text:
    CHARLEY ALCORN v. STATE.
    No. A-9759.
    Oct. 23, 1940.
    (106 P. 2d 838.)

      Ernest R. Brown, of Pryor, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, Charley Alcorn, herein referred to as defendant, was convicted in the district court of Mayes county of the crime of rape in the second degree. The punishment assessed being imprisonment in. the iState Penitentiary at McAlester for term of one year. Motion for new trial was denied and exception saved.

Judgment was rendered April 26, 1939. The record shows the defendant’s application, as a poor person to be furnished with a transcript of the testimony taken on the trial, was by order of the court granted.

It appears the preliminary trial was had October 28th, and defendant was held to answer to the district court for the crime of rape in the first degree, as defined by section 2515, St. 1931, 3rd sub. 21, Okla. St. Ann, § 1111, subd. 3.

To reverse the judgment, defendant appealed by filing in this court October 18, 1939, petition in error with case-made.

The information as amended, after the jury was impaneled, charges that in said county on or about the 15th of October, 1939, defendant, Charley Alcorn, accomplished an act of sexual intercourse with one Ruby McClain, a (female of the age of 15 years, and not the wife of said defendant.

No- briefs have been filed and no errors have been ■pointed ont except as shown by defendant’s motion for a new trial, and by the petition in error.

This court has repeatedly laid down the rule that when no- counsel appears and no briefs are filed, the court will not diligently search the record to discover errors, but will look to the jurisdiction of the court and the sufficiency of the evidence to support the conviction.

It appears that defendant was 42 years old at the time the crime is alleged to have been committed, was a widower, and father of three boys.

Ruby McClain testified that she had known the defendant over a year and saw him on the night of October 15, 1938, a little way west of Rose; another girl was with her; that he asked them to go- with him to a dance hall some place, and they agreed to ; then they went on to Rose and met two boys, Lloyd Wyatt and Jesse Bates, and talked to them a few minutes and she got in the car with Wyatt and the Bates boy. Arco Jenkins and Della Hanna were in the car and they all decided to meet each other at the Silver Moon at 8 o’clock; that she changed her mind to go with them and. told Lloyd to tell Charley they would meet him west of Rose; they met Charley there and she got out of their car and got in the car with him and went on to Pryor and stopped first at the Silver Moon, south of Pryor; that it is a little “Honky-Tonk” house where they dance and sell drinks. She got out of the car and went in the Silver Moon to see if there was any one there she recognized; she asked a boy by the name of Curley if he had seen Gwendolyn Potts and Margie Cox. Then went back to the car and came up town tó the Sunshine Cafe, on Main street; they went in, he drank a beer, and she drank a coke, went ont to' the car and drove east and passed Gwendolyn Potts and Margie Cox, stopped and talked with them 10 or 15 minutes by the schoolhouse in Pryor, and then went south and stopped at Dugan Smith’s place; there Charley got out of the car and had a conversation with Dugan Smith in front of the filling station; they then went on south to Bed Heart Inn, and fell in company with Opal Wainwright, Bill Thomas, and Pete Garner, and they all danced and drank whisky; that she left the Bed Heart Inn in company with Charley Al-corn, Pete Garner, Bill Thomas, and Opal Wainwright and another boy, in Pete Garner’s car and stopped at a house. One of the men went in and got some more whisky, and they drove back to the Bed Heart Inn, danced some more and stayed there until about 4 o’clock in the morning. She left with Charley in his car, and they went north into Choteau, and turned east until they got to Dugan Smith’s Tourist Camp; there they got out and went in a cabin, removed their clothes, got on the bed and Charley Alcorn had sexual intercourse with her; that she had been back to see that cabin since; that there was no conversation before the act, but after the act she told him she did not come there with him to be treated that way; that they put on their clothes, got' in the car and drove east to Locust Grove and stopped a quarter of a mile from her grandfather, Oscar McClain’s, house; she got out of the car and went up to the house; they got up and her step-grandmother cooked breakfast; after eating breakfast her mother and stepfather came there and she went with them to' Mrs. Boyd’s in Bose; she told her mother what had happened and they went to Dr. Herring-ton’s office in Pryor and the doctor examined her.

On cross-examination she stated that her grandfather and his wife asked her where she had been and she told them, but did not tell them anything about this offense; that she did not tell her grandmother there that Mark Hanna had been making improper advances towards her, and did not discuss a letter written to them by her. That she went with her mother and stepfather and her aunt and uncle to Bates’ Store in Rose; that her stepfather called Charley Alcorn out of his garage and talked to him while she was there with them before they came on to Pryor;.

That she first saw Mr. Wilkerson (special counsel representing the state) on Tuesday following October 15th.

Asked if she didn’t have a conversation with Jesse Bates after she testified on the preliminary examination held here October 28th, and told Mr. Bates “that if your parents had not been present you would have testified differently?” Answered: “No, sir, I did not say it.”

Handed instrument, Defendant’s Exhibit 1, she was asked:

“Q. Is that in your handwriting Miss Ruby? A. Yes, sir. Q. Is that signed by you.? A. Yes, sir. Q. That letter was written by you and addressed to your grandmother? A. Yes, sir. Mr. Brown: The defendant now offers in evidence exhibit 1. Mr. Wilkerson: The state objects. The Court: Sustained.”

Redirect:

“Q. Tell the court and jury whether or not that was the first experience you ever had along sexual lines— sexual intercourse? A. Yes, sir. Mr. Wilkerson: That is all, Miss Ruby.”

Mrs. Mark Hanna testified that Ruby McClain is her daughter; that “on the night of October 15th we hunted her; we first went to Mr. Jenkins, then to Hosey’s and came back to Rose, then we went to Pryor and got trace of her from Gwendolyn Potts; we found her at Grandpa McClain’s, she told ns who she had been out with, we first took her to Mr. Bates’ in Rose, then we came over here to Dr. Herrington’s”; that there was blood on her undergarment.

On redirect she stated that Ruby had been making her home with her, working during the week and coming home on .Saturday night and Sunday.

Lloyd Wyatt testified that he had known Charley Alcorn and Ruby McClain close to' a year. On October 15th Ruby walked up to his car in Rose and got in. Jesse Bates and a girl that worked with Ruby, named Jenkins, were in the car; that he drove about 100 yards out of Rose and stopped. Ruby said she did not want to go on with us down to this girl’s house. Alcorn came by and she asked-him to stop; it was the understanding that they would go on, the Bates boy and his girl, with his girl would go on and meet her at Pryor and Ruby left his car and got in the car with Alcorn, and they went west, but they did not go to Pryor.

Jesse Bates testified that he lives at Rose Prairie, seven miles east of Locust Grove; was in the village of Rose the 15th of October, last year; knows Ruby McClain and Charley Alcorn; first saw Ruby McClain that night up by the schoolhouse; he was in a car with Lloyd Wyatt and another girl; that they drove just a short distance out of Rose and stopped and Ruby got out of the car when another car came up. She asked them to come to Pryor, and got in the other car; it went west.

On cross-examination he stated that on the day of the preliminary he talked with Ruby McClain in this courtroom about her testimony, and she said she would have changed her testimony if her parents had not been there.

Gwendolyn Potts testified that sbe lives south of Pryor, had known Ruby McClain about four years; that October 15th last year, she saw her by the schoolhouse in Pryor; Margie Cox and two1 boys were with her. Ruby was in a car and said the man with her was Charley Al-corn.

Opal Wainwright testified that she knows Ruby McClain and Charley Alcorn and saw them together at the Red Heart Inn, on Highway 69, on the night of October 15th, but could not say when they left; that Bill Thomas, Pete Garner and the boy from Locust were there that night.

Dr. V. D. Herrington testified that he had an occasion to make an examination of Ruby McClain; that her mother and stepfather were with her; that he found some abrasions of the orifice of the vagina and a little blood, and in his opinion there had been a penetration into the vagina.

On cross-examination he stated there are two definite ways of telling whether a woman's chastity has been violated by the hymen; that he would say this, that the hymen had been stretched to the point of breaking; that there are two kinds of examinations, inspection by bi-manual and miscroscopic; that he did not use the microscope.

The state rested and the defendant demurred to the evidence on the ground that there is not sufficient proof to warrant the case to gO' to the jury, which was overruled.

On the part of the defense, Dugan Smith testified he lives half a mile east of Choteau, east end of the “Y”; has operated a filling station and tourist camp the past four or five years. First saw the defendant at the preliminary hearing; that he did not have a conversation with Mr. Al-corn on the 15th day of October; that the defendant Alcorn did not drive np to: his place with Ruby McClain and get ont of the car and have a. private conversation with him at any time.

He further testified that all of his cabins were rented and occupied on the night of the 15th of October; several cabins were rented to some Indians by the week. Around 9 o’clock that night a family in a car with a trailer and an Arkansas tag rented a cabin; the man coughed all night and they kept their lights on. There was only one cabin vacant and it was let about 3:30 the next morning, but not to Charley Alcorn.

On cross-examination he stated Pete Gamer rented the vacant cabin. He gave him the key around 3 o’clock iSunday morning and he saw him there at 8 o’clock that morning.

On redirect he stated that Judge Wilkerson was there and talked to his wife, didn’t remember of any other lawyer being there. That the first time he saw the girl, Ruby, was here at the preliminary examination.

