text:
    T. W. PRITCHETT v. STATE.
    No. A-1538.
    Opinion Filed June 14, 1913.
    Appeal from Craig County Court; S. P. PARKS, Judge.
    T. W. Pritchett was convicted of violating the prohibitory law, and appeals.
    Reversed.
    James S. Davenport, for plaintiff in error.
    Smith C. Matson, Asst. Atty. Gen., and J. S. Estes, for the State.
   PER CURIAM.

Thhe plaintiff in error was convicted upon an information, the charging part of which is as follows; “T. W. Prit-chett, did in the county and state aforesaid, on the date aforesaid, willfully and unlawfully sell, barter, give away and furnish one pint of spirituous liquors, one pint of vinous liquor, one pint of fermented liquor, one pint of malt liquor, one pint of imitation of spirituous liquor, one pint of imitation of vinous liquor, one pint of imitation of fermented liquor, one pint of imitation of malt liquor, one pint of a substitute for spirituous liquor, one pint of a substitute for vinous liquor, one pint of a substitute for fermented liquor, one pint of a substitute for malt liquor, one pint of compound which contained more than one-half of one per centum of alcohol and which was capable of being used as a beverage, to one Louis R. Harris, contrary”, etc.

Upon his trial he was found guilty and sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars. Of the various alleged errors it is only necessary to consider the one, that the information is bad for duplicity, and that the court erred in overruling the demurrer of plaintiff in error. An information which charges two or more separate and distinct offenses, not based upon the same transaction, is bad for duplicity, and a demurrer thereto on this ground should be sustained. The plaintiff in error is charged in one count with the sale of intoxicating liquors and also with the sale of an imitation or substitute for intoxicating liquor which contained more than one half of one per centum of alcohol, and which was capable of being used as a beverage.

In the case of Bonitzer v. State, 4 Okla. Cr. 354, 111 Pac. 980, it is said that an information or indictment must charge hut one offense, but when the same acts may constitute different offenses and the proof may be uncertain as to which of the two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the same indictment or information, and that in such cases the information or indictment must show on its face that the separate counts all refer to the one and the same transaction. 'This in effect amounts to but one accusation.. Even where it would be permissible to charge different offenses in the same information or indictment upon the ground that they are all based upon, one and the same transaction, this must be done in separate counts. In other words, it is a direct violation of the statute under any circumstances to chafge two offenses in the same count. For error in overruling the demurrer of plaintiff in error to the information, the judgment is reversed.


source: Caselaw Access Project

license: Public Domain

text:
    EDGAR DYKES v. SATTE.
    No. A-1605.
    Opinion Filed June 14, 1913.
    Appeal from Caddo County Court; C. R. Hume, Judge.
    Bristow & McFayden, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   Appellant was convicted in the county court of Caddo county charged with a violation of the prohibitory liquor' law. The judgment of conviction is reversed by this court from the bench without a written opinion upon the ground of the insufficiency of the evidence.


author: PER CURIAM.

text:
    LOGAN BILLINGSLEY v. STATE.
    No. A-1965.
    Opinion Filed June 17, 1913.
    Appeal from Oklahoma County Court; John W. ITayson, Judge.
    Logan Billingsley was convicted of violating the prohibitory law, and appeals.
    Appeal dismissed.
   PER CURIAM.

Upon showing made by the Attorney General in this case that the plaintiff in error has become a fugitive from justice this appeal is dismissed.


text:
    LOGAN BILLINGSLEY v. STATE.
    No. A-1753.
    Opinion Filed June 17, 1913.
    Appeal from Oklahoma County Court; John W, Hayson, Judge.
    Logan Billingsley was convicted of violating the gambling law, and appeals.
    Appeal Dismissed.
    • Giddings & Glddings, for plaintiff in error.
    'Smith C. Matson, Asst. Atty. Gen., and C. J. Davenport, for the State.
   PER CURIAM.

Plaintiff in error, Logan Billingsley, was convicted at the January, 1912, term of the county court of Oklahoma county, on a charge of conducting a roulette game, and his punishment fixed at a fine of five hundred dollars and imprisonment in the county jail for a period of sixty days. The Attorney General has filed a motion to dismiss the appeal on the ground that the plaintiff in error is a fugitive from justice and cannot be made to respond to 'the judgment of the dourt in this case. It has beeii repeatedly held that when a person appeals to this court from a conviction had in a trial court, and subsequent to the appeal and prior to the determination of such appeal, such person- became a fugitive from justice, the appeal will be dismissed. When a person expects - this court to review errors complained of in a trial court, he must stay within the jurisdiction of the court and where he can he made to respond to any judgment- rendered on appeal. The appeal in this case is dismissed with direction to the cleric to issue mandate forthwith so that should the plaintiff in error be apprehended the county court of Oklahoma county can enforce the judgment by it heretofore rendered.


text:
    Ex parte WALTER HOWARD.
    No. A-1622.
   Original petition for habeas corpus, dismissed on request of petitioner, June 25, 1913.


author: FURMAN, J.

text:
    BILL KELLY v. STATE.
    Appeal from Ottawa County Court; W. Y. Quigley, Judge.
    Thompson & Mason, for appellant.
    Smith C. Matson, Asst. Atty. Gen., for the State.
   FURMAN, J.

Appellant was convicted in the county court of Ottawa county for the offense of selling whisky, and his punishment was assessed at a fine of fifty dollars and thirty day’s confinement in the county jail. There is a square conflict in the evidence. If the testimony for the state is true the verdict is proper.' If the testimony for the defense is true appellant should have been acquitted. But this was a question for the jury to' determine, and as they have accepted the testimony for the state and found appellant guilty, we have no right to look behind their verdict. The judgment of the lower court is therefore affirmed. The mandate in this case will be stayed until the 1st day of October, 1913.

ARMSTRONG, P. J., and DOYLE, J. concur.


text:
    RUTH SMITH v. STATE.
    No. A-1572.
    Opinion Filed June 25, 1913.
    Appeal from Garfield County Court; Winfield Scott, Judge.
    W. O. Cromwell, for appellant.
    Joseph L. Hull, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a conviction for keeping a house of ill fame in the city of Enid. It is a companion ease with that of Mrs. B. Putman v. 'State, No. A-1583, ante, decided at the present term. All of the questions of law presented in this case were discussed and decided in the Putman case. It is therefore not necessary to repeat them here. The evidence sustains the verdict. The judgment is therefore in all things affirmed.

The mandate will issue, without delay.


text:
    LEWIS DAVIS v. STATE.
    No. A-1653.
    Opinion Filed June 25, 1913.
    Appeal from Ottawa County Court; W. Y. Quigley, Judge.
   PER CURIAM.

This is an appeal from a conviction for a violation of the prohibitory liquor law from Ottawa county. The record does not contain a case-made but consists only of a transcript •of the record. A careful examination discloses the fact that the con-vietion in this case is in all respects regular. This appeal was evidently taken for delay only. The appeal is therefore affirmed with directions to the clerk to issue the mandate without furuier delay.


author: •PER CURIAM.

text:
    OTIS TITTLE et al. v. STATE.
    No. A-1647.
    Opinion Filed June 25, 1913.
    Appeal from Craig County Court; S. F. Parks, Judge.
    James 'S. Davenport, for' plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen. and C. J. Davenport, for the State.
   •PER CURIAM.

This appeal is prosecuted from a conviction had in the court court of Craig county, in which plaintiffs in error were found guilty of violating provisions of the prohibitory law, and the punishment of Otis Tittle was assessed by the jury at confinement in the county jail for six months, and that he pay a fine of five hundred dollars, and the punishment of Charles Webb was assessed by the jury at confinement in the county jail for thirty days and that he pay a fine of fifty dollars.

January 15th, 1912, the court pronounced judgment and sentenced the defendants in accordance with the verdict. At the last term of this court the appeal of the defendant Otis Tittle was dismissed. See ante..

Of the various errors assigned it is only necessary 'to consider the one, that the information is bad for duplicity, and that for this reason the court erred in overruling the demurrer thereto. The defendant is charged with the sale of intoxicating liquor, and also with the sale of an imitation and substitute for intoxicating liquor, thereby charging two offenses, and is bad for duplicity. For error in overruling the demurrer to the information, the judgment is reversed as to the defendant Charles Webb.


text:
    OTIS TITTLE AND T. W. PRITCHETT v. STATE.
    No. A-1646.
    Opinion Filed June 25, 1913.
    Appeal from Craig County Court; S. F. Parks, Judge.
    James S. Davenport, for plaintiff inerror.
    Chas. West, Atty. Gen., Smith C. ■ Matson, Asst. Atty. Gen., and C. J. Davenport, for the 'State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the county court of Craig county, in which plaintiffs in error were found guilty of violating provisions of the prohibitory law, and the punishment of Otis Tittle was assessed by the jury at confinement in the county jail for twelve months, and that he pay a fine of one thousand dollars, and the punishment of T. W. Pritchett was assessed by the jury at confinement in the county jail for sixty days and that he pay a fine of two hundred fifty dollars.

On January 15th, 1912, the county court pronounced judgment and sentenced the defendants in accordance with the verdict of the jury. At the last term of this court the appeal of plaintiff in error, Otis Tittle was dismissed. See, ante.

On the various errors assigned it is only necessary to consider the one, that the information is bad for duplicity, and that for this reason the court erred in overruling the demurred thereto. Plaintiff in error, T. W. Pritchett is charged with the sale of intoxicating liquor and also with the sale of an imitation and substitute for intoxicating liquor in one count. The information therefore charges two offenses and is bad for duplicity. See Pritchett v. State, ante.

