text:
    THEODORE S. WILSON v. STATE.
    No. A-10759.
    Sept. 10, 1947.
    (184 P. 2d 634.)
    James P. Devine and F. E. Riddle, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Theodore S. Wilson, was on the 21st day of November, 1945, convicted in the district court of Tulsa county of the crime of perjury, and his punishment assessed at a term of nine years in the State Penitentiary and he has appealed.

Since this appeal was taken, defendant, Theodore S. Wilson, departed this life on the 16th day of August, 1947, as shown by proof presented to this court on the 4th day of September, 1947.

In a criminal prosecution, the purpose of proceedings being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that defendant has died pending the determination of the appeal, the cause will be abated.

It is therefore considered, ordered, adjudged, and decreed that the proceedings in the above-entitled cause do abate, and the cause is remanded to the trial court to enter its appropriate order to that effect.

BAREFOOT, P. J., and BRETT, J., concur.


source: Caselaw Access Project

author: BRETT, J.

license: Public Domain

text:
    Ex parte DAVID E. BISHOP.
    No. A-10922.
    Sept. 17, 1947.
    (184 P. 2d 805.)

      Shapard & Wallace and B. E. Harkey, all of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for respondent.
   BRETT, J.

This is an original proceeding in habeas corpus. The petitioner alleges that he is restrained of his liberty and unlawfully held by Dick Strain, sheriff of Oklahoma county, under and by virtue of a requisition by the Governor of the State of Kansas to the Governor of the State of Oklahoma and a warrant, of extradition made and entered by the Governor of the State of Oklahoma on July 25, 1947, in favor of said request for extradition.

Petitioner alleges that said restraint is illegal and unauthorized in that the application for extradition and the papers in connection therewith are not in proper form. He particularly alleges that the complaint under which he is charged, bearing the date of March 3, 1947, and alleging in substance that on November 2, 1946, he committed the crime of obtaining money under false pretenses, is insufficient to state an offense. Further, he alleges that the prosecution is not brought in good faith and is brought for the purpose of collecting a debt.

To the petition the respondent filed a return to the rule to show cause in which it is alleged that the petitioner is being held in custody pursuant to a warrant issued by the Governor of the State of Oklahoma, directing the petitioner’s surrender to a duly authorized representative of the Governor of the State of Kansas, which warrant the Governor of Oklahoma has made and entered pursuant to a regular requisition of the Governor of the State of Kansas for the extradition of said petitioner, on a regular and proper charge filed against him in which he is charged with obtaining money under false pretenses. In Re Gundy, 30 Okla. Cr. 390, 236 P. 440, 441, this court said:

“The rule appears to be that the courts may look into the papers before the Governor and determine whether upon their face a crime is charged; but beyond this the court cannot go in determining the fact of the petitioner’s guilt or innocence. Hurd, Habeas Corpus, § 621, Moore, Extradition, § 632.”

Moreover, in Ex parte Offutt, 29 Okla. Cr. 401, 234 P. 222, 223, this court held:

“Unless .the affidavit, complaint, or information charges the person sought with the commission of a crime, it is fatally defective, and a warrant for his extradition is unauthorized.” Ex parte Wildman, 14 Okla. Cr. 150, 168 P. 246.

See, also, Ex parte George, 63 Okla. Cr. 115, 73 P. 2d 471, 474, Avherein this court said:

“When it is shown that a person is in due and legal form charged with a crime in one state, and that he was corporeally present in that state at the time of the commission of the crime charged, it is then conclusively established that such person is a fugitive from justice within the meaning of the Constitution. In re Gundy, [supra]; Ex parte Baker, 33 Okla. Cr. 413, 244 P. 459; Ex parte Rabinwitz, 61 Okla. Cr. 83, 65 P. 2d 1236.”

We have carefully examined the papers herein and find them to be in proper form and that the complaint alleges the crime of obtaining money under false pretenses. When extradition papers required by the statute are in proper form, the only evidence demanded by this state is that the accused was in the demanding state at the time the crime was alleged to have been committed. Ex parte Rabinwitz, supra. The fact of the petitioner being in the State of Kansas at the time the offense is alleged to have been committed is not in any respect denied by said petitioner, but to the contrary, the facts positively established that at said time he was within the State of Kansas.

On the proposition that the prosecution was not brought in good faith and was for the purpose of collecting a debt, “the presumption is that .the prosecution is in good faith; and in order to overcome this presumption, * * * the petitioner must introduce facts which are clear, convincing, and without doubt that the prosecution in the demanding state is in bad faith.” Ex parte Welborn, 69 Okla. Cr. 282, 102 P. 2d 624; Ex parte Cassel, 85 Okla. Cr. 4, 184 P. 2d 467. The evidence herein is wholly insufficient to establish that the prosecution is not brought in good faith and is for the purpose of collecting a debt.

The writ of habeas corpus is accordingly denied and the respondent, Dick Strain, sheriff of Oklahoma county, is directed to surrender the petitioner David E. Bishop unto H. W. Goodman, extradition agent of the State of Kansas, in execution of tbe Governor’s warrant on foreign requisition.

BAREFOOT, P. J., and JONES, J., concur.


author: BAREFOOT, P. J.

text:
    JOE HAMRICK v. STATE.
    No. A-10739.
    Sept. 17, 1947.
    (184 P. 2d 807.)

      I. L. Cook, of Atoka, and Rowe Cook, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Owen J. Watts, Asst. Atty. Gen., and W. H. Parker, County Atty., Atoka County, of Atoka, for defendant in error.
   BAREFOOT, P. J.

Defendant, Joe Hamrick, was charged in the district court of Atoka county with the crime of assault with intent to rape; was tried, convicted and sentenced to serve a term of four years in the State Penitentiary, and has appealed.

For a reversal of this case, it is contended:

“I. The information purporting to charge the defendant with the crime of assault with intent to rape was insufficient as a matter of law to withstand timely demurrer or to permit the introduction of evidence after it appeared that the prosecutrix was 31 years of age.
“II. The testimony of the prosecutrix is uncorroborated, inherently improbable, and unworthy of belief, and is sufficient as a matter of law to support the verdict, judgment and sentence.
“III. The sentence is excessive under any view of the law and the evidence.”

The crime of rape is defined by Tit. 21, O. S. 1911 § 1111, as follows :

“Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances: * * *
“áth. Where she resists but her resistance is overcome by force and violence.
“5th. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power by execution. * * *”

An assault with intent to commit rape is a crime by reason of Tit. 21, O. S. 1911 § 681, which is as follows:

“Every person who is guilty of an assault with intent to commit any felony, except as assault with intent to kill, the punishment for which assault is not otherwise prescribed in this code, is punishable by imprisonment in the State penitentiary not exceeding five years, or in the county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.”

The charging part of the information in this case was as follows :

“That is to say, the defendant did in said county and state, at the date above named, wilfully, unlawfully, wrongfully, knowingly and feloniously, make an assault in and upon one Lorene Rollo, a female person, not the wife of him the said Joe Hamrick, with his hands and fists, and with a .22 target gun, and did then and there beat, bruise and wound her, the said Lorene Rollo, with his hands and fists, and threaten to use said .22 target gun on her, all with the wilfull, wrongful, unlawful and felonious intent, then and there, on the part of him the said Joe Hamrick, then and there to forcibly and against her will ravish, rape and carnally know her, the said Lorene Rollo, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Oklahoma.”

To the above information a demurrer was filed, as follows:

“Comes now the defendant above named, and demurs to the information filed herein, and for grounds of objection, states:
“1. Said information fails to allege sufficient facts and is so indefinite and uncertain that a conviction had thereon could not be plead in bar of trial in a subsequent prosecution for the same offense.
“2. Said information fails to allege facts sufficient to charge the crime of assault with intent to rape by use of force and violence.
“Wherefore, defendant prays that he be discharged from bail and further attendance upon the court.”

This demurrer was overruled on October 30, 1945, and defendant excepted.

The first assignment of error is that the court erred in overruling the demurrer to the information.

The rule in this state with reference to the sufficiency of an indictment or information has been defined by Tit. 22 O. S. 1941 § 401:

“The indictment or information must contain:
“1. The title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties.
“2. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.”

Tit. 22 O. S. 1941 § 408 provides:

“Words used in a statute to define a public offense, need not be strictly pursued in the indictment or information; but other words conveying the same meaning may be used.”

And section 409 of the same Title:

“The indictment or information is sufficient if it can be understood therefrom:
“1. That it is entitled in a court having authority to receive it, though the name of the court be not stated.
“2. That it was found by a grand jury or presented by the county attorney of the county in which the court was held.
“3. That the defendant is named, or if his name cannot be discovered, that he is described by a fictitious name, with the statement that his true name is unknown.
“4. That the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.
“5. That the offense was committed at some time prior to the time of filing the indictment or information.
“6. That the act or omission charged as the offense is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.
“7. That the act or omission charged as the offense, is stated with such a degree of certainty, as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

And Tit. 22 O. S. 1941 § 410:

“No indictment or information is insufficient, nor can the trial, judgment, or other proceedings thereon be affected, by reason of a defect or imperfection in the matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

It is contended by defendant that the information in the instant case is insufficient by reason of the fact that it does not specifically state “by force and violence sufficient to overcome any resistance she might make.”

