text:
    B. E. BRASHEARS et al. v. STATE.
    No. A-6089.
    Opinion Filed Oct. 1, 1927.
    (259 Pac. 665.)

      E. G. Wilson and S. E. Dunn, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Tulsa county on a charge of forgery in the second degree, and were each sentenced to serve a term of 3% years in the state penitentiary.

The prosecution is based on section 2095, Comp. Stat. 1921, which is as follows:

“Any person who, by false representation, artifice or deceit procures from another his signature to any instrument, the false making of which would be forgery, and which the party signing would not have executed had he known the facts and effect of the instrument, is guilty of forgery in the second degree.”

The charging part of the information is:

“* * * That B. E. Brashears and Walter Fulsome and each of them, on the 11th day of June, A. D. 1924, in Tulsa county, state of Oklahoma, and within the jurisdiction of this court, did unlawfully, wilfully, wrongfully, and feloniously, by means of artifice and deceit, procure the signature of another, to wit, one Ellis Rogers to a certain instrument in writing, purporting to be a warranty deed, dated June 11, 1924, between Ellis Rogers party of the first part and Sarah Shelbun and E. I. Saddler, party of the second part, and purporting to transfer and convey for the consideration of $1, and other good and valuable consideration, certain, real estate in Mayes county, state of Oklahoma, to wit, S. W. 14 of S. E. 14 and the S: W. % of S. E. % of S, E. 14 of S. W. % and lots 6 of section 34, township 20 north, range 19 east, the record title to which said land was then and there held and owned by the said Ellis Rogers in the manner and form as follows, to wit: That said defendants and each of them exhibited to the said Ellis Rogers an oil and gas lease covering the lands above described and procured the consent of said Ellis Rogers to attach his signature to said oil and gas lease, and by artifice and deceit caused to be placed immediately under said purported oil and gas lease, a warranty deed as above set out purporting to transfer and convey the land above described to said Sarah Shelbun and E. 1. Saddler, and did then and thereby represent to the said Ellis Rogers that he was signing an oil and gas lease, when in truth and in fact said defendants and each of them by said fraud, artifice, and deceit substituted said warranty deed for said oil and gas lease and caused and procured the said Ellis Rogers to affix his signature to said warranty deed, and which said signature he (the said Ellis Rogers) would not have affixed to said deed if he had known the facts and effect of said instrument, with the unlawful and felonious intent then and there upon the part of said defendants, and each of them, by said fraud, artifice and deceit, as herein stated and set out, to beat, cheat, and defraud the said Ellis Rogers out of the title and possession of the real estate described in said purported warranty deed. * * *”

We gather from the record that the defendants and most of the witnesses are negroes. Ellis Rogers, the prosecuting witness, owned a tract of land in Mayes county. By the theory of the state, defendant approached him in reference to leasing the land for oil and gas, and he was by Fulsome taken to defendant Brashears and an agreement made to lease his land. Instead, however, of executing a lease, they procured a warranty deed from Rogers to Sarah Shelbun, the common-law wife of defendant Brashears, and E. I. Saddler, a negro attorney at Tulsa, as grantees. Rogers testified he believed he was signing a lease, that he received no consideration whatever.' Defendants testify that they made a contract with Rogers for the purchase of his land for $500, paid him the sum of $50 in cash, and were to pay him the remainder when they sold the land. The evidence is in irreconcilable conflict.

The first contention argued is that the information is insufficient to charge an offense under section 2095, Comp. Stat. 1921, supra, in that it does not allege the substance of the instrument charged to have been forged, nor plead a copy thereof, and does not allege that the deed was delivered. No demurrer was interposed to this information. The claim for insufficiency was first made by an objection to the introduction of testimony. It is the uniform holding of this court that, where a defendant for the first time objects to the sufficiency of the information when the state attempts to introduce its evidence, the objection should be overruled if by any intendment, inference, or presumption the information can be sustained. There is sufficient allegation of the substance of the deed which, tested by this rule and indulging the intendments and inferences arising from the allegations made, sustain the information. Upon this point, the record further discloses that the objection to the sufficiency of the information was not called to the attention of the trial court in the motion for a new trial. Where this is not done, the error is waived unless jurisdictional or fundamental.

The further complaint is made that the verdict is contrary to, and not supported by, sufficient evidence. Upon this point defendants argue that the evidence does not disclose that the deed was procured by the deceit of placing an oil and gas lease over the deed and thereby procuring the signature of Rogers as alleged, and further argue at length the weight and credibility of the evidence. The evidence does not clearly show an oil and gas lease was placed over a deed and the signature procured by a substitution as alleged, although there is testimony in support of this view. However, the particular manner in which the signature was procured is not the gist of the charge. The essential element of the fraud practiced is that the false representation made by defendants to Rogers, that he whs signing an oil and gas lease instead of a warranty deed, induced him to sign the instrument. This is abundantly testified to. A difference in the manner in which the signature of Rogers to the deed was procured, if in a manner similar to that charged, does not constitute a fatal variance so long as it is not repugnant to the allegation made and the difference is not such as would mislead or prejudice defendants. It would not make any particular difference so far as deceiving the person defrauded that a warranty deed was substituted for a lease, or he was tricked in some other manner into signing it, so long as he acted on the representation that the deed he signed was a lease. The result is the same.

In the case of Woods v. State, 22 Okla. Cr. 365, 211 P. 519, this court held:

“A variance in a criminal case is an essential difference between the accusation and the proof, and a variance is not material unless it is such as might mislead the defense, or expose the defendant to the injury of being put twice in jeopardy for the sanae offense.”

The same principle has been frequently held by this court, and indeed it is the generally well-recognized rule of law.

No reason why this court should interfere with the verdict and judgment is apparent.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


source: Caselaw Access Project

author: EDWARDS, J

license: Public Domain

text:
    H. G. WALKENHORST v. STATE.
    No. A-5087.
    Opinion Filed Oct. 1, 1927.
    (259 Pac. 663.)
    John Adams, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Logan county upon a charge of having the unlawful.' possession of intoxicating liquor, and was sentenced to pay a fine of $500 and to be imprisoned in the county jail for a period of 6 months.

The record discloses that on December 17, 1923, certain officers procured a search w'arrant, and searched the residence of defendant, and found therein a one-gallon jug of whisky. Defendant and his family testified that the same was kept for medicinal and family use.

The sufficiency of the affidavit for search warrant and the search warrant for the search of a private residence is challenged, it being contended that the requirements of section 7013, Comp. Stat. 1921, which prohibits the issuance of a search warrant to search a private residence unless some part of such residence is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort, was not complied with. The affidavit for search warrant is not a model, but it does allege intoxicating liquor was stored at the residence. It is not necessary that the affidavit use the exact words of the statute, but words of similar import may be used. Applying this liberal rule of construction, the affidavit is sufficient as against the objection made. The affidavit is further objected to as stating conclusions and not facts. This contention is not tenable.

Complaint is made of error in refusing defendant’s requested instruction and in the court’s instruction No. 5. The requested instruction is not signed by counsel, and the record does not show that the refusal to give this instruction was excepted to, nor is there any exception to any of the instructions given. When no exceptions are taken, the objections are waived unless jurisdictional or fundamental in character. No errors requiring a reversal are apparent.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


author: DOYLE, P. J.

text:
    GRACE THOMPSON et al. v. STATE.
    No. A-6102.
    Opinion Filed Oct. 1, 1927.
    (259 Pac. 663.)

      Hill & Criswell, for plaintiffs in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The appellants were jointly tried and convicted on an information charging that they did have in their possession 35 bottles of Choctaw beer, said beer containing more than one-half of 1 per cent, of alcohol measured by volume, and in accordance with the verdict of the jury were each sentenced to pay a fine of $75 and to be confined in the county jail for 45 days. To reverse the judgment they appeal.

The record shows that when the case was called for trial appellants filed a motion to suppress the evidence, because the same was obtained by an unlawful and unauthorized search of their home. In support of the motion, J. R. Robertson, undersheriff, testified that he participated in the raid upon the home where the defendant lived; that there was a search warrant, but he did not have it, and did not know whether any affidavit had been filed or not.

Both defendants testified that they were not at home that afternoon when the officers raided their home.

Paul Kemp testified that he works in the oil fields from 12 o’clock at night to 12 in the day time, and rooms with the defendants, and was there when the officers came and searched the place; that nothing was said about a search warrant.

Grady Nelms testified that he was constable of Brown township and went to the Homer Deggs’ place for the purpose of making a raid with Undersheriff Robertson; that he had a search warrant issued by Judge Chastain on an affidavit made by him; that he found a man on the place and asked him where the girls were, and he said they were gone, and he gave the search warrant to the man. That these ladies, the defendants, were supposed to be running the place.

At the close of the evidence for the state, the defendants each moved the court to instruct the jury to find her not guilty. They were both overruled.

In rebuttal, R. N. Chastain testified that he was justice of the peace of Brown towhship, Seminole county; that he did not on the day alleged issue a search warrant for the home and premises of these defendants; that he had examined his records, and there was no record of having ever issued any search warrant for this place.

The only affirmative testimony as to a search warrant is that of the witness Nelms, constable of Brown township.

In view of the testimony of R. N. Chastain, justice of the peace of Brown township, that no affidavit for a search warrant was made as testified by Constable Nelms, and that he did not issue a search warrant for the home of these defendants, and the fact that no return was made by the officers of the execution of a search warrant, and the further fact that there was no competent evidence tending to show that the bottles seized contained intoxicating liquor, we think the motions for a directed verdict should have been sustained. Smith v. State, 33 Okla. Cr. 392, 246 P. 1109; Howell v. State, 33 Okla. Cr. 292, 243 P. 997; McClary v. State, 34 Okla. Cr. 403, 246 P. 891.

