author: BABEFOOT, P. J.

text:
    JOHN WATSON v. STATE.
    No. A-9823.
    Oct. 1, 1941.
    (117 P. 2d 808.)

      Guy L. Andrews, of McAlester, for defendant.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Paul Gotcher, Co. Atty., of Mc-Alester, for the State.
   BABEFOOT, P. J.

Defendant was charged in the county court of Pittsburg county with the crime of unlawful possession of intoxicating liquor, to wit: six pintó of gin, six pints of whisky, and four half-pints of whisky, mixed brands; was tried, convicted and sentenced to pay a fine of $100 and to- serve 60 days in jail, and has appealed.

The main ground relied upon by defendant for reversal of this case is that the court erred in refusing to sustain the motion to suppress the evidence because it was obtained by reason of an illegal search of his home. It is first contended that the description in the search warrant is insufficient to justify the search of defendant’s premises and that the affidavit was insufficient under the statute to justify a search of defendant’s home. The affidavit upon which the search warrant was issued Avas made by the sheriff of Pittsburg county, and was as follows:

“Walter Haggard, Sheriff of Pittsburg, County, being-first duly sworn, upon oath, states that spirituous, vinous, fermented, and malt liquors, including whisky, wine, and other intoxicating liquors, for containing more than four per cent alcohol, measured by volume, and capable of being used as a beverage, is had and kept for the purpose of sale, barter, giving away and otherwise furnishing the same; and that same is being sold, bartered, given away, and otlieinvise furnished in violation of the Laws of the State of Oklahoma, in the above named County and State, in and upon the folloAving described premises, to wit:
“The Boga Night Club, Dance Hall, Beer Parlor, and SandAvich Shop ; and the premises and all buildings on the premises including the building used as a home by John Watson; located 300 yards west of the city limits on the south side of highway 270, McAlester, Pittsburg County, Oklahoma.
“Affiant further states that the basis of this complaint and the facts upon Avhich it is founded are as follows :
“Affiant has seen persons whose names are known to him drinking Avhisky in the above described premises. The affiant has seen drunk persons in this place of business. It is a place of public resort; and whisky is kept therein.
“Wherefore, affiant prays that a Warrant of Search and Seizure do issue to the Sheriff of said County and State for the said described person and premises; to the end that said violation of law be suppressed, and that the offending parties be dealt with according to law.”

A motion was made to suppress the same, and a hearing was had thereon prior to the trial, and evidence taken. By this procedure the burden of proof was upon the defendant to affirmatively show that the search warrant was illegal. Holland v. State, 58 Okla. Cr. 404, 54 P. 2d 216; Ray v. State, 43 Okla. Cr. 1, 276 P. 785; Ford v. State, 45 Okla. Cr. 161, 282 P. 370.

It will be noted that the affidavit, after describing the premises says: “* * * located 300 yards west of the city limits on the south side of highway 270, McAlester, Pittsburg County, Oklahoma.”

But on the motion to' suppress, defendant offered evidence that it was a distance of 1,381 feet from the edge of his property line to the city limits, and that certain other parties owned the property as described in the search warrant. This contention overlooks the fact that the description in the search warrant used the words, “The Boga Night Club, Dance Hall, Beer Parlor, and Sandwich Shop”, and also used the name “John Watson”. The officers testified that they knew from this description in the search warrant where it was located. It did not require any information other than the description in the search warrant to locate the premises. Under this statement of facts, it does not occur to ns that this contention is well taken and is highly technical. Smith v. State, 56 Okla. Cr. 103, 34 P. 2d 280; Pickens v. State, 70 Okla. Cr. 301, 106 P. 2d 127; Pickens v. State, 71 Okla. Cr. 167, 110 P. 2d 319; Mitchell v. State, 43 Okla. Cr. 63, 277 P. 260; Weisband v. State, 69 Okla. Cr. 79, 100 P. 2d 297; Crim v. State, 68 Okla. Cr. 390, 99 P. 2d 185; Crouse v. State, 69 Okla. Cr. 24, 100 P. 2d 467.

The second contention, that the affidavit for the search warrant does not state facts sufficient under the statute tO' permit the search of defendant’s home, presents a more serious question. The statute which permits the searching of one’s home is Oklahoma Statutes 1931, section. 2639, O. S. A., Title 37, section 88, and is as follows :

“No warrant shall he 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.”

It is the contention of defendant that the affidavit for the search warrant nowhere states that the home of defendant is used as “a store, shop, hotel, boarding house, or place for storage, or * * * is a place of public resort”, it being contended that that part of the affidavit which states, “It is a place of public resort; and whisky is kept therein”, has reference to “The Boga Night Club, Dance Hall, Beer1 Parlor, and Sandwich Shop”, and does; not include the home of defendant. It is contended that the intent of the person who made the affidavit is clearly shown by the statement in the affidavit, “Affiant has seen persons whose names are known to him drinking whisky, in the above described premises. The affiant has seen drunk persons in this place of business”, which appears in the affidavit just prior to the statement, “It is a place of public resort”.

It is contended by the state that it is unnecessary to. pass upon this question in deciding this case for the reason that, when the state at the trial of the case introduced evidence of the finding of liquor, there was no exception taken by defendant to' the introduction of this testimony. This seems to be begging the question. When defendant presented his motion to suppress the evidence and the court overruled the same and defendant excepted, this we think was sufficient to protect the rights and to raise the question of the legality of the search warrant. We have many times decided that the proper and best manner in which to raise the question of the legality of a search warrant is by a motion to suppress, to be heard by the court prior to the trial. Whitwell v. State, 72 Okla. Cr. 192, 114 P. 2d 489; Wagner v. State, 72 Okla. Cr. 393, 117 P. 2d 162. In addition to this procedure, the defendant objected to the introduction of any evidence at the opening of the trial for the reason that the search warrant was illegal, and this objection was overruled by the court and an exception taken.

The question of the right to search the home of a private citizen of this state under the statute above quoted has been before this court on many occasions. Loveless v. State, 43 Okla. Cr. 146, 277 P. 672; Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Bayne v. State, 42 Okla. Cr. 81, 274 P. 694; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Hyatt v. State, 38 Okla. Cr. 382, 262 P. 215; Kolander v. State, 33 Okla. Cr. 31, 241 P. 837; Hardy v. State, 35 Okla. Cr. 124, 248 P. 874; Buckley v. State, 69 Okla. Cr. 285, 102 P. 2d 619. Under these cases it has been the uniform holding of this court that a search warrant cannot be issued to search a private residence unless the affidavit to procure the same shows it to> -be “a store, shop, hotel, boarding house, or place for storage, or * * * is a place of public resort”, as provided by statute. The question of whether the terms of the affidavit were such as to cover one or some of these terms has also been discussed in individual cases. Hardy v. State, 35 Okla. Cr. 124, 248 P. 874; Blackwell v. State, 54 Okla. Cr. 401, 22 P. 2d 1041.

In the case of Smith v. State, 30 Okla. Cr. 144, 235 P. 273, 274, Judge Bessey, speaking for the court, said:

“Whether an affidavit for a search warrant states evidential facts or mere conclusions is sometimes difficult to determine. In this regard it seems to us that the affidavit in the Hannan case [Hannan v. State, 29 Okla. Cr. 203, 233 P. 249] is on one edge of the twilight zone, and the affidavit here under consideration is on the other edge.”

Just so in the instant case, if it is construed that the term, “It is a place of public resort,” refers to- the home of defendant the affidavit is probably sufficient. If that term refers to the Boga Night Club, then there is no statement in the affidavit which brings it within the statute permitting- the search of defendant’s residence.

We have carefully considered the affidavit in this case and come to the conclusion that the term, “It is a place of public resort; and whisky is kept therein,” has reference to the Boga Night Club and not the home of defendant. It is1 more easy to come to* the conclusion that, if the defendant was using his home in connection with his night club, he was using it as a place for the “storage” of liquor and not as a place of “public resort.” Certainly, the sheriff, when using the expression “public resort” in the affidavit meant the “Bog'a Night Club” and not the defendant’s residence. It would have been very easy in the preparation of this affidavit to have used the word “storage,” as provided by statute. If this had been done, the search warrant could have been upheld, but inasmuch as no term of the statute necessary for the search of a private residence was used, we are of the opinion that the court erred in refusing to sustain the motion to' suppress the evidence obtained thereunder. The evidence revealed that the only liquor found was in the home of the defendant. No liquor was found in the Boga Night Club or on the premises or outbuildings- in connection therewith. It is unnecessary to discuss other questions presented in the brief of defendant.

For the reasons above stated, the judgment of the county court of Pittsburg county is reversed with directions to discharge the defendant.

JONES and DOYLE, JJ., concur.


source: Caselaw Access Project

author: BAREFOOT, P. J.

license: Public Domain

text:
    Ex parte S. A. BERRIE.
    No. A-10136.
    Oct. 1, 1941.
    (117 P. 2d 807.)
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

Petitioner, S. A. Berrie, is now confined in the penitentiary at McAlester, where he is serving a life sentence from Muskogee county for the murder of his wife. He was convicted and sentenced in October, 1932, and in his petition for writ of habeas corpus he contends:

“First. That the state wholly failed to prove beyond a reasonable doubt that a crime had been committed.
“Second. That there was no evidence connecting your petitioner with any crime whatsoever.
“Third. That the state failed to prove beyond a reasonable doubt that deceased died from strychnine poisoning, or that your petitioner administered it or procured it to be done by another.
“Fourth. That there is nothing in the record that shows that deceased died from anything other than natural causes.”