An examination of the authorities of the Territorial Court and of this court reveals that there is some conflict in the decisions, and that some of the earlier cases have been overruled by the later cases. It is unnecessary to unduly lengthen this opinion by a comparison of these cases. We cite them and reference will only be made as is deemed necessary: Young v. Territory, 8 Okla. 525, 58 P. 724; Sowers v. Territory, 6 Okla. 436, 50 P. 257; Rector v. Territory, 9 Okla. 530, 60 P. 275; Lee v. State, 7 Okla. Cr. 141, 122 P. 1111; Fannin v. State, 65 Okla. Cr. 444, 88 P. 2d 671. Also cited by the defendant is Cape v. State, 61 Okla. Cr. 173, 66 P. 2d 959.

In the brief of the state, reference is made to the above cases, and attention is called to the fact that the Young and Rector eases have been modified and overruled by the case of Maples v. State, 30 Okla. Cr. 151, 235 P. 264, 265, in which it is stated:

“Considering first the objection to the information, the charging part is as follows:
“ ‘That the said J. K. Maples did then and there, by means of force and threats and violence, unlawfully, intentionally, wrongfully, and feloniously make an assault upon a certain female person, to wit, Cleo Sampier, with the unlawful and felonious intent of the said J. K. Maples then and there to have and accomplish an act of unlawful sexual intercourse with her, the said Cleo Sampier, to rape, ravish, and carnally know her, the said Cleo Sampier, by attempting to then and there overcome all resistance of the said Cleo Sampier; she the said Cleo Sampier not then and there the wife of said J. K. Maples.’
“The plaintiff in error contends that this information is defective for two reasons: First, that it does not charge that the plaintiff in error committed the assault with the felonious intent to have sexual intercourse with the assaulted female by force or violence sufficient to overcome any resistance she might make; second, that the information does not allege the acts done toward the commission of the crime charged.
“The information here is not a model by any means, but if it contains a statement of the acts constituting the offense in ordinary and concise language, in such a manner as to enable a person of ordinary understanding to know what is intended, it is sufficient. Section 2555, Comp. St. 1921 [Tit. 22 O. S. 1941 § 401]; Star v. State, 9 Okla. Cr. 210, 131 P. 542. It appears to us that, construing this information under the ordinary rules of construction, any person of common understanding would know that the plaintiff in error was being charged with an assault upon the person of Cleo Sampier with the felonious intent to commit a rape upon her person. It would carry no other meaning, and while it is not arranged and stated as simply and clearly as it might be, yet it does state the charge with such particularity as to clearly enable the accused to identify the offense with which he is charged, and sufficiently to enable him to defend himself in case he should again be informed against for the same offense, and when this is true the information is sufficient. Arnold v. State, 48 Okla. Cr. 452, 132 P. 1123; Smythe v. State, 2 Okla. Cr. 286, 101 P. 611, 139 Am. St. Rep. 918; Price v. State, 9 Okla. Cr. 359, 131 P. 1102; Deen v. State, 7 Okla. Cr. 150, 122 P. 941; Bowes v. State, 8 Okla. Cr. 277, 127 P. 883.
“This court, in the case of Williams v. State, 10 Okla. Cr. 336, 136 P. 599, had under consideration an information, the charging part of which is as follows:
“ ‘One James Williams, then and there being, did then and there intentionally, unlawfully, willfully, and feloniously make an assault upon one Mrs. W. W. Hyden, a female person over the age of 18 years, and of previous chaste and virtuous character, with an intent her, the said Mrs. W. W. Hyden, unlawfully and feloniously to rape, ravish and carnally know, and he, the said James Williams, did then and there attempt to unlawfully and feloniously rape, ravish, and carnally know the said Mrs. W. W. Hyden; the said Mrs. W. W. Hyden not being the wife of the said James Williams,’
“ — and held that this was insufficient to charge an attempt to commit a rape, as not setting out the acts done, but held that it was sufficient to charge the crime of assault with intent to rape, under section 1758, Compiled St. 1921 [21 O. S. 1941 § 681], which is the section under which the information in this case is filed and all the proceedings had, and on the authority of that case, as well as the general rule announced, the information is sufficient. In the case of Williams v. State, supra, this court further modified the rule announced in the case of Young v. Territory, 8 Okla. 525, 58 P. 724, and Rector v.Territory, 9 Okla. 530, 60 P. 275. See Castleberry v. State, 10 Okla. Cr. 504, 139 P. 132.”

In the case of Williams v. State, supra, the information was very similar to the one in the instant case, and there was no allegation of “by force or violence sufficient to overcome any resistance she might make.” The court in this case held that the information was sufficient to charge the crime of assault with intent to rape, the same crime of which defendant was convicted. The court said [10 Okla. Cr. 336, 136 P. 600]:

“The information is sufficient to charge the crime of assault with intent to commit rape, and the evidence is sufficient to sustain a conviction of either offense.”

See, also, Lee v. State, 7 Okla. Cr. 141, 122 P. 1111.

With reference to the sufficiency of an indictment or information as against a general demurrer, and a consideration of the statute above quoted, this court has adopted the general rule that: An information is sufficient which informs an accused of the offense with which he is charged with such particularity as to enable him to prepare for his trial, and so defines and identifies the offense that, if convicted or acquitted, he will be able to defend himself against any subsequent prosecution for the same offense. See Simpson v. State, 67 Okla. Cr. 152, 93 P. 2d 541, and cases cited therein.

In many of the cases reference is made to the evidence and to its sufficiency to sustain the allegations of the information. We are of the opinion that the information filed in this case is sufficient as against a general demurrer, and that the evidence is sufficient to sustain the judgment and sentence assessed in this case. We find that the evidence of the prosecutrix is corroborated to the extent required by the law, and that her testimony is not “inherently improbable, and unworthy of belief.”

The facts, as they appear from the record, were that defendant was engaged in farming in Atoka county on June 29, 1945. The prosecutrix, Mrs. Lorene Rollo, who was 31 years of age, and the mother of five children, lived with her husband about one mile from defendant’s farm. On June 28, 1945, defendant asked prosecutrix to come to his farm on June 29, 1945, and hoe for him. Her husband was away from home on that date. She went to defendant’s home, and her testimony as to what occurred was as follows:

“Q. What did you do when you got there? A. When I went to the gate I said ‘good morning’ and he was setting on the porch in a chair and he had a pair of pants and a needle and thread and he said ‘come in’ and I went in on the porch and I didn’t see his folks and I thought his wife was milking or the children was asleep, so I set down in the swing on the porch on the north end of the porch. Q. Did anything unusual occur? A. Yes, sir. He went in the house and when he come back out the door he come toward me. Q. How long after you got there? A. Just a few short minutes. Q. All right. Start there and go ahead and state what occurred. A. Well, when he got to wherever I was he grabbed me and tried to kiss me, and I said ‘Joe, what do you mean’ and I hollered and I must have said ‘Dorothy’ and he said, ‘She is in the field’ and against my will he took me in the house — he hit me first and the door is lower there and he hit me and carried me to the bedroom against my will and throwed me on the bed with his full weight on me and hugged and kissed me and I was trying to get loose and he was trying to undo my clothes and I finally got loose and got to the floor and he got me down and tried to pull my overalls off and I grabbed my straps and he twisted this right arm and there was a door in the east and a door in the west, but the dresser was setting between the west and the door' that goes into the side room to the north and he throwed me first in that door between the door and the dresser and my head was to the north and feet to the south and he took my overalls off of me and I was hollering and shoving and trying to get loose and he hit me on this jaw. Q. Did you have a doctor examine you shortly after-wards? A. Yes, sir. Q. How soon? A. On July 3rd, on Tuesday. Q. Who was that Doctor? A. Doctor Briggs. Joe choked me and also hit me on this side, and every time I tried to get loose he said, “God damn it, I will hurt you — God damn it stop or I will hurt you.’ Q. He pulled you on the floor? A. Yes, sir. Q. He pulled your overalls off? A. Yes, sir. I got loose again and he throwed me down again and my head was to the west. Q. Did you have an opportunity from the time he had dragged you in there to get out of there? A. No, sir. Q. Did he have hold of you all the time? A. Yes, sir. Q. While on top of you, I will ask you if there was an emission or discharge from him? A. Not at that time there wasn’t. When he stripped my skirt off he tore my skirt and his full weight was on me and he pressed me to the floor and I had my legs crossed and I was trying to raise up and he tried to part my legs and at last he took my left — or he took his left arm and pressed me to the floor and then he did. Q. Had a discharge? A. Yes, sir, with his right hand, he sure did. Q. Did you see any gun there at that time? A. Yes, sir, after that was over-— By Mr. Rowe Cook (for defendant) If the court please — • By the Court: Don’t lead. A. He told me to get up and get my clothes on and he said, ‘that God damn bull’ and walked around over the floor and I put my clothes on and my shoes was off and I put them on and I pulled my clothes up around me. Q. What else did he do or say? A. He said something about being crazy, and I told him that he would be crazier than that when Garrison got done with him and he said I wouldn’t tell Garrison and reached up and got a gun — the .22 and said, ‘if you tell Garrison I will kill you and get Garrison first.’ Q. Garrison is your husband? A. Yes, sir. Q. I believe you turned over your clothes to the sheriff? A. Yes, sir. Q. I hand you a pair of overalls and ask you to state whether those are the overalls you had on at the time? A. Yes, sir. They have been washed, but these are the ones I had on. Q. This shirt? This is the shirt? A. Yes, sir. By Mr. Cook: He can offer them in evidence. Q. Did you have that on at that time? A. Yes, sir. By Mr. Correll: I have a shirt marked Exhibit A, and a slip “B”, and a pair of overalls “3”. Q. With reference to tears, was this slip in this condition that it is now in prior to the time he struggled with you? A. Except being washed. Q. Were there any tears in there prior to the time you had this struggle with him? A. No, sir. Only this right here. Q. Were any of these tears accomplished in the struggle? A. Yes, sir. Q. Describe them to the jury? A. He tore this slip plumb off of me on the front. Q. He pulled your overalls off? A. Yes, sir. Mr. I. L. Cook: I suggest he offer them in evidence. (The garments are offered in evidence without objection from defendant.) By the Court: Are you going to offer them in evidence? By Mr. Correll: Yes, sir, I offer in evidence. By Mr. I. L. Cook: No objection. By the Court: Let them be admitted. Q. Is the shirt in the same condition it was? A. Yes, sir, except being washed. Q. Where did he tear the shirt? A. There is a place tore there. Q. Did he do that? A. Yes, sir. Q. You say the slip was put in that condition and the tears on that shape? A. Yes, sir. Q. After you got dressed did you get out of there as fast as you could? A. Yes, sir. He had the gun in his hand and he told me to go out where Dorothy was and not tell her. Q. And she is his wife? A. Yes, sir. Q. Where did you go? A. I went to the field and he followed me to the gate. He had a high wire fence on the north side of the house and he walked to the gate and there was a latch on the gate and he raised the latch on the gate with the gun in his hand — in his right hand and he told me to go where Dorothy was and not to tell her anything. Q. Did he say what he would do if you told her anything? A. He said he would kill me and said he would get Garrison.”