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

EDWARDS and DAVENPORT, JJ., concur.


text:
    GROVER HAMILTON v. STATE.
    No. A-6149.
    Opinion Filed Oct. 4, 1927.
    (259 Pac. 664.)
    W. L. Chase, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error was convicted in the district court of Adair county on an information charging the unlawful possession of one-half gallon of whisky, second offense, and in accordance with the verdict of the jury was sentenced to- pay a fine of $50 and be confined in the county jail for 60 days.

From the judgment an appeal was perfected, but no brief has been filed and no appearance made in behalf of plaintiff in error in this court.

In cases of this kind we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. We have carefully examined the record, and the information, verdict, and judgment all appear to be regular, and we have discovered no error which will warrant a reversal of the judgment. The judgment is therefore affirmed.

EDWARDS’ and DAVENPORT, JJ., concur.


text:
    BILL KIRK v. STATE.
    No. A-6342.
    Opinion Filed Oct. 4, 1927.
    (259 Pac. 667.)
    Woodson E. Norvell and Edward E. Harvey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty., Gen., for the State.
   DOYLE, P. J.

Appellant, Bill Kirk, was convicted of burglary in the second degree alleged to have been committed in Tulsa county, November 2¡3, 1925, and in accordance with the verdict of the jury was sentenced to imprisonment in the penitentiary for a term of two years, the judgment rendered February 1'8, 1926. From the judgment an appeal was perfected by filing in this court on August 7, 1926, petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal on the ground that since the appeal was taken appellant departed from the state of Oklahoma to the state of Kansas, where, on September 27, 1926, appellant was convicted of the crime of second degree burglary, and sentenced to imprisonment in the industrial reformatory of said state for the maximum term of ten years, and is now confined in said reformatory serving said imprisonment as appears from communications addressed to the county attorney of Tulsa county by A. W. Ford, record clerk of the industrial reformatory of the state of Kansas, wherefore the Attorney General prays to dismiss the appeal herein for the reason that appellant is now a fugitive from justice and is without the jurisdiction of this court and cannot be made to respond to any judgment that might be rendered against him on this appeal.

Under repeated decisions of this court, it is held that where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider the appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case, and where a defendant makes his escape from the custody of the law and becomes a fugitive from justice pending the determination of his appeal the same will be dismissed. Boswell v. State, 14 Okla. Cr. 336, 170 P. 1175; Christman v. State, 22 Okla. Cr. 67, 209 P. 969; Daley v. State, 23 Okla. Cr. 355, 214 P. 941.

Appellant having failed to controvert the motion to dismiss the appeal, and it being apparent that he has left the jurisdiction of the state of Oklahoma, and cannot be made to respond to any affirmative judgment or order which may be rendered in the case, the appeal herein is dismissed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    J. B. ALFORD v. STATE.
    No. A-6166.
    Opinion Filed Oct. 4, 1927.
    (259 Pac. 670.)
    Bicking & Wilson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Plaintiff in error, J. B. Alford, was convicted on a charge that on or about the 8th day of August, 1925, within the corporate limits of the city of Tulsa, he did have in his possession one gallon of alcohol with the unlawful intention to sell the same, and in accordance with the verdict of the jury he was sentenced to pay a fine of $100 and imprisonment in the county jail for 90 days.

The evidence shows that the officers on the day alleged raided the Baltimore Drug Store, 309 East Second street, Tulsa, and found two bottles of Jamaica ginger and a gallon can of alcohol. One of the three or four officers testifying said that it was grain alcohol.

When the case was called for trial, defendant moved to suppress the evidence on the ground that the affidavits upon which the search warrant was based is sworn to on information and belief, and said search warrant was therefore void and illegally issued.

The affidavit upon which the search warrant issued reads:

“Ned Gritts being duly sworn, upon oath deposes and says: That he has probable cause to believe that certain intoxicating liquor is being manufactured, sold, * * * to wit: Wine, beer, whisky, and other intoxicating liquors; that he believes the same to be true for the reason that the place has the reputation of being a place where intoxicating liquor is kept in violation of law.
“That said liquor is being disposed of, and kept in the manner aforesaid by one John Doe, whose real name is unknown to informant, on the following described premises, situate in the city of Tulsa, Tulsa county, Okla.; Certain Baltimore Drugs located at 319 East 2d St.”

It is the uniform holding of this court that issuance of a search warrant to search premises for intoxicating liquor is unauthorized when based on an affidavit made on information and belief, and evidence obtained by a search of the defendant’s premises under such illegal search is inadmissible against him, and that the same rule applies to oral testimony of officers relating to such search and seizure. Magin v. State, 25 Okla. Cr. 361, 220 P. 666; Whitehead v. State, 28 Okla. Cr. 193, 230 P. 291; Committi v. State, 28 Okla. Cr. 380, 231 P. 316; Carigano v. State, 31 Okla. Cr. 228, 238 P. 507; Lewis v. State, 32 Okla. Cr. 431, 241 P. 835.

It appearing that all the' state’s- evidence in this case was obtained -by an unlawful search and seizure and contrary to Const, art. 2, § 30, and that the same was improperly admitted against the defendant in violation of his right under Const, art 2, § 21, the judgment appealed from will be reversed and the cause remanded, with direction to dismiss.

EDWARDS and DAVENPORT, JJ„ concur.


author: EDWARDS, J.

text:
    BILL BRINSFIELD v. STATE.
    No. A-6098.
    Opinion Filed Oct. 5, 1927.
    (259 Pac. 875.)

      Huggins & Huser, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Seminole county of having the unlawful possession of a still and was sentenced to serve a term of 90 days in the county jail and to pay a fine of $200.

Several assignments of error are argued: First, that chapter 42, Second Session of the Ninth Legislature, Session Laws 1923-24, the act under which the prosecution is based, is unconstitutional for the reason that the title of said act embraces more than one subject in violation of article 5, § 57, of the Constitution, which provides that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except certain excepted matters. The title of the act in question reads:

“An act relating to stills, distilleries, mash, wort, wash, fit for distillation or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquor, fixing the penalty for the violation thereof, and declaring an emergency.”

It is argued that stills are one subject; mash, wort, wash, etc., another subject. A narrow technical rule of construction should not be applied to the title of a legislative act, but such construction should be reasonable and liberal. The subject of this act is the implements and materials used in the manufacture of intoxicating liquor, and they are enumerated as stills, distilleries, mash, wort, and wash. The possession, manufacture, selling, advertising, setting up, or using of any of these implements or materials, or permitting the same to be used on the premises owned or controlled by any person, is made an offense. In the case of Kemp v. State, 35 Okla. Cr. 128, 248 P. 1116, the question here presented was discussed at length and the statute upheld as constitutional, it being there said:

“The word ‘subject,’ as used in section 7, art. 6 of the Constitution, is used in a broad and extended sense, and is the thing forming the generic head of the matter submitted. It may include numerous minor subjects relating, germane to, and having a mutual connection with, the subject proper.”

It is next argued that the court erred in permitting the state to introduce evidence obtained by illegal search. There is a conflict in the testimony as to whether or not the officers making the search had a search warrant. Some of the officers testified that one of their number had a search warrant, but it was not produced and could not be located, nor could any one by whom it was issued be found. If issued, no record nor return seems to have been made of it by the officers. The court is warranted in holding that they acted without a search warrant and the search of the residence was illegal. The still was found about 150 yards from the residence of the defendant, in a deserted place surrounded and concealed by grape vines. No search warrant was necessary for the search of the place where the still was found. Penney v. State, 35 Okla. Cr. 151, 249 P. 167; Merck v. State, 35 Okla. Cr. 160, 249 P. 163; Cummings et al. v. State, 37 Okla. Cr. 47, 256 P. 70.

. The finding of the still on the premises of defendant is prima facie proof of possession by defendant and the jury could have found no verdict other than guilty. The admission of the incompetent evidence procured by unlawful search of the residence of defendant may have contributed to the punishment assessed. Justice requires that the punishment be reduced to the minimum of confinement in the county jail for 30 days and to a fine of $50. Such reduction of punishment renders harmless the admission of the incompetent evidence complained of.

As modified the judgment is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    ROY RAMBO v. STATE.
    No. A-5645.
    Opinion Filed March 5, 1927.
    Rehearing Denied Oct. 8, 1927.
    (259 Pac. 602.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a liquor nuisance, and was sentenced to pay a fine of $500 and to be confined in the county jail for a term of six months.

The record discloses that in 1924 defendant had a filling station about nine miles southwest of Oklahoma City. On the date charged, certain federal officers with police officers from Oklahoma City went beyond this place some. 250 yards and observed a boy named Herman Cluck deliver bottles of liquid to some persons in a car. The officers thereupon approached, took charge of the occupants of the car, and. the Cluck boy ran to the place operated by Rambo. The officers followed and the purchasers then pointed out the boy who delivered them the beer, and the defendant, Rambo, as the person who had sold them a certain card or ticket which Was redeemable in “choc beer.” From the evidence we gather that defendant had a system of selling these tickets to purchasers, and the purchasers thereupon delivered the tickets to the agent or employee of Rambo for the “choc beer.”’ The officers then arrested Cluck and Rambo and seized a number of similar tickets and a quantity of beer in bottles. Thereafter defendant and others were, indicted in.the federal court, charged with a conspiracy to violate the National Prohibition Act (U. S. Comp. St. §1013814 et seq.), and were tried and acquitted.