Por error in overruling the demurrer to the information, the judgment is reversed as to the defendant, T. W. Pritchett.


text:
    BRANT JONES v. STATE.
    No. A-1662.
    Opinion Filed June 26, 1913.
    Appeal from Love County Court; R. A. Keller, Judge.
    Brant Jones was convicted of unlawfully selling whisky, and appeals.
    Affirmed.
    Eddleman & Graham, for plaintiff in error.
    Chas. West, Atty. Gen., 'Smith C. Matson and E. G.. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the county court of Love county on the 1st day of February, 1912, in which the defendant' was found guilty of unlawfully selling intoxicating liquor, to wit: whisky to one B. C. Logston. In accordance with the verdict of the jury he was sentenced to be confined in the county jail for a term of thirty days and to pay a fine of fifty dollars.

The assignments of error relied upon as presenting sufficient grounds for a reversal of the judgment are based on the rulings of the trial court in rejecting evidence. Upon an examination of the record we find no errors affecting’ the substantial rights of the-defendant. The judgment is therefore affirmed.


author: PER CURIAN.

text:
    HENRY BALLARD v. STATE.
    No. A-1633.
    Opinion Filed June 27, 1913.
    Appeal from Cherokee County Court; S. P. Parks, Judge.
    Henry Ballard was convicted of a violation of the prohibition law, and appeal's.
    Reversed.
    J. T. Coursey, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty Gen., and' C. J. Davenport, for the State.
   PER CURIAN.

This appeal is prosecuted from a conviction hhd in the county court of Cherokee county, on an information which charged that “Henry Ballard on the day and date aforesaid at, in' and about his place of residence in the city of Tahlequah, in the county and state aforesaid, did then and there ‘unlawfully have in his possession and keeping, more than one gallon of spirituous liquors.” Upon arraignment the defendant interposed a general demurrer to the information, which was overruled by the court. This-is a prosecution based upon See. 4, Ch. 70, Laws 1910-11. The Attorney General has filed a confession' of error' upon the authority of Ex parte Wilson, 6 Okla. Cr. 461, 119 Pac. 596. The Confession of error is sustained and the judgment is reversed arid the cause remanded with direction to dismiss.


text:
    JACK HEALER v. STATE.
    No. A-1670.
    Opinion Filed June 28, 1913.
    Appeal from Washington County Court; James T. Shipman, Judge.
    J. R. Charlton, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, for the State.
   PER CURIAM.

Jack Healer, plaintiff in error, was convicted of the crime of unlawfully selling whisky and was, on December 1st, 1911, in accordance with the. verdict of the jury, sentenced to be confined in the county jail for sixty days and to pay a fine of two ■hundred fifty, dollars. From this judgment an appeal was attempted to be taken by filing in this court on March 30th, 1912, a petition in .error with case-made. When the cause was called for final submission the Attorney General filed a motion to dismiss the appeal for the reason that said appeal was not taken within the time prescribed by the statute, in that no order was made extending the time beyond the sixty days allowed by law in which to perfect an appeal. For this reason the motion to dismiss the appeal is sustained and the cause remanded to the county court of Washington county with direction to enforce its judgment and sentence.


text:
    HARVEY NEWMAN v. STATE.
    No. A-1669.
    Opinion Filed June 28, 1913.
    Appeal from Washington County Court; James T. Shipman, Judge.
    J. R. Charlton, for plaintiff in error.
    Chas. West. Atty-.- Gen. and.C. J. Davenport, for the State.
   PER CURIAM.

Harvey Newman, plaintiff in error was convicted of the crime of having unlawful possession of intoxicating liquor with the intent to sell the same, and was on the 18th day of November, 1911, sentenced - in accordance with the verdict of the jury to be confined in the county jail for thirty days and pay a fine of fifty dollars. From this judgment an appeal was attempted .to be taken by filing in this court, March 16th, 1912, a petition in error with case-made.

When the case was called for final submission the Attorney General filed a motion to dismiss the appeal for the reason that sa.id appeal was not taken within the time prescribed by the statute, in that no order was made extending the time beyond the sixty days allowed by law within which to perfect an appeal. For this reason the motion to dismiss the appeal is sustained and the "cause remanded to the county court of Washington county with direction to enforce its judgment and sentence therein.


text:
    WILLIAM ASHLEY v. STATE.
    No. A-1652.
    Opinion Filed June 28, 1913.
    Appeal from Woods County Court; W. M. Bickel, Judge.
   PER CURIAM.

William Ashley, plaintiff in error, was convicted of unlawfully selling one pint of whisky to G. W. Davis on or about December 2nd, 1911. On January 20th, 1912, he was sentenced to be confined in the county jail for a period of six months and to pay a fine of fifty dollars. An appeal was perfected by filing in this court, March 16th, 1912, a petition, in error with ease-made. No brief has been filed. No testimony was offered in behalf of the defendant as against the proof on the part of the state that the sale was made ■as alleged. We have examined the record and find no error which will warrant a reversal of the judgment., It is therefore affirmed. ¡Mandate forthwith.


text:
    SAM HOGAN and WALT COOK v. STATE.
    No. A-1752.
    Opinion Filed June 28, 1913.
    Appeal from Garfield County Court; Winfield Scott, Judge..
    Sam Hogan and Walt Cook were convicted of unlawfully selling intoxicating liquors and appeal.
    Affirmed.
    W. O. Cromwell, for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, and E. G. Spilman, Asst. Attys. Gen., for the State.
   PER CURIAM.

This appeal is prosecuted from a conviction had in the county court of Garfield county, on the 2ith day of April, 1912. •The verdict of the jury, omitting the formal parts, is as follows: “We the jury empaneled and sworn to try the issues in the above entitled cause, do, upon our oaths, find the defendants guilty as charged in the information, and assess the punishment of Sam Hogan at ninety days in the county jail and a fine of two hundred and fifty dollars and assess the punishment of Walt Cook at one hundred and eighty days in the county jail and a fine of five hundred dollars. (Signed) Jos. M. McCoy, Foreman.”

An appeal was taken by filing in this court June 1st, 1912, a petition in error with case-made. The questions presented have heretofore been passed upon and determined adversely to the contentions of the learned counsel for plaintiffs in error. It is sufficient to say that the guilt of the plaintiffs in error was satisfactorily proven, and no testimony was offered in this behalf. Finding nothing that would justify a reversal, the judgments of conviction are hereby affirmed and the causo remanded to the county court of Garfield county, with direction to enforce its sentence therein.


text:
    SCOOT SCOTT v. STATE.
    No. A-1720.
    Opinion Filed June 28, 1913.
    Appeal from Cherokee County Court; J. T. Parks, Judge.
   PER CURIAM.

Scoot Scott, plaintiff in error, was convicted of unlawfully selling one pint of whisky to Roscoe Wallace for one dollar, on or about May 1st, 1911. On January 3rd he was sentenced to be confined in the county jail f.or thirty days and to pay a fine* of fifty dollars, and he appeals. No brief has been filed. We have examined the record and find no error which will warrant a reversal of the judgment. It is therefore affirmed.


text:
    F. E. WEETE and SAM JOHNSON v. STATE.
    No. A-1684.
    Opinion Filed June 28, 1913.
    Appeal from Tulsa County Court; N. J. Gubser, Judge. ,
   PER CURIAM.

The plaintiffs in error, F. E. Weete and Sam Johnson were convicted on an information which charged the unlawful possession of intoxicating liquors with the intent to violate provisions of the prohibitory law. On February 5th, 3 912, in accordance with the verdict of the jury, F. E. Weete was sentenced to be confined for thirty days in the county jail and pay a fine of one hundred dollars, and Sam Johnson was sentenced to be confined for thirty days in the county jail and to pay a fine of fifty dollars. No brief has been filed. When the case was called for final submission the Attorney General moved to affirm for failure to prosecute the appeal. The motion to affirm is sustained and the judgments of the county court of Tulsa county are affirmed, and the cause remanded thereto with direction to enforce its judgments therein.


text:
    DAVE CURTIS v. STATE.
    No. A-1651.
    Opinion Filed June 30, 1913.
    Appeal from Osage County Court; C. T. Bennett, Judg-e.
    Dave Curtis was convicted of a violation of the prohibition law, and appeals
    Affirmed.
    Leahy & MacDonaJd, ■ for plaintiff in error.
    Chas. West, Atty. Gen., Smith C. Matson, Asst. Atty. Gen. and Jos. L. Hull, Special Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Dave Curtis, was convicted in the county court of Osage county, upon an information charging him with the unlawful possession of intoxicating liquors, with the intention of violating the provisions ;of the prohibitory liquor laws of the state of Oklahoma, and on the 20th day of January, 1912, in accordance with the verdict of the jury, he was sentenced to be confined for thirty days in the county jail, and to pay a fine of five hundred dollars, and in default of the payment of said fine to be further committed until the payment of said fine is fully satisfied according to law.

The main contention is that the evidence is insufficient to sustain the verdict and judgment. J. R. Swift, city marshal of Bigheart and a deputy sheriff acting in his official capacity searched the defendant’s place of business on the day alleged in the information and found about one hundred bottles of beer in an ice box which he seized. The defendant objected strenuously to his taking the box; that he saw the defendant give beer to four or five persons; that no other business was conducted in the' place and he never saw anything but beer and whisky there. J. G. Copenhaver testified that he had seen beer and whisky in the place and had bought whisky from the defendant there, and saw the defendant sell, barter and give away whisky to others there. In behalf of the defendant, W. B. Jackson testified that the defendant did not object to the taking of the beer, but objected to the taking of the ice box. Defendant did not testify in his own behalf.