It is revealed by the evidence that prosecutrix told the wife of-defendant what had happened to her when they returned to the house at noon, after working in the field; that on the following day, Saturday, July 3, she told Mrs. Shoemaker, a friend who testified at the trial; and on Sunday told her sister, who also testified.

Dr. T. H. Briggs testified that he as called to examine the prosecutrix on July 3, 1945. His testimony was:

“Q. Was anything nnnsnal about her condition? A. Except she had some little bruises on her chest and one on her neck, and one on her arm — what you would call black spots. Q. Could the marks that you saw on the side of the. neck have — what did they probably come from, according to your knowledge — could you tell what' they were made with? A. No, sir. Q. Marks on the side of the neck and one on the chest? A. Blue places — bruises —contusions or light bruises. Q. How many bruises on her? A. Three. Q. Did she purport to tell you how she got those bruises? A. Oh, yes, she told me a lot of stuff.”

This was about all of the evidence offered by the state, and the only evidence offered by the defendant was the wife of defendant, who testified as to the prosecutrix coming to their place to work on the morning of June 28, 1945. That she left her husband at home mending some clothes when she went to the field about 8 o’clock in the morning. That soon thereafter prosecutrix appeared in the field. That she made no complaint of mistreatment by defendant at that time. That the defendant came to the field and they all worked together until she left to go and get dinner. That the defendant and prosecutrix came to the house together and nothing was said, and there was nothing to indicate that anything had happened until she was washing the dishes, when prosecutrix told her that her husband had attacked her when she came to the house that morning. That she did not see any scratches or bruises on prosecutrix, and that she came back to work for them on July 5, when the defendant was there.

This court has held that corroboration may be had by testimony offered by the defendant. Brewer v. State, 63 Okla. Cr. 389, 75 P. 2d 901; Perry v. State, 74 Okla. Cr. 234, 125 P. 2d 219.

The wife of defendant testified that prosecutrix told her of the attack at noon after they had returned from the field. The clothes of prosecutrix were offered in evidence as a circumstance which tended to corroborate her testimony. Other corroborating evidence has been stated.

The information was filed in this case on September 14, 1945.

The court, in his charge to the jury, submitted the question of assault and battery.

The jury returned a verdict of guilty of assault with attempt to rape and left the punishment to the court. The defendant was given a sentence of four years in the State Penitentiary. The maximum punishment provided by the statute is five years.

We have often held that one may be convicted of rape upon the uncorroborated evidence of the prosecutrix, but have also held that where her testimony is contradictory, uncertain, improbable, or she has been impeached, hex-testimony should be corroborated. Weston v. State, 77 Okla. Cr. 51, 138 P. 2d 553; Ferguson v. State, 78 Okla. Cr. 126, 145 P. 2d 216; Maxwell v. State, 78 Okla. Cr. 328, 148 P. 2d 214; DeWitt v. State, 79 Okla. Cr. 136, 152 P. 2d 284; Lancaster v. State, 79 Okla. Cr. 395, 155 P. 2d 548.

A careful examination of the evidence in this case is not such that would cause one to come to the conclusion that it was contradictory, uncertain or improbable; and she was not impeached. She told a very reasonable story and she was not confused in any way on cross-examination. The jury heard her evidence, and also the evidence of the defendant’s wife. We do not think we would be justified in coming to the conclusion that the evidence in this case was insufficient to sustain the judgment.

We are also of the opinion that the judgment and sentence is not excessive, and that we would not be justified in modifying the same.

For the reasons above stated, the judgment and sentence of the district court of Atoka county is affirmed.

JONES and BRETT, JJ., concur.


author: JONES, J.

text:
    Ex parte MAXINE JUNE FOWLER.
    No. A-10877.
    Sept. 17, 1947.
    (184 P. 2d 814.)

      Earl E. James, of Oklahoma City, for petititoner.
    A. L. Jeffrey, Municipal Counselor, and P. J. Demopolos and Eaymond Gramlich, Asst. Municipal Counselors,, all of Oklahoma City, for respondent.
   JONES, J.

This is an original action in habeas corpus brought by the petitioner, Maxine June Fowler, to secure her release from confinement in the city jail of Oklahoma City.

In her verified petition, it is alleged that the petitioner is being confined in that part of the city jail known as “The Clinic”, but that said detention of the petitioner is illegal and unauthorized.

At the hearing before this court, the proof showed that the petitioner was a prostitute who had practiced her profession in Oklahoma City for- several years. That she had previously been arrested and convicted of practicing prostitution, and that on one of these occasions when examined, she was found to be infected with a venereal disease.

The proof showed that the petitioner was arrested on Sunday evening, May 11, 1947, in an apartment house on Fifth street. When she ivas placed in the city jail, the arresting officer had the clerk enter on his book “vagrancy by prostitution, investigation, and hold for clinic.” About 2:00 o’clock p. m. on May 12, 1947, the petitioner was taken before a police judge where she entered a plea of guilty to the charge of vagrancy, and was fined a total of $20, which petitioner paid. The judge then directed that she be taken to the venereal clinic for examination.

The venereal clinic is a quarantine ward on the fourth floor of the city jail, where persons arrested for prostitution, or any sex crimes, may be taken on order of the police judge for examination to determine whether they are infected with a venereal disease, and if so, detain them for treatment. The proof showed that immediately upon the petitioner being taken to the venereal clinic, a slide was taken to determine whether she had an active case of gonorrhea. At the same time, a culture was taken and sent to the State Laboratory for examination. The proof showed that the test taken through the means of the microscopic slide would disclose whether the patient was infected within just a few hours, but that it took 48 hours to get the results of the culture test. The proof showed that the test taken by the slide was negative, but at the time of the hearing the laboratory had not completed its test on the culture which was taken from the petitioner.

The law under which the respondent justifies his restraint of the petitioner provides:

“The keeper, manager, guard, or person in control of every prison or penal institution in this State, shall cause to be examined every j>erson confined in such prison or penal institution after conviction for any offense, to determine whether such person is an infected person. State and local Health Officers, or their authorized deputies who are physicians, are empowered to examine those who are arrested by lawful warrant for vagrancy, prostitution, rape or other sex crimes for the purpose of determining if they are infected with venereal disease. Every such person shall submit to such examination and permit specimens to be taken for laboratory examinations. Such person may be detained until the results of such examination are known. The required examination shall be made by the Health Officer, or, at the option of the person to be examined, by an approved licensed physician. All persons found to be infected with a venereal disease shall be treated by the local Health Officer or a licensed physician of their OAvn choice until said person is noninfectious or dismissed by said physician. In the event such person infected Avith a venereal disease refuses or fails to submit to treatment, then said person may be quarantined for the purpose of treatment and reported to the State Board of Health.” Tit. 63 O. S. 1941 § 548, as amended Laws 1943, p. 149, § 1.

It is contended by petitioner that the foregoing statute is unconstitutional for the reason that it amounts to forcing a person to give testimony against one’s self, and further that it constitutes an illegal delegation of legislative authority, and secondly that the rules and procedure and acts on the part of the Police Department in the manner of their arrest and detention of the prisoner was illegal and unconstitutional throughout.

This court has had occasion to examine the 1919 venereal disease act, now appearing on the statutes as 63 O. S. 1941 § 548.

In the case of Ex parte Roman, 19 Okla. Cr. 235, 199 P. 580, an action had been instituted in habeas corpus to determine the legality of the detention of the petitioner, Roman, by the superintendent of the State Industrial School for Girls. It was admitted that the petitioner was committed to the school when she was of the age of 13 years and had remained there until she attained her majority. The respondent, superintendent, alleged in her response that the petitioner had not been discharged for the reason that it was determined that petitioner had an infectious venereal disease, and under the statute (63 O. S. 1941 § 548, supra) it was her duty to detain the petitioner for purpose of treatment of such venereal disease.

