text:
    JOHNNIE WILLIAMS v. STATE.
    No. A-9261.
    May 21, 1937.
    (68 Pac. [2d] 530.)
    Eaton & Wheeler, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and James K. Eaton, Co. Atty., for the State.
   BAREFOOT, J.

The defendant was charged with the crime of rape in the first degree in Okmulgee county. He was tried, found guilty, and convicted by the jury, who were unable to agree upon his punishment, and by the court sentenced to> serve a term of 50 yearsi in the penitentiary. Both tbe defendant and prosecutrix are negroes. He was 84 years of age and sbe was 38 years of age, and bad been married twice.

Tbe only assignment of error argued in tbe brief of defendant is that tbe court erred in refusing to sustain a demurrer to tbe evidence and tbe failure of tbe court to instruct tbe jury to return a verdict of not guilty, and that tbe evidence is insufficient to sustain a conviction.

It has often been announced as tbe policy of this court that it will not set aside tbe verdict of tbe jury in a criminal case where there is evidence to support it, and it has been just as much tbe policy of this court to review with care the evidence which supports tbe verdict in cases of this character. Long years of experience have convinced courts that tbe statement so often quoted by Sir Lord Hale, cited in tbe case of Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731, 736, is fundamentally true:

“It must be remembered that this is an accusation easily to be made and bard to be proved andi harder to' be defended by the party accused, though ever (never) so innocent.”

We have read tbe record in this case and have studied it from every conceivable standpoint. It reveals contradictory and conflicting statements. The question of time bears an important part in this case, and when this is carefully reviewed it reveals that if tbe best evidence is to be believed, it would have been impossible for the defendant to have committed this crime as alleged in tbe information.

Prosecutrix, Leota Smith, testified sbe is 38 years of age; that sbe bad been married twice and bad lived with another man for over a year; that sbe was employed as a servant in the home of A. J. Hale, who lived two blocks north of the city limits of Okmulgee; that she generally completed her work so that she could leave for home about 1:30 p. m., and sometimes was detained until 2 or 2:30 p. m.; that on the date alleged in the information she left for home at 1:30 p. m.

In this statement she is corroborated by her employer, Sir. A. J. Hale, who saw her leave.

A map is attached to the case-made showing, the route she traveled, and the location of several places which were especially identified by the testimony in this case. She passed the Checotah school, the colored WPA sewing-room, where she was seen by at least one witness, by a toolhouse located in the park, and onto' a railroad trestle, where according to her testimony she first met the defendant. This railroad trestle, according to the testimony, is located at least a mile and a quarter to a mile and a half from where the prosecutrix worked and from where she had walked. Taking into consideration the distance, the evidence of others who saw her, and the ten or fifteen minutes delay at the railroad trestle, it must have been very near 2:30 p. m., according to her testimony, when she first saw the defendant. She did not know him and had never seen him before. She said he spoke to her and said, “Howdy,” and she said, “Howdy,” and he said, “I have a job for you;” she answered that, “I have a job.” He then said, “I have got a good job for you,” and she then testified:

“Q. And then what did you do? A. I started walking off and he says, No, come go> with me. I got a job for you,’ and I says, No, I already got a job,’ and he says, No, you are going with me,’ and I started walking off and walked off a piece and he started striking me and says, ‘You going with me.’ He strike me across the head. Q. Struck you across tbe bead witb bis bauds? A. Struck me across tbe bead witb bis gun. Q. Wbat did you do then? A. I started walking off and started turning back and he says, ‘You going with me, I got a job for you/ and be hit me again and I started walking off again, and I don’t know which way I went, and when I know anything again I was in that field. Q. In a cornfield? A. Yes. Q. Wbat was be doing then ? A. When he got there be throwed me down and pulled my clothes off, and when he got through doing wbat be wanted to< do-— Q. Wbat condition were you in then, — were you conscious at that time? A. Yes. Q. Do you say that he was tbe man that was witb you in tbe cornfield? A. He was tbe man. Q. Tore your clothes off? A. Yes, sir; be is tbe man. Q. What did be do then? A. He wanted me to suck his private, — told me to suck it and I told him I couldn’t do that, and be says, ‘Suck it, suck it!’ and commenced abusing me and beating me. Q. Wbat did be beat you witb? A. All I can remember was bis gun —that is all I can say — and then be pulled tbe trigger on bis gun to shoot me, and all I can remember is one shot. Q. Where did be bit you at that time, do you know? A. He bit me on my arm and bead. Q. And then do you remember anything else that occurred? A. No, sir, that is all I can remember. Q. Now, do you know whether be is in; tbe courtroom or not, the man that bit you? A. Yes, be is here. Q. Well, where is he? A. There he sits witb tbe white shirt and black tie on. Q. White shirt and black tie? A. Yes. Q. Sitting in tbe chair or on the bench? A. On the bench.”

The evidence showed that tbe cornfield to which she referred was a distance of one and a quarter miles from the railroad trestle. By her direct and cross-examination she stated she Avas unconscious from the time the defendant hit her with the gun at the railroad trestle until she woke up in the cornfield and he was “doing that to her,” and afterwards shot her. She heard only one shot fired, when she again became unconscious. The evidence of the physician after examining her, showed that she had been shot five times.

It is almost inconceivable that after being knocked unconscious she could have followed the defendant for a mile to a mile and a quarter to a cornfield where she was afterwards found.

Floyd Mitchell, a witness called by the state, testified that he was working on the farm of Mr. H. E. Neal, just outside the city limits of Okmulgee; that he found the prosecutrix, Leo-ta Smith, about 2:30 p. m., on Tuesday, June 16, 1936, in a cornfield on the Neal farm; that she was unconscious at the time he found her; that she had been wounded; and that he called the sheriff’s office and they came and got her. He also testified as to the condition of the premises where she was found, as follows :

“Q. What was the condition of the ground, if you observed? A. Right there where she was at, looked like it had been trumped down or wallowed down. Q. Show signs of a scuffle? A. Not any signs of a scuffle. Q. What do you mean? A. It looked like she had either crawled up there or sitting, down maybe she had fell or something. The weeds were mashed down. Q. What condition did you find with reference to tracks? A. Right where she was at there wasn’t any tracks but hers. Q. Did you find any close around? A. Well, about I judge 75 yards, something like that, it showed signs of where it looked like two people had fought and the ground was tromped up, and a place I judge, if it had been square, I judge two or two- and a half feet square was almost covered with blood and her clothes was all bloody, and it showed a man’s track as well as hers where the ground was stomped down where it looked like they had been fighting. Q. Did you observe any tracks, Mr. Mitchell, from the place about 75 feet,— I believe you said? A. About 75 yards. Q. Did you observe any tracks from the place about 75 yards from where she was found up to the point where she was found? A. Her tracks. Q. And you say she was bloody when you found; her? A. Yes, sir. Q. Clothes torn and disheveled? A. Her face and arms and hands had dried blood on them. Q. Did you observe any abrasions or licks? A. When I found her, her hair was matted with cockleburs and trash and dirt.”

On cross-examination this witness testified to seeing the prosecuting witness on the day before she was found on the Neal farm.

“Q. How far do you live from this scene where the crime ivas committed? A. I judge about a quarter to a half mile; I couldn’t say. Q. You had seen her that afternoon, hadn’t you? A. When was that? Q. Before you went out and found her? A. Not that afternoon. Q. Well, the day before? A. The day before. Q. You saw her — where was she when you saw her? A. Passing along south of Mr. Neal’s residence. Q. Did you see anything peculiar about her at this time? A. No-, sir. Q. Which way was she going, —toward the scene of the crime? A. Yes, sir. Q. What time of day ivas it when you saw her going in that direction? A. Well, I judge it was about one o’clock. Q. You didn’t look' at any timepiece — that is your best judgment? A. No. Q. It wouldn’t be as late as 2:30 or 8 o’clock? A. No; I always go to work about one. Q. And she passed there before you went to work? A. Yes. Q. Going in the direction of the scene of the crime? A. Yes. Q. Was she with anybody? A. ,She was with a man. Q. Were they walking side by side? A. No, he was I jndge about ten feet aliead of her. Q. And she was following him? A. Yes. Q. Could you hear them talking? A. I could hear their voices, but I couldn’t understand any words. Q. They weren’t quarreling or anything, were they? A. I couldn’t tell it if they was.”

He further testified as follows:

“Q. You wouldn’t attempt to say that this defendant is the man, — this man here (indicating). A. Well, I couldn’t swear to it. Q. How close were you to him? A. About 75 yards, something like that.”

The state offered three witnesses, a colored man named Luke Monteilh, his son, Eddie Monteilh, and his daughter Octavia Monteilh, who were farming in the vicinity, about a half mile from where the prosecutrix was found, and rather close to the route that led from the railroad trestle to the cornfield. Luke Monteilh testified that he was at his home, sitting on the porch, on Monday evening, June 15, 1936, and that he saw a colored man come through his pasture near his house, going south about 2:45 to 2:50 p. m.; that he was about 25 yards from him. He positively identified the defendant and described him as having a beard on his face which was the most striking peculiarity he could mention. Just after the defendant passed the home, he testified that he went into' his pasture to shoot some crows and did not see the defendant again until he was arrested several days later and brought before him and he identified the defendant as being the party he had seen at 2:45 or 2:50 p. m. on Monday, June 15, 1936.

His son, Eddie Monteilh, corroborated the testimony given by his father. He testified he was plowing in a field about 150 yards from the house and that he saw the defendant going south about 2:45 or 3 p. m. and testified that he passed about 25 yards from where he was plowing ; that he especially identified him by reason of having a beard, which was his outstanding feature; and that he wore blue overalls, a leather cap, and gray shirt. He testified the day he was brought to his home to be identified that he had on the same leather cap he had on the day he saw him pass the house.