This evidence is to our minds, conclusive that the defendant did have the possession of intoxicating liquors with the intention of violating the prohibitory law by selling the same, and we find • no error committed on the trial of the case that would require a reversal of the judgment. The judgment of conviction is therefore in all things affirmed.


text:
    B. C. YOUNG v. STATE.
    No. A-1707.
    Opinion Filed June 30, 1913.
    Appeal from Stephens County Court; W. H. Admire, Judge.
    Wilkinson & Morris, for plaintiff in error.
   PER CURIAM.

B. C. Young, plaintiff in error, was convicted of unlawfully selling one pint of whisky to H. S. Roberts, on October 4th, 1.911, and in accordance with the verdict of the jury he was on January 22nd, 1912, sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars, and he appeals. No brief has been filed. We have examined the record and find no error which will warrant a reversal of the judgment. It is therefore affirmed.


text:
    EVERETT AUSTIN v. STATE.
    No. A-1756.
    Opinion Filed June 30, 1913.
    Appeal from Ottawa County Court; W. Y. Quigley, Judge.
    Thompson & Mason, for plaintiff in error.
    Chas. West, Atty. Gen., and C. J. Davenport, for the State.
    Everett Austin was convicted of a violation of the prohibitory law, and appeals.
    Affirmed.
   PER CURIAM.

The plaintiff in error, Everett Austin, was convicted under an information which charged the unlawful sale of a half pint of alcohol. It was the judgment and sentence of the court that he be confined in the county jail for ninety days and pay a fine of three hundred dollars. The judgment and sentence was entered April 9, 1912. To reverse the judgment this appeal is prosecuted, prom an examination of the record it appears that the complaining witness was the only witness who testified in the case. His testimony, that he purchased one half pint of alcohol from the plaintiff in error on the street, in Miami, Ottawa county, is uncontradicted.

Upon a'careful examination of the record our conclusion is that this appeal is without merit. It appears that the plaintiff in error had a fair trial. The judgment of the county court of Ottawa county is affirmed. Mandate forthwith.


author: POWELL, J.

text:
    ANDERSON v. STATE.
    No. A-11000.
    Sept. 7, 1949.
    (209 P. 2d 721.)

      Hughes, Ogden & Ogden, Guymon, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

John A. Anderson was charged in the district court of Texas county with the crime of murder; was tried, found guilty of manslaughter in the first degree, and sentenced to serve four years and three months in the reformatory at Granite. From this judgment and sentence he has appealed.

In his brief, defendant sets out five propositions for reversal of this case. They are:

“Proposition No. 1: The defendant in murder prosecution had the right to ask each juror in his voir dire examination whether he believed in the law of self-defense and the law excusing, upon certain prescribed conditions and circumstances, the killing of a human being by another person and whether he believed a defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt.
“Proposition No. 2: In a prosecution for murder, the admission in evidence of 6% pints of liquor found by officers in defendant’s home after he was placed in jail was prejudicial error as it is fundamental that the State cannot show that the accused has committed other crimes so as to force a man to stand trial for two crimes which are wholly unconnected.
“Proposition No. 3: It is the duty of the trial court in a prosecution for murder to instruct the jury as to the law of the case on trial, and this includes a definition of the offense and included offenses sufficient to inform the jury what facts are necessary for the proof to establish in order to justify them in finding a verdict of guilty.
“Proposition No. 4: In a prosecution for murder where self-defense is pleaded, it is not necessary for a jury to believe that a defendant’s cause of apprehension of danger was reasonable before they can acquit him; neither is it necessary for them to find that his defense has been established by the evidence before they can acquit him, but it is their duty to find him not guilty if there exists a reasonable doubt as to whether he acted in self-defense.
“Proposition No. 5: In the instant case the verdict of the jury was clearly against the law of the case and the evidence and cannot be sustained.”

The information charges this defendant with having murdered one Bernice Bartley on October 30, 1946, by shooting him. Defendant did not deny having killed the deceased, and his plea was self-defense.

The record discloses that the defendant was by trade a “pipe liner”, and at the time of the tragedy was working for the Fulton & Brady Pipe Line Construction Company at Guymon, Okla. He was living alone at the Guymon courts, in a one-room cabin. The deceased also lived there, in an adjoining cabin. The defendant had been injured in World War I, and at the time of the difficulty suffered a 50 per cent disability in both knees, due to such injury.

The defendant testified that he returned to his cabin, from his work, about 7 o’clock in the evening of the trouble, cooked his evening meal and went to the rest room to take a bath. As he returned to his cabin, about 9 o’clock, Bartley was leaning against the cabin, and accused the defendant with having “run his girl off.” Bartley was drunk, and defendant told him he did not know anything about his girls, and went on into his cabin and sat down to remove his shoes. Bartley followed him in, cursing and accusing defendant with being responsible for his girl leaving the camp, and finally knocked the defendant down, and “clinched him.” Defendant testified that he thought Bartley had a knife and was trying to cut him. They fought on the floor, and defendant got loose and got up, and Bartley barred the only door so that he could not get out. He testified that Bartley kept repeating that he was going to kill defendant before he got out of the cabin. Defendant reached for his gun, which was on a shelf, and testified that he shot three times over Bartley’s head, in an effort to frighten him, and make him leave the cabin, and that when Bartley came at him again, he shot to hit him. When shot Bartley did not say a word, but turned and ran out the door to his own cabin. Defendant did not know how badly he had hurt Bartley. He reloaded his gun, locked Ms cabin and immediately left. He went to the home of Clyde Parten, with whom he worked, and told him what he had done, and asked him to take him to the sheriff’s office. Mr. Parten lived in Gnymon and knew the officers, and defendant did not. When they got to the sheriff’s office, no one was present, and they returned to the camp and found the sheriff and highway patrolman there, and defendant gave himself up. Defendant knew the deceased, had never had trouble with him before, liked him, but knew he Avas quarrelsome when drinking, and considered him dangerous. Bartley had showed him an array of knives he owned, and defendant had one time seen him try to cut a man.

The State used seven Avitnesses. Eldon R. Walsh, a highAvay patrolman, testified that he received a call from the Guymon Courts, picked up the sheriff and went out, arriving there about 9:15, in the evening. Defendant’s cabin was locked, and they went to the cabin of deceased, and found him lying on the floor, dead. There were two other men in the cabin, on the bed, and they both said they were asleep. A few minutes after they arrived the defendant came up and give himself up to the sheriff. He testified to finding bullet holes in the cabin, and his testimony relative thereto was practically the same as that of the sheriff.

Ed Smith, who was sheriff of the county at the time, corroborated the testimony of the patrolman. He stated that the defendaut told him the gun he had used Avas in Mr. Parten’s pick-up truck. It was turned over to the sheriff, fully loaded, and was introduced in evidence. Defendant told him that he had shot three times over the head of Bartley in an effort to frighten him. away, and finally shot to hit him. He testified to finding three bullet holes in the cabin as described by defendant, one in a rafter having been shot about straight up, one in the ceiling and the other above the door. They found a box of shells for the gun. The trial court, over the objections of counsel for the defendant, permitted to be introduced in evidence six and one-half pints of liquor identified as having been found in defendant’s cabin by the officers on a second trip to the cabin following the killing.

Willis Forbes, chief of police at Guymon, went with the sheriff and patrolman when they returned to search the cabin after taking defendant to jail, and corroborated the sheriff and patrolman with reference to the location of the bullet holes in the cabin.

Kenneth E. Smith, caretaker at the cabins, testified that he heard the shots and called the officers. He had heard a scuffle in defendant’s cabin before he heard the shots.

Dr. D. S. Lee was called to the courts, but the body of deceased had been taken to the mortuary, and he went there and examined it. He described the one bullet wound which had killed Bartley. He also testified to examining the defendant the next morning, that his knees were bruised and one was swollen, and that he prescribed for defendant.

Mr. Smith was recalled and identified defendant’s gun, the shirt worn by the deceased, and the whisky found; and Guy Mercer, the sheriff at the time of the trial, testified that the gun, the shirt and whisky introduced in evidence were the same articles turned over to him by the former sheriff as evidence in this case.

E. G. Moore, the funeral director, testified to taking the body of deceased to his mortuary, and identified the shirt as the one taken from the body.

Bert Grace testified for the defendant that he had known Bartley for 20 years, that he got drunk often, and was “pretty rough when drinking”, and that he saw him take his knife out at one time in a fight. The court at first excluded this testimony, and later admitted it.

J. L. Burgess testified that he saw Mr. Bartley between 3 and 4 o’clock in the afternoon of the tragedy, and that he was drunk at the time, and that he got drunk often.

G. J. McDonald had known Bartley 12 years, and would testify he tried to cut a man one day in a fight while he was drunk.

Pink Sanders had known defendant ten years, his reputation was good, and he did not drink.

Clyde Parten worked with defendant, testified defendant got along well with the men with whom he worked, he never saw defendant drinking, and corroborated defendant’s statement about taking him to the sheriff’s office, and returning to the cabins where defendant gave himself up.

The state did not just introduce evidence to prove the death of Bernice Bartley and that defendant caused the death, but went further, used seven witnesses, and the proof on the part of the prosecution tended to show that the crime committed only amounted to manslaughter, or that the defendant was justifiable. See Tit. 22 O.S.A. § 745.

After a consideration of the entire record in this case, we are convinced that the defendant, John A. Anderson, was deprived of substantial rights in his trial in the district court.

Upon trial of this case, in instruction No. 12, the court defined manslaughter in the first degree as follows:

“Homicide is manslaughter in the first degree, as applied to this case, it is as follows: When perpetrated without design to effect death, by means of a dangerous instrument.”

An exception to this instruction was properly reserved at the time it was given. The statutory definition, Tit. 21 O.S.A. § 711, is as follows:

“Homicide is manslaughter in the first degree in the following cases: * * * 2. When perpetrated'without a design to effect death and in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as to constitute excusable or justifiable homicide (Italics ours.)