The record discloses in a response filed by the warden of the penitentiary that after the conviction of defendant, his case was appealed to' this court and the same was affirmed. Berrie v. State, 55 Okla. Cr. 302, 29 P. 2d 979. The identical questions presented in this petition for habeas corpus were raised in the appeal and passed upon by this court at that time. The opinion of the court wad a twoi-to-one decision. Judge Chappell wrote a dissenting opinion. The opinion gives a full discussion of the facts and it is unnecessary to here repeat them.

It has been the uniform holding of this court that we will not pass upon the question of the sufficiency of the evidence in a habeas corpus hearing. It is only when the judgment and sentence under which petitioner is serving is void that this court will assume jurisdiction. Ex parte Green, 69 Okla. Cr. 218, 101 P. 2d 641; Ex parte Robnett, 69 Okla. Cr. 235, 101 P. 2d 645; Ex parte Davis, 68 Okla. Cr. 29, 95 P. 2d 915; Ex parte Newman, 67 Okla. Cr. 401, 94 P. 2d 556.

The reason for this rule is apparent in this case. The record does not contain all of the evidence introduced in the trial, but only a few excerpts quoted in petitioner’s petition, and on appeal all of the evidence was before the court. Petitioner’s only remedy is to present this matter to the Governor of the state for such action as he deems advisable under the pardon and parole powers authorized by the Constitution and laws of this state.

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

JONES and DOYLE, JJ., concur.


author: JONES, J.

text:
    ROY BOOTH v. STATE.
    No. A-9826.
    Oct. 1, 1941.
    (117 P. 2d 805.)
    John Steele Batson, of Marietta, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

Boy Booth and Howard E. Kemp were jointly charged in the district court of Love county with the crime of forgery in the second degree in six different cases. At the request of the defendants!, the cases were consolidated, and all of the evidence presented to the same jury, which returned separate verdicts of guilty against each defendant in all six cases. The defendant Boy Booth was sentenced to serve a term of six months in the State! Penitentiary on each of said charges, pursuant to the verdict of the jury; and he has appealed to this court.

The defendant Kemp did not appeal from the judgment pronounced against bim.

The procedure followed in these cases, in trying all of the cases at the same time, is very unusual. Insofar as this court is advised, it is the first time such novel procedure has been used in criminal cases. Such procedure of consolidation is quite generally adopted in the trial of civil cases, but it is unusual for a defendant and his counsel to request or even agree to such a procedure. However, no question is raised as to this form of procedure. The district court had jurisdiction of the person and of the subject matter; and we see no valid reason why, if requested by the defendant, such procedure may not be followed.

This case has been submitted to this court without briefs and without oral argument; and in such cases, it is the rule of this court to search the record for fundamental error only; and if none is found and the evidence is sufficient to sustain the conviction, the judgment of the trial court will be affirmed.

We have carefully examined the record; and the evidence, although mostly circumstantial as to the defendant Booth, is; sufficient in our opinion to show that the defendants, Booth and Kemp, Avent to the town of Marietta; that the defendant Booth forged several checks, and the defendant Kemp passed these checks as forged by Booth in several of the mercantile establishments in Marietta, receiving money and merchandise in exchange for the forged checks1.

A handwriting expert testified on behalf of the state that the handwriting of the forged checks was the handwriting of the defendant Booth. Several Avitnesses connected the defendants, Booth and Kemp, as being seen together at various places outside of the stores where the checks were passed.

Defendants had rented a tourist cabin together, and some of the groceries and merchandise secured from the checks were brought to the cabin by Booth and Kemp, together, and unloaded. There are many other circumstances pointing towards the guilt of the defendant, and, when considered as a whole, are sufficient to sustain the judgment of conviction on each of the six charges.

We have examined the record and find the instructions fairly present the issues to the jury. There were no requested instructions and no exceptions to any of the instructions given by the court; and after a search of the record, we have found no errors of sufficient importance to require a reversal of these cases.

It is, therefore, ordered that the judgment of the district court of Love county be, and the same is hereby, affirmed in each of the six cases involved herein.

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


text:
    C. G. TRIPP v. STATE.
    No. A-9840.
    Oct. 8, 1941.
    (118 P. 2d 273.)

      Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Cov Atty., of Oklahoma City for the State.
    Jim B. Barnett, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, C. G. Tripp, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: 111 pints of tax-paid liquor; 49 half-pints of tax-paid liquor; 8 quarts of tax-paid liquor. He was tried, convicted, and sentenced to pay a fine of $50 and! serve 30 days in the county jail, and has appealed.

For reversal of this, case it is urged that the court erred in refusing to. suppress the evidence procured by the search warrant:

“First. That it is: insufficient for the issuance of a search warrant that affiant or deponent shall swear to the conclusion that liquor is stored or kept in violation of law in a described place without, affirmatively stating the facts upon which his knowledge is founded.
“Second: That an officer has no right to search a person or his automobile without a search warrant on1 mere suspicion of the commission of a misdemeanor, and conviction upon the evidence so obtained is erroneous.”

These propositions may be considered together.

This case was tried by agreement before the court without the intervention of a jury. Evidence was. presented on the motion to suppress, and it was agreed that the evidence so introduced should be considered by the court as evidence in the trial of the case.

The record reveals that on the 29th day of August, 1939, four deputy sheriffs of Oklahoma county, Ben Davis, Bob Turner, Frank Lynch, and Fred Smith, saw defendant, C. G. Tripp, park his automobile in the rear of 409 Northwest 42nd street, Oklahoma City, in a public place. They had reason to believe that the car contained intoxicating liquor to be used in the violation of the laws of this state. They did not approach the car at this time, but Officers Turner and Lynch watched the car and Officers Davis and Smith went to get a search warrant for the purpose of searching’ the same. Just before Of-, fleers Davis and Smith returned with the search warrant they had procured to- search the car, the defendant returned to- the car. Officer Turner’s testimony was as follows:

“Q. While they were gone, what did you do? A. Set over there on some steps and watched the car and saw Mr. Tripp come out to- the car and unlock the car and load himself down with whisky and start to- walk away and we threw the light on him and asked him what he had there and he said a little whisky, and just as that happened Mr. Davis and Mr. Smith drove up and served the search warrant on him.”

From this evidence it was unnecessary at this, time to secure a search warrant. When the officers saw the defendant take packages from the car which they were watching, they had the right, as officers in the discharge of their duty, to approach the defendant, who- was in a public place, and when defendant informed them that he had whisky, they had the right to arrest and search him under these circumstances.

The officers are to be commended for their action in this case in procuring a search warrant before attempting to search the car of defendant. It was after the action of defendant in taking the whisky from the car that they had the right to search without the necessity of a search warrant, but when the unlawful act was committed in their presence they had a right to- act. Under many decisions of this court, after the defendant was lawfully arrested, they had the right to search his person and his immediate possessions;. Bullington v. State, 38 Okla. Cr. 214, 259 P. 876; Davis v. State, 30 Okla. Cr. 61, 234 P. 787; Rambo v. State, 38 Okla. Cr. 192, 259 P. 602; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Nott v. State, 70 Okla. Cr. 432, 107 P. 2d 366; Young v. State, 71 Okla. Cr. 112, 108 P. 2d 1028.

This search revealed more than 111 pints of tax-paid whisky. It was evident that this whisky, which was introduced in evidence, was possessed by the defendant for the purpose of illegal sale.

Having held that it was unnecessary to have a search warrant in this case under the facts stated, it becomes ¡unnecessary to pass upon the question that the search warrant was based upon information and belief. The judgment of the court of common pleas of Oklahoma county is therefore affirmed.

JONES and DOYLE, JJ., concur.


text:
    ELLETT RHEA THOMPSON v. STATE.
    No. A-9853.
    Oct. 8, 1941.
    (118 P. 2d 269.)

      Springer & Springer, of Stillwater, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ellett Rhea Thompson, was charged by information filed in the district court of Payne county, on September 26, 1939, with the offense of driving an automobile while under the influence of intoxicating liquor, was tried, convicted and sentenced to serve four months in the State Penitentiary, from which judgment and sentence he appeals to this court.

Counsel for the defendant presents many assignments of error in his brief. Some of these assignments are directed to the ruling of the court on the admissibility of certain evidence; and, with the exception of the questions asked by the defendant on the cross-examination of the witness Chickering, the rulings of the court appear to be correct.

Because, as we view the matter, this case must be reversed on other grounds, the questions raised as to the court’s rulings on the matters of evidence will not be discussed, except where it is apparent to. us that the court erred, and that such error possibly affected the outcome of the trial.

The proof of the state is to the effect that about 10! p. m. on August 27, 1939, the defendant was driving- a red Ford pick-up east on State Highway No. 33 between; Cushing and Drumright, while he was under the influence of intoxicating, liquor; that while driving in this manner, he swerved across the road, hitting a culvert, and blowing out an automobile casing.

The evidence of the defendant is1 that the defendant was not driving the automobile, but that said car was being driven by one Charles Lemons, and that the defendant was not under the influence of intoxicating liquor.

This case will have to be reversed because of certain occurrences during the trial, which in our opinion have prevented the defendant from having a fair and impartial trial.

