text:
    MARTIN FARMER v. STATE.
    No. A-8743.
    Jan. 25, 1935.
    (40 Pac. [2d] 693.)
    W. L. Ratliff and J. B. O’Bryan, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst-. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of accessory after the fact of the crime of assault with intent to kill, and sentenced to one year and a day in the state penitentiary.

The statute under which the prosecution is based is section 1809, O. S. 1931, which reads as follows:

“All persons, who after the commission of any felony, conceal or aid the offender, with knowledge that he has committed a felony, and with intent that he may'avoid or escape from arrest, trial, conviction, or punishment, are accessories.”

At the conclusion of the evidence counsel for the defendant requested the trial court to instruct the jury to return a verdict of not guilty, which request was denied. It is not necessary to set out the evidence in this case for the reason the Attorney General has filed a confession of error, a part of which is as follows:

“We believe the refusal to' so instruct the jury constituted reversible error in this case. All the state proved against the defendant was that he had knowledge of the felony alleged to have been committed, to wit: the felony of assault with intent to kill as charged in the information, and that when the sheriff: was investigating who the probable guilty parties were that the defendant told the sheriff a falsehood in that he told the sheriff he did not know who they were and that he told such falsehood with the intent that such parties might escape from the arrest, trial and conviction for such offense.
“The defendant, therefore, was convicted on the theory that his refusal to tell the sheriff the names of the persons who had committed the felony aided the offenders to escape and that he told the sheriff a falsehood with intent that the offenders might avoid and escape arrest for the felony. The Attorney General believes that the mere fact of the telling the sheriff a falsehood under such circumstances does not amount to a violation of the foregoing statute. The decisions point to the contrary and are to the effect that in order to constitute a person an accessory after the fact some overt active assistance rendered to the felon personally is necessary.”

In the case of Wren v. Commonwealth, 26 Grat. (67 Va.) 952, the court said:

“But merely suffering the principal to escape, will not make the party accessory after the fact; for it amounts at most but to a mere omission. * * * Of if he agree for money not to prosecute the felon; or if knowing of a felony, faite to make it known to' the proper authorities; none of these acts would be sufficient to make the party an accessory after the fact.”

In Chenault v. State, 46 Tex. Cr. R. 351, 81 S. W. 971, the Court of Criminal Appeals of Texas held under a statute very similar to ours that in order to make one an accessory after the fact some overt active assistance rendered to the felon personally was necessary.

In Ex parte Overfield, 39 Nev. 30, 152 Pac. 568, the Supreme Court of Nevada held that a failure to disclose the whereabouts of a felon by one who had knowledge thereof did not make such a person an accessory after the fact.

There is no evidence in the record to show that the defendant rendered any active assistance personally to the party charged with the felony. The confession of error of the Attorney General is approved.

There being no evidence to sustain the verdict and judgment, the case is remanded, with directions that if the state has no further proof the case be dismissed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WALTER NEAL v. STATE.
    No. A-8805.
    Jan. 25, 1935.
    (40 Pac. [2d] 1119.)
    O. P. Mason, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted of the crime of assault with a dangerous weapon, and sentenced to be imprisoned in the state penitentiary for a period of five years.

The record in this case was filed in this court on September 4, 1934; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury.

The ease is therefore affirmed.


author: DAVENPORT, P. J.

text:
    CHARLEY DAVIS v. STATE.
    No. A-8721.
    Jan. 25, 1935.
    (40 Pac. [2d] 1118.)
    Bruce B. Potter and J. H. Hill, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted of harboring a fugitive from justice and a person seeking to escape arrest for felonies committed within this state, and was sentenced to imprisonment in the state penitentiary for a term of five years.

The record in this case was filed in this court on April 19, 1934; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury.

The ease is therefore affirmed.

EDWARDS and DOYLE, JJ., concur.


text:
    SYLVESTER BROWN v. STATE.
    No. A-8741.
    Jan. 25, 1935.
    (40 Pac. [2d] 1118.)
    Champion, Champion & Fischl, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called the defendant, was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the state penitentiary for a term of four years.

The record in this case was filed in this court on May 18, 1934; no brief has been filed in support of the defendant’s assignment of errors. A careful examination of the record discloses no fundamental error. The evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.


author: DOYLE, J.

text:
    Ex parte JACK HYDE.
    No. A-8852.
    Jan. 26, 1935.
    (40 Pac. [2d] 1114.)

      Babb & Babb and David Tant, for petitioner.
    Mac Q. Williamson, Atty. Gen., and A. G. Windham, Co. Atty., for the State.
   DOYLE, J.

In this proceeding petitioner filed in this court on January 11, 1935, a duly verified petition for a writ of habeas corpus to be admitted to bail.

It is averred in said petition that the cause of said restraint is as follows:

“That in the month of August, 1934 two preliminary complaints were filed in the justice court of Neis Jenson, justice of the peace of the city of Poteau, justice district, one of said complaints charging petitioner with the crime of rape in the first degree, and the other complaint charging petitioner with the crime of robbery with firearms; that both of said complaints arose from the same transaction; that thereafter on the 31st day of August, 1934, petitioner had a preliminary hearing on both of said complaints; the evidence introduced at said preliminary hearing by agreement being considered as evidence in both cases; that thereafter and on the same day, said justice of the peace ordered that petitioner be held to answer said charges in the district court of LePlore county, without bail.”
“That thereafter informations in both cases were filed against petitioner in said district court and he was duly arraigned thereon and entered pleas of ‘not guilty.’ ”

That thereafter petitioner filed in said district court, D. C. McCurtain, judge, an application to be released on bail; after hearing and considering the same, the court made and entered an order denying petitioner bail. Attached to and made a part of this petition is a transcript of the proceedings before the committing magistrate and a transcript of the testimony taken before D. C. McCurtain, district judge, upon petitioner’s application to be admitted to bail, including a transcript of the testimony of the defendant.

Upon this application, further testimony was heard before this court on January 17th, and, after argument of counsel, the cause was submitted.

The constitutional right to bail is granted by section 8 of our Bill of Rights, which reads as follows:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great.” Const, art. 2, §8.
“The right to furnish bail by sufficient sureties arises in favor of any person accused of crime, and before conviction, absolutely, and without exception, in cases of all crimes not punishable with death, and in capital cases when the proof of guilt is not evident or the presumption thereof not great. It will be observed that this constitutional provision is silent as to the status of the prosecution. Had the framers of the Constitution intended to provide that the return of an indictment or the filing of an information in the trial court should be conclusive in capital cases, they would, in all probability, have said so.
“It follows that a person charged with a capital offense may be admitted to bail after the information has been filed and prior to the trial if the proof of guilt is not evident nor the presumption thereof great.” Ex parte Lacy, 20 Okla. Cr. 440, 203 Pac. 1050, 1051.

We have carefully read and considered all the evidence presented and we have reached the conclusion that on the undisputed facts and circumstances in evidence, the petitioner is entitled to be admitted to bail.

It is therefore ordered that petitioner be admitted to bail upon the charge of robbery with firearms now pending against him, and that his bail be and the same is hereby fixed in the sum of $2,500; that on the charge of rape in the first degree now pending against him, that his bail be and the same is hereby fixed in the sum of $2,500.

Bonds to be conditioned as required by law, and to be filed with and approved by the clerk of the court of LeFlore county.

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


author: EDWARDS, J.

text:
    WALTER A. BRANNON v. STATE.
    No. A-8580.
    Feb. 1, 1935.
    (40 Pac. [2d] 1115.)

      David Tant and James H. Mathers, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J. H. Lawson, for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court, Johnston county, of murder, and was sentenced to life imprison^ ment. Only a brief statement of facts is necessary. Defendant was jointly charged with Roy Denmark, George Davis, Wilbur Spears, Ralph Kirkland, Floyd Stapp, and M. W. Newman with the murder of one Jim Wood. A severance was granted, and Brannon, this defendant, was tried alone. He and his codefendants Denmark, Spears, and Kirkland were engaged in illicit liquor traffic. Wood, a resident of Johnston county, had prior thereto been engaged in the liquor business as a source of supply. The defendants named, a few days before the killing, left Oklahoma City, going into Southeastern Oklahoma for the purpose of purchasing a quantity of whisky. In the course of their search, they were directed to Wood. On the day prior to the homicide, they went to his residence, as they say, in search of whisky, and had some arrangements whereby he was to locate a supply. On the night of the homicide they returned and stopped on the highway near his residence and sent Avord they wanted to see him. He came out to the car and very soon engaged in a gun battle with defendants in which he received the wound from which he died. The theory of the state is that defendants conspired to rob deceased or to seize him as a prisoner and rob his house. Defendant testified they Avent to his residence at the time of the homicide to make inquiry for whisky which, on' tbeir prior visit, be bad promised to locate for them; that deceased bad become suspicions they were federal officers in search of violators Of the liqnor laws, and after a few words began shooting at them; that the shots fired by defendant and his companions were in their necessary self-defense in resisting, an unlawful attack — that is, the homicide was admitted and the plea of self-defense interposed.