In disposing of tha* case this court stated :

“The power of the Legislature to prevent the introduction and spread of infectious and contagious diseases cannot be questioned, and the power to make quarantine regulations is one of the most important conferred upon the health authorities, and such regulations constitute a proper exercise of police power. 12 R. C. L. 1285, 1290. However, if after such arrest or detention, such person challenges the right of the authorities to continue the detention, the fundamental law affords such person the right to have the legality of his or her detention inquired into by a court of competent jurisdiction in a habeas corpus proceeding. The law denies to no one restrained of his liberty without a hearing the right to prove in some tribunal that the facts justifying his restraint do not exist. 6 R. C. L. p. 435.”
“If those facts do not exist, the officer has no jurisdiction to continue the restraint, and the court in a habeas corpus proceeding has authority to inquire whether the facts essential to jurisdiction exist. Ex parte Hardcastle, 84 Tex. Cr. R. 463, 208 S. W. 531, 2 A. L. R. 1539.”

The amendment of 1943, hereinabove quoted, authorizes local health officers to examine those who are arrested for “vagrancy, prostitution, rape or other sex crimes for the purpose of determining if they are infected with venereal disease. Every such person shall submit to such examination and permit specimens to be taken for laboratory examinations. Such person may be detained until the results of such examination are known.”

This amendment enlarges the scope of the inquiry which may be made to determine whether a venereal disease exists and to help curb the spread of such infection.

It is contended that a police officier may not arbitrarily arrest a person upon suspicion that she has a communicable venereal disease, but that that fact must first be judicially determined before the alleged infected person may be restrained of her liberty, or detained for examination and treatment. The record discloses that the only person in Oklahoma City who commits a suspected infected person to the clinic for examination is the police judge, and he only does so where the proof before him shows that the suspected person is one of the class named in the statute. Here the petitioner was a known prostitute. In her testimony at the hearing before this court, she stated she had been a prostitute for three or four years and had at one time been infected with a venereal disease. She had a police record as a prostitute. Certainly, if the statute is constitutional, there were sufficient grounds for the police judge to feel that the petitioner should be detained at the clinic until her venereal tests were completed. Counsel for the petitioner contended that the policemen are making it so tough for petitioner through numerous arrests, and holding her for examination at the clinic, that it results in the petitioner spending a large part of her time in illegal restraint. The petitioner pleaded guilty to vagrancy by prostitution committed on the night of May 11th. If she continues to follow the illegal profession of prostitution, one of the hazards that she must contemplate is that the police might arrest and prosecute her for such conduct and as a necessary corollary to such arrest detain her in the quarantine ward for examination in order to protect that part of the public who might seek the services of the petitioner in her profession from becoming infected with a communicable venereal disease.

In the case of Ex parte Caselli, 62 Mont. 201, 204 P. 364, the Supreme Court of Montana had under consideration similar questions to those which are raised on behalf of petitioner. It was there stated:

“There is, perhaps, no authority to be found at this late day which denies that the Legislature, under its police power, may enact laws authorizing the establishment of quarantine regulations and requiring the detention of persons affected with contagious diseases dangerous to the public health without resort to a preliminary judicial proceeding to determine the character of the disease and the facts constituting the danger to public health. Under the statute before us the proper health officer may issue his warrant directing the arrest, without notice, of any person reasonably suspected of having a communicable disease, and his detention for the time being and until the existence and character of the disease can be determined; and, in case his course of conduct or condition is such, in the judgment of the health officer, as to render it necessary to protect the public health, to isolate such person until he recovers from the disease or until he may be released without further danger to the public. If, however, after his arrest, such person challenges the right of the authorities to continue his detention, he is entitled to have its legality inquired into upon habeas corpus. The existence of the power of the health officer to detain any one rests upon the existence of the facts making such detention necessary. The law does not deprive any citizens of the right to be heard on this question, but he is not entitled to a hearing in the first instance.”
“ ‘The detention of persons affected with or suspected of contagious disease in quarantine presents one of the cases where the police power is literally the law of self-defense — a paramount necessity.’ Freund’s Police Power, § 446.
“If the contention of counsel for the complainant should be upheld, this law of self-defense — necessity— would be rendered entirely inoperative while the judicial proceeding would be in progress. In my opinion, the Fourteenth Amendment to the Constitution of the United States and sections 6 and 7 of article 3 of the Constitution of the state of Montana, relied on by complainant’s counsel, have no application to this class of cases. I cannot conclude that the makers of the two Constitutions ever contemplated a situation where a state would be rendered powerless to protect itself by prompt and speedy action from the spread of a contagion which by neglect might reach to and affect any considerable number of people in a community.”

In the case of Ex parte Arata, 52 Cal. App. 380, 198 P. 814, 816, the respondent sought to justify the detention of the petitioner for examination to determine whether she was infected with a venereal disease and alleged that she had been arrested in a room where she had offered to commit sexual intercourse with an officer for a price. The reasoning of the California court in disposing of some of the contentions of petitioner is so sound that we take the liberty of quoting from a considerable portion of that opinion:

“Referring briefly first to the duty of the chief of police and officers working under Ms direction, it is enough to say that the plain and unmistakable terms of the law require such officers, upon making the arrest of a person on a criminal charge, to take such person before a magistrate without delay, Avhere the accused may be arraigned upon a sworn complaint and secure a judicial hearing. The magistrate, in the case of petitioner, acted strictly as his duty required of Mm in fixing bail and giving the order for release of petitioner pending trial, and, as we shall proceed to show, the right of the chief of police to further detain the petitioner must be justified on grounds having no reference at all to the fact that an accusation had been made in the police court charging petitioner with a crime.
“That the health authorities possess the poAver to place under quarantine restrictions persons whom they have reasonable cause to believe are afflicted with infectious or contagious diseases coming within the definition set forth in Political Code, § 2979a, as a general right, may not be questioned. It is equally true that in the exercise of this unusual power, which infringes upon the right of liberty of the individual, personal restraint can only be imposed where, under the facts as brought within the knoAvledge of the health authorities, reasonable ground exists to support the belief that the person is afflicted as claimed, and as to whether such order is justified will depend upon the facts of each individual ease.
“Where a person so restrained of his or her liberty questions the power of the health authorities to impose such restraint, the burden is immediately upon the latter to justify by showing facts in support of the order. It might be proved, for instance, that the suspected person had been exposed to contagious or infectious influences; that some person had contracted such disease from him or her, as the case might be. Such proof would furnish tangible ground for the belief that the person was afflicted as claimed. And we wish here to emphasize the proposition, which is unanswerable in law, that a mere suspicion, unsupported by facts giving rise to reasonable or probable cause, will afford no justification at all for depriving persons of their liberty and subjecting them to virtual imprisonment under a purported order of quarantine.
“Coming then to a case where it is claimed that the person suspected is one whose habits are such as to warrant the belief that they are afflicted with a venereal disease: We.may agree that in cases of persons who commit acts of prostitution — that is, acts that are commonly understood to fall within the ‘commercial vice’ definition— such a majority of them may be afflicted with infectious venereal disease as to justify the health department in enforcing the preliminary quarantine measures as here shown against any such; in other words, that, based upon the experience of the health authorities as it is stated to be in the return, it is reasonably probable that a person found to be of the class mentioned is so infected with such disease. The presumption which this statement allows to be made as against the individual in the first instance has its foundation in the fact that women of ill fame, by the very nature of their occupation, indulge in repeated and promiscuous acts of sexual intercourse.”

The adoption of laws for the protection of public health is universally considered to be a valid exercise of the police poAver of the state as to which the Legislature is necessarily vested with large discretion, not only in determining what are contagious and infectious diseases, but also in adopting means for preventing the spread thereof. We all know as a matter of common knowledge through the widely advertised use of the State Health Clinic that both the Federal and State Government and municipalities in Oklahoma are vigorously engaged in an effort to stamp out venereal diseases. The State Legislature has not made an illegal delegation of authority to municipal health boards. The act in question specifically names the conditions under which a suspected person may be detained for examination. If the suspected person denies that she or he is an infected person, they may assert their rights to release in a habeas corpus action, and the burden of proof will be upon those asserting that he or she is infected, to show that she has a contagious disease, or that the statutory grounds do exist which justify her detention until a test is made to determine whether she is so afflicted. In granting this authority to make such test to determine whether a person lawfully arrested for certain crimes is infected with venereal disease, it was not intended that officers charged with the responsibility of enforcing the law could act arbitrarily and detain the suspected person for an unreasonable length of time before giving the test. If a person is lawfully arrested for one of the crimes mentioned in the statute and the officers mentioned are of the opinion that an examination be given to determine whether they are infected with a venereal disease, the suspected person is entitled as a matter of right to have the test given as speedily as is possible so that her quarantine will not be longer than is absolutely necessary to determine whether there is an infectious disease.

The local health officers and policemen should consult their counsel so that they will thoroughly know the limitations attached to the powers which have been given them under the statutes. One of the most important rights guaranteed under our Constitution is that where liberty of the citizen is involved. This cannot be lightly passed over. We will not allow an encroachment upon that right, except in an emergency occasioned by danger to the public health and then only in strict compliance with the statutes.

It is our conclusion that the statute in question does not make an illegal delegation of legislative authority. It is unnecessary for us to determine whether the police department held the petitioner an unnecessary length of time for the reason that shortly after the hearing was completed and before the opinion of this court was announced, the laboratory test was completed showing the petitioner was not an infécted person and she was released. If the petitioner is right in her contention that the policemen acted maliciously and detained her an unnecessary length of time under the pretense of giving her venereal tests, her recourse is in the civil courts. In view of the fact that petitioner was released in less than 24 hours after the hearing before us, it is not necessary for us to pass upon this question.