Before proceeding to trial in this case, defendant moved to suppress the evidence, and thereafter entered a plea of former jeopardy on the theory that the indictment and trial in the federal court was for the same offense here charged. The issue of former jeopardy was not submitted to the jury. The indictment in the federal court, set out as a part of the plea of former jeopardy, shows upon its face that it is for a different offense than that charged in the case at bar, and for that reason the plea was bad on its face. The court properly excluded evidence on such plea. 8 R. C. L. pp. 143, 144; Dunn v. State, 15 Okla. Cr. 245, 176 P. 86; Newton v. State, 14 Okla. Cr. 226, 170 P. 270.

See, also, Harris v. State, 17 Okla. Cr. 69, 175 P. 627; West v. State, 24 Okla. Cr. 225, 217 P. 1067; Barton v. State, 26 Okla. Cr. 89, 222 P. 1019; Ivey v. State, 26 Okla. Cr. 184, 223 P. 401; Compton v. State, 23 Okla. Cr. 412, 225 P. 562.

It is next urged that the court erred in refusing to exclude the tickets and beer seized by the officers as having been obtained by an unlawful search. This contention, we think, is not*tenable. All persons concerned in the commission of an offense, whether they directly commit the act, or aid and abet in its commission, though not present, are principals. Section 1521, Comp. Stat. 1921. The officers saw the employee, an agent of defendant, delivering the “choc beer” in question to purchasers, in violation of law. His act was also the- act of defendant. They pursued him immediately to defendant’s place of business and there apprehended both him and defendant. The arrest was legal for an offense committed in their presence, and they had the right then to seize the property used in the commission of the offense. In this case the tickets or cards delivered to purchasers, evidencing their right to receive liquor, and a quantity of bottled liquor were admissible in evidence. Davis v. State, 30 Okla. Cr. 61, 234 P. 787.

Defendant next contends that there is no sufficient proof that the liquor seized was intoxicating or contained as much as one-half of 1 per cent, of alcohol, measured by volume. The liquor was seized on the 11th day of June, and was analyzed between that date and June 17th. The liquor contained 7 1/10 per cent, of alcohol, measured by volume. It is contended that the length of time between the seizure of the liquid and the analysis ■brings it within the rule announced by this court in the case of Rambo v. State, 31 Okla. Cr. 214, 238 P. 869. In that case, however, there was evidence that a perio'd of ten days had elapsed, and there was evidence that the alcoholic content of the liquor seized changed with the degree of fermentation. There is no such evidence here, and the court does not take judicial notice that fermentation continues to take place in bottled liquids. In the absence of proof that the liquid seized was undergoing fermentation, and that it continued after being bottled, this court will not indulge the presumption that there was a substantial change in the alcoholic content by reason of fermentation. Here there is also evidence that at the time seized the liquor was intoxicating. The proof on this point is ample.

The case is affirmed.

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


text:
    ERNEST HUGHES v. STATE.
    No. A-5930.
    Opinion Filed Oct. 8, 1927.
    (259 Pac 668.)

      Wieck & Armstrong, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant Ernest Hughes and Howard Love were charged in an information with the murder of J. A. Sewell. A severance was granted, and appellant upon his trial was convicted as charged and his punishment assessed at life imprisonment in the penitentiary. From the judgment rendered in pursuance of the verdict he appeals, but no brief has been filed or appearance made in his behalf in this court.

The evidence for the state which is undisputed developed the following facts:

The deceased, J. A. Sewell, w.as a deputy sheriff of Tulsa county, and for some time prior to his death had been assigned the duty of transporting prisoners to state institutions. On the morning of the 24th day of March, 1925, he left the Tulsa county jail with appellant Hughes and his codefendant, Love. With these two he had a boy, about 12 years old, who had been committed by the juvenile court of Tulsa county to the boys’ training school at Pauls Valley. Appellant some time prior thereto had escaped from the Granite reformatory, and had been apprehended, and was being returned. The defendant Howard Love was being taksn to the reformatory at Granite under a sentence of five years, rendered on a plea of guilty in the district court of Tulsa county.

The deceased was driving a Chevrolet car. The defendants were in the back seat; appellant on the right with his left hand hand-cuffed to Love’s right hand; a chain passed over the handcuffs and was fastened to a part of the car. They arrived at Pauls Valley in the afternoon. There the deceased left the boy at the state training school and started on to Granite by the way of Chickasha. It had been his practice and custom on trips to Granite to spend the night at Chickasha. About sundown the deceased with his prisoners passed through the town of' Bradley and it Was observed that appellant was sitting in the back seat on the right-hand side of the car and his codefendant, Love, was in the back seat on the left-hand side of the car, and they were also observed by several persons passing through the town of Alex; it was then about dusk.

Two or three witnesses testified to meeting the deceased with his prisoners between Alex and Chickasha a little after sundown.

The next morning the body of the deceased with three gunshot wounds was found by the side of the road between Alex and Chickasha. One bullet entered the right shoulder; the exit was below the right nipple; another bullet entered the right breast and a third entered the body.

The pockets of the deceased were empty, his money, his keys and his pistol were gone; one pocket turned inside out was blood stained.

It appears from the admissions of appellant they had taken the keys and considerable money from this pocket. It also appears from appellant’s admissions that the deceased, after he was shot, got out of his car and ran a few steps and fell; that they went to him and picked him up, and put him back in his car, and drove on a short ways when they had to stop to change a tire; that they used the deceased’s pistol to shoot the handcuffs off, and in so doing one of the bullets struck the tire; that the shooting occurred between 8 and 9 o’clock that evening.

It appears that they drove from there to Chickasha, stopped at the Marland Garage, and there Love purchased oil and gasoline for the car. From there they went to Oklahoma City, and from there to Ponca City, where appellant’s father resided. Appellant’s statement is that they arrived at Ponca City in the early morning; that he woke his father up but did not tell him what he had done, and the deceased’s car was left at Ponca City. The coat and hat of the deceased and his suit case were found in the car; the evidence shows that upon a search being made near where the body was found, the handcuffs and three empty shells were found, and nearby was found the tire and rim of the car.

Appellant’s admissions show that after leaving Tulsa, these defendants discussed the matter of disarming the deceased, and while at Pauls Valley, they agreed that they would take from the deceased his gun, make him a prisoner, take his car and make their escape; that in carrying out the agreement Love secured the deceased’s pistol and fired the fatal shots; that leaving the deceased’s car at Ponca City they returned to Tulsa, and after staying there a day or two, they separated. On April 3rd, R. D. Sanford, sheriff of Tulsa county, arrested appellant in the town of Marshall, Ark., where he was going under the name of J. C. Coombs.

As a witness in his own behalf, the defendant testified:

“We traveled west after leaving Pauls Valley; we stopped at a little town; it was either Alex or Brady; it was then almost dark; Mr. Sewell got out and bought some cigars; before we got to Pauls Valley, Howard said he was going to grab the gun and make an escape; I didn’t say a word, I really didn’t think that he had the guts to do anything like that; I did not at any time enter into any agreement with him to make this escape. About seven or eight miles beyond Alex, Howard grabbed the gun with his left hand and put it in his right; Mr. Sewell swung around and grabbed back at the gun and was shot; there were three or four shots and the car stopped; Mr. Sewell got out in kind of a dazed condition, and walked possibly a hundred feet, something like that, and fell; Howard got out of the car and then I got out; Howard shot the chain between the handcuffs; then shot the handcuffs off; the cuff on my hand was very loose, and the jar of the shot sprung the cuff on my hand, and it fell off. We put Mr. Sewell in the back seat of the car; the rear tire had a hole shot through it, and we stopped and changed the tire; then we put Mr. Sewell out beside the road by a farm house; he was still breathing; it was then about 8:3’0; Howard took Mr. Sewell’s money, $40 or $50 . We drove to Chiekasha; from there to Oklahoma City, and then to Guthrie, then to Ponca City; from there we went to Tulsa, and from there I went to Marshall, Ark.”

The record is voluminous, but we deem it unnecessary to further detail the evidence in the case.

The errors assigned question the sufficiency of the evidence to sustain the conviction; that the court erred in permitting the introduction of improper and incompetent testimony over the defendant’s objections, and that the court erred in giving certain instructions and in refusing requested instructions.

From all the evidence in the case carefully considered, we cannot see how any jury could have rendered a verdict otherwise. The testimony is so conclusive as to the guilt of the defendant that nothing can be said in his defense.

On the trial numerous objections were made to the rulings of the court in the admission of evidence, but an examination of the same leads to the conclusions that said objections were properly overruled.

We have examined the instructions, and find mTerror which could have prejudiced the substantial rights of the defendant.

The record shows that the defendant had a fair trial, with every right ¿ccorded him that the law justifies or.requires, and our conclusion is that the law can only be vindicated by an affirmance of the conviction.

The judgment of the trial court is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    JOHN SULLIVAN et al. v. STATE.
    No. A-5934.
    Opinion Filed Oct. 8, 1927.
    (259 Pac. 654.)
    W. W. Peterson, for plaintiffs in error.

      The Attorney General, for the State.
   PER CURIAM.

The appellants were jointly tried and convicted on an information charging the unlawful transportation of whisky from a point unknown to a point between sections 29 and 30, township 17 north of range 25 West, I. M., Roger Mills county. The jury fixed the punishment of the defendant Sullivan at a fine of $250 and confinement in jail for 90 days, and the punishment of the defendant Condo at a fine of $50 and confinement in the county jail for 30 days. To reverse the judgments thejr appeal.