At the outset, the defendant asked that the witnesses be placed under the rule. The court placed all of the witnesses under the rule except two highway patrolmen and a police officer. These three officers were the only people who testified that the defendant was under the influence of intoxicating liquor on that occasion. The defendant objected to the officers being excepted from the application of the rule, and excepted to the action of the court in refusing to apply the rule to them.

We have held that the right to' have witnesses placed under the rule and excluded from the courtroom during the trial was not an absolute right of defendant, but a matter in the discretion of the trial court. Harrell v. State, 36 Okla. Cr. 225, 253 P. 516.

Occasionally cases will arise where it is necessary for officers to be in the courtroom to- expedite in the handling of the trial and to assist the court in keeping order. In this case the defendant was out on bond, and the presence of these three officers was not necessary to guard the prisoner; no good reason appears to us as to why they should have been exempted from the general rule applicable to all of the Avitnesses.

The practical effect of the court’s order was to' exclude all of defendant’s witnesses from the courtroom, while allowing, those testifying for the state to remain and hear each other’s testimony.

This ruling of the court might have been harmless, except that when considered in connection with other events that transpired during the trial, hereinafter discussed, it amounts to depriving the defendant of that fair and impartial trial guaranteed to him under our laws.

The witness, Chickering, was with the defendant at the time of the alleged wreck, and testified on behalf of the state concerning the activities of the defendant for several hours prior to' the incident in question. Chicker-ing testified that earlier in the day, he, Hurst, and the defendant had drunk some whisky, and that the defendant drank a bottle of beer in Cushing, which was before they started on the trip which ended in the automobile striking the culvert,.

On cross-examination of the witness, counsel for defendant sought to cross-examine him concerning the intoxication of the defendant, to' which the court sustained objections by the county attorney.

We think this was error.

After the state bad examined Chickering fully with reference to all that it desired to prove as to the defendant having been drinking intoxicants and as to- the manner of the accident, the defendant should have been allowed, on cross-examination, to bring out anything that the state had omitted to show, which would in any manner tend to' shed light upon the transaction.

In Gibbons v. State, 34 Okla. Cr. 407, 246 P. 1107, this court stated:

“The cross-examination of a witness is not to be confined to the particular questions asked, nor the precise subjects called to his- attention, on direct examina.tion. The correct rule is to- allow the cross-examination to extend to- any matter not foreign to the subject-matter of the examination in chief, which tends to limit, explain, or1 modify the same.”'

The state cannot be permitted to prove one part of a transaction by a witness, and by failing to question him with reference to a matter which constitutes an essential element of the same transaction, force a defendant to place a hostile witness upon the stand for the purpose of proving the matter which had been omitted by the state.

We are of the opinion that the trial court erred in refusing to allow the defendant to- cross-examine the witness as to whether the defendant was under the influence of intoxicating liquor at the time of the wreck.

It is next urged that the county attorney and sheriff arrested the defendant’s witnesses, one after another, as they left the witness- stand and lodged them in jail. That such activities on the part of the sheriff and county attorney were widely discussed in the lobby of the courthouse, outside of the courtroom; that the jury, excused for several minutes’ recess while the court was preparing bis instructions, were allowed to mix and mingle with the spectators outside of the courtroom, and were bound to have learned of these arrests to the prejudice of the defendant. That such arrests intimidated two of defendant’s witnesses, who refused to testify after being subpoenaed, because they did not wish to be harassed by the county attorney or humiliated by being placed in jail.

This matter was: raised in a supplemental motion for a new trial filed by the defendant. Upon the hearing upon said motion, the defendant placed the sheriff upon the witness stand, who swore that he arrested Mae Smith, Merle Frees, one Dye, and Charles Lemons, witnesses for the defendant who testified to the fact that Charles Lemons was: driving the red pick-up at the time it was alleged by the state that the defendant was driving. The sheriff testified that he arrested these witnesses just outside of the courtroom, while the trial was in progress, at the direction of the county attorney and confined them in jail. That Frees and Mae Smith were held in jail a day or two for investigation before being released, and that charges of perjury were filed against Dye and Lemons in connection with their testimony in this case. That there were several spectators and witnesses in the lobby outside of the courtroom when these arrests occurred.

In rebuttal, the county attorney introduced affidavits from each of the 12 jurors who sat on the case that they did not hear the case discussed outside of the actual trial of said case by any one.

It is not our purpose to comment upon whether the county attorney was justified in filing the perjury charges against these parties, as that was a matter directed to the discretion of the county attorney who was chosen by the people of Payne county to investigate all crimes committed in that county. It was his duty, if perjury was committed, to prosecute the same vigorously. But it was further his duty to commit no act during the trial for the purpose of intimidating defendant’s witnesses, or to convey to the jury from facts obtained outside of the courtroom the personal opinion of the prosecutor that the defendant’s witnesses were guilty of perjury in connection with the case on trial.

There was no' direct proof that the jury learned of these arrests. On the contrary, although the affidavits do not expressly so state, the inferences from the statements of the jurors are that they did not hear any comment concerning the arrest of the defendant’s witnesses. After the arrests were made, the jury was allowed to separate and mingle with the spectators during a recess while the court was preparing his instructions; and it would be unusual if some of the jurors did not learn from some remark, carelessly or intentionally made by a spectator, that the defendant’s witnesses1 had been arrested for lying on the witness stand.

It is evident that if such procedure on the part of a county attorney was encouraged, there would be a great temptation to. abuse this privilege. The danger inherent in such a practice is so great that we cannot place our stamp of approval on the same. If it should become necessary to1 arrest a witness whom the county attorney believes has committed perjury, great care should be exercised to see that this is not done in the presence or hearing of the jury, and knowledge of such arrest should be kept from the jury.

Defendant and his counsel each testified at the hearing on this motion that two. witnesses subpoenaed by the defendant, Bill Criswell and Hollis Ashcraft, refused to testify to certain truths favorable to. the defendant’s cause, after they saw the arrest of the other witnesses for the defendant, because they did not want ü> be locked up by the county attorney.

It is all right for the county attorney to let the public know that he will prosecute any witnesses that might commit perjury in any of the courts in his jurisdiction. But the manner of making this determination to prosecute known should not be such that a truthful witness would be kept from testifying for a defendant for fear of being arrested by a prosecutor. However, there will be very few cases where an honest witness will be prevented from testifying through fear of action against him by the county attorney.

After thorough consideration of this matter, we have come to the conclusion that "the defendant has made a sufficient showing to impel us to- the conclusion that the action of the county attorney in connection with the arrest of defendant’s witnesses materially prejudiced the defendant in this case.

For the reasons hereinabove stated, the judgment of the district court of Payne county is reversed and remanded, with instructions to grant the defendant a new trial in accordance with the views herein expressed.

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


author: PER CURIAM.

text:
    CHAP SCOTT v. STATE.
    No. A-10075.
    Oct. 8, 1941.
    (118 P. 2d 269.)

      Mac Q. Williamson, Atty. Gen., and W. W. Godlove, Co. Atty., of Lawton, for the State.
    C. S. McCuistion, of Lawton, for defendant.
   PER CURIAM.

The defendant, Chap Scott, was on the 4th day of February, 1941, convicted in the county court of Comanche county of the crime of unlawful possession of intoxicating liquor, and hisi punishment assessed at a fine of $500 and 180 days’ imprisonment in the county jail, from which judgment and sentence he appealed on the 22nd day of May, 1941. The Attorney General has called the attention of the court to the fact that, since this appeal was taken, defendant Chap Scott departed this life on or about the 1st day of September, 1941.

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

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


text:
    HERMAN WASHINGTON v. STATE.
    No. A-9860.
    Oct. 8, 1941.
    (118 P. 2d 267.)
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Bill Steger, Co. Atty., of Durant, for the State.
    Newman & Phillips, of Durant, for defendant.
   BAREFOOT, P. J.

Defendant, Herman Washington, was charged in the county court of Bryan county with the crime of unlawful possession of intoxicating liquor, to wit: two pints of Schenley’s Red Label whisky, two' pints of Town Tavern rye whisky, one pint of Old Log Cabin whis-ky, one pint of Dayton Club whisky, one pint, half full, of Oilbey’s gin, one half-pint of Dayton Club whisky, and one pint of Old Schenley’s B Bond whisky; was tried, convicted and sentenced to1 pay a fine of $50 and serve 30 days in the county jail, and has appealed.

For reversal of this case it is first contended:

“That the affidavit and search warrant on which this proceeding was instituted are void on their face, for the reason that neither the search warrant nor the affidavit show that H. D. Sparger was a justice of peace in any precinct in Bryan county, but that he was a general justice of peace for the whole of Bryan county.”

It is contended that the case of Harrington v. State, 66 Okla. Cr. 310, 91 P. 2d 787, supports this contention. A careful reading of that case does not justify this conclusion. In that case, on the motion to suppress the evidence the defendant offered to prove that the officer making the affidavit did not go before the justice of the peace in his own district to sign and swear’ to the affidavit. This evidence was rejected by the trial court, and on appeal it was held that the court erred in not permitting the introduction of this evidence. Where the record is silent as to the place where the justice of the peace acted, it will be presumed that he- acted within his district, subject, however, to the right of the defendant to rebut this presumption by proof that such action was taken by said justice of the peace outside of his district. Farrow v. State, 71 Okla. Cr. 397, 112 P. 2d 186.