Defendant argues the court erred in permitting the state, over defendant’s objection, to use George W. Davis as a witness in chief, for the reason his name was not indorsed on the information nor included in the list of witnesses served on defendant as required by section 20, art. 2, Constitution. Davis is named in the information as a codefendant. He testified at length in support of the state’s theory, particularly as to a conversation between him and the defendants Newman and Stapp, which took place more than a week prior to the homicide, and which purported to show a conspiracy between defendants Stapp and Newman to rob Wood and to a conversation between the witness and defendant Denmark some time after the homicide, while he and Denmark were confined in jail. The state seeks to show by this witness a conspiracy to rob Wood and to connect defendant Brannon with it and to shoAv the homicide was committed while defendants were attempting to carry out the conspiracy. The evidence was very material to the state’s theory. The state seeks to justify the use of this witness without his name having been served, under the rule stated in Cudjoe v. State, 12 Okla. Cr. 246, 154 Pac. 500, L. R. A. 1916F, 1251; Cloud v. State, 51 Okla. Cr. 395, 273 Pac. 1012; Varner v. State, 42 Okla. Cr. 42, 274 Pac. 43, which rule is based on section 3066, Okla. Stat. 1931, and is, in substance, that a defendant jointly indicted'or informed against is charged with notice that the state, if it so desires, may use a co-defendant as a witness against Mm; that the appearance of the name of the witness in the information or indictment as a codefendant satisfies the requirement that his name be indorsed.

.Section 20, art. 2, Constitution is:

“In all criminal prosecutions the accused * * * shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.”

Since the,purpose of the indorsement of the names of witnesses on an indictment or information is to give notice to an accused of the witnesses to be used against him so that he may investigate their testimony or their reputation for truth and veracity, which is also the purpose of the constitutional requirement, supra, it is not absolutely essential that the names of witnesses in capital cases be indorsed on the information, if the list is served as required by the Constitution. The proper practice is to have the names indorsed on the information, as well as having a list of them served. But, unless waived, the names must be served. Capital cases do not fall within the rule announced in Cudjoe v. State, supra; Dumas v. State, 19 Okla. Cr. 413, 201 Pac. 820, or Yarner v. State, supra, since the service of a list of names of witnesses is constitutional and the right of the state to use a co-defendant as a witness is statutory. Permitting the witness Davis, whose name had not been served, to testify to material matters, over the objection of defendant, was a violation of defendant’s constitutional rights, and is reversible error. State v. Frisbee, 8 Okla. Cr. 406, 127 Pac. 1091; Addington v. State, 8 Okla. Cr. 703, 130 Pac. 311; Spess v. State, 13 Okla. Cr. 277, 164 Pac. 131; Hisaw v. State, 13 Okla. Cr. 484, 165 Pac. 636; Goben v. State, 20 Okla. Cr. 220, 201 Pac. 812.

There was also error in admitting hearsay testimony on the part of the state, hut, since the case must be reversed, it is not necessary to discuss that assignment at length.

The case is reversed.

DAVENPORT, P. J., and DOYLE, J., concur.


author: EDWARDS, P. J.

text:
    WILLIS NEWTON v. STATE.
    No. A-8757.
    Jan. 11, 1935.
    Rehearing- Denied Feb. 8, 1935.
    (40 Pac. [2d] 688.)

      Hudson & Hudson, W. H. Hills, J. E. Falkenberg, and W. H. C. Taylor, for plaintiff in error.
    J. Berry King, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in district court, Grant county, of robbery with firearms and was sentenced to serve a term of 20 years in the state penitentiary.

On the night of April 13, 1932, the First National Bank of Medford was robbed by two men who entered by breaking windows. The steel safe, four inches in thickness, was burned through by an acetylene torch and more than $4,400 in money taken, in addition to bonds and travelers’ checks. At the time, one Ed Heiland was night watchman or night marshal, whose duty it was to guard the bank and other business houses during the night. About 1:15 a. m. he was in a cafe about a block from the bank with the proprietor and another person. Heiland had just ordered a cup of coffee when defendant came in with a pistol in his hand and with a handkerchief over his face. He required those in the cafe to lie on the floor and stretch their hands before them, he then tied the hands of all, tied them together, took the pistol from Heiland; and forced them to go with him about a block, where he was joined by another masked man with a shotgun, the prisoners were then put in the shadow near the bank building and held under guard. Defendant then went to the telephone exchange, disabled it, and took in custody all of those there, forced them to go with him. By using one of the telephone men as a decoy, he captured a deputy sheriff and took him, with his car, near the bank and placed seven of these captives in the car where defendant’s companion guarded them. Defendant then drove a car equipped with an acetylene torch, tank, hose, and material for steel cutting to the sidewalk abutting the bank, broke in the Avindows, and one of the two men then proceeded to hook up the acetylene torch equipment and cut into the safe. During the operations several persons came along. They were stopped by the man on the outside guarding the prisoners and Avere taken into custody, so that, by the time the operations were completed, about 20 persons Avere held captive, most of them in their cars outside the bank. These prisoners included two men driving bread deliveries and one man driving a milk delivery. One young man Avas pressed into service to aid in the work inside the bank and two others were for a time kept inside the bank. The work was finished and the defendant and the perpetrators then drove away. In November, folloAving, defendant and his brother Joe Newton were apprehended at Chandler and there was found in their car a double-barreled shotgun, three pistols, bullet proof vests, an acetylene outfit with tank, hose, torch, and goggles. Joe NeAvton Avas delivered to Texas authorities, defendant claimed the acetylene outfit, and it, with the car, was turned over to him by the Chandler officers. Later, officers at Medford, seeing pictures of defendant and Joe Newton, had defendant arrested at Tulsa, November 27, 1932, where he had gone after being released at Chandler. The defense was alibi, defendant did not take the stand. The identification of defendant as a participant in the crime is conclusive. The information charges robbery and also sought to bring defendant under the habitual criminal act, section 1820, Okla. Stat. 1931, by alleging a prior conviction, sentence, and commitment in a federal court.

Technically, this case was closely tried, the record contains more than 2,500 pages, defendant’s initial brief contains 246 pages. Some 40 assignments of error are argued. These various assignments will not be discussed separately, but those deemed of sufficient importance will be referred to.

The first contention is that the information is insufficient to charge robbery. Citing Wear v. State, 30 Okla. Cr. 118, 235 Pac. 271; Ex parte Grant, 32 Okla. Cr. 217, 240 Pac. 759; Ward v. State, 34 Okla. Cr. 296, 246 Pac. 664; Wissinger v. State, 39 Okla. Cr. 324, 264 Pac. 631. Along with the allegations of time, place, and various details, the information alleges in substance that defendant had a certain deadly weapon, a loaded pistol, which he then and there pointed at and threatened to kill one Ed Heiland and thereby put said Heiland in fear of immediate death, that said Heiland was then and there the custodian of and guarding the banking, house of the First National Bank at Medford and had the same under his care and possession. That said banking house was a place of business, attended during banking hours of each secular day by its cashier and other officers and employees, and that defendant, by use of the force and fear set out, did unlawfully, forcibly, and against the will of said Heiland take from the said banking house and said Heiland said moneys then and there in his possession and under his care as custodian and guard with the intent, etc. It is argued this is insufficient in not alleging the money was taken from a person who attended the bank at the time of the taking and does not allege the money was taken from the person and immediate presence of Heilgnd. Reliance is mainly on the case of Ward v. State, supra. The robbery in that case was of a person. It was alleged one person was put in fear, the property taken from another, and belonged to a third person. It was so worded that even the court could not be certain what was intended, and it was held the information was too indefinite and uncertain- to apprise the accused of the offense sought to be charged.

Defendant’s brief refers to the acts shown hy the evidence as a “burglary.” A burglary is defined by section 1927, Okla. Stat. 1931, as a breaking and entering any building (referring to building in its broadest sense) with intent to commit a crime therein. Larceny is defined by section 2253. Robbery is defined by section 2542, Okla. Stat 1931. The robbery of a building or banking institution in addition to the robbery of a person is made a crime by section 2543, which is:

“2543. That any person or persons who, with the use of firearms or any other dangerous weapons * * * robs or attempts to rob; any place of business, residence or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the State Penitentiary, for a period of time of not less than five years, at the discretion of the court, or the jury trying the same.”

The information is rather full and definite in alleging the things done which constituted the offense. Certainly it is sufficient, when considered in connection with subdivisions 6 and 7, § 2891, Okla. Stat. 1931, which provides that an information is sufficient where the act or omission constituting the offense is clearly and distinctly set forth in ordinary and concise language with such certainty as to enable a person of common understanding to know what is intended and to enable the court to pronounce judgment according to the right of the case. This section must be construed in connection with the harmless error statute, section 3206. It cannot be doubted the essential allegations requisite to state the offense of robbery of a banking institution with firearms are charged either in the language of the statute or in words of similar import; that defendant and his counsel knew with certainty what was intended by the pleader; that the court was able to pronounce judgment according to the right of the case; that the offense was so identified that no other prosecution for the same acts would lie and this is all the law requires. Martin v. State, 35 Okla. Cr. 248, 250 Pac. 552; Plemons v. State, 53 Okla. Cr. 263, 10 Pac. (2d) 285.

In attempting to bring the offense within the terms of the habitual criminal statute, the information alleges that on April 14, 1932, defendant had been convicted in the United States District Court of Illinois of robbing the mails and had been sentenced to serve 12 years in the United States penitentiary at Leavenworth, and had been committed thereto. The applicable statute is section 1820, Okla. Stat. 1931, which is:

“Every person who has been convicted in any other state, government or country of an offense which, if committed within this state, would be punishable by the laws of this state by imprisonment in the penitentiary, is punishable for any subsequent crime committed within this state, in the manner prescribed in the last three sections, and to the same extent as if such first conviction had taken place in a court of this state.”