We wish, however, to emphasize that officers who are sworn to enforce the law, in following the statute which has been given them for the purpose of combating the spread of venereal disease should not use such authority as a cloak to give unwarranted and additional punishment to persons on the ground that they suspected that they are infected with a venereal disease.

For the reasons hereinabove stated, the petition for writ of habeas corpus is denied.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    Ex parte GABRIEL DEMETRIO BAEZA.
    No. A-10865.
    Sept. 24, 1947.
    (185 P. 2d 242.)
    Bill Steger, of Dnrant, for petitioner.
    Mac Q. Williamson, Atty. Gen., and L. A. Wallace, Asst. Atty. Gen., for respondent.
   BAREFOOT, P. J.

Petition for writ of habeas corpus has been filed in this court by Gabriel Demetrio Baeza, father of Claude Lee Baeza, age fifteen years, seeking his release from the State Training School for Boys, at Helena, Oklahoma, where he is confined by reason of a commitment issued out of the juvenile court of Bryan county, Oklahoma, adjudging him a delinquent child.

We have recently had occasion to decide a case very similar to the instant case, which-came to this court from Bryan County — Ex parte Hollowell, 84 Okla. Cr. 355, 182 P. 2d 771, 774. We shall, therefore, not discuss the questions there decided, except to reiterate that the statutes governing juvenile delinquency should be liberally construed, as provided by.the terms of the juvenile statute (Tit. 10 O. S. 1941 § 114) to the end that a delinquent child shall be treated, not as a criminal, but as misdirected and misguided, and needing aid and encouragement.

In the petition filed in this case, it is alleged:

“That the proceedings, hearings and commitment of the county court of Bryan County, Oklahoma, in the aforementioned case are irregular, void and not in conformity with the statutes of the State of Oklahoma, in such cases made and provided, in the following particulars, to wit:
“(a) That the parents of Claude Lee Baeza were not advised by the court that they were entitled to the counsel of an attorney at law before any hearing or action would be had by the court.
“(b) That the parents of Claude Lee Baeza were not advised by the court that they were entitled to have a trial by jury before any hearing or action would be had by the court.
“(c) That the parents of Claude Lee Baeza were denied their constitutional rights in a proceeding that resulted in the confinement of their son and that they did not knowingly waive any of their constitutional rights.
“(d) That the parents of Claude Lee Baeza are uneducated and not versed in legal matters and that they did not know their rights until they saw a lawyer, subsequent to the time that the court alleges that said child was made a ward of the court.
“(e) That Gabriel Demetrio Baeza, father of Claude Lee Baeza, was born in Spain, and did not come to the United States till he was about twenty-one years of age, and that he does not fully understand his constitutional rights and that said court did not advise him as to his constitutional rights.
“10. That the proceedings, records, entries and commitments in the aforesaid case No. 738, of the county court of Bryan County, Oklahoma, are incomplete, irregular, void and not in conformity with the laws of this State.
“11. That all of the proceedings had in the aforementioned case in the County Court of Bryan County, Oklahoma, do not constitute a sufficient basis for the issuance of the commitment that placed the said Claude Lee Baeza in the State Industrial School at Helena, Oklahoma.”

Attached to the petition are certain exhibits, as follows :

First: Copy of a letter written by W. H. Ritchey, county judge, addressed to Mrs. Baeza, 517 N. E. 5th Street, Durant, Oklahoma, dated October 14, 1946, which has reference to the necessity of her son, Claude Lee Baeza, the petitioner herein, attending school.

Second: Copy of the complaint filed in juvenile court on November 13, 1946. In this complaint, which was sworn to by Wanda M. Turner, advisor for the city public schools of Durant, it is alleged:

“That Claude does not attend school regularly and comes on the school ground at times then goes home without attending classes. When checked on at home is not there and his mother does not know where he is and seemly does not care, he is a bully with smaller children and in general has a bad influence on school attendance.”

Third: A summons notifying Mrs. Baeza, the mother of Claude Lee Baeza, was shown to have been served on her on November 13, for her appearance before the county judge on November T5, 1946.

The record does not disclose what kind of a hearing was had on November 15, 1946, but on January 29, 1947, a petition was filed in the juvenile court signed by W. H. Ritchey, county judge of Bryan county. This petition alleged that Claude Lee Baeza was fourteen years of age, and was a ward of the juvenile court of Bryan county, and prayed that a summons and notice as required by law be issued, and that Claude Lee Baeza be committed to the care and custody of the Whitaker State Orphan Home, at Pryor, Oklahoma.

Fourth: On January.29, 1947, an order was made and entered by the juvenile court of Bryan county committing the said Claude Lee Baeza to the Whitaker State Orphan Home, at Pryor, Oklahoma, to remain there temporarily and subject to the orders of the county judge of Bryan county, or until discharged by the board of control of said institution. This order also recites that the father of Claude Lee Baeza was present at the time said order was entered.

Fifth. A receipt signed by T. M. Childers, Superintendent of Whitaker State Orphan Home, at Pryor, showing that Claude Lee Baeza was received there on January 30, 1947.

While the record is not very clear, it seems that Claude Lee Baeza appeared in the city of Durant about March 18, 1947, That his attorney immediately.thereafter had a conference with the county judge of Bryan county, and the district judge, and advised them that it was believed that said child had been released from the Whitaker State Orpan Home, and that he was ready to file a petition for habeas corpus for his release. That soon thereafter and on March 21, 1947, the county judge entered an order in the juvenile court of Bryan county, finding that the petitioner herein had “escaped” from the Whitaker Orphan Home, and committing him to the State Industrial School for boys at Helena, Oklahoma, “to be safely kept under the direction of the Board of Control of State Charitable Institutions until discharged by due course of law.” In this order it is recited that Mrs. Baeza, mother of the minor, was present in court. It is further recited therein:

“The court further finds, that the statements and all allegations contained in the petition are true; that said child has been committed to the State Orphan Home at Pryor, Oklahoma, and has escaped from same and is at home in Durant, Oklahoma and works on his father’s trash wagon cleaning the alleys and rear of stores of refuse and trash and hauling same to the dump grounds of the city of Durant. * * *
“And whereas, on the 18th and 19th day of March, 1947, said child did break said parole by knowingly and unlawfully remaining out of school and in violation of an agreement entered into between his and his parents attorney and the county judge that the child would return to his class in school and remain in daily attendance unless excused by illness; that the child’s parents at once violated said agreement and has continued the violation and kept said at work.”

As stated in the Hollowell case, snpra, “the records of the juvenile court of Bryan county are not as full and complete as they should have been.” It appears that either the father or the mother was summoned to appear at each hearing, however, and that at least one of them was present in court at the time the order was made committing the said Claude Lee Baeza. There is nothing in the record which shows that a demand was made for trial by jury, as provided by the statute (Tit. 10 O. S. 1941 § 102). It will, therefore, be considered waived. While the record is not complete, it reveals that the minor had left or escaped from Pryor, and had returned to his home in Durant. A hearing was then had, and on March 21, 1947, he was committed to the State Industrial School for Boys at Helena, as above stated.

We do not find that Claude Lee Baeza has been deprived of any of his constitutional or statutory rights, and find that the petition for writ of habeas corpus should be denied. It is so ordered.

JONES and BRETT, JJ., concur.


text:
    R. L. PHILLIPS v. STATE.
    No. A-10766.
    Sept. 24, 1947.
    (185 P. 2d 239.)

      Alvin C. Bruce, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, R. L. Phillips, was charged by information filed in the district court of Carter county with the crime of murder, allegedly committed on November 13, 1915, upon the person of one Willie Sides; the defendant was tried, convicted of manslaughter in the first degree, and his punishment fixed at 25 years impris.onment in the State Penitentiary.

Counsel for defendant filed a brief in this court on September 12, 1916, in which brief there was presented for consideration several assignments of error. Since that time no brief has been filed on behalf of the state, although an order was entered by this court on March 5. 1917, directing the state to file an answer brief within 30 days from that date. Where the brief of the defendant presents assignments of error supported by ample legal authority and no answer brief contesting the contentions of defendant is filed on behalf of the state, this court indulges the presumption that the state is unable to find authorities to dispute the proposition of law presented on behalf of the accused.

The defendant at the time of the homicide was 59 years of age and weighed about 14=0 pounds. The deceased was a man 51 years of age, about six feet four inches in height and Aveighed about 205 pounds. Both of the parties had been friends for a long number of years and originally lived in Stephens county, Okla. The defendant had come to Carter county and secured employment for several months before the deceased asked him to assist him in finding work for himself and his family. The defendant had been married but was divorced. The wife of the deceased had died several years prior to his death. The deceased had four children, three boys and a daughter, Martha Sides, Avho Avas the youngest of the children and 15 years of age at the time of the alleged homicide. All of the parties were uneducated, tenant farmers. The proof both on behalf of the state and defendant showed that the deceased was high tempered, easily offended, and eager to fight while in that state of mind.

At the time of the alleged homicide all of the parties were living together in the same house and were doing odd jobs for farmers and ranchmen in the community where they resided. On the morning of the fatal difficulty, the defendant together with Joe Sides, one of the sons of the deceased, and Martha Sides had gone to a pecan grove to pick up pecans. About 30 minutes later the deceased and two other of his sons came to the grove. One of the sons and the daughter got into an argument when the daughter accused the son of gathering pecans in her row. The deceased became angry at his children and started to whip his daughter with a light stick. The defendant who was picking up pecans across the fence interceded and asked the deceased not to molest the girl who he said was attending to her own business. An argument started between the deceased and the defendant, the deceased started over the fence toward defendant. Here the evidence of the state and defendant varies. The children of the deceased who testified for the state swore that the defendant came up to the fence to meet the deceased and they began grappling at the fence and it was during this encounter that the defendant struck the deceased with his knife which caused the deceased to bleed to death a few minutes later. The defendant testified that the deceased reached over the fence and got him where he was sitting on the ground picking up pecans and pulled him over against the fence. He admitted striking the deceased, but stated it was in self-defense after the deceased had cut him with his pocketknife.

