text:
    ROSE SHOEMAKER v. STATE.
    No. A-4589.
    Opinion Filed Feb. 14, 1925.
    (233 Pac. 489.)
    (Syllabus.)
    1. '¡Perjury — Quantitative Buie of Evidence Applicable — Falsity of Evidence on Which Charge is Based Provable by; Circumstantial Evidence. The quantitative rule of evidence in perjury cases is the rule of this court, although the falsity of the evidence upon which the charge of perjury is based may be established by circumstantial evidence.
    2. Pei’jury — Necessity for Proof by Extrinsie Evidence that Statement in Question is False. A conviction for perjury cannot be had upon proof alone that accused made contradictory statements under oath. The state must prove by extrinsie evidence that the statement upon which the prosecution is found is false.
    3. Same — Falsity of One of Contradictory Statements, under Oath, not Provable by Unsworn Statements of Accused. Where perjury is based on contradictory statements, under oath, the falsity of one of such statements as a basis for perjury cannot be proven by the unsworn statements of the accused.
    4. Same — Evidence Insufficient to Sustain Conviction. Evidence examined, and found to be insufficient to sustain a conviction for perjury.
    Appeal from District Court, Washington County; J. R. Charlton, Judge.
    Rose Shoemaker was convicted of perjury, and she appeals.
    Reversed and remanded.
    Campbell & Ray, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State. ,
   EDWARDS, J.

An examination of the record discloses the following state of facts: Rose Shoemaker, formerly Rose Cherry, the plaintiff in error, had been the wife of W. C. Cherry, and was divorced from him. She was keeping house, and had two roomers; one a man by the name of Tally, and the other by the name of Shoemaker, whom she afterwards married. On the night of the 6th of March, 1921, a noise was heard outside of the house of the plaintiff in error, and Tally, taking a pistol, went outdoors, was shot and fatally wounded by some one outside the house. Cherry was charged with the crime, and had a preliminary hearing. The said Rose Shoemaker testified as a witness for the state at the preliminary, and in her testimony positively identified Cherry as the man who did the shooting. Her testimony was that she recognized him by his voice in an exclamation made at the time of the killing and by the manner in which he cleared his throat, about two hours prior to the killing, near the scene of the killing. Later, at the trial of Cherry on the charge of murder, the plaintiff in error was again a witness for the state, but her evidence was unsatisfactory. She failed and refused to identify the defendant as she had at the preliminary, and this prosecution for perjury followed. At the time of the final trial her husband, Shoemaker, had left her, and was in Canada. It was the theory of the state that at the time of the final trial her mental attitude toward her former husband, Cherry, had changed; that she desired to shield him; and that her change of testimony was a willful and corrupt perjury.

It is the theory of the plaintiff in error that, in the light of information coming to the witness as to the whereabouts of Cherry on the night in question, and from being informed that it was not the voice of Cherry she heard at the time of the shooting, she had honestly 'become uncertain as to her identification of Cherry; that the only change in fact was from her testimony of positive identification to a less positive identification or statement that she believed the person identified was Cherry, though she might be mistaken; and that it was an honest attempt to correct or qualify her former testimony.

Several assignments of error are presented in the able brief of the plaintiff in error. Among them, error of the court in admitting evidence of the testimony of the plaintiff in error other than set out in the information as a basis for the charge of perjury. Error of the court in its instructions and that the verdict in said cause is contrary to the law and the evidence.

From our examination of the briefs and the record, we believe that a consideration of the last assignments will dispose of the case. In the trial of this case the evidence is to the effect that the plaintiff in error testified on the final trial of Cherry in substance as alleged in the information; the transcript 'of her evidence being introduced in proof thereof. There was also introduced a transcript of the evidence of the plaintiff in error at the preliminary hearing of Cherry, and also a transcript of an unsworn statement made by the plaintiff in error taken before the county attorney, in substance the same as her testimony at the preliminary. The plaintiff in error testified in her own behalf and explained her change of testimony. Her explanation is not entirely satisfactory and yet it is not unreasonable.

Analyzing the record, there is no proof of the falsity of the testimony of the plaintiff in error on the trial of Cherry, on which the prosecution is based, except her own testimony given at the preliminary trial in that! case, and her unsworn statement to the county attorney and her statement to the sheriff. The main points sought to be proven by her testimony on that trial was that she recognized Cherry at the place and time of the killing of Tally. In the very nature of the case, it is impossible to prove that the plaintiff in error did recognize Cherry at that time, except by her statements, or from the circumstances surrounding the transaction. Such knowledge may be proven by circumstances when the circumstances are sufficient under the law governing circumstantial evidence. Ex parte Metcalf, 8 Okla. Cr. 605, 129 P. 675, 44 L. R. A. (N. S) 513; 21 R. C. L. 272, 273. Her recognition of Cherry at the time and place was not attempted to be proven on this trial by the circumstances, and proof thereof was probably not possible.

This court has heretofore adhered to the quantitative rule of evidence in perjury cases. In the case of Goltry v. State, 24 Okla. Cr. 127, 216 P. 485, the rule is stated thus:

“No person can be lawfully convicted for perjury on the unsupported testimony of one witness. The charge should be supported by at least two witnesses, or by one witness and corroborating circumstances.”

This rule, in different forms, has been followed by the courts generally, and the reason therefor is stated in 21 R. C. L. 272, as follows:

“That the contradictory evidence of one witness alone is never sufficient, as it merely establishes an equilibrium, and therefore additional weight is necessary to turn the proof against the defendant. The corroboration of a single witness for the prosecution must be by proof of independent and material facts and circumstances tending directly to corroborate the testimony of the witness, and must be of a strong character, and not merely corroborative in slight particulars, and it must contradict in positive terms the statement of the accused.”

There has been a softening of this rule to some extent by some of the courts in cases where a living witness to the corpus delicti cannot be had. U. S. v. Wood, 14 Pet. 430, 10 L. Ed. 527; Kahn v. U. S., 214 F. 57, 130 C. G. A. 494; Allen v. U. S., 194 F. 668, 114 C. C. A. 357, 39 L. R. A. (N. S.) 385. This case, however, does not fall directly within the terms of the rule as announced, but is a case of sworn statement against sworn statement; that is, her testimony in the final trial against her testimony at the preliminary corroborated by her statements to the county attorney and the sheriff.