In the instant case no evidence was offered on the hearing of the motion to suppress as to the invalidity of the search warrant by reason of the above facts. The defendant did not raise this question on the motion to suppress the evidence nor in his motion for new trial. It is first presented in his petition in error and on appeal. It has often been held by this court that this cannot be done. Ledgerwood v. State, 6 Okla. Cr. 105, 116 P. 202; Crump v. State, 7 Okla. Cr. 535, 124 P. 632; Cardwell v. State, 20 Okla. Cr. 177, 201 P. 817; Signs v. State, 35 Okla. Cr. 340, 250 P. 938; Duncan v. State, 40 Okla. Cr. 347, 268 P. 998.

It is next urged that:

“An affidavit for search warrant which is made on information and belief is not sufficient to authorize the issuance of a search warrant.”

This issue was not presented or urged before the trial court when the motion to suppress the search warrant was presented, nor on the motion for new trial, and is not assigned as error1 in the petition in error filed herein, but it will be noted from a reading of the affidavit for the search warrant, which was offered in evidence at the hearing on the motion to suppress, it is provided:

“That said residence and premises are a place of public resort and used as a place of storage for intoxicating liquors stored and possessed for sale, bartering, giving away or otherwise furnishing in violation of the prohibition laws of the State of Oklahoma.”

It will thus be noted that this affidavit contains the positive statement “That said residence and premises are a place of public resort and used as a place of storage for intoxicating liquors.” This allegation contains two of the essential elements of the statute necessary for the obtaining of a search warrant to search a private residence. Okla. Stats. 1931, section 2639, O. S. A. Title 37, § 88. See, also, Watson v. State, 73 Okla. Cr. 58, 117 P. 2d 808.

It is next contended:

“That the description of the property sought to be searched, set fourth in the affidavit and search warrant, was at complete variance with the testimony of the officers serving the same and for this reason said motion should have been sustained.”

This contention is based upon the fact that the affidavit upon which the search warrant was based stated! that the property described was located approximately “one mile south of the town of Colbert, Oklahoma.” When the motion to suppress the evidence was presented the defendant offered evidence to show that his property was located 300 yards south of the city limits of Colbert, “approximately one-half mile” south of the bank and “on the west side of the road” on Highway 75. This witness also testified that he knew Herman Washington, and that his house was a two-story house, painted white with a red front, and had a filling station in connection with it. This description was the same as stated in the affidavit, with the exception of the distance. The evidence also revealed that the place could easily be identified from the description in the search warrant and no further information was necessary to locate the premises; that there was no other place in close proximity with a similar description. Under this statement of facts, we are of the opinion that the court did not err in overruling the motion to suppress the evidence because of the description in the affidavit. Watson v. State, supra.

The evidence in this case revealed that the liquor in question was found in the refrigerator of defendant which was located in his place of business on the first floor, and not in his residence, which was on the second floor.

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

JONES and DOYLE, JJ., concur.


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    HANLEY ROYSTON BOOTH v. STATE.
    No. A-9862.
    Oct. 8, 1941.
    (118 P. 2d 274.)
    Mitchell & Mitchell, of Clinton, and Moman Pruiett, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Milton Keen, Co. Atty., of Clinton, for defendant in error.
   JONES, J.

The defendant, Hanley Boyston Booth, was charged in the district court of Custer county with the crime of obtaining money by false pretenses, was tried, convicted, and sentenced to- serve one year in the State Penitentiary, and has appealed to this court.

The assignments of error Avill be discussed in the order in which they were presented in the defendant’s brief.

It is first urged that the information is insufficient to charge the offense of obtaining money under false pretenses or to give the court jurisdiction to' try said cause.

No demurrer was interposed to the information, and no motion in arrest of judgment was ever filed; but the question now presented by counsel for defendant is raised for the first time on appeal.

We have held that where an objection to the sufficiency of an information is raised for the first time upon appeal, the only question that will be considered is whether the facts stated in the information are sufficient to charge a public offense, so as to give the court jurisdiction to try the defendant. Rhodes v. State, 58 Okla. Cr. 1, 49 P. 2d 226; Franklin v. State, 17 Okla. Cr. 348, 188 P. 686, Stone v. State, 12 Okla. Cr. 313, 155 P. 701.

The purpose of requiring the defendant to' interpose his objection to the information before pleading to the merits of the case is to' allow the county attorney to' make such amendments as may be proper in case a defect isi disclosed.

We have examined the information herein and find that it alleges in substance that the defendant, Booth, did unlawfully, wrongfully, falsely, feloniously, etc., represent to' one Elsie Nuse that he was a peace officer from Oklahoma county and had authority to' arrest her for a misdemeanor committed in Oklahoma county, and that he would arrest her unless she paid $115 to' him; that by the use of such representations of being a peace officer and of having authority to arrest the said Elsie Nuse, the said Booth obtained $115. The information further alleges that said representations were false and untrue; that defendant knew the same to be false and untrue, and that the said Elsie Nuse relied upon said false representations and delivered to Booth, the sum of $115, and that Booth used the said false pretenses with the intent to defraud the said Elsie Nuse; that Elsie Nuse relied upon said false pretenses, and was thereby deceived and defrauded of her said money.

This information is sufficient as against the attack now made for the first time on appeal.

The most serious question presented in the brief of the defendant is that the verdict is not sustained by the evidence, and is contrary to law for the reason that the alleged misrepresentations were oral, and there was no additional witness to the representations as required by the statute, and no corroborating circumstances.

Elsie Nuse, the prosecutrix, testified that she lived at Clinton and worked at the Kemp Hotel. That she did not know defendant, but met him for the first time on September 4, 1937, when he came to the hotel. She saw him first in the lobby, around 10 o’clock, a. m. The defendant showed her a police picture of her, and stated that he was an officer from Oklahoma county, and that he had come to take her back to Oklahoma City on an old charge of being drunk and disorderly conduct; that defendant went with her to' get her hair dressed, and stayed there at the beauty shop 20 or 25 minutes; that the witness said she had some money in the bank and would like to take it to her mother, so that her mother could send her little girl to school while she was away. The defendant and witness went to the bank together, and the witness withdrew $125 from the bank, which closed her account. That they went to' a drugstore to drink a coke, and the defendant proposed that if she would give him $200 he would not take her back to Oklahoma City; that she finally agreed to give him $115, and handed him the money under the table in the drugstore. That witness, later that day, reported the incident to the manager of the hotel, who. in turn consulted an attorney, and this prosecution was. instituted.

A. T. Wheeler testified that he was vice president of the Oklahoma National Bank at Clinton; that on September 4th defendant and Elsie Nuse came to his bank; that defendant remained up front at his desk, and Elsie Nuse went to. the back and drew out her savings account in the sum of $125. The same testimony, in substance, was given by the lady who worked as cashier at the window where the money was withdrawn.

An employee of a drugstore testified that the defendant and Elsie Nuse came into the Ross drugstore on September 4th, had a drink, and stayed five or ten minutes.

Another drugstore employee testified that defendant and prosecutrix came into the Marclif Drugstore, where prosecutrix inquired as to any bills she might owe so that she might pay the same.

Allman Russell testified that he was a deputy sheriff of Custer county, and served a warrant on the defendant at Lake Overholser, in Oklahoma county, and arrested him and brought him to Arapaho.; that the defendant was at the boathouse. Defendant stated that he did not know Elsie Nuse and had nevembeen to Clinton, and wanted to make bond and not return to Clinton. Later, defendant admitted being to Clinton. This witness testified that the defendant said he had been in the boat business at Lake Overholser for about two years, and that he was. not a peace officer. Without objection on the part of defendant’s counsel, this witness then relates a series of things that he learned in Oklahoma City about the defendant. These statements were all hearsay and prejudicial, and! should not have been made; but they were admitted without objection.

A porter at the Kemp Hotel reported that he saw the defendant in the hotel around 7:00 o’clock on the morning of September áth, and that later that morning he saw him come across the street from the drugstore with Miss Nuse.

The defendant testified in his own behalf that he was now in the business of operating boats at Lake Overholser, and had been for two and one-half years. That he had never been an officer. That he had at one time been a professional bondsman at the police court in Oklahoma City. That he knew the complaining witness, but did not know her by the name of Elsie Nuse. That many years ago, he had been called to police court where Elsie Nuse and a negro had been arrested fot occupying, a room for immoral purposes. That he was asked to make their bond, but did not make it. That he knew all of the gamblers, prostitutes, bootleggers, and other criminals in Oklahoma City. That the prosecuting witness was just a negro loving prostitute. That he came to Clinton on September 4, 1937, to see about putting a boat on the Clinton Lake. That he came back by the coffee shop at the Kemp Hotel and saw the girl that he knew as Margaret Carter, which is the same girl as Elsie Nuse. That they had a conversation in the coffee shop, in which he told her that he was there looking over the lake. That she wanted him to take a letter to the negro in Oklahoma City with whom she had been arrested, and that he refused to do- so, and shamed her for writing a letter to- a negro-. The defendant then, without any objection on the part of the state, lays all of his troubles on the Oklahoma City police department and the newspaper at Oklahoma City, and states that they had had him whipped once and that they were behind this prosecution because he had tried to clean up the police department of Oklahoma City.