It is true that there was nothing in the evidence to indicate any heat of passion nor any evidence that the killing was done in a cruel or unusual manner, and the omission of such elements could not under the facts prejudice the rights of the defendant, but defendant’s defense was based upon the claim of self-defense, and therefore justifiable homicide, and the defendant was entitled to have the crime of manslaughter in the first degree to include the necessary clause: “unless it is committed under such circumstances as constitute excusable or justifiable homicide.”

It is true that instruction No. 13 covered justifiable homicide, but if the jury in considering instruction No. 13 applied the rule announced by the court in instruction No. 12, quoted above, it was bound to find the defendant guilty of manslaughter in the first degree by his own testimony. It could do nothing else. It did find him guilty of manslaughter in the first degree. And although instruction No. 13 is subject to criticism for not containing an instruction as to reasonable doubt, the jury could have acquitted the defendant, under said instruction, if it had found said assault was committed under such circumstances as constitute justifiable homicide. Instructions 12 and 13 cannot be harmonized.

Said the court, Furman, P.J., in Price v. State, 1 Okla. Cr. 358, at page 388, 98 P. 447, at page 460:

“We concede the contention of the state that instructions are to be construed as a whole, and if, when so construed, they clearly and correctly state the law, then the instructions are sufficient. But this does not mean that an erroneous instruction upon a material issue can be cured by giving a correct instruction upon the same question in another portion of the instructions. Can instructions which are self-contradictory be harmonious and sufficient? Who can tell which instruction was followed by the jury? If the court did not harmonize the instructions given, how can it be expected that the jury could or would do so? If juries are to pass upon the sufficiency of instructions, then are they not the judges of the law as well as the facts? Instructions should be clear, explicit, and free from ambiguities and contradictions; otherwise they may confuse and mislead the jury.”

Among other assignments of error relied upon for a reversal of this judgment, being defendant’s Proposition 5, is the giving over the objections and exceptions of the defendant of instructions Nos. 4, 5, 8, 9 and 13, having to do with self-defense. We have carefully read these instructions and find them substantially correct, except that the court should have gone further in instruction No. 4, and informed the jury that if the evidence was such as to raise in their minds a reasonable doubt as to whether or not the defendant at the time of the homicide had reasonable grounds to apprehend a felony was about to be committed on or against him, and acted upon reasonable appearances of danger of then receiving great bodily harm or death at the hands of his assailant, then the jury should resolve that doubt in favor of the defendant, and acquit him.

Instructions Nos. 5, 8, 9 and 13 are subject to the same criticism as No. 4, in that none of them refer to the matter of reasonable doubt. The jury should have been further instructed that if the evidence was such as to raise in their minds a reasonable doubt as to whether or not the defendant was justified in acting in his own necessary self-defense at the time he fired said shot, they should resolve such doubt in favor of the defendant, and acquit him.

The defendant is only required to introduce such evidence as will raise in the minds of the jury a belief that he acted in his own' necessary, or apparently necessary, defense, or will create a reasonable doubt thereof. In either case he should be acquitted.

See Johnson v. State, 5 Okla. Cr. 13, 113 P. 552; Saulsbury v. State, 83 Okla. Cr. 7, 172 P. 2d 440; Grindstaff v. State, 82 Okla. Cr. 31, 165 P. 2d 846.

And the general instructions, although correct statements of the law, did not cure the failure to give in connection with the instructions covering self-defense (Nos. 4, 5, 8, 9 and 13) at least one instruction covering reasonable doubt.

Said Matson, J., in Brown v. State, 15 Okla. Cr. 64, 175 P. 66, 69:

“That the instructions must be considered as a whole, and, when so considered, if they correctly embody the law of the case, no error prejudicial to the defendant has occurred. That doctrine has been approved by this court in numerous cases, and it is not our policy to depart therefrom as a general principle. But ‘self-defense’ is an affirmative defense. The- statute places a peculiar burden upon a defendant in a homicide case where he attempts to justify a killing; and where the court by a separate instruction attempts to state the law of that defense as applied to the particular facts of the case, the burden required of the defendant should be properly safeguarded in the instruction itself. The jury is not required to believe such defense before an acquittal may follow; it is sufficient if such defense of itself raises a reasonable doubt of guilt, and in addition the jury may acquit if, on the whole case, a reasonable doubt of guilt exists. Such a doubt may arise from a consideration of all the evidence, and not necessarily from the defense interposed.”

See, also, Price v. State, supra.

In Proposition No. 1 defendant contends that the court erred in sustaining objections to certain questions counsel sought to ask the jurors on voir dire examination, to wit:

“Do you believe that a man has the right to defend his life, to the extent of killing, another man, if he believes he is in imminent danger of losing his own or suffering bodily harm?”

The court properly overruled the above question for the reason that it did not properly state the law of self-defense. The mere fact that a man may believe that he is in imminent danger of losing his life or suffering serious bodily harm does not justify him in killing a man. See Tit. 21 O.S.A. § 733 (2) defining justifiable homicide.

Counsel asks the further question:

“Do you understand that a defendant is presumed to be innocent until his guilt is established beyond a reasonable doubt?”

The court sustained an objection by tbe county attorney to this question. Counsel for defendant did not seek to question the jurors as to whether or not they would be governed by the instructions that would be given by the court covering self-defense and covering the burden of proof, or to reframe his question to explore the possibility of bias and prejudice by the jurors. The jurors might have been asked whether any might be conscious of bias and prejudice that would cause them to think a man guilty simply because he was charged with an offense of the law.

A liberal latitude should be given the defendant in the examination of jurors on voir dire to the end that it may be ascertained whether there are grounds for challenge for either actual or implied bias; also to enable the defendant to exercise intelligently his peremptory challenges. Temple v. State, 15 Okla. Cr. 176, 175 P. 733.

We do not hold that it constituted error by the court on voir dire in overruling the questions asked.

In Proposition No. 2, the defendant complains that it constituted reversible error on the part of the trial judge in admitting in evidence over the objections and exceptions of the defendant, six and one-half pints of whisky found in the cabin of the defendant by the officers.

A careful reading of the entire record fails to show any evidence remotely connecting the whisky with the crime charged. There was no evidence that the defendant had been drinking at the time of the killing, or that the difficulty arose over the whisky. The state contends that the defendant could not have been prejudiced by the admission of the liquor because the various witnesses testified to tlie finding of the whisky without any objection whatever on the part of counsel for defendant. Counsel for defendant does not complain of the mere statement of the witnesses as to what was found in the cabin, but did object and except to the introduction in evidence of the six and one-half pints of whisky, and has here assigned the same as reversible error.

The defendant, of course, waived any error in permitting, without objection offered, the witnesses to testify as to finding whisky in his cabin, but such failure did not justify the admission over defendant’s objection and exception, of the liquor in evidence.

This question was before the court in Johnson v. State, 73 Okla. Cr. 370, 121 P. 2d 625, 633, being a prosecution for rape, and where a whisky still had been found on the defendant's premises* and the trial court permitted the still to be introduced into evidence. The court held this to be reversible error. The court stated:

“It is fundamental [error] that the state cannot show that the accused has committed other crimes so as to force a man to stand trial for two crimes which are wholly unconnected.” And see Hall v. State, 67 Okla. Cr. 330, 93 P. 2d 1107.

We therefore hold that the errors hereinbefore pointed out were material, and the defendant should have a new trial. The judgment of the lower court is therefore reversed, and the cause is remanded for a new trial.

JONES, P. J., and BRETT, J., concur.


author: BRETT, J.

text:
    MILLER v. STATE.
    No. A-10979.
    Sept. 14, 1949.
    (209 P. 2d 890.)
    John L. Ward, Jr., and Elmore A. Page, Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., and Elmer Adams, Co. Atty., Tulsa County, Tulsa, for defendant in error.
   BRETT, J.

This matter comes on, upon petition for rehearing, the original opinion having been rendered on the 4th day of May, 1949, Miller v. State, 89 Okla. Cr. 200, 206 P. 2d 245, 246. In that opinion the judgment and sentence of the lower court was affirmed. Therein the late Judge Barefoot said:

“The only serious question raised by the defendant in his assignments of error is that the court erred in giving instruction No. 8.”

The said instruction reads as follows, to wit:

“No. 8: You are instructed that the amount of intoxicating liquor found in the possession of the defendant, if you find any was found in his possession, is a proper circumstance for you to take into consideration in connection with all the other facts and circumstances in the case, in determining whether or not it was the intent of the defendant to illegally dispose of said liquor in violation of the prohibitory liquor laws of the State of Oklahoma.
“You are instructed that the possession of more than 1 quart of whisky is prima facie evidence of intent to sell, but that such prima facie evidence may be rebutted by proof on the part of the defendant that there was no intent on his part to sell the same.”

In support of this contention, the defendant cites the cases of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625, and Savalier v. State, 85 Okla. Cr. 87, 185 P. 2d 476. In relation to the above instruction Judge Barefoot further said:

“In the above cases the court had under consideration an instruction given by reason of Tit. 37 O. S. 1941 § 82, which provides that the having in one’s possession in excess of one quart of intoxicating liquor ‘shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquor.’ The court held that the giving of an instruction somewhat similar to the instruction No. 8 in the instant case, was erroneous, as placing the burden of proof upon the defendant, and those cases were reversed for that reason. In each of these cases an exception was taken to the giving of the instruction. We have carefully examined the record in this case, and do not find that any exception was taken by defendant to the giving of any of the instructions, and no requested instruction was asked calling the attention of the court to this proposition.”