While only incidentally referred to in the record (C.-M.) 1723, 1724), yet in the course of oral argument it was disclosed the offense there referred to was the Eondout robbery, which occurred a short distance out of Chicago and a conviction had thereunder December 11, 1924. Counsel in argument referred to the rather full account of the circumstances of that crime in the April and the May, 1930, issue of True Detective Mysteries Magazine.

It is argued at some length that the court erred in overruling the motion to quash and set aside that part of the information alleging the prior conviction in the United States District Court. The motion to strike this part- of the information also pleads a pardon issued by Pres. Hoover, dated April 29, 1932, which is just 15 days after the crime charged in the instant case and prior to the apprehension of defendant or knowledge that he participated in the crime. The allegation concerning the prior conviction was attacked by defendant at every point. It is stressed that the provisions of section 1820 do not apply to convictions in federal courts, citing Cherokee Nation v. Georgia, 5 Pet. (30 U. S.) 1-15, 8 L. Ed. 25; Faber v. U. S. (C. C.) 157 F. 140, 141; Gilmer v. Lime Point, 18 Cal. 229-255.

Section 1820 is all embracing in its terms. It not only includes a conviction in another state, but one in any other government or country. If it were limited to a conviction in another state or country, there would be much more force to the argument that the United States is not included. The Legislature evidently intended, by the use of the word “government” in connection with the other terms used, to provide an increased punishment for those offenders previously convicted in any jurisdiction specified in said section 1820, whether domestic or foreign, including the general government of the United States.

Counsel further earnestly argue the failure of the court to strike out the allegation in the information with reference to the former conviction and permitting it to be read to the jury, as a part of the information was prejudicial error, that an unconditional pardon obliterated the offense which thereafter could not be imputed to' him, citing Ex parte Crump, 10 Okla. Cr. 133, 135 Pac. 428, 47 L. R. A. (N. S.) 1036; Stephens v. State, 111 Okla. 262, 239 Pac. 450; U. S. v. Klein, 13 Wall. 128-147, 20 L. Ed. 519; U. S. v. Padelford, 9 Wall. 531, 19 L. Ed. 788; Osborn v. U. S., 91 U. S. 474, 23 L. Ed. 388; Ex parte Garland, 4 Wall. 333, 18 L. Ed. 366; Johnson v. State, 44 Okla. Cr. 113, 279 Pac. 933.

There is division of the authorities on this question. See annotations 58 A. L. R. 50; 20 R. C. L. § 41; Scrivnor v. State, 113 Tex. Cr. R. 194, 20 S. W. (2d) 416; Carlesi v. New York, 233 U. S. 51, 34 S. Ct. 576, 58 L. Ed. 843. The better rule is that on a charge of a second and subsequent offense the fact of a prior conviction, within the meaning of the statute, is not wiped out by a pardon; that the pardon by the executive power does not blot out the solemn act of the judicial branch of the government. This court has not had occasion to pass on this question, although there are dicta in Tucker v. State, 14 Okla. Cr. 54, 167 Pac. 637, which state the minority rule. It was not necessary to decide the point in that case and it is not necessary to decide it here since that part of the information was abandoned by the prosecution. In the light of developments at the trial, this part of the information should not have been read to the jury, but that in no wise would justify a reversal.

Complaint is made of overruling application for change of venue. In support of his application defendant filed 55 affidavits. The state filed 87 counter affidavits which fully answer defendant’s showing and, in addition, called and examined a great many of defendant’s affiants. The force of their affidavits was greatly weakened by this examination. The presumption is that the defendant can have a fair trial in the county in which the offense was committed and the burden is on a defendant who seeks a change of venue to establish his right thereto. Davis v. State, 53 Okla. Cr. 411, 12 Pac. (2d) 555. In this day of paved highways, the wide use of rural telephones, daily papers, and radios, the mere fact that the inhabitants of a county have read and heard of the commission of a crime does not disqualify them. To warrant a change of venue, it must be made to appear they have a fixed opinion as to the gyiilt or innocence of an accused to the extent that an accused cannot have a fair trial by an impartial jury. Under the showing made, the court did not abuse his discretion in denying the application for change of venue. Johnson v. State, 35 Okla. Cr. 212, 249 Pac. 971.

Following the denial of a change of venue, an affidavit to disqualify the trial judge was interposed. The court made a finding adverse to the application and in this we perceive no error.

Several assignments are directed to evidence introduced by the state which defendant contends was incompetent. Among these items the witness Northcutt, one of the prisoners at the robbery who was for a time held inside the bank building, was permitted to testify he recognized defendant when he saw him in November following the robbery. This witness testified at the time he saw the defendant he limped. This testimony was drawn out by defendant’s counsel on cross-examination. Further he stated that prior to the time he saw defendant in November he had been shown a picture of him by an officer, which resembled one of the men engaged in the robbery. This testimony goes to the identity of defendant as a participant in the crime. A similar objection is made to the testimony of the witness Acord, who testified to the physical condition of defendant at or after his arrest in November, and further that he made certain tests upon a steel vest such as was found in the car of defendant and his brother at the time of their arrest, and that such vest would stop bullets. Objection is made to the testimony of the witness Wagner, an officer, in effect that guns, pistols, an acetylene outfit, and two steel vests were found in the car of defendant and his brother at the time of his arrest. Witnesses testified that at the robbery the participants wore peculiar appearing sweaters or vests similar to the steel vests found in the automobile of defendant. It having been shown that the robbery was committed by use of an acetylene outfit, and that the persons who committed it had similar appearing guns and pistols and wore garments in the form of sweaters similar to steel vests, it was not error to admit the evidence of such paraphernalia being found in possession of defendant and his brother at the time of their arrest. The rules of evidence will not be applied with such strictness as to exclude such articles found in the possession of an accused under the circumstances here shown.

In Sorenson v. U. S., 168 F. 785, 793, 94 C. A. A. 181, a burglary case was reversed because of the admitting in evidence certain things ordinarily used in the commission of burglary as fuse, nitroglycerine, skeleton keys, dynamite caps, etc. In that case there was no evidence as to manner in which the building was entered nor the use of any of such weapons or implements and it was further shown that defendant was a coal miner and that some of such articles were used in his work. In passing on the question, the court said:

“In the multiplication of reported cases touching the evidential effect of the possession by the accused of implements and materials adaptable to the commission of the crime in question, it will be found that some courts have admitted such facts for the consideration of the jury when such possession was more or less remote from the time and locus of the crime; but their admissibility depended upon their being, connected up with or traced to the res gestae. If the articles found on the defendant had been traced to his possession prior to the burglary or theft, and there had been any evidence tending to show the presence of the defendant about the premises near to the time of the trespass, and the like, the jury might have been advised that such possession of articles and, implements, if the evidence tended to show that they were probably used in executing the crime, was a circumstance for their consideration.”

See, further, People v. Radovick, 122 Cal. App. 176, 9 Pac. (2d) 542; People v. Mar Gin Suie, 11 Cal. App. 42, 103 Pac. 951; Quinn v. State, 55 Okla. Cr. 116, 25 Pac. (2d) 711.

Complaint is made of the admission of other items of evidence, but none are of sufficient importance to require special discussion. We find no ruling of the court admitting or excluding testimony which was materially erroneous.

Error is asserted in the instructions of the court and refusal of instructions requested by defendant. For instance, the instruction on the law of alibi is challenged for the reason it does not tell the jury they should acquit if they have a reasonable doubt as to the presence of the defendant at the time and the place of the commission of the crime charged. The instruction, while not a model, is not subject to the same objection as the instruction criticized in Stuart v. State, 35 Okla. Cr. 103, 249 Pac. 159, and Beck v. State, 50 Okla. Cr. 325, 297 Pac. 820. The instructions, construed all together, fairly and correctly state the law applicable to the case.

Various assignments of error set out in the briefs have not been discussed; these have not been overlooked, but have had the attention of the court. Upon a consideration of the entire record, we are satisfied defendant is guilty as charged — that he had a fair trial, free from any material error.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    MRS. V. L. BARNES v. STATE.
    No. A-8767.
    Feb. 8, 1935.
    (41 Pac. [2d] 126.)

      J. O. Whiteside, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith. O. Matson, Asst. Atty. Gen., and Ted B. Fisher, Co. Atty., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Blaine county of the crime of destroying evidence, and was sentenced to pay a fine of $50 and cost.

The condition we find this record in, it is only necessary to consider one question, that is, the question of the introduction as primary evidence of the affidavit for the search warrant; when the state offered the affidavit for the search warrant as State Exhibit A, the defendant objected to the same on the ground that it was incompetent, irrelevant, and immaterial; the affidavit was not in suffiicient form to authorize the issuance of the search warrant, which objection of the defendant was overruled and exceptions duly saved.

This court has repeatedly held that it is error for the state to introduce the affidavit for the search warrant as primary evidence. Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858; Ford v. State, 45 Okla. Cr. 161, 282 Pac. 370.

If this court should permit the state to read the ex parte affidavit for the search warrant to the jury as primary evidence, it would deprive the defendant of his constitutional right to be confronted by the witnesses against him (Const, art. 2, § 20). Where the state introduced the affidavit as primary evidence, over the objection of the defendant, the case will be reversed. For the reason stated, the case is reversed.

EDWARDS and DOYLE, JJ., concur.


text:
    Ex parte J. W. ROBINSON.
    No. A-8824.
    Feb. 8, 1935.
    (41 Pac. [2d]) 127.)