The undisputed facts are that the sheriff and a deputy searched the car occupied by the defendants and found a half gallon fruit j ar containing whisky and a pint bottle of whisky.

J. M. Lester, sheriff, testified that he went five or six miles northeast of Durham for the purpose of searching cars that were going to a dance in that neighborhood; that when these defendants came by he jumped on the running board of the car and told them that he wanted to search their car; that he did not have a search warrant; that he had their permission to search the car; that there was a half-gallon jar wrapped in a gunny sack in the back seat under the cushion; that the defendant Condo was driving the car, and the defendant Sullivan sitting by him; that he went on to search several other cars around there, and while he was gone the liquor disappeared; that some of the cars had ladies in them and he did not stop them.

J. M. Bradshaw, deputy sheriff, testified: “We could see the cars coming. Sheriff Lester jumped on the running board of the defendants’ car, the defendant Sullivan said, ‘Go ahead,’ he could not stop us, or something like that.” That when they came back they could not find the whisky, and they arrested the defendants; That the defendant Condo did not say anything, and he was the owner of the car.

When the case was called for trial the defendants moved to suppress the evidence because obtained by means of an unlawful search and seizure. At the close of the evidence for the state, the defendants each moved the court to instruct the jury to return a verdict of acquittal, which motion was overruled.

■ It is a violation of the provisions of the Bill of Rights of the State Constitution against unreasonable searches and seizures for an officer, without a search warrant or warrant of arrest, or without having made an arrest for an offense committed or attempted in his presence, to search the person of a citizen or to search his car on mere suspicion. It is the settled doctrine in this state that evidence procured by means of an unauthorized search and seizure cannot be used against a defendant when timely objection is made against its introduction.

Without considering the other assignments of error, we deem it sufficient to say that on the undisputed facts the testimony of the state’s witnesses was illegally obtained and improperly admitted.

The judgment of the lower court is therefore reversed.


text:
    W. R. PERRY v. STATE.
    No. A-5907.
    Opinion Filed July 30, 1927.
    Rehearing Denied Oct. 8, 1927.
    (259 Pac. 657.)

      John L. Gilson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Texas county on a charge of the fraudulent destruction of insured property and was sentenced to serve a term of four years in the state penitentiary. Section 2168, Comp. St. 1921.

Briefly stated, the facts are about as follows: Defendant had been in partnership with one Swanson in the manufacture and storage of ice at the city of Guymon. They had owned a large building there in which the business had been carried on. Defendant sold his interest in the business to Swanson, who assumed the outstanding debts and in addition gave defendant his note in the sum of $1,200, which note was secured by a mortgage on the building. At the time of the sale of defendant’s interest to Swanson there was an insurance policy of $4,000 on the building, and thereafter two other policies for $1',000 each were taken out with a mortgage clause attached, which provided that in case of loss from fire defendant should receive payment of his note prior to the other indebtedness.

About 2:30 a. m., on the day charged, an explosion was heard and the insured building burst into flames. A man with a part of his clothing on fire was seen to run from the building and go in the direction of defendant’s home, about four blocks away. Various persons, including the sheriff and others, were soon at the scene of the fire, and Ben Marlott and O. L. Clark went to defendant’s home; a light was burning as they approached, and as they entered the yard it Was turned off and the curtains drawn. These parties returned to defendant’s home again about 7:30 and were invited in by defendant’s wife. Defendant was sitting in a chair heavily bandaged about his hands and face, and his wife explained that he had been burned about 7:30 the evening before by an oil stove. The witnesses testified that on their first visit no oil stove was in the yard, but on the second visit they were shown an oil stove in the yard. They further stated on the second visit they saw a sweater and shirt which had been recently burned, and also a pair of shoes soaked in gasoline, belonging to defendant. The defendant did not take the stand and offered no evidence.

The first contention made is that the evidence is insufficient to sustain the verdict and judgment. With this contention we wholly disagree. We find the evidence amply sufficient to support the judgment, and fail to see how the jury could have arrived at a different verdict.

Various other assignments of error are set out in the brief. Several of these, however, are merely stated and are not supported by any argument or citations to the record or authorities. They are not jurisdictional nor fundamental and are deemed waived.

Complaint is made that the court reporter who reported the .proceedings did so without making, subscribing, and filing the oath of office as is required by law. The record in support of this contention is not cited, and no evidence supporting it given. Nor is it claimed the proceedings were not correctly reported, and in no instance are we referred to any matter contained in the record which is claimed to be incorrect. We indulge the presumption that all officers before entering upon their duties are properly qualified. Also, an improper remark of the court in the hearing of the jury panel is claimed as error, but we have not been able to discover the remark complained of in the record. It is also urged that the court erred in permitting the introduction of evidence procured by an illegal search. This is directed to evidence concerning a certain sweater and shirt and shoes which had been partially burned, discovered in the residence of defendant after the fire and removed therefrom during his absence. The trial court, however, refused to permit these articles to be introduced in evidence, and while they were produced and identified, yet under the entire record it is not error materially prejudicial to defendant. Error is also claimed for failure of the trial court to discharge the juror Geist. Upon this contention the record discloses that this juror lived at Tyrone and was a member of the regular panel. He had been examined on his voir dire, but the jury had not been impaneled, and during an overnight adjournment of the court the sheriff took one of the principal witnesses for the state, Marlott, from Guymon to his home at Liberal, Kan., where he stayed over night and returned with him the next day. This witness rode with the sheriff in the front seat of the sheriff’s car, and just before starting the sheriff observed this juror on the street and invited him to ride to Tyrone. He got in the back seat and did so and got out at his home at Tyrone, and on the following day rode back to Guymon with the sheriff and juror. The only mention of the case was when the witness asked the sheriff how long it would likely take to try it, and the sheriff cautioned him not to discuss the matter. The juror has filed an affidavit that he had heard nothing about the case and entered into it without any impression and with an entirely open mind. We do not approve the act of the sheriff in taking the prospective juror and a witness as was done, but no prejudice by reason of this is shown, and the irregularity is not material. Jones v. State, 8 Okla. Cr. 576, 129 P. 446; Horton v. State, 10 Okla. Cr. 294, 136 P. 177; Elkins v. State, 29 Okla. Cr. 175, 233 P. 491; Lively v. State, 22 Okla. Cr. 27, 211 P. 92.

It is also argued that the verdict is invalid for the reason that the juror Walker was a nonresident of the state and a resident of the state of Texas. No voir dire examination of this juror is shown. The record does show by affidavits in support of a supplemental motion for new trial that this juror had resided in Texas county for some 20 years and owned a farm near Texhoma, had always voted in this state, but some 2 years prior had moved to the Oklahoma side of the town of Texhoma in order to school his children. That he owned no property in the state of Texas, but his son’s wife had become the owner of a house on the Texas side by reason of the distribution of an estate and in order to save rent a short time before the trial he moved to that house; that he never intended to give up his Oklahoma citizenship, and his residence in Texas was only temporary, and while residing across the line his children attended school on the Oklahoma side. That he at all times intended to return to his farm in Oklahoma. It is not made to appear that this juror was a nonresident, but even if it should be so held the judgment is not thereby invalidated. The defect is not fundamental as affecting the substantial right of the accused, and the verdict is not void for want of power to render it. Cooper v. State, 27 Okla. Cr. 278, 226 P. 1066.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPOET, J., absent, not participating.


text:
    Ex parte WELBORNE WESTELLISON.
    No. A-6634.
    Opinion Filed Oct. 8, 1927.
    (259 Pac. 873.)

      Cruce & Franklin, for petitioner.
    Fred E. Suits, M. W. McKenzie, and Bliss Kelly, for respondent.
   EDWARDS, J.

This is an original proceeding in habeas corpus. The petitioner alleges, that he is unlawfuly restrained by the chief of police of Oklahoma City; that the cause of said restraint is that on May 6, 1927, petitioner was engaged as a newsboy in selling the Oklahoma News, a newspaper, in Oklahoma City; that he was arrested charged with a violation of Ordinance No. 3151 of said city, in announcing in a loud voice the contents of said paper, was convicted by the police judge and fined $5.00 and costs.

It is contended that said ordinance is unconstitutional and void for various reasons enumerated in said petition. Those may be summarized into two principal contentions: First. That said ordinance is void because the city council was without authority under the statutes to enact and pass the same, and that it is an unreasonable, unnecessary, and arbitrary attempted exercise of the police power. Second. That said ordinance is void because its provisions and meaning are too indefinite, vague, and uncertain to inform the public what acts constitute a violation thereof.

The response admits the ordinance, the fine, and imprisonment, as alleged, and denies that the same is unconstitutional and void.

The writ of habeas corpus cannot be used to test the regularity of a proceeding as by an appeal. To entitle a petitioner to be released on habeas corpus, the judgment must be void and not merely erroneous. Ex parte Barnette, 29 Okla. Cr. 80, 232 P. 456; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574. But where the constitutionality of an act under which a person has been convicted and is restrained is questioned, its validity may be tested by habeas corpus proceedings. In re Gribben, 5 Okla. 379, 47 Pac. 1074; In re Unger, 1 Okla. Cr. 222, 98 P. 999; McGuire v. Wilkerson, 22 Okla. Cr. 36, 209 P. 445; Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576.