Since the rendition of said opinion the court has discovered that an application was filed on February 23, 1949, which was not called to its attention, until after the rendition of said opinion on May 4, 1949. In said application it appears that through some unintentional circumstance the defendant’s objection and exception to said instruction No. 8 were not contained in the case-made herein submitted. It being made to appear by the affidavit of Fayetta Warner, the court reporter, that an objection and exception was made to said instruction No. 8, said case-made by leave of the court has been corrected and amended in conformity therewith, with the full knowledge and consent of the county attorney of Tulsa county, Okla. It therefore appears that said case should be considered upon the basis, of the corrected and amended record. In light of prior decisions in similar cases, Judge Barefoot orally expressed his opinion to his associates before his demise that he would have reversed and remanded the case at bar had said matter been called to his attention at the time of the rendition of the original opinion herein. Such view is in keeping with the rule as originally announced by him, and subsequently reiterated in Hughes v. State, supra, written by Judge Barefoot, and followed in Savalier v. State, supra, wherein this court said:

“An instruction which informs the jury that the possession of in excess of one quart of intoxicating liquor is prima facie evidence of an intention to barter, sell or otherwise dispose of the same contrary to law, and further contains this clause: ‘But while this is prima facie evidence of an intent on the part of the defendant to barter, sell or otherwise dispose of the same contrary to law, it is, a rebuttable presumption and can be removed by proof to tbe contrary’ without informing the jury that it does not make it obligatory upon them to convict unless they are satisfied beyond a reasonable doubt, after a consideration of all the evidence, of the guilt of the defendant, is error requiring the reversal of the case.”

For all of the foregoing reasons on petition for rehearing, the said case is reversed and remanded for a new trial.

JONES, P. J., and POWELL, J., concur.


author: JONES, P. J.

text:
    Ex parte OWENS.
    No. A-11234.
    Sept. 14, 1949.
    (209 P. 2d 892.)

      Carl E. Owens, pro se.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   JONES, P. J.

This is an original action in habeas corpus instituted by the petitioner, Carl E. Owens, for the purpose of securing his discharge from imprisonment in the State Penitentiary.

The verified petition alleges that in May, 1949, the petitioner being charged with the crime of forgery in the second degree in the district court of Oklahoma county, entered his plea of guilty to said charge and was sentenced to serve a term of imprisonment in the State Penitentiary; that the district court of Oklahoma county was without jurisdiction to sentence petitioner for the reason that he was in the constructive custody of the United States Government under a sentence pronounced in the United States District Court for the Northern District of Texas on May 19, 1945, sentencing the petitioner to serve a term of five years’ imprisonment in the United States Penitentiary; that your petitioner was committed to the United States Penitentiary at Leavenworth, Kan., on May 29, 1945; that on January 5, 1949, the petitioner having served two-thirds of the sentence was given a conditional release by the United States Board of Parole, but that under said conditional release he was obligated to make reports and was under the custody, control, jurisdiction, and supervision of said United States Board of Parole until he was finally discharged. The conditional release was attached to the petition and made a part thereof. The prisoner further alleges that since he was a prisoner of the United States Government, the State of Oklahoma was without jurisdiction to take him into custody and sentence him for said crime of forgery.

In the response the warden alleges that he holds the petitioner in his custody pursuant to the lawful judgment and sentence of the district court of Oklahoma county pronounced on May 6, 1949, wherein the petitioner was sentenced to serve two and one-half years’ imprisonment for the crime of forgery in the second degree. It is further- alleged that the respective right of the United States Government to the custody and control of the petitioner, if they had such right, was expressly waived by the United States District Attorney who appeared before the district court of Oklahoma county at the direction of the Attorney General of the United States and consented to the prosecution in the state court and waived the jurisdiction of the federal government over the person of petitioner.

The respondent further contends that the question of the right of the United States and of the State of Oklahoma to the custody of petitioner is a question which cannot be raised by petitioner, but only by the sovereignty having or claiming right to his custody.

The petitioner contended that under the authority of Grant et al. v. Guernsey, 10 Cir., 63 F. 2d 183, wherein it was held that a criminal prosecution instituted in the state court during the period of probation under federal court sentence, without first obtaining permission from the federal court, was unauthorized, and that the prisoner was entitled to his discharge until the federal sentence had been fully satisfied.

We think the petition should be denied for these reasons :

First, the certificate of conditional release expressly provides:

“This certificate of conditional release shall not prevent the delivery of the prisoner to authorities of the federal government, or of dny state otherwise entitled to his custody.”

Second, if the conditional release under which the prisoner was discharged from the United States Penitentiary at Leavenworth constituted a parole, so that it could be said that the petitioner was still a federal prisoner and under control of the federal government, the appearance of the United States District Attorney at the direction of the Attorney General of the United States before the district court of Oklahoma county, and the giving of his consent to the prosecution of prisoner on the state charge, constituted a temporary release of the control of the federal prisoner while he was being tried on such state charge. Ponzi v. Fessenden, 258 U. S. 254, 42 S. Ct. 309, 66 L. Ed. 607, 22 A.L.R. 879.

Third, it is unquestionably the rule that when the court of one sovereign takes a person into its custody on a criminal charge, he remains in the jurisdiction of that sovereign until it has wrought its function. However, as was said in the case of Stamphill v. United States, 10 Cir., 135 F. 2d 177, 178:

“But any wrongful deviation or departure in that respect merely invades the rights of the state. It does not impinge upon any right of the individual. The prior and exclusive jurisdiction and custody of the state gives him no immunity from prosecution and' punishment by the United States.”

It is further held in said case:

“A sovereign having the prior and exclusive jurisdiction and custody of a person for violation of its penal laws may voluntarily surrender him to the other for the purpose of trial on a criminal charge, and in such circumstances the question of jurisdiction and custody is essentially one of comity between the two sovereigns, not a personal right of the individual. Ponzi v. Fessenden, supra; Wall v. Hudspeth, supra [10 Cir., 108 F. 2d 865]; Lunsford v. Hudspeth, supra [10 Cir., 126 F. 2d 653]; Farnsworth v. Zerbst, supra [5 Cir., 97 F. 2d 255]; Cato v. Smith, 9 Cir., 104 F. 2d 885, certiorari denied 308 U. S. 608, 60 S. Ct. 177, 84 L. Ed. 508.”

The writ of habeas corpus is denied.

BRETT and POWELL, JJ., concur.


text:
    PHINNEY v. STATE.
    No. A-11049.
    Sept. 14, 1949.
    (210 P. 2d 205.)

      H. Tom Right, Jr., Claremore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

The defendant, Lloyd Phinney, was charged by an information filed in the county court of Rogers county for the crime of unlawful possession of intoxicating liquor, which offense was alleged to have been committed in said county on the 14th day of November, 1947, by unlawfully having in his possession 83 pints and 42 fifths of whisky. The case was tried to a jury, and the defendant was convicted and punishment assessed by the jury at a fine of $200 and 30 days in jail. Thereafter judgment and sentence was by the court rendered accordingly.

The defendant on appeal sets out eleven assignments of error, which are involved in argument of two principal propositions. On trial before a jury the state produced two witnesses, Glen Pike and O. K. Bevins, who were investigators with the Department of Public Safety. The defendant, Lloyd Phinney, did not take the witness stand, and did not put on any testimony, but relied solely upon a demurrer to the evidence.

The evidence brought out that on the night of November 13, 1947, the two arresting officers went to “The 66 Club”, located southwest of Claremore on U. S. Highway 66, for the purpose of making an investigation relating to the sale or possession of liquor. They testified that when they drove up to the northwest corner of the building, the door was standing about half open and their carlights shown on five or six empty cases. One case was on the floor and had been opened, and was half full of whisky, which was in plain view of the officers. They further testified that they went around to the main entrance and went inside and obtained a mixed drink from a fellow by the name of Handley. They testified that they saw displayed in the building a federal liquor license in the name of Lloyd Phinney, but they did not state what address was on the license, and the license was not offered in evidence. The proof showed that the defendant was not present at “The 66 Club” at the time the officers were there. They seized the whisky in question and placed Handley under arrest, and delivered the whisky to the sheriff of Rogers county. The only evidence introduced to connect Phinney as being the operator of “The 66 Club” or the owner of the whisky was the federal license, not introduced in evidence, and the testimony of one officer that he had been in this place on another occasion and had talked to Mr. Phinney about gambling. How long prior to the raid in question was not stated. There was no testimony that Phinney had admitted being the operator of the Club. An attempt was made to prove by one of the officers that Handley, the bartender, had said to the officers that the whisky found belonged to the defendant, Phinney, but this evidenec was properly ruled out as being hearsay. No employee of the Club was called as a witness to show who was operating the business, and there was no evidence as to whom the personal property was assessed, who was paying the sales tax, personal tax, or in whose name other licenses, if any, might have been. It was shown by the evidence that the officers did not have a search warrant for the place.

The 66 Club was a public place, the officers had a right to be there, and a search warrant, under the evidence, was unnecessary. See: Glance v. State, 89 Okla. Cr. 1, 204 P. 2d 296, and particularly the cases therein cited; also Passmore v. State, 87 Okla. Cr. 391, 198 P. 2d 439.

Counsel for defendant argues as his main proposition :

“That the search, seizure aud arrest as set forth in the complaint in the above entitled cause, and as testified to, was unlawful and the testimony of the witnesses was wholly inadmissible for the reason that it covered acts beyond the duties, authority and power of the Highway Patrol of the State of Oklahoma, which are set forth in Title 47 O.S.A. § 366.”

Counsel then quotes the entire statute. It became effective April 20, 1937.

The defendant first argues that the court erred in overruling the motion to suppress evidence. There is nothing in the record to show where any evidence was introduced by the defendant in support of the allegations of his motion. The burden rested upon the defendant to prove the allegations of his motion to suppress. This objection is without merit. See: Plumlee et al. v. State, 78 Okla. Cr. 201, 146 P. 2d 139.