'The daughter, Octavia Monteilh, testified corroborating her father’s testimony, saying that she was sitting on the porch at the time that he first passed the house and positively identified the defendant as being the party who was by there on the same afternoon of June 15, 1936, about 2:45 or 3 p. m.; that he passed by the house going-south about 25 yards from the house; that he had on dirty blue overalls, a leather cap, and “tannish shirt”; that after he passed, her father went into the pasture to shoot some crows that were eating the chickens; that he fired a shot and the defendant began running, and came back near the gate of her home and then made inquiry as to who lived there, and when she did not tell him, he said:

“A. He first asked avIio lived there and I didn’t tell him and he said the reason he asked, he wanted someone to help him with a lady down in the cornfield; said a lady from town was almost cut to death and ivas hollering for help and he wanted someone to help with this lady. Q. What did you say to him? A. I told him there wasn’t anyone else at home at that time. Q. Was there anyone else on the porch with you? A. No. Q. After you said that to him, what did the defendant do? A. He just kept on going. Q. What direction was he traveling when he left then? A. South. Q. Did you see him any more? A. No: Q. Did you see him any more after that day? A. Not till the laws brought him out home to identify. Q. Do you know what day the officers brought him out there? A. The first day he came there I wasn’t there, but the following week I was at home. Q. You were there then? A. Yes. Q. Did you notice how he was dressed? A. That day? Q. Yes. A. He had on a kind of a brownish pair of trousers when the law brought him out. Q. Did he have on a cap? A. Yes, he had a cap on that day. Q. Do you remember how he was dressed when you saw him in the pasture that Monday? A. Yes. Q. How was he dressed then? A. Black leather cap and a tannish shirt and a dirty pair of blue overalls. Q. Is the man that the officers brought out there that you saw the same man that is now in the court room to whom you pointed? A. Yes, sir. Q. This is the same man the officers brought there? A. Yes, sir, the same man. Q. Did you observe his overalls with reference to being muddy or greasy or anything? A. I just noticed that they were dirty and it wasn’t fitting him neat at all. Q. Wasn’t fitting Mm neatly? A. No, sir. Q. Did you notice whether there was any dust on his clothing? A. No, sir.”

The state next offered four witnesses who were working at the colored WPA sewing room, being on the route from where the prosecutrix worked, and the toolhouse and the railroad trestle were located, and also being on the route from the fair grounds to these places; the evidence of the defendant being that he came by the sewing room from the fair grounds at about the same time that these witnesses testified they saw him pass. The first of these witnesses was Myrtle Adams, wlm testified that she worked at the WPA sewing room on the 15th day of June, 1936; that she knew the defendant and that his wife worked at the sewing room; that she saw the defendant pass there on that date, going south toward town some time between 1 and 3 p. m. on the afternoon of June 15, 1936; that she had seen the prosecutrix pass there on the same day about five or ten minutes ahead of the defendant.

Dora English testified to seeing the defendant pass the sewing room on Monday afternoon, June 15, 1936, going south toward town; that she did not know the time.

Etta Cole testified to seeing the defendant pass the sewing room some time between 1 and 3 p. m., on the 15th day of June, 1936, and that she had known him for many years.

Lovie Harrington testified to seeing the defendant pass the sewing room going south and walking fast; she did not know the time, but knew it was in the afternoon.

Tom Berry testified that he was a deputy sheriff; that he arrested the defendant after making an investigation after finding the prosecutrix, Leota Smith; he did not take him to the hospital for the prosecutrix to see until he had been arrested for about a week; he testified to finding the prosecutrix in the cornfield about 2:30 or 3 p. m. on the 16th day of June, 1936. She was in a bruised and dazed condition. He further testified as follows:

“Q. Did you investigate the place where she was hurt or try to find the place where she was hurt or wounded? A. She had several cuts and bruises. Q. I know, but did you examine the ground around where you found her? A. I will say that we found as many as three places in the cornfield and in the edge of the creek timber where the grass and weeds had been all knocked down, and articles of clothing — maybe a shoe at one place and maybe a dress at another place. Q. Find any blood? A. Yes, several splotches of blood on the ground at each of these places. Q. What was the condition of this woman’s clothes when you found her? A. She had only a small strip of cloth around her waist and down to her knees when we found her — possibly might have been an underskirt. The rest of the body was nude. Q. The place where you found her, was there evidence of a struggle there? A. At the place she was lying when I got out there was in a cornfield, and the ground was freshly plowed and it was packed down, and there was splotches of blood there. Q. Did you find any tracks there or anywhere else in that cornfield? A. I would say 25 feet from there possibly, across a little corner of the field where a fence was, there was a man’s track and a woman’s track. Q. Was there more than one man’s track? A. No; one man’s track and a woman’s track. Q. But several tracks? A. Yes, sir. Q. When did you arrest the defendant? A. I couldn’t say exactly; possibly three or four days later.”

On cross-examination he stated at the time she was found in the cornfield she said: “That she had killed a chicken and got that blood on her”; that she wasi irrational when she made this statement. On recross-examination he testified:

“Q. Did you ask her how she got hurt? A. Yes, sir. Q. What did she say? A. She didn’t realize she was hurt; she said she had rheumatism a few years ago-, and she thought that was what was the matter. Q. Did you ash her who hurt her? A. Yes, sir. Q. What did she say? A. She still didn’t know she was hurt.”

The defendant, testifying in his own behalf, said: He was 34 years of age; that on June 15, 1936, and prior to that time he was working for Mr. Bryan Bricken, a white man, who lived in Okmulgee; that he went out to his place to go to' work about 8:15 a. m. on that date, but as it was hot and dry and he had caught up with his work, Mr. Bricken did not need him that day and he went back toward town, stopping at the Dawson Produce Company, where he had formerly worked, helping to unload cars of produce; that he worked a little while there helping them there and they gave him some tomatoes; that he saw several people whom he knew there, among them being, the proprietors and others Avith whom he had worked; leaving there about 10 a. m., he Avent to Fifth street and Muskogee avenue to a salvage place, where he tried to sell a Ford motor which he had; just before he got there he met up with William Tunley, who went with him, and who testified to this effect at the trial. After staying there a few minutes, he went to the home of William Tunley, staying there until about noon, going to his home and stopping at the home of L. L. Jackson and wife about 15 minutes; they lived about four blocks north of where he lived. After leaving the Jackson home he went to the home of his father, who was very old, to see his small boy. After being there about 20 minutes he went to his own home, where his mother-in-law, brother-in-law, and his brother-in-law’s wife were. He arrived there about 1 p. m., fed his chickens and had lunch, stayed there until about 1:25, at which time he went to the post office in Okmulgee; his purpose in going there was to see his brother, who, with the other “ex-service” men of Okmulgee, Avere going to1 draw their “bonus money” on that date. He was going to borrow some money from his brother. His brother and others corroborated this testimony and also as to his being at the post office and of seeing him there. They also corroborated him as to the time he was there and the time that he left. He said that he left there just about 3 p. m. and went to' the fair grounds. Some of the others testified that it was around 2:30 p. m. His purpose in going to the fair grounds was to attend a public sale which was held there each Monday. He was going for the purpose of trying to buy two pigs. The man for whom he worked, Mr. Bricken, and from whom he had tried to' buy pigs that morning, told him of the sale at the fair grounds and told him that he could probably buy them cheaper there. He was corroborated in this testimony by his former employer, Mr. Bricken. He testified that when he got to the fair grounds the sale was nearly over; that he remained there about 30 minutes; that he did not see Mr. Bricken, his former employer, but Mr. Bricken testified that he attended the sale and saw the defendant just about the time the sale was breaking up, and to' his best judgment it was about 3 p. m. His testimony was as follows:

“Q. What day of the week do they hold those sales? A. Every Monday. Q. About what time of day was it when you saw him out at the sale? A. Well, I think it must have been around 2:3'0 or 3 o’clock, — might have been after 3 —I might have been out there quite a while before I saw him. I generally go out there about 1:30 or 2 o’clock. Q. And did you leave him there, or do you know? A. I don’t know. Q. What time did you leave the sale? A. I left the sale about 4:30.”

On cross-examination, he testified as follows:

“Q. Do you know what time you went to the sale on that day? A. It was between one and two o’clock. I always bring my wife to town about one o’clock. Q. Did you that day? A. Yes, sir. Q. Where to? A. The office — Doctor ■Marr’s office,’ — dentist office, where she works there. Q. And yon bring her there about one o’clock? A. Yes, sir; and I always go to the sale on Monday. Q. And you went to the sale from the dentist’s office? A. Yes, sir. Q. And you got to the sale about one o’clock? A. Days — some days she don’t go back till 1:30. Q. But you don’t know what time she Avent back that day? A. No, I don’t know just exactly AAdiat time. Q. And you don’t know Avhat time you saw the defendant out there that day, do you? A. No, I don’t know, — I wouldn’t state.”

On redirect examination he testified:

“Q. What time do you fix? A. I don’t think I had been out there very long when I saAv him. I imagine around three o’clock or a little after.”

On recross-examination he testified:

“Q. How long do you think you had been there? A. I bought several hogs there that day. I think I had already bought quite a bunch of hogs when I saAv this fellow there. I just happened to notice him in the doorway of the sale. I Avas back in there buying hogs and he Avas standing in the doorway — I just happened to notice him. I don’t know just what time it was.”