We are not impressed with the argument that the ordinance is void for the reason that the city is without power to enact it. For, while it is generally said that municipalities can exercise only such powers as are expressly delegated to them by the Legislature, or such as are fairly implied as an incident to the powers expressly granted, yet it would seem to be beyond question that, under the general grant of police power to a city to enact ordinances for the benefit of the health, safety, and welfare of the city, there is at the least an implied grant of power to reasonably restrict unnecessary noises which are, in a sense, a nuisance, an annoyance, or a breach of public order. This was evidently the purpose and intent of the city council in enacting the ordinance under consideration.

The further contention that the ordinance, being penal in its nature, is void as being too indefinite and uncertain to define a criminal offense presents a more serious question. There have been a great many decisions and no little discussion in the textbooks stating and applying the rules of statutory construction. It is not necessary to attempt to state these various rules, nor to quote or cite the decisions at length. Formerly it was said that municipal ordinances should be more liberally construed than penal statutes generally, but later authorities appear to make no distinction and to hold quite generally that penal ordinances, like .penal statutes, are to be construed strictly. 7 McQuillin on Municipal Corporations, § 814, and authorities cited. The construction is not to be unreasonable or forced, but the language used cannot be extended by implication to cover acts not clearly within its terms, nor can a prohibition not expressed in the act be read into it by implication. State v. Prather, 79 Kan. 513, 100 P. 57, 21 L. R. A. (N. S.) 23, 131 Am. St. Rep. 339; State v. Norfolk Southern Railway Co., 168 N. C. 103, 82 S. E. 963, L. R. A. 1915B, 329; New York v. Fredericks, 206 N. Y. 618, 100 N. E. 419.

The same presumption applies in the matter of municipal ordinances as to statutes. That is, they are presumed to be constitutional, and the courts should bring to their aid all the appropriate rules of construction before declaring them unconstitutional. Ex parte Hunnicutt, 7 Okla. Cr. 213, 123 P. 179; State v. Coyle et al., 7 Okla. Cr. 50, 122 P. 243; Ex parte Whitehouse, 3 Okla. Cr. 103, 104 P. 372; Ex parte Lucas, 33 Okla. Cr. 407, 243 P. 990; 25 R. C. L. 1084, § 203.

On the other hand, a penal statute must be sufficiently definite so that a person of ordinary understanding will be able to know what acts are forbidden and when he has committed an offense. Missel v. State, 33 Okla. Cr. 376, 244 P. 462; Buckles v. State, 5 Okla. Cr. 109, 113 P. 244; Ex parte Hunnicutt, supra; State v. Lawrence, 9 Okla. Cr. 16, 130 P. 508; Tozer v. United States (C. C.) 52 F. 919; United States v. Brewer, 139 U. S. 278, 288, 11 S. Ct. 538, 35 L. Ed. 190; United States v. Sharp, Pet. C. C. 118, 27 Fed. Cas. 1041.

That portion of the ordinance defining the offense reads as follows:

“Sec. 655. That it shall be unlawful and an offense for any newsboy or any other person selling newspapers upon any thoroughfares, streets, alleys, or private property, of said city in the district bounded by Fourth street on the north, the Atchison, Topeka & Santa Fe Railway Company on the east, Reno avenue on the south, and Western avenue on the west, to call, yell, or announce in a loud voice the contents of such newspapers, but such persons shall exhibit such newspapers and may announce in an ordinary and usual voice the name of such paper so offered for sale: Provided, that outside of the district hereinabove defined, in the event extra editions other than the regular edition of newspapers are offered for sale, then the sale may be cried out by newsboys in making such sale.”

An examination of the ordinance above set out leaves us in doubt as to what was in the mind of the city council. The only part of the ordinance that appears to have any meaning is the following:

“* * * That it shall be unlawful and an offense for any newsboy * * * selling newspapers upon any thoroughfares, streets, alleys, or private property of said city in the district * * * (describing it) to call, yell, or announce in a loud voice the contents of such newspapers.

That is all that is forbidden, but immediately following this language is permission to such person to exhibit newspapers and to announce in an ordinary and usual voice the name of such paper so offered for sale. But since it has not been forbidden to exhibit such newspapers and to announce the name either in a loud voice or otherwise, the permission is meaningless except on the theory that the city council supposed that they had forbidden this in the preceding part of the ordinance. Following this permission just referred to, there is the proviso that outside the described district newsboys might cry out the sale of extra editions of newspapers. Since there was no prohibition whatever in the territory outside of the described district, this proviso is also meaningless except on the theory that the city council supposed that the preceding part of the ordinance made some prohibition in this outside territory, and they desired by a proviso to give permission to cry out extra editions. We assume the city attorney or counselor must have been on a vacation when this ordinance was prepared, and that it was drafted by some one not familiar with the construction and meaning of .penal statutes.

Various other incongruities are pointed out, among them the announcing of the name of the newspaper offered for sale or any description of it other than the calling its contents is not forbidden. This, it is argued, could not have been the intention of the city council, since calling the name and describing the newspaper would constitute as great a nuisance as the announcing of its contents, and that presumably it was the “loudness” of the calling rather than what was called that the ordinance was intended to inhibit. This appears to be logical, since the latter part of the ordinance permits the exhibiting of the newspaper and the announcement of the name of such paper in an “ordinary” and “usual” voice. An ordinance should be construed according to the effect and the legislative intent. The legislative intent, however, must be gathered from the ordinance itself, and we are not able to ascertain just what was the legislative intent.

The further contention is stressed that the term “loud” as used in the ordinance is a relative term and is void as fixing no standard upon which to measure the tone of voice and determine whether it is “loud” or “ordinary” and comes within the rule announced in the case of Cook v. State, 26 Ind. App. 278, 59 N. E. 489, where the word “broad” and the word “narrow” are used, which act was by that court held void as indefinite and uncertain, the court saying:

“The meanings of the separate words in the phrases ‘narrow-tired wagon’ and ‘broad-tired wagon’ are plain, but the words ‘narrow’ and ‘broad’ describe, not certain, but uncertain, comparative widths, and, no standard of comparison being provided by the law, they render the phrases in which they occur uncertain and indefinite. A particular tire may be broad or narrow, according to the width of another tire or of other tires of different widths with which, for the occasion, it is being compared. In a portion of the statutory description of the offense there is such indefiniteness that it is impossible for the court to say with requisite certainty that the description in the statute corresponds with the definite state of facts shown by the affidavit” (citing, among other authorities, Hewitt v. Board of Medical Examiners, 148 Cal. 590, 84 P. 39, 3 L. R. A. [N. S.] 896, 113 Am. St. Rep. 315, 7 Ann. Cas. 750).

The definition of a noise made by the voice as “loud” or “ordinary” and “usual” is indefinite and uncertain; there is no standard of comparison or definite character fixed such as to “annoy the public generally,” or as to “disturb the peace,” or “to the annoyance of the inhabitants,” or like terms.

This court in the case of Stewart v. State, 4 Okla. Cr. 564, 109 P. 243, 32 L. R. A. (N. S.) 505, sustained an information! charging accused with having “unlawfully, willfully and wrongfully committed divers acts of yelling, hollering, and uttering loud and vociferous language, thereby grossly disturbing the public peace of said community,” the information being predicated upon section 2650, Wilson’s Statutes 1903 (section 2782. Sinyder’s Compiled Laws; section 2287, Comp. St. 1921). This statute is made sufficiently definite by defining the offensive act as one that—

“* * * grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals. * * *”

See Hewitt v. Board, etc., supra.

In order to be free from the objection of indefi'niteness and uncertainty, some standard should be fixed for determining at what point the quality of “loud” should apply. Without such standard it is impossible to say, as a matter of law, when a voice is “loud” or “ordinary.” The usual standard fixed, as stated, is such as “disturbs the peace or public decorum,” or “annoys the inhabitants,” or such similar term.

For the reasons assigned, the writ is awarded and petitioner discharged.

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


text:
    J. D. BULLINGTON v. STATE.
    No. A-5937.
    Opinion Filed Oct. 8, 1927.
    (259 Pac. 876.)

      Bicking & Wilson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Tulsa county on a charge of transporting intoxicating liquor, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that at the time charged a deputy sheriff driving along the highway passed a Ford car driven by defendant. In passing hre saw in the rear of the car a 5-gallon glass jug, partially concealed, filled with a yellow liquid which he took to be whisky. The officer then slowed his car and permitted the car driven by defendant to pass him in order to verify his observation and; having done so, arrested defendant and took possession of the 5-gallon jug, which was full of corn whisky.' Defendant in his testimony admitted that he was transporting whisky, but claimed that it was concealed by having a burlap sack about it with the side curtains laid over it. Counsel for defendant contends that the search was illegal and the evidence obtained incompetent. The objection was properly raised. The state insists that the arrest was legal for an offense committed in the presence of the officer and the evidence obtained thereby competent. A jury was waived, and the case, was tried to the court.

This is a fact case; if the officer saw defendant transporting whisky, that is, committing an offense in his presence, he had ,a right to arrest him without a warrant (Comp. Stat. 1921, §§2471 and 7014) and to seize any evidence, instrument, or means used in committing a crime on or about his person (Davis v. State, 30 Okla. Cr. 61, 234 P. 787; Rambo v. State, 38 Okla. Cr. 192, 259 P. 602). The testimony is in conflict as to whether or not the officer saw the whisky before he arrested defendant; the weight of this evidence was for the court; he must have believed the testimony of the officer on this .point. We cannot disturb the judgment by reason of any conflict in the evidence. Defendant further argues that, in any event, the officer could not know positively the contents of the jug was whisky until he removed the cork and smelled or tasted it. The evidence does not disclose a search, since the mere looking into an automobile is not a search. Sands v. State, 36 Okla. Cr. 58, 252 P. 72. See, also, State v. Quinn, 111 S. C. 174, 97 S. E. 62, 3 A. L. R. 1500; Culver v. Burnside, 46 S. D. 78, 190 N. W. 804.

