, 2683, Comp. Stat. 1921, the Legislature has left to the sound discretion of the trial court the power to determine whether a juror is prejudiced, and when, under the state of facts as disclosed by the record, the court has so determined that a juror is impartial, that no legal objection to the juror exists, citing Howell v. State, 4 Ind. App. 148, 30 N. E. 714; Patterson v. State, 48 N. J. Law, 381, 4 A. 449; State v. Maloney, 118 Mo. 112, 23 S. W. 1084; West v. State, 35 Tex. Cr. R. 48, 30 S. W. 1069; Arnold v. State, 38 Tex. Cr. R. 1, 40 S. W. 734. These authorities, in the main, sustain the contention of the state. However, this court in the case of Temple v. State, 15 Okla. Cr. 176, 175 P. 733, held:

“In a prosecution for larceny of live stock, jurors impaneled for the trial may be challenged for actual bias, where it appears that on the day before they had rendered a verdict convicting the same defendant of forgery, where it appears that the testimony in the first case involved certain controverted questions of fact in issue in this case, and where the same witnesses will be called to give the same testimony on an issue the same in both cases. Such jurors are not ‘impartial’ jurors, within the meaning of the Constitution and laws of this state.
“The competency of a juror is, under the statute, a question to be determined by the trial court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of his right of trial by an impartial jury, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess.
“Whenever the fairness and impartiality of a juror is called in question, the trial court must be clearly satisfied that such juror is fair and impartial, and it is the duty of the trial court to resolve all doubts on this question in favor of the defendant.”

There is this distinction, however, between the Temple Case and the instant case: In the Temple Case the trial court did not permit the examination of the jurors on their voir dire tending to disclose whether or not they would be influenced by the fact that they sat on the jury which had tried the defendant for another offense, while in the instant case the court did permit such examination, and upon the examination held the jurors not disqualified.

Inasmuch as it was made to appear that certain controverted questions of fact in issue in the former case were also in the instant case and developed by the same witnesses, the jurors who sat in the former case were not, in the meaning of the Constitution and statute, impartial jurors. True, the competency of a juror is a question to be determined by the court in the exercise of its sound discretion. This discretion should be determined by all the surrounding circumstances. The fact that jurors state on their voir dire that they have formed no opinion and can and will act fairly and impartially is not alone the test as to their' competency. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Scribner v. State, 3 Okla. Cr. 601, 108 P. 422, 35 L. R. A. (N. S.) 985.

If it were so, that would be permitting the jurors to pass on their own impartiality. It is obvious that, where jurors have heard evidence under their oath from witnesses duly sworn and examined in open court upon a controverted question of fact in one case, and have formed an opinion from such evidence, they are not in a position to pass impartially and uninfluenced upon such controverted question of fact in a subsequent case where the same witnesses again testify. We do not mean in this case to hold that by the mere fact that a juror sat in another case in the trial of a defendant he is thereby disqualified to act as a juror •in a subsequent independent case, where none of the controverted questions of fact are the same. Under the record before us the jurors who sat in the former trial were incompetent, and permitting them to serve deprived the defendant of that fair trial guaranteed by the Constitution.

The case is reversed and remanded.

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


text:
    JAMES TRIPLITT v. STATE.
    No. A-5098.
    Opinion Filed Oct. 24, 1925.
    Rehearing Denied Nov. 28, 1925.
    (240 Pac. 749.)

      Wright & Gill, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Oklahoma county on a charge of having possession of intoxicating liquor with intent to sell, the plaintiff in error, hereinafter styled defendant, has appealed.

The record discloses that on the 29th day of August, 1923, certain police officers of Oklahoma City went to the place of residence of the defendant with a search warrant, and upon a search found about five gallons of whisky in different containers hidden about the premises, which they labeled or had labeled, and which was then put in the booze room of the police department. The testimony was that the liquor seized was corn whisky, but, owing to some defect in the chain of possession, the whisky itself, although offered, was not admitted in evidence. The defendant did not testify, and offered no evidence.

The first contention is that the liquor was obtained by illegal means, in that there was no evidence that the search warrant was based upon a sufficient affidavit. It is further claimed that it was issued by a judge of the police court, and was therefore invalid under the holding of this court in the case of Terry v. State, 31 Okla. Cr. 91, 237 P. 465. There is nothing in the record to sustain the argument made upon this point. If a defendant desires to object to evidence which he claims was procured by an illegal search, he must make timely objection; otherwise he will be deemed to have waived his right to object. Fields v. State, 31 Okla. Cr. 121, 236 P. 633.

No objection was made to the evidence when offered, and no attempt made to show that the search warrant testified to was not based upon a proper affidavit or was issued by an officer not authorized to issue search warrants in the enforcement of the prohibitory law.

Error is not presumed, but it must be made to affirmatively appear, and, when testimony is offered that officers acted under a search warrant, in the absence of any evidence to the contrary, it will be presumed that it was regularly issued upon a sufficient affidavit. Viadock v. State, 30 Okla. Cr. 374, 236 P. 56.

The second contention is that the evidence is insufficient. The evidence, however, clearly shows the possession of the prohibited quantity of whisky, and, when that is shown under the prima facie evidence rule, the intent becomes a question of fact for the jury, and, in the absence of unusual circumstances, its verdict will not be disturbed. Cosby v. State, 30 Okla. Cr. 294, 236 P. 51; McCoy v. State, 31 Okla. Cr. 254, 238 P. 223; May v. State, 31 Okla. Cr. 361, 238 P. 1003.

The third contention is based upon the court’s instruction No. 8, in which the court informs the jury that certain glass jugs of whisky brought into the courtroom were excluded from its consideration, for the reason that the officers who seized the same had not complied with the law in making written reports and in failing to deliver the same to the sheriff and taking receipt. The jury was cautioned that the liquor is not in evidence and is not to be considered. This instruction is prolix in explaining to the jury in too much detail the reasons why the liquor offered was not admitted in evidence. But it is favorable to the defendant in instructing them that it is not in evidence and is not to be considered. It was not prejudicial.

From the record before us it appears that the defendant was fairly tried, the issues of law fairly submitted, and the verdict of the jury fully sustained by the evidence. .

The case is affirmed.

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


text:
    CHARLEY DIBRELL v. STATE.
    No. A-5113.
    Opinion Filed Oct. 24, 1925.
    Rehearing Denied Nov. 28, 1925.
    (240 Pac. 752.)
    Bond & Lewis, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of ¡Stephens county on a charge of transporting whisky, the plaintiff in error has appealed. The state has filed a motion to dismiss the appeal, for the reason that it was not lodged in this court within 120 days.

An examination of the record discloses that the motion for a new trial was overruled and judgment and sentence entered on the 10th day of December, 1923, and that the appeal was filed on the 9th day of April, 1924, or a period of 121 days. The longest time in which an appeal from a conviction for a misdemeanor may be lodged in this court is 120 days. Section 2808, Comp. Stat. 1921. This appeal not having been lodged within 120 days, this court did not acquire jurisdiction, and the motion of the state must be sustained. Farmer v. State, 5 Okla. Cr. 151, 114 P. 753; Cook v. State, 5 Okla. Cr. 678, 114 P. 1129; Jones v. State, 4 Okla. Cr. 660, 112 P. 760; Scott v. State, 4 Okla. Cr. 657, 112 P. 763; Place v. State, 28 Okla. Cr. 149, 229 P. 651; Fuhr v. State, 31 Okla. Cr. 409, 239 P. 679.

The appeal is dismissed.

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


text:
    JASPER WHEATCRAFT v. STATE.
    No. A-5191.
    Opinion Filed Nov. 14, 1925.
    Rehearing Denied Nov. 28, 1925.
    (240 Pac. 753.)
    M. D. Hartsell, for plaintiff in error.

      George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Muskogee county on a charge of selling whisky, the plaintiff in error, hereinafter called defendant, has appealed.

This case presents a somewhat remarkable state of facts, which, briefly stated, are about as follows: The defendant with his wife and children lived near the town of Haskell. On the 9th day of December, 1923, a deputy sheriff, with three other persons specially deputized, with a search warrant went to the home of the defendant, and two of them stopped about a quarter of a mile away and waited, and two others drove to the house, and according to the evidence of the state purchased one gallon and one quart of whisky, paying for it $12.50. Immediately thereafter the deputy sheriff and the other person specially deputized came up and informed the defendant that they had a search warrant and intended to search the premises. They went into the house for that purpose, and when just within the house a difficulty arose, a number of shots being fired by the officers, and the defendant and his wife were each shot and seriously wounded. After the melee the defendant and his wife were taken to the hospital. A search of the premises was not made.