Mrs. Ruby McClain testified that she is the wife of Oscar or O. S. McClain; they live over by Rose; have been living there six years; that her husband is the grandfather of Rnby McClain; that she first saw Ruby Saturday on October 15th in the Graham-Mercantile, down town, and on Sunday morning about 5:30 Ruby came to her house and hollered “Grandpa”; she got up-, opened the door and Ruby came in; her husband was in bed, and Ruby sat down on her pillow and they talked while she dressed and started breakfast; that Ruby said there was nothing wrong between her and Charley Alcorn.

Mark Hanna, her stepfather, and his wife, Ruby’s mother, came there about an hour and a half after Ruby came. They came in; ber mother said, “Come on, Ruby, and let’s go home.” Ruby said, “Grandpa, are we going, to talk about what I told you we would?” He said, “Yes, if you want to,” and SO' Ruby told us what was in this letter she had written to- her grandmother. She told her stepfather, Mr. Hanna, that he knew what he did to her, and that was the reason that she was not going home. The conversation lasted about 35 minutes; she said like this, that the first time that he had tried to come to bed with her she jumped up and hollered, and he ran and got a water bucket and acted like he was getting a drink of water; and she got up and moved her bed on in to her mother’s bed; she told Mr. Hanna this right before all of us, and said she laid down again and he was over her again and she jumped up and hollered for her mother, and her mother told her to lay down, that she would get up and spank her, and she said he had really committed the crime the first time he did this. Then she told him about a year ago in August, when she went to her Uncle Mack’s at Seminole, that he had really committed this crime on her person on Friday before she went to Seminole on Monday, and that was the second day of August when she went to her Uncle Mack’s, and she said when she came in (from skating that he tried to make her strip off before him, that is what she told Mr. and Mrs. Hanna, right before us.

On cross-examination she stated that she married Oscar McClain five years ago Thanksgiving Day.

Oscar McClain testified that he has lived continuously at Rose Prairie since the spring of 1920; that Ruby McClain is his grandchild; that on Saturday night, October 15th, he saw Mark Hanna at Kansas, and had a conversation with him. He asked if he had seen Ruby, and he told, him “No,” said he was looking for her, and that “I had stole her out for Alcorn.” He said, “Mark, do you and Becca know about that letter she wrote about a year ago,” and he said, “Yes, we know all about it,” and Becca says, “I am her mother,” and she stated that it had been four years since Ruby had stayed at home, and he said, “Listen, my wife met this girl on Saturday, and she told her this, you know that the same thing is going on now that was when she wrote this letter to> her grandmother in Arkansas,” and he told Mark, “You are the man I am looking for, it ain’t Alcorn.”

He further testified that when Ruby came to his house they were in bed, and after breakfast he told her that Mark Hanna and her mother were coming there to get her and said, “Ruby, will you tell them face to face what you ’are telling me?” She had told him what she had written her grandmother. He had never seen this letter up to this time. “Will you face them and tell them what you are telling me when they come after you?” ¡She said, “I will if you won’t let them beat up on me.” He said, “They won’t beat up on you here, they may whip you when they take you home.” When they came in Becca said, “Come on, let’s go home.” She didn’t start. Becca said, “Come on, Ruby, let’s go home”. Ruby said, “Grandpa, I thought we were going to talk this over”; and he said, “We are. She is going to tell on you, Mark, about when you abused her and all that,” and she commenced and told them what she had told him before they came in.

As a witness in his own behalf the defendant testified that he lives in Rose, has lived there a year last August, became acquainted with Ruby McClain while she was working for a school teacher, taking care of her baby and living about a block north of his place. That around 8 o’clock he started to Salina and Pryor to turn in his gas reports and the money he had taken in to Joe Lewis, and was stopped by signaling of lights on a car he passed. The car pulled up beside his car, someone jumped out and came to his car, and it was Ruby; she said, “I want you to take me to Pryor”; he said, “Well, I can’t do it, Ruby, I have not got time”; she said, “Well, we started to Pryor with these kids, they want to leave the highway and I don’t want to go with them, I made an appointment with this boy’s girl that I would meet her over at Pryor.” “The other car drove on as we were talking.” He said, “Ruby, I don’t like to get mixed up, you are going off places, and running around and slipping off, and I would rather not do it, I am late, I don’t want to take you.” She said, “I will take all the responsibility if you will take me to Pryor; I ought to' have been over there right now; we have got an allnight party planned over there, me and this Potts girl.” He said, “How are you going to get back?” She said, “That car there is going to bring me back.” He said, “What time are they going to get you?” She said she didn’t know. He said, “You better tell them I have got to get back, I can’t stay over there.” She said, “Catch up with them.” “We caught up with them and she said to the Wyatt boy, ‘You meet me there at 9 o’clock.’ ” He said, “All right”. “We went on to' Pryor by way of Locust Grove, and Choteau; we got to a house by the side of the road; she said, Now, stop here,’ and got out and went in the house; in 'four or five minutes she came back and said, ‘Gwendolyn Potts lives here, they are down town.’ We started on and went down the main street of Pryor.” He said, “We had better go back to where this girl was to meet you.” She said, ‘Yes,’ and we went out there; he got out and went in, but did not see the Wyatt boy, or the other boy and she said, “I will go in and see,” and she came back and said, ‘No, there is no one in there.’ We waited to' see if they would drive up, stayed about an hour and she said something about going to the Sunshine Cafe, and be said, “All right,” and they came into* Pryor, parked the car in front of the cafe, he took a beer and she took a coke, they returned to the car and drove back to the Silver Moon to see if the boys had come for her. As they were driving down the street she said, “Wait, there is Gwendolyn Potts”; and she called her; she came to' the car and he pulled down to the side of a schoolhouse; they stopped there around 25 minutes, then they drove around the main part of Pryor and looked for the boy’s car. She said the only place where they could eat is the lied Heart Inn, south of Choteau about three miles, and they went to the Eed Heart Inn. It was then somewhere around midnight, and stayed there until 4 :30; they got in the car and left and drove back on 33 north and east until they got to her grandfather’s place and did not stop at any place from the time they left the Eed Heart Inn until he let her out over at Eose. That he did not see Dugan Smith on his way down there and did not stop or go in any of the Dugan Smith cabins that night; that he did not have sexual intercourse or attempt to have intercourse with Euby McClain at any time. That on their way back she told him about her stepfather trying to get in bed with her; that was after she told him she was leaving home that night; he asked her why she was leaving home, and' that is what she told him.

Cross-examination.

“Q. You say that Euby told you on the way home that her stepfather was trying to have sexual relations with her? A. She did; yes, sir, to that effect. Q. What words did she use? A. She told me about a year before about him getting up and coming to her bed, and she recognized him, and she screamed, and he ran to the water bucket and acted like he was getting a drink. Q. What did you say? A. When she finished up her story, I said, ‘Well, if that is the case, Euby, I don’t blame you for going to yoúr grandfather’s, but I am not telling you to leave home at all, that is your business.”

He further stated that at her suggestion he let her out on the highway where an open road runs a quarter back to her grandfather’s house.

On redirect he testified that he saw Ruby that Sunday on the street near his place, when her stepfather called him out of his place of business and talked to him and was cussing. He told him to cool down and talk like a man and he would talk with him. Ruby started away, her stepfather ran and caught her, and she kicked at him and pulled back. Her uncle, John Hall, assisted and they put her in the car.

The state in rebuttal recalled Mrs. Mark Hanna. Asked: “The morning you went to Mr. McClain’s house; state whether or not there was any conversation in your presence in which Ruby made the statement that your husband had been intimate with her and had improper relations with her,” answered: “No, sir.” Asked whether or not Ruby undertook to run away that morning when her husband was talking to the defendant, answered: “No, sir.”

Mark Hanna, recalled, testified he would be 37 years old in December. Asked “whether or not there was any conversation that morning at Mr. McClain’s in which Ruby told you there in his presence that you had been intimate with her, and that you had attempted to be intimate with her,” answered “No.” Asked: “Did you ever make any improper advances in any way of being intimate Avith Ruby,” ansAvered, “No.”

Ruby McClain, recalled, asked: “Did you hear your grandfather tell what you had said up there in the presence of your stepfather and mother?” Answered: “Yes, sir.” Asked: “Did you make any such statement as that to him at his house that morning?” Answered: “No, sir.” Asked: “Did Mark Hanna ever try to be intimate with you and have any improper relations with you, Ruby?” Answered: “No, sir.”

Cross-examination.

The defendant again offers in evidence Defendant’s Exhibit “1” for the purpose of showing she said one time one thing and another time another thing.

The court overruling state’s objection stated: “It will be admitted for impeachment purposes.”