This court desires to sustain the constitutional and statutory provisions forbidding unreasonable searches and seizures. An officer has no right to arrest without a warrant any person on the mere suspicion that he may be transporting intoxicating liquor, on his person or in his conveyance. The contention, however, that an officer may not arrest nor seize whisky visible in a glass container because he has not examined the contents by taste or smell cannot be sustained. The sense of sight as well as the sense of taste and smell may be resorted to in such case, although it is possible that an officer might be deceived in relying upon the sense of sight.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


text:
    FRED NEWTON v. STATE.
    No. A-6490.
    Opinion Filed Oct. 17, 1927.
    (260 Pac. 84.)
    E. E. Ammons, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Fred Newton, appellant, was informed against, tried, 'convicted, and sentenced to pay a fine of $150 and to be confined in the county jail for a term of 30 days for the crime of unlawful possession of intoxicating liquor. The judgment and sentence was pronounced October 11, 1926. From which judgment an appeal was attempted to be taken by filing with the clerk of this court, on February 9, 1927, a petition in error with case-made.

The Attorney General, on September 10, 1927, filed in this court a motion to dismiss the appeal on the ground that—

“The maximum period of time allowed by statute under proper order of the trial court was within 120 days after the rendition of the judgment appealed from. Section 2808, C. S. 1921. The 8th day of February, 1927, the 120th day after the rendition of the judgment, fell upon Tuesday.”

Section 2808 provides in part as follows:

“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 this case the time for filing the appeal in this court expired the day before the petition in error with case-made was filed.

It has been uniformly held that, in order to give this court jurisdiction, the appeal as prescribed by section 2808 must be filed with the clerk of this court within the time which an appeal may be taken, and, where an appeal is not perfected by filing in this court a petition in error with case-made attached, or ,a transcript of the record, within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed.

For the reason stated, the motion to dismiss is sustained, and the cause remanded to the trial court, with direction to enforce the judgment and sentence.

EDWARDS and DAVENPORT, JJ., concur.


text:
    A. J. LAWSON v. STATE.
    No. A-6025.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 87.)

      Robertson & Ammons, for plaintiff in error.
    Edwin Dabney, Atty. Gen.,- and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information charged that A. J. Lawson did have in his possession 30 gallons of whisky mash, fit for distillation for the manufacture of whisky. On the trial the jury returned a verdict of guilty and fixed his punishment at a fine of $50 and confinement in jail for 30 days. To reverse the judgment rendered on the verdict he appeals and assigns as error that the court erred in allowing the officers to testify over his objections to a search of his premises, in that said search was made before service of a search warrant on the defendant.

The undisputed facts are that on the 2d day of July, 1925, two officers going up a branch on the defendant’s place found where they had been making whisky. There was a furnace, fire, and coals, and it looked like a run of whisky had just been made. They went up. the fence and looked over in a cotton patch. There were three barrels there covered with a wagon sheet. They examined the barrels and found one contained about 30 gallons of whisky beer. A trail led direct from the residence to where the barrels were standing and from there to where several runs of whisky had been made. Not very far from there they found a whisky still and a boiler. They then went to the defendant’s house and told them what they had found. He said: “All right, look all you please; go ahead, you have found all there is to find on this place,” and said that the barrel contained Chock; that he had just made it for his own use.

J. M. Rushing, deputy sheriff, testified that he told the defendant, “I have .a search warrant,” and the defendant said, “You don’t need any.”

At the close of the evidence for the state, counsel for the defendant asked that the search warrant be produced. Thereupon the county attorney announced that the records of A. E. Chapman, justice of the peace, who issued the search warrant, were destroyed in the courthouse fire, July 17, 1926. Thereupon counsel for the defendant moved for a directed verdict in the form of a demurrer to the evidence, which was overruled.

By numerous decisions of this court it has been held that no search warrant is necessary to authorize the search and seizure of a still or mash in the pastures, woods, canyons, thickets, and places remote from the habitation and its curtilage. Francis v. State, 26 Okla. Cr. 82, 221 P. 785; Barton v. State, 26 Okla. Cr. 95, 222 P. 272; Keenan v. State, 33 Okla. Cr. 400, 243 P. 1001.

Upon the record before us we are satisfied that the objections interposed to the admission of the state’s testimony were properly overruled.

The judgment of the trial court is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    HENRY FARVE v. STATE.
    No. A-6120.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 83.)
    Phillips & Phillips, for plaintiff in error.
    Edwin Dabney, Atty Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This conviction was for rape in the first degree, alleged to have been committed in Bryan county on September 6, 1925. The jury assessed the punishment at imprisonment in the penitentiary for the term of fifteen years. From the judgment and sentence of the court pronounced on December 5, 1925, an appeal was perfected by filing in this court on March 20, '¡1926, a petition in error with case-made.

Since the final submission of the case on briefs, the Attorney General has filed a motion to dismiss the appeal on the ground and for the reason that the appellant is now and has been for the last five months a fugitive from justice, having broken jail at Ardmore about five months ago, as appears from the letter of Wallace W. Gates, assistant county attorney of Bryan county, addressed to the clerk of this court.

The uniform holding of this court is that, where a defendant has been convicted and perfects an appeal from the judgment, this court will not consider the appeal unless the defendant is where hé can be made to respond to any judgment or order which may be rendered in the case, and where a defendant makes his escape from the custody of the law and becomes a fugitive from justice pending the determination of his appeal, the same will be dismissed. It follows from what has been said that the motion to dismiss is well founded.

The appeal herein is accordingly dismissed.

EDWARDS and DAVENPORT, JJ., concur.


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    LOYD WARD v. STATE.
    No. A-6054.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 83.)
    L. F. Robertson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Woodward county on a charge of selling whisky, and was sentenced to pay a fine of $50 and to serve 60 days in the county jail.

The evidence for the state is, in substance, that one Thurman inquired of defendant where he could procure some whisky, and defendant advised him that he could procure it for him, and together they went about two miles from the town of Woodward into the country and Thurman there purchased from defendant 1% pints of whisky and paid him for it $2.50. Defendant testified, in substance, that Thurman inquired of him where he could procure whisky, and that he informed him that he had seen a man leave some by the road, and they would go and get it; that he had seen a man that morning with a car by the side of the road, and they then went there to get the whisky, and Thurman filled a milk bottle, which he took with him; that he did not sell it to Thurman and Thurman did not pay him. The evidence of the witness Thurman is more reasonable than that of defendant, but in any event the weight of the evidence and the credibility of the witnesses was for the jury, and the judgntént will not be disturbed for insufficiency of the evidence.

Defendant also contends that the court erred in restricting the examination of the jury in their voir dire in not permitting an examination as to whether they were members of the Ku Klux Klan. The record discloses that in the examination of the jury, counsel for defendant asked the jury collectively if any of them were members of the Ku'Klux Klan. All answered in the negative. Counsel for the state objected, and the objection was by the court sustained and exception noted. Thereupon the county attorney stated that he) would withdraw the objection, ¡since the julrors had answered in the negative before the objection wlas ¡made. Defendant did not pursue the examination further, and it is to be assumed the answers were satisfactory. No reversible error is apparent.

The case is affirmed.

DOYLE, P. J., concurring.

DAVENPORT, J., absent, not participating.


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    WILLIE SEWELL v. STATE.
    No. A-5875.
    Opinion Filed Aug. 24, 1927.
    Rehearing Denied Oct. 22. 1927.
    (260 Pac. 84.)
    J. L. Skinner and Anglin & Stevenson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is prosecuted from a conviction had in the district court of Seminole county, in which appellant, Willie Sewell, was found guilty of manslaughter in the first degree and his punishment assessed at confinement in the penitentiary for a term of 15 years.

It appears that appellant ,and the deceased were Indians; that all the parties concerned lived 7 or 8 miles south of Holdenville, and that they all attended a stomp dance on the night of August 24, 1928; that Eliza, wife of appellant, and the deceased, following the stomp dance went to the home of Taylor Wolfe, where Eliza was staying, and after breakfast they went up the hillside, into the woods and went to sleep. Appellant, following the stomp dance, went to the home of Sallie Deer, where he was staying. About noon he went to Taylor Wolfe’s place, .and from there he followed his wife and the deceased upon the hillside and with a club killed Solomon Leetka.

Bud Gordon, deputy sheriff, testified that he found the body of Solomon Leetka lying face down on a pallet, with the back of his head crushed in; that a club about 3 feet long and as big as his arm, with blood on it, was lying near the pallet; that later he arrested Willie Sew-ell ; that Sewell told him that he had hit Solomon Leetka With a club but did not know that he was dead; that there was no evidence of a scuffle around the pallet; that Tom Atkins was with him, and the body was found some 300 yards north of Taylor Wolfe’s house in some black jack timber.