The general rule is that the proof of contradictory statements, under oath, by an accused is not sufficient to convict of perjury. Oath nullifies oath, and it is incumbent on-the state to prove the falsity of the statement on which the prosecution is based; but in such case the falsity may be proven by the evidence of one witness, or by circumstantial evidence. It may not be proven by additional unsworn statements of accused. 21 R. C. L. 271, states the law in these words:

“A conviction for perjury cannot be sustained merely on the contradictory sworn statements of the defendant, but the state must prove which of the two statements is false, and must show that statement to be false by other evidence than the contradictory statement. This doctrine is based on the modern view of the law which holds that something more must be shown than is shown by the evidence of one witness in order to convict.”

In the case of State v. Burns, 120 S. C. 523, 113 S. E. 351, 25 A. L. R. 414, this court holds:

“One cannot be convicted of perjury merely upon his contradictory statement, but the state must show that the statement upon which the prosecution is founded is false by extrinsic evidence.”

See, also, in this connection: Smith v. Commonwealth, 180 Ky. 240, 202 S. W. 635, L. R. A. 1918E, 927; People v. McClintic, 193 Mich. 589, 160 N. W. 461, L. R. A. 1917C, 52; Bishop’s New Criminal Procedure (2d Ed.) § 931; Billingsley v. State, 49 Tex. Cr. R. 630, 95 S. W. 520, 13 Ann. Cas. 730, Annotations.

While we do not hold that there might not be exceptions to the quantitative rule, yet we believe that, under the record in this case, the state has.failed to prove the falsity of the testimony of plaintiff in error upon which the charge of perjury is based, by the quantum of proof required..

The case is reversed.

BESSEY, P. J., and DOYLE, J., concur.


source: Caselaw Access Project

author: DOY;LE, J.

license: Public Domain

text:
    MAJOR SEAY v. STATE.
    No. A-4822.
    Opinion Filed Feb. 14, 1925.
    (233 Pac. 766.)
    (Syllabus.)
    1. Indictment and Information — Objection to Sufficiency of Information by Demurrer — Objection to Introduction of Evidence on Ground of Faitee of Facts Stated to Constitute Public Offenses Objections to the sufficiency of an information should be taken ¡by a demurrer thereto,., as provided by Code of Criminal Procedure (section 2608, Comp. Stats. 1921). Our Code further provides: “When, the objections mentioned in section 2608 appear upon the face of the indictment or information, they can only be taken by demurrer, except * * * that the facts stated do not constitute a public offense, may be taken at tbe trial, under tbe plea of not guilty, and in arrest of judgment.” Section 2616. Under tbis provision, if it appears that tbe facts stated do not constitute a public offense, an objection to tbe introduction of evidence on that ground is sufficient to raise tbe question.

      2. Intoxicating Liquors — -Evidence" Insufficient to Show Mixture Capable of Use as Beverage. In a prosecution for having possession of intoxicating liquor, evidence held not to show that tbe liquor or compound in question was capable of being used as a beverage.
    3. Same — Evidence Insufficient to Support Conviction. In a prosecution for having possession of intoxicating liquor, evidence considered, and held insufficient to support a conviction.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Major Seay was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    M. B. Hartsell, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOY;LE, J.

The information in this case charges that Major Seay, '“did knowingly and unlawfully have the possession of certain spirituous liquor, vinous liquor, fermented liquor, malt liquor, and intoxicating liquor, to wit, one hundred (100) gallons of intoxicating liquor containing more than one-half of 1 per cent, of alcohol measured by volume,” with intent to sell the same.

On the trial the jury returned a verdict finding him guilty, and fixing his punishment at a fine of $50 and confinement in the county jail for 30 days. He has appealed from the judgment rendered on the verdict. The errors assigned question the sufficiency of the information to charge an offense, and the sufficiency of the evidence to sustain the conviction.

The record shows that the first objection to the sufficiency of the information was made when Otto Bales was sworn and called as the first witness for the state, at which time the defendant objected to the introduction of any testimony, for the reason that the facts stated do not constitute a public offense. It is contended that the information should have further charged that the liquor was capable of being used as a beverage.

Objection to the sufficiency of an information should be taken by a demurrer thereto, as provided by Code of 'Criminal Procedure. Section 2608, Comp. Stats. 1921. Our Code further provides:

“When the objections mentioned in section 2608 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.” Section 2616, Comp. Stats. 1921.

Under this provision, if it appears that the facts stated do not constitute a public offense, an objection to the introduction of evidence on that ground is sufficient to raise the question. However, where the objection to an information for a defect of form, apparent on the face thereof, is raised for the first time by objection to the introduction of evidence, it comes too late, and the objection should be overruled, if the facts stated constitute a public offense. In the absence of a demurrer thereto, we think the information sufficient.

The undisputed facts are that a deputy sheriff and constable went to the defendant’s farm, a few miles from Oktaha, looking for a man named Lewis, wanted on a warrant from McIntosh county; that they had information that Lewis was stopping at defendant’s place. They found Lewis there, but he escaped. The officers testified that they found in defendant’s barn two barrels of mash covered over with hay. A sample of the mash was analyzed, showing an analysis of 4.1 per cent, alcohol. They further testified that the mash was in a state of fermentation, and the same was not fit for beverage purposes.

On his own behalf defendant testified that he lived on his farm with his wife and two children; that on the occasion of the officers’ visit to his place he was not at home, and had been absent several days; that he knew nothing about the mash that was found in the barn, hidden in the hay, and had nothing to do with placing it there; that Adam Lewis, sought by the officers, came to his place two days before, and during that time himself and family were absent from home practically all of the time; that witness had never been convicted of any crime.

By numerous decisions of this court it is held that having possession of a compound or mixture containing as much or more than one-half of 1 per cent, of alcohol, and which is not intended and cannot be used as a beverage, is not an offense, as defined by section 7002, Comp. Stats. 1921.