The defendant testified that he stayed at the fair grounds about 30 minutes, and as he started to leave he met a man, while getting a drink at the hydrant, who-lived out in the country. He talked to him about buying some hogs and about going out to the country and working for him, chopping, cotton. His testimony in this respect is as folloAvs:

“A. It Avasn’t but one man, the one that got the drink of water. When Ave got the drink of Avater, he said: ‘I will sell you some hogs cheap; you come out i» my place and chop cotton, 25 acres to chop, and got com to hoe out and plow,’ and says, When you say you come out there, about the middle of the week?’ and I says, ‘I don’t know; where do you live?’ and he tried to tell me, and I says, £I don’t know anything about that country,’ and he says, ‘I will give you my name and if you can’t find me, I will give you one or two more men’s names and if you can’t find me, one of these men will identify me,’ and says, 'Can I depend on you?’ and I says, 'Sure,’ and that is the last time I seen him. Q. Did you write the names on a piece of paper? A. He did. Q. How many names did he write? A. His name and two more. Q. What did you do with the paper? A. I put it in my overalls pocket, and I was helping Walter with his car and I lost it somewhere. Q. Who was it you were helping with his car? A. Walter McGowan.”

When he left the fair grounds he started to town and went by the sewing room and to the toolhouse. He thought this was just a short while after B p. m. In going to the toolhouse it was necessary for him to pass near the sewing room and in this respect he is corroborated by all of the women who testified as to his going by this room. After passing the sewing room he went on south toward the toolhouse. This was after 3 p. m., and at or near the toolhouse he met a man by the name of Walter McGowan, who' was employed in the park, and who was working on his car. The defendant stopped and helped him fix a tire, and when that was finished he got in the car and rode back with him to his home in Okmulgee. The defendant stopped at a certain grocery store, where the witness made a purchase, and after going to his home McGowan walked with the defendant over to his own home. This was just about 4 p. m., and the witness McGowan fixed this time because he got off work at 3:30 p. m. and had been about 30 minutes fixing the tire when the defendant walked up and assisted him. He had known the defendant 18 years, and said that he came up from the east, which would be in the opposite direction from the railroad trestle or the cornfield where the prosecutrix was found. .

On rebuttal the state offered in evidence the testimony of a witness by the name of John Taylor. The testimony of this witness offered by the state corroborates in every detail the testimony of this defendant, and the witness MeCowan, and absolutely disproves almost every theory advanced by the prosecution in this case as to the guilt of the defendant. His testimony is as follows:

“Q. Did you know Johnnie Williams on the 15th day of June, of this year? A. Yes,- sir. Q. Did you see him on that day? A. Yes, sir. Q. Where? A. Over here at the park, —Okmulgee park. Q. Is that the park south of the fair grounds? A. Yes, sir. Q. And adjoining the fair grounds? A. Yes, sir. Q. What time in the day did you see him there? A. Well, it was about 3:30 in the evening. Q. Where did you see him with reference to the tool house on the corner of that park? A. Well I was up there at the dressing room, at the swimming pool. Q. How far is that from the tool house? A. One hundred or one hundred thirty yards. Q. Did you see him down there at the toolhouse? A. No, sir; I went down after him. Q. What was he doing down at the toolhouse? A. Him and McGowan was working Avith McGowan’s car, trying to get it started.”

On cross-examination he testified as follows :

“Q. And you left them there, didn’t you? A. Yes, sir. Q. And they didn’t overtake you on the way home? A. .Sure, they passed me. Q. Where? A. Passed me before I got to the corner going up to the hospital.”

As above stated the evidence in this case is contradictory and conflicting and highly unsatisfactory. The evidence of the prosecutrix and her employer, Mr. A. J. Hale, sho ws that she left the Hale home at 1:30 p. m. She reached the railroad trestle, a mile and a quarter away, where she met the defendant at about 2:30 p. m. She was there knocked unconscious by the defendant, who struck her over the head with a pistol. She did not .regain consciousness until she was in the cornfield, which is a distance of a mile and a quarter from tbe railroad trestle. Sbe knew nothing as to how she got to the cornfield. Taking into consideration the distance, the time consumed in the assault in the cornfield, it is almost inconceivable that this distance could have been made and the assault accomplished before at least 4:30 p. m., yet the only witnesses who corroborated the prosecutrix, the Monteilh family, say that they saw the defendant pass their home between 2:45 and 3 p. m. If their evidence is true, the assault must have already been completed because the daughter Octavia testified that the party whom she saw returned to the house and related to her that a woman had been injured in a cornfield and he wanted to' get help. The witness Floyd Mitchell, who was a state witness, testified that he saw the prosecutrix going down the road, following some man toward the cornfield about 1:30 p. m. This, according to all the evidence, Avas about the time she left her employer’s home, and the cornfield was about two and a half miles from this point. The evidence of the four women at the sewing room was that they saw the defendant pass this point between 1 and 3 p. m. At this time he was traveling in a southerly direction, which would be toward the cornfield and not away from it. The testimony of these four Avitnesses corroborates the defendant’s testimony, both as to the direction he was going, and about the time he Avent to the toolhouse for the purpose of attempting to sell the witness McCowan a Ford motor which he had, and where he helped the witness McCowan fix his tire and return home with him in the car of McCowan. The witness John Taylor, AA’-ho was not very friendly with the defendant, testified in rebuttal for the state, swore positively that he saw the defendant going from the north to the south about 4:3’0 p. m.; that the defendant passed him and spoke to him. This was! just after he had passed tbe sewing room as defendant bad testified. He saw him talking to the witness McCowan and also helping him with his car, and he saw the defendant get in the car and come toward town just as the defendant and McCowan testified. The direction from which he came when he spoke to John Taylor was directly opposite from the direction of the cornfield where prosecutrix was found, and was a distance of a mile and a half therefrom. The direction from which he saw him coming was from the fair grounds, where the defendant said he had been just prior to- the time that he came to the toolhouse. It is true that the witness John Taylor swore that the clothing of defendant was dirty and that he seemed excited, but this is an insignificant circumstance as compared to the time he saw him, and the direction from which he came.

The only testimony in this record substantially corroborating the testimony of the prosecutrix is the positive identification of defendant by the Monteilh family. The defendant was brought before them after he was arrested, for the purpose of identification, just as he was brought before the prosecutrix at the hospital about ten days after he was arrested, and while their testimony is positive, it is contradictory to so much of the testimony in this case and to the physical facts, one cannot but believe that there was error in their identification of the party whom they saw as being defendant. In the first place, he was 25 yards away from them. They had never seen him before. The main feature by which they identified him was his beard, yet he was clean shaven at the time they made the identification. No other witness who saw him that day testified as to his having a bear’d. The prosecutrix herself dd not even testify to that. Surely if his beard had been long enough to be a distinguishable characteristic at a distance of 25 yards, it would have been noticeable to other witnesses and they would have so testified.

In the case of MacLaurin v. State, 34 Okla. Cr. 324, 246 Paac. 669, 671, this court, speaking through Judge Doyle, says:

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

And the same Judge, in the case of Morris v. State, 9 Okla. Cr. 241, 131 Pac. 731, says:

“This court does not hold with some that, as a matter of law, rape cannot be established by the uncorroborated testimony of the prosecutrix, but in common with all courts recognizes that, without such corroboration, her testimony must be clear and convincing. And, where the testimony of the prosecutrix bears upon its face inherent evidence of improbability, there should be corroboration by other evidence, connecting the defendant with the commission of the crime. The law is that the life or liberty of a citizen shall be taken only in case the right to do SO' is established beyond all reasonable doubt; and while there is no-rule of law which forbids a jury to- convict of rape on the uncorroborated testimony of the prosecutrix, provided they are satisfied beyond a reasonable doubt of the truth of her testimony, yet the courts have always recognized the danger of conviction on her uncorroborated testimony, and the testimony of the prosecutrix, if inherently improbable and uncorroborated, will not justify or support a conviction; as the only reasonable conclusion in such cases is that such verdicts are the result of passion or prejudice, and therefore contrary to law.”

Judge Furman, in the case of Reeves v. Territory, 2 Okla. Cr. 351, 101 Pac. 1039, 1043, first announced the rule of this court that there might be a conviction upon the uncorroborated testimony of the prosecutrix, but in the closing paragraph of this opinion says:

“While the court should not instruct the jury that it is necessary to corroborate the testimony of the pros-ecutrix in order to convict a defendant of rape, yet the want of such corroboration should be considered by the court, in connection with all the facts and circumstances of the case, either in advising, the jury to acquit the defendant, or in considering a motion for a new trial.”

See, also, Douglas v. State, 19 Okla. Cr. 257, 199 Pac. 927; Ferbrache v. State, 21 Okla. Cr. 256, 206 Pac. 617; Allen v. State, 10 Okla. Cr. 55, 134 Pac. 91; Cape v. State, 61 Okla. Cr. 173, 66 Pac. (2d) 959, 960; McDonald v. State, 61 Okla. Cr. 287, 67 Pac. (2d) 806, State v. Goodale, 210 Mo. 275, 109 S. W. 9, 11. In the last cited case the Missouri Supreme Court says:

“While it is the law of this state, as in most others, where not modified by statute, that a conviction for rape may be sustained upon the uncorroborated evidence of the outraged female, it is nevertheless equally well settled that the appellate court will closely scrutinize the testimony upon which the conviction was obtained, and, if it appears incredible and too unsubstantial to make it the basis of a judgment, will reverse the judgment.”