For the defense, Eliza Sewell testified that she was the wife of Willie Sewell, and lived with him until the trouble came up about Solomon Leetka in 1922; that she was with Solomon Leetka the day he was killed; that they left Taylor Wolfe’s house and went up in the timber, taking a quilt with them, this being about 9 o’clock in the morning; that about noon Willie Sewell came to where they were lying on the pallet and said “What are you doing here?” and Solomon jumped up and picked up a rock; then Willie got a club, and hit Solomon with it; that she did not know how many times Solomon was hit, and then she and Willie Sewell went back down to Taylor Wolfe’s. Later she went with Taylor Wolfe to where Solomon was, and he was still alive; that they picked him up and moved him out of the sun into the shade; that this was about 1 o’clock in the afternoon. That evening Bud Gordon and Tom Atkins came there and looked at the body of Solomon. On cross-examination she testified that she was at the stomp dance the night before, and was up all night, and got to Taylor Wolfe’s about sunrise.

Willie Powell testified that he lived about a half mile from appellant’s house, and one morning about daybreak Solomon Leetka ran out of appellant’s house ; that the next day he met Solomon Leetka in the' road, and Solomon said: “I have a 38, and I intended to shoot him; you may tell him about it He ran me off this morning. You go ahead ,and tell him I am intending to shoot him.” The following Saturday, at the stomp dance, he told appellant of this conversation. On cross-examination he admitted that he had served a term in the penitentiary.

Taylor Wojlfe testified t¡hat, aftejt beinig tolid by Eliza Sewell that Solomon Leetka was hurt up in the woods, he went up to where Solomon was, and he was still alive; that his pants were down and unbuttoned, and he pulled them up and buttoned them; that he and Eliza Sewell moved Solomon out of the sun into the shade; that the back of his head was crushed in; that he lived about an hour after he got there.

As a witness in his own behalf appellant testified that he lived about 7y2 miles south of Holdenville, at Sallie Deer’s; that Solomon Leetka at that time was living about one-half mile from the place where he was killed; that the day after the stomp dance he followed his wife up into the woods from Taylor Wolfe’s place, and there found Solomon Leetka and his wife in a very compromising position; that he said, “What are you doing?” and Solomon jumped up, and he pulled his pants up with his left hand, and picked up a rock in his right, and said, “You son of a bitch, you get away from here;” that he then got a club and struck Solomon twice; that after he hit him the second time he dropped the rock, and that lick broke the stick; that he did not hit him any more; that he took his wife and went home..

Sallie Leetka, widow of the deceased, testified for the defendant that Her husband, Solomon, said to her, “I have had sexual intercourse with Willie Sewell’s wife, and if he finds it out he will kill me.”

On rebuttal, Tom Atkins testified that he went to the place where the body was, the afternoon of the killing, with Bud Gordon, deputy sheriff; that Eliza Sewell and Joana Davis were there; that Eliza Sewell at that time stated, through Joana Davis, interpreter, that Solomon was lying on the pallet asleep, and that Willie Sew-ell hit him over the head and killed him; that Solomon never knew what hit him; that part of the stick struck her in the face as it broke, and woke her up; that she showed him the place on her face; and that they found a stick 2 or 3 feet long with blood on it.

Taylor Wolfe, in rebuttal, testified that he lived one-half mile from Eliza Sewell; that he went to the stomp dance about 4 or 5 o’clock; that later Solomon Leetka and Eliza came there; that when he got back home Eliza, Solomon, and Parnosky Tiger were sitting on his porch ; that about 1 o’clock Eliza woke him up and told him that Willie had come up to where she and Solomon were lying on the pallet; and that Willie hit Solomon over the head while he was asleep, and hurt him.

Bud Gordon recalled, testified that, when he arrived at the place where Solomon’s body was, Eliza was there and that Joana Davis, Tom Atkins, .and Taylor Wolfe were there; that Eliza Sewell told him that she and Solomon were lying on the pallet, and that Willie slipped up behind them and struck Solomon on the head; that Solomon never knew what hurt him; that part of the stick broke off, and hit her on the face; that he did not find any rock that could be used.

On the trial numerous objections were made to rulings of the court in the admission and rejection of evidence. It is contended that the conduct of the county attorney towards the defendant in his cross-examination was prejudicial, in asking the defendant whether or not his first wife had been murdered in his home. The court sustained the defendant’s objection. The defendant had testified as to his marriages, and had admitted that he left, his second wife, Eliza, and had gone to live with Sallie Deer, without having gone through the formality of obtaining any legal separation from his wife, Eliza. However, the court promptly and properly sustained the objection made.

It is next urged that the court erred in sustaining the objections of the county attorney to questions of counsel for the defendant relative to conversations had between the defendant and witnesses concerning the misconduct of his wife with the deceased. As there is nothing in the record to show what the answers of the witnesses would have been, and what testimony they would have given, we are unable to say whether or not the sustaining of the objections constituted error.

As a general rule, in order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, an offer must be made at the time, showing what testimony will be given, if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all facts necessary to establish its admissibility. 3 C. J. p. 825; 2 Elliot on Ev. p. 164. Counsel having failed to make offers of proof, it will be assumed that the rulings of the trial court were correct.

The remaining assignment relates to the alleged misconduct and prejudicial remarks made by the county attorney in his closing argument to the jury. The showing in the record is as follow's:

“Let the record show that during the closing argument the county attorney made use of the following statements with reference to other witnesses, not naming them or calling their names; but in the argument the county attorney said: ‘We could not put the witnesses upon the stand because “they” fixed them.’ The attorney for the defendant interposed an objection, which was sustained, and the remark stricken, and the jury were instructed not to consider it.
“And that the expression by the county attorney, which was objected to, when he said, ‘For two years we have been trying to get a trial in this case, but they have passed it over, so they could fix this woman.’ The objection was made at this time, and properly sustained and the jury instructed not to consider the remarks. That is what occurred in the courtroom, as the court remembers it now.
“By Mr. Anglin: All right, your honor; can we enter into an agreement that that is the remarks?
“By Mr. Pryor: Yes, sir; I think that is the substance. I don’t know whether word for word, but it may be.
“By the Court: I wrote it down at the time; had it here.
“By Mr. Pryor: Yes, sir, in substance, that is it.
“By Mr. Pryor: Mr. Billingsley undertook to explain and show that in making the statement he was answering the argument made by the counsel for the defendant about certain witnesses that were not put on the stand. Mr. Billingsley was answering the argument of the defendant.
“By the Court: The attorneys on both sides in their enthusiasm perhaps expiated a little too much and went out of the record.
“By Mr. Anglin: I want to say this, your honor: I did not call attention in my argument to any witness which did not testify for the state, and that Mr. Skinner didn’t while I was in the courtroom. I wiasn’t here at all times.
“By the Court: Well, I think that record is plain enough. The jury followed the instructions of the court in that respect, I think. I don’t think they considered it.”

It is the well-settled doctrine in this state that, in order to constitute reversible error, the impropriety indulged in must have been such that may have wrongfully influenced the verdict. Morgan v. State, 9 Okla. Cr. 22, 130 P. 522; Williams v. State, 4 Okla. Cr. 523, 114 P. 1114; Allen v. State, 13 Okla. Cr. 395, 164 P. 1002.

It is also well settled that the remarks of counsel must be considered and construed in reference to the evidence, and as a matter of good practice where improper remarks are made by the prosecuting attorney in his argument before the jury, when an objection thereto is interposed and a ruling of the court invoked, the court should be requested to charge the jury to disregard such improper argument or statement. Gunnells v. State, 7 Okla. Cr. 98, 122 P. 264; Davis v. State, 7 Okla. Cr. 322, 123 P. 560.

The record here shows that the remarks of counsel were properly withdrawn by the court, and that the jury were told not to consider the same, but to base their verdict solely upon the evidence. In Carroll v. United States (C. C. A.) 154 F. 425, the court held:

“It is a general rule, with rare exceptions arising from extreme cases, that prejudice created by unwarranted statements of counsel in the presence of the jury is sufficiently cured by an admonition by the court to the jury to wholly disregard such statements” — citing numerous authorities, federal and state, in support of the rule.

Upon a careful examination of the record, we cannot see how any jury under the evidence could have returned a verdict other than guilty, .at least of manslaughter in the first degree. We think the defendant’s own evidence in its most favorable light shows him to be guilty at least of manslaughter in the first degree.

The case having been submitted to the jury upon correct instruction, and no prejudicial error having been committed in the course of the trial, nothing remains for this court to do but to affirm the judgment; and that is accordingly done.

EDWARDS and DAVENPORT, JJ., concur.


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    O. D. SMITH v. STATE.
    No. A-6076.
    Opinion Filed Aug. 18, 1927.
    Rehearing Denied Oct. 22, 1927.
    (260 Pac. 88.)
    E. V. Rakestraw, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Kiowa county, August 27, 1925, he did have in his possession about 5y2 gallons of whisky, with the unlawful intent to sell the same, O. D. Smith was tried and convicted, and his punishment fixed at a fine of $150 and confinement in the county jail for 30 days. The sole question presented on this appeal is the sufficiency of the evidence to sustain a conviction.

The testimony of Sam Standerfer, sheriff, and Jack Ball, his deputy, shows that on the day in question they were searching for a still on Longhorn creek, and found nine half-gallon jars full of whisky in a cotton field on the defendant’s place, and found two more half-gallon jars 30 or 40 yards distant from the first, and noticed tracks leading to defendant’s house. There was a motion for a directed verdict of acquittal, which was overruled.

As a witness in his own behalf the defendant testified that he lived 25 miles southeast of Hobart; that his house was located near the center of the farm, about 100 yards west of the creek; that the whisky in question was discovered across the creek; that the officers ' showed him where the whisky was found, and he observed tracks running west of the creek and then towards his house; then they went up the creek; that the whisky did not belong to him; that he did not know who placed it there. Three witnesses corroborated the defendant’s statement that the tracks from the whisky was found turned up the creek.