Thereupon counsel reads Defendant’s Exhibit “1” to the jury as follows:

“Defendant’s Exhibit 1.
“Rose, Oklahoma.
“Sept. 7, 1937.
“Dear Grandma,
“I guess you thought I had forgotten to write but I have just been putting it off so I decided to write. Grandma, if you possibly can I wish you and some one would come after me Sunday. Winter before last Mark tried to ■ attact me and then two' nights before I went out to Uncle Mack’s this summer mother and all the rest of them were asleep and I was still awake and he tried to get in Bed with me and I hollered for mother and he ran out of the room and acted like he was getting him a drink and then I moved me a pallet in there by their Bed and Mother had gone back to sleep and he was down on his hands & knees just ready to get on me and I screamed just as loud as I could he jumped back and then acted innocent like he didn’t do anything. I told mother and she said o you was just dreaming and imagineing things and I never went to sleep that whole night long and thats not all I haven’t had a night’s sleep since I come back from Uncle Mac’s only when I stay alnight with some of my girl friend, I’m afraid to. Uncle Mac & Aunt Lucille just begged me to> stay out there and go to school I’m a fool for not staying I guess I didn’t tell them about it. Saturday night we had a big fuss and we haven’t spoke since and If you don’t come after me I don’t know what I’ll do, But there’s ¡one thing sure I am not going to stay here If I have to' drink poison or. kill myself that’s all there Is to' it.
“I just hate him, the old Devil. If you come come real early Sunday morning while I’m at Sunday School and we’ll go down to the house and get my clothes and leave. I hate to even have to stay there until then. Grandma I’ll do anything under the sun for you If you will come after me. I want you tor ans. on return mail and tell me whether your coming are not so I can be as near ready as possible. They can’t keep me from leaving because I know lots more than what I’m telling you in this letter. I’ll tell you when I see you I’m not even going to try to go to school. Maybe I can get me a job at some kind to support me if I can’t I’ll do something to help you for a while when you write just write on a card and don’t mention anything you would care for mother reading because she always reads my letters. If you can come are get any way for me to come just say I’ll come to see you Sunday Ruby C. Be sure & come If you possibly can at all Because I’ve got to do something. Mother doesn’t care a thing in the world for me are she wouldn’t do me like she does. They every one talk to: me like I’m a dog or something else. Grandma be sure and come If you possibly can please and I’ll pay you for it-just as soon as I can do something to' get-some money. Well, I guess I will close. Be sure and come if you can your loving Grandaughter.
“Ruby.”
Redirect:
“Q. Ruby, tell the jury how you come to write that letter? Defendant’s objection overruled. A. Because I got mad at my mother and dad, because they wouldn’t let me do as I please. Mr. Wilkerson: The state rests.”

The transcript of the testimony covers 170 pages, but the foregoing is a substantial statement of the material evidence in the case.

In the view we take of the record and the duty devolving upon this court as to the disposition to be made of the case, the only question we deem necessary to consider is the sufficiency of the evidence to sustain the conviction.

The grounds of the motion for a new trial and assigned as error are: That the testimony of the prosecutrix is contradictory; that she was not corroborated by the testimony of any other witness; that the testimony of the other witnesses called to corroborate her was in conflict with her testimony; and that the facts and circumstances surrounding the alleged commission of the offense are not corroborative of her testimony.

The rule must be taken as settled in this state that while a conviction for statutory rape may be had on the uncorroborated testimony of the prosecutrix, this is only warranted when all the other facts and circumstances of the offense are corroborative of her testimony and her statements are not inconsistent or contradictory. Without such surrounding facts and circumstances, the bald statement of the prosecutrix against the defendant would be so devoid of testimonial value as to render it unworthy of belief. Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083; Williams v. State, 61 Okla. Cr. 396, 68 P. 2d 580; Ferbrache v. State, 21 Okla. Cr. 256, 206 P. 617.

The methods of impeaching a witness are well defined. The three general classes of evidence by which a witness may be impeached are:

“(1) Character evidence tending to show that the witness lacks truthfulness, (2) That on former occasions he has failed to state material facts, or different or conflicting facts testified to by him on the present occasion, (3) Evidence showing that his present testimony is materially variant from acts done, or statements made, at other times.”
“Another mode of discrediting a witness is by showing (either through cross-examination or by other witnesses) that the witness has at another time stated the opposite of what he now states or has otherwise varied from his present story. Here, ‘that which sets aside his credit and overthrows his evidence/ in the Avords of Chief Baron Gilbert, is ‘the repugnancy of his evidence/ inasmuch as ‘contraries cannot be true/ and therefore he must be in error in at least one of the two statements; and if in error once, then perhaps also1 in other undetected instances. The probative value of this process — shoiving error and the capacity to err' — is therefore much the same as in that of the preceding section, though the mode is somewhat different. The probative force thus arising merely from the inconsistency and the apparent falsity of one of the two statements, it folloAvs, on the one hand, that the admission o'f the prior inconsistent statement does not violate the Hearsay rule, and, on the other hand, that it is not to1 be taken as affirmative evidence of the fact stated in it; for the reason, in both cases, that it is not offered as a testimonial assertion, but only as inconsistent with the present statement.” 1 Greenl. Ev., 16th Ed. sec. 461.

In the case of Self v. State, supra, this court held:

“In prosecution for statutory rape, the credibility of the prosecutrix may be impeached by proof that she made statements relative to the issues contrary to what she has testified to on the trial.”

In MacLaurin v. State, 34 Okla. Cr. 324, 246 P. 669, 671, we said:

“It is true that this court has held many times that there is no rule of law which forbids a jury to convict for the crime of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony. It does not follow, hoAvever, that a conviction upon such testimony is to be arbitrarily sustained under all circumstances. In some states, corroborating evidence is required by the statute.”

In the instant case the testimony of the prosecutrix should be considered in the light of all the attending circumstances, and we think they cast so much doubt upon the credibility of her testimony that the conviction should not he permitted to stand. Her testimony is inconsistent and contradictory.

It is always legitimate to consider whether the subsequent conduct of the prosecutrix is the usual and natural conduct of an outraged woman as bearing upon the credibility of her direct testimony, and it appears that the prosecutrix made no complaint of injury or mistreatment on the part of the defendant to her grandparents that morning.

The charge of illicit sexual relations is easily made, and often inspired by malice, hidden motives, or revenge, and evidence to establish the same may be easily fabricated and hard to disprove. As has been Avell stated by an able jurist: “There is no' class of prosecution attended with so much danger, or which affords so ample an opportunity for the free play of malice and private vengeance. In such cases the accused is almost defenseless.”

The state only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law, prescribed for ascertaining his guilt. It is not to- shield the guilty, but to' protect the innocent, that the courts are steadfast in upholding the forms and rules of law by which it may be lawfully determined who' are guilty.

In our opinion no person charged with crime should be convicted on such improbable, inconsistent, and unreasonable testimony as that given by the prosecutrix in this case.

Upon careful consideration our conclusion is that the evidence was insufficient to justify or sustain the verdict. This conclusion renders it unnecessary to consider the other questions in the case.

It is the opinion of the court that the evidence is entirely insufficient to support the conviction. The judgment of the district court of Mayes county herein is therefore reversed and the cause remanded, with direction to dismiss.

BAREFOOT and JONES, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    SADIE THOMAS v. STATE.
    No. A-9714.
    Oct. 23, 1940.
    (106 P. 2d 836.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant Sadie Thomas, was charged in the county court of Grady county, Okla., with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 60 days in the county jail, pay a fine of $100 and costs, and has appealed to this court.

The information filed against the defendant charges her with the unlawful possession of one-half pint of whisky and three-fourths of a pint of dry gin.

The defendant raises two questions on this appeal:

First. Error of the court in overruling her motion to quash the information.

Second. Error of the court in overruling her demurrer to the state’s evidence.

In connection with the first assignment of error, the motion to quash the information was presented on the grounds that the information was not verified as required by law before being filed with the county court. This motion was filed after the defendant had been arraigned and had entered her plea of not guilty. The defendant did not ask permission to withdraw her plea of not guilty Ifor the purpose of filing the motion to quash, but the motion to quash was filed several months after her arraignment and. plea.

Under the decisions of this court, when the defendant was arraigned and entered her plea of not guilty without questioning the sufficiency of the information, she is deemed to have waived any irregularities therein. In re Cummings, 11 Okla. 286, 66 P. 832; Ex parte Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A., N. S., 805; Brown v. State, 9 Okla. Cr. 382, 132 P. 359; Simpson v. State, 16 Okla. Cr. 533, 185 P. 116.

For this reason the court did not err in overruling the motion to' quash.

The state introduced the evidence of three officers’ who testified, in substance, that they went to the home of the defendant in Chickasha on August 12, 1938, shortly after noon. That they looked in the refrigerator of the defendant in her kitchen and found a pint bottle about half filled with whisky and another pint bottle about three-fourths full of dry gin. No other liquor was found. Two empty quart bottles with whisky labels on them were found behind the kitchen door. One of the officers testified that he looked in one of the drawers of the kitchen cabinet and found two or three small glasses which he took to be dram glasses. That the defendant was sitting in the southeast bedroom sewing on a dress when they entered her home. That her daughter was there with her and no one else wras in the house. The defendant complained to the officers of being sick.

No other evidence was introduced by the state. The defendant interposed her demurrer to the evidence, insisting that the state had failed to prove that the defendant had committed any offense against the prohibition laws of the state of Oklahoma, which demurrer was overruled and exception allowed to the defendant.

We think this demurrer should have been sustained. However guilty the defendant may have been, the state has wholly failed to make a prima facie case. Less than one quart of whisky was found. The state made no effort to prove that the place where the whisky was found was a place of public resort and that it had the general reputation of being a place where intoxicating liquors were sold, which they would have had a right to do in order to establish the unlawful intent of the defendant in the possession of liquors. Winton v. State, 50 Okla. Cr. 1, 295 P. 400; Eastridge v. State, 57 Okla. Cr. 323, 48 P. 2d 869; Reed v. State, 24 Okla. Cr. 305, 217 P. 1058; Buckley v. State, 69 Okla. Cr. 285, 102 P. 2d 619.