      Greer & Banta, for petitioner.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Tom Huser, Co. Atty., for respondent.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained ; that October 10,1934, judgment was entered pursuant to verdict of a jury in the superior court of Seminole county, adjudging petitioner guilty of murder and assessing punishment at life imprisonment. That said court was without jurisdiction for the reason petitioner had not had a preliminary examination before any magistrate having jurisdiction. This court issued a rule to show cause; the sheriff in his return states he holds said petitioner under such judgment and has committed him to the state penitentiary.

Before the filing of the information in superior court, a preliminary information, charging petitioner with murder, was filed with one Joe W. Harris, a justice of the peace for Konawa township district. Harris maintained his office in the incorporated town of Konawa, which town, by the federal census for 1930, had a population of 2,005. A preliminary hearing was set for December 18, 1933, at which time petitioner appeared by counsel and objected to the jurisdiction of said magistrate for the reason he was not within Konawa township district, the district for which he was elected, but was attempting to hold court in another district, the incorporated town of Konawa. This objection was overruled and preliminary was held. Petitioner was committed for the action of the superior court of Seminole county and transcript of the proceedings filed in the court clerk’s office. Thereafter petitioner filed in said superior court a petition for writ of habeas corpus, which is rather ambiguous, but we construe it as a proceeding to* be let to bail and not as a challenge to the jurisdiction of the superior court because he had not had a preliminary. It is more in the nature of a questioning of the sufficiency of the evidence as showing probable cause. He states:

“* * * But your petitioner alleges that said information is illegal, in that it is unauthorized, and that said court is without jurisdiction of this plaintiff, and if said crime is true, petitioner believes that he is entitled to bail.
“Wherefore your petitioner prays your honorable court to grant a writ of habeas corpus, and that he have a hearing on sdd cause and that he be discharged or granted bail without delay.”

Upon a consideration of said petition, the court admitted petitioner to bail. He was arraigned February 19, 1934, and entered a plea of not guilty. Later said case was set for trial and petitioner presented a motion for continuance which was granted and the case was again set for the September, 1934, term. Two or three days before the date of trial petitioner filed his motion to quash the information, alleging: * * That this defendant has never been granted a preliminary hearing, nor has he waived the same by any court or magistrate having jurisdiction or authority to hear or receive the same,” and asked leave to withdraw plea of not guilty to present it. The court said he would not permit the withdrawal of the plea, but would hear the petitioner’s motion, and, if he found it contained merit, he would allow the withdrawal and sustain it. It was thereupon presented and the court stated it should be denied and he then refused to permit the withdrawal of the plea.

This being a proceeding in babeas corpus, petitioner is not entitled to tbe writ, no matter bow numerous or gross tbe errors and irregularities of law or procedure may be on questions oyer wbicb tbe court bad jurisdiction, but is entitled to tbe writ only in case tbe judgment is void. If merely voidable or sucb as might be reversed on appeal, relief cannot be afforded in a babeas corpus proceeding. Habeas corpus cannot be invoked to take the place of an appeal. Ex parte Rupert, 6 Okla. Cr. 90, 116 Pac. 350; In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. S.) 805; Ex parte Williams, 102 Okla. 170, 228 Pac. 494; Ex parte Davis, 55 Okla. Cr. 380, 31 Pac. (2d) 623; Ex pare Miles, 56 Okla. Cr. 69, 33 Pac. (2d) 636 .

It is tbe duty of officers of tbe state to know tbe power, territorial jurisdiction, and limitations of its magistrates. Without discussing at length tbe different statutes and decisions relating to tbe election and qualification of justices of tbe peace and the creation and designation of districts for justices of the peace, we are of the opinion the justice of tbe peace, Harris, before whom the state held tbe preliminary of petitioner, was without jurisdiction to act in tbe incorporated town of Konawa; that be was a justice of tbe peace of Konawa township district and not a justice of tbe peace in the district comprising tbe incorporated town of Konawa. The statutes and the stipulation of facts bring him within the rule announced in Berry v. State, 10 Okla. Cr. 308; 136 Pac. 195; Leiber v. Argaubright, 25 Okla. 177, 105 Pac. 341.

Article 2, § 17, Constitution, provides:

“* * * No person shall be prosecuted for a felony by information without having bad a preliminary examination before an examining magistrate, or having waived sucb preliminary examination. * * *”

This constitutional provision is for the benefit of an accused. It is in the nature of a personal privilege under which he may insist upon a preliminary examination before he can be put upon his trial or called upon to answer an information, but by its express terms he may waive this right. Canard v. State, 2 Okla. Cr. 505, 103 Pac. 737, 881, 139 Am. St. Rep. 949; Muldrow v. State, 16 Okla. Cr. 549, 185 Pac. 332; Simpson v. State, 16 Okla. Cr. 533, 185 Pac. 116; Ralston v. State, 16 Okla. Cr. 634, 185 Pac. 831; Browning v. State, 31 Okla. Cr. 373, 239 Pac. 272; Ables v. State, 35 Okla. Cr. 26, 247 Pac. 423; Neff v. State, 39 Okla. Cr. 133, 264 Pac. 649.

It is well settled that an information charging a felony need not allege that an accused has had a preliminary examination or has waived it. Wines v. State, 7 Okla. Cr. 450, 124 Pac. 466; Robbins v. State, 12 Okla. Cr. 294, 155 Pac. 491; Browning v. State, supra; Stamper v. State, 25 Okla. Cr. 324, 220 Pac. 67. The manner of challenging jurisdiction because no preliminary examination was had is by motion to quash or set aside the information. The applicable statutes are, sections 2937, 2940, 2941, 2942, Okla. St. 1931. See, also, Quinton v. State, 10 Okla. Cr. 520, 139 Pac. 705; Robbins v. State, supra.

A preliminary examination may be waived before the committing magistrate or the preliminary examination, and the entire preliminary proceedings may be waived in the trial court and is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.

After plea to the merits, it was some six or eight months and after a continuance on the application of accused, before he sought to interpose a motion to quash or set aside. After plea to information on the merits has been entertained, it is discretionary with tbe trial court ■whether or not he will permit the plea to be withdrawn for the purpose of filing a motion to quash or set aside. Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444; Tegeler v. State, 9 Okla. Cr. 138, 130 Pac. 1164; Weatherholt v. State, 9 Okla. Cr. 161, 131 Pac. 185; People v. Williams, 129 Cal. App. 504, 19 Pac. (2d) 37.

The judgment is not void and the writ is denied.

DAVENPORT, P. J., and DOYLE, J., concur.


text:
    G. M. WOODRUFF v. STATE.
    No. A-8781.
    Feb. 8, 1935.
    Rehearing Denied Feb. 26, 1935.
    (41 Pac. [2d] 129.)
    Oscar C. Simpson, for plaintiff in error.
    J. Berry King, Atty. Genv and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of receiving stolen property and was sentenced to serve a term of four years in the state penitentiary.

The information charges in substance that on a named date defendant received from Pat Thompson and Roy Clayton, for a consideration of $2, an overcoat, knowing at the time the same to have been stolen. Roy Clayton and Pat Thompson testified they burglarized the house of one R. W. Ward and stole the overcoat in question and sold it to defendant. To show guilty knowledge they testified that they had committed a number of burglaries and thefts, they sold him stolen property, such items as a camera, hat, shirts, a radio, and other things, which he knew to have been stolen, and that he had solicited them to bring him any property which they had for sale. It was shown that defendant ivas connected with two secondhand stores on South Harvey, in Oklahoma City, and that he was a fence for juvenile thieves. The evidence clearly shows the guilt of defendant. The defense is alibi.

It is first argued the court erred in overruling the defendant’s motion to quash the information. It appears a preliminary complaint was filed before a justice of the peace in which it was alleged the stolen property belonged to one C. R. Stephens. Defendant waived preliminary examination. Three days before the preliminary was waived the preliminary information was amended in the justice court by changing the name of C. R. Stephens to R. W. Ward. (C.-M. 28.) The information in the district court alleges the property belonged to Ward. This allegation is surplusage. In a charge of receiving stolen property it is not necessary to allege the ownership of the property. White v. State, 23 Okla. Cr. 198, 214 Pac. 202, 205.

Next it is argued the court- erred in overruling defendant’s motion for continuance. This motion was predicated on the illness of H. J. Mackey, attorney for defendant. It was shown Mackey had been sick for some days and defendant had employed Oscar Simpson as his attorney, but just how long before the trial does not appear. It is well settled that the granting or refusing a motion for a continuance is within the sound discretion of the trial court, and unless there is an abuse of discretion a conviction will not be reversed on the ground of overruling such motion. That the absence of defendant’s leading counsel is not grounds for continuance where he is represented by his other counsel. Coffey v. State, 38 Okla. Cr. 91, 258 Pac. 923.