But defendant further points out that the only evidence of the state, and all the evidence, was that of two investigators of the Department of Public Safety, and it is argued that they exceeded their authority and power in seizing the liquor in question and in arresting the defendant, and for such reason, the court erred in refusing to sustain the defendant’s motion to suppress the evidence. This proposition has been by this court decided contrary to the contentions of the defendant. See: Mitchell v. State, 74 Okla. Cr. 416, 127 P. 2d 211, holding:

“Under Title 74, § 149, O. S. 1941, the officers and members of the State Highway Patrol and such other officers and investigators as the Commissioner of Public Safety shall designate shall have the authority of other peace officers, including the right and power of search and seizure, but excluding the service of civil process.”

This rule has been approved in Bowdry v. State, 82 Okla. Cr. 119, 166 P. 2d 1018, and Winger v. State, 88 Okla. Cr. 174, 201 P. 2d 264.

Defendant calls attention to Tit. 47 O. S. 1941, subdivision 10 of sec. 366, sec. 16, ch. 50, art. 4, p. 330, S. L. 1937, reading:

“State Highway Patrolmen shall not have the right or power of search nor shall they have the right or power of seizure, except to take from any person under arrest or about to be arrested deadly or dangerous weapons in the possession of such person. No State official shall have any power, right or authority to command, order or direct any Patrolman to perform any duty or service not authorized by this Act.”

Defendant contends that the above statute that became effective April 20, 1937, has not been repealed and is the law in Oklahoma at this time, and that by reason thereof the Department of Public Safety is without right or power to search for or to seize intoxicating liquors. The cases that we have cited above do not give consideration to the above subdivision of 47 O.S.A. § 366.

The Attorney General calls attention to the fact that on March 21, 1939, Senate Bill 31 was enacted, Ch. 24, Art. 6, p. 77, S. L. 1939, and being 74 O. S. 1941 § 149. The bill was entitled:

“An Act abolishing the Bureau of Criminal Identification and Investigation; transferring the duties, records, equipment, supplies, furniture and property of said Bureau to the Department of Public Safety; imposing further duties upon and vesting further powers in the Department of Public Safety; repealing Sections [4731 to 4143] and [4146 to 4148] of Oklahoma Statutes, 1931.”

We are faced with the fact though the Act expressly repeals certain sections above set out, it does not contain a general clause repealing all acts or parts of acts in conflict therewith. There is a conflict in the provisions of said. Acts. We would point out that the Act of 1937 pertained strictly to the State Highway Patrolmen and was intended to limit their powers and duties in making arrests, searches and seizures, and clearly the Legislature did not intend by such Act to limit the powers and duties of Investigators of the Bureau of Criminal Identification, which was in 1937 functioning as an independent department of state government.

We hold that the provisions of the 1939 Act prevail over the provisions of the 1937 Act, and repeal the conflicting provisions by implication, and that the power and duties of investigators and members of the Highway Patrol, in making searches and seizures in liquor cases, and in all criminal matters, are governed by the provisions of Sec. 149 of Title 74 O. S. 1941, above quoted.

See: Ex parte Olden, 88 Okla. Cr. 56, 199 P. 2d 228, 229, wherein it is held:

“1. Where the Legislature takes up a whole subject anew, and covers the entire ground of the subject matter of a former statute, and evidently intend it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.
“2. In construing two statutes relating to same subject, later statute purporting to revise entire subject matter and containing additional provisions for carrying into effect same objects, will be construed to repeal by implication the former statute although no reference is made thereto.
"4. Where one was authorized to codify existing laws but the authority was expressly withheld to include any statute which had been 'repealed’ or 'held unconstitutional by the highest courts,’ and such a statute was inadvertently included, adoption of statutes did not have effect of validating the statute inadvertently included.”

We are now confronted with the most difficult question in this case. The defendant in his brief urges:

“That the testimony was insufficient to support a verdict of conviction for the reason that there was no competent testimony connecting the defendant with the place of business nor the possession of the whisky.”

As heretofore indicated, the defendant was not present when The 66 Club was searched, and the closest evidence connecting the defendant with the Club and the whisky was the evidence of Officer Pike, who stated in substance that prior to the seizure of the whisky he had been out at the Club and had talked to the defendant about gambling, but how many days, weeks or months prior to the seizure was not stated, and it was not stated that even in the conversation in question the defendant admitted having any connection with the Club. He might have been a customer. It is true that the officers testified they found a federal liquor license displayed on the back bar and in the name of Lloyd Phinney. The license was not offered in evidence and there was no evidence as to any .address on the license. The defendant was not there. The license could have covered some other location, or the defendant might not at the time have been operating the place, even if at one time he had been the operator. Officer Bivins, on cross-examination finally admitted that his. statement that the whisky belonged to the defendant was based on hearsay.

It would have been so easy to have called some employee of the Club to show who was in charge and who paid the help, or to have shown by competent evidence who paid the rent, if rented, and if Phinney was the owner, who assessed the real and personal property for taxes, and who paid such taxes, who paid the telephone bill, if any telephone, or in whose name any other license might have been. Apparently the prosecution, seems to have just taken the matter for granted as to who was the operator of The 66 Club, and the jury must have known or else been influenced by the hearsay evidence of Officer Bivins, who testified that the man Handley, who served the officers mixed drinks at the Club, had told the officers that the whisky belonged to the defendant, Phinney. This statement by the officer had been properly stricken as hearsay.

A number of times the attorney for the defendant asked the officers questions on cross-examination concerning the ownership of the liquor, where, if answers had been given, the defendant might have been connected as the operator of the Club, but on objection of the county attorney, the officers were not permitted to answer.

We fail to find any competent evidence connecting the defendant with The 66 Club, or as owner of the liquor taken therefrom. It is true that Title 37 O.S.A. § 81 provides:

“The payment of the special tax required of liquor dealers by the United States by any person within this State, except local agents appointed as hereinbefore provided, shall constitute prima facie evidence of an intention to violate the provisions of this Chapter.”

This court, however, has held that it is also necessary for the state to prove the possession of the intoxicating liquor as alleged in the information. See Robinson et al. v. State, 66 Okla. Cr. 139, 90 P. 2d 54, 55.

For the reasons hereinabove stated, the judgment of the county court of Rogers county is reversed and remanded. If the county attorney is able to secure additional evidence showing that defendant.was the operator of “The 66 Club” at the time the liquor was obtained by the two investigators from the Department of Public Safety, then he is authorized to re-try the defendant. If no other or additional proof may be presented, other than as shown by the record herein, it is directed that the action be dismissed.

JONES, P. J., and BRETT, J., concur.


text:
    DAWSON v. STATE.
    No. A-10996.
    Sept. 21, 1949.
    (210 P. 2d 209.)
    J. Percy Hughes, Hobart, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for the State.
   JONES, P. J.

The defendant, Felix Dawson, was convicted in the county court of Kiowa county, with the unlawful possession of intoxicating liquor, and sentenced to serve 30 days imprisonment in the county jail, and pay a fine of $50.

The sole question presented by this appeal is whether the description of the alleged premises of the defendant, which was set forth in the affidavit to obtain the search warrant and also in the warrant, was sufficient to legally authorize the officers to make a search of defendant’s premises and seize the intoxicating liquor.

The description reads:

“Proof by affidavit having been made this day before me by a competent person, to wit: Roy Nicholson, showing that on the 25th day of August 1947 Felix Dawson, whose more full, true and correct name is unknown, in a certain building and on certain premises described as follows, to wit: A SE1/4 of SE1/4 of SE1/4 of SE1/4 of Section 32; Township 7 N. Range 19 W; 2 M.” in said county and state.

Defendant contends that there is no range 19 W; 2 M in Kiowa county, but concedes there is a range 19 W.I.M. The abbreviation W.I.M. is generally recognized in Oklahoma as meaning West of the Indian Meridian. All lands in Oklahoma lie either east or west of the Indian Meridian. All lands in Kiowa county, which is located in the southwest part of Oklahoma, lie west of the Indian Meridian.

The law is well settled that the warrant must so particularly describe the place to be searched that the officer executing the warrant will be able to find the place without the aid of any other information save that contained in the warrant. Davis v. State, 77 Okla. Cr. 129, 139 P. 2d 610; State v. Linthicum, 67 Okla. Cr. 435, 94 P. 2d 857.

If the description had read sec. 32; township 7 N. range 19 W., there would have been no question as to the sufficiency of such description in vieiv of the decisions of this court. The common and accepted meaning of such abbreviations would show that the description was for the premises located in section 32; township 7 north, range 19 west of the Indian Meridian. The question then arises as to whether the addition of the letters 2 M following W, rendered the description invalid. We do not know whether the affiant who executed the affidavit to obtain the warrant was attempting to insert a further description to aid the officers, or whether the letters 2 M were a typographical error and were meant to be I.M. to denote Indian Meridian. There is only one section 32; township 7 N., range 19 in Kiowa county. There is no other range 19 other than range 19 West of the Indian Meridian. The legal description of the premises occupied by the defendant set forth in the warrant is correct, if the trial court’s conclusion that the description pertained to and covered land located in range 19 is correct. There is no other section of land in Kiowa county which had such a similar description so as to have caused confusion in the minds of the officers as to the premises to be searched.

It is our conclusion that the description was sufficient to comply with the law and authorize a search of the premises occupied by the defendant. The letters 2 M would be considered as surplusage and the insertion of these letters whether intentionally or by typographical error, are not such as to defeat the warrant and invalidate the search.

The judgment and sentence of the county court of Kiowa county is affirmed.