It is not against the law to have possession of liquor in Oklahoma for your own use; but it is against the law to have the possession with intent t«o sell. The intent to sell is an element of the offense and must be proved the same as any other element. The Legislature has provided that the possession in excess of one quart of intoxicating liquor is prima, facie evidence of an intent to violate the law (2626 O. S. 1931, as amended by Session Laws of 1933, ch. 153, p. 339; 37 Okla. ,St. Ann. § 82); but where the possession is of less than one quart, the intent to sell must be proved by the state.

This court believes in the enforcement of the prohibition law, but we cannot violate the rules of evidence in order to uphold the hands of the officers in the enforcement of this law. It would be a travesty on justice to sustain this conviction in the face of such weak evidence as was presented by the state. The proof is so weak that the case should never have been filed by the county attorney.

For the reasons hereinabove stated, the judgment of the county court of G-rady county is hereby reversed and the defendant discharged.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    ROSCOE (FAT) FULLER v. STATE.
    No. A-9679.
    Oct. 23, 1940.
    (106 P. 2d 832.)
    R. A. Howard, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Eoscoe Fuller, was charged in the district court of Carter county with the crime of larceny of livestock, was tried, convicted and sentenced to serve two years in the State Penitentiary, and has appealed.

For a proper discussion of this case, a short review of the testimony should be given.

Less Pogue testified that on October 6, 1937, two white hogs were stolen from his place; that about ten days thereafter, acting upon certain information he had received, he went to the defendant’s place, accompanied by his two boys; that the defendant first denied having any hogs, and then admitted having two hogs which he was fattening; that the defendant had Pogue’s two hogs in the defendant’s pen; that the defendant said he bought them from a fellow across the creek, but refused to give Pogue the name of the fellow across the creek from whom the defendant claims he bought the hogs; that the defendant made the suggestion that if the witness would keep the law off of him until that night, he would go over and see that fellow and see if the hogs were Pogue’s; that the defendant came to his home after dark that night and told him that he had found out that the hogs were Pogue’s and for him to' come up and get them; that the witness accompanied by the deputy sheriff went after the hogs the next day; that the hogs were stolen in Carter county.

Upon cross-examination, he testified that his place is about 12 or 14 miles from the defendant’s; that he never had signed a complaint against anybody for stealing his hogs.

J. D. Pogue and Fred Pogue, the two sons of Less Pogue, testified to substantially the same state of facts as was testified to by their father, Less Pogue.

Barney Ross testified that he was a deputy sheriff of Carter county; that Less Pogue advised him on October 9, 1937, that two of his hogs had been taken; that on October 16th he was up at the defendant’s house with Pogue; that the defendant was not at home; that Pogue took two white hogs which were there at the defendant’s place back home with him.

The defendant did not demur to the evidence, but proceeded immediately at the close of the state’s case to put on his witnesses.

Liza Pickens testified that she was the mother-in-law of the defendant; that one night early in October her son, Mose Clay, brought some hogs to the defendant’s place; that the defendant was not at home, but was down to Simon Clay’s; that Mose Clay went after the defendant and returned in a little while with him; that Mose Clay had made a corn crop there with the defendant, but had moved away from the place along in the summer, and had left the com there for the other boys to gather; that these hogs that Mose Clay brought there were the same white hogs that Mr. Pogue came after; that her son brought the hogs there in his old black car; that the defendant did not have a wagon or automobile or any other kind of vehicle; that the witness was living with Fat Fuller, the defendant, and had lived with him for a number of years.

The defendant testified in his own behalf that he did not own either a wagon or automobile; that he did have a horse; that Mose Clay brought the hogs to his place; that Mose had some corn there at his house which he wanted to* use to fatten the hogs which he brought there; that he had no* claim on the hogs, but was just fattening them for Mose Clay. He denied making the statements to Less Pogue about which Pogue testified. That Mose Clay brought the hogs there in a Model “A” Ford which belonged to Mose; that he told Pogue, when Pogue inquired about the hogs, that they belonged to a fellow across the creek; that after Pogue left, he had Mr. Oakman take him to see Mose, and he found out the hogs belonged to Mr. Pogue, and went on over to Pogue’s house and told Pogue they were his hogs, and 'for him to come and get them.

This was all the proof on behalf of the defendant.

In rebuttal, the state introduced evidence from Barney Boss that he examined the 1929 Model “A” Ford which belonged to Mose Clay on the 19th of October; that two of the tires were flat and the car looked as if it had not been moved in several weeks; that this automobile was just a wreck of a car.

Mose Clay testified that at the time the hogs were stolen, he was at Paul Heartsill’s place hauling cotton and cattle 'for Heartsill in Heartsill’s truck. He denied taking the hogs to the defendant’s place, or knowing anything at all about the hogs. He testified that he had a 1929 Model “A” Ford, but that it was not in running condition in the month of October and had not been used by him for a long time; that he left Fat’s place where he had been making, a crop before the corn was even in roasting ears, and had. not seen the defendant until after he was arrested on this charge; that the witness was also arrested, but was dismissed after a preliminary hearing.

Paul Heartsill testified that Mose Clay was working for him at the time he was arrested on this charge of stealing hogs; that he had been hauling cotton for him for about three weeks before he was arrested. He testified that on the night he was supposed to have stolen the hogs Mose Clay hauled cotton with him to. the gin and stayed until around midnight, and then went back home with the witness’ brother, Avhile he stayed all night at the gin; that Mose Clay’s Ford automobile was not in running condition at tbe time tbe bogs were stolen and bad not been in running condition for some time before that.

This was all tbe evidence in tbe case.

The defendant presented no requested instructions, and did not object to any of tbe instructions given by tbe court. We have examined tbe instructions which were given, and they sufficiently state tbe law applicable to the facts as shown by tbe evidence herein.

Tbe defendant for reversal of this case contends:

First. That there was no- evidence that tbe bogs were taken without tbe consent and against tbe will of Less Pogue, tbe true owner thereof.

Second. That tbe defendant was never arraigned on said charge and given an opportunity to plead to tbe information.

Third. That tbe court erred in referring to tbe defendant as Fat Fuller in bis instructions to tbe jury.

In connection with tbe first assignment, it is true that tbe want of consent oí tbe owner of the property to the talcing must always be proven in a case of larceny. Tbe proof, however, may be made tbe same as tbe other elements of tbe crime. Tbe proof may be by direct or circumstantial evidence. In this case, tbe owner testified that be missed his bogs on tbe night of October 6th and commenced to search for them. Later in bis testimony, be refers to bis bogs as having been stolen in Carter county. These statements are sufficient to show that the bogs were taken without tbe consent of tbe owner.

In tbe case of Devore v. State, 33 Okla. Cr. 403, 243 P. 999, this court stated:

“Tbe want of consent of the owner to tbe taking of bis property, alleged to have been stolen, is an essential ingredient of the crime of larceny. It is not required, however, that such want of consent be proven by direct and positive evidence. It may be proven by circumstances the same as any other fact.”

The case of Coffey v. State, 29 Okla. Cr. 168, 232 P. 968, cited by the defendant in his brief, is sufficient authority for the proposition that the nonconsent of the owner may be proven by circumstantial evidence the same as the other elements of the ¡offense may be proven.

See, also, Coppler v. State, 52 Okla. Cr. 275, 4 P. 2d 700; Jackson v. State, 10 Okla. Cr. 525, 139 P. 324; George v. United States, 1 Okla. Cr. 307, 97 P. 1052, 100 P. 46.

As to the second assignment of the defendant, the record discloses that when this case was called for trial no question as to the failure of the court to arraign the defendant was raised, and no objection to going to trial was made by the defendant. Both parties announced ready and proceeded with their proof.

The accused in a felony case is always entitled to an arraignment and plea before his trial; and if a demand is made, proper time should be granted the defendant to consult with counsel before pleading to the information. However, this is one of the rights of the defendant which may be waived by him. We have held that such right to arraignment is waived by the defendant going to trial without objection. Brown v. State, 33 Okla. Cr. 217, 242 P. 1065; Sherman v. State, 19 Okla. Cr. 269, 200 P. 262; Simpson v. State, 16 Okla. Cr. 533, 185 P. 116.

The court here treated the defendant as if he had entered a plea of not guilty to the information and so instructed the jury.

In Huffman v. State, 46 Okla. Cr. 377, 287 P. 1090, this court held:

“Where a defendant in a criminal case announces ready for trial, he thereby waives arraignment and plea or any irregularity therein.”

See, also, Ray v. State, 40 Okla. Cr. 413, 269 P. 509.

The defendant next complains of the action of the court in referring to1 the defendant as Pat Puller in his instructions. As we have heretofore pointed out, no exception was taken by the defendant to any of the instructions that were given. However, we have checked the record in connection with this assignment of error and find that the criminal complaint filed against the defendant charges him under the name of Pat Puller. The information filed against the defendant refers to' him pnly as Pat Puller. The defendant was referred to' both by the county attorney and the attorney for defendant himself continually in the examination of the witnesses as Pat. The defendant does state at the beginning of the examination that his true name is Roscoe Puller; but inspite of this statement, his own attorney refers to' him by the name p'f Fat. His mother-in-law referred to him only by the named of Fat. We cannot see how the action of the court in referring to the defendant as Pat has prejudiced him in the least. No doubt, the court in its instructions used the name as shown in the information filed against the defendant. Since the defendant did not object to the instruction with the name of Pat Puller appearing therein, this contention cannot be insisted upon in this court. But, even though it Ifad been properly raised herein, it still is entirely without merit.