In view of the contradictory and unsatisfactory evidence in this case, and the fact that practically every witness used by the state tended to corroborate the statement made by the defendant, with the exception of the positive identification of the defendant by the Monteilh family, and the uncertainity of this testimony being correct as to the defendant being the party whom they saw, we cannot do otherwise than reverse and remand this case.

It is true that the prosecutrix was assaulted and the perpetrator of this crime should not go unpunished, but tbe evidence as to tbe defendant being tbe party wbo did it is not only conflicting and unsatisfactory, but is bigbly improbable. This testimony in conjunction with tbe physical facts, and tbe corroboration of tbe defendant by tbe state’s own witnesses, leads to but one conclusion — that there was a case of mistaken identity.

If other evidence is obtained which the state deems sufficient, tbe case may be retried, but as tbe record stands justice demands a reversal of tbe same, and it is so ordered.

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


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    HENRY HEWITT v. STATE.
    No. A-9264.
    May 28, 1937.
    (69 Pac. [2d] 93.)
    Sam L. Wilhite, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DAVENPORT, P. J.

Tbe plaintiff in error was by information charged with possession of intoxicating liquors ; was tried, convicted, and sentenced to pay a fine of $50 and to be imprisoned in the county jail for 30 days. The record, was properly saved, and defendant appeals.

. The state to maintain the charge in the information against the plaintiff in error, who will be referred to herein as the defendant, called Elmer Finley, who' stated:

“I am sheriff of Caddo county, and was sheriff on the 24th day of March, 1936; on said 24th day of March, 1936, I searched the premises of Henry Hewitt; Heaton Tracy and J. O. Roberts were with me; Tracy has left my employ since that time, and Roberts is out of Caddo county; when we searched the premises we found twelve half pints of whisky in a little cabin east of the building; the defendant had his cafe in; the defendant has been there some time, I do not know how long.”

Over the objections of the defendant, the witness was permitted to state there was quite a bit of traffic going to and from the defendant’s place of business. Witness further stated:

“I passed along, there several times at night and saw cars going in and coming out from there, it being a place of business. Where we found the whisky was in a cabin near the defendant’s place of business, about 250 feet from the section line running east and west. The defendant was at the place of business at the time, and this cabin was on a part of the land the defendant had leased; the whisky was in a cabinet on the north wall, had just a common door.”

On cross-examination witness stated Hewitt was running a cafe and pig stand, selling sandwiches, cold drinks, and beer, for which he had a license to sell.

Hoyt Shelby and Bob Eastman, testifying for the state, testified in substance the same as the witness Finley.

The state then, over the objections of the defendant, and before the defendant had testified, went into the reputation of the defendant’s place as being a place where whisky was kept and sold at the time the search was made and immediately prior thereto. The defendant interposed objections to all the state’s testimony and especially that part of the state’s testimony where the state attempted to show that the reputation of the place the defendant was running was bad for being a place where whisky was kept to sell. The defendant’s objection was that it was incompetent, irrelevant, and immaterial, as the defendant was not charged with maintaining a public nuisance but only charged with possession of twelve half pints of whisky with intent to sell or give away the same.

The defendant, testifying in his own behalf, stated all he knew about the whisky found is, “They came to my place and found twelve half pints of whisky; the liquor did not belong to me; it was found in a cabin a short distance from my place.”

On cross-examination witness stated he had been living at the place for about five years.

“I believe the officers came out there in the afternoon. The fellows that were living in the cabin I believe were named Barbees; I.don’t know where they are now; I do not know to whom the whisky belonged; it was in these boys’ bed room; I had two boys and two girls working there. I ought to have traffic; I sold from 20' to 50 cases of beer a day; I was entitled to some traffic or I would never have sold that much. The girls worked in the joint, I don’t know who they were, I hired and fired so many I can’t tell you how long they had been working there. I had been running this place five years. I did not tell the officers anything when they came down to my place; they did not find any whisky in my place of business.”

The foregoing is in substance the testimony of the state and the defendant.

The defendant has assigned eleven errors alleged to have been committed by the trial court. The first assignment is that the court erred in overruling the plaintiff in error’s motion for a new trial. The first assignment of error covers all the grounds raised by the defendant embraced in his motion for a new trial.

The defendant in his argument alleges that the evidence as to the ownership and possession of the whisky is insufficient to sustain the verdict against him. The information charges illegal possession and control of whis-ky. There is not a word in the testimony showing that the defendant was ever in possession of the whisky found in the cabin where his hired men lived, or that he exercised any control or possession over the same. The whisky found by the officers was not found in the place of business of the defendant, nor is there a word of evidence that the defendant had at any time sold any whisky at his place of business.

At most the state’s evidence only raises a suspicion, and the defendant positively denies he was in possession, had been in possession, or that he had knowledge the whisky was in the cabin where the hired men roomed and slept.

In Dorsey v. State, 44 Okla. Cr. 7, 279 Pac. 917, 918, this court said:

“In view of the fact that the defendant took the stand and denied any knowledge of the whisky being where it was found, denied any ownership in it, and stated he had never been charged with an offense before, had never been arrested, and had never been a witness in court, only having served once on the jury, where premises are occupied by two families jointly, the proof should be sufficient to show that the party charged with the possession had exercised some control over the whisky before the jury would be Avarranted in finding a verdict against tbe defendant.”

So far as tbe record shows in this case, tbe defendant bad never been arrested or convicted for any crime prior to tbis time.

In Bergedorff v. U. S. (C. C. A.) 37 F. (2d) 248, in tbe second paragraph of tbe syllabus, the court said:

“ ‘Possession’ of intoxicating liquor in violation of law means dominion and control.”

And in tbe third paragraph of tbe syllabus the court said:

“Legal presumption was that defendant was innocent of charges of possessing intoxicating liquor.”

In tbe opinion, tbe court, in summing up tbe evidence, stated:

“Appellant’s hired man testified that when tbe officers came on March 3'lst be bad just come in with a load of bay, that no one was at home except himself and Mr. Bergedorff’s aunt, that defendant and Mrs. Bergedorff left that morning and returned that evening, that be bad been Avorking on tbe fence on tbe south and east side of the alfalfa field and had driven over the field several times hauling posts back and forth, old posts out and new ones in, that he seldom followed tbe same track across tbe field in order not to cut tbe alfalfa too much, that be knew nothing about any liquor business going on around there. He was not away from tbe place except for a few hours at a time. There Avas no contradiction in tbe testimony of witnesses.
“Tbe facts stated constitute tbe substance of all the material testimony, and we entertain no doubt that it was wholly insufficient to sustain the verdict on either the first or secpnd count. The possession charged on those counts means dominion and control.
“On the evidence stated the verdicts of the jury Avere as to each count a pure surmise made in the face of the legal presumption that appellant was innocent of the charges, and that he could not be convicted until his guilt should be established beyond a reasonable doubt. It ivas error to refuse to instruct verdicts of not guilty as requested.”

Patrilo v. U. S. (C. C. A.) 7 F. (2d) 804; Huth v. U. S. (C. C. A.) 295 F. 35; Colbaugh v. U. S. (C. C. A.) 15 F. (2d) 929.

In State v. Florence, 79 Utah, 200, 8 Pac. (2d) 621, 622, the Supreme Court of Utah, in the sixth paragraph of the syllabus stated:

“To show that defendant ‘knowingly’ possessed liquors, state must show conscious possession and actual control, care, or management thereof; merely finding liquors on defendant’s premises being insufficient.”

In Eastridge v. State, 57 Okla. Cr. 323, 48 Pac. (2d) 869, in the first paragraph of the syllabus, this court said:

“To justify or sustain a conviction for unlawful possession of intoxicating liquor, there must be evidence sufficient to prove possession, and also evidence of the criminal intent.”

The evidence in this case as to the defendant having possession of the whisky found by the officers in the cabin occupied by his hired men near his place of business does not measure up to the standard required by the laws of this state, and is wholly insufficient to sustain a conviction.

There are many questions raised by the defendant, some of which are sufficient to reverse the case, but for the reasons stated in this opinion it is not necessary to consider them.

The failure of the state to show by competent evidence that the .defendant had possession, control, or dominion over tbe whisky found in his hired men’s sleeping room, or that he had any knowledge it was there, requires that this court hold that there is no competent evidence to sustain the conviction and judgment.

The case is reversed, with directions to dismiss.

DOYLE and BAEEFOOT, JJ., concur.


author: DOYLE, J.

text:
    CHARLIE LACY v. STATE.
    No. A-9254.
    May 28, 1937.
    (68 Pac. [2d] 878.)
    John T. Levergood, for plaintiff in error.
    Mac. Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the state.
   DOYLE, J.

Tbe information in this case in substance charges that in Pottawatomie county on or about the 13th day of April, 1936, Charlie Lacy did take, steal and carry away certain domestic fowls, to wit, 33 chickens, the personal property of ,S. G. Sloan, with the unlawful and felonious intent to convert the same to his own use and benefit and to deprive the owner thereof permanently. On his trial the jury returned a verdict finding' him guilty of larceny of domestic fowls, as charged in the information, leaving the punishment to be fixed by the court.

Motion for new trial was filed, presented and overruled. On November 24, 1936, the court rendered judgment on the verdict and sentenced the defendant, Charlie Lacy, to' confinement in the state penitentiary for a term of four years and to pay costs, taxed at $198.85. An appeal was properly perfected.

It is contended that -the evidence is not sufficent to support the verdict and judgment of the court.