The matter of the attempted search and the shooting affray are not particularly pertinent, except as throwing light on the transaction, and as showing the interest or affecting the credibility of the witnesses. The witnesses for the state testify that they purchased the whisky from the defendant. The defendant, testifying in his own behalf, denied that he made the sale, and two other persons who came to the premises just before the shooting, testified they did not observe the delivery of whisky by the defendant.

The contention is made that the information upon which defendant was tried is insufficient. The charging part of the information is as follows:

“Now comes Wm. A. Green, the duly qualified and acting county attorney, in and for Muskogee county, state of Oklahoma, and gives the county court of Muskogee county, state of Oklahoma, to know and be informed that Jasper Wheatcraft did, in Muskogee county and in the state of Oklahoma, on or about the ninth day of December in the year of our Lord one thousand nine hundred and twenty-three, and anterior to the presentment hereof, commit the crime of selling intoxicating liquor, selling spirituous, vinous, fermented, malt, and intoxicating liquor, in the manner and form as follows, to wit: That the said Jasper Wheatcraft, in the county of Muskogee, state of Oklahoma, on the 9th day of December,' 1923, did knowingly and unlawfully sell spirituous liquor, vinous liquor, fermented liquor, malt liquor, and intoxicating liquor, to wit, one gallon and one quart of whisky, to Bill Knott and V. S. Argue for $12.50, contrary,” etc.

—it being argued that the allegation that defendant sold spirituous liquor, vinous liquor, fermented liquor, malt liquor, and intoxicating liquor, renders the information duplicitous. The various designations of liquor as spirituous, vinous, fermented, malt, and intoxicating are specifically alleged to be one gallon and one quart of whisky. Those terms are merely descriptive of the specific allegation of whisky. The information is not duplicitous by reason of the use of those descriptive words. This case is clearly distinguishable from Pritchett v. State, 9 Okla. Cr. 733, 132 P. 1197. Descriptive averments become material only when they involve the merits of the case. Certainly the information upon this point informs the accused of the offense with which he is charged with sufficient particularity to enable him to prepare for his defense, and with sufficient particularity that, if convicted or acquitted, he could defend himself against a further charge for the same offense.

It is also urged that the allegation that the sale was made to Knott and Argue renders the information duplicitous. The contention is not tenable. The charge is that the sale was made to Knott and Argue; the proof sustains it. There is but one transaction. The sale to two or more persons may be charged as in the information before us. Shuford v. State, 4 Okla. Cr. 513, 113 P. 211.

It is next contended that the trial court erred in overruling the challenge for cause of the defendant to certain jurors who served in this case. Upon an examination of the jurors on their voir dire, it developed that several of them had served for more than two weeks, in violation of the provisions of section 3517, Comp. St. 1921, a part of which is as follows:

“* * * No juror shall be allowed to serve more than two weeks at one term, unless, at the end of such period, he is upon a panel engaged in the consideration of a case, in which event he may be excused when such case is terminated: Provided, that if the judge is of the opinion that the jury business of a term of court may be concluded within six days, he may require a jury, or a juror, to remain until the termination of said jury service, by entering an order to that effect upon the court journal; and this provision shall apply to both the district' and county courts.”

The statute was considered by this court in the case of Stuard v. State, 6 Okla. Cr. 94, 116 P. 204, where it was held that jurors falling within the inhibition of that statute were disqualified, but further holding that such objection could not be raised by motion to quash the panel, unless all members of the panel were alike disqualified, but that in such case the objection should be raised by a challenge for cause to the individual juror. In the instant case the objection was made by challenge for cause, but an examination of the record discloses that, of the three peremptory challenges allowed, the defendant exercised only one. The defendant then agreed that the case should be tried with the five jurors remaining in the box. This, we think, constitutes a waiver of this objection. Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Turner v. State, 4 Okla. Cr. 165, 111 P. 988; Hodges v. State, 16 Okla. Cr. 183, 182 P. 260.

The sufficiency of the evidence to support the verdict is questioned, but since the credibility of the witnesses and the weight and value to be given their testimony is a matter for the determination of the jury, and since there is abundant evidence, although conflicting, to sustain the verdict, we do not feel at liberty to disturb the verdict on the weight of the evidence.

The case is affirmed.

BESSEY, P. J., and DOYLE, J.„ concur.


text:
    W. E. BARNES v. STATE.
    No. A-5089.
    Opinion Filed Oct. 30, 1925.
    Rehearing Denied Nov. 28, 1925.
    (210 Pac. 758.)
    Morris & Tant, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction of manslaughter in the first degree in the district court of Comanche county, the plaintiff in error, hereinafter called defendant, has appealed.

Although the brief for the defendant in this case was filed long out of time, the court has, nevertheless, considered it. Two assignments of error are relied upon for a reversal. First: That the court erred in admitting incompetent evidence, prejudicial to the defendant. This assignment relates to the evidence of the wife of the deceased to the effect that on the night of the homicide, several hours preceding the homicide, a car drove near the residence of the deceased, and some persons with the car apparently left something there, and that the deceased went to this spot and conveyed some intoxicating liquor to or near the home of the deceased. The theory of the state is apparently that this liquor was deposited there by the defendant. It was offered as tending to show a motive for the killing of deceased. The connection of the defendant was not sufficiently established, and on motion the court struck this evidence.

It is held, that, where incompetent prejudicial evidence is admitted, the error is not cured by the subsequent action of the court in striking such testimony from the record, since a juror is not ordinarily capable of disregarding or putting aside an erroneous impression induced by incompetent evidence. Here, however, the evidence is incompetent only by reason of an insufficient showing to identify the defendant as the person near the house of deceased earlier in the night at the time of the homicide, and it appears to us that if this connection is lacking the evidence would not prejudice the jury against the defendant. Other items of evidence are also complained of, but where objections were interposed they were sustained, and no substantial error upon this assignment is apparent.

The second assignment that the evidence is not suffi-dent to support the verdict, we think, is also untenable.. The record discloses that the deceased, Manuel Lee, with his wife and small child, lived a short distance out of the town of Lawton. During the night of the 24th of May, the defendant, in an automobile, went to the residence of deceased and called. The deceased took a shotgun in his hand and went out of the house, where he was shot and killed. No dying statement' was made and the motive for the killing is not clear. We are left to infer that the deceased and defendant were engaged in handling intoxicating liquor and the' killing grew out of some difference between them over that traffic. The defendant did not take the stand. There is no merit in the appeal.

The case is affirmed.

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


text:
    R. H. RAYMER et al. v. STATE.
    No. A-5022.
    Opinion Filed Nov. 28, 1925.

      (241 Pac. 499.)

      John L. Gilson, for plaintiffs in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Texas county on a charge of keeping a house of prostitution, and appeal.

The first assignment of error' is that the evidence does not sustain the verdict. The record discloses ample evidence to sustain the verdict, and, without going into the details, the evidence discloses a state of depravity under which defendants richly merit the punishment imposed. It is true the defendants deny the testimony of the witnesses-which directed testimony to their guilt and offered some evidence in corroboration. The credibility of the witnesses and the weight and value of their testimony are peculiarly within the province of the jury, and, when there is evidence to sustain the verdict, although conflicting, this court ordinarily will not disturb the verdict.

The second assignment is that the court erred in denying the request of the defendants to question the jurors on their voir dire if they were members of the Ku Klux Klan. The record upon this point discloses that, before the jury was sworn, the defendants requested permission of the court to question them as to whether or not they were members of the Ku Klux Klan, and said to the court that they desired to do so on account of the fact that one of the defendants, R. H. Raymer, had been recently prosecuted in the district court of that county on .a charge of impersonating the Ku Klux Klan in sending letters in its name, and that said prosecution was had and done by agents of the Klan out of Atlanta, Ga., who had testified on behalf of the state. The request was denied and exceptions taken. Under the statement made by counsel, the court should have permitted counsel to inquire as to whether the jurors were members of the Ku Klux Klan. The statement might be held sufficient to show that the Ku Klux Klan had a particular interest in the prosecution of R. H. Raymer. But, even if the statement made by counsel were not sufficient to show a particular interest on the part of the Ku Klux Klan, the defendants nevertheless had a right to question the jurors upon their membership in the Ku Klux Klan for the purpose of laying a foundation for peremptory challenge. This proposition was discussed in the cases of Bethel v. State, 162 Ark. 76, 257 S. W. 740, 31 A. L. R. 402; Moore v. State, 98 Tex. Cr. R. 162, 265 S. W. 385; Johnson v. State, 28 Okla. Cr. 254, 230 P. 525; Menefee v. State, 30 Okla. Cr. 400, 236 P. 439; Cummings v. State, 32 Okla. Cr. 274, 240 Pac. 1078.