BRETT and POWELL, JJ., concur.


text:
    SHAMBLIN v. STATE.
    No. A-11041.
    Sept. 21, 1949.
    (210 P. 2d 197.)
    Talbert B. Westmoreland, Sallisaw, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
   POWELL, J.

This is a misdemeanor case where the defendant, Benton Shamblin, was charged with the crime of pointing a deadly weapon at other persons, on or about the 18 day of April, 1947. He was tried before a jury in the county court of Sequoyah county, Okla., on the 3 day of December, 1947, found guilty, with punishment left to the court, and the court assessed punishment of 90 days in jail, and a fine of $500.

An appeal to this court was duly perfected, brief filed, and thereafter the Attorney General filed herein motion to dismiss appeal on the ground that defendant-had departed from the State of Oklahoma without leave of the court, and that his, whereabouts were unknown. The motion was supported by a letter from the county attorney of Sequoyah county. On hearing before this court on May 11, 1949, the motion of the- Attorney General was overruled and the state was given 20 days to file a brief.

Ordinarily, the appeal herein would be dismissed. See: Hurt v. State, 72 Okla. Cr. 318, 115 P. 2d 919, and Herring v. State, 71 Okla. Cr. 69, 108 P. 2d 193. But a casual examination of the record disclosing so much fundamental error, the court in the exercise of its discretion decided to proceed to a decision of the cause.

The Attorney General has orally expressed to the court his intention not to file a brief because of the strength of the defendant’s position, both from the evidentiary as well as the legal standpoint.

Under the circumstances stated, we have, in the face of the absence from this jurisdiction of the defendant, seen fit to carefully examine the record, and find that the defendant did not have a fair trial, dne to the admission of incompetent evidence concerning other charges then pending against defendant in the county court of Sequoyah county, and by further reason of misconduct on the part of the county attorney in striking or striking at the defendant in the presence of the jury and while defendant was on the witness stand.

For the reasons stated, the judgment of the county court of Sequoyah county is reversed, and the defendant is granted a new trial.

JONES, P. J., and BEETT, J., concur.


text:
    STATE v. STOUT et al.
    No. A-11020.
    Sept. 21, 1949.
    (210 P. 2d 199.)

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and J. M. Springer, Co. Atty., Nowata, for plaintiff in error.
    Irvine E. Ungerman, Tulsa (Charles A. Whitebook, Tulsa, of counsel), for defendants in error.
   BRETT, J.

This is an appeal from the county court of Nowata county, Okla., by the state, on a reserved question of law. On January 2, 1948, there was filed in said county court an information, charging the defendants Charles Stout and Harry McCarthy with the crime of unlawful conspiracy to violate the prohibition laws of the State of Oklahoma. The conspiracy allegedly was made and entered into on December 19, 1947, in Tulsa county, Okla. The charge was laid under the provisions of Title 21, § 421, O.S.A. 1941, reading in part as follows, to wit:

“If two or more persons conspire, either: 1. To commit any crime; * * * they are guilty of a misdemeanor.”

Title 21, § 10, O.S.A. 1941, fixes the punishment at not to exceed one year imprisonment in the county jail or by a fine not exceeding $500, or both such fine and imprisonment. To this information a demurrer was filed alleging among other legal grounds that the information did not charge an offense against the criminal laws of the State of Oklahoma. The county court sustained said demurrer on February 7, 1948. In sustaining the demurrer, with exceptions to the state, the trial court entered its order reading in part as follows, to wit:

“It is further ordered, adjudged and decreed by this court that the action filed herein be dismissed and that the bond posted by the defendants be exonerated.”

The said journal • entry of judgment thereafter further recites:

“Thereupon and in open court, the plaintiff gave notice of its intention to appeal to the Criminal Court of Appeals of the State of Oklahoma, upon the question of law involved herein, * * *.” (Emphasis supplied.)

Under the provisions of Title 22, § 1053, O.S.A. 1941, the state may appeal in the following cases:

“Appeals to the Criminal Court of Appeals may be taken by the State in the following cases and no other:
“1. Upon judgment for the defendant on quashing or setting aside an indictment or information.
“2. Upon an order of the court arresting the judgment.
“3. Upon a question reserved by the State.”

Appeals by the state on the foregoing grounds have been recognized in numerous cases (see annotations to the statute). In State v. Moyers, 86 Okla. Cr. 101, 189 P. 2d 952, 955, we said:

“ * * * An appeal upon a question reserved by the State does not bring up any part of the trial or proceedings of the case except the question reserved and the judgment of acquittal, and if such question reserved is decided in favor of the State, it simply settles that question of law and does not affect the verdict of acquittal.”

Under the law the case must stand or fall on the reserved question. The order of the county court in sustaining the demurrer was predicated upon the cases of Taylor v. State, 38 Okla. Cr. 350, 261 P. 978; Thomas v. State, 38 Okla. Cr. 379, 262 P. 503, and Baldwin v. State, 40 Okla. Cr. 7, 266 P. 795, holding in effect that the conspiracy merges in the overt act, and therefore the prosecution on a charge of conspiracy to violate the prohibition law would not lie, as being unconstitutional and in conflict with art. 1, § 7 of the Constitution (the Prohibition Act), in that the said constitutional provision fixed a minimum penalty of $50 fine and 30 days in jail, while Title 21, § 421, provided no minimum penalty. Subsequent to the rendition of the opinions in the Taylor and Thomas cases, supra, and on September 10, 1941, a unanimous court, including Judge Doyle who wrote the opinion in the Taylor case upon which the opinion in the Thomas and Baldwin cases were predicated, rejected the rule of merger and held that the crime of conspiracy does not merge in the unlawful acts described as overt acts in the information, where the conspiracy is a definite crime and not an essential part of the crime to accomplish that for which the conspiracy was formed. See Burns v. State, 72 Okla. Cr. 432, 117 P. 2d 155, referring to but not overruling Taylor v. State, supra, and then followed McCreary & Hughes v. Venable, 86 Okla. Cr. 169, 190 P. 2d 467, which was handed down on February 25, 1948, controlling herein and overruling Taylor v. State, supra; Thomas v. State, supra, and Baldwin v. State, supra. Such is now the settled law of this, state and the reserved question is moot. But the controversy does not end here. There are two other questions herewith presented, which we deem of such importance as to require an answer.

In the petition in error on the reserved question, the state prays that the judgment and order of the county court be corrected by reversing the same, and in its brief requests a reinstatement of the case for trial on its merits. In the journal entry of judgment sustaining the demurrer, the trial court dismissed the action against the defendants and exonerated them on their bonds. The defendants contend that no appeal was taken from the order sustaining the demurrer, dismissing the information discharging the defendants and exonerating them on their bonds, and that the judgment is final and the case can therefore not be reinstated for trial on its merits. In this connection they cite State v. Young, 20 Okla. Cr. 383, 203 P. 484; State v. Robertson, 28 Okla. Cr. 234, 230 P. 932. The defendants contend that such being the case nothing further than a ruling on the reserved question of law can be accomplished by this appeal. The defendants quote from State v. Bobertson, supra, as follows:

“The state has the right to appeal from an order sustaining a demurrer to an indictment or information. Such an appeal reserves for decision only a question of law where the indictment or information is dismissed and the defendant discharged without direction or permission by the trial court to amend the information or that the indictment be submitted to that or another grand jury.”

And from the body of the opinion 28 Okla. Cr. at page 241, 230 P. at page 934, as follows:

“Whether or not the indictment states a crime as against this defendant in error is not of material importance to the state, as under the statutes as they now exist the state has no charge pending against him as the judgment rendered in this ease by the trial court constituted a complete bar to any subsequent prosecution against him for the same alleged offense.”

In support of this contention they further cite State v. Waldrep, 80 Okla. Cr. 230, 158 P. 2d 368; State v. Gray, 71 Okla. Cr. 309, 111 P. 2d 514, felony cases. An examination of these cases discloses that they are bottomed upon the provisions of Title 22, § 508, O.S.A. 1941, as follows, to wit:

“If the demurrer is sustained, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution for the same offense, unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the same or another grand jury, or that a new information be filed.”

The contention of the defendants would be controlling if the offense charged were a felony, but such is not the case at bar, since the offense charged is only a misdemeanor. This court has held that Title 22, § 508, O. S. A. 1941, applies only to felony cases and does not apply to misdemeanor cases. Ex parte Dodson, 3 Okla. Cr. 514, 107 P. 450; Green v. State, 33 Okla. Cr. 268, 243 P. 533; and Ray v. Stevenson, 71 Okla. Cr. 339, 111 P. 2d 824, 826, holding as follows:

“Sections 2943, O. S. 1931, 22 Okla. St. Ann. § 499; 2944, O. S. 1931, 22 Okla. St. Ann. § 500; 2945, O. S. 1931, 22 Okla. St. Ann. § 501; and 2952, O. S. 1931, 22 Okla. St. Ann. § 508, outline the procedure to be followed by the trial court in connection with the sustaining of a motion to quash or demurrer to an indictment by a defendant upon Ms arraignment in the district court on a felony charge.
“The above statutes apply only to felony cases, and do not apply in the case of misdemeanors for the reason that the county court is without authority to direct a case to be resubmitted to a grand jury.
“The sustaining of a motion to quash or a demurrer to an indictment charging a misdemeanor is no bar to subsequent prosecution by information for the same or any related offense.”

Therefore, it is apparent that in a misdemeanor case, where a demurrer to the information is sustained and the dismissal of the action entered by the county court, it is final only as to that action, and does not prevent the institution of another information on the same or related charge.