It is well for us to observe here that there were no objections made to any of the things, which any of the witnesses, for either the defendant or the state wanted to state, by counsel for the defense or the state; and the record stinks with voluntary, hearsay statements on matters wholly irrelevant to the issues; involved. In justice to the learned counsel who appeared before this court, we deem it proper to state that they did not appear and had no part in the proceedings on the trial of said case.

In rebuttal, the state called Roger Hamilton, who testified that he was working at the Kemp Hotel in August; that sometime during that month, about 8:30 at night, the defendant drove up in front of the hotel, asked for Elsie Carter, and gave a description of the woman who worked there, Avhom he knew by the name of Elsie Nuse. 'That Elsie Nuse was. not at the hotel at that time, but wasi in Bridgeport; and he informed the defendant of this. Defendant left and said that he would be back later.

Section 3072, O. S. 1931, 22 Okla. St. Ann. § 743, provides as follows:

“Upon a trial for having, with an intent to cheat or defraud another designedly, by any false pretense, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property or valuable thing, the defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense, or some note or memorandum thereof, be in Avriting either subscribed by, or in the handwriting of the defendant, or unless the pretense be proven by the testimony of two> Avitnesses, or that of one witness and corroborating circumstances. But this section does not apply to prosecution for falsely representing or personating another1, and! in such assumed character, marrying or receiving money or property.”

It is conceded by the state that the representations made by the defendant were oral, and that there were no witnesses to the same other that the prosecutrix; but it is insisted that the corroborating circumstances are sufficient to uphold the conviction.

A consideration of this evidence shows that the witness, Elsie Nuse, relates facts sufficient to make a prima facie case against the defendant.

We then have these corroborating facts established:

(1) Defendant came to Clinton in August, looking for Elsie Nuse.

(2) Defendant was at the Kemp Hotel by 7 a. m., September 4th, looking for Elsie Nuse, and waited in the lobby until she appeared about 9:45 a. m.

(3) The evidence from witnesses at the beautyshop, the two drugstores, and the bank shows that Booth stayed with Elsie Nuse until nearly noon.

(4) The proof shows that Booth waited in the beauty parlor, while the prosecuting witness was getting her hair fixed, for approximately 25 minutes. This incident is significant as supporting the testimony of Elsie Nuse that she thought that she was under arrest and in custody of an officer, as we deem it very unusual that a man would accompany a woman to a beauty parlor and sit for 25 minutes while she is getting her1 hair dressed.

(5) The fact that Booth did not let prosecutrix out of his sight at the bank, and that prosecutrix withdrew all of her money, is a circumstance tending to corroborate her statement that she thought that she was leaving Clinton.

(6) Booth, and the prosecuting witness went to the Ross Drugstore, Avhere she inquired if she OAved a bill, and stated she wanted to. settle any debts that she might owe. This is just a small circumstance which corroborates1 her statement that she was being forced to leave Clinton and was Avanting' to settle her debts before she left.

(7) The fact that defendant first told the officers of Custer county that he had not been to Clinton, and did not knoAV prosecutrix, but later changed his story to admit that he had been to Clinton and knew prosecutrix, but knew her under1 another name.

We think that, when these circumstances are considered together, they amount to a sufficient corroboration of the story of the prosecutrix, and deem them sufficient to comply with the requirements of section 3072, supra.

The defendant, by his own testimony, admits, being at the various places Avith the prosecuting'; Avitness on September 4th, and his explanation of the purpose of these trips Avas hardly worthy of belief. In fact, if the jury had believed] the story related by defendant, it would have been very gullible.

The last contention of the defendant is that the court did not give sufficient instructions to' properly present the material issues to' the jury. In connection with this assignment, it is not urged that the court erred in the wording of any of the instructions which were given; but it is argued that the court should have given an instruction setting forth the terms of the statute requiring corroboration of a witness where the representations relied upon are oral.

In this connection, however, the record reveals that no requested instructions were presented to the court. We haAre examined the instructions which were given; and, in tbe absence of any requested instructions, we tbink they are sufficient to submit tbe issues to the jury for their determination.

Tbe judgment of the district court of Custer county is accordingly affirmed.

BABEFOOT, P. J., and DOYLE-, J., concur.


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    ESTON HIGHFILL v. STATE.
    No. A-9846.
    Oct. 15, 1941.
    (118 P. 2d. 263.)

      A. W. Billings, of Woodward, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam Lattimore, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Eston Highfill, was. charged in the district court of Woodward county by information, on June 26, 1939, with burglary in the second degree, tried, convicted and sentenced to. serve two years in the State Penitentiary, from which judgment and sentence he appeals to this court.

Defendant contends that the evidence is insufficient to sustain the conviction and that the court erred in his instructions to the jury.

The evidence on behalf of the state shows that on the night of March 9, 1939, a window was broken out of the Fisher Grain Company in Woodward, Okla. A 630-pound safe, belonging to L. S. Fisher, was1 removed from the building and carried away by automobile. The next morning the tracks of the automobile which was. used in the burglary were followed, and led the officers to. where the safe was hidden in the river bottom. The safe was in such a place that it could only be seen by those coming- close upon it. It was between 150 and 200 yards from the highway, face down. The safe was raised up. and opened by employees of Mr. Fisher. It was then placed as nearly as possible in the position in which it was found.

Sheriff Nelson and D. T. Greggary hid near the safe. After dark, three men drove up in a car and got out, carrying flashlights. Defendant was heard to say, “Here it is, just like Ave left it.” They discussed opening it, and in an attempt to move the car so that the headlights' would shine on the safe, the car stalled. They worked on the car for a while, and one of the men (later identified as Clarence Johnson) went to. town for repairs. Defendant and the other man came up to the safe. Defendant remarked that it would be lucky if they could work the combination. When they started hammering on the safe, the officers] surprised them. Defendant crouched behind the safe, and was arrested. The other man, who was identified as Elmer1 Berry, escaped. Pliers and a cold chisel were found near the safe.

S. A. Caress testified that on the night of the burglary, if his memory served him right, he saw defendant and Johnson playing pool together.

Defendant offered no< evidence.

In support of defendant’s contention that the evidence was insufficient, counsel cites State v. Goldfeder, Mo. Sup., 242 S.W. 403, and State v. Rice, 83 N. C. 661. Both cases hold that evidence of the defendant’s presence at a place where recently stolen property is stored, without proof of other facts tending to show guilt, is: insufficient to sustain conviction. In State v. Goldfeder, supra, defendant explained his presence. In State v. Rice, supra, no explanation was made by defendant; but the stolen property was concealed in a plunder house, which defendant had entered under suspicious cir cumstances, and it was not shown that defendant had knowledge of the stolen property being in that place.

This court stated in Underhill v. State, 70 Okla. Cr. 39, 104 P. 2d 447, that it would be carrying the rule concerning the possession of recently stolen property too far to require one accused of crime to explain the possession of such property, when the possession could, with equal right, be attributed to another. Hence, the mere fact of finding stolen property on premises, or any other place, to which many others have free access, without showing his actual conscious possession thereof, discloses only prima facie constructive possession, and is not such possession as will justify an inference of guilt by reason thereof.

However, the safe in this case had been concealed in the river bottom; the tracks of the burglar’s car led the officers to it; it had been there for only a few hours until1 the defendant came in the dark to the place and stated that the safe was like he had left it. He then attempted to crack the safe. We think these facts are sufficient to show a dishonest possession of recently stolen property, and should have been submitted to the jury.

This court held in Gransbury v. State, 64 Okla. Cr. 408, 81 P. 2d 874:

“The mere possession of property recently stolen is not sufficient to convict the possessor of larceny or burglary of it. But when this fact is supplemented with other facts inconsistent Avith the idea that the possession is honest, it then becomes a question of fact for the jury to pass upon the guilt or innocence of the defendant.” Hart v. State, 57 Okla. Cr. 372, 48 P. 2d 337.

In 2 Bish. Cr. Proc. 1697, 740, it is stated:

“* i:' * when the fact of a theft has been shown, and the question is whether or' not the defendant committed it, his possession of the stolen goods, either sole or joint with others, at a time not too long after the stealing", is a circumstance for the jury to consider1 and weigh in connection with the other evidence. Its significance will vary with its special facts, and with the other facts of the case; among which are the nearness or remoteness of the proven possession to the larceny, the nature of the thing as passing readily from hand to hand or not, what explanations he made on its being discovered that he had the goods, together with such other facts as ought reasonably to influence a juror’s opinion.”

It is not often that a person who commits burglary will be seen, and for that reason witnesses cannot be obtained to identify the perpetrators of the burglary. Resort in such cases must be had to circumstantial evidence.

We think there is sufficient evidence in this case to support the conviction.

The defendant, in his brief, states that three instructions given by the court are erroneous, but nowhere in his brief does he point out wherein they are erroneous nor does he cite any authorities to support his contention.

We have examined the instructions and find that they sufficiently state the law in accordance with the decisions of this court, and that there is nothing in said instructions which might mislead the jury. Instruction No. 9, while not a literal statement of the law of circumstantial evidence as applied to this case, is not confusing or misleading’, and substantially states the law.

The judgment of the district court of Woodward county is affirmed.

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


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    Ex parte OLIN ANDERSON.
    No. A-10100.
    Oct. 15, 1941.
    (118 P. 2d 404.)
    . James K. Eaton and Joe S. Eaton, both of Okmulgee, for petitioner.
    Mac Q. Williamson, Atty. Gen., for the State.
   PER CURIAM.