There is some question as to the sufficiency of the evidence to' sustain the conviction. However, the evidence, when considered as a whole, was sufficient to be submitted to the jury for their consideration. The defendant was given the minimum sentence provided by law for such cases. If this minimum punishment had not been imposed, this court is impressed enough with the defendant’s explanation of the possession of the hogs that we would feel that justice requires that the punishment be modified. It would have been much better to have charged the defendant with the offense of receiving stolen property; especially in view of the fact that the defendant lived 14 miles from the prosecuting witness and was not possessed of a. wagon, automobile or any other kind of vehicle. Under the decisions of this court, the evidence is sufficient to sustain the conviction, but the conclusion is inescapable that the defendant had assistance in the larceny from other parties. The question as to the sufficiency of the evidence is not raised in this appeal, but we have mentioned the same and expressed our view thereon so that the defendant may have this benefit in case of an application for clemency after he has served a proper time in the State Penitentiary.

The judgment of the district court of Carter county is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    W. L. TENNYSON v. STATE.
    No. A-9721.
    Oct. 31, 1940.
    (106 P. 2d 1114.)

      Glenn O. Young, of ¡Sapulpa, for defendant.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen and Fred Hansen, Asst. Attys. Gen., and L. J. York, Co. Atty., of Stillwater, for the State.
   BAREFOOT, J.

Defendant was charged in the county court of Payne county with the crime of violating an order of the State Barber Board providing minimum price schedule for barber work in the city of Stillwater. He was tried, convicted, and sentenced to pay a fine of $25 and costs, and has appealed.

For reversal of this case, it is contended that section 12, article 2, chapter 24, of the 1937 Session Laws, 59 Okla. St. Ann. § 91 et seq., is in contravention of the terms of the Constitution of the United States and State of Oklahoma, the exact provisions of which it is unnecessary to mention in this opinion. The contention of this defendant has been heretofore denied by this court in the case of Ex parte Herrin, reported in 67 Okla. Cr. 104, 93 P. 2d 21. The Supreme Court of this state has also heretofore upheld the constitutionality of this act in the case of Herrin et al. v. Arnold, District Judge, 183 Okla. 392, 82 P. 2d 977, 119 A. L. R. 1471, and in the case of Vandervort et al. v. Keen, District Judge, 184 Okla. 121, 85 P. 2d 405.

It is unnecessary to quote from these opinions. They may be read by those who desire to do so, as they fully discuss the constitutionality of the act above referred to. Defendant in his brief, after citing these cases, says: “* * * wherein the enactment herein involved has been upheld as generally constitutional, the same propositions therein presented will not be reargued.” It is then contended by defendant that certain propositions here raised were not decided in the decisions above quoted. In his original brief he refers to> and quotes from the case of Herrin v. Arnold, District Judge, but does not refer to the case of Ex parte Herrin, supra, decided by this court. We believe that a careful reading of the Herrin Case would reveal that a number of the errors assigned have been disposed of by the decision in that case. The errors complained of will be considered in their order.

It is first contended that the order under which defendant was convicted is in violation of article 5, section 82, of the Constitution of the state, Okla. ,St. Ann., prohibiting the passage of special or local laws until notice shall have first been published in the city or county affected by such law, and of article '5, section 59, forbidding passage of local laws where general laws may be made applicable.

With reference to the last part of this contention, it is evident that the Herrin Case, supra, was not considered, because in that case this exact question was decided against the contention here made. Defendant does not cite any decisions supporting his contention. We call attention to- the fact that the order here violated is not a law enacted by the Board of Barber Examiners, but merely a subordinate rule promulgated by them, under a policy laid down and a standard prescribed by the Legislature. There is no- authority that an order such as here involved is a special or local law as contemplated by the terms of article 5, section 32, of the State Constitution. It was so decided in the Herrin Case.

It is next contended that the State Barber Board made no effort to comply with the provisions of House Bill 610 in the passage of the order of October 6, 1938. Hence, the act which defendant, Tennyson, committed was never made a crime by the Legislature or conformable to any legislative authority.

To support this proposition, defendant cites that part of section 4, article 2, chapter 24, Oklahoma Session Laws of 1937, 59 Okla. St. Ann., § 94, which reads as follows: “* * * that nothing contained in this act shall be construed to abrogate or affect the status, force or operation of any provisions of the public health laws; State sanitary laws or the Oklahoma barber law, or any local health ordinance or regulation.”

In construing this section, it is contended that the board is prohibited from exercising police power, and that therefore the act was not enacted in the interest oif the public health. This expression, to our mind, only showed an intention of the Legislature to enact a law that should not abrogate or supersede the operation of other public health laws. State v. Pyle, 62 Okla. Cr. 411, 71 P. 2d 997.

It is next contended that the proceedings whereby defendant was prosecuted were not in accordance with provisions of House Bill 610, in the following particulars:

“A. To investigate before enactment of the order complained of.
“B. To1 give 20 days notice of its meeting as required by Title 59, sec. 67, Okla. St. Ann., which was expressly continued in effect by House Bill 610.
“0. To serve a written certified copy of the rule upon the defendant as expressly required by Title 59, Okla. St. Ann., sec. 98 of the Act.”

Section 12, article 2, chapter 24, of the Act of the Legislature 1937, 59 Okla. ¡St. Ann. § 102, provides:

“(a) The board shall have the power to approve price agreements establishing minimum prices for barber work, signed, and submitted by any organized groups of at least seventy-five per centum (75%) of tbe duly licensed, registered and practicing barbers of any city or town of one thousand (1,000) population or more according to1 the last Federal Decennial Census, after ascertaining by such investigations, and proofs as the condition permits and requires, that such price agreement is just, and under varying conditions, will best protect the public health and safety by affording a sufficient minimum price for barber work to enable the barbers to furnish modern and healthful service and appliances, so' as to minimize the danger to' the public health incident to such work.
“The board shall take into consideration all conditions affecting the barber profession in its relation to the public health and safety.
“In determining reasonable minimum prices, the board shall take into consideration the necessary costs incurred in the particular city or town affected by this Act in maintaining a, barber shop in a clean, healthful and sanitary condition.
“(b) The board, after making such investigation, shall fix, by official order, the minimum price for all work usually performed in a barber shop.
“(c) That if the board, after investigation made either upon its own initiative or upon the complaint of a representative group of barbers, determines that the minimum prices so fixed are insufficient to properly provide healthful services to the public and keep the shops sanitary, then the board from time to time shall have authority to vary or refix the minimum prices for a barber’s work in each city or town affected by this act.”

This is the only section of the act which deals with the investigation to' be made by the board in fixing minimum prices for barber work in a city or town of this state.

In the Herrin Case, supra [93 P. 2d 28], we said in quoting from American Jurisprudence, volume 7, page 614, as follows:

“What regulations shall be made are largely questions for the legislative body to determine; and unless those made are unreasonable and extravagant in their nature and purpose, or arbitrarily interfere with or destroy the property or personal rights of citizens, they will be sustained by the courts, even though they may be unwise, inexpedient, or place a needless restriction upon those who desire to learn the barber’s trade. The Legislature cannot, however, under guise of its police power, impose upon barbershops and beauty parlors unreasonable, capricious, or arbitrary regulations having no relation to the public health or welfare or, under guise of regulation, destroy that profession.”

In the case of Herrin v. Arnold, supra [183 Okla. 392, 82 P. 2d 982, 119 A. L. R. 1471], the Supreme Court of this state said:

“It must be conceded that, if the section does confer such power on an unnamed, unofficial group, it is within the inhibition of the Constitution. It is also apparent that the act would be invalid if the agreement referred to were approved without investigation, or even if the agreement were considered as the sole evidence of the facts which the board is authorized to find, since no agreements of individuals could make facts exist which do not exist, so far as others and the public are concerned. Those agreeing could bind neither those not agreeing nor the patrons of the shops. It does not appear from the pleadings here what investigation if any was made, nor do we attempt here to determine the fact as to whether the prices fixed by the board are such as ‘will best protect the public health and safety.’
“The board does not have arbitrary power; the courts can still inquire into the question of whether its decisions are unreasonable, extravagant or arbitrary. If here the board has, without more, merely approved an agreement it has not acted according to law. We do not, however, so understand the pleadings. Presumably it has taken into consideration all conditions affecting the barber profession in its relation to' the public health and safety, and has taken into consideration the necessary costs in the particular city or town affected in maintaining a barber shop in a clean, healthful and sanitary condition, and has, after such investigation, made its official order fixing the minimum price 'for all work usually performed in a barber shop. It is this order which fixes the scale and it is immaterial whether a price agreement has or has not been made.
“It will be noted that the law does not provide that the approval of a price agreement is equivalent to an order of the board. In view of the whole statute it must be construed to mean that the board may, if proof and investigation are sufficient, designate the prices in the agreement or any of them as the minimum prices, but its finding must be based upon all the facts and not upon the mere agreement. The Legislature evidently intended, this to1 be so in order to avoid a possible unconstitution-alitv.”