An examination of the record shows that no objection was made or exception taken to any of the proceedings had in the course of the trial; that the instructions fully covered the law applicable to the case.

It was the province of the jury to pass on the credibility of the witnesses and the weight of the testimony, and no doctrine is better settled that, when a jury finds a verdict of guilty, which is approved by the trial court, and there is substantial evidence to sustain the verdict, it will not be set aside, in the absence of prejudicial error.

The record discloses that the defendant had a fair trial, and the judgment of conviction is therefore affirmed.

EDWARDS and DAVENPORT, 33., concur.


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    LEE LUNSFORD v. STATE.
    No. A-6023.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 514.)
    E. C. Patton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Canadian county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $500, and to be confined in the county jail for a term of six months.

The only question presented by the .appeal is the sufficiency of the evidence to sustain the verdict. The record discloses that on the day charged about daylight two deputy sheriffs passed the premises of defendant, who lived near the North Canadian river. About 300 yards beyond his house, on a w'ell-traveled highway, they saw where a car had turned, .and they then followed the track of the car back to defendant’s place, and found there defendant and one Jim Barrett, who had not yet arisen. They arrested them, and returned to the place where the car had turned, and in some weeds beyond the highway found two five-gallon jugs of whisky. There were the tracks of two men at the place where the car had turned. The officers identified the tracks of the car as being the same as those of the car found at defendant’s place. This was the only evidence offered. Jim Barrett admitted owning the car, but it wRs not shown that the tracks corresponded in any particular with the tracks of defendant. Defendant and his wife each testified that Barrett, who was a brother-in-law, came to their house the night before, after they had retired. Defendant denied any knowledge or connection with the whisky. The evidence raises no more than a suspicion that defendant was connected with this whisky. It falls far short of that certainty required to convict in a criminal case.

The case is reversed and remanded.


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    JIM TAYLOR v. STATE.
    No. A-6014.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 511.)

      Womack, Brown & Cund, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appellant was convicted on a charge that in said county on April 26, 1925, he did sell one quart of whisky to T. H. J. Johnson for the sum of $4, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay a fine of $50.

The errors assigned question the sufficiency of the evidence to sustain a conviction.

T. H. J. Johnson testified that he lives 20 miles northeast of Duncan; that on Sunday, on the day alleged, he was at the home of the defendant and purchased from him a quart of whisky, paying him for the same with a check for $4; that that was in Stephens county.

As a witness in his own behalf, Jim Taylor testified that he made his home with his father, and on Saturday the prosecuting witness came there and borrowed $4 from him, saying that he wbuld be back Sunday and pay him; that he came back Sunday about midday and gave him a check for the $4 he had loaned him the day before.

Several witnesses testified that they were present when the check was given by the complaining witness to the defendant, but they did not see any whisky pass.

Two or three qualified as character witnesses and testified as to the good character of the defendant in the community where he resides.

It was the peculiar province of the jury to pass upon the credibility of the witnesses and the weight of the testimony, and under the settled rules of the court we cannot disturb the verdict of the jury where there is any substantial evidence to support it.

The judgment of the lower court is therefore affirmed.


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    J. L. CAHILL v. STATE.
    No. A-5857.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 91.)
    Geo. A. Hoke, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of unlawfully manufacturing whisky, and was sentenced to pay ¡a fine of $100 and to serve a term of 60 days in the county jail.

The record discloses that an affidavit for search warrant, positive in form, describing the premises occupied by defendant, was filed with the county judge by one Gilchrist. Upon this affidavit a search warrant was issued and a search of defendant’s premises made and a still, a still worm, three barrels of mash, kegs and other containers, and a small quantity of whisky found. The evidence is sufficient to sustain the verdict and judgment.

Before the trial, defendant filed a motion to suppress the evidence procured by the search warrant, setting out various reasons. This motion was overruled, and the ruling is assigned as error.

It is first argued that the affidavit and search warrant are insufficient, for the reason that they do not contain the name of the owner of the property whose premises are described in the affidavit and warrant. It is not contended that the description of the premises is defective or that an officer with the search warrant would have any discretion as to the premises to be searched. In order that no confusion may arise and to prevent unauthorized search, it is decidedly a better practice that the owner or occupant of premises for which a search warrant is asked be named in the affidavit and in the search warrant. How'ever, where no person is to be searched • but merely a place, it is not essential that the owner or occupant of the premises be named, unless the name is required as a part of the description. State v. Skelton et ux., 36 Okla. Cr. 377, 254 P. 754.

It is next contended that the affidavit is insufficient under the rule announced in the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249. This case, however, was somewhat modified and restricted in the case of State v. Smith, 30 Okla. Cr. 134, 235 P. 273.

The affidavit here objected to falls far short of being a model, but we believe it is sufficiently definite to' warrant the county judge in making a finding of probable cause and that the search warrant based thereon is legal.

Complaint is next made that the affidavit, though positive in form, was in fact made upon information and belief, and that no evidence obtained by such search warrant was admissible. The purpose of an affidavit for a search warrant is the same as the affidavit verifying a complaint for a warrant for arrest; that is, to invoke the judicial power of the magistrate, for the protection of the citizen against illegal searches, and to satisfy the constitutional and statutory requirement that a search warrant shall be issued only upon probable cause supported by oath or affirmation. Article 2, § 30, State Constitution; sections 7012, 7013, Comp. Stat. 1921. This court, in Phillips v. State, 34 Okla. Cr. 52, 244 P. 451, held the truth of an affidavit to procure a search warrant positively sworn to is not an issue in the trial of the case in which the evidence obtained by such search warrant is offered. See authorities there cited. In the case of State v. English, 71 Mont. 343, 229 P. 727, under a somewhat analogous state of facts, it is held:

“Where search warrant was valid on its face, proceedings under it would not be rendered invalid, nor would evidence obtained be rendered inadmissible by subsequent attack on truth of statements in affidavit.”

In People v. Czckay et al., 218 Mich. 660, 188 N. W. 376, it is held:

“Where affidavit, upon which search warrant for intoxicating liquor was issued, contained positive averment of facts justifying the issuance of the writ, the validity of the writ was not affected by proof aliunde that the facts therein positively stated were in reality stated upon information and belief” — citing authorities.

See, also, Cornelius on Search and Seizure, § 89.

The sufficiency in form or substance of either the affidavit or the search warrant may be challenged by motion to suppress or by objection to the evidence. But where an affidavit sufficient in form and substance is filed, the magistrate must determine judicially if there is probable cause for believing the existence of the things stated in the affidavit. If he determines there is probable cause and issues a search warrant sufficient in form and substance, which is properly executed by the officer to whom it is directed, its validity cannot be affected by proof aliunde that the facts stated in positive terms in the affidavit were in fact made upon information and belief.

The case is affirmed.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.


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    JOHN BROWN v. STATE.
    No. A-6072.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 93.)
    J. F. Murray, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted . in the county court of Kay county on a charge of unlawfully transporting whisky and was sentenced to pay a fine of $50 and to be confined in the county jail for a term of 30 days.

The judgment was entered Noivember 20, 1925, and the appeal lodged in this court February 18, 1926. No briefs in support of the appeal have been filed, nor was any appearance for oral argument made at the time the case was submitted. The information properly charges the offense and the evidence sustains the charge. No fundamental error is apparent.

The case is affirmed.


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    LUCILE DUNIVAN v. STATE.
    No. A-6021.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 93.)
    Howard F. Wilson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Kay county on a charge of selling whisky and was sentenced to serve a term of SIT days in the county jail and to pay a fine of $200.

The judgment was entered on September 21, 1925, and the appeal lodged in this court January 18, 1926. No briefs have been filed in support of the appeal and no appearance for oral argument made at the time the case was submitted.

We have examined the record and find that the information properly charges the offense. The evidence in support thereof is ample and no fundamental error is apparent.

The case is affirmed.


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    W. R. MAUPIN v. STATE.
    No. A-6005.
    Opinion Filed Oct. 22, 1927.
    (260 Pac. 92.)
    Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of having illegal possession of intoxicating liquor, and sentenced to serve six months in the county jail and pay a fine of $500.

The record discloses that a search warrant was procured and certain officers went to the residence occupied by defendant and his wife and made a search and discovered 3y2 pints of whisky and 18 pints of Choctaw beer. The beer was found in the back yard and the whisky on or about the back porch. The officers went to the residence while defendant was away and his wife met them at the door. They advised her they were officers and wanted to search the premises, and she said: “Go ahead.” Before going into trial defendant filed a motion to suppress the evidence as obtained by an unlawful search. The place seajrdhed was the private residence of defendant, occupied as such. Section 7013, Comp. Stat. 1921, reads:

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is .a place of public resort.”

This statute is plain. No effort was made to comply with its requirements. The affidavit for search warrant contains none of the exceptions named in the statute. Where a search of a residence is made under authority of a search warrant based upon an affidavit which does not conform to the requirements of this section of the statute, the search is unlawful and evidence obtained thereby inadmissible. Duncan v. State, 11 Okla. Cr. 217, 144 P. 629. This court cannot ignore and override the law thus clearly expressed. The statement of the wife to the officers made in the absence of her husband is not a waiver of his constitutional rights. The motion to suppress should have been sustained.

Other errors are argued, but this is decisive of the case.

The case is' reversed and remanded.

DOYLE, P. J., concurs.

DAVENPORT, J., absent, not participating.