The refusal of the court to permit the inquiry suggested is clearly erroneous. Ordinarily it is necessary to show that prejudice resulted by reason of an error committed. If the rule were applied in this case, it would be necessary to show some one or more of the members of the jury were members of the Ku Klux Klan to establish that prejudice resulted from the erroneous ruling of the trial court. The difficulty of following such rule, however, in a case of this kind, is evident. We take judicial notice that the Ku Klux Klan is a secret organization, that its membership is not generally public, and the nonmember is not able to say with certainty that any particular individual is or is not a member of the organization. The purpose of the question proposed to be asked on voir dire was to' ascertain such fact. If it were ascertained that a member of the jury was a' member of such organization and a challenge for cause might be interposed, if not sustained, defendant would be in a position to intelligently exercise his right of peremptory challenge. Where the court refuses to permit a defendant to ascertain whether or not a juror is a member of the Ku Klux Klan, a defendant is not in position to interpose a challenge for cause on that ground nor to intelligently exercise his peremptory challenge. The statement made in the case of Johnson v. State, supra, is especially appropriate here:

“Where an inquiry is made in good faith, predicated upon probable cause, indicating that the rights of the accused may be affected, counsel for the defendant may, within reasonable bounds, limited by fair discretion of the court, •interrogate prospective jurors as to their membership in the Ku Klux Klan, in order that the accused may intelligently exercise his right to challenge jurors for cause, or peremptorily without cause, in such manner as will facilitate the selection of a jury that is in fact impartial.”

In the case before us, the question is not the guilt or innocence of the defendants, but is, Did the defendants have that fair trial, guaranteed to them by the Constitution? The defendants had the right to make reasonable inquiry in good faith, limited by a fair discretion of the court, to determine if the jurors were free from prejudice or bias or were rendered incompetent by any of the disqualifying clauses named in the statute, and to determine whether or not the jurors were members of the Ku Klux Klan, so that they might intelligently exercise their right to peremptory challenge. This right having been denied by the trial court, the error is prejudicial, requiring a reversal.

The case is reversed and remanded.

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


text:
    Ex parte JOHNNIE WASHINGTON.
    No. A-5931.
    Opinion Filed Nov. 30, 1925.
    (241 Pac. 349.)

      See, also, 32 OMa. Cr. 392, 241 P. 350.
    Wm. H. Parker and T. S. E. Bloom, for petitioner.
    Geo. F. Short, Atty. Gen., for respondent.
   EDWARDS, J.

The history leading up to the filing of the application for writ of habeas corpus, briefly stated, is as follows: On November 9, 1924, the petitioner, Johnnie Washington, in the town of El Dorado, Jackson county, shot and killed Otto Holler. He was apprehended, duly informed against for murder, and on December 8, 1924, brought to' trial in the district court of said county. The jury returned its verdict finding him guilty and assessing his punishment at death. On December 12, 1924, sentence of death was passed in accordance with the verdict, fixing the date of execution for the 19th day of February, 1925. Prior to the 19th of February the trial court furnished the Governor with a statement of the conviction and with the testimony given at the trial, as provided by section 2785, Comp. St. 1921. The Governor thereupon directed an inquiry to this court for an opinion, as provided by section 2786, Comp. St. 1921. Notice of appeal from the judgment and sentence having been given, this court following its former decisions that such opinion may not be given except where no appeal is or may be taken, advised the Governor in substance and effect that, notice of appeal having been given, and time for appeal not having expired, since the matter might be submitted to it by appeal, it would not forestall the appeal, and at that time review the record and render an opinion. A reprieve for the purpose of giving time for appeal as fixed by law was extended by the Governor, but the time for taking an appeal expired without any appeal having been filed. For some reason not known to us, but we assume due to the misapprehension of the warden of the penitentiary that an appeal had been perfected, the execution at the time fixed by the reprieve by the Governor was not carried out. Thereafter, on the 8th day of September, 1925, the petitioner, Johnnie Washington, was returned to the district court of Jackson county, and resen-tenced under the provisions of sections 2796, 2797 and 2799, Comp. St. 1921, execution under such sentence to take place on the 20th day of November, 1925. A transcript of the proceedings, had in said district court on the 8th day of September, 1925, was forthwith furnished the Governor under the provisions of section 2785, above mentioned, and a further request for opinion of the judges of the Criminal Court of Appeals made by the Governor under the provisions of section 2786, Comp. St. 1921, and upon such request this court on October 8, 1925, rendered to the Governor an opinion, in substance and effect, that the proceedings of the district court of Jackson county in the trial of the defendant in December, 1924, and its proceedings of September 8, 1925, were in conformity to law, and that there had' been an observance of the formalities essential to the taking of human life, and the trial, conviction, sentence, and resentence in accordance with the law of the land. Thereafter, on November 19, 1925, the petitioner, Johnnie Washington, by his attorneys, filed in this court a petition praying for a writ of habeas corpus and for a stay of execution, alleging that he was denied a transcript of the record of his trial had in Jackson county in December, 1924, and that the judge who resentenced him on September 8, 1925, was not the judge who passed sentence on December 12, 1924, and that the carrying out of such judgment will deprive him of his constitutional rights. At the time of filing such petition for writ of habeas corpus the petitioner by his counsel tendered a transcript of the proceedings of the district court of Jackson county on September 8, 1925, with a petition or application attached thereto and purported to be an attempted appeal from such proceedings. This latter instrument was not filed with the clerk of this court.

That no failure to observe all the essentials to the taking of human life should occur, it was suggested by this court to the chief executive that a short stay of execution might properly be granted by him to permit an investigation of the contentions contained in the application for writ of habeas corpus, and thereupon the chief executive, the honorable W. J. Holloway, president pro tempore of the Senate, and at the time acting Governor, granted a stay of execution for two weeks. This court has considered the contentions made in the application for writ of habeas corpus, and adheres fully to its former opinion that there has been a full compliance with all the formalities of law; that the trial, conviction, and sentence of death, including the resentence of September 8, 1925, is in accordance with the law of the land; and that the resentence of September 8, 1925, by the district court of Jackson county is not the rendering of a new judgment, but that the judgment of death to which the petitioner was sentenced on December 12, 1924, remains in force; and that the proceedings of September 8, 1925, are merely a fixing or resetting of the date of execution ; and that from such fixing or resetting of the date no appeal lies; that there is no merit in the application for writ of habeas corpus; and it is denied.

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


text:
    JOHNNIE WASHINGTON v. STATE.
    No. A-5932.
    Opinion Filed Dec. 3, 1925.
    (241 Pac. 350.)
    See, also, 32 Okla. Cr. 388, 241 P. 349.
    Wm. H. Parker, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

On the 1st day of December, 1925, there was filed in this court a petition in error attempting to appeal from a judgment and sentence of death rendered iii the district court of Jackson county on the 12th day of December, 1924. The Attorney General has filed a motion to’ dismiss, for the reason the attempted appeal was not lodged in this court within 6 months from the date of the judgment attempted to be appealed from.

The record discloses that the plaintiff in error was by the verdict of the jury found guilty of murder, and his punishment fixed at death. Thereafter a stay of execution was granted by the Governor of this state until the expiration of the 6 months allowed for an appeal. No appeal was taken, and, for some reason, the plaintiff in error was not executed at the time to which the stay of execution had been granted, and thereafter, on the 8th day of September, 1925, the plaintiff in error was returned to the district court of Jackson county, and the date of execution again fixed for November 20, 1925, under the provisions of sections 2796, 2797, Comp. St. 1921. On the 19th day of November, 1925, a petition for writ of habeas corpus having been filed in this court, the chief executive issued a stay of execution for 2 weeks, and on November 30th, this court rendered an opinion in said habeas corpus action denying the writ.

This action is an attempted appeal from the judgment of December 12, 1924, and the order refixing the date of execution of September 8, 1925. Section 2808, Comp. St. 1921, provides that, in a felony case the appeal must be taken to this court within 6 months, and, when an appeal is not lodged in this court within 6 months from the time the judgment is rendered, this court does not acquire jurisdiction, and will dismiss the attempted appeal.

In the oral argument before this court counsel for plaintiff in error sought to contend that the fixing or resetting of the date for execution done in the district court of Jackson county on the 8th day of September, 1925, was a new judgment or a re-entering of the former judgment of December 12, 1924, from which an appeal would lie. We think that a casual inspection of sections 2796, 2797, Comp. St. 1921, discloses that the fixing or resetting of the date of execution under the conditions mentioned is not a new judgment. The statute specifically providing that in case a judgment remains in force, and no legal reason exists against the execution of the judgment, the court shall order it carried into execution. At common law the sentence of death was generally silent as to time; the time of the execution of the sentence being left to the discretion of the officer, or fixed by a subsequent rule of the court. Bishop on Criminal Procedure, § 1311, it being there said:

“If the time for the execution passes, and it is not done, or if the condemned man ‘come to life after he be hanged,’ another day should be assigned, the prisoner being taken before the tribunal for the purpose.”