It will be noted from the above statements that neither of the courts passed directly upon the question as to what investigation should be made by the Barber Board before entry of an order establishing minimum prices for barber work within the towns or cities prescribed by the act. By the terms of the act, it may well be observed that it seemed to be the intention of the Legislature to give the board a wide discretion as to the extent and nature of its investigation. It may be presumed that the Legislature took into consideration the number of towns and cities that came within the designated classification and the expense necessary for an investigation in each particular case, and for this reason, the clause, “as the condition permits and requires,” was placed therein. It may be further presumed that they took into1 consideration the fact that when investigations were made the members of the board would acquire knowledge by reason of those investigations, which would be beneficial in other cases coming before the board. We can hardly believe, as contended by defendant, that it was the intention of the Legislature that the board should give notice and have a public hearing in every instance where it was attempted to make an order fixing the minimum price of barber work in that locality, and that if such investigation and notice and public hearing was not had, that it would render the order void and the act unconstitutional by reason thereof. Neither do we believe that the board can invoke unreasonable, capricious, or arbitrary regulations against either the barbers or the public, that have no relation to the public health and welfare, under the guise of regulation of unjustifiable or unreasonable prices. If this should be attempted by the board, any aggrieved party would have the right to such redress as the law affords, but the burden would be upon them to establish this fact. To our mind this question could then be presented to> a court of equity, where evidence could be presented which gave all of the facts, and an intelligent decision be rendered thereon.

We do not think that by reason of evidence brought out on cross-examination to show that members of the board were not in Stillwater, and that no examination was held there after notice given, it is sufficient for this court to- hold that the order made by the board on October 6, 1938', fixing the minimum prices for barber work on Still-water is void, and that defendant could not be charged for a violation thereof, and that for this reason the terms of the act above stated were rendered unconstitutional and void.

In the case at bar the record reveals that the order fixing the minimum prices for hair cuts and shaves in Stillwater, which defendant was charged with violating, were fixed after the board had received a petition from 75 per cent of the duly licensed, registered, and practicing barbers of that city requesting tbe investigation and order; that subsequent to that time, at least 10 or 15 barbers from Stillwater appeared before tbe board. Tbe record does not reveal wbat other investigations were made, if any, by the board, nor is there evidence in tbe record to' show that the order was unreasonable, capricious, or arbitrary. Under these facts it cannot be presumed as a matter of law that the act of the board was unwarranted or that a proper investigation was not made prior to the making of the order of October 6,1988, herein complained of.

With reference to section B, above noted, this section is based upon section 4381, Oklahoma Statutes 1931, 59 Okla. St. Ann. § 67, which provides:

“Said board shall hold regular meetings every three (3) months in the Capitol of this state, for the consideration of applications for certificates as registered barber or registered apprentice and may transact such other business as may properly come before it, and shall have the power to adjourn from time to time, until its business is completed. Notice of the regular meeting of the board shall be given twenty (20) days previous to the meeting of said board, by publication in at least one daily paper in each congressional district. ¡Said board shall procure a seal for its use and all certificates issued by the board shall bear the imprint of said official seal.”

This section is a part of the original Barber Law of Oklahoma, enacted in 1931. It was enacted long before the act of 1937, and has no bearing upon investigations by the Barber Board as provided by section 12 of the Act of 1937, 59 Okla. St. Ann. § 102. The 20 days referred to therein only relates to the four regular quarterly meetings of the Barber Board, at which applications for certificates as registered barbers or apprentice barbers are considered. It was not intended by this section, in our opinion, that investigations could only be made by the board at such regular meeting.

With reference to paragraph C, that defendant was not served with a written certified copy of the rule, defendant has reference to section 8 of the act of 1937, 59 Okla. St. Ann. § 98, which reads as follows:

“That a violation of any provision of this act or of any rule, when a written certified copy of said rule has been served upon the person violating said rule, subpoena or order of the board lawfully made pursuant hereto, except as otherwise expressly provided by this act, shall be a misdemeanor punishable by a fine not less than twenty-five ($25.00) dollars and not exceeding three hundred ($300.00) dollars, or by imprisonment not exceeding six (6) months, or both.”

From reading and construing the whole act it does not occur to us that the above section should have the application as contended by defendant. In this connection we call attention to section 5 of the 1937 Act, 59 Okla St. Ann. § 95, which in part provides:

“Every rule or order of the board shall be posted for public inspection in the main office of the board and a certified copy filed in the office of the Secretary of the Board and Secretary of State of Oklahoma.
“An order applying only to< a person or persons named therein shall be served on the person or persons affected. # TÍ ^
“The posting in the main office of the board of any rule and order not herein required to be served, and such filing in the office of the Secretary of the board, shall constitute due and sufficient notice to all persons, affected by such rule or order. * * * The provisions of this Section, as to service of orders, shall not apply to orders fixing prices, as to which provisions are made in section 12 of this act.”

The record in this case discloses that the rule of October 6, 1938, whereby the State Barber Board issued an order providing for a minimum price of 20 cents for shaves and 40 cents for hair cuts in the city of .Stillwater was properly posted in tbe office of the board and filed in the office of the Secretary of State. We are of the opinion from reading this act as a ivhole, this was the only notice necessary to he filed by the board. The record also discloses that this defendant had, at another and different time prior thereto', been prosecuted for a violation of this same law in Cushing, Payne county, Okla.

It is next contended that the court erred in the instructions given to the jury in this case. This error is based upon the contention made by counsel in the objections heretofore considered. If the defendant was in error in those contentions, as we have held, then the instructions of the court were in proper form and properly gave the law to the jury. For this reason, it is unnecessary to' further consider the instructions given by the court. They fully covered every phase of the law and the rights of the defendant were properly safeguarded.

Finding no error in the record, we are of the opinion that the judgment of the county court of Payne county should be affirmed, and it is so ordered.

DOYLE, P. J., and JONES, J., concur.


text:
    Ex parte E. H. HAWKINS.
    No. A-9929.
    Oct. 31, 1940.
    (106 P. 2d 1112.)

      Don Cameron, of Oklahoma City, for petitioner.
   JONES, J.

E. H. Hawkins filed his petition for writ of habeas corpus in this court, wherein he alleges that he is unlawfully imprisoned and restrained in the county jail of Oklahoma county by George Goff, sheriff of Oklahoma county; that the cause of said restraint is a commitment issued by the county court of Oklahoma county, Okla., in cause No. 9403, in said court, on August 21, 1940, which sentence was imposed after the petitioner was arrested by said sheriff upon an alleged commitment issued on October 5, 1932, in said cause; that some 34 terms of said court had passed after said cause last appeared on the docket of the county court of Oklahoma county.

Petitioner further alleges that said restraint is illegal in that the purported commitment is void and a nullity, and the judgment and sentence entered by the court is illegal for the reason that the county court had lost jurisdiction of said cause, because the time for pronouncement of judgment and sentence had passed on April 2, 1932, without the pronouncement of judgment and sentence, and no further order continuing the time for pronouncement of judgment and sentence was ever made subsequent to that date.

A copy of the original 'files of said case, including a certified copy of the appearance docket, is made a part of said petition. These exhibits show that an information was filed against the defendant on June 22, 1931, charging him with violating the liquor laws. The defendant entered his plea of guilty to said charge on October 6, 1931. The time for pronouncing judgment and sentence upon the defendant was continued to several definite periods, the date of the last entry being April 2, 1932. After that date no further order continuing the time for pronouncing judgment and sentence was made; but the defendant continued at liberty until he was arrested and taken before the court on August 21, 1940, at which time he was sentenced to serve 30 days in the county jail and pay a fine of $50 and costs of said action.

This court, on September 7, 1940, issued a rule to show cause directed to’ the sheriff of Oklahoma county and made returnable on October 17, 1940, and the petitioner was released on bail in the sum of $100 during’ the pend-ency of said cause in this court.

Said rule to show cause was duly served on the sheriff of Oklahoma county on September 7, 1940, but no return or response to said petition has ever been filed. As was stated by Judge Doyle in the recent case of Ex parte Hastings, 70 Okla. Cr. 128, 105 P. 2d 270:

“Section 689, St. 1931, 12 Okla. St. Ann. § 1338, requires that the sheriff or other person to whom the writ directed shall make immediate return thereof, and i'f such officer neglect or refuse to' make return, after due service, or shall refuse or neglect to obey the writ by producing’ the party named therein, and no sufficient excuse is shown for such neglect or refusal, the court shall enforce obedience by attachment.

“Section 690, 12 Oída. St. Ann. § 1339, provides that the return must be signed and verified by the person making it who shall state:

“First. The authority or cause oí restraint of the party in his custody.
“Second. If the authority be in writing, he shall return a copy and produce the original on the hearing.
“Third. If he has had the party in his custody or under his restraint, and has transferred him to another, he shall state to whom, the time, place and cause of the transfer.
“Section 691, 12 Okla. St. Ann. § 1340, provides that the petitioner may except to the sufficiency of or controvert the return, or any part thereof, with other provisions not necessary to here mention.
“Section 692, 12 Okla. St. Ann. § 1341, is to the effect that upon the issues joined the court or judge shall proceed in a summary way to hear and determine the cause, and if no legal cause be shown for the restraint, or for a continuance thereof, shall discharge the petitioner.”