Complaint is also made that the assistant county attorney was guilty of prejudicial misconduct. In one instance in examination of jurors on voir dire he asked the question: “Q. Do any of you jurors belong to or have you belonged to an organization known as ‘Red Devils’ which was organized by defendant in this case?” An objection was interposed, sustained, and the jury admonished not to consider it. The question was not repeated. No-other reference to any such organization was made, nor did defendant attempt to disqualify any juror by reason of this reference; no exception to the proceeding was made. Under this assignment it is also urged the assistant county attorney in his argument attacked the defendant’s character, which he had not put in issue. Upon this point the trial court made the following finding:

“That the defendant Woodruff testified in his own behalf, and his attorney, Mr. Simpson, in arguing the case to the jury stated that Mr. Woodruff had been in the county for over 20 years and his reputation was good and if it had not been good the state could have impeached him, and made considerable comment upon the splendid reputation of the defendant, and in replying to said argument the assistant county attorney stated that the state could not attack the good reputation of the defendant until he had offered evidence supporting that reputation and that if he had done that the state could cover him up with witnesses who would prove his bad reputation. To this remark the defendant objected and the objection was sustained by the court and the statement withdrawn by the assistant county attorney and the jury directed not to consider and told by the court that when the defendant testified the state had the right to introduce evidence tending to show his bad reputation for truth and veracity and as that had not been done in this case the jury should disregard the statement of the assistant county attorney, and the assistant county attorney withdrew the statement and apologized for making it and requested the jury not to consider it.”

Where counsel for defendant goes outside the record and makes argument not supported by the evidence, then improper argument by the counsel for the state in answering such argument, unless clearly prejudicial, affords no grounds for a reversal, since the argument of defendant’s counsel invites or provokes the objectionable argument. Buck v. Territory, 1 Okla. Cr. 517, 98 Pac. 1017; Wood v. State, 4 Okla. Cr. 436, 112 Pac. 11, 45 L. R. A. (N. S.) 673.

Upon an examination of the entire record we are satisfied defendant had a fair trial.

The case is affirmed.

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


text:
    JEFF LUCAS v. STATE.
    No. A-8756.
    Feb. 8, 1935.
    (41 Pac. [2d] 131.)
    R. N. Linville, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

Jeff Lucas was tried and convicted on a charge that on or about May 15, 1933, in Beckham county he did have in his possession one-half gallon of whisky with the unlawful intent to sell the same, and in accordanee with the verdict of the jury he was by the judgment of the court sentenced to be confined in the county jail for a period of 30 days, and to pay a fine of $100 and costs. To reverse the judgment, he appeals.

The errors assigned relate to rulings of the court in the admission of evidence and question the sufficiency of the evidence to sustain the verdict and judgment of conviction.

The evidence tending to support the accusation was obtained in execution of a search warrant issued on the affidavit of Orlin Jones, a police officer and deputy sheriff. It shows that on the date alleged, accompanied by two deputy sheriffs, affiant visited lots 19, 20 and 21 in block 49, Elk City, and searched the entire apartment upstairs over a garage on the rear of said lots, owned and occupied in part by Mrs. Maggie Fitzgerald. They found the defendant in the northeast room, and Mr. Buz Blocker and wife in another room, and Mrs. Fitzgerald, the landlady, was present. ' The officers testified that they found a half-gallon fruit jar full of whisky in a cabinet in the kitchen; that they discussed arresting all the parties present and the defendant then said that he would take the responsibility himself, and they placed under arrest. The jar containing the whisky was identified and introduced in evidence. When the state rested, the defendant demurred to the evidence and moved for a directed verdict, which was overruled.

As a witness on his own-behalf, defendant testified, in substance, that he had been living in the apartment for about three months, occupying only the northeast room; that he did not have any authority or control over the kitchen; that he did not have any whisky in his possession, and knew nothing about the whisky until the officers came there.

Mrs. Fitzgerald testified that she is part owner of lots 19, 20, and 21, block 49, Elk City, on which there is a duplex apartment on the front end and two garages with an apartment upstairs on the rear of said lots; that she is a widoAv and rents her apartments to make a living; that the defendant is her nepheAv by marriage and rented the northeast room; that at the time the search was made, Mr. Buz Blocker and his wife occupied another room; that they all used the kitchen for cooking; that she did not know Avho OAvned the whisky found by the officers.

At the close of the case, the defendant again moved to suppress the testimony of the officers, and further moved the court for an instructed verdict of acquittal. The motions were overruled and exceptions reserved.

It appears from the record that before the case was called for trial the defendant filed a motion to suppress and exclude the testimony procured by means of the search warrant, for the reason that the search and seizure was made by these officers under a void search Avarrant issued on an affidavit that was legally insufficient. After hearing the testimony in support of the motion, the court overruled the same. The affidavit recites that:

“Intoxicating liquors are being kept for the purpose of selling, bartering, giving away and otherwise furnishing said liquor in violation of law by Jeff Lucas, and that said intoxicating liquors are being manufactured, stored and kept on the following premises, to wit: ‘the buildings, basements, cellars, appurtenances and premises situated and being on lots 19, 20 and 21 in block 49, O. T., in the city or town of Elk City, Beckham county, State of Oklahoma.’ ”

The search warrant describes the place to be searched as:

“The private residence of Jeff Lucas, being an apartment over a garage and situated on lots 19, 20 and 21, block 49, original townsite of Elk City, Oklahoma; certain intoxicating liquors, viz., whisky, beer, wine and other intoxicating liquors were then and there and are now being manufacturd, sold, bartered, given away, and otherwise furnished, and were then and there and are now being kept for the purpose of being manufactured, sold, bartered, given away and otherwise furnished by— -, or a person unknown, in violation of law.”

Bill of Rights, § 30, provides:

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

The statutes, section 2638, Okla. St. 1931, provide the same.

It appears from the record that the search warrant was not issued in accordance with law. The description in the warrant of the place to be searched does not conform to the description in the affidavit.

Under the statute, section 2639, Okla. St. 1931, no officer is authorized to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort, unless it is made to appear that such private residence comes within the exceptions stated in said section.

It has been repeatedly held by this court that evidence obtained by an unlawful search and seizure, and contrary to section 30 of the Bill of Rights, is inadmissible against the defendant, as being a violation of section 21 of the Bill of Bights, giving one accused of crime immunity from becoming a witness against himself.

In the case of Wiese et al. v. State, 32 Okla. Cr. 203, 240 Pac. 1075, 1076, 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.”

And see Daniels v. State, 32 Okla. Cr. 426, 241 Pac. 836.

It follows that the search and seizure shown in this case was an invasion of the constitutional rights of the defendant.

In the course of the trial the witness Orlin Jones, who made the affidavit on which the search warrant was issued, identified the same, it was marked Exhibit A, and over the defendant’s objection was introduced in evidence.

The recitations of the search warrant and the return thereon tended to establish facts very materially against the defendant, as by section 2626, Okla. St. 1931, the keeping in excess of one quart of intoxicating liquors shall be prima facie evidence of an intention to sell or otherwise dispose of the same. This evidence also put in issue the defendant’s character; therefore, the admission of the same as independent evidence was prejudicially erroneous. Johnson v. State, 59 Okla. Cr. 332, 2 Pac. (2d) 972; Bruner v. State, 44 Okla. Cr. 425, 281 Pac. 319; Weeks v. State, 41 Okla. Cr. 95, 270 Pac. 858; Williams v. State, 34 Okla. Cr. 359, 246 Pac. 895.

It would serve no useful purpose to consider the remaining assignments. On the record before us, we are convinced that all of the state’s evidence was improperly admitted against the defendant in violation of his constitutional and statutory rights, and for the reasons stated the judgment is reversed and the cause remanded, with directions to dismiss.

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


text:
    Ex parte MAUDE WHITE.
    No. A-8794.
    Feb. 15, 1935.
    (41 Pac. [2d] 488.)
    Joe W. Simpson, for petitioner.
    H. O. Bland, E. M. Gallaher, Bert E. Johnson, and Carl H. Ravis, for respondent.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges she is unlawfully restrained by the chief of police of Tulsa; that she was convicted in the municipal court of violating sections 16, 18, and 19, art. 3, c. 35, Ordinances of the city of Tulsa, which forbid soliciting contributions for certain purposes without a permit; that said ordinance is unconstitutional, for the reason it vests in ministerial officers an arbitrary power to grant or refuse license without providing rules and regulations, and that it is too vague, indefinite, and uncertain to define an offense.

The chief of police in response states he is holding petitioner by commitment of the municipal court on a conviction for violation of an ordinance prohibiting soliciting funds for charitable and benevolent purposes without having obtained a permit.

The ordinance in question creates a city solicitations committee of three members, appointed by the mayor, consisting of the chief of police, secretary of the retail merchants’ association, and secretary of the ministerial alliance. It provides that no person shall solicit for charitable, religious, or benevolent purposes, or sell or offer tickets or advertising for benefit performances to finance work of charity, religion, or benevolence, without having first obtained a permit and providing, for written application for permit to be made to the secretary of the committee, stating the name of the person desiring to solicit and the purpose for which the funds are to be solicited; that said committee shall then investigate such applications, and, if they find the person desiring to solicit funds is in good faith for a bona fide charitable, religious, or benevolent purpose, the permit shall be issued by the secretary ; if not, it shall be refused, and appeal may then be had to the full committee, where a majority may issue or refuse permit. The ordinance exempts from its application any church or charitable, religious, or benevolent association which solicits funds or advertises or sells tickets within the'membership of its organization or subdivision or subordinate organization, but provides that solicitation outside of its membership shall not be conducted without the approval of the solicitations committee.