Section 1, c. 42, Session Laws 1923-24, act approved March 22, 1924, makes it unlawful—

“to manufacture, ferment or possess any compound mixture, mash, wort or wash fit for distillation, or for the manufacture of beer, wine, distilled spirits, or other alcoholic liquors, the sale, barter, giving away or otherwise disposing of which is prohibited by the laws of the state of Oklahoma.”

This act was not in force and effect at the time the information was filed in this case, and on the undisputed facts the charge should have been manufacturing or attempting to manufacture intoxicating liquor, because the evidence shows that the alleged intoxicating liquor' was mash, and was not capable of being used as a beverage.

The conviction, in our opinion, is not sustained by the evidence, and for this reason the judgment of the lower court is reversed.

BESSEY, P. J., and EDWARDS, J., concur.


author: EDWARDS, J.

text:
    MONROE SMITH v. STATE.
    No. A-4852.
    Opinion Filed Feb. 14, 1925.
    (233 Pac. 246.)
    (Syllabus.)
    Criminal Law — Punishment—Attempt to Commit Burglary in Second Degree as Felony — Punishment for Attempt. An attempt to-commit burglary in the second degree is a felony, and the punishment therefor is fixed by the first subdivisión of section 2297, Compiled Statutes 1921, and shall, in no case, exceed one* half of the longest term of imprisonment prescribed upon a conviction for the offense so attempted.
    Appeal from County Court, Muskogee County; W. W. Cotton, Judge.
    Monroe Smith was convicted of an attempt to commit burglary in the second degree, and he appeals.
    Reversed and remanded with instructions.
    T. H. Davidson, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

Several assignments of error are presented; among them, that the county court was without jurisdiction for the reason that the offense charged is a felony, and, as we view this contention, it will dispose of the case. The other assignments will not be noticed. Under the provisions of section 2064, Comp. Statutes 1921, second subdivision, it is provided ithat burglary in the second degree is punishable by imprisonment in the penitentiary, not exceeding seven years, and not less than two-years. The statute providing punishment for attempts to commit crimes, section 2297, Compiled Statutes 1921, is as follows:

“Any person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows:
“First. If the offense so attempted be punishable by imprisonment in the penitentiary for four years or more, or by imprisonment in a county jail, the person guilty of such attempt is punishable by imprisonment in the penitentiary, or in a county jail, as the case may be, for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction for the offense so attempted.
“Second. If the offense so attempted be punishable by imprisonment in the penitentiary for any time less than four years, the person guilty of such attempt is punishable by imprisonment in a county jail for not more than one year.
“Third. If the offense so attempted be punishable by a fine, the offender convicted of such attempt is punishable by a fine not exceeding one-half the largest fine which may be imposed upon a conviction of the offense so attempted.
“Fourth. If the offense so attempted be punishable by imprisonment and by a fine, the offender convicted of such attempt may be punished by both imprisonment and fine, not exceeding one-half the longest term of imprisonment, and one-half the largest fine which may be imposed upon a conviction for the offense so attempted.”

This question was before this court in the case of Ex parte Isabell, 26 Okla. Cr. 1, 221 P. 517, in which the court held:

“The measure of punishment which may be legally imposed upon one convicted of attempting to commit the crime of burglary in the second degree is provided by subdivision 1 of section 2297, Compiled Statutes 1921.”

The conclusion in that case was 'based on the decision of the Supreme Court of North Dakota in Re King, 9 N. D. 149, 82 N. W. 423, and Ex parte Hope, 59 Cal. 423.

In view of the prior holding of this court that the punishment for an attempt to commit burglary in the second degree is fixed by the first subdivision of section 2297, Compiled Statutes 1921, such offense was a felony, and the county court was without jurisdiction.

The case is reversed and remanded, with instructions to the lower court to dismiss for want of jurisdiction.

BES-SEY, P. J., and DOYLE, J., concur.


author: DOYLE, J.

text:
    ARRILLA BROWN v. STATE.
    No. A-4734.
    Opinion Filed Feb. 14, 1925.
    (233 Pac. 248.)
    (Syllabus.)
    Kobbery — Evidence Sustaining Conviction. In a prosecution for robbery, evidence beld sufficient to sustain a conviction, and that no error prejudicial to the defendant was committed on the trial.
    Appeal from District Court, Oklahoma County; Cham Jones, Judge.
    Arrilla Brown was convicted of robbery, and she appeals.
    Affirmed.
    Orban C. Patterson, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case charges that Eva Napier and Arrilla Brown did commit the crime of conjoint robbery, while armed with a deadly weapon, by taking from the person of one Iva Stallans some $45.

A severance was asked and granted and on her separate trial the jury returned a verdict finding the defendant, Arrilla Brown, guilty and fixing her punishment at imprisonment in the penitentiary for a term of five years.

From the judgment rendered on the verdict, she has duly prosecuted an appeal to this court. It is contended that the verdict is not supported by the evidence.

The record shows that the complaining witness in his testimony fully identified the defendant, Arrilla Brown, as one of two women who stopped him and one W. H. Griffith near the viaduct on East Main street, in Oklahoma City, about 9 o’clock at night on the date alleged, and after compelling him, by the presentation of a revolver and threat's to kill him, to hold up his hands, the defendant, Arrilla Brown, robbed him of the contents of his pockets, about $45, while the other defendant held the gun on him. The testimony of W. H. Griffith was substantially to the same effect.

As a witness in her own behalf, the defendant, Arrilla Brown, denied having taken the money from the complaining witness as testified to by him, and stated that, with her codefendant, Eva Napier, met two men near the viaduct; that she went into an alley with the complaining witness and they had sexual intercourse, then they had a dispute over the money paid by him to her, and he threatened that he would get even with her.

The staite in rebuttal put the codefendant,Eva Napier, on the stand. She testified she was present when Arrilla Brown robbed the complaining witness, but she did not participate in the robbery, and did not receive any of the money, and that nothing immoral occurred.

This court has uniformly held that the credibility of witnesses, and the weight to be given their testimony, are matters for the determination of the jury. It is for the jury to determine whether it is convinced beyond a reasonable doubt of the defendant’s guilt. This court can only inquire whether the evidence was sufficient to warrant the jury in finding the defendant guilty.