The verified petition filed herein shows upon its face that the petitioner is entitled to the relief sought. Ex parte Coley, 67 Okla. Cr. 482, 94 P. 2d 968; Collins v. State, 24 Okla. Cr. 117, 217 P. 896; White v. State, 45 Okla. Cr. 289, 283 P. 581.

In the case of Ex parte Coley, supra [94 P. 2d 970], it is stated:

“To permit the courts to indefinitely postpone the sentence is placing in the hands of the judge the pardoning power. The law o'f this state does not permit this. Sentence need not necessarily be imposed at the same term of •court at which the verdict or plea of guilty was had, and, if the court’s purpose of postponing the imposition of sentence is incident to the administration of justice within its conceded powers, and its orders postponing sentence are unconditional and to definite periods, the jurisdiction of tbe court to' impose sentence at a term after tbe trial term is not affected. But in tbe case at bar several terms of court had passed and no order was entered postponing tbe pronouncement of judgment and sentence. Tbe court, under the law, had lost jurisdiction.”

Where the petition, duly verified, shows on its face that the petitioner was illegally restrained of his liberty and the sheriff who has the petitioner in custody has failed to1 make a return, this court may proceed in a summary way to determine the cause and order the petitioner discharged upon the verified and undenied petition filed herein. Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758; Ex parte Hastings, supra.

From a consideration of the petition, the exhibits attached thereto', and the evidence introduced in support thereof, this court is of the opinion that the petitioner was unlawfully restrained of his liberty upon the date of the filing of said petition and should be discharged.

It is SO' ordered.

DOYLE, P. J., and BAREFOOT, J., concur.


author: DOYLE, P. J.

text:
    L. J. JOHNSON v. STATE.
    No. A-9844.
    Nov. 13, 1940.
    (107 P. 2d 365.)

      Sanford M. Martin, Tahlequah, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that L. J. Johnson, on the 28th day of July, 1939, in Cherokee county did have possession of 25 pints of whisky, six pints of alcohol and five pints of gin, with the unlawful intent tO' sell the same; that prior to1 the filing of the information on the 13th day of June, 1938, the said L. J. Johnson, defendant, entered a plea of guilty to an information charging unlawful possession of intoxicating liquor, and on the 25th day of June, 1939, said defendant by the judgment of the county court of Cherokee county was sentenced to serve 30 days in the county jail and pay a fine of flOO and the costs.

In the case at bar the jury returned a verdict finding said defendant guilty of illegal possession of intoxicating liquors, second offense, and fixed his punishment at confinement in the county jail for 90 days and payment of a fine of flOO.

Motion for new trial was duly filed, presented and overruled.

Prom the judgment rendered on the verdict October 27, 1939, an appeal was taken by filing in this court on April 23, 1940, a petition in error with case-made.

No briefs have been filed and no appearance for oral argument made.

Where the defendant appeals from a judgment of conviction and no briefs in support of the petition in error are filed, and no appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors, and finding no fundamental error the judgment will be affirmed.

An examination olf the record discloses no jurisdictional or fundamental errors. As to the sufficiency of the evidence to sustain the verdict, we think there can be no reasonable doubt. The instructions given by the court, to which no objection was made or exception taken, correctly and fully presented the law of the case.

It appearing that the defendant was accorded a fair and impartial trial, the judgment of the district court of Cherokee county herein is affirmed.

BAREFOOT and JONES, JJ., concur.


text:
    HUBERT NOTT v. STATE.
    No. A-9720.
    Nov. 13, 1940.
    (107 P. 2d 366.)

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Phil E. Daugherty, Asst. Go. Atty., of Oklahoma City, for the State.
    Glen O. Morris, of Oklahoma City, for defendant.
   BAREFOOT, J.

Defendant was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of 54 pints of tax paid whisky; was tried, convicted and sentenced to pay a fine of $75 and serve 45 days in jail, and has appealed.

But one question is presented by this appeal, and that is that the court erred in overruling defendant’s motion to quash and suppress the evidence as set forth in said motion, to wit:

“1. That said evidence is inadmissible for the reason there was no search warrant for the obtaining of said evidence, as in such cases made and provided by law.
“2. That said search and seizure violates the defendant’s constitutional rights.
“3. That said, evidence is inadmissible as against this defendant because said search and seizure of said evidence was illegal, void and without authority of law.”

A jury was waived by defendant and the case was tried by the court. The evidence revealed that three police officers, J. M. Swofford, J. M. Mabee and J. G. McGuffin, were in the vicinity of the “Katy” depot in Oklahoma City on the night of December 9, 1938, about 8 o’clock, and they saw an automobile in which defendant was seated parked near the depot; that Officer Swofford approached the car and the other officers started in pursuit of some unknown person who escaped. Officer Swofford, on walking up to' the car where defendant was parked, engaged him in conversation and saw 54 pint packages of intoxicating liquor lying on the floor of defendant’s car. It was wrapped in brown paper such as is often used in the wrapping of intoxicating liquor. He asked the defendant how much there was of it, and he replied, “Something over a case.” He immediately arrested defendant and he was taken to jail, and the charges of this case were the outgrowth of this arrest.

On cross-examination the officer testified he did not have a search warrant at the time the liquor was found and defendant was arrested; that he was acquainted with defendant and that they had a “pick-up” for him “concerning some stolen cars” in Kansas, but that he did not talk to him about the Kansas matter until he was booked at the jail. He did, however, testify that this was his reason for starting toward the car of defendant. He also testified that the 54 pints of whisky were wrapped in packages when he saw them on the floor.

Deputy .Sheriff Ross Pierce testified as to' the police officers turning over to the sheriff’s office 54 pints of tax-paid liquor, and it was identified as the liquor found in the possession of defendant, and the same was introduced in evidence for the inspection of the court.

Defendant took the witness stand in his own behalf and admitted he was parked in the car at the “Katy” depot as stated by the officers and that it was his car and was his whisky. He testified that the officer opened the door of the car and “looked down at some packages I had on the floor boards and said, “Well, I guess I will take you on down’ ”; that he did not give him permission to open the car door and that he did not tell the officer he had whisky in the car and that he was not served with a search warrant. On cross-examination defendant testified that he was in the whisky business and named the different brands that he sold; that he had personally wrapped the packages that were in his car, and that he had stuck it with gummed tape and had written certain identification marks on the packages so he could distinguish the kind of liquor it contained by the brand thereon.

It will at once be observed that there is a conflict in the evidence of the officer and that of the defendant as to whether the door of the car was opened prior to the seeing of the whisky, and to the statement made by defendant as to1 there being whisky in the car at the time the officer approached the same. There being a conflict in this evidence, it was a question of fact for the court to decide, a jury having been waived, as to who spoke the truth. This court under many decisions heretofore rendered has announced the rule that it will not set aside a judgment and sentence where there is a conflict in the evidence and the judgment and sentence is sustained by the evidence of the state.

It is contended by defendant in his brief that:

“Your writer contends that the officer violated defendant’s constitutional rights when he first started toward defendant’s car with the intention of searching said automobile and obtaining evidence (from the defendant without first knowing that a misdemeanor was being committed by the defendant.”

Many decisions have been rendered by this court upon the question of the right to search without the necessity of a search warrant, and especially with reference to the right to' search an automobile. It is also. true that an examination of these cases reveals that certain isolated statements made therein are in conflict with each other, and for this reason we deem it advisable at this time to review some of these decisions so that it may be known what the view of the court as it is now constituted is upon this question.

This court has always been zealous to guard the constitutional rights o'f the citizens of this state in the protection of their homes and property from unreasonable search and seizure. This right is guaranteed by the Bill of Rights and Constitution of this state, Okla. St. Ann. art. 2, § 30, and the United States, Const. Amend. 4.

The following citations are a few of the decisions of this court exemplifying this position: Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; McHenry v. State, 61 Okla. Cr. 450, 69 P. 2d 90; Skelton v. State, 67 Okla. Cr. 215, 93 P. 2d 543. But at the same time we do not believe that a narrow, technical construction should be placed upon these sacred provisions of the Constitution, which were adopted to protect the rights of the good citizens of this state, so as to shield the citizen who has so far forgot his citizenship to attempt to use his home or his property for the purpose of using it to< violate the laws of his. country. Handley v. State, 65 Okla. Cr. 268, 85 P. 2d 436; Willard v. State, 66 Okla. Cr. 344, 92 P. 2d 600; Denton v. State, 62 Okla. Cr. 8, 70 P. 2d 135; Newton y. State, 61 Okla. Cr. 237, 71 P. 2d 122; Rickman v. State, 70 Okla. Cr. 355, 106 P. 2d 280.