Petitioner, Olin Anderson, has filed his petition for writ of habeas corpus in this court alleging that he is unlawfully imprisoned and restrained by Sheriff John Lenox in the county jail of Okmulgee county.

Since this petition has been filed, it has been brought to the attention of the court that petitioner has been tried in the district court of Okmulgee county, has been convicted, and has appealed to this court, and that said case is now pending on appeal in this court, being case number A-10138.

For this reason the petition for writ of habeas corpus is denied.


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    SIMON MILLS v. STATE.
    No. A-9848.
    Oct. 15, 1941.
    (118 P. 2d 259.)

      Wall & Green, of Sallisaw, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Simon Mills, was charged jointly with Junie Blankenship' and Cornelius Bolen in the district court of Sequoyah county with the larceny of two calves, was tried, convicted and sentenced to serve five years in the State Penitentiary, and has appealed to this court.

The defendant presents two propositions in his> brief:

(1) There is not sufficient corroboration of the two accomplices who testified against the defendant to sustain the conviction.

(2) Misconduct of the county attorney in asking, a prejudicial question prevented the defendant from having a fair and impartial trial.

In considering the first assignment of error, a brief summary of the evidence is necessary.

Melbum Hunicutt testified that he had lived in the vicinity where the three persons charged with the theft of his cattle lived for 14 years; that in that vicinity there was an open range; that he bought three cows from Mr. Randall, and they disappeared about the first of March. He looked all over the country for them. One of the calves died, but a roan bull calf and a red heifer calf, with marks on their ears, were missing; and he had never been able to find them. The red heifer calf had a bell on it when last seen.

Cornelius Bolen, young Indian boy, and charged jointly with the defendant, testified that he was riding through the woods with Simon Mills looking for a cow; that they saw the two calves that belonged to Melburn Hunicutt; that Simon told him to- get them up and he would pay him; that later, with the help of Junie Blankenship-, who- was riding Simon Mills’ horse, they cut the two calves out from a herd and put them in an old barn. Simon Mills came with his dad and his brother, Joe Bolen, to- their house about 3 or 4 o’clock the next morning; and he, his brother, and Simon Mills loaded the calves; drove by Andy Christie’s, loaded another calf that his papa had sold to-Simon, and drove- on to- the stock yards at Muskogee. It was too early to- sell the cattle at the stockyards, so- they unloaded them and went to town and ate breakfast. Later, Simon Mills sold the calves; and when they got to Vian he gave the witness $3 as his- part of the money. The red heifer calf of Hunicutt’s had a bell on it, which Junie put on the shelf in the barn. On cross-examination, the witness admitted having entered a plea of guilty to this charge, and that he had received a suspended sentence. He was- eighteen years old.

Junie Blankenship, a nephew of the defendant, Simon Mills, was charged jointly with him and Cornelius Bolen with the offense herein, also testified for the state that on Thursday before the school election on Tuesday, he went to Simon Mill’s to- see about getting his horse to- hunt a blue cow that was gone; and that while he was there, Simon had a talk with him about some yearlings., and wanted him to get those yearlings up for him; that he did not know at the time just what yearlings Simon meant. That the next morning he went to- Simon’s house, got his- horse, and started towards Co-rnelius. Bo-len’s; that he met Cornelius with 15 or 20' cattle; that they headed two of the calves off and put them in the barn. One was a red heifer calf; the other was a roan male calf. Simon told him on Thursday that if he would help Cornelius get up the calves that he would give him one-fourth o-f the money. He saw Simon Mills the nest time on Sunday, and Simon paid him $3 for his help in getting up the calves. On the following Thursday, witness was talking to Simon Mills, and Simon told him that the calves that he had sold belonged to Mel-bum Hunicutt.

Witness identified the bell taken off the red heifer, which he said he laid upon a rafter. This witness is also an Indian boy, 18 years old, who had never before been in trouble.

Dave Tate testified' that he was in the business of buying cattle at Muskogee. He had known the defendant, Mills, three or four years. He bought three calves from the defendant about 8 :30 a. m., on March 25, 1939, for $34. There was nothing out of line about the price he paid the defendant for the calves, and it was handled in the regular way.

Beth Stewart, an employee of the Live Stock Commission Company at Muskogee, identified the check, in the sum of $34, given to the defendant, Mills, in payment for the three calves, and stated that Mills and two* Indian boys came into the office after the check, shortly after 8 o’clock on Saturday morning.

Andy Christie testified that he was a brother-in-law of Cornelius Bolen. That John Bolen had a calf at his place in March, 1939. That early in the morning, before daylight, Cornelius Bolen and the defendant came by his house, Cornelius borrowed a lantern, and they loaded the John Bolen calf in Simon Mills’ truck and drove off. That there were some other calves in the truck.

Joe Bolen testified that he was a brother to Cornelius Bolen; that he helped his brother and Simon Mills load the calves in Simon’s truck there at his father’s place on Friday night. One of them was a red heifer calf and the other, sort of a black looking male calf. That they got another calf at Andy Christie’s house in the nighttime, and took the calves to the Tate Commission Company in Muskogee, and sold them. That he did not know whose calves they were at the time they were loaded, but that the defendant later said they were Hunicutt’s. That the night the cattle were taken, he and his father were both drunk, and Simon Mills brought them home; and while Simon Mills was at their house, they decided to go on to> Tahle-quah and get some more whisky, and take the calves on to Muskogee.

Theodore Scaggs testified that he had lived near Simon Mills for six years; that about the 1st of March, 1939, Simon came to his place and asked if he had seen! some cows that he had bought which were known as the Wilson cows ; that the witness told him that he had seen the Wilson cows and the three Hunicutt calves three or four days before in the Earthly field. That the defendant, Mills, asked him at that time who owned the little red heifer and the little roan male calf, and he told him they belonged to Hunicutt.

The state thereupon rested.

Demurrer1 of the defendant was overruled and exception saved.

The defendant testified in his own behalf that he bought the three calves, which were hauled to Muskogee by him, on March 25th; that he bought one of the calves from John Bolen, and the two calves in controversy from Cornelius Bolen; that he paid John Bolen $9 for his calf and Cornelius Bolen $8 apiece for the other two calves; that he did not have any intimation from anybody that the cattle had been stolen; that he had several cattle of his own, and a pick-up truck which he used in buying and selling cattle. He denied any conversation with Cornelina Bolen or Jnnie Blankenship concerning the preparations for stealing the cattle as related by these two self-confessed accomplices. The defendant, on cross-examination, denied the conversation with Theodore Scaggs, and admitted serving a term in the penitentiary for conviction of a felony.

Mildred Mills, wife of the defendant, testified about Cornelius Bolen and Junie Blankenship coming to their house on Thursday before the cattle were stolen on Friday; that she heard all of the conversation which occurred between them at that time, and that there was nothing said at all about getting up any cattle other that the blue cow belonging to Blankenship; that Junie, her brother, wanted to borrow Simon’s horse to get up the blue cow.

Three witnesses were placed on the stand by the defendant to testify that the reputation of Junie Blankenship and Cornelius Bolen for truth and veracity was bad. The court allowed this testimony to be introduced, but only one of said witnesses testified to that effect.

These witnesses further testified that on the Sunday before the school election, Cornelius Bolen pulled $6 out of his pocket and wanted to have a poker game.

In rebuttal, Jess Bandall testified that Simon Mills came to his place to have some stock bred to1 his stallion, about the 1st of March, 1939; that while he was there he asked the defendant, Mills, about some calves belonging to Melbum Hunicutt, which had gone; that he described the calves to the defendant, and the defendant said he had seen them that morning in the Young field; that he described the calves as one roan bull calf and a red heifer calf with a little bell on it.

Section 3071, O. S. 1931, 22 Okla. St. Ann. § 742, provides:

“A conviction can not be bad upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

It is doubtful if any other statute on criminal procedure has been discussed by this court more than this statute.

Counsel for defendant have presented an ingenious and determined argument on behalf of the defendant in connection with his interpretation of this statute. We have carefully considered all of the statements made by counsel in his brief concerning the inconsistencies in the testimony and the deductions he has made with reference to the same but are unable to harmonize his reasoning with the decisions of this court.

Here, we have definite evidence of the possession by the defendant of the stolen calves, a transportation of them in the nighttime, and a sale of such calves to the Live Stock Commission Company at Muskogee. There is other evidence which, if believed by the jury, was sufficient ■ to show that defendant knew the calves belonged to- Huni-cutt, and that Cornelius Bolen did not have any cattle which he could have sold to defendant. This evidence was sufficient to connect the defendant with the commission of the offense. There are other circumstances in connection with the asportation of these stolen cattle which strongly point to- the guilt of defendant. It is true, after the state- had made a prima facie case, the defendant in his own behalf admitted the sale of the calves as related by the state’s witnesses, but claimed that he had purchased the same in good faith, without any knowledge that they had been stolen. These conflicting statements merely raised questions of fact for the determination of the jury. The inconsistencies of the testimony discussed by counsel have all been determined adversely to the defendant by the jury’s verdict.

The court has uniformly held that a jury’s verdict upon disputed questions of fact will not be disturbed on appeal where there is any competent evidence in the record reasonably tending to support the same.