Some exceptions were taken during the course of the trial to the admission of evidence bearing upon the issues in the case, but we are of the opinion that none of them were well taken.

It appearing that the defendant had a fair trial and was properly convicted, the judgment of the trial court is affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    JOE WALLACE v. STATE.
    No. A-4628.
    Opinion Filed Feb. 14, 1925.
    (233 Pac. 241.)
    (Syllabus.)
    Appeal and Error — Proceedings Presumed Regular — Burden on Appellant to Show Error and Injury. All presumptions are that the proceedings in a criminal case are regular and in conformity to law, and when an accused, on appeal, challenges the proceedings under which he was convicted, he must show affirmatively the irregularity of which he complains, and that he was injured thereby.
    Appeal from County Court, Cotton County; J. C. Norman, Judge.
    Joe Wallace was convicted of possession of whisky with the intention of selling, and he appeals.
    Affirmed.
    D. B. Madden and Walter Hubbell, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

It appears from the evidence that the plaintiff in error was a bachelor and that his father and brother-in-law lived with him; that on the 11th day of December, the sheriff and deputies went to his place and in a search found three half-gallon jars of whisky hidden in an out-house. They arrested the plaintiff in error and he was tried on the 6th day of February, following. In the course of the trial objection was made to the admission of the whisky in evidence, for the reason that it had been taken without a search warrant. The sheriff was then asked if he had a search warrant, and, over objection, stated that he had.

The search warrant was not introduced in evidence, ■but appears in the case-made as a part of the record. It •is regular on its face, reciting that it was issued upon affidavit. It was, however, not returned and filed in the court until the 15th day of March, which was subsequent to the trial.

The plaintiff in error argues that the court will not entertain the presumption that it was supported by sufficient affidavit, or that there was any affidavit whatever. The contrary, however, has been the uniform holding of this court. Error is not presumed, but, on the contrary, the presumption is that the trial was regular and fair, and that all the proceedings were in due form of law, and the burden is upon the party complaining to overcome this presumption, and to show that the proceedings were erroneous and that he suffered injury thereby. Beatty v. State, 5 Okla. Cr. 105, 118 P. 237; Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Thornsberry v. State, 8 Okla. Cr. 88, 126 P. 590; Stark v. State, 10 Okla. Cr. 177, 135 P. 441.

In the case at bar if there Was, in fact, no sufficient affidavit on which the search warrant was based, it was incumbent on the plaintiff in error to establish that fact. When he fails to do so the presumption is that the search warrant in question was regularly issued upon a sufficient affidavit.

Complaint is also made that the evidence is insufficient. The finding of whisky concealed at the place of residence of the plaintiff in error, however, is admitted, and there was proof of indications of the manufacture of whisky on the premises, and some other slight circumstances. The plaintiff in error offered no testimony. While the evidence on the part of the state is not strong, yet we believe there is sufficient evidence to sustain the verdict.

The case will be affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    MARION SHELTON v. STATE.
    No. A-5367.
    Opinion Filed Feb. 14, 1925.
    (232 Pac. 968.)
    (Syllabus.)
    Abatement of Prosecution — Death of Accused Pending Appeal. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and when it is made to appear to this court that the plaintiff in error has died pending the determination of his appeal, the cause will be abated.
    Appeal from County Court, Cleveland 'County; George Allen, Judge.
    Marion 'Shelton was convicted of unlawful possession of intoxicating liquor, and he appeals. Judgment abated because of the death of plaintiff in error.
    Ben F. Williams and J. E. Luttrell, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   DOYLE, J.

Marion Shelton was convicted in the county court of Cleveland county on a charge that he did have in his possession intoxicating liquor with intent to sell the same, and, in accordance with the verdict of the jury, was sentenced to pay a fine of $50 and be confined in the county jail for 90 days. From the judgment he appealed by filing in this court on December 15, 1924, a petition in error with case-made.

Since the appeal was taken and before the final submission of the cause, to wit, January 7, 1925, his counsel of record filed a motion to abate the proceeding on the ground that plaintiff in error, Marion Shelton, lost his life in an automobile accident in Osage county on the 29th day of December, 1924, and a few days thereafter was buried in Cleveland county, and showing that the same was duly served on the Attorney General and the county attorney of Cleveland county.

In a criminal action the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore considered and adjudged that the proceeding in the above entitled cause, and especially under the judgment therein rendered, has abated, and that the county court of Cleveland county enter its appropriate order to that effect.

BESSEY, P. J., and EDWARDS, J., concur.


author: PER CURIAM.

text:
    FRED K. SAGE v. PITMAN.
    No. A-5369.
    Opinion Filed Feb. 14, 1925.
    (232 Pac. 1119.)
    Mandamus by Fred K. Sage, against Leander G. Pitman, Judge of the Superior Court of Pottawatomie county.
    Writ denied.

      Arrington & Evans, for petitioner.
    George F. Short, Atty. Gen., John Barry, Asst. Atty. Gen., and Claud Hendon, Co. Atty., for respondent.
   PER CURIAM.

A petition for writ of mandamus was filed in this court December 15, 1925, which in substance alleges that an action is now pending in the superior court of Pottawatomie county, wherein petitioner, Fred K. Sage, with others, is charged with embezzlement and larceny in an information containing five counts; that said case is set for trial December 17th, and on December 13th, petitioner filed an application for a change of judge, on the ground of the bias and prejudice of the presiding judge, Leander G. Pitman, against this petitioner; that on December 15th said application came on for hearing in open court, and said judge of said superior court refused to disqualify as trial judge in said cause. On January 16, 1925, the cause was heard upon the application and the response thereto. Upon consideration of the same, it was the opinion of the court that the alleged facts did not disqualify said judge of said superior court from presiding at the trial of petitioner, Fred K. Sage. It was accordingly adjudged and ordered that the writ of mandamus as prayed for be denied.


author: BESSEY, P. J.

text:
    R. V. REAGOR v. STATE.
    No. A-4699.
    Opinion Filed Feb. 14, 1925.
    (232 Pac. 1119.)
    Appeal from District Court, Jackson County; Geo. S. March, Judge.
    R. V. Reagor was convicted of embezzlement, and he appeals.
    Affirmed.
    P. K. Morrill, for plaintiff in error.