The evidence shows that on the night of April 13, 1936, 31 hens and two- roosters belonging to S. G. Sloan were stolen from the Sloan place, four miles north and two west of the Baptist University at Shawnee. The next morning, about 8 o’clock, the defendant stopped at the A. & A. Poultry House in Oklahoma City and offered for sale 22 hens and two roosters that he had in his car. Three police officers came up. In a conversation one asked the defendant who owned the chickens; he said he got them a,t his mother-in-law’s in Shawnee. The officers took the defendant, put him in jail and notified the officers at Shawnee; they came to Oklahoma City and took the defendant and the chickens to Shawnee.

S. G. Sloan testified that he had about 55 chickens on his place; that on Monday night, April 13, 33 of his chickens were stolen. He described them as two bnff roosters, two buff hens, feathers off their backs, six Wyan-dotte hens an<T the rest mixed breeds. He notified the officers that the chickens were missing; two days later he saw 24 of the stolen chickens at Cline’s Poultry House in Shawnee. The officers there had them in charge; that they were his chickens.

C. B. Gregg testified that he ran the A. & A. Poultry. House, in the Public Market of Oklahoma City, that around 8 o’clock in the morning, April 14, the defendant appeared at his place and stated he had some chickens to sell; that he had 24 live chickens and a dead one in the car. That Officer Youngblood, stationed at the market, talked to the defendant, then instructed witness to keep the chickens in a separate coop. The next day officers from Shawnee came and he turned the chickens over to them.

Officer Youngblood testified that another man was with the defendant. The poultry man was weighing the chickens when he called Officers Mike Conners and Dick Parker; they arrested the defendant and took him to the station.

Mike Conners, detective, city police department, testified that the defendant told him that he got the chickens from his mother-in-law over at .Shawnee; that the next day the defendant was delivered to officers from Shawnee.

A. M. Hyder testified that Mr. Sloan had described to bim his stolen chickens and he went to the poultry house in Oklahoma City and brought the chickens to Mr. Cline’s Poultry House in Shawnee.

Charlie Lacy testified on his own behalf that he was 33 years of age, had lived in Pottawatomie county all his life, and bad never been in trouble before, and he and his wife lived in the south part of the county, near Remus; that about the first of January they moved to Shawnee, and at that time took their chickens over to his mother’s place, four miles west of Maud, and left them there until April 14, when he took them from his mother’s place to Oklahoma City to* sell, and to look for work. That his sister, Ada Stevens, and Mrs. Bertie Adams were at his mother’s place on the night of April 13. That night they put the chickens in a coop and he got up early the next morning, tied the legs of the chickens and put them in his car and hauled them to Oklahoma City, that his wife rode with him as far as Shawnee, and there he left her at her mother’s place. That the chickens the officers found him with at Oklahoma City were his chickens, that he did not know where the prosecuting witness, Mr. Sloan, lived, that he did not take any chickens from Mr. Sloan’s place; that he never told the officers that he got the chickens at his mother-in-law’s at Shawnee; he told them that, he got them at his mother’s place.

The testimony of the defendant’s wife was substantially the same as that given by her husband.

On behalf of the defendant, Mrs. Julia Lacy, his mother, Mrs. Ada Stevens, his sister, and Mrs. Bertie Adams each testified that the defendant and his wife were at his mother’s place on the night of April 13, and that the next morning they took in their car about 25 chickens that they had put in a coop the evening before.

It appears the information was drawn under Penal Code, § 2276 (21 Okla. St. Ann. § 1719), reading as follows :

“Every person who shall take, steal and carry away any domestic fowl, or fowls, and any person purchasing or receiving such domestic fowl, or fowls, knowing them to have been stolen, shall be guilty of grand larceny, regardless of the value thereof, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or by fine not exceeding two hundred dollars, or by confinement in the county jail not exceeding two months, or by both such fine and imprisonment.”

Where the inference of guilt can be reasonably drawn from the evidence, this court will not pass upon the weight of the evidence in order to determine whether the defendant is guilty as charged.

There is competent evidence tending to support every material fact stated in the information and it was for the jury to judge the weight of the evidence. We cannot substitute our judgment for that of the jury. It is only where the evidence obviously does not warrant the inference of guilt that this court will interfere.

It is argued by his counsel that the testimony of the defendant and the witnesses testifying in his behalf in support of the alibi and his ownership of the chickens is uncontradicted and unimpeached, and for this reason he assumes that the jury should have believed their testimony.

In the case of Wainscott v. State, 8 Okla. Cr. 590, 129 Pac. 655, 656, we said:

“The credibility of the testimony of the defendant and the witnesses testifying in his behalf is the exclusive province of the jury to determine, and, although such testimony may be uncontradicted and not directly impeached, when there are facts and circumstances admitted and proven tending to lessen the probability that such testimony is true, the jury may give it such weight as they deem proper, even to the extent of wholly disregarding the same.

“The rule as stated in Cyc. is as follows:

“ ‘Tlie jury are not bound to believe testimony because it is uncontradicted and not directly impeached. The jury may consider the inherent improbabilities of the statements of the witness, and they may be of such a character as to justify them in disregarding his testimony, although uncontradicted by direct testimony. He may be contradicted by the facts that he states as completely as by adverse testimony, and there may be so- many omissions and improbabilities in his evidence as to discredit his Avhole story.’ 12 Cyc. 486.”

The case appeal’s to have been fairly tried and the jury were warranted in finding the verdict they returned. In our opinion the evidence sustains the verdict.

It is also urged the punishment imposed by the court is excessive and should be reduced. Counsel in his brief says:

“We are not unmindful of the statute that makes it a felony to steal chickens regardless of their value. But we are also aware in all other matters the statute provides that unless the property stolen exceeds $20 in value the crime is simply a misdemeanor punishable by fine or jail sentence or both, but because defendant stands charged with the theft of chickens valued at $18, he received a sentence of four years in the penitentiary.
“We submit the punishment is out of all reason. That by all means the judgment and sentence should be modified and the punishment reduced to within the bounds of reason and justice.”

Procedure Criminal, § 3204 (22 Okla. St. Ann. § 1066) confers power upon and makes it the duty of this court to modify the judgment appealed from when in our opinion the punishment imposed is in any manner excessive.

It is both the spirit and intention of our laws that sentences should be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law. Welch v. State, 20 Okla. Cr. 190, 201 Pac. 524; Tennison v. State, 32 Okla. Cr. 260, 240 Pac. 324; Watkins v. State, 39 Okla. Cr. 222, 264 Pac. 922; Bouyer v. State, 57 Okla. Cr. 22, 43 Pac. (2d) 153.

After careful consideration of the record our conclusion is that the punishment imposed by the court is excessive and that the judgment should be modified by reducing the sentence to a term of two years’ confinement in the state penitentiary. As so modified, the judgment of the lower court is affirmed.

DAVENPORT, P. J., and BAREFOOT, J., concur.


author: BAREFOOT, J.

text:
    J. EVERETT SMITH v. STATE.
    No. A-9209.
    May 28, 1937.
    (69 Pac. [2d] 394.)

      Mauntel & Spellman, Walter M. Thomas, and Maurice M. Thomas, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and James G. Young, Co-. Atty., of Woodward, for the State.
   BAREFOOT, J.

The defendant was changed with the crime of embezzlement in Woodward county. He was tried, convicted, and sentenced to serve a term of three years in the penitentiary. He was the deputy court clerk of Woodward county for a period of from April 29, 1929, to- April 14, 1931, during which period of time E. B. Boll was court clerk, and upon his death, which occurred April 14, 1981, his wife, Agnes Boll, was appointed to succeed him, and the defendant was deputy court clerk under her until January 2, 1933. The record shows that Mrs. Boll, who was appointed to succeed her husband, was not able to conduct the affairs of the court clerk’s office, and practically all of tbe work fell to the defendant. The evidence showed that there was kept in the office a cash book in which all money received was supposed to be posted. Also a receipt book where receipts were issued for all money received, the original being given to the party paying the money, and the duplicate receipt being kept in the office. In addition to this an appearance docket was kept, and this docket showed the amount deposited in each case, both probate and civil.

The court clerk was also clerk of the county court, and had a deputy in that office who received the money coming thereto and issued receipts the same as above indicated, including money received for marriage licenses and marriage ceremonies.

The evidence showed that Mrs. E. M. Warren Avas the deputy clerk in the county court; the county court being downstairs and the court clerk being upstairs. The evidence shoAved that when Mrs. Warren collected money she each day carried it upstairs to the court clerk’s office, and turned it to the defendant, who issued her a receipt therefor. The evidence showed that the defendant, as required by the statute, then deposited all money received each day in the office of the county treasurer and the county treasurer issued an original deposit slip which was kept in his office, and a duplicate deposit slip which was given to the county officer making the deposit, and was filed as a part of the records of his office. The county treasurer also kept a deposit book in which was recorded every deposit made by a county officer, and at the end of each month a report was made by the county treasurer to each county officer showing the amount of deposits made by his office during the month so the same could be checked by the county officer. The evidence in this case shoAvs that these deposits for the court clerk’s office were made by the defendant. The andit upon which the defendant was prosecuted in this case was made by an officer from the office of the State Examiner and Inspector’s office. It was made several years after the defendant went out of office, and showed a shortage of $802.07 in the office of the court clerk of Woodward county, some of which was barred by the statute of limitations. The state used as a witness Mrs. Warren, who was the deputy court clerk in the county court. She testified to the manner of receiving and receipting for money by her, and identified receipts showing the money she had turned over to the defendant. Those receipts were in the defendant’s handwriting’. She swore that she, at no time, deposited money in the county treasury.