In the case of Fielden et al. v. People, 128 Ill. 595, 21 N. E. 584, the court said:

“The mere naming of the day on which the sentence was to be executed was but the exercise of a ministerial power, which, at common law, was sometimes exercised by the sheriff (;1 Chitty’s Crim. Law [5th Am. Ed.] p. 782, 783,) and is in this state exercised by the Governor in case of a temporary reprieve.”

The judgment is determined by the jury in their verdict, and upon the verdict, which must be strictly followed, the court enters judgment. The judgment in this case was that the defendant must suffer death for the crime by him committed as determined by the verdict of the jury. The time within which the judgment shall be executed is fixed by statute (section 2784, Comp. St. 1921) at not less than 60 nor more than 90 days from the time of the judgment. The judgment is the adjudication of guilt and the fixing of the punishment. The time of the execution of the sentence in a capital case is a part of the execution of the judgment rather than a part of the judgment itself. It is a consequence which thedaw attaches to the judgment. The refix-ing or resetting of the time for execution, where for any reason the judgment of death has not been executed, is a merely ministerial act, which, at common law, as we have seen, generally devolved upon the sheriff, but which under our statute devolves upon the court in which the conviction was had.

In the case of In re Writ of Habeas Corpus, Johnnie Washington, No. A-5931, supra, this court held that the order fixing or resetting the date of execution under the original judgment is not a new judgment, and from such order no appeal lies. Nor does an appeal at this time lie from the judgment rendered December 12, 1924; the period of 6 months within which appeals must be taken having long since expired. The motion of the Attorney General to dismiss the purported appeal for want of jurisdiction is sustained, and the attempted appeal dismissed.

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


author: BESSEY, P. J.

text:
    HARRY BARNARD v. STATE.
    No. A-5311.
    Opinion Filed Dec. 5, 1925.
    (241 Pac. 199.)
    John L. Ward and Geo. Paschal, for plaintiff in error.
    The Attorney General, and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The Attorney General has filed a motion to dismiss in this, case, setting forth the following:

“That your movant shows that on September 30, 1925, he filed in this court a motion requesting this court to malte an order requiring the plaintiff in error to execute an additional good and sufficient supersedeas bond, and to order plaintiff in error herein taken into custody until said order had been complied with; that pursuant to said motion this court on said date did issue a bench warrant to the sheriff of Tulsa county, ordering the arrest of the plaintiff in error herein; and said sheriff of Tulsa county attempted to serve said warrant upon plaintiff in error, but was unable to do so, and made return to the effect that the plaintiff in error had fled the jurisdiction of this court, and is in Houston, Tex.”

The proofs in support of .this motion substantiate the facts therein set up. Whenever a defendant in a case appealed to this court voluntarily places himself beyond its jurisdiction, so that the order of the court cannot be enforced, his appeal will be dismissed, and it is so ordered herein.

Appeal dismissed.

DOYLE and EDWARDS, JJ., concur.


text:
    J. H. RUTLEDGE v. STATE.
    No. A-5070.
    Opinion Filed Dec. 5, 1925.
    (241 Pac. 351.)

      Mathers & Coakley, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

J. H. Rutledge, plaintiff in error, defendant in the trial court, was charged and convicted for the offense of assault with intent to kill his son-in-law, W. J. Berryhill, with his punishment fixed at confinement in the state penitentiary for a term of one year and a day.

The Attorney General has confessed error in this case, and only that assignment of error upon which the confession is based will be considered.

The defendant and his sons, Jess Rutledge and Lloyd Rutledge, and W. J. Berryhill, the person assaulted, resided in the southeastern part of the city of Ardmore. Berryhill lived just across the street from Jess Rutledge, and the defendant lived on the same side of the street, about 100 yards away. This difficulty grew out of a family quarrel, and, among other things involved, was an anonymous letter purporting to be from the Ku Klux Klan. Without reciting the details leading up to the difficulty or what took place immediately before and at the time of the assault, it appears that Lloyd Rutledge, 12 year old son of the defendant, was present and saw at least a portion of the difficulty.

This boy, Lloyd Rutledge, was offered as a witness on behalf of the defendant. The state objected to his competency as a witness, and this objection was by the court sustained, upon the ground that he did not properly comprehend the import and obligations of an oath.

It appears from the examination touching the qualifications of the witness that he was 12 years of age; that he attended school and was then in the fourth grade; that he promised to tell the truth concerning the matters he was about to relate; that he knew that it was wrong to tell a lie, but did not know what would happen to him if he told one, except that he knew that “at school they whip us.” He did not know what the court would do in the event he testified falsely there.

The competency of witnesses in this state is, in part at least, a matter governed by statute. Section 589, Comp. Stat. 1921, in naming those who shall be incompetent to testify, provides among others:

“Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.”

It would seem that the converse of this statutory rule would be that children over the age of 10 years are presumed to be competent, unless the contrary is made to appear.

In the case of Walker v. State, 12 Okla. Cr. 179, 153 P. 209, this court held, in effect, that there is no precise age fixed at which children are excluded from giving evidence, and that intelligence and not age is the real test of competency; that the lack of a full understanding of the nature of an oath and the import and consequences of testifying falsely will not of itself disqualify the witness, if the witness knows the difference between right and wrong, and realizes that punishment of some nature will follow if he testifies falsely.

The impressiveness of an oath has lost much of its solemnity, due largely to modern statutes and regulations requiring an oath to all manner of transactions. Many persons possessed of a high order of intelligence could not give a technical or exact definition of the obligation of an oath and its import, and the ability to give an exact definition is not a test of the competency of a witness. The ability truthfully and intelligently to relate the incidents within the knowledge of the witness is much more essential. 28 R. C. L. and cases cited.

The record here shows that this boy’s answers to the questions propounded to him were simple and direct, responsive to the questions asked, that it appeared that he knew the difference between right and wrong, and that he was possessed of the average intelligence of boys of his age. Under these circumstances we think the defendant was entitled to have the testimony of this witness introduced in his behalf.

The confession of error of the Attorney General is sustained, and the cause reversed and remanded.

DOYLE and EDWARDS, Jj., concur.


author: DOYLE, J.

text:
    BOB HICKS v. STATE.
    No. A-5275.
    Opinion Filed Nov. 5, 1925.
    Rehearing Denied Dec. 5, 1925.
    (240 Pac. 1088.)
    Bert Van Leuven and C. F. Gowdy, for plaintiff in error.

      The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that on June 20, 1923, Bob Hicks and Campbell Keys did transport 5 gallons of corn whisky from a place in Nowata county, unknown, to a place in the public road near the bridge on Snow creek near the northwest corner of section 34, township 29, range 16, Nowata county.

On his separate trial, the jury found the defendant Bob Hicks guilty as charged in the information, and fixed his punishment at a fine of $250 and confinement in the county jail for 60 days.

The testimony of C. T. Buzzi, federal prohibition agent, E. A. Haverfield and Buck George, deputy sheriffs shows that, driving along the road about 4 miles south of Coffey-ville as they came to the bridge across Snow creek they were stopped by the defendant, Bob Hicks, who was apparently giving signals to a man in a car that was stuck in a mudhole about 50 steps beyond; that they stopped and walked up to the car and found a broken 5-gallon jug with whisky running out of it over the running board of the car, and there was a six-shooter in the car. They arrested the defendants.

At the close of the state’s evidence, there was a motion by the defendant for a directed verdict, on the ground that the proof in the case wholly failed to sustain the offense charged in the information, which motion was overruled. There was no testimony offered on the part of the defense.

A number of errors are assigned. We have examined and considered them, but find it unnecessary to discuss the points raised, since we are convinced that no prejudicial error occurred in the admission of evidence or in the giving or refusing of instructions.

The assignment that the verdict is not sustained by sufficient evidence is, we think, without merit. There is no controversy as to the facts, and we cannot see how any jury, under the evidence, could have returned a verdict otherwise than one of-guilty.

The 'judgment of the court below is therefore affirmed.

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


text:
    BOYCE LITTLEJOHN v. STATE.
    No. A-5126.
    Opinion Filed Dec. 5. 1925.
    (241 Pac. 210.)