Defendants in this connection also cite, in support of their contention, Moyers v. State, supra; State v. Gragg, 71 Okla. Cr. 213, 110 P. 2d 321. The Moyers case clearly is not predicated upon the provisions of Title 22, § 508, supra, since it involved an appeal on a reserved question of law, as to the right of the county court to reinstate a driver’s license. That case was not a criminal action but was in the nature of a civil proceeding, and in no way whatsoever involved Title 22, § 508, O.S.A. 1941. It certainly does not support the defendants’ contention to the effect that the case at bar might not be reinstated for further prosecution. The Gragg case, supra, while involving a misdemeanor (unlawful possession of intoxicating liquor), arose on the sustaining of a demurrer to the evidence and not on a demurrer to the information. Therein, 71 Okla. Cr. at page 221, 110 P. 2d at page 325, this court said:

“ * * * the defendant was charged in a court of competent jurisdiction by an information sufficient to sustain a conviction. The court was not called upon to quash or set aside the information, but after the State had introduced its testimony and rested, a demurrer was interposed by the defendant and this demurrer was sustained by the court, and the defendant discharged and his bondsmen exonerated. It is true that after this order was made, that it was further ordered: ‘That said defendant, Cecil Gragg, be not discharged pending the appeal and determination of this cause by the Criminal Court of Appeals of the State of Oklahoma, but that he be enlarged and placed at liberty upon his own recognizance during the pendency of said appeal.’
“This was evidently an attempt to comply with sections 2952, 2953 and 2954, Oklahoma Statutes 1931, Oklahoma Statutes Annotated, title 22, sections 508, 509, and 510. But these statutes apply only where a demurrer to the indictment or information has been sustained. They do not apply where a defendant was charged in a court of competent jurisdiction by a valid information and a jury has been empaneled and sworn to try the case, or the defendant has waived a jury and agreed to try the same before the court, and after the State had introduced its evidence and rested, and a demurrer was sustained to the evidence and the defendant discharged, and his bondsmen exonerated.”

We call attention to the fact that therein this court said that section 508 did not apply where a demurrer to the evidence was sustained. The reason is apparent that the defendant having been tried and acquitted, he could not again be tried for the same offense. Had this court then been confronted with the situation in the case at bar, it would have further said, in light of Ex parte Dodson, supra, and Green v. State, supra, that section 508, Title 22, O.S.A. 1941, did not apply, where a demurrer was sustained to the information in a misdemeanor case. Ray v. Stevenson, supra, had not been decided when the Gragg opinion was rendered. Ordinarily, the matter of prosecutions in misdemeanor cases are within the sound discretion of the county attorney, as chief prosecutor vested with power to institute prosecutions. Perry v. State, 84 Okla. Cr. 211, 181 P. 2d 280; Ex parte Lewis, 85 Okla. Cr. 322, 188 P. 2d 367. Therefore, this being a misdemeanor case and not within the provisions of section 508, Title 22, O. S. 1941, the dismissal by the county court on a demurrer to the information would not become effective until after the determination of the appeal. If the question of law is determined adversely to the state, the prosecution is at an end. If it is held that the trial court erred in sustaining the demurrer to the information the cause is reversed for a continuation of the prosecution.

But this is not an. ordinary case, where the matter should be left to the county attorney to decide relative to another prosecution, which brings us to the final decisive question involved herein. That proposition is this, that at the time the demurrer herein was sustained by the trial court the rule announced in the Taylor case, supra, the Thomas case, supra, and the Baldwin case, supra, not having been expressly overruled in Burns v. State, supra, was the established and controlling law involved herein. Under the provisions of Title 21, § 421, O.S.A. 1941, as construed in the Taylor case, supra, the Thomas case, supra, and the Baldwin case, supra, the law was fixed, final and binding as construed in said opinions and both the citizens and the courts were bound thereby, until McCreary & Hughes v. Venable, supra, announced a contraholding on February 28, 1948, and in effect overruling all cases, in conflict therewith. The defendants assert that from and after December 5, 1927, the date of the rendition of the opinion in Taylor v. State, supra, construing Title 21, § 421, O.S.A. 1941, and holding the same unconstitutional in light of Art. 1, § 7 (the Prohibition Act), the court’s construction became a part thereof, and the trial court’s judgment in sustaining the demurrer dismissing the action and exonerating the bonds on said authority, as well as on the strength of the subsequent opinions in the Thomas and Baldwin cases, supra, was a lawful act of the court, binding and final, and not subject to repudiation even though the state should prevail in this proceeding. In other words, their contention is that those cases were the law and just as binding as the provisions of the statute and the Constitution themselves, until on February 25, 1948, this court handed down the opinion in McCreary & Hughes v. Venable, supra. This contention is well grounded, for it is the basis upon which proceeds our entire system of jurisprudence and upon which its stability depends. Without such a basis, the personal rights of the people would be most insecure, and what might be the law of protection today would be the law of condemnation tomorrow merely by judicial decision. The behavior of the people is circumscribed by the Constitution, legislative acts, and judicial opinions. They have the right to rely on judicial interpretation and application as to each. While the law is and should be ever in progression towards perfection, its application should be as immutable as the law of gravitation until a change has been effected therein either by constitutional amendment, by legislation, or by judicial interpretation. A change being thus wrought, then a change in application is permissible. The Constitution protects citizens against ex post facto legislation by the Legislature which the courts jealously guard in their behalf. We believe the constitutional limitation against cx post facto acts of the Legislature should weigh just as heavily against ex post facto judicial decisions. The fact that the act of repudiation of established law may come from the court clothes the act with no halo of constitutional exception as to ex post facto applications. The inhibition applies to the courts with equal force. Hence, the rule of stare decisis has long been recognized as the bulwark of American jurisprudence, and unless it is adhered to in this instance, what was not a crime under former decisions would now become one. Such a ruling would do violence to our time-honored tradition of trial courts’ reliance on judicial opinions for guidance and freedom from error. It would place the mark of condemnation upon the trial judge who in the exercise of his bounden duty looked to the decisions of the appellate court for guidance. It would tend to destroy the wholesome concept that this is a government of laws and not of men. It would tend to subject the citizen to the caprice of men and not of laws. It would create the possibility for political persecution through the abuse of judicial power by decree. It may be said such is not the case at hand, and that is true. But, where possibility of abuse exists there is always the threat. And, the measure of judicial wisdom is not only in immediate justice, but in anticipatory discernment. In fact, the true test of judicial wisdom is in the pronouncement of rules in any case that will obviate abuses of power. Every case should be measured, not in its immediate effect, but prospectively. In no other Avay may, particularly, life and liberty, as Avell as property, be secure, and this continue to be a government of laws and hot of men. While the question is one of first impression in this court, as applied to property rights, the Supreme Court of Oklahoma has passed squarely on the question. In Bagby v. Martin, 118 Okla. 244, 247 P. 404, it said:

“Contracts entered into in good faith, in relation to private property rights, in accordance with a statute, as construed by the Supreme Court of the state, will be given effect according to the judicial construction of the statute in effect at the time the contract was entered into. A later construction of the statute by the same court, applying a different construction, will not affect the contract made pursuant to the former decision.”

See, also, Oklahoma County v. Queen City Lodge No. 197, I. O. O. F., 195 Okla. 131, 156 P. 2d 340, holding that the force of the opinion should be prospective only. The foregoing principle as applied by the Supreme Court of Oklahoma has likewise been applied to criminal cases in other jurisdictions than our own, in State v. Jones, 44 N .M. 623, 107 P. 2d 324, 329, wherein the court said:

“The question then arises as to what effect shall be given this overruling decision. Shall it operate retrospectively and possibly subject to heavy penalties and the stigma of criminal convictions those who, acting in reliance on the former decision, did only that which this court declared, even if erroneously, to be within the law? Or, shall the defendants’ acts and conduct be judged by the then unreversed decision which stood as the best evidence of what the law was at the time the acts complained of took place and the overruling decision be confined in its operation to acts and conduct occurring after its effective date? In other words, shall our decision overruling City of Roswell v. Jones [41 N. M. 258, 67 P. 2d 286], be given prospective operation only? The plainest principles of justice demand that it should and there is respectable authority, based on sound reason, which affirms our right in a case of this kind, so to order.”

Thereafter citing numerous authorities in support thereof. See, also, State v. Simanton, 100 Mont. 292, 49 P. 2d 981; Chavers v. Harrell, 122 Fla. 669, 166 So. 261; State, ex rel. Williams v. Whitman, 116 Fla. 196, 150 So. 136, 156 So. 705, 95 A.L.R. 1416; State v. Longino, 109 Miss. 125, 67 So. 902, Ann. Cas. 1916E, 371; State v. Bell, 136 N. C. 674, 49 S. E. 163; State v. O’Neil, 147 Iowa 513, 126 N. W. 454, 33 L.R.A., N.S., 788, Ann. Cas. 1912B, 691, wherein, it was held that a person performing the acts denounced by the statute after it was declared invalid and before a decision holding it valid could not be prosecuted thereunder; Commonwealth v. Trousdale, 297 Ky. 724, 181 S. W. 2d 254; Wilson v. Goodin, 291 Ky. 144, 163 S. W. 2d 309, wherein it was held where a criminal statute is first declared unconstitutional and later held constitutional, one committing the prohibited act during the time between the two decisions is not liable to prosecution for such act. 8 R.C.L. § 10, page 60, Note 7; 22 C.J.S., Criminal Law, § 48, page 114. If we did not so hold herein we would be lacking in constitutional morality. This question was not raised in McCreary & Hughes v. Venable, supra. If it had been, we would have so held therein.

We therefore hold that the reserved question was decided in McCreary & Hughes v. Venable, supra, and is now moot, the appeal herein on a reserved question is dismissed, and the request for reinstatement of the case for prosecution in the lower court on its merits is accordingly denied.

JONES, P. J., and POWELL, J., concur.