Mrs. Roll had died prior to the time this case was tried. The evidence showed she did not know very much about conducting the affairs of the office, and did very little work therein; that the receiving of money, the keeping of the books, the depositing of the funds was all handled by the defendant. The deputy county treasurer testified that all the funds were deposited by the defendant, and that she had no recollection of Mrs. Roll ever depositing any funds. The auditor who testified in denial showed each item of receipt of money by the defendant, and pointed out from the audit and the record of the court clerk and county treasurer where day after day money was received by the defendant, as shown by said record, and the same was not deposited with the county treasurer in the manner provided by law; a part of this being the money turned over to him by Mrs. Warren and for which she had his receipt. These items would run from a dollar some days to fifteen or seventeen dollars other days. There seemed to be a systematic shortage of small amounts on frequent days.

From a reading of tbe record it is hard to state the exact amount of the shortage; the information alleged $566.29, but the audit showed it to he more than this amount. The defendant did not testify in his own behalf. The money was traced into his hands, and the proof showed that the same was not deposited with the county treasurer in the manner provided !by law, and under the statute this constituted a misappropriation of the county funds.

The contention of defendant that some one else could have misappropriated the funds is merely a conjecture. The evidence showed that he was the one who had charge of them, and he Avas the one who failed to account for them, according to the verdict of the jury.

It is first contended by the defendant that he Avas prosecuted for embezzlement of public funds under section 7761, O. S. 1931 (19 Okla. St. Ann. §. 641), and that under said section it was necessary for the state to show a personal appropriation of said funds by the defendant before he could be convicted under this statute.

We think that under the decisions of this court it is necessary under this statute to show there was a personal conversion, but we thinkjbhat the proof as revealed by the record shows a personal conversion by the defendant. State v. Harris et al., 47 Okla. Cr. 344, 288 Pac. 385; Griswold v. State, 23 Okla. Cr. 136, 212 Pac. 1018.

The record shows the items with which the defendant was charged with embezzling were traced into his hands. Receipts were issued by the defendant in his own handwriting, charges were made on the cash book and on the appearance docket all in his own handwriting. Some of these items Avere for marriage licenses and other public moneys that came into his hands as deputy court clerk. The record shows that these funds were not deposited in the manner provided by law. That this duty was intrusted to him is not denied. In order to appropriate the public funds to one’s private use it is not necessary for the state to show by direct evidence the actual securing of the funds and the spending of the same. Often this would be impossible. When the funds were shown to- have come into the actual possession of the defendant and they were not deposited in the office of the county treasurer, or turned over to the county in the manner provided by law, the jury has a right to infer that they have been misappropriated under the statute above indicated. The cases draw a close distinction as to- the duty devolving upon public officials and those devolving upon individuals, and especially when they are acting under a special statute, adopted for the purpose of protecting public funds which have come into the possession of public officers.

In the case of O’Brien v. United States, 27 App. D. C. 263, the court says:

“* * * rpile inference that a prisoner has embezzled property by fraudulently converting it to his own use may be drawn from the fact that he has not paid the money in due course to the owner, or from the fact that he has not accounted for the money which he has received. Stephens’ Digest Crim. Law, art. 312.”

And in the case of Reynolds v. State, 65 N. J. Law, 424, 47 A. 644, 646, the court says:

“A demand is only one class of evidence for proving fraududent conversion. Other classes are: (1) Where, by statute, a public officer is required to pay over funds at a definite time, and fails to doi so> and there is proof that he has not done so, and that he has applied the same to his own use, that is evidence from which a jury may find a fraudulent conversion, even without a demand; or (2) where, by the rules and regulations or agreement under which a. defendant is employed, and to which he is required to conform, a time is definitely fixed for bim to account for moneys received, and it appears that he has lawfully received moneys of his employer, hut has not paid over the same in accordance with such rules, regulations, or agreement, but has converted the same to his own use, this is also evidence from which the jury may find that there was a fraudulent conversion of such funds without formal demand.”

It is next contended by the defendant that the court erred in failing to give a requested instruction upon circumstantial evidence. We do not think there was any error upon the part of the court in its refusal to give this instruction. There was direct testimony in this case, sufficient, if believed by the jury, to warrant a conviction of the defendant. In fact, counsel for defendant made this admission during the trial of the case: “Yes, sir, those that he signed we will admit that he signed, and that he got the money on them.” We do not think it was error to refuse an instruction on circumstantial evidence in this case.

It is next contended by the defendant that there was no embezzlement of more than #20 in any one day proven in this case, and that the defendant therefore was wrongfully convicted of a felony. In the information it was alleged that the amount embezzled amounted to #566.29. The proof showed an amount far in excess of $20, although it is hard to determine the exact amount. It is made up of different items each day which were less than #20, but the total amount far exceeded this amount. This court has often held contrary to the contention of defendant. The following cases fully discuss this proposition, giving the reasons why the embezzlement of small sums during different times by public officials constitutes a felony and not a misdemeanor, and many authorities from other states are cited therein. See Griswold v. State, 23 Okla. Cr. 136, 212 Pac. 1018; State v. Bunch, 23 Okla. Cr. 388, 214 Pac. 1093; Casselman v. State, 58 Okla. Cr. 371, 54 Pac. (2d) 678.

The defendant contends that certain evidence was admitted which was incompetent, irrelevant, and immaterial. Under this contention it is urged that the court erred in permitting the state to introduce the duplicate deposit slips which were given by the county treasurer to the defendant, and which were filed in the court clerk’s office as a part of the records of that office; insisting that the original deposit slips on file in the county treasurer’s office should have been introduced. We think that under the testimony either of these deposit slips might be considered as original. They were prepared by the use of carbon paper, and a copy was retained by each officer. The originals, if it be so considered, were in the office of the county treasurer, if the defendant found any discrepancy, he had the privilege of securing the original and showing to the jury the discrepancy, if any. He did not do so, and we do not think it was error to admit the duplicates which were a part of the records in the court clerk’s office. We have carefully examined the other evidence which was admitted and of which defendant complains, and we do not find error in the admission thereof.

The defendant did not see fit to' take the witness stand in this case in his own behalf. This he had a right not to do. He introduced many witnesses who testified to his good character and good standing in the county where he lived. The jury of this same county heard this testimony and, after a careful consideration of the same, found the defendant guilty. No error has been pointed out which we consider is sufficient to- warrant the granting of a reversal in this case, and it is therefore affirmed.

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


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    M. T. KITCHEN v. STATE.
    No. A-9274.
    June 4, 1937.
    (69 Pac. [2d] 411.)

      Eaton & Wheeler, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from tbe judgment of conviction rendered in pursuance of tbe verdict of a jury finding the defendant, M. T. Kitchen, guilty of rape in tbe first degree and fixing his punishment at imprisonment in the state penitentiary for 40 years.

Omitting tbe superfluous words in the information, it charges that in Okmulgee county, on or about the 6th day of March, 1936, the defendant, M. T. Kitchen, did unlawfully, willfully, and feloniously, rape, ravish, and have sexual intercourse with Nellie Mae Herndon, a female person under the age of 14 years, and not the wife of said M. T. Kitchen.

The errors assigned and argued are that the verdict of the jury is contrary both to the law and the evidence; that the verdict of the jury is not sustained by sufficient evidence; that the court erred in overruling defendant’s demurrer to' the evidence, and defendant’s motion for a directed verdict of acquittal.

It was essential to the support of this conviction that the state show not only an assault, but also the consummation of the crime charged by having carnal knowledge of the female.

Penetration is necessary according to all the authorities to complete the crime of rape.

An examination of the record discloses that the main question presented in this case is whether there was sufficient proof of penetration to constitute the crime.

“Rape” is defined by section 2515, St. 1931 (21 Okla. St. Ann. § 1111), under the first subdivision thereof, which is applicable to' this case, to be:

“An act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
“1st. Where the female is under the age of sixteen years.”

Section 2518 (21 Okla. St. Ann. § 1114) declares that:

“Rape committed by a male over eighteen years of age upon a female under the age of fourteen years, * * * is rape in the first degree.”

Our Penal Code (section 2517 [21 Okla. St. Ann. § 1113]) provides that:

“The essential guilt of rape, except with the consent of a female over fourteen years of age, consists in the outrage to the person and feeling of the female. Any sexual penetration, however slight, is sufficient to complete the crime.”

Under this section the essence of the crime is the violence done to the person and feelings of the injured female, which is completed by sexual penetration, and while the slightest penetration is sufficient, there must be proof of some degree of entrance of the male organ “within the labia of the pudendum.” In other words, it must he shown that the private parts of the male entered, at least to some extent, in those of the female. In cases of this kind, when the offense is committed upon a child of tender years and who, for want of knowledge and experience, may be incapable of giving testimony, it often happens, as in this instance, that direct and positive proof of penetration cannot be made, and in such cases the utmost reliance is placed on the testimony of the medical witnesses.

Dr. Guess testified that he made an examination and took a smear from the vaginal orifice, and according to his judgment found spermatozoa. He further testified that he was not satisfied with his examination and took the smear to Dr. Isham, who examined it.

Dr. Isham, laboratory technician, testified that Dr. Guess brought smear to him and he put it under a microscope. He further stated that he coult not testify there was spermatozoa in it.

Dr. Camell testified that be made an examination of the little girl a few hours after the occurrence; that be found no bruises, laceration, or other injury of the parts; that he took a smear from the vagina, made the proper test, but did not find any spermatozoa in it; that he found no indication or evidence whatever of any penetration.