We desire to refer to some of the later decisions of this court which have given special attention to the search of automobiles, and especially with reference to the right of search by officers where a crime has been committed in their presence, and the right to arrest or search without the necessity of a search warrant. We call attention to the case of Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544, 546. The facts in this case were very similar to the case at bar. Two state highway patrolmen were traveling along highway No. 33 in Tulsa county. They passed defendant, who' was out of his car fixing a tire. They stopped and asked what the trouble was. Defendant informed, them he had a flat and was fixing a tire. They noticed a cardboard carton beside the car that was labeled “John Paul Jones Whisky”. They asked the defendant whose whisky it was, and he said it was his. They asked him if that was all he had, and he said he had another carton up in front. The officers looked in the back of the car and saw several cases of whisky there. Defendant was arrested and charges filed. Defendant raised the question that the evidence was insufficient to convict and that the court erred in refusing motion to suppress evidence by reason of the fact that officers did not have a search warrant. The court held there was no error by the court, stating:

“Whether search of, and seizure from, an automobile upon a highway or other public place, without a search warrant, is reasonable is in its final analysis to be determined as a judicial question, in view of all the circumstances under which it is made.
“The constitutional provision against unreasonable searches and seizures does not preclude the making of a seizure, without a warrant previously procured, of intoxi-eating liquor, where there is no need of a search for the liquor because the liquor is fully disclosed to the eye. Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549.
“An offense is committed or attempted ‘in the presence of an officer’, within meaning of the statute providing that a peace officer may, without a warrant, arrest a person for a public offense, committed or attempted in his presence, where such officer is apprised by any of his senses that a misdemeanor is being committed by the person arrested prior to the arrest.
“In the instant case the facts and circumstances as testified to by the officers were sufficient to- warrant them in believing that intoxicating liquor was in the carton beside the automobile, and this was a sufficient showing of an offense committed in the presence of the officers, and their testimony is¡ to the effect that defendant admitted that the automobile contained other cartons of whisky that belonged to him.”

We have quoted fully from the above case because of the close proximity of facts in that case and the case at bar. We also call attention to' the ease of Matthews v. State, 67 Okla. Cr. 203, 93 P. 2d 549, 554, cited in above case. In that case the police officers of the city of Enid by custom checked all cars parked on the streets of Enid between the hours of 10 and 11 o’clock each night to see if they were locked or had articles of value that might be stolen. They encountered defendant’s car, which was locked. The officers saw a carton on the floor of the car labeled, “Paul Jones Whisky”, and two^ or three other cartons beside it and saw a bottle, in the car. The car was taken to the police station, and by using a wire, the door was opened and they found four quarts containing liquor. The defendant afterwards appeared at the station disclaiming ownership of whisky, but gave the officers the keys to the car and they unlocked the trunk and found five or six bottles of “Crab Orchard Whisky”. A motion to suppress the evidence by reason of failure to have a search warrant was overruled, and Presiding Judge Doyle, after review of cases with reference to the right of officer to search an automobile without having a search warrant, said:

“In the case at bar,' the undisputed facts and circumstances as testified to by the officers, were sufficient to warrant them in believing that intoxicating liquor was in the cartons and bottle lying on the floor of the automobile, and this was a sufficient showing of an offense committed in the presence of the officers, and the defendant admitted, while their investigation was in progress, that the trunk on the car contained whisky that belonged to him. The admissions against interest made by the defendant were conclusive as to his guilt of the offense charged.
“In view of the time, place, and all the circumstances under which this seizure was made, we are of the opinion there was no' violation of the constitutional provision forbidding unreasonable searches and seizures.”

In the case of People v. Case, 220 Mich. 379, 190 N. W. 289, 292, 27 A. L. R. 686, the court, in describing the automobile as an instrument to avoid the detection of crime and as an aid to the criminal, said:

“The automobile is a swift and powerful vehicle of recent development, which has multiplied by quantity production and taken possession of our highways in battalions, until the slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as covered vehicles to- standard form in immense quantities, and with a capacity for speed rivaling express trains, they furnish for successful commission of crime a disguising means of silent approach and swift escape unknown in the history of the world before their advent. The question of their police control and reasonable search on highways or other public places is a serious question far deeper and broader than their use in so-called ‘bootlegging’ or ‘rum running,’ which in itself is no small matter. While a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on highways. Their active use is not in homes nor on private premises, the privacy of which the law especially guards from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate commission of crime of all degrees, from those against morality, chastity, and decency to robbery, rape, burglary, and murder, is a matter of common knowledge. Upon that problem a condition and not a theory confronts proper administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other public place without a search warrant is unreasonable is in its final anatysis to be determined as a judicial question in view of all the circumstances under which it is made.”

Other recent cases decided by this court are the following: Coburn v. State, 70 Okla. Cr. 329, 106 P. 2d 533; Arnold v. State, 70 Okla. Cr. 203, 105 P. 2d 556; Key v. State, 69 Okla. Cr. 71, 100 P. 2d 291; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603 — dissenting opinion; Morris v. State, 66 Okla. Cr. 384, 92 P. 2d 609, also a dissenting opinion; Skinner v. State, 65 Okla. Cr. 371 87 P. 2d 341; McAfee v. State, 65 Okla. Cr. 65, 82 P. 2d 1006; Boardwine v. State, 64 Okla. Cr. 49, 76 P. 2d 1081; Dean v. State, 63 Okla. Cr. 385, 75 P. 2d 900.

We desire to refer to three decisions of this court, viz., Black v. State, 63 Okla. Cr. 317, 74 P. 2d 1172; Morris v. State, 66 Okla. Cr. 384, 92 P. 2d 609; Morris v. State, 66 Okla. Cr. 358, 92 P. 2d 603. With reference to the Black Case, we are not holding, that the facts in that case justified the officer in making the search for the reason that the defendant was not in a public place at the time the search was made, but the language used in that opinion when it states: “They did not have a warrant for the arrest of the defendant or to search his car, and when they left tbe road where they were driving, and drove out toward the defendant’s car, they began to and were committing, so far as the defendant was concerned, an unlawful search and seizure,” is not approved. In the other two cases a dissenting opinion was given by the writer of this opinion. I am still of the opinion that the facts in those cases justified the search without the necessity of a search warrant.

Cases from other jurisdictions which have dealt with the question of the right of search of automobiles without the necessity of a search warrant are as follows: Lambert v. United States, 9 Cir., 282 F. 413; United States v. Hilsinger, D. C., 284 F. 585; United States v. Rembert, D. C., 284 F. 996; Bell v. United States, 5 Cir., 285 F. 145; Houck v. State, 106 Ohio St. 195, 140 N. E. 112; Royce v. Com., 194 Ky. 480, 239 S. W. 795; People v. Chyc, 219 Mich. 273, 189 N. W. 70; Patrick v. Com., 199 Ky. 83, 250 S. W. 507; People v. De Cesare, 220 Mich. 417, 190 N. W. 302; State v. Kanellos, 122 S. C. 351, 115 S. E, 636; Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A. L. R. 1407.

In the Brumley Case, supra, the court says:

“Counsel for defendants in his brief states that: ‘The search was commenced at the time the officer started in his car to overtake the defendants’ car and stop it for the purpose of obtaining evidence of a violation of the prohibitory laws, and it was commenced wholly on suspicion, with only a faint hope of obtaining evidence. Being unlawful in its inception the entire search was illegal, and, the evidence obtained thereby was inadmissible against the defendants.’ ”

Judge Doyle in answering this contention said:

“Upon the record, before us we think that the contention made is wholly without merit. An offense is committed or attempted ‘in the presence of an officer,’ within the meaning of the statute, providing that a peace officer may, without a warrant, arrest a person for a public offense committed, or attempted in bis presence where such officer is apprised by any of his senses that a misdemeanor is being committed by the person arrested prior to' the arrest. Section 2780, Sts. 1931, 22 Okla. St. Ann. § 196.”

The facts in this case were that the officers started in pursuit of defendant’s car and while so in pursuit of said car, the defendants threw two or three sacks of whisky from the ear. When the car was searched after defendants were arrested, there was no whisky in the car, but the sacks were found containing broken bottles and full bottles containing whisky. The decision in this case is contrary to the statements made in the Black Case here-inbefore cited.

The statement heretofore referred to in the opinion with reference to' the automobile’s use for the purpose of escaping detection of crime is highly applicable to the violation of the liquor laws of this state, and while proper protection of the rights of the citizen of this state who is not a violator of the law is proper and just, we can see no valid reason why this court should resort to hairsplitting. distinctions and technicalities in protecting the violator of the law who' openly and notoriously uses his property, and especially his automobile, for a violation of the law of the land. We do not think that because an officer of the law walks toward the parked automobile of a defendant, that he thereby commits an unlawful act, and that when he arrives there he sees with his own eyes a violation of the law in his very presence, that he does not have the right to arrest the party whom he sees violating the law, and after such arrest, search the person and property of the defendant. To so hold, in our opinion, is throwing a cloak of protection around the defendant who violates the law to- which he is not entitled. The decisions in the cases of Barfield v. State and Matthews v. State, supra, are directly in point npon this issue, as are the other cases heretofore cited.

In the case a.t bar the defendant admits that he was the owner of the car and the owner of the 54 pints of tax paid whisky; that he was engaged in the sale of whisky, and that he had wrapped and marked each package so he could identify the same for the purpose of sale. The officer approached the car in which defendant was sitting for the purpose of taking defendant to the police station that he might be questioned with reference to stolen automobiles in the State of Kansas. The authorities had a pickup order for him. When the officer approached the car, he saw 54 packages of whisky, each wrapped separately in brown paper, in the bottom of the car. When asked by the officer how much he had, he replied, “Something oyer a case.” Certainly this officer, whose duty it was to enforce the law, was justified under these facts in arresting the defendant without the necessity of haying a search warrant.

The judgment of the court of common pleas of Oklahoma county is therefore affirmed.

DOYLE, P. J., and JONES, J., concur.