      M. D. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiff in error will be referred to as defendant.

The record discloses a state of facts about as follows: After a hearing upon a preliminary complaint, an information was filed in the district court of Muskogee county charging that the defendant on or about the 27th day of January, 1923, did commit the crime of transporting intoxicating liquor, to wit: That the said defendant on the 25th day of March, 1922, was informed against for the crime of selling intoxicating liquor to W. A. Hensley, Jr., a minor, and Harrold Criswell, a minor, being case No. 2966, in said court, and that on the 22d day of May, 1922, the defendant appeared in open court in said district court, entered his plea of guilty to said information, and was thereupon on the 29th day of May, 1922, sentenced by the judge of the district court to serve a term of four months in the state penitentiary at McAlester, and that he was duly committed to the state penitentiary of said state of Oklahoma to serve said sentence; and that thereafter, “to wit, on the 27th day of January, 1923, the said Boyce Littlejohn did, in the county and state aforesaid, commit the crime of violating the prohibitory liquor laws of said state again and for the second time in the manner and form as follows, to wit, that the said Boyce Littlejohn, having been duly convicted as aforesaid, did then and there, on the 27th day of January, 1923, knowingly, willfully, unlawfully and feloni-ously transport certain intoxicating liquor, to wit, four (4) gallons of whisky, from a point in Muskogee county, Okla., to this affiant unknown, to another point in Muskogee county, Okla., to wit, the corner of Main and Broadway streets in Haskell, Okla., contrary, etc. * * *”

The contentions advanced by the defendant may be summarized as follows: First, the insufficiency of the information to charge a felony. Second, that the verdict and judgment are contrary to law. Third, error of the court in placing defendant on trial after amendment of the information without further arraignment. Fourth, error in the admission of evidence and insufficiency of the evidence. Fifth, error of the court in refusing requested instruction. These assignments will be considered in the order presented.

Upon the first assignment, it is contended that the charge does not contain a direct and positive allegation of the defendant’s previous conviction in a court of competent jurisdiction, that an allegation of a plea of guilty and a sentence is not a charge of prior conviction, and that the information charges no more than a misdemeanor, and that the district court, therefore, had no jurisdiction.

The statute under which the prosecution was had in section 6991, Comp. St. 1921, is as follows:

“For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than $50, nor more than $2,000, and by imprisonment of not less than 30 days in the county jail, nor more than 5 years in the state penitentiary. * * *”

This statute was under consideration in the case of Tucker v. State, 14 Okla. Cr. 54, 167 P. 637, and it was there said:

“An information, in order to charge a crime under the Habitual Criminal Act, should contain allegations of fact setting forth that the offense charged is a second (or subsequent) violation of the law and that the person charged has been convicted in a court of competent jurisdiction. In this respect, the information must be definite and certain. An allegation that the person charged has been convicted of violating some prohibition law of the state is too general.”

In that case the information alleged that the defendants had “possession of certain intoxicating liquor with intent to sell, * * * having heretofore, to wit, on the 4th day of May, 1911, been convicted of a violation of the prohibition law of the state of Oklahoma in cause No. 514, in the county court of Grady county, state of Oklahoma, said county court being a court having jurisdiction of said offenses, and convicted on the 14th day of December, 1911, for a violation of the prohibition law of the state of Oklahoma, in the superior court of Grady county, Okla., in causes Nos. 100, 99, 97, and 96, said superior court being a court having jurisdiction of such offense.” The court in passing upon the sufficiency of the information said:

“The information does not allege that Tucker had been convicted of violating the prohibitory liquor laws of the state of Oklahoma. In our judgment, it should have alleged that the party charged had in some particular violated some provision of the enforcement acts of the prohibitory liquor law, and that he had been convicted therefor in a court having jurisdiction of the subiect-matter and of the person of the accused. * * * The information in question, having failed to properly so charge, is therefore defective.”

Several other contentions are discussed in the case, but upon the sufficiency of the information the holding is that the allegation of former conviction must be definite, charging that the accused has been convicted of the violation of some particular provision of the prohibitory liquor law, and, in effect, that a general charge of a violation of the prohibitory law or the prohibition law is too indefinite and uncertain.

Again in the case of Fowler v. State, 14 Okla. Cr. 316, 170 P. 917, the court considered the sufficiency of an information under this statute, and held it to be insufficient for failure to definitely charge the prior conviction attempted to be pleaded. The charging part of the information in that case is:

“That Lee Fowler did willfully, unlawfully and feloniously sell to P. W. Allred one pint of Hill & Hill whisky; that on the 19th day of January, 1914, the said Lee Fowler entered a plea of guilty in the county court of Stephens county, Okla., to the charge of conveying intoxicating liquors, in violation of the prohibitory laws of the state of Oklahoma. * * *”

This court held the information insufficient, and said:

“Entering a plea of guilty is not a conviction, and for this reason the information is insufficient to charge a felony under the Habitual Criminal Act.”

The holding in that case was based on the information there under consideration, in which information, as above quoted, the allegation is that: “The said Lee Fowler entered a plea of guilty.” That allegation is not an allegation of a prior conviction. There was no allegation that a judgment was entered upon the plea of guilty. The allegation of a plea of guilty is no more than would be an allegation that a jury had returned a verdict of guilty. To constitute a conviction in either case, the court must enter a judgment upon the plea of guilty or upon the verdict of the jury. The judgment is entirely different from the plea of guilty and entirely different from the verdict of the jury. Section 2759, Comp. St. 1921, provided that after a plea or verdict of guilty, the court must appoint a time for pronouncing judgment, and section 2770, Comp. St. 1921, provides for the pronouncing of judgment. In the instant case the information, while by no means a model, pleading, is not subject to the objections directed at the informations in the cases of Tucker v. State, supra, and Fowler v. State, supra, since the information here definitely describes the particular offense for which the defendant had previously been convicted. It also alleges that upon the plea of guilty entered by the defendant in the former conviction, the defendant was by the court sentenced to the penitentiary; which allegation is in substance that judgment was by the court entered upon the plea of guilty. The sentence introduced in evidence as the state’s Exhibit B is in fact a judgment and sentence of the court.

It is also contended under this assignment that there is no allegation that the district court of Muskogee county, in which the former conviction was had, was a court of competent jurisdiction. It is alleged, however, that the former conviction was upon a charge for the selling of intoxicating liquor to a minor. This court takes judicial knowledge that under the law the selling of intoxicating liquor to a minor is a felony of which district courts have jurisdiction. It would have been the better practice to have alleged that the former conviction was in a case of which the district court of Muskogee county had jurisdiction, but we think the failure to so allege does not render the information fatally defective. It is not essential that the information should plead the record in the former conviction. That is, it is not essential that it set out the information, plea of guilty, or the verdict of the jury and the judgment of the court. It is sufficient on this point if it definitely and certainly pleads a prior conviction in a court of competent jurisdiction of a specific violation of the prohibitory liquor laws.

Under the second assignment, that the verdict and judgment are contrary to the law, it is argued that the verdict which assesses a fine of $100 and imprisonment in the state penitentiary for a term of six months is void, that the punishment should have been confinement in the county jail instead of in the penitentiary, citing Tucker v. State, supra, in which case the verdict of the jury was for imprisonment in the state prison for a term of five years and no fine assessed. The verdict in that case was contrary to the provisions of the Constitution which fixes the punishment for violation of the prohibitory liquor law at a fine of not less than $50 in any case and by imprisonment.This court there said that punishment involving imprisonment for less than one year should be in the county jail. The verdict there should not have been received until in addition to the imprisonment a fine of not less than $50 was fixed by the jury. But if the statement made in that case is a holding that confinement upon conviction of felonies for a violation of the prohibitory liquor law, where the imprisonment is less than one year, must be in the county jail, such holding is not so required by the Constitution or statute, and the jury may fix the imprisonment at confinement in the state penitentiary although the term of imprisonment be less than one year.

Upon the third assignment it is urged that the defendant was required to enter upon his trial after an amendment of the information without further arraignment. The record discloses that the county attorney on November 10th was granted leave to amend the information by inserting: “Commit the crime of violating the prohibitory laws the second time.” The defendant at that time objected. On the 27th day of November, the case came on for trial, the jury was impaneled and sworn, the county attorney made his opening statement, counsel for defendant reserved his statement, and defendant then objected to the introduction of evidence, among other things, because the defendant had not been arraigned. This objection came too late. If it was the contention of defendant that the amendment was of a material matter and required an arraignment, objection should have been made prior to the announcement of ready for trial, the impaneling of the jury, and the making of the opening statement. Hast v. Territory, 5 Okla. Cr. 162, 114 P. 261; Ryan v. State, 8 Okla. Cr. 623, 129 P. 685.

The fourth assignment is directed to various matters pertaining to the introduction of evidence. It is complained that the court erred in admitting proof of the former conviction before the state had proven the commission of the particular violation of the liquor law charged. This is a matter within the sound discretion of a trial court, and while it is better practice to have required proof of the facts relied upon to constitute the particular violation of the liquor law being tried before introducing proof of a former conviction, yet we do not perceive that it is prejudicial. As said by this court in a former opinion, it would be an extreme case where the order in which competent evidence is admitted would be reversible. Wilson v. State, 32 Okla. Cr. 139, 240 P. 155.