      The Attorney General, for the State.
   BESSEY, P. J.

Plaintiff in error was convicted of embezzlement, with his punishment fixed at imprisonment in the penitentiary for a term of one year. Plaintiff in error was a traveling salesman for the Iten Biscuit Company, and as such was authorized to collect money for this corporation from its customers in his territory. There is evidence showing that he knowingly collected money for this' corporation, and failed to account therefor in accordance with his trust, and that he converted the money so collected, belonging to said corporation, to his own use and benefit. This cause was submitted on the record and oral argument in October, 1924. No briefs have been filed, from which fact this court might assume that the appellant has abandoned his appeal. Without acting on such assumption, however, we have examined the record, and find that the accusation was sufficient, that there is evidence sufficient to support the verdict, that the instructions of the trial court fairly stated the law of the case, and that the plaintiff in error otherwise was afforded a fair trial. The judgment of the trial court is therefore affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    C. C. RICE v. STATE.
    No. A-4796.
    Opinion Filed Feb. 14, 1925.
    (232 Pac. 961.)
    (Syllabus.)
    Intoxicating Liquors — Maintaining Place for Sale of Liquor — Evidence Sufficient. In a prosecution for maintaining a place where intoxicating liquors were kept for the purpose of sale, evidence held to sustain a conviction.
    Appeal from County Court, Creek County; Ben Brad-en, Judge.

      C. C. Rice was convicted of maintaining a place where intoxicating liquors were kept for the purpose of sale and he appeals.
    Affirmed.
    Creekmore Wallace, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case, filed January 22, 1923, in the county court of Creek county, charges that C. C. Rice and Sam Kilgore did keep and maintain a place commonly called “The Clean Cut Drug Company,” in the town of Bristow, where intoxicating liquors were kept for the purpose of bartering, selling, and giving away the same. On the trial the jury returned a verdict acquitting the defendant Kilgore, and returned a verdict finding the defendant C. C. Rice guilty as charged in the information, and fixing his punishment at confinement for 3Q days in the county jail, and a fine of .$250.

No brief in support of the assignments of error has been filed, and when the case was called for final submission, no appearance was made on behalf of appellant. Thereupon the Attorney General moved the court to affirm the judgment for failure to prosecute the appeal.

An examination of the record fails to disclose anything whereof appellant has just right to complain.

The judgment is therefore affirmed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    FRED HANNAN v. STATE.
    No. A-4765.
    Opinion Filed Feb. 16, 1925.
    (233 Pac. 249.)
    (Syllabus.)
    intoxicating Liquors — Affidavit for Search Warrant Must State Facts, not Mere Conclusions. It is insufficient for the issuance of a search warrant that an affiant or deponent shall swear, ever so positively, to the conclusion that liquor is stored or kept in violation of law in a described building, without affirmatively stating the facts upon which his knowledge is founded.
    2. Same — Facts Stated Must Be Incriminating and Such as Would Be Competent Evidence. The facts stated in an affidavit for a search warrant should be of such nature and kind as might be competent for the consideration of a jury in a prosecution for possession of liquor in violation of law.
    a. Facts should be shown indicative of an illegal purpose, as well as of possession.
    3. Same — Province of Magistrate. To permit the party making the affidavit to deal in conclusions or ultimate facts, instead of requiring the facts to be stated by.virtue of which the conclusion or ultimate fact is found, is delegating a judicial function to the affiant and substituting the affiant for the magistrate, leaving the latter a mere automaton, and his duties perfunctory.
    Appeal from 'County Court, Comanche County; John Manning, Judge.
    Fred Hannan was convicted of illegal possession of intoxicating liquor, and he appeals.
    Reversed.
    Stevens & Cline, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State. • !'■
   BESSEY, P. J.

Plaintiff in error, Fred Hannan, defendant in the trial court, was convicted of the illegal possession of intoxicating liquor, with his punishment fixed by the jury at confinement in the county jail for a period of 30 days and to pay a fine of $50.

At the time of the alleged offense, as set out in the information, and for a number of years prior thereto, the defendant had been operating a hotel at 616-618 E avenue in the city of Lawton. Shortly before this time he. had also been operating a hotel in an oil town, but had discontinued its operation, and, at the time of his arrest at his hotel in Lawton, he had removed the furniture ana furnishings of the other hotel into a large room of the Lawton Hotel, designed for a dining room, but not then in use as such.

On April B, 1923, several peace officers, acting under authority of a “John Doe” search warrant, went to this hotel and searched the premises, where they found about 3'0 gallons of grape juice, recently made, in the process of fermentation in the basement. They also found three pint bottles, each containing whisky, under an ice box in the room where the furniture and furnishings of the other hotel were stored. Among these furnishings they also found a new copper coil, such as might be used as a part of a still or might be used as a coil for an ordinary water heater. There were no evidences of glasses, funnels, or bottles found on the premises, or any other evidence tending to indicate that this was a place where intoxicating liquor was dispensed or distributed.

The defendant admitted that the wine or grape juice found in the basement of the hotel belonged to him; admitted that he was making it, as was his custom each year, for his own personal use and not for sale. There was no proof as to the percentage of alcohol contained in this grape juice, or that it was intoxicating. There was no positive evidence that there was more than a quart of whisky in the three pint bottles in the storage room, and the defendant claims that he knew nothing about that liquor; that several guests at the hotel had access to this room; and that several of them from time to time had things in storage there. The officers who made the seizure at the hotel said that the three or four doors through which an entrance could be had to this room were all locked.

The defendant was well known to the officers and people of Lawton, having been engaged in the hotel business at the place described for a number of years. Beyond the mere possession, there was no direct evidence of an intent to sell intoxicating liquor. The defendant claims that the “John Doe” search warrant was illegally issued; that the name “John Doe” was inserted in the affidavit supporting the search warrant and in the search warrant itself for the purpose of instituting a “fishing expedition” at this hotel — a scheme or device that would enable the officers to search, not only the property of the proprietor and his effects, but also the property and effects of the guests and others who might have lodging there.