The defendant was a pauper and counsel who appeared for him was appointed by the court. Prior to the appointment of present counsel for defendant, the court had appointed other counsel to represent him, but for various causes they had withdrawn from the case. Present counsel who represented the defendant was appointed three days before the trial began.

The first assignment of error is the contention that the trial court erred in permitting the state’s witness, Martha Sides, to testify over the objection of counsel for defendant, that the defendant had been having sexual intercourse with her since she was eight years of age. Martha Sides was allowed to testify at length concerning various acts of sexual intercourse allegedly committed by the defendant with her over a period of years. This particular point was very much disputed and many witnesses were questioned by the state and counsel for defendant trying to prove or disprove this issue. A reading of the record discloses that almost as much evidence was devoted to the issue of whether the defendant had been having sexual relations with Martha Sides and also with her alleged relations with other parties as was devoted to the facts and circumstances surrounding the alleged murder. This was a collateral issue and should not have been injected into the case.

This court has many times stated that where defendant is upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and evidence of other offenses than the one charged is admissible only when it has some connection with the offense charged. Stanfield v. State, 30 Okla. Cr. 82, 235 P. 256; Frazier v. State, 31 Okla. Cr. 322, 239 P. 186; Michelin v. State, 66 Okla. Cr. 241, 90 P. 2d 1081; Nemecek v. State, 72 Okla. Cr. 195, 114 P. 2d 492, 135 A. L. R. 1149; Bunn v. State, 85 Okla. Cr. 14, 184 P. 2d 621.

There are certain exceptions to the general rule above stated and we have held that evidence of other offenses may be admitted, where they are a part of the res gestae, or a part of a systematic scheme or plan so related to each other that the proof of one tends to establish the other, or to show the unlawful intent on the part of defendant where such intent is an issue in the case.

In Bunn v. State, supra, this court stated:

“Before evidence of other offenses may be admitted against the accused to show a common scheme or plan or intent, such other alleged offenses must not be remote as to time and there must be a visible connection between such other alleged offenses and the charge alleged against the accused in the information.
“The fact that one person may commit similar crimes does not justify the admission of the other offenses if they are independent of each other. Where the trial court cannot clearly see a visible connection between the alleged other offenses to the one charged, he should refuse to admit the other offenses in evidence. If the trial court is uncertain as to the admissibility of such evidence, he should give the benefit of such doubt to the defendant, as it is manifestly unfair to the accused to force him to prepare to defend himself against any collateral crime other than the one charged against him in the information.”

It is our opinion that the court committed reversible error in admitting the testimony of Martha Sides concerning the alleged commission of rape by the defendant on her. Such testimony served to inflame the minds of the jury and in all probability tended to turn them from the real issues in the case.

With this conclusion established, it is unnecessary for us to discuss the other assignments of error presented in the brief of counsel for defendant, as these assignments are directed to matters which will not occur upon a retrial of the case. Among these assignments of error are the following: That the court erred in forcing the defendant to trial without giving his counsel adequate time for preparation; the court erred in overruling the motion for new trial on the ground of newly discovered evidence material to the defense which counsel with reasonable diligence was unable to have and produce at the trial. Counsel for defendant make the further contention that even though this court should decide that no one of his propositions might be reversible error, that when they are considered altogether, to wit: forcing defendant to trial witliin three days after counsel was appointed for him in a capital case, the admission of the evidence of rape allegedly committed at various times with a daughter of deceased, and certain treatment of the witnesses for the state by the county attorney which facts were not known until after the trial was had, all showed that the defendant had not been given a fair and impartial trial guaranteed him under the Constitution and statutes of the state.

As above noted, it is unnecessary to consider these assignments of error other than the one we have discussed at length. We merely repeat them in this opinion so that the trial court may be advised as to the contentions which were presented on appeal so that such questions could be avoided if another trial is had.

For the reasons hereinabove stated, the judgment and sentence of the district court of Carter county is reversed and the case is remanded with instructions to grant the defendant a new trial.

BAREFOOT, P. J., and BRETT, J., concur,


text:
    JOSEPH OVILA SAVALIER v. STATE.
    No. A-10684.
    Oct. 1, 1947.
    (185 P. 2d 476.)

      Wade Arends, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for defendant in error.
   JONES, J.

This is an appeal by the defendant, Joseph Ovila Savalier, from a conviction in the court of common pleas of Oklahoma county, for the crime of unlawful possession of intoxicating liquor.

Only two questions are presented by the appeal. It is first argued that the trial court erred in admitting in evidence as part of the state’s case in chief the search warrant issued by the magistrate and used by the officers in making the search of defendant’s premises.

The record discloses that at the time the search warrant was offered in evidence, counsel for defendant strenuously objected to its admission, but the objections were overruled with an exception allowed to defendant. Counsel for defendant furthermore repeatedly made objection to the witness testifying from the search warrant and at the conclusion of the testimony of the witness, Caldwell, counsel moved for a mistrial because of the introduction of the search warrant in evidence, which motion likewise was overruled.

The search warrant contains a long recital of the evidentiary facts recited in the affidavit for search warrant. These recitals of facts are similar to those used in many of the forms of affidavits frequently used in procuring warrants for the search of property for intoxicating liquors. Among other things, it alleged that the affiant had personal knowledge that the premises were used for the storage of intoxicating liquors for the purpose of violating the laws of Oklahoma and that affiant had personal knowledge that devices, furniture, fixtures and other appliances for use in selling and disposing of intoxicating liquors were on said premises; that persons congregated at said building for the purpose of buying and drinking intoxicating liquors, etc. The return on the search warrant recited that the defendant was in possession of said property at the time of the search.

The recitations in the search warrant and the return thereon tended to establish facts very materially against the defendant. The intent to barter, sell or otherwise dispose of intoxicating liquor contrary to law is a material element of the offense of unlawful possession of intoxicating liquor. The defendant did not take the witness stand; his character had not been placed in issue. The admission of the warrant placed the character of the defendant in issue which was highly prejudicial.

So far as we are advised, this court has, in every instance where such question has been raised, reversed the conviction of the accused and held the admission of a search warrant as independent evidence of defendant’s guilt was prejudicial error. Lucas v. State, 56 Okla. Cr. 413, 41 P. 2d 131; Bruner v. State, 44 Okla. Cr. 425, 281 P. 319; Weeks v. State, 41 Okla. Cr. 95, 270 P. 858; Williams v. State, 34 Okla. Cr. 359, 246 P. 895; Johnson v. State, 52 Okla. Cr. 76, 2 P. 2d 972.

The defendant also complains of the giving of instructions Nos. 5 and 6, which read as follows:

“You are further instructed that the possession of intoxicating liquor in an amount in excess of that provided by and alloived by law, is prima facie evidence of an intent to sell, convey or otherwise dispose of the same contrary to law.”
“But while this is prima facie evidence of an intent on the part of the defendant on trial to convey, barter, sell or otherwise dispose of the same contrary to law, it is a presumption which can be rebutted and removed by proof to the contrary.”

In the recent cases of Hughes v. State, 85 Okla. Cr. 25, 184 P. 2d 625; Id., 85 Okla. Cr. 35, 184 P. 2d 630; Id., 85 Okla. Cr. 37, 185 P. 2d 236; Id., 85 Okla. Cr. 39, 185 P. 2d 238, Judge Barefoot discussed the insufficiency of such instruction at length and those cases were reversed by reason of the giving of said instructions without making them full enough so as not to unfairly place the burden on the defendant of proving his innocence.

We suggest that in the future after the trial court has given an instruction based on the statute relative to the prima facie evidence of defendant’s guilt by reason of the possession in excess of one quart of intoxicating liquor (Tit. 37 O. S. 1911 § 82), he should give a further instruction defining the term prima facie evidence and we suggest that the instruction be given in substantially the following language :■ “The term ‘prima facie evidence’ as that term is used in the statute above mentioned is that degree of proof which unexplained or uncontradicted is sufficient, if it be credited by the jury, to establish the unlawful intent, yet it does not make it obligatory upon the jury to convict after the presentation of such proof; whether or not such evidence is sufficient to overcome the presumption of innocence of defendant and to establish his guilt beyond a reasonable doubt, when all the evidence is considered, is for the determination of the jury, and the term prima facie evidence as applied to the evidence does not shift the burden of proof from the state to the defendant.”

Counsel for the defendant further say the court should have gone further and instructed the jury that possession of whisky exclusively for a person’s own personal use is not a violation of law. As an abstract proposition of law the statement may be correct. The court’s instructions must be based on the issues. The defendant did not testify and offered no evidence in his behalf. There was nothing in the evidence to réquire the court to give such instruction. The record does not bring this case within the rule stated in Bock v. State, 80 Okla. Cr. 28, 156 P. 2d 381.

For the reasons hereinabove set forth, the judgment and sentence of the court of common pleas of Oklahoma county is reversed for this offense.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    WAYMON DOWELL v. HALL, County Judge.
    No. A-10866.
    Oct. 1, 1947.
    (185 P. 2d 232.)