It is then complained that the information upon which the former conviction was had and the judgment of the court upon the plea of guilty were not properly admitted nor read to the jury. Our examination of the record does not sustain the contentions made. It shows the identification of the information as the original information in the former case with the request for leave to withdraw the original and substitute a copy. It shows introduction of the original judgment signed by the judge of the court and the permanent record of the court thereof and shows by the records of the court the entry of the plea of guilty. Whether or not these various instruments were read to the jury or merely delivered to them, the record is silent.

Lastly, it is contended that the court erred in refusing defendant’s request for an instruction on the law of circumstantial evidence. This is not a case resting solely upon circumstantial evidence. A defendant is not entitled as a matter of right to an instruction on circumstantial evidence unless the testimony is wholly circumstantial. Star v. State, 9 Okla. Cr. 210, 131 P. 543; Hendrix v. U. S., 2 Okla. Cr. 240, 101 P. 125; Price v. State, 9 Okla. Cr. 359, 131 P. 1102.

Upon an examination of the whole case, we find no reversible error.

The case is affirmed.

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


text:
    Ex parte S. F. HAYNIE.
    No. A-5933.
    Opinion Filed Dec. 5, 1925.
    (241 Pac. 209.)
    Hodge & Schenk and Champion, Champion & George, for petitioner.

      The Attorney General and F. M. Dudley, Co. Atty., for the State.
   DOYLE, J.

The application of S. F. Haynie for a reduction in the amount of bail required of him under 16 indictments for embezzlement of public funds while treasurer of Carter county, now pending against him in the district court of Carter county, was filed in this court December 2, and on the same day was heard and submitted upon the pleadings, proof, and the arguments of counsel. It is averred in the application — ■

“That the said S. F. Haynie on the 3d day of November, 1925, stood charged in the district court of Carter county, state of Oklahoma, in cases Nos. 2634, 2640, 2642, 2644, 2670, 2674, 2676, 2635, 2637, 2641, 2643, 2669, 2671, 2673, and 2675, with embezzlement of public funds, while treasurer of Carter county, Okla., that since his arrest he has been and still remains incarcerated in the jail in Carter county of Oklahoma; that on the said 3'd day of November, 1925, the said S. F. Haynie, by and through his attorneys, made application to Judges W. F. Freeman and Asa E. Walden, in conference, asking said judges to fix the amount of appearance bond to answer said charges; that on said date said judges in conference made and entered an order fixing the amount of said appearance bonds in the total sum of $50,000, one bond of $25,000 in each division of the court, said court being divided into divisions Nos. 1 and 2, one of said bonds to cover all cases of even number, and the other bond to cover all cases of odd number.”

It is further averred that on December 1st fie applied to the above named judges for a reduction of the amount of said bail, showing that he had been unable, after diligent effort, to make the same to that amount; that said application for reduction of bail was denied; that the 16 indictments pending against him charge a total shortage in the public funds to the amount of approximately $125,000; that it is reported the entire shortage is $150,000; that while acting as treasurer of Carter county he was under bond as such treasurer in the sum of $100,000; that the amount of said bail heretofore fixed is unreasonable and excessive; and that a much smaller amount would be amply sufficient to guarantee his presence upon the charges preferred.

By express provisions of the Constitution of this state all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof of guilt is evident or the presumption thereof great, and excessive bail shall not be required. Const, art. 2, §§ 7 and 8. Bail is not to be deemed excessive, however, simply because the particular person charged cannot give the bail required. Bail should not be exacted for the purpose of punishing a person charged with crime, for no man is punishable for a felony except on his plea of guilty or upon conviction by a jury of his peers. Bail is exacted for the purpose of securing the attendance of the accused at court at all times when his attendance may be lawfully required, and his rendering himself in execution of any judgment that may be pronounced against him.

Upon an application to admit to bail after indictment returned or information filed, the court must assume that the defendant is guilty of the offense with which he is charged. In an application to this court upon habeas corpus for a reduction of bail upon the ground that the amount fixed by the trial court is excessive, this court will not interfere unless it clearly appears that the amount fixed is excessive.

It is not sufficient that this court might originally have deemed a lower amount sufficient; it must clearly appear that the trial court has abused its discretion to an extent that denies the defendant his constitutional rights before this court will reduce the amount of bail as fixed by the trial court. It is the uniform rule that appellate courts will not interfere with the actions of the trial court unless “the bail demanded be per se unreasonably great and clearly disproportionate to the offense involved.” Ex parte McClellan, 1 Okla. Cr. 299, 97 P. 1019; Ex parte Houghton, 1 Okla. Cr. 302, 97 P. 1021; Ex parte Ruble, 18 Okla. Cr. 134, 193 P. 1009.

Upon consideration of the application, and the proof offered and the character of the offenses charged, we are of opinion that this court is not warranted in interfering with the matter of bail as fixed by the court to which the indictments were returned.

The application is accordingly denied.

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


text:
    HARRISON BASKIN v. STATE.
    No. A-5301.
    Opinion Filed Dec. 5, 1925.
    (241 Pac. 209.)
    W. L. Coffey, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged that in Tulsa county, January 28, 1924, Harrison Baskin did “have in his possession certain intoxicating liquor, to wit, one gallon of Choctaw beer, said Choctaw beer then and there containing more than one-half of 1 per cent, of alcohol, measured by volume, and capable of being used as a beverage, with the unlawful intent,” etc.

On the trial the jury returned a verdict finding the defendant guilty and fixing his punishment at a fine of $200 and imprisonment in the county jail for 6 months. To reverse the judgment rendered on the verdict he appeals. The errors assigned are that the verdict is not sustained by sufficient evidence and is contrary to law; that the punishment is excessive, and shows that it is the result of prejudice on the part of the jury. The evidence shows that three •deputy sheriffs visited the home of the defendant on North Frye street, just outside the city limits of Tulsa, forced the door, and searched the place. They found glasses on a table which they say had contained Choc, and found a container in the kitchen which they say had contained Choc and a glass, full with Choc, in another room.

Upon a careful examination and consideration of the evidence we have reached the conclusion that it is insufficient to support a conviction. There was no direct evidence of an unlawful intent. The proof fails to show that the quantity of liquor found was sufficient to be prima facie evidence of an unlawful intent. Neither does it appear that the officers had a search warrant.

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

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


text:
    JONAS DE ARMAN v. STATE.
    No. A-5183.
    Opinion Filed Dec. 5, 1925.
    (241 Pac. 203.)

      J. A. Minton and D. W. Tracy, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

The plaintiff in error, Jonas De Ar-man, here referred to as the defendant, was convicted of the crime of assault with a dangerous weapon with intent to do bodily harm without justifiable or excusable cause. His punishment was fixed by the jury at imprisonment in the penitentiary for a term of two years.

Defendant was charged with having assaulted H. S. Mathews with a wrecking bar, described as a steel bar about 30 inches long and seven-eights of an inch in diameter, hexagon-shaped, with a hook at one end, and the other end shaped like a chisel. The difficulty out of which the assault grew arose in this wise: The defendant and others were engaged in wrecking and moving a building in the town of Sayre; H. A. Mathews, the victim of the assault, had been commissioned by the mayor of Sayre to prevent persons from driving on and over some newly constructed paving and curbing. The defendant and others, with a team and wagon, approached the place where Mathews was, and attempted to drive over some of the new curbing, when Mathews protested and ordered them to stop. A heated controversy arose, in which abusive, profane, and insulting language was used. After the team and wagon had been turned from the curb and had proceeded a short distance in the direction from which it had come, the defendant jumped from the wagon and seized this wrecking bar, and he and Mathews advanced toward each other. The defendant, gripping the wrecking bar in both hands, struck at Mathews, aiming the blow at his head. Mathews threw up his arm, receiving the full force of the blow on the arm, sufficient to crack or fracture the large bone in the forearm. Some bystanders a short distance away interfered, and the injured man was taken to a doctor’s office, and the defendant was placed under arrest.

The assignments of error may be condensed into two: First, that the evidence is insufficient to support the verdict; second, that the trial court erroneously excluded competent evidence offered by the defendant, tending to show the state of mind of the injured person at the time of and before the assault.

It would serve no good purpose to analyze the testimony in detail. It is sufficient to state that we have examined the evidence and find that the testimony, while conflicting in many particulars, considered as a whole, is sufficient to support the verdict. The trial court correctly instructed the jury on the law of self-defense and upon the offense of assault and battery. Both of these issues were obviously decided against the defendant by the verdict of the jury.