What have been denominated “fishing expeditions” through the process of search and seizure have recently been condemned by the United States Supreme Court in the case of Federal Trade Commission v. P. Lorrillard Company, in an opinion written by Mr. Justice Holmes, 264 U. S. 298, 44 S. Ct. 386, 68 L. Ed. 696, 32 A. L. R. 786. If the name of the person whose property is to be searched be not known, it should be so stated, and, if possible, a description of the person should be given. United States v. Kaplan (D. C.) 286 F. 963.

The officers, in making the search pursuant to the terms of the search warrant in this case, did not disturb the guests at the hotel, or their effects. The defendant having suffered no injury in this regard, by reason of the warrant having been a “John Doe” warrant, had no cause for complaint on account of this defect.

The defendant complains further that the search warrant was illegal, and that the evidence obtained thereby was improperly admitted because the search warrant was issued upon an affidavit stating:-

“* * * That intoxicating liquors are being kept by John Doe, "and in the said John Doe’s possession, in a certain building situated at 616-618 E avenue in the city of Lawton, county of Comanche, and state of Oklahoma, for the purpose and with the intent of the said John Doe to sell the same in violation of the law, and for the purpose of committing a public offense.”

Upon this affidavit the magistrate found that “there is probable cause for believing that liquors are being kept by John Doe in the building situated at 616-618 E avenue,” for the purpose of selling the same contrary to law. The defendant’s criticism of the affidavit for a search warrant is that it stated no facts showing probable cause; that the statements made were mere conclusions; and that the finding of probable cause by the magistrate is therefore not based upon facts, but upon conclusions of the person making the affidavit.

The finding of probable cause is a judicial function, to be exercised by a magistrate alone, and it cannot be delegated to the maker of the affidavit. To permit the party making the affidavit to deal in conclusions or ultimate facts, instead of requiring the facts to be stated, by virtue of which the conclusion or ultimate fact is found, is in fact delegating a judicial function to the affiant and substituting the affiant for the magistrate, leaving the latter a mere automaton, and his duties purely perfunctory. The statements set forth in the affidavit must be of facts and of the nature and concerning things which would make the same statement competent as evidence in court, as tending to prove the same ultimate facts.

The provisions of the Oklahoma 'Constitution relating to searches and seizures are almost identical with those contained in the Constitution of the United States, and, as was said by this court in Gore v. State, 24 Okla. Cr. 394, 218 P. 545, this court has endeavored to follow the construction given those provisions of the federal Constitution by the federal courts.

The case of Giles v. United States, decided by the Circuit 'Court of Appeals for the First Circuit, 284 F. 208, involved the validity of a search warrant, based upon an affidavit stating that one D. F. Giles was engaged in the violation of the prohibitory law “by the illegal possession and unlawful sale of intoxicating liquor at the drug store of D. F. Giles on Main street, Concord, N. H., and at the Hotel Lenox, occupied by said D. F. Giles on said Main street, and in a garage of the said D. F. Giles, situated in the rear of the drug store above mentioned.” The court held that the affidavit should state facts tending to establish the grounds of the application or probable cause for believing that they exist, and that the affidavit, above set out, stated conclusions merely, and was insufficient, and that the facts stated in the affidavit should be of such nature and kind as might be competent for the consideration of a jury in prosecution for possession of liquor in violation of law. In so holding the court said, among other things:

“No lawyer would have suggested and no judge would have permitted Lordan, testifying as a witness before a jury, to say that Giles was violating the National Prohibition Act by having illegal possession of intoxicating liquor at his drug store. He would have been required to state what he saw, or heard, or smelled, or tasted; that is, to give evidence on which the jury, under instructions of the court, could determine both as to the possession of liquor, as to whether it was intoxicating liquor, and as to whether possession of it was legal or illegal. The fact that Lor-dan’s affidavit was not in form, on information and belief, and that he bravely swore that Giles had illegal possession of intoxicating liquor, does not make his statement legal evidence of facts. It is not enough that the form of this affidavit leaves it possible that the affiant might have personal knowledge as to the possession of intoxicating liquor and as to facts tending to show that such possession was illegal. It should have affirmatively appeared that he had personal knowledge of facts competent for a jury to consider, and the facts, and not his conclusion from the facts, should have been before the commissioner.”

In United States v. Kaplan (D. C.) 286 F. 964, the court said:

“It is insufficient for the issuance of a search warrant that an affiant or deponent shall swear, ever so positively, to the conclusion that, liquor is stored in violation of law in a described building, without affirmatively stating the facts upon which such knowledge is founded, the determination of whether or not the facts proven satisfy of the existence of the grounds of the application or that there is probable cause to believe their existence being a judicial question.”

What has been said applies particularly to the latter part of the affidavit relating to the purpose for which the liquor was kept. Facts should be shown indicative of an illegal purpose, as well as of possession. Atlantic Food Products Corp. v. McClure (D. C.) 288 F. 982; United States v. Harnich (D. C.) 289 F. 256.

To keep in line with the federal decisions upon this point, it becomes necessary to hold that the affidavit in this case stated conclusions only, and was therefore insufficient to give the magistrate information upon which he could judicially find from specific facts that probable cause existed for the issuance of the warrant. The affidavit should have stated some fact or circumstance indicating that this was a place of public resort, in bad repute, where intoxicating liquors were consumed or sold;' or some fact or circumstance indicating that persons went there to drink or to obtain liquor; or some other fact or facts indicative of the purpose of the defendant to violate the law.

At the trial there was some testimony tending to show that the place owned and managed by the defendant was a kind of rooming-house hotel, where transient lodgers and others came and left at will, and that it bore a bad reputation as a place where intoxicating liquor could be obtained. This brought it within the rule announced by this court in Glover v. State, 24 Okla. Cr. 227, 219 P. 725, where it was held that, in a prosecution for illegal possession of liquor, in a place of business or public resort, the reputation of the place as being a place where intoxicating liquors were sold or dispensed might be shown.

Because of the conclusions reached that the affidavit for the search warrant to search defendant’s hotel was insufficient, it will not be necessary to treat the other assignments of error urged by defendant. •

The judgment of the trial court is reversed.