It is a question of law for the trial court as to whether there is sufficient corroborating testimony to justify submission of the case to the jury, but the weight to be given to the corroborating testimony is a question solely for the determination of the jury. We find sufficient undisputed facts in this case which strongly point to the guilt of the defendant; and in our opinion, the evidence was sufficient to require the court to submit the case to a jury for its determination.

Counsel for defendant present one other proposition. It is argued that the county attorney erred in cross-examination of the defendant, Simon Mills, in asking Mills if he had not told Theodore Scaggs to take a little bull calf, belonging to Paul Morris, and they would raise it on the halves. When this question was asked, the attorney for defendant objected to it in the following language:

“Mr. Wall: That is as dirty an implication as ever ivas put before a jury, Your Honor, and I object to it, Your Honor. It is. detestable. It is Avbolly incompetent. It is put in there to prejudice the minds of the jury. Not that I think he can do> it.”

The court sustained the objection, and the county attorney proceeded with another line of questioning.

This question is clearly an improper question. No motion for a mistrial on account of this1 improper question was made and no exception was saved to the misconduct of the county attorney. For that reason the matter was not properly preserved for consideration on appeal; but, regardless of that fact, this court in its determination of the entire case has weighed this improper question and has considered it, together with the very strongly worded objection interposed by counsel for defendant, which in itself very probably put the county attorney in a bad light before the jury, as the objection interposed was sustained.

With the exception of this one question, the county attorney was very fair in the presentation of this case.

On the other hand, we find that the court was very liberal in his attitude towards counsel for defendant in allowing him to vigorously cross-examine the witnesses' for the state. We find a great number of questions, thus asked, to be on incompetent matters.

The jury in this case found the defendant guilty, but were unable to> agree upon the punishment to be assessed, and left the same to the court, who thereupon sentenced the defendant to> five years in the State Penitentiary. There is no contention made that the punishment assessed was excessive; and this court, after a review of the evidence, and in view of the former conviction of a felony sustained by the defendant, is of the opinion that such sentence is not excessive.

We find no error of sufficient importance to require a reversal of this case.

The judgment of the district court of Sequoyah county is therefore affirmed.

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


text:
    GEORGE KNIGHT v. STATE.
    No. A-9845.
    Oct. 15, 1941.
    (118 P. 2d 256.)
    Mac Q. Williamson, Atty. Gen., Jess. L. Pullen, Asst. Atty. Gen., and Clyde Followell, Co-. Atty., of Poteau, for the State.
    C. C. Williams, of Poteau, for the defendant.
   BAREFOOT, P. J.

Defendant, George Knight, was charged jointly in the district court of Le Flore county with James Knight and Robert Knight with the crime of larceny of livestock; was tried, convicted and sentenced to serve a term of three years in the penitentiary, and has appealed. The charges are the outgrowth of the larceny of three calves, the property of Jewel Jackson, in Le Flore county. It is alleged that they were taken from near his premises on or about the night of the 13th day of August, 1939. The defendants, George Knight, James Knight and Robert Knight, are brothers.

For reversal of this case it is contended:

First. That the court erred in overruling the motion for continuance by reason of the absence of a witness.

Second. That the court erred in certain instructions given to the jury and excepted to- by the defendant.

Third. That the evidence was insufficient to sustain the conviction of defendant, and that the court erred in failing to sustain the demurrer to the evidence and in failing to instruct the jury to return a verdict of not guilty.

As it is necessary to reverse this case, we refer to- the second contention first; that the court erred in the instructions given to the jury. The instruction complained of and excepted to was instruction No. 4, which is as follows- :

“You are instructed that some testimony has been introduced before you tending to- show that the calves in question alleged to- have belonged to the prosecuting witness, Jewel Jackson, came into- the possession of the defendant.
“In this connection, you are instructed that if you find from the evidence, beyond a reasonable doubt, that said calves were stolen from the said Jewel Jackson and that said defendant, George Knight, had possession of said calves, then such possession, unexplained, is a circumstance to- be considered and given such weight as you may see fit. Yo-u are the sole judges as to what weight should be given this circumstance; and, even though the defendant makes no- attempt at explanation of the possession, you would not be authorized to- convict unless from all the facts and circumstances in the case, after giving such weight as you see fit, you believe the defendant guilty, beyond a reasonable doubt.”

It is contended that this instruction misled the jury by instructing them that the possession of the defendant had been unexplained, when in truth and in fact the evidence revealed that it had been explained to the officer, and that this instruction singles out and makes prominent the fact that defendant had not explained his possession and connection with the three calves in controversy. The only evidence connecting defendant with the possession of the calves was by an officer, who testified to a statement made by defendant.

We are of the opinion that defendant is right in thiá contention. Counsel for defendant cites the case of Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066, 1073, an opinion by former Judge Matson of this court. In that case the court had under consideration an instruction in almost identical terms with the instruction here involved. It is there stated:

“We think the trial court erred in giving the latter instruction in this case.
“The possession of the alleged stolen automobile was not wholly unexplained by the defendant even under the state’s theory. The state offered the evidence of several witnesses to- the effect that on different occasions the defendant, while in the possession of the car, had given different and conflicting versions as to how he had obtained possession thereof. The defendant offered other evidence (which was excluded) which, if admitted, would have tended to' explain his possession of the car consistently with the explanation made by him at the time of his arr est.
“By the foregoing instruction the trial judge indicated that there was no ‘explanation of possession’ by the defendant. The fact that defendant did not testify in his own behalf would lead the jury to believe from the wording of the instruction that defendant had offered no explanation of his possession of the car, and that therefore, his possession remained entirely unexplained, and that such circumstance should be weighed against him. Under the evidence the trial judge should have given an instruction on the law as applicable to ‘explained’ rather than ‘unexplained’ possession”

The facts in the instant case were very much like the facts in that case. Defendant and his brothers, James] Knight and Robert Knight, were charged jointly with the larceny of three calves. No witness for the state had seen these calves taken by defendant or in his possession. One of the calves was recovered at the home of defendant’s brother, Robert Knight, another one at a neighbor’s home but a few miles away, and the other at Bixby, in Tulsa county. The only evidence of possession by defendant was a statement by him to a deputy sheriff in which he stated that his brother, Robert Knight, had bought the calves from a man by the name of J. J. Parker, and that he had helped to load them into a truck. All the evidence in this case against this defendant was wholly circumstantial. There was no direct evidence. In this connection, we call attention to the fact that the court did not give an instruction upon circumstantial evidence, nor did the attorney representing defendant request the court to do so. It has been the uniform holding of this court that, where the evidence is wholly circumstantial and the defendant requests the court to so instruct the jury, it is error not to do so. Birkley v. State, 66 Okla. Cr. 144, 90 P. 2d 464; Rutherford v. United States, 1 Okla. Cr. 194, 95 P. 753; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Pierson v. State, 13 Okla. Cr. 382, 164 P. 1005; Hess v. State, 35 Okla. Cr. 410, 250 P. 938; Bock v. State, 34 Okla. Cr. 313, 246 P. 642; Borcher v. State, 47 Okla. Cr. 203, 287 P. 727; Breedlove v. State, 49 Okla. Cr. 428, 295 P. 239.

Where the defendant does not request the instruction upon circumstantial evidence it might not always be grounds for reversal (Stump v. State, 66 Okla. Cr. 391, 92 P. 2d 616), but in a case where the evidence is as weak as it is in the instant case, this instruction should have been given by the court to properly protect the rights of defendant.

In the case of Mayberry v. State, 64 Okla. Cr. 298, 79 P. 2d 1027, 1029, Judge Doyle, writing the opinion of the court, said:

“The state relied on circumstantial evidence for a conviction.
“It appears from the record that the court failed to instruct on the law applicable to circumstantial evidence, and this fact probably accounts for the verdict rendered.
“The authorities all hold, and without dissent, that where circumstantial evidence is relied upon for conviction this necessitates the trial court, when requested, to give the law applicable thereto in its instructions to the jury.
“While it does not appear that such an instruction was requested, nevertheless, the defendants were entitled to have the case submitted to the jury on instructions fairly applicable to the evidence in the case. And where the evidence is so weak and unsatisfactory, as in this case, the record should be free from prejudicial error to avoid a reversal of the conviction.
“The rule as stated in 12 Cyc. 633, is:
“ 'Where the prosecution relies solely upon circumstantial evidence, the court must always instruct upon the nature of circumstantial evidence. Such evidence should he expressly defined, and the rule governing its effect concisely stated.’
“In cases of circumstantial evidence it is necessary that all the facts and circumstances essential to a conviction be proved beyond a reasonable doubt.
“Where the evidence is wholly circumstantial and the facts and circumstances in evidence are of such a character as to fairly permit an inference consistent with innocence, it cannot be regarded as evidence sufficient to support a conviction. Adams v. State, 38 Okla. Cr. 173, 259 P. 665.
“Under this rule the evidence tending to connect these defendants with the offense charged is wholly insufficient to support the verdict, and for this reason the judgments herein appealed from are reversed.”