The claim that the judge excluded competent testimony tending to show that the injured person entertained hostile feelings toward the defendant is not properly presented for review. The defendant made no offer to show what the witnesses would state if permitted to answer the questions. White v. State, 4 Okla. Cr. 143, 111 P. 1010; Warren v. State, 6 Okla. Cr. 1, 115 P. 812, 34 L. R. A. (N. S.) 1121; Johnson v. State, 15 Okla. Cr. 297, 176 P. 256.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    HENRY SEVERNS v. STATE.
    No. A-5299.
    Opinion Filed Dec. 5, 1925.
    (241 Pac. 204.)
    W. L. Coffey and H. T. Church, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Tulsa county, July 24, 1923, “the said defendants did unlawfully have in their possession approximately 2 1-2 gallons of corn whisky, then and there containing more than one-half of 1 percent of alcohol, measured by volume, and capable of being used as a beverage, with the unlawful intent to sell the same.” On the trial the jury returned a ver'dict finding “the defendants guilty as charged in the information and complaint,” and assessing their penalty at a fine of $150, and by imprisonment in the county jail for a period of 90 days. From the judgment rendered on the verdict they appeal.

Of the errors assigned we deem it only necessary to consider the one that the verdict is not sustained by sufficient evidence, and is contrary to law.

C. F. Buzzi testified that he was a federal enforcement officer for Oklahoma; that he procured a search warrant from the commissioner of the court, and with two other officers searched a little shack by the side of the Sand Springs road, and found Mr. Severns, Mr. Saddler and some other fellow there; that in the front room was a counter, an ice box, and tobacco on the shelves, and in the back room was a table and a 15-gallon jar that had lysol and water in it and a broken pitcher; that Mr. Evans found a half-gallon jug outside the fence that contained whisky.

Bob Atkins testified that he was with Mr. Buzzi and Mr. Riehl. He further testified as follows:

“Q. What did you find, if anything, Mr. Atkins? A. Why, I didn’t find anything except this lysol, you might say.. They all decided that what they threw the whisky in. (Motion to strike sustained.)
“Q. At this time did you know what the general reputation of this place was as to whether or not it was a. place where intoxicating liquor was kept and sold in violation of the law? (Objection sustained.)
“Q. I mean in that community, in that vicinity? (Objection overruled.) A. It was bad.
“Mr. Coffey: We move to strike the answer.
“The Court: Overruled.
“Witness: Well, I should judge from what we found around there.
“The Court: I think his answer is competent.^ You may state, Mr. Atkins, if you know what the reputation of that place was at that time as being a place where intoxicating liquor was kept, sold, given away, and otherwise furnished. In that community, the reputation of that place at that time. A. Well, I don’t know just how to answer that question. I didn’t get the search warrant; I didn’t get this information.
“Q. You don’t know what that reputation was? A. No.”

J. H. Riehl testified that he was a federal prohibition officer, and was with Mr. Buzzi; that the defendant Saddler seemed to be in charge of the place, and the defendant Sev-erns was there with him; that he saved a sample of the contents of the slop jar, and had it analyzed; that he was with Morris Evans when he found the whisky outside the fence, 30 or 40 steps from the place, and a few-steps from the river; that there was a tent near by and several other little buildings right along in close proximity to this building; that he knew the reputation of the place as to being a place where intoxicating liquors were kept, sold, given away, and otherwise disposed of, and that it was bad. The jug and its contents were offered in evidence. The court sustained the defendant’s objections as not properly identified.

At the close of the state’s case, the defendant moved the court for a directed verdict in the form of a demurrer to the evidence, and the same was overruled.

To warrant or sustain a conviction of having possession of intoxicating liquor with the intent to violate provisions of the prohibitory liquor law, there must be evidence sufficient not only to prove possession, but also to prove the criminal intent.- When the verdict is- manifestly contrary to the evidence, or the conviction is based on entirely insufficient evidence, the*judgment of conviction will be reversed. Ward v. State, 15 Okla. Cr. 61, 175 P. 60; Williams v. State, 25 Okla. Cr. 284, 220 P. 667.

The proof on the part of the state shows that the half-gallon jug containing whisky was not found on the premises of the defendants, and no liquor was found on the premises or within the house where the defendants were arrested, except a jar supposed to contain lysol, and which was not capable of being used as a beverage.

In our opinion, the testimony on the part of the state, as a matter of law, must be held insufficient upon which to-base a judgment of conviction.

The judgment of the lower court is accordingly reversed.

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


text:
    JOHN MARTIN v. STATE.
    No. A-5568.
    Opinion Filed Dec. 12, 1925.
    (241 Pac. 832.)
    J. Hugh Nolen, J. V. Crawford, and O. A. Shaw, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty., Gen., for the State.
   BESSEY, P. J.

Plaintiff in error, John Martin, defendant in the trial court, was sentenced to serve a term of 180 days in the county jail and to pay a fine of $500 for the unlawful possession of intoxicating liquor, from which, judgment he appeals to this court.

This case is before us on a motion of the Attorney Genera,l to dismiss the appeal, upon the ground that the defendant is now a fugitive from justice. The proof in support of this motion shows that there is another criminal charge pending against the-defendant in Okfuskee county, and that when the cause was called for trial on November 25th the defendant failed to appear and could not be found, and that according to the best information obtainable from the peace officers of that county the defendant was last seen in Prescott, Ariz.

The motion to dismiss has been served upon the attorneys of record for the defendant, and sufficient time has been given them to respond; but no response has been made. Whenever a defendant in a case appealed to this court voluntarily places himself beyond its jurisdiction, so that the orders of this court cannot be enforced, the appeal will be dismissed.

Appeal dismissed.

DOYLE and EDWARDS, JJ., concur.


author: DOYÍLE, J.

text:
    JOHN H. WEBB v. STATE.
    No. A-5368.
    Opinion Filed Dec. 12, 1925.
    (241 Pac. 830.)

      W. A. Chase and George Paschal, for plaintiff in error.
    The Attorney General, for the State.
   DOYÍLE, J.

This appeal is from a judgment of conviction, rendered in the municipal court of the city of Tulsa, for the crime of vagrancy, and sentenced to pay a fine of $25 and the costs. The errors assigned and relied upon for a reversal are the insufficiency of the information, the insufficiency of the evidence to support a conviction, and that the judgment is contrary to law and the evidence. It appears that the trial was had October 21, 1924, a jury waived by both parties, and the case tried before the court.

The information is the same as that passed on by this court in Campbell v. State, 31 Okla. Cr. 39, 237 P. 133, wherein it was held that under the statute (sections 2555, 2556, 2558, C. S. 1921) requiring indictment or information to charge one offense, information for vagrancy, under section 1956, setting out several paragraphs, consecutively numbered, describing different classes of vagrants, without using word “and” or word “or” to connect several descriptive paragraphs, was defective, and demurrer thereto should, have been sustained, or it should have been reformed by striking out some of paragraphs, so as to charge different ways of committing one offense. Under the rule declared in the Campbell Case, the court erred in overruling the demurrer to the information.

The evidence of two city detectives shows that plaintiff in error, John H. Webb, was arrested at the entrance of the Marquette Hotel in Tulsa, on October 10, 1925. Harry Sanders, one of the arresting officers, testified that he did not know whether the defendant was engaged in any business in the city of Tulsa; that he was on the streets of Tulsa ; that he had not seen him working in the city of Tulsa; that, about a month before, he arrested the defendant at the Plaza Hotel in a raid, and he pleaded guilty to vagrancy .and paid a fine of $15. L. W. Bewley testified:

“We saw him in the entrance of the pool hall in the Marquette Hotel. I asked him what he was doing. He said, ‘I am still in the field.’ I asked him, ‘What field?’ And he said, ‘Oil field.’ I said, ‘What doing?’ He said, ‘Health officer.’ I said, ‘You are not any health officer in Tulsa.’ He said, ‘My wife is an attorney here, and I have a right to be here. I said, ‘We want you at the station.’ ”

The state rested and the defendant moved for a judgment of acquittal in the form of a demurrer to the evidence, •which was overruled.

For the defense the testimony of Simpson Hurst, president of the Shidler National Bank of Shidler, W. C. Cantrell, cashier of the First National Bank of Shidler, Sam “Turner, acting mayor, H. E. Morrison, city clerk, and Hen-ay Majors, chief of police, all of the city of Shidler, and Dr. G. W. Gross, county health officer of Osage county, and others, was to the effect that the defendant, John H. Webb, was employed for the past 2 1-2 years in the health department of the city of Shidler at a salary of $150 a month, and ■during that time there resided with his family, and that he was an honest, upright, and industrious citizen of the city and a man of good habits.

As a witness in his own behalf, the defendant testified that for 2 1-2 years he had been engaged as health.officer by the city of Shidler, owned his own home and three other houses; that his wife was a member of the bar of Osage county, regularly engaged in the practice; that on the day lie was arrested he had registered with his wife at the Marquette Hotel in Tulsa; that when he was arrested his wife put up $230 in cash and gave a check for the balance necessary to make a deposit of $250, his bond for appearance in said court on this charge; that he was a World War veteran, with 18 months’ service overseas in the Rainbow Division, having enlisted at Tulsa, and received an honorable discharge, and had lived in Oklahoma for 15 years.

The Attorney General very properly declined to offer anything in defense of the conviction and judgment in this case. It is past understanding how a court could reach the conclusion under the evidence in this case that the defendant was guilty of the offense attempted to be charged.

In Jenkins v. State, 18 Okla. Cr. 464, 196 P. 553, we said:

“Before a conviction for vagrancy against one who has lived in a community for a period of 20 years should be permitted to stand, the proof should show that he comes squarely within the terms of the statute defining a vagrant.”

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

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


text:
    JOHN KEITH v. STATE.
    No. A-5223.
    Opinion Filed Dec. 12, 1925.
    (241 Pac. 500.)

      W. H. Mouser, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, defendant "below, was charged with manufacturing whisky. Upon the proof adduced he was convicted of an attempt to manufacture whisky, and by the verdict of the jury his punishment was assessed at a fine of $125, and confinement in jail for SO days.

This conviction rests upon an uncorroborated and imperfect identification of the defendant, on a Sunday, in company with another man at a shinnery mound 2 or more miles from the defendant’s home, by a 15 year old boy, son of the officer who made the arrest. This boy testified that he saw the defendant and his companion carry and secrete 2 sacks, supposedly filed with grain, near this shinnery mound.

On Tuesday following, the officers found a large quantity of mash and 2 sacks of bran and chops near this shin-nery mound. The owner of the premises was arrested, and entered his plea of guilty to violating the prohibitory law.

The boy companion of the prosecuting witness says he saw no person with sacks on the Sunday in question. The defendant denied the accusation and produced witnesses who testified that he was at his farm home on the afternoon of that Sunday, the time when the prosecuting witness claimed to have seen him at the shinnery mound.

There are other features in the testimony indicating that this may have been a case of mistaken identity. The evidence as a whole is insufficient to support the verdict.

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.


author: PER CURIAM.

text:
    FRANK VIAN v. STATE.
    No. A-5354.
    Opinion Filed Dec. 12, 1925.
    (241 Pac. 1118.)
    J. N. Roberson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Frank Vian, plaintiff in error, was found guilty by a jury in the county court of Canadian county of the illegal possession of a quantity of corn whis-ky, and by the judge sentenced to pay a fine of $500 and' serve a term of six months in the county jail. Upon mo-, tion of the plaintiff in error, by his attorney of record, that this appeal be dismissed, for good cause shown, the motion is sustained, and the appeal dismissed.


text:
    FRANK VIAN v. STATE.
    No. A-5355.
    Opinion Filed Dec. 12, 1925.
    (241 Pac. 1118.)
    J. N. Roberson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

Frank Vian, plaintiff in error, was found guilty by a jury in the county court of Canadian county of the illegal possession of corn whisky, with his punishment assessed by a jury at a fine of $250 and confinement in the county jail for six months. From the judgment on the verdict he appeals. Upon motion of the plaintiff in error, by his attorney ‘of record, that this appeal be dismissed, for good cause shown, the motion is by the court sustained, and the appeal dismissed.


text:
    EUGENE DANIELS v. STATE.
    No. A-5377.
    Opinion Filed Dec. 12, 1925.
    (241 Pac. 836.)
    C. B. Leedy, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charged that •in Ellis county, May 19, 1924, Eugene Daniels and Harley Daniels did have in their possession one still and still worm. On the trial the defendant Harley Daniels was acquitted and the defendant Eugene Daniels was found guilty and his punishment fixed at a fine of $50 and confinement in the county jail for 30 days. To reverse the judgment rendered on the verdict, he appeals.

Of the various errors assigned it is only necessary to consider the one, that the court erred in admitting incompetent evidence over the objections of the defendant.

The evidence shows that the sheriff and deputies visited the home of the defendant and searched his residence in his absence and searched the same section and in a canyon found the wife and two sons of the defendant, and there was a stove, wash boiler and a few barrels there. The sheriff testified to finding a straight copper pipe, about 14 feet long in the defendant’s residence.

When the case was called for trial, the defendants filed their verified motion to suppress the testimony of the witnesses whose names were indorsed upon the information, on the ground that any evidence obtained was under a void search warrant. Attached to the motion was a copy of the affidavit upon which the search warrant issued, which affidavit recites that:

“John Doe, whose real name is not known, at and on section 31, township 24, and section 6, township 23, all in range 24 W. I. M. certain buildings described as follows: Eesidence, barn, chicken house, cellar, dougout, cistern, cow shed, the pasture land, farm land, or orchard on said premises, did then and there unlawfully and willfully have in their possession and under their control, and did then and there keep, and do now have in their possession and under their control for the purpose of sale, bartering, giving away, and otherwise furnishing, certain intoxicating liquors, to wit, whisky.”

It is further shown the names of the several owners of the lands described in the affidavit and the search warrant; also that only part of said lands were in the possession of the defendant; that said search warrant issued in violation of the constitutional rights of the defendants and in violation of the statute (section 7013, C. S. 1921), providing that no warrant shall be issued to search a private residence, occupied as such, unless such residence is a place of public resort. The record shows that the same objection was interposed to the testimony of the witnesses for the state.

At the close of the state’s case defendant’s counsel asked the court to direct and advise the jury to return a verdict of not guilty, on the ground that all the evidence admitted in the case was incompetent, because the same was obtained in executing a void search warrant, which motion was overruled.

It is the well-settled doctrine in this state that constitutional provisions against unreasonable searches and seizures, and against compelling one to be a witness against himself, secure the individual in his person, his home, and his property from invasion by officers in executing illegal and void search warrants.

In the case of Wiese et al. v. State, 32 Okla. Cr. 203, 240 P. 1075, we held:

“Affidavit for search warrant, describing the place to be searched as a certain section of land, and without naming the owner, is insufficient to furnish the particular description of the place to be searched, where it appeared that the land so designated was owned and occupied by several persons, so that it was in fact several places.”

See also Cummings v. State, 32 Okla. Cr. 274, 240 P. 1078; Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Foreman v. State, 8 Okla. Cr. 480, 128 P. 1101.

On the authority of the case of Wiese v. State, supra, the judgment in this case is reversed, and the cause remend-ed, with direction to dismiss.

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


text:
    Ex parte L. E. CARMICHAEL.
    No. A-5912.
    Opinion Filed Dec. 15, 1925.
    (241 Pac. 1117.)
    White & Reid and Lunsford & Windham, for petitioner.
    The Attorney General, Smith C. Matson, Asst. Atty. Gen., and James Babb, Co. Atty., for respondent.
   PER CURIAM.

The petition for writ of habeas corpus was filed in this court November 18, 1925. A rule to show cause was entered and issued, answerable before this court November 24th. It is averred that petitioner is illegally restrained of his liberty and unlawfully imprisoned in the county jail of LeFlore county by Monroe Self, sheriff of said county; that the cause of said restraint is an order of commitment issued by Grover Flanagan, judge of the county court of LeFlore county, and directing said sheriff to hold petitioner in confinement indefinitely for the crime of murder, which commitment issued on September 8, 1925; that petitioner has used due diligence to procure a preliminary examination upon said charge, by filing in the'district court of LeFlore county, September 80th, his petition for a writ of habeas corpus, for the purpose of affording him a preliminary trial as is required by law, and no preliminary examination or hearing of any kind or character has been afforded petitioner. The response is in part as follows: “Your respondent would further show: That the said L. E. Carmichael is charged with a capital offense under the laws of the state of Oklahoma, and that he has not been given a preliminary trial, for the reason that, at the time it is alleged that he shot and killed L. E. Threasher, he also shot and wounded Mamie Fries in and about the head, face, arms, and lower limbs, seriously and dangerously wounding the said Mamie Fries, and that as a result of the said wounding of the said Mamie Fries, it was necessary that she be taken to Sparks Memorial Hospital at Ft. Smith, Ark., for medical and surgical treatment, and that she is at this time a patient in said hospital, being treated for the above-described wounds inflicted at the hands of the said L. E. Carmichael, defendant and petitioner herein. That the said Mamie Fries is the only eyewitness to the unlawful and felonious acts of this defendant, and that the state has no other witness by which it can prove the facts of the unlawful killing, and that the said Mamie Fries is now unable physically to be present in court as a witness to testify in the preliminary trial of the said defendant. Respondent denies that petitioner or his counsel has ever requested the examining magistrate to set said cause for trial. That the proof of said crime of murder is positive and the presumption great that the said L. E. Carmichael is guilty of said offense, and is not, under the Constitution and laws of the state of Oklahoma, entitled to be discharged or granted bail.” On the same day a hearing was had, and upon a consideration of the pleadings and undisputed facts •in evidence, and the arguments of counsel, it was adjudged that the petitioner was entitled to be accorded a preliminary examination upon the complaint filed before the county judge, and it was ordered that the county attorney fix a Hay for said preliminary examination within eight days.