DOYLE and EDWARDS, JJ., concur.


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    FRANK HINSON v. STATE.
    No. A-4609.
    Opinion Filed Jan. 17, 1925.
    Rehearing Denied Feb. 16, 1925.
    (232 Pac. 955.)
    (Syllabus.)
    1. Indictment and Information — Information Charging Rape in First Degree and Alleging Female to Be “Person of the Age of 17 Years” not Duplicitous. An information which charges rape in the first degree by means of force, overcoming resistance, and alleges the female to be “a person of the age of 17 years,” does not| charge more than one offense, as in such cases an allegation as to the age of the female is surplusage.,

      2. Appeal and Error — Error Favorable to Appellant — Conviction of Rape in Second Degree 'upon Proof of Rape in First Degree. In a prosecution for rape, committed by force, overcoming resistance, as defined by Comp. iStats. 1921, §■ 1834, subd. 4, and classified as rape in the first degree, where the court submits the issue and the jury find the defendant guilty of rape in the second degree, as defined by subdivision 2, where under the evidence he should have been convicted of rape in the first degree, the defendant cannot be heard to complain, because the error was clearly to his advantage, and the law never considers a question of erroi| except in behalf of those who are injured thereby.
    3. Appeal and Error — Necessity for Objections Below — In Prosecution for Rape in First Degree!, Objection to Charge on Second! Degree. In a prosecution for rape in the first degree, a defendant convicted of rape in the second degree cannot complain that the court charged the law of rape in the second degree, when the evidence did not justify such a charge, where the record shows no objection made or exception taken to this part of the charge in the court below.
    Appeal from District Court, Caddo County; Will Linn, Judge.
    Frank Hinson, convicted of rape in the second degree, appeals.
    Affirmed.
    H. J. Mackey and Morgan & Osmond, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction, rendered on the verdict of a jury finding the defendant, Frank Hinson, guilty of rape in the second degree, and fixing his punishment at imprisonment in the penitentiary for a term of five years.

The information in this case charges that in Caddo county, on the 12th day of July, 1922, the defendant, Frank Hinson, did “then and there, intentionally, unlawfully, willfully, and feloniously, violently forcibly rape, ravish, and carnally know and have sexual intercourse with one Josie Johnson, a female person of the age of 17 years, against her will; that the said Josie Johnson then and there resisted and her resistance was overcome by force and violence used upon and against her (the said Josie Johnson) by said Frank Hinson, in committing said rape; that the said Josie Johnson was not then and there the wife of the said Frank Hinson.”

To this information the defendant demurred on the following grounds: That more than one offense is charged and that the facts stated do not constitute a public offense. The demurrer was overruled, exception reserved.

It is contended that the information is insufficient to charge rape in the first degree; that it does not allege the defendant did commit an assault; that it is vague, indefinite, and uncertain, and does not sufficiently state the facts constituting the alleged offense, so as to enable the defendant to plead jeopardy in bar of a subsequent- prosecution; and that it is duplicitous.

There is no merit in the contention. The information contains surplusage and redundant matter as well as useless repetition, but it contains a sufficient charge of rape, where the sexual intercourse is accomplished with a female, not the wife of the perpetrator, defined by fourth subdivision of section 1834, Comp. Stats. 1921, as follows:

“Where she resists but her resistance is overcome by force and violence.”

In an information charging rape by force and violence, overcoming of resistance, an allegation as to the age of the female is surplusage. However, if the allegation in the information in this case, to wit, “a female person of the age of 17 years,” had been followed by allegation of previous chaste and virtuous character, then the information would charge rape as defined (second subdivision of section 1834), and would have only charged rape in the second degree. It follows that the demurrer thereto was properly overruled.

The evidence shows that Josie Johnson, the prosecutrix, 17 years of age, lived with her widowed mother, in the town of Cement; she had known the defendant about 3 months prior to the date alleged. He was employed as an oil well worker, and was past 20 years of age; on the date alleged she was visiting her friend, Miss Ray, who lived about one-half mile from Cement. That evening about 8 o’clock she and Miss Ray were sitting in a Buick car with a man by the name of Culpepper in front of a drug store in Cement. The defendant drove up in a Ford car and asked Culpepper for one of his girls. He answered, “All Tight, which one do you want?” The defendant said, “Josie.” The four then decided to go out in the country to a Holiness Church meeting. The defendant said he knew where the church was and with the prosecutrix he started in his car leading the way. After going a few miles defendant said he was tired of taking the lead and he stopped. Culpepper and Miss Ray passed them. The defendant followed a little ways, then turned into a lane and stopped his car. He then by force and violence, overcoming her resistance, accomplished an act of sexual intercourse with the prosecutrix.

She testified that the defendant drove out to the side of the road and stopped the car, then put his arms around her and began to kiss her; that she tried to make him quit and told him to quit, then he put his hand up under her dress and she kicked him; that she cried but did not scream or call for help, because it was a lonely place; that she bit him, and kicked him, and fought him until her strength gave out, then he overpowered her and accomplished an act of sexual intercourse; that she never had sexual intercourse before; that the defendant then drove her home; that she went into the house and immediately made complaint to her mother and her oldest sister. They each testified that her clothing, including her dress, was bloody; that her hair was disordered and her body was wet with perspiration ; and that she had been crying. The authorities were notified immediately and a few hours later the defendant was arrested.

Dr. Jesse Byrd testified that he was called to examine the prosecutrix the next morning and found abrasions on the vulva, the hymen ruptured and several bleeding points on the vagina; that she wras still bleeding from the rupture and abrasions; that from his examination his opinion was that the prosecutrix had been a virgin up to the time the hymen was ruptured.

The officers and the roommate of the defendant testified that they saw no evidence of blood on his underwear at the time of his arrest. Testimony was introduced regarding the size of a seat of a Ford car and to show that an act of sexual intercourse would have been impossible in the car as detailed by the prosecutrix.