In the case of Walker v. State, 12 Okla. Cr. 179, 153 Pac. 209, 213, we said:

“In view of the unsatisfactory character of the testimony of the child witness and the fact that there is a direct conflict in her testimony and that of the only other witness produced by the state, we think that the court erred in refusing the defendant’s demand that a physical examination of the child be made by a competent physician. While ‘any sexual penetration, however slight, is sufficient to complete the crime,’ (section 2416 Rev. Laws [21 Okla. .St. Ann. § 1113]), there must be proof of some degree of entrance of the female organ, and the practice seems to be not to permit a conviction in those cases in which it is alleged violence was done, without medical proof of the fact, whenever such proof is attainable. If the private parts of the defendant entered those of the child, then only seven years of age, as the testimony of the state tends to show, the marks of penetration would be permanent, and would be the best evidence of the actual commission of the crime charged.”

In State v. Wilson, 32 Wyo. 37, 228 Pac. 803, 805, the Supreme Court of Wyoming, speaking of facts somewhat similar to those in the instant case, said:

“All the authorities agree that, on a prosecution for rape, the fact of penetration, to some extent at least, must be proved beyond a reasonable doubt. There must be a res in re, though to no particular depth. 33 Cyc. 1486; 23 Eng. & Am. Ency. of Law, 851, 852; People v. Howard, 143 Cal. 316, 76 Pac. 1116; Colombo v. State, 2 Boyce (Del.) 28, 31, 78 A. 595; State v. Williams, 3 Boyce (Del.) 102, 106, 80 A. 1004; Hardtke v. State, 67 Wis. 552, 30 N. W. 723; White v. Com., 96 Ky. 180, 28 S. W. 340; Walker v. State, 12 Okla. Cr. 179, 153 Pac. 209. * * *
“The foregoing cases, showing a variety of indecent liberties taken with a female, conclusively demonstrates the fact that what is claimed to have been the theory of the state herein was entirely erroneous. True, an actual emissio seminis was shown in this case, which, perhaps, differentiates this case somewhat from the other cases. But the difference is not substantial. ‘Emissio- seminis,’ it is said, in Pennsylvania v. Sullivan, 1 Add. (Pa. [143]) 142, ‘of itself makes not rape without actual penetration.’ ‘Emission without penetration,’ says Wharton on Criminal Law (11th Ed.) vol. 1, p. 74, ‘is not sufficient to- constitute the consummated crime of rape.’ ‘Actual contact merely of the sexual organ of the male with the organ of the female, or emission without penetration, is not sufficient to constitute rape.’ 23 Eng. & Am. Ency. of Law, 852.”

To the same effect is Vickers v. U. S., 1 Okla. Cr. 452, 459, 98 Pac. 467; Herrick v. Territory, 2 Okla. Cr. 74, 99 Pac. 1096; Dubois v. State, 22 Okla. Cr. 308, 210 Pac. 1043.

In this case there was no evidence whatever of external violence or injury to the parts; nothing whatever that would indicate penetration. It does not appear that any complaint or statement was made by the little girl to her mother or to the officers who discovered her with the defendant.

There being no proof of penetration, either direct or circumstantial, we are clearly of the opinion that the evidence was not sufficient to show that the crime was consummated, and for this reason the court should have sustained the motion for a new trial on the ground that the verdict was contrary to law and to the evidence.

The defense made, that the defendant was in snch a mental condition as not to be responsible for his acts, was wholly without merit.

It is evident, if the defendant’s mind was affected, it was the result of his voluntary intoxication.

The principle is everywhere recognized that voluntary intoxication is no. justification or! excuse for crime, and is no excuse for rape, though carried to the extent of producing incapacity to control the mind and will.

Our Penal Code provides:

“No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.” Section 1798 (21 Okla. St. Ann. § 153).

In Collier v. State, 17 Okla. Cr. 139, 186 Pac. 963, 12 A. L. R. 839, this court held:

“Insanity, though superinduced by excessive and long-continued indulgence in alcoholic liquors and known as ‘delirium tremens,’ or ‘mania a potu,’ renders a person so afflicted irresponsible for his acts, if it be of such a character as to deprive him of the mental capacity to distinguish between right and wrong, as applied to the particular act, whether he be under the influence of liquor at the time of the commission of the act or not; but, to do so, his affliction must be settled or fixed insanity, not a mere fit of drunkenness. A person, not previously laboring under such disease or affliction, who voluntarily becomes intoxicated to such an extent and for such a period of time as to cause unconsciousness of his acts, is not irresponsible under the law for the acts done by him while in such mental condition.”

And see Cheadle v. State, 11 Okla. Cr. 566, 149 Pac. 919, L. R. A. 1915E, 1031.

Because the evidence was insufficent as a matter of law to show tbe commission of the crime charged, the judgment of the trial court is reversed and the cause remanded.

DAVENPORT, P. J., and BAREFOOT, J., concur.


text:
    GEORGE FANCHER v. STATE.
    No. A-9176.
    June 4, 1937.
    (69 Pac. [2d] 409.)
    Morrill & Snodgrass, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, who will be referred to herein as the defendant, was by information charged with willfully, unlawfully, wrongfully, and feloniously keeping and having in his possession a still capable of being used in the manufacture of intoxicating liquor, the charge being a second violation of the prohibition law. The defendant was tried on said charge, convicted, and sentenced • to pay a fine of $100 and confined in the county jail for a period of 60 days, and attempts to appeal by case-made.

An examination of the record discloses that the defendant caused to be prepared what is designated and termed a case-made. The Attorney General has filed a motion to strike case-made for the reason that the said purported case-made was not settled and signed as required by section 534, O. S. 1931 (12 Okla. St. Ann. § 958), nor was there any waiver of said settling and signing the same as authorized by section 531a, O. S. 1931 (12 Okla. St. Ann. § 966). An examination of the purported case-made shows that the trial judge’s certificate is not attached to- it and therefore the motion of the Attorney General to strike the purported case-made as a case-made is well taken and the case-made is stricken.

The only question briefed by the defendant is the question of venue, in which he states that the venue was in Tillman county and not in Jackson county. This question was not raised by demurrer to' the information, or by special plea as to the venue in his case. In the presentation of his testimony, the defendant raised the question of venue.

Under our procedure, there are two methods for taking an appeal provided for. First, by filing a petition in error with case-made attached thereto; second, filing a petition with a duly certified transcript of the record attached thereto.

This court in Mathis y. State, 18 Okla. Cr. 199, 194 Pac. 278, held:

“If the first method is pursued, and for any reason the case-made is fatally defective, the appeal will be considered upon the transcript, provided it is properly certified by the clerk.”

In this case the record is properly certified by the clerk, and this court will consider the record as a transcript and ascertain if there are any fundamental errors sufficient to warrant a reversal of the case.

We have carefully examined the transcript of the record and considered the same with the errors in the petition. The proceedings leading up to the judgment seem to be regular. No fundamental errors are contained in the instructions given. The judgment conforms to the charge and the sentence imposed is within the limits allowed by the statute.

Only the record proper can be reviewed by this court on appeal by transcript under the certificate of the clerk of the trial court. For this reason, the question of venue argued by the defendant’s counsel cannot be reviewed upon the record before us.

We find no fundamental or prejudicial errors in thé transcript that would warrant this court in reversing the case. Cherry v. State, 61 Okla. Cr. 376, 69 Pac. (2d) 407.

The judgment of the trial court is affirmed.

DOYLE and BAREFOOT, JJ., concur.


text:
    PAUL McHENRY v. STATE.
    No. A-9224.
    June 4, 1937.
    (69 Pac. [2d] 90.)
    E. W. Snoddy and H. C. Crandall, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and L. Z. Lasley, Co. Atty., of Alva, for the State.
   BAREFOOT, J.

The defendant was tried in the district court of Woods county where he was charged with the crime of illegal possession of over 58 pints of intoxicating liquor, in and near his farm home. He had previously pleaded guilty in the county court to the charge of illegal possession of liquor on the same premises and had served a sentence of 30 days in jail and paid a fine of $50. He was tried as a second offender under section 2632, O. S. 1931 (37 Okla. St. Ann. § 12), which provides:

“For the second and all subsequent convictions for the violation of any of the provisions of this act, the penalty shall be a fine of not less than fifty ($50) dollars, nor more than two thousand ($2,000) dollars, and by imprisonment of not less than thirty (30) days in the county jail, nor more than five (5) years in the state penitentiary, and it shall be mandatory upon the trial judge in cases where anyone has been convicted under any provision of this act, to pi*onounce sentence within ten days from the date of conviction.”

He was found guilty and given a sentence of one year in the penitentiary and a fine of $50.

Defendant’s first assignment of error is that the court erred in failing to sustain his motion to suppress the evidence secured upon the search warrant, for the reason that the same was illegal and void. The motion to suppress was heard before the trial of the case and evidence was taken thereon. The affidavit made by the deputy sheriff, which was the basis of the issuance of the search warrant, was as follows:

“Comes now Neis Nelson, of lawful age, who being first sworn, upon his oath deposes and says: That intoxicating liquors are being sold, bartered, given awaj and otherwise furnished; and are being kept for the purpose of selling, bartering, giving away and otherwise furnishing in violation of the laws of the State of Oklahoma, by certain persons to wit; one Paul McHenry in certain buildings, to wit; the buildings, houses, barns, caves, silos, and appurtenances thereunto belonging, located on the south half of the northeast quarter of section 3, township 27, range 14, in Woods county, state of Oklahoma; the same being in part a private residence and that which is a private residence the same is a place of public resort.
“That said complaint and affidavit is made for and on account of the following, to wit:
“That affiant is personally acquainted with the above described premises; that numerous persons are seen to go to said premises in a sober condition and to leave in an intoxicated condition; that numerous automobiles are seen to go to and from said premises at all hours of the day and night, the occupants of which are persons who are known to indulge excessively in the use of intoxicating liquors; that affiant personally knows of his own knowledge that whisky is now at this time, stored on said premises and is there being kept for sale, contrary to the laws of this state and affiant further states that said Paul Mc-Henry has been prior hereto', convicted of violating the prohibitory laws of this state;
“Wherefore, affiant prays that the Judge of the said county issue a search warrant, in accordance with law, directing that the sheriff, or his deputy, of "Woods county, Okla., or a constable, marshal, or a policeman of the city of Alva, said county and state, search the premises and places hereinbefore described, and seize all liquors, vessels, implements, fixtures and other property used in the violation of the laws of the state of Oklahoma.”