Petitioner relies mainly on Ex parte Dart, 172 Cal. 47, 155 Pac. 63, L. R. A. 1916D, 905, Ann. Cas. 1917D, 1127, which held unconstitutional an ordinance of Los Angeles quite similar to the ordinance here. That court appears to have been more impressed with the manner in which the ordinance was attempted to be enforced than with the question of its validity It appears the charities commission of the city demanded that the Salvation Army, of which petitioner was an officer, as a condition precedent to obtaining the permit, should be governed by a local board, residents of the city, and that all the property of the Salvation Army in the city should be conveyed to its local board and its financial work conducted by such local board, and that no budget or funds should be prepared and enforced for other than work in Los Angeles; that all its offerings and contributions should be for local purposes and none used by the general officers. That this was an arbitrary and unreasonable requirement is evident. It no doubt influenced the opinion, for the court expressly held the soliciting contributions for charitable purposes might be regulated, providing reasonable supervision of the person engaged and restrictions on the use of the contributions received to prevent unscrupulous persons from obtaining money or to prevent the wrongful conversion of such funds. The California court has receded from the Dart Case. See Gaylord v. City of Pasadena, 175 Cal. 433, 166 Pac. 348, 349; Carter v. Stevens, 211 Cal. 281, 295 Pac. 28; Ex parte Holmes, 187 Cal. 640, 203 Pac. 398; Bleuel v. City of Oakland et al., 87 Cal. App. 594, 262 Pac. 477.

In Gaylord v. City of Pasadena, supra, the court said:

“Even a casual observer of governmental growth and development must have observed the ever-increasing multiplicity and complexity of administrative affairs — national, state, and municipal — and even the occasional reader of the law must have perceived that from necessity, if for no better grounded reason, it has become increasingly imperative that many quasi legislative and quasi judicial functions, which in smaller communities and under more primitive conditions were performed by tbe legislative or judicial branches! of the government, are intrusted to departments, boards, commissions, and agents. No sound objection can longer be successfully advanced to this growing method of transacting public business. These things must be done in this way or they cannot be done at all, and their doing, in a very real sense, makes for the safety of the republic and is thus sanctioned by the highest law.”

In State v. Hundley, 195 N. C. 377, 142 S. E. 330, 57 A. L. E. 506, the Supreme Court of North Carolina, construing an ordinance of the city of Charlotte very similar in scope and purpose to the ordinance in the instant case, in syllabus 1 and 5 held:

“1. The provisions of a municipal ordinance forbidding the solicitation upon the streets of the city of alms for individual or charitable purpose by anyone not in possession of a permit from the governing body of the city are not unreasonable or oppressive.”
“5. An ordinance forbidding the soliciting of alms upon the streets of the city without a permit is not invalid as conferring arbitrary power upon the municipal authorities as to the issuance of permits, where they are required to issue them unless they are satisfied that the applicant is not worthy of assistance, that the cause is not worthy, or that the funds solicited will not be properly distributed.”

In the body of the opinion the court reasons thus:

“* * * We concur with the learned judge who presided at the trial in the superior court that the ordinance is valid. We find nothing therein unreasonable or oppressive, nor does the ordinance confer upon the governing body of the city of Charlotte arbitrary power to discriminate between applicants for permit to engage in the business of soliciting alms or begging charity, for a charitable purpose, upon the streets of the city of Charlotte. It is made the duty of said governing body to issue the permit to the applicant unless the said governing body shall be satisfied (1) that the said applicant is not worthy of assistance or help from the citizens of Charlotte, or (2) that the cause said applicant represents is not a worthy cause, or (3) that the funds solicited will not be properly disbursed. * * *”

See, also, State ex rel. Altop v. City of Billings, 79 Mont. 25, 255 Pac. 11, annotated in 54 A. L. R. 1091f; Dillon on Municipal Corporations (5th Ed.) p. 937.

In Commonwealth v. McDermott, 296 Pa. 299, 145 A. 858, it is held:

“Act May 13, 1925, P. L. 644 (Pa. St. Supp. 1928, § 2637al et seq. [10 PS § 141 et seq.], prohibiting solicitations of money and property for charitable, religious, and patriotic purposes without obtaining license, and exempting fraternal, religious, educational, and certain other organizations, held not invalid as denying equal protection, nor are the exemptions arbitrary or unreasonable."

In disposing of the contentions very similar to those here the court said :

“* * * The act itself deals primarily only with purposes, and directs that any organization within the commonwealth, except those indicated, proposing to appeal to the public for pecuniary aid for the promotion of charitable purposes, must submit to an investigation by the welfare department. In the cases before us the sole ostensible purpose was that of securing help from the public for needy mothers and children. Unquestionably the concerns organized by defendants in the present instance come within the supervisory powers of the department of welfare. But the act does not single out only associations or organizations such as those. It embraces specifically any and all kinds of associations that may be entirely or in part carrying out plans and campaigns for benevolent purposes; and its enactment was an exercise by the Legislature of the police power of the state to prevent the public from being made the victim of swindling and corrupt operations engineered by persons or associations hiding their illegal practice under the guise of charity. * * *
“The Legislature, however,, recognized the fact that there are many organizations and institutions which engage in charity work, either in whole or in part, as churches, educational bodies, and other associations of which the general public has a wide and intimate knowledge, and in which it has full confidence. With this situation in mind, the lawmakers deemed it quite unnecessary to compel the department of public welfare, which is composed of enlightened persons who would undoubtedly have ample information, themselves as to the character of those public bodies, to use their time and labor in gathering, information they already possessed. Moreover, to require such institutions to apply for a license, and submit to a wholly needless investigation of their plans and purposes, would in fact have the specified result of hampering, hindering, and delaying their labors, and result in interference, for which there would not be even an excuse. The high standing of the organizations released from the license requirement, their known capacity for effective labor in the realms of benevolence, clearly justify the exemption accorded them by the act. Such standing and adequacy may be accounted common knowledge, and undoubtedly was so considered by the Legislature as proper ground for relieving them from the force and effect of the statute. * * *
“Even with numerous regulative state and local laws in existence, it is surprising how many operations are carried on by persons and associations-who, secreting their activities under the guise of benevolent purposes, succeed in cheating and defrauding a generous public. It is in fact amazing how profitable the fraudulent schemes and practices are to people who manipulate them. * * *”

The city has authority under the exercise of its police power to determine whether or not there shall be restrictions on soliciting by unscrupulous persons or for unworthy causes or for fraudulent purposes. That solicitations of contributions under the guise of charitable and benevolent purposes is grossly abused is a.matter of common knowledge. Certainly the solicitation of contributions in good faith for worthy purposes should not be denied, but somewhere should be lodged the power to determine within reasonable limits the worthy from the unworthy. The ordinance here has put that power in the hands of a board probably as well equipped to determine that question as any that could be selected. If the power is abused, there is a remedy by appeal, certiorari, or mandamus. Bleuel v. Oakland, supra. The prevailing presumption that the ordinance is valid and reasonable is not overcome, and the writ should be and is denied.

DAVENPORT, P. J., and DOYLE, J., concur.


author: EDWABDS, P. J.

text:
    MARK L. BOZARTH v. STATE.
    No. A-8733.
    Oct. 12, 1934.
    Rehearing Denied Feb. 26, 1935.
    (41 Pac. [2d] 924.)

      Earl Foster, Gomer Smith, and A. N. Boatman, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen., for the State.
   EDWABDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of obtaining property under false pretenses, and was sentenced to pay a fine of $500.

A brief statement of facts will make clear defendant’s contention. In 1931 he was district judge of the district including Okmulgee county. As such officer he was due from the state a monthly salary of $416.66. He was indebted to a Henryetta. bank, and made arrangements with the bank for payments of $50 per month out of his. salary as it became due from month to month. On September 12, 1931, he directed the state auditor, by a blanket assignment, to mail salary warrants due each month to the bank at Henryetta. This arrangement was rejected by the state auditor for the reason compliance would require the issuance of two warrants each month. Then defendant made a further arrangement and delivered to the bank 36 claims for monthly salary, with an assignment thereon, with the understanding that the claims for salary and the assignments Avere to be authenticated by a notary and sent to the auditor each month; that upon receipt of warrants the bank would deposit to defendant’s credit, less the amount to be retained by it on defendant’s indebtedness.

This arrangement was carried out; the claims and assignments were completed, sent to the auditor each month, warrant issued and returned to the bank, which then deposited the amount to defendant’s credit, less payment made on the bank indebtedness. On September 20th, the auditor received claim and assignment for September salary. He issued a Avarrant thereon, and sent it to the bank. Five days later the auditor received a claim for .September salary direct from defendant. This double claim was detected by the auditor, who considered it an error, and warrant was not issued. On October 23d, he again received claim and assignment from the bank, and issued a warrant in full for defendant’s October salary. A few days later a claim for October salary was received direct from defendant, the duplication was not detected, and a second warrant for the full amount was issued to defendant. The defendant checked out of the Henryetta bank the exact amount deposited by it to his credit on the first warrant. A double payment of defendant’s salary was made for November and December in the same Avay as in the case of the October salary, and the amounts deposited to defendant’s credit by the bank on the warrants issued to it were checked out by defendant.

For January and February, 1932, Avarrants Avere issued by the auditor to bank on the assigned claims, but for both said months defendant also made direct claims which were detected by the auditor and warrants not issued.

The prosecution is based on the salary claim sent direct from defendant for December, 1931, in which, among other things, the affidavit states that the state was justly indebted to him “after allowing all just credits, in the sum of $416.66.” In March, 1932, after an investigation, defendant paid back to the state the sum of $1,248 as excess salary payments.

On the facts detailed, which are not controverted, only two contentions are made: First, no crime was actually committed; second, if a crime were committed, the venue thereon is not in Oklahoma county.