      H. Tom Eight, Jr., of Claremore, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., H. P. Daugherty, Co. Atty., of Claremore, and W. M. Hall, pro se, for respondent.
   BRETT, J.

This case is here on a petition for writ of mandamus to require W. M. Hall, county judge of Rogers county, Okla., to certify his disqualification. It alleged, in substance, that the county judge was prejudiced against the petitioner, by reason of a trial had on February 19, 1947, presided over by said judge, in which there was a hung jury. The petition further alleged that the court manifested its prejudice by immediately setting the case for retrial on March 22, 1947. It further alleged that when the affidavit of disqualification was filed, the trial court refused to certify his disqualification. Petitioner contends as evidence of prejudice that said judge ordered the amended affidavit of H. Tom Eight, Jr., stricken from the record, but directed it to remain in the files.

Tlie affidavit of H. Tom Eight, Jr., alleged, in substance, personal dislike on the part of the county judge toward him as counsel for the defendant. As further grounds for the disqualification of the county judge, H. Tom Eight, Jr., alleges that the county judge is seen frequenting the county attorney’s office, and that if the said W. M. Hall is to preside over said trial, that petitioner will be prosecuted, not only by the county attorney’s office, but by the county judge as well. It developed in the proof offered by the petitioner in the proceedings below that the petitioner urged as a further ground for disqualification that Judge Hall had an opinion as to his guilt.

A close examination shows the petition and the amended affidavit of H. Tom Eight, Jr., consist largely of conclusions and expressions of opinions, and not a detail of facts.

To the petition, affidavit and amended affidavit, W. M. Hall, county judge of Rogers county, filed his response, alleging, in substance, that the petitioner has suffered no wrong or injury of any kind by reason of any of the acts of respondent; that the said judge has no prejudice against said defendant or his attorney, and that he is qualified to sit in the trial of said cause; and further alleges that said petition fails to state facts sufficient to constitute grounds for disqualification of the respondent.

The claim of prejudice herein stated is apparently based upon the provisions of art. 2, see. 6 of the Constitution, which reads as follows, to wit:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”

Answering the contentions of petitioner in order, we conclude the fact that the court may have presided at a prior trial of the same case is not grounds for disqualification. Sawyer v. State, 73 Okla. Cr. 186, 119 P. 2d 256, 257, wherein it was said :

“Personal knowledge of a trial judge of former proceedings had before him is not a matter for disqualification, nor is he disqualified to sit in a case because he has recently sat at the trial of another cause growing out of the same state of facts which resulted in a conviction.”

.Neither is the fact that the court acted with dispatch in resetting the case on March 22, 1947, following the first trial on February 19, 1947, grounds for a claim of prejudice. The petitioner had ample time to get ready for the retrial. If the matter had been too long delayed, no doubt he would have complained about that. It is the duty of the courts to afford the defendant speedy trial, of course, with due regard to sufficient time for preparation for trial. In setting the case as he did, the court was acting in light of the constitutional provisions against delay, supra.

The fact that the trial court, after considering the original affidavit and the amended affidavit of the attorney for petitioner, ordered same stricken from the record, but directed that it remain in the files, is not evidence of prejudice. In this regard, the procedure adopted by the trial judge is the proper practice in the event he refuses to disqualify. American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., D. C., 6 F. Supp. 215.

Moreover, the alleged dislike of the judge for the petitioner’s attorney is not grounds for disqualification of the judge. 48 C. J. S., Judges, § 82, note 27, page 1060; People v. Emmett, 123 Cal. App. 678, 12 P. 2d 92; Ex parte N. K. Fairbanks Co., D. C., 194 F. 978.

■ Furthermore, the fact the judge may have formed an opinion as to the guilt of the defendant is not necessarily grounds for disqualification. In Young v. State, 74 Okla. Cr. 64, 123 P. 2d 294, 298, this court said on that point:

“It does not mean that the judge may not have an opinion of the guilt or innocence of a defendant or may not be prejudiced against the crime with which he is charged but shall not entertain a personal prejudice against him. In order to disqualify, it must be shown as a matter of fact, and not as a conclusion, that the judge does entertain such personal prejudice.”

See, also, Pruitt v. State, 62 Okla. Cr. 38, 70 P. 2d 129; Newton v. State, 26 Okla. Cr. 216, 223 P. 195.

Neither does the fact that the county judge was a frequent visitor in the office of the county attorney afford evidence of prejudice. After all, the judge, “must have neighbors, friends, and acquaintances, business and social relations, and be a part of his day and generation. Evidently the ordinary results of such associations and the impressions they create in the mind of the judge are not the ‘personal bias or prejudice’ to which the statute refers.” Ex parte Fairbanks, supra. There is nothing in the record whatsoever to support this allegation from a factual standpoint.

It is not necessary that we review the evidence in support of the petition. It consisted entirely of conclusions and expressions of opinion.

The same may be said of the allegations of the petition, the affidavit and amended affidavit in support thereof. In this connection this court held, in the case of Pruitt v. State, supra:

“It is necessary that an application for a change, of judge on the ground of prejudice set forth the facts upon which the claim is made. Mere conclusions will not be sufficient.”

Both the pleadings and the proof must show on the part of the judge:

“111 will or hostility toward the defendant of such a character as might prevent him from giving the defendant a fair trial, and this must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person. A judge does not try the facts of a case. He simply passes upon the questions of law presented.” Ingles v. McMillan, 5 Okla. Cr. 130, 113 P. 998, 45 L. R. A., N. S., 511.

Upon an examination of the entire record, the pleadings, the transcript of the record taken below, and the evidence taken here, we are of the opinion that the writ should be, and the same is hereby denied.

BAREFOOT, P. J., and JONES, J., concur.


text:
    JOHN ALBERT POOLER v. STATE.
    No. A-10776.
    Oct. 1, 1947.
    (185 P. 2d 235.)

      A. L. Commons, of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Haskell A. Holloman, Asst. Atty. Gen., and Richard W. Smith, Co. Atty., Ottawa County, of Miami, for defendant in error.
   BAREFOOT, P. J.

Defendant, John Albert Pooler, was charged in the county court of Ottawa county with the crime of “driving a motor vehicle while under the influence of intoxicating liquor”; was tried, convicted and sentenced to pay a fine of $50 and costs, and has appealed.

A motion to dismiss the appeal has been filed by the Attorney General. The case was submitted on the record, and on the motion to dismiss. No briefs have been filed by the defendant, or by the state.

An examination of the record reveals that the judgment and sentence was entered on April 18, 1946, and on that date the execution of the judgment and sentence was stayed for a period of 60 days, for the preparation and service of case-made of appeal. No further extension of time was granted by the court. The case-made was signed and delivered on June 26, 1946, but the appeal was not filed with the clerk of this court until July 15, 1946. It is provided by Tit. 22 O. S. 1941, § 1054.

“In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, However, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

Under many decisions of this court, construing the above statute, the case-made was not filed within the time required by law, and for that reason, this court did not acquire jurisdiction under the facts presented in this case. McAdams v. State, 17 Okla. Cr. 740, 192 P. 428; Miller v. State, 41 Okla. Cr. 367, 273 P. 374; Buxton v. State, 41 Okla. Cr. 376, 273 P. 372; Logan v. State, 51 Okla. Cr. 448, 3 P. 2d 748; Wimberly v. State, 59 Okla. Cr. 230, 57 P. 2d 277; McKinsey v. State, 72 Okla. Cr. 59, 112 P. 2d 1112; Bouziden v. State, 78 Okla. Cr. 387, 149 P. 2d 99.

For the reason above stated, the appeal in this cause is dismissed.

JONES and BBETT, JJ., concur.


author: PER CURIAM.

text:
    Ex parte HENRY TIDWELL.
    No. A-10911.
    Oct. 8, 1947.
    (185 P. 2d 478.)

      H. M. Shirley, of Coalgate, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lavern Fishel, County Atty., Coal County, of Coalgate, for respondent.
   PER CURIAM.

Henry Tidwell filed in this court a petition for writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty in the county jail of Coal county by Thea Bonner, sheriff of said county.

He alleged that he had been arrested by the sheriff of Coal county and that on February 8, 1947, the Hon. W. B. Thornsbrough, county judge of said county, sitting as an examining magistrate, and after a preliminary examination, held said petitioner to answer to the district court of said county, without bail, upon a charge of rape in the first degree.

It was further alleged that petitioner had not been given a speedy trial as required by the Constitution and statutes of this state (Okla. Const. Art. II, § 20; 22 O. S. 1941 § 812). This part of the petition was withdrawn at the hearing on the rule to show cause, on July 23, 1947; and after the hearing, an order was entered directing that petitioner be granted bail pending his trial, in the district court of Coal county, in the sum of $1,000, said bond to be approved by the court clerk of Coal county, and when so approved, the petitioner to be released.

It is so ordered.


text:
    Ex parte DICK SPEARS.
    No. A-10913.
    Oct. 8, 1947.
    (185 P. 2d 479.)
    H. M. Shirley, of Goalgate, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lavern Pishel, Co. Atty., of Coal-gate, for respondent.
   PER CURIAM.

Dick Spears filed in this court a petition for writ of habeas corpus, alleging that he was unlawfully imprisoned and restrained of his liberty in the county jail of Coal county by Thea Bonner, sheriff of said county.

He alleged that he had been arrested by the sheriff of Coal county and that on February 8, 1947, the Hon. W. B. Thornsbrough, county judge of said county, sitting as an examining magistrate, and after a preliminary examination, held said petitioner without bail to answer to the district court of said county upon a charge of rape in the first degree.