Neis Nelson testified that he was a deputy sheriff in Woods county, Okla.; that he made the affidavit for the search Avarrant. He further testified that he accompanied the sheriff of Woods county to the home of defendant on the 12th day of November, 1935, and assisted in the search of the place where they found over 58 pints of whisky. With reference to' the procuring of the search warrant he said:

“Q. Where did you get your information on Avhich you made the affidavit for search warrant? A. John Mackey owns the place right south of his and the line runs along near the place and J have been along that line there many times and have seen cars come and go and have heard them come in there and could hear them call for different brands of whisky and could see Mr. Mc-Henry hand them something; I have been along the section line there and have seen people going to and coming from his place, and have arrested men along the section line there and throwed them in jail.”

He further testified:

“Q. You bad been there shortly before you searched the place? A. Not on his place; the house sits right close to the line on the south side of the 80 acres. Q. For all you know, he may have had this liquor? A. I know men were taking it away from there. Q. How many nights did you lay out there? How many nights had the law been laying out there? A. I lay out there several nights before I caught him. Q. Did you see them pay him any money? A. I saw them hand him something. Q. You don’t say that it was money? A. No, sir; I heard them ask for ‘Seagrams’ and saw one of them reach in his pockets and hand him something. Q. You don’t know whether he was handing him any money or not? A. I don’t know what he was giving him. Q. Could you see what he gave them— whether he gave them what they called for? A. No, sir, a man would call for a pint of Seagrams and then he would go around the house and come back and hand him something and they would leave. Q. You don’t know whether it was liquor he handed them or not, do you? A. I would see them drinking liquor down the road after they left there. Q. You didn’t see him hand them any liquor, did you? A. I heard them call for whisky and he went around the house and came back and would hand them something and they would leave. Q. How long was that before you served the search warrant? A. It was some two or three days. There was six cars that night before I got the search warrant. Q. The purpose of your hiding where you were at that time wasn’t that for the purpose of getting information so you could make an affidavit to obtain a search warrant? A. Yes, sir. It was. Q. Do you know what ‘Seagrams’ is? A. It is a brand of whisky. Q. A kind of whisky that is being sold? A. Yes, sir, Seagrams is a kind of whisky. There is 17 bottles of Sea-grams in there. Q. Did you hear them calling for any other brand of whisky out there? A. Yes, sir, I heard them call for Golden Wedding. Q. Any other brands? A. I remember ‘Kesslers.’ ”

Ken Greer testified that he was the sheriff of Woods county and that he conducted the raid on defendant’s borne on tbe night of November 12, 1935, and that they found over 58 pints of liquor. He further testified:

“Q. Yon never saw anyone coming1; there and getting liquor? A. Yes, sir. Q. When was it? A. Several times. Q. Then you were out there alone sometimes? No, sir, I was along, but I hid away out east of the house along the highway, east of the house along the river bridge. Q. Did you ever see him deliver any whisky to any one; sell people whisky? A. No, sir, I didn’t. Q. You never saw any crowds or money exchanged? A. No, sir. Q. Did you see people out there? A. Yes, sir. Q. Would there be women with them sometimes in their cars? A. Yes, sir, I have seen women. Q. Did you see couples out in there? A. Yes, sir, I have seen them driving in there. Q. You don’t know what their purpose was, do you? A. I have seen people going there in a sober condition and come out in an intoxicated condition.”

We have examined the cases cited by defendant to support his contention that this case should be reversed. The cases cited are: Hannan v. State, 29 Okla. Cr. 203, 233 Pac. 249; Gore v. State, 24 Okla. Cr. 394, 218 Pac. 545, 550; Foster v. State, 27 Okla. Cr. 270, 226 Pac. 602; Baker v. State, 28 Okla. Cr. 408, 231 Pac. 320; United States v. Kaplan (D. C.) 286 F. 963, 964.

A careful reading of these cases reveals that they are very different from the facts in the instant case. In those cases the affidavit is made upon information and belief. In the instant case the affidavit of the officer is not only positive, but it states the facts upon which his affidavit is based. It is not mere conclusions, as stated in defendant’s brief, but the evidence of this officer shows that he had obtained direct information that the law was being-violated in the most flagrant manner by the defendant, before he made the affidavit to secure the warrant for the purpose of searching defendant’s premises. The case of Baker v. State, supra, cited by defendant, sets out a form as to wbat a search warrant should contain. The above search warrant complies with this form in a very substantial manner. We think the officers are to be commended for the precaution they took in protecting the rights of the defendant in this case before they made an affidavit for the search warrant. They knew the defendant’s previous record. They procured information that would satisfy any court that this defendant was violating the sanctity of his home and fireside by using it as a place of public resort, where people could come and purchase from him intoxicating liquors in violation of law. This court has gone a long way in upholding the privacy and sacredness of the home. It has even stood the storm of criticism by partisans Avho believe that every sacred right of the individual to be secure in his home from illegal search and seizure, under the state and federal Constitutions, should be wiped out of existence, where the liquor laws are involved. But following the decisions of the Supreme Court of the United States in construing the federal Constitution, which is very much the same as the Oklahoma Constitution, this court, before I assumed my duties as a member thereof, has strictly adhered to the doctrine that the rights guaranteed to the citizen under the Constitution were far more sacred than the punishment of a few individual bootleggers. As was said by a justice of the Supreme Court of the United States:

“Such rights are declared to be indispensable to the Tull enjoyment of personal security, personal liberty and private property’; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen — the right to trial by jury, to the writ of habeas corpus, and to due process of law.” Gouled v. United States, 255, U. S. 298, 41 S. Ct. 261, 263, 65 L. Ed. 647.

This court, in the case of Gore v. State, supra, says:

“The right of a state court to construe its own Constitution may be conceded, but when doing so the construction given like provisions in the federal Constitution by the United States Supreme Court should be more than persuasive, especially where the holding of the highest court is in full accord with the primary purposes of such provisions, that is, to safeguard the tranquility and sanctity of the home and to minimize interference with private affairs. * * *
“It was not the purpose of these constitutional provisions to build a wall behind which criminals could hide and escape punishment. Some of them do and will escape, but better so than to disregard these safeguards designed to protect the innocent from being harassed and annoyed, and sometimes abused, by trespassing officers.”

But, Avhen the court finds that an officer has been just as zealous to protect the rights of a citizen in the sacredness and privacy of his home as they are to enforce the law as shown by the facts in this case, they are to be commended. This defendant, by the use of his home as a place where intoxicating liquor was stored and kept for sale in the very presence of his wife and seven children, had forfeited all of those rights guaranteed him by the Constitution, and, when the proof was submitted as it was in this case, it then became the imperative duty of the court to issue the search warrant for the purpose of searching defendant’s home and buildings used in connection therewith. We find no error in the overruling, of the motion to suppress the evidence procured under the search warrant in this case.

The contention of the defendant that the search warrant was illegal for the reason that the officer went upon the premises prior to securing the same for the purpose of securing information upon which to base his affidavit to secure the search warrant is refuted by the evidence of the officers. They testified that they were not on the premises of defendant at the time the information was received, and they gave facts which show clearly that this information was received in a proper and legitimate manner. They saw people in automobiles going to' defendant’s home sober and returning drunk. They arrested them upon the highway. They saw people come to the home of defendant, get out of their cars, ask for “'Sea-grams” and other brands of liquor, and saw defendant secure a package and give it to them and the same parties hand something to defendant. They knew defendant’s past record. The fact that defendant had rented adjacent land for the purpose of grazing a few calves is no' reason why the officers should not go thereon for the purpose of obtaining information.

It is next contended by defendant that the punishment assessed against him in this case is harsh and unjustified. In their brief, counsel for defendant say:

“Never before has such a harsh sentence been imposed upon anyone in this county for a second violation of the liquor laws; and particularly upon so young a man, who is married and has a wife and seven children to support.
“If he is required to serve a term in the penitentiary, it may embitter him rather than reform him; and after all the sole and only purpose that can be served in an imprisonment is that of reformation.”

In the following cases this court has affirmed sentences where defendant was a second offender, which inflicted higher penalties than in this case. See Gerdner v. State, 39 Okla. Cr. 68, 262 Pac. 1077; Rogers v. State, 34 Okla. Cr. 15, 244 Pac. 461; Hildebrandt v. State, 19 Okla, Cr. 30, 197 Pac. 852; Leasure v. State, 46 Okla. Cr. 70, 283 Pac. 1023.

This defendant seemed to be determined not to be reformed. He not only continued the sale after his first conviction, but turned his home into a place of public resort where old men and young men and women could go for the purpose of securing intoxicating liquor in violation of law. This in the very presence of his wife and children. Under these circumstances, we do not think the punishment was too severe. The maximum punishment under the statute was five years in the penitentiary and a fine of $2,000. A jury in his own county gave him a sentence of one year and a fine of $50.

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

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