As a witness in his own behalf, the defendant admitted that he, Culpepper, and the two girls had a conversation which resulted in his taking the prosecutrix riding in his Ford, but, however, says that she rather forced herself into going with him. He admitted stopping by the side of the road and admitted taking liberties with the prosecutrix, such as kissing and fondling her, but claimed that this was done with her consent. He positively denied that he attempted to have any improper relations with her, and .denied having sexual intercourse with her.

The instructions of the court submitted the issue of rape committed by means of force, overcoming resistance, as defined by section 1834, fourth subdivision, and classified as rape in the first degree (section 1837), and submitted the issue of statutory rape as defined by section 1834, second subdivision, “where the female is over the age of 16 years and under the age of 18, and of previous chaste and virtuous character,” and classified as rape in the second degree (section 1837). No objection was madé or exception taken to the instructions given by the court. It is now claimed that the court erred in submitting the issue of rape in the second degree.

Sections 2694, 2739, and 2740, Comp. Stats. 1921, in substance, provide that a defendant may be convicted of the offense charged, or of any lesser degree thereof, or of any offense necessarily included within the charge.

This court is firmly committed to the rule that, if the evidence demands a conviction of a higher degree of the offense charged than that for which he was donvicted, and does not warrant an acquittal, the defendant is not entitled to a new trial on the ground that, under instructions so permitting, the jury found him guilty of a lower degree.

In Hunter v. State, 6 Okla. Cr. 446, 119 P. 445, it was held:

“If error has been committed by the conviction of a defendant for statutory rape in the second degree, when under the evidence he should have been convicted of statutory rape in the first degree, the defendant cannot be heard to complain, because the error was clearly to his advantage. The law never considers a question of error except in behalf of those who are injured thereby.”

See Penn v. State, 13 Okla. Cr. 106, 164 P. 992, L. R. A. 1917E, 668.

In Stewart v. State, 9 Okla. Cr. 327, 131 P. 725, it is said:

“In this case the instructions submitting the issue of manslaughter in the second degree were not excepted to by the defendant, and errors can be made available on appeal only by exceptions duly taken on the trial.
“If the jury in mercy or sympathy for the defendant or by mistaken view of the law or the facts finds the defendant guilty of manslaughter in the second degree, in a case where the law and the facts make the crime murder or manslaughter in the first degree, it is an error in favor of the defendant of which the law will not take cognizance and of which the defendant cannot, complain. Where the issue has been submitted, the jury have the undoubted power to fix the crime in the lowest degree, when it ought under the law and the evidence to be fixed in a higher degree.”

See Wilmoth v. State, 20 Okla. Cr. 453, 203 P. 1055, 21 A. L. R. 590; Lytton v. State, 12 Okla. Cr. 204, 153 P. 620; Irby v. State, 18 Okla. Cr. 671, 197 P. 526.

After a careful examination of the record, we conclude, that there was no error which could have been prejudicial to the defendant. From all the evidence in the case, carefully considered, we think the defendant ought to be .thankful that the jury dealt so leniently with him.

The judgment of the lower court is affirmed.

MATSON, P. J., and BESSEY, J., concur.


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    M. C. McCLINTOCK v. STATE.
    No. A-5357.
    Opinion Filed Feb. 4, 1925.
    Rehearing Denied Feb. 16, 1925.
    (232 Pac. 853.)
    (Syllabus.)
    1. Appeal and Error — Review—Sufficiency of Evidence — Affirmance. Where the only question raised by the appeal is the sufficiency of the’ evidence to support a conviction, this court will examine the record, and, if the evidence is sufficient, the conviction will be affirmed.

      2. Homicide — Evidence Sufficient to Sustain Conviction of Murder. Evidence examined, and found to amply sustain the verdict.
    Appeal from District Court, Washington County; H. C. Farrell, Judge.
    M. C. McClintock was convicted of murder, and he appeals.
    Affirmed.
    Arthur Fitzpatrick, for plaintiff in error.
    '■ George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This court has not been favored with written briefs, but the case was orally argued by counsel for plaintiff in error and the Assistant Attorney General, at which time the only reason urged for the reversal of the case was that the evidence was insufficient to sustain the verdict. We have examined the record, and find that the evidence was entirely circumstantial and shows in substance the following state of facts.

On February 23, 1924, the deceased, E. C. or Ed Put-man, was living on the west side of Bartlesville in a four-room house. He was a widower. A woman by the name of Cordie Bolen was his housekeeper. About 9 o’clock on the evening of that date some one fired a shotgun, loaded with No. 4 shot, through the window of the house, instantly killing the said Putman. The sheriff and others were called, and made an examination that night and again the next morning. There was a hole some 6 inches in diameter in the window pane which was made by the shots. Wads from the shotgun shell were found inside the house. About 200 yards or such a matter from the house was a large signboard, and behind this indication of where a horse had stood and tramped around. Fresh tracks led from this place to near the window of the house of the deceased, circled, and led away. The ground was wet and muddy, and, from the signboard, the testimony is that on the next day the horse tracks were followed to the house of the plaintiff in error. There a horse belonging to the plaintiff in error was found tied in a barn. This horse was sweaty, and looked as though he had been ridden. A wet saddle blanket was found nearby. The tracks indicated that the horse making them had recently had his shoes pulled, and the measurement of the hoof of the horse and the track of the horse found at the home of plaintiff in error corresponded exactly with those at the signboard and near the window of the house of the deceased, and the tracks followed from the signboard to the house of the plaintiff in error. Also in the house of plaintiff in error was found a shotgun with shells loaded with No. 4 shot, the same size as that with which deceased was killed.

The evidence further showed that the woman keeping house for the deceased, and apparently living in meretricious relations with him, had formerly lived with the plaintiff in error, who was a widower, in like meretricious relations. She still had some of her belongings at his house, but had not lived with him for some months. The plaintiff in error had been endeavoring to get her to return to him, had called her over the ’phone on numerous occasions, and had talked with her about two or three weeks before that. This witness testified as follows:

“Q. What was that conversation? A. He wanted to know if I was ready to go out home with him, and I told him, ‘No; I was not going,’ and he kept on at me, wanting me to go, and I told him ‘No; I was not going,’ and he went to crying and says, ‘If you are not going to stay with me, you are not going to stay with Ed Putman.’
“