It was further alleged that petitioner had not been given a speedy trial, as required by the Constitution and statutes of this state. Okla. Const. Art. II, § 20; Tit. 22 O. S. 1941 § 812. This part of the petition, however, was withdrawn at the hearing on the order to show cause in this court on July 23, 1947, and after the hearing, an order was entered, directing that petitioner be granted bail in the sum of One Thousand ($1000) Dollars, the bond to be approved by the court clerk of Coal county, and when so approved, petitioner to be released.

It is so ordered.


text:
    Ex parte GRACE SPEARS et al.
    No. A-10914.
    Oct. 8, 1947.
    (185 P. 2d 480.)
    H. M. Shirley, of Coalgate, for petitioners.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Lavern Pishel, Co. Atty., of Coal-gate, for respondent.
   PER CURIAM.

Grace Spears and Lorice Cox filed in this court a petition for writ of habeas corpus, alleging that they were unlawfully imprisoned and restrained of their liberty in the county jail of Coal county by Thea Bonner, sheriff of said county.

They alleged that they had been arrested by the sheriff of Coal county and that on February 8, 1947, the Hon. W. B. Thornsbrough, county judge of said county, sitting as an examining magistrate, and after a preliminary examination, held said petitioners, without bail, to answer to the district court of said county upon charges of rape in the first degree.

It was further alleged that petitioners had not been given a speedy trial, as required by the Constitution and statutes of this State. Okla. Const. Art. II, 20; Tit. 22 O. S. 1941 § 812. This part of the petition, however, was withdrawn at the hearing on the order to show cause in this court on July 23, 1947. After said hearing, an order was entered directing that petitioners be granted bail pending their trial in the district court of Coal county. The bail of Grace Spears was set at One Thousand ($1000) Dollars, and that of Lorice Cox at Fifteen Hundred ($1500) Dollars, said bonds to be approved by the court clerk of Coal county, and when so approved, petitioners to be released.

It is so ordered.


text:
    Ex parte JIM S. SCOTT.
    No. A-10879.
    Oct. 8, 1947.
    (185 P. 2d 482.)

      Jim S. Scott, of McAlester, pro se.
    Mac Q. Williamson, Atty. Gen., for respondent.
   JONES, J.

This is an original action in habeas corpus instituted by the petitioner, Jim S. Scott, to secure his release from confinement in the State Penitentiary.

In the verified petition it is alleged that the petitioner was sentenced on February 8, 1933, by the district court of Marshall county to serve 100 years in the State Penitentiary, upon a conviction for the crime of manslaughter in the first degree. It is further alleged that during the trial of the petitioner, the defendant was deprived of his right to introduce certain facts which would have been material to his plea of self-defense. It is further alleged that the sentence pronounced against the petitioner is excessive under the facts and circumstances of the case. The petition sets forth a lengthy narrative concerning the relationship which existed between the petitioner and the deceased, Abe Works, to show that the petitioner was justified in taking the life of the deceased.

The cause was submitted to this court upon a demurrer to the petition filed by the Attorney General upon behalf of the warden of the State Penitentiary.

The allegations in the petition as to the facts if sustained by the record would probably have obtained some reduction in the sentence pronounced against the petitioner, if the case had been appealed. However, in a habeas corpus proceeding, the Criminal Court of Appeals cannot weigh the evidence or reduce the sentence which has been imposed against the petitioner, but may give relief only when the judgment and sentence pronounced against the accused are void. Ex parte Wright, 73 Okla. Cr. 167, 119 P. 2d 97.

Since there are no allegations in the petition which show that the district court of Marshall county was without jurisdiction to render the particular judgment, it follows that the demurrer to the petition should be sustained and the writ of habas corpus should be denied.

It is so ordered.

BAREFOOT, P. J., and BRETT, J., concur.


text:
    STATE v. PAULINE MANARD.
    No. A-10812.
    Oct. 8. 1947.
    (185 P. 2d 483.)

      J. M. Springer, Co. Atty., of Nowata, and Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for plaintiff in error.
    J. V. Hostutler, of Watonga, amicus curiae.
    Charles E. France, of Oklahoma City, amicus curiae.
   JONES, J.

The constitutionality of House Bill 647 of the Fourteenth Legislature commonly known as. the “Beer Law,” 37 O. S. 1941 § 1 et seq., which act was approved by a majority vote of the people of Oklahoma in a special election July 11, 1933, by vote of 224,298 to 129,-582, is here involved.

The defendant was charged by an information filed in the county court of Nowata county with unlawfully selling a pint bottle of beer commonly called “Progress Beer,” which is alleged to contain 3.2 per cent of alcohol. Upon arraignment of defendant in the county court of Nowata county a demurrer was interposed to the information. After argument of counsel the demurrer was sustained; the state elected to stand on the information and this appeal has been prosecuted by the state on a reserved question of law.

It is admitted for the purpose of this hearing that the beverage in question was one of those beverages defined as “non-intoxicating” by the act in question. However, it is contended by the county attorney that the 1933 act is unconstitutional for the reason that it permits the sale whereas the Constitution has specifically prohibited the sale of beer by name without regard to its alcoholic content or its intoxicating quality.

Counsel for the state, several months prior to the filing of the information which is the basis for this action, brought an action in the district court of Nowata county to enjoin the sale of beer and the issuance of a license for the sale of beer under the 1933 act. The identical question here presented was involved in that proceeding. The district court of Nowata county sustained a demurrer to the petition. Counsel for the state elected to stand on their petition and an appeal was taken to the Supreme Court of this state. On May 20, 1947, the Supreme Court rendered an opinion affirming the judgment of the district court, State ex rel. Springer, County Attorney, v. Bliss et al., 199 Okla. 198, 185 P. 2d 220. Petition for rehearing has been denied, so that that opinion is now final.

The law of that case as shown by the syllabus reads as follows:

“1. In adopting the prohibition ordinance to the Constitution, which forms the asserted foundation of this action, the single intention was to prohibit intoxicating liquor and intoxicating beverages of any kind or any name.
“2. In the prohibition ordinance to the Constitution which is the basis of this action there is no indication whatever of any intent to single out any beverage by name only and to prohibit same because it bore some particular name without regard to its alcoholic content or to its propensity to intoxicate the consumer.
“3. The provisions of the prohibition ordinance to the Constitution here relied upon authorize any proper official to take authorized steps to prevent or punish sale of intoxicating liquor or beverage, by whatever name it is called. But there is nothing therein to authorize an official to select merely a name, as beer, and to so proceed in injunction, claiming the right so to do whether the named beverage is intoxicating or not, or whether the named beverage contains a prohibited percentage of alcohol and claiming the same right to so proceed whether the named beverage has any alcoholic content at all.
“4. It seems to have been the settled rule since shortly after statehood that in a criminal action based upon the constitutional prohibition provision, the action could not be maintained unless the beverage or liquor involved was intoxicating, and the proper procedure has been to describe the beverage involved with the allegation that it is intoxicating. (Moss v. State, 1910, 4 Okla. Cr. 247, 111 P. 950.)
“5. A petition for injunction against a place of business on the sole ground that beer is sold therein and with no allegation or complaint as to the conduct and manner of the operation of the business and with no allegation, or contention as to the alcoholic content or intoxicating quality of the product being sold does not state a cause of action.
“6. The prohibition ordinance of the Oklahoma Constitution prohibits the sale of intoxicating liquors only and does not prohibit the sale of beer, as such, or by name, and without regard to the intoxicating quality of the product sold, and the statutes of Oklahoma do not make unlawful the sale of beer, as such, but only when such product contains in excess of 3.2% alcohol by weight.”

We have fully considered that opinion. The majority opinion thoroughly discusses the question involved and there is ample legal authority for the conclusions reached by the majority.

We are not unmindful of the able dissenting opinion by the Chief Justice of the Supreme Court and the arguments there contained to show the unconstitutionality of the beer law.

But without expressing an opinion on -the merits of the question involved, we feel impelled through a consideration for the orderly administration of our laws to folloAV the opinion of the Supreme Court.

If we should attempt to do otherwise, it is easy to picture the chaos that might develop in any attempted prosecution for the alleged selling of a beverage containing 3.2 per cent of alcohol. Under the law, the Supreme Court, Criminal Court of Appeals, district courts and .county courts, have concurrent original jurisdiction to issue writs of habeas corpus. State ex rel. Wester v. Caldwell, 84 Okla. Cr. 334, 181 P. 2d 843. A county attorney might choose to file an information charging the sale of 3.2 per cent beer without an allegation that it was in fact intoxicating. The accused could immediately petition the Supreme Court or any of the above named courts for a writ of habeas corpus to secure his discharge, which the Supreme Court or any district court, or county court under the authority of the opinion rendered by the Supreme Court could sustain. Such an intolerable conflict will not be permitted to arise.

The county attorney of Nowata county had the choice of forums in which to bring a test case to determine the constitutionality of the act in question.

He elected to test the constitutionality of such act in the civil courts in an attempt to obtain injunctive relief. The appeal from an adverse decision by the district court of Nowata county was filed in the Supreme Court approximately six months before this appeal was taken. The opinion of the Supreme Court was rendered before this case was briefed or argued in the Criminal Court of Appeals.

It is apparent under the authority of the opinion of the Supreme Court that no prosecution for the sale of beer can be maintained without an allegation and proof of its intoxicating quality, unless the alcoholic content exceeds 3.2 per cent.

The judgment of the county court of Nowata county sustaining a demurrer to the information is affirmed.

BAREFOOT, P. J., and BRETT, J., concur.