With reference to the contention that the court erred in refusing to sustain the motion for a continuance, we are of the opinion that the county attorney should have permitted this affidavit to be read to- the jury, or the case should have been continued by the court. The record does not reveal a state of facts with reference to the motion for continuance that might cause a reversal of this case if this were the only error involved. The defendant Robert Knight was sick and unable to attend court, as shown by the affidavit of a physician who the sheriff of McIntosh county stated was a reputable physician. His case was continued by the court by reason of this affidavit. Defendant and' his brother, James Knight, were arraigned for trial, a severance was demanded, and defendant George Knight was tried. It was his contention that his brother, Robert Knight, had purchased the calves from a man by the name of J. J. Parker. This Avitness was the only person by whom he could have proved this contention except by his brother, James Knight, who was charged jointly with him. This would have required either him or his brother, who was jointly charged, to take the witness stand, which they did not have to do under their constitutional rights. It occurs to us that he was entitled to have this evidence at his trial and that the court erred in refusing a continuance upon the showing made.

From what has been said, it is unnecessary to discuss, the third assignment of error. We will say, however, that the evidence of the state against the defendant was very weak. It was wholly circumstantial, and, for the reasons above stated, the judgment and sentence of the district court of Le Flore county is reversed and the case remanded.

JONES and DOYLE', JJ., concur.


text:
    J. N. NELSON v. STATE.
    No. A-9856.
    Oct. 22, 1941.
    (118 P. 2d 405.)
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Cot Atty., of Oklahoma City, for the State.
    J. Forrest McCutcheon, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, J. N. Nelson, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, was tried by the court without the intervention of a jury, convicted and sentenced to' pay a fine of $50 and serve 30 days in the county jail, and has appealed.

This case is the outgrowth of a search of defendant’s residence and place of business on the 18'th day of September, 1939, when two deputy sheriffs, of Oklahoma county, Phil Isenhour and Fred Smith, found seven pints of tax-paid liquor and two pints, partially full, of tax-paid liquor in defendant’s possession. The officers arrested the defendant and conducted the search under the authority granted by the search warrant.

On November 13, 1939, defendant filed a motion to suppress the evidence and quash the search warrant for the reason that it did not state sufficient facts as required by law, that the description therein was insufficient, that the return of the officers was not made according to law, and that the affidavit upon which the warrant was based was insufficient. A hearing was had on this motion on December 8, 1939, at which time the court overruled the motion. The trial of the case was had on the 12th day of December, 1939.

The errors upon which defendant relies for a reversal of this case may be summarized and stated as follows:

First. The affidavit for search warrant states only conclusions of affiant and does not set forth averments of facts as required by the statutes.

Second. The search warrant was illegal and void for the reason that it failed to> describe the premises searched with sufficient particularity.

Third. The evidence is insufficient to sustain the conviction of defendant.

In order to> properly consider’ the first question raised by defendant, that the affidavit for search warrant states only conclusions of affiant and does not set forth averments of facts as required by the statutes, we deem it advisable to here quote the affidavit for search warrant in this case, which is as follows:

“In the Justice Court in and for said County and State. Affidavit and Application for Search Warrant.
“I, Phil Isenhour, being duly sworn depose and say, that in Oklahoma County, in the State of Oklahoma, on the 18 day of September, 1939, J. N. Nelson & John Doe whose more full and correct name is to your affiant unknown, in certain buildings and premises described as follows, to-wit: The paid occupied & under the direct control of J. N. Nelson & John Doe, being the Alamo Camp located at 4000 N. W. 39th Street, adjacent to Oklahoma in Oklahoma County Oklahoma, in said County and State, did then and there unlawfully and willfully have in his possession and under his control, and did then and there unlawfully keep and does now unlawfully have in his possession and under his control, and does keep intoxicating liquors, described as wine, whisky, beer and other spirituous, fermented and malt liquors, a more particular description of which this affiant cannot give, and certain personal property, fixtures and furniture consisting of bars, glasses, jugs, bottles and other furniture, containers and fixtures, a more particular description of which this af-fiant cannot give, used for same.
“That the said persons are still willfully and unlawfully keeping the said property and intoxicating liquors! above described for the purpose and with intent to violate the laws of the State of Oklahoma and that are used in and about the business of keeping a place where intoxicating liquors are willfully and unlawfully sold, and that all of the said above described devices, furniture, fixtures, and appliances are being used by said persons in aid of said unlawful business.
“And the affiant further says that the above named persons at the said place and the said building, are now1 engaged in the business, of keeping a place where intoxicating liquors are sold, given away and otherwise furnished to divers persons whose names are to this affiant unknown, in violation of the prohibitory liquor laws of said State of Oklahoma, and is using all of the above described property in connection with and in aid thereof.
“Affiant further states that the above described premises is a place of public resort where divers persons congregate for the purpose of buying, selling, drinking and offering for sale intoxicating liquors and where intoxicating liquors are manufactured, bartered, stored and given away in violation of the prohibitory laws of the State of Oklahoma and constitutes a public nuisance.”

It will be noted that this warrant states: (a) that defendant possesses intoxicating, liquor, (b) that the intoxicating liquor is kept there with the intention of sale, (c) that the place has certain personal property, fixtures and furniture consisting of bars, glasses^, jugs, bottles, and other furniture, containers and fixtures, (d) and that these devices, fixtures and appliances were being used in aid of such unlawful business, (e) that defendant is engaged in the business of keeping and selling intoxicating liquors to divers persons, (f) that divers persons there congregate for the purpose of buying, selling, drinking and offering for sale intoxicating liquors, (g) that the premises is a. place of public resort, and (h) that the same constitutes a public nuisance. The evidence produced on the motion to suppress revealed that defendant’s son-in-law had been arrested there on previous occasions for violations of the prohibitory laws. The defendant operated the Alamo Tourist Camp, at 4000 Northwest 39th street, about two miles west of the city limits of Oklahoma City, in Oklahoma county. The premises consisted of a filling station, cold drink stand and residence of defendant, all a part of the same building. Several tourist cabins, about 15 feet from the building searched, were being- torn down at this! time and were unoccupied. Seven pints of tax-paid liquor were found in a part of the building used as a bedroom by defendant, which was partitioned from the cold drink stand and filling station by a curtain. Two' pints of tax-paid liquor, partially full, were found in the front or business part of the building. Defendant did not testify, but his attorney took the stand and testified that at this time defendant’s daughter and son-in-law lived on the same premises. However, on the trial of the case, the officers who conducted the search testified that nobody else lived with defendant on these premises.

The affidavit in this case is similar to many which have been held valid by this court as stating sufficient facts upon which to base the issuance of a search warrant. See Gransbury v. State, 64 Okla. Cr. 423, 82 P. 2d 240; McCullough v. State, 39 Okla. Cr. 293, 264 P. 916; Dobbs v. State, 39 Okla. Cr. 376, 265 P. 658; State v. Skelton, 36 Okla. Cr. 377, 254 P. 754; Smith v. State, 30 Okla. Cr. 144, 235 P. 273; Roberts v. State, 72 Okla. Cr. 40, 112 P. 2d 804; Wagner v. State, 72 Okla. Cr. 393, 117 P. 2d 162. In view of the decisions above cited, we are of the opinion that the affidavit for search warrant stated sufficient facts upon which to issue the warrant in this case.

The defendant also seeks a reversal of this case on the grounds that the search warrant and affidavit do not sufficiently describe the premises searched. The description complained of is found in the affidavit for search warrant heretofore quoted, and we do not deem it again necessary to quote it here. We are of the opinion that it clearly is sufficient, under the rule as stated in the fol-loAving cases: Shanks v. State, 59 Okla. Cr. 211, 56 P. 2d 1199; Linderman v. State, 43 Okla. Cr. 166, 277 P. 602; Preston v. State, 42 Okla. Cr. 372, 276 P. 784; Smith v. State, 40 Okla. Cr. 366, 269 P. 376; Cook v. State, 40 Okla. Cr. 219, 267 P. 1045; Wofford v. State, 40 Okla. Cr. 18, 266 P. 494; Shanafelt v. State, 38 Okla. Cr. 345, 261 P. 380; Martin v. State, 61 Okla. Cr. 82, 252 P. 451; Scogin v. State, 61 Okla. Cr. 318, 68 P. 2d. 111. The cases above cited all hold that the place to be searched must be described in the search warrant with such reasonable certainty that an officer to whom it is directed has no discretion as to the place, but can ascertain it from the search warrant itself. The search warrant issued in this' case complies with this rule. We are therefore of the opinion that the search warrant and affidavit contain a sufficient description of the premises to be searched.

The defendant further contends that the evidence produced is not sufficient to sustain the judgment and sentence of the trial court. As heretofore stated, defendant was tried by the court without the intervention of a jury. A careful examination of the record in this case reveals that seven pints of tax-paid liquor and two' pints of tax-paid liquor, partially full, were found on the premises of the defendant. There were no1 other persons living on the premises with the defendant. Defendant was conducting the business alone, although the evidence showed that on several previous occasions the officers of Oklahoma county had arrested other persons at this place for unlawful possession of whisky. At the time the officers arrived to conduct the search, defendant was standing at the front doorway of his place holding a partially empty bottle of whisky in one hand and a “coke” in the other. The offense complained of was committed in Oklahoma county. The premises on which the liquor was found was a place of public resort, according to the evidence presented. The defendant introduced no evidence to contradict the statements made by the state’s witnesses. Under this state of the law and the evidence, we hold that the trial court committed no error in finding defendant guilty of the crime of unlawful possession of intoxicating liquor.

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

JONES, J., concurs. DOYLE, J., absent.