Under the first it is urged that to constitute the crime charged, it is essential the accused made some affirmative false representation; that a failure to disclose the entire truth is not sufficient, that is, defendant’s failure to disclose to the auditor when filing his claim that he had theretofore made an assignment to the bauk was a mere silence and not an affirmative false representation; that the claim and representations therein were in fact true; that the salary was due him. Further, that the assignment of an official’s unearned salary is void — citing 5 C. J. p. 872, art. 42c, Note 71; State v. Williamson, 118 Mo. 146, 23 S. W. 1054, 21 L. R. A. 827, 40 Am. St. Rep. 358; McGowan v. City of New Orleans, 118 La. 429, 43 So. 40, 8 L. R. A. (N. S.) 1120, 10 Ann. Cas. 633; King v. Hawkins, 2 Ariz. 358, 16 Pac. 434; Nelson v. Townsend (Mo. App.) 111 S. W. 894; Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963; Willis v. Weatherford Compress Co. (Tex. Civ. App.) 66 S. W. 472.

To constitute the crime charged there must have been some affirmative false representation at the time of filing claim for December salary. The claim affirmatively states:

“I, Mark L. Bozarth, the undersigned, upon oath, do depose and say that I have full knowledge of the above and foregoing account; and that the said account is just, correct, due and according to law and that the amount claimed after allowing all just credits, is now due and wholly unpaid, and that I am duly authorized to make this affidavit, so help me God.
“[Signed] Mark L. Bozarth, Claimant.”

That this statement- was false is obvious, for at that time defendant had received an overpayment of salary in the sum of $833.32, which overpayment, to say the least, was a credit against the salary due him from the state.

It is not necessary this court decide whether or not the assignment of an official’s unearned salary is invalid. The authorities are divided. 3 C. J. p. 872, art. 42; State v. Williamson, 118 Mo. 146, 23 S. W. 1054, 21 L. R. A. 827, 40 Am. St. Rep. 358; McGowan v. City of New Orleans, 118 La. 429, 43 So. 40, 8 L. R. A. (N. S.) 1120, 10 Ann. Cas. 633; King v. Hawkins, 2 Ariz. 358, 16 Pac. 434; Nelson v. Townsend (Mo. App.) 111 S. W. 894; Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963; Willis v. Weatherford Compress Co. (Tex. Civ. App.) 66 S. W. 472; 5 C. J. 873; Schloss v. Hewlett, 81 Ala. 266, 270, 1 So. 263. But whether the assignment is invalid or not, by use of it the bank collected defendant’s salary and with the agreed deduction passed it to his credit, and the knowingly received and appropriated it. Under such circumstances he cannot successfully contend that the claim and assignment delivered by him to the bank was invalid.

On the second contention, the question of venue, defendant argues that the claim and affidavit in support was made and the money received by him in Okmulgee county, which fixes the venue in that county, and not Oklahoma county — citing 11 R. C. L. page 854; Com. v. Schmunk, 207 Pa. 544, 56 A. 1088, 99 Am. St. Rep. 801; Stewart v. Jessup, 51 Ind. 413, 19 Am. Rep. 739; Barton v. People, 135 Ill. 405, 25 N. E. 776, 10 L. R. A. 302, 25 Am. St. Rep. 375; Bates v. State, 124 Wis. 612, 103 N. W. 251, 4 Ann. Cas. 365; State v. Jackson, 128 Iowa, 543, 105 N. W. 51; Dechard v. State (Tex. Cr. App.) 57 S. W. 813; Owen v. State, 22 Okla. Cr. 419, 211 Pac. 1059. Com. v. Schmunk, ■ supra, appears to support this contention, and general statements in some of the other cases seem to support it.

There is slight division in the authorities. The general rule is that the crime of obtaining money or property under false pretenses is completed where the money or property is obtained and the venue is in the county where it was obtained by defendant, and not where the false pretenses were made. Thus where pretenses are made in one jurisdiction and money or property obtained thereby in another jurisdiction, the venue of the offense is in the latter jurisdiction. 11 R. C. L. § 36, pp. 854, 855, is in part:

“* * * Some of the cases proceed on the theory that where a person is indicted for obtaining a draft by representations made in one county, and it appears that the draft was mailed in another, the person from whom the draft was obtained having surrendered possession of it by placing it in the post office, addressed to the person obtaining the money, the post office department is deemed to be the agent of the person receiving it, in the same way that a common carrier would have been his agent if the draft had been given to it for delivery to him, and that therefore the defendant should be prosecuted in the jurisdiction where the draft Avas mailed. * * *”

It is further said:

“The general rule is that the crime of obtaining money or property by false pretenses is completed where the money or property is obtained, and that, if the pretenses are made within one jurisdiction and the money or property is obtained in another, the person making the representations must be indicted within the latter jurisdiction. The same rule is applicable to the obtaining of money by means of the confidence game. * *
“Transmission by Mail. Where, induced by false pretenses, one transmits by mail to defendant money, drafts, or other writings, such mailing is a delivery to the postmaster as the agent of defendant, to be forwarded to him, and the offense is complete where the letter is mailed, and is indictable at such place. * * *
“By statute in some jurisdictions the crime may be prosecuted in any county in which the false pretenses were made, although it may have been consummated in another county.”

The latter statement is supported by State v. Briggs, 74 Kan. 377, 86 Pac. 447, 7 L. R. A. (N. S.) 278, 10 Ann. Cas. 904; Com. v. Wood, 142 Mass. 459, 8 N. E. 432; State of Utah v. Devot, 66 Utah, 319, 242 Pac. 395, 43 A. L. R. 532. See, also, annotations 43 A. L. R. page 545.

In addition to the general rule there is a further reason for sustaining the venue in Oklahoma county. Section 2730, Okla. Stat. 1931, provides:

“When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof constituting or requisite to the offense, occur in two or more counties the jurisdiction is in either county.”

This statute was under consideration and upheld by this court in the case of Troup v. State, 51 Okla. Cr. 438, 2 Pac. (2d) 591.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    SILAS GALLIHER v. STATE.
    No. A-8836.
    March 1, 1935.
    (42 Pac. [2d] 148.)

      Stevens & Cline, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and ¡Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

Upon information, in substance, charging that in Comanche county on the 30th day of April, 1933, Silas Galliher did shoot and kill one George Bell with a pistol, defendant was tried and convicted of manslaughter in the first degree; the jury by their verdict fixing his punishment at imprisonment in the penitentiary for a term of six years. Motion for a new trial was duly filed and overruled, and, from the judgment pronounced in pursuance of the verdict, he appeals.

The following statement of the undisputed facts which we quote from the briefs will answer the purpose of our consideration of the appeal:

“The defendant Galliher and George Bell, the deceased, ivere both farmers and lived about nine miles southeast of Lawton. The defendant was a bachelor about 52 years of age, liA'ing by himself, excepting a hired hand Avho Avas absent the day of the tragedy. The deceased was a married man Avhose home Avas about a mile and a half south and east from where the defendant lived.
“On Sunday morning, April 30, 1933, George Bell visited the defendant, walking there from his home. A little later another neighbor, Grady Ray, visited the defendant. Both waited around defendant’s place until he had put away the morning’s milk and washed the breakfast dishes, and then they all went into the defendant’s bedroom and played pitch for pastime. The defendant had been making some whisky and had stored three kegs in an upstairs room and also had two half-gallon fruit jars nearly full of Avhisky downstairs. They all took a drink before starting to play cards. Along about the middle of the forenoon Mary Bell, a daughter of the deceased, and a young lady school teacher called there to talk to the deceased, Avho was one of the trustees, about teaching school in that district. While these parties were there, Mr. Ray left and returned to his home which was about one-quarter of a mile south of the defendant’s home. After the young ladies had left, two other farmers in that community, Letch Hoskins and George Coley, visited the defendant, and while they were there the parties played a few games of pitch, but did not drink any liquor at that time. After Hoskins and Coley left, the defendant and the deceased continued to drink whisky.
“Between five and six o’clock that evening the defendant was seen near the home of Arthur Wolfe, who lived about 200 yards west and a little south of the defendant’s place. At that time, the defendant was bareheaded and was carrying a light-handled pistol in his hand. Mr. Wolfe and his son, Orland Wolfe, were returning to their home about that time in the evening and passing the defendant noticed that he was carrying a pistol in his hand and appeared to be under the influence of intoxicating, liquor. Later Mr. Wolfe’s boy while driving in the milk cows along the road by the defendant’s house noticed the defendant lying on the porch, and told his father about it. About that time Grad;/ Eay, driving his cows home by Mr. Wolfe’s house, stopped and Mr. Eay and Mr. Wolfe went over to the defendant’s house to see if anything was the matter with him. They talked with the defendant at that time and he seemed to be all right. These parties then went home. A very short time thereafter the defendant was seen on the public highway south of his home going in the direction of Grady Eay’s home. He was bareheaded and barefooted. He was overtaken by some parties riding in a Pontiac sedan. There were five young people in the car, among whom was Mary Bell, the daughter of the deceased. The defendant stopped the car and asked them to take him on to Eay’s house, which they did. When they stopped at Mr. Eay’s house, the defendant asked Mr. Eay to go back to his house with him and he told Mr. Eay that the reason he wanted him to go was that there was a dead man in his house. Mr. Eay and the defendant got on the running board on either side of the automobile, in which the defendant had been taken to Mr. Eay’s and they all returned to the defendant’s house. On the way back, Mr. Eay asked the defendant who the dead man was, and the defendant said he didn’t know. When Mr. Eay inquired about George Bell and how long he had stayed there at the house, the defendant answered that Mr. Bell didn’t stay long. When these parties arrived at the defendant’s house they found the dead man on the floor of the room where they had been playing cards. The dead man was George Bell. He had been shot through the body from the front to the back, the point of entrance being three or four inches higher than the point of exit.
“The physical surroundings showed that two bullets had been fired from a 38-calibre pistol, one of which passed through the body of the deceased and lodged in the Avail of the room, and the other had evidently been fired into the ceiling.
“Charles F. McCarty testified that he Avas sheriff of the county and on the 30th -day of April he went to the Galliher place and saw the defendant and the body of George Bell. Mr. Bell’s face indicated that he had been hit in the face, his lip was cut. At first, it looked to him like finger marks. He found a gun on a table in the kitchen ; it was a Texas Ranger 38-Colts; two shells had been fired and the empties remained in the gun. The defendant said it was his gun but that he didn’t know Bell had been shot and killed; that he knew nothing about it. He further stated that he had got drunk and after cooking lunch he went out and laid on the porch and did not remember anything until he got up and found-the body. Witness saAV a fruit jar with some whisky in it on the kitchen table and later went upstairs and found a couple of kegs of whisky there.
“On cross-examination Avitness said the defendant stated that he and Bell had been drinking', and the last he remembered doing was going out on the east porch and lying down; that he did not know who shot Bell. Witness further stated that he found a bullet hole near the center of the ceiling of the room where the body was found; another bullet hole Avas found in the north wall, about 4 feet from the floor. The bullet had passed through the plaster after having apparently coursed through the body of Mr. Bell.
“As a witness in his own behalf, the defendant testified that he had lived in the community where he now resides since 1907, and lived near Mr. Bell whom he had known for 27 years; that they had always been good friends and neighbors, and they had never had any trouble of any kind.
“Defendant further testified that Slim Swanson was a young man who came to his house about 18 months previous to pick cotton, and after cotton-picking was over he asked to stay a while and would help defendant on the farm without wages; that they were in Lawton Saturday and Swanson did not come home that night. The next morning Mr. Bay came over with Mr. Bell and they joked him about not having his dishes washed yet; that there was a jar with some whisky on the table and they all took a drink, then they played pitch; that it was customary for neighbors to come there to play pitch, usually on rainy days, Saturday nights and Sundays, but he did not permit gambling in his house and there wasn’t any gambling on the Sunday in question; that he had never sold any liquor in his life; that they had played three games when Miss Mary Bell and the other lady came and talked to Mr. Bell about the school. When the ladies came, Grady Bay went home. Later Hoskins and Ooley came along the road and he hollered to them and they came in, played two games and left. Before they came in Mr. Bell hid the whisky in the pantry; that he started to fix dinner and Mr. Bell continued drinking. Witness became sick and went out on the back porch and laid down; Mr. Wolfe and Mr. Bay awakened him that evening; that shortly after they left, he got up and went into the house and saw Mr. Bell lying on the floor. He thought he was drunk and shook him by the shoulder and saw his face was cut. He walked around the body and then went after Grady Bay. They all came back with some young people, including Mary Bell. She took hold of her father and then asked witness, ‘Why did you kill him?’ and he told her he did not kill him; she wanted to know who did, and he told her he didn’t know; she said, ‘He has been shot,’ and witness said he did not think so. Then she pulled the clothes back and showed where he had' been shot, and later the sheriff came there and made an examination.
“That he, usually kept the gun under the pillow of his bed; the sheriff had asked about the whisky and there were three kegs and a jar; that he had helped Swanson to make the ivhisky; that Swanson secured the paraphernalia with which to make it; that Swanson several times had proposed to- him to make whisky and witnéss objected to it; that witness had a binder obligation and wanted to pay that, and Swanson figured to make some whisky to buy him some clothes and pay for my binder; that he had never sold any whisky; that Mr. Bell knew nothing at all about the whisky being made or being kept there. It had been stored upstairs in the west room; that he did not kill George Bell or have knowledge of who did.
“A number of witnesses testified that they had known the defendant for several years and were acquainted with his general reputation as to being a quiet, peaceable and law-abiding citizen in the community where he lived, and that his previous reputation was good.”

It is contended that the trial court erred in refusing to give an instruction on the law of self-defense. Counsel in their brief say:

“That even where a defendant denies the killing or any recollection of a killing, the jury should be charged to consider all the facts and circumstances related in evidence, surrounding the homicide, and if the condition and situation of the house and the contents thereof, the mute evidence of the tragedy, are sufficient to convince the jury that the defendant actually shot the deceased, but was acting in his necessary self-defense of his person, or to prevent great bodily harm to himself, either actual or reasonably apparent, they should consider the law of self-defense as stated in the instruction, and as such requested instruction set forth such law of self-defense as: that one being at a place where he had a lawful right to be, and is assaulted by another in such manner as to cause the defendant, viewed from his standpoint at the time, to believe upon reasonable grounds that the deceased was about to commit some grave personal injury upon the defendant, and from his standpoint that there was imminent danger of the design being accomplished, the defendant could resist such attack and protect himself therefrom, even to the point of taking the life of his assailant, if necessary, and such killing would be in self-defense, and not punishable.”

Citing the case of State v. Jackett, 81 Kan. 168, 105 Pac. 689, 19 Ann. Cas. 118, the holding of the Kansas Supreme Court is that:

“Where there is substantial evidence tending to show that the accused acted in self-defense, the fact that he denies having committed the act which caused the death is not necessarily a. ground for refusing to submit to the jury the question whether the killing was justifiable.”

The distinction between that and the instant case is, that the evidence showed that, if Jackett fired the fatal shot, he did so in defense of his habitation and of his person, and that on being arrested Jackett admitted that he had probably fired the fatal shot; however, as a witness in his own behalf he denied having done the shooting.

Whether it is the duty of the trial court in a prosecution for homicide to instruct the jury on the question of self-defense when the defendant denies the killing seems to depend entirely upon the nature of the evidence introduced at the trial. If the defendant denies the killing, and there is no evidence adduced by either .party which tends to show that the killing might have been in self-defense, although other evidence shows quite conclusively that the defendant committed the crime, it is not the duty of the court to instruct as to self-defense; but, where there is substantial evidence tending, to show that the defendant acted in self-defense, the court should instruct the jury upon the law of self-defense, notwithstanding the defendant’s testimony that he did not do the act from which death resulted.

It appears that the defendant at all times denied that he did the shooting resulting in the death of Bell, and all the circumstances surrounding the killing, and the physical facts prove conclusively that Bell was shot and killed with the defendant’s pistol, and that the defendant was the only person present when the .fatal shot was fired.

They had been friends and neighbors’ for more than 25 years, and had never had a previous difficulty, and there was no pretense or claim that the shooting was done in self-defense other than indicated by the instructions requested. It follows that the trial court’s refusal to instruct on the law of self-defense was not error.

It is also contended that the court erred in the instructions to the jury by giving instructions Nos. 8 and 11,

Instruction No. 8 instructs the jury as to the issues in the case, and, considered in connection with the other instructions given, is as favorable to the defendant as he had any right to demand.

Instruction No. 11 concludes as follows:

“Or if you entertain a reasonable doubt, as to whether or not the defendant at the time he killed the deceased, if you find beyond a reasonable doubt that he did kill the deceased, was intoxicated to such an extent that he was not able to form within his mind the criminal design to effect the death of the deceased, it would be your duty to resolve such doubt in favor of the defendant and find him guilty of the crime of manslaughter in the first degree.”
“Excepted to by the defendant and exceptions allowed. Eugene Rice, District Judge.”

Under our Penal Code, Okla. Stats. 1931, § 2216, first subdivision, homicide is murder: “When perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or of any other human being,” and evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming a design to effect death, and the question is for the jury to determine.

See Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031; Choate v. State, 19 Okla. Cr. 169, 197 Pac. 1060.

Intoxication, either voluntary or involuntary, is to be considered by the jury in a prosecution of murder in which a premeditated design to effect death is essential, with reference to its effect upon the ability of the defendant at the time to form and entertain such a design, not because, per se, it either excuses or mitigates the crime, but because, in connection with other facts, an absence of malice or premeditation may appear.

A person who commits a homicide while so drunk as to be incapable of forming a premeditated design to kill, if he had formed no purpose to' commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree. Cheadle v. State, supra.

The contention of counsel for the defendant is that instruction No. 11 is erroneous, in that the phrase “criminal design” is used instead of the words “premeditated design.”

The instructions given by the court, considered as a whole, fairly and fully presented the law as to the two degrees of the offense charged, the same being murder and manslaughter in the first degree, and the use of the word "criminal” instead of "premeditated” did not render the instruction more burdensome to the defendant; the error, if any, was in favor of, and not against the defendant.

The indulgence which the law shows to cases of manslaughter is to the weakness of human nature, not to its wickedness. As to the character of this homicide, there can be but little doubt.

On the facts, which are undisputed, the defendant is guilty at least of manslaughter in the first degree.

Upon a careful examination of the record,'we are satisfied that no exception taken by the defendant upon the trial is of any force, although it appears that the defendant was there, as he is here on the appeal, exceptionally well represented. It follows that the judgment rendered upon the verdict must be, and the same is hereby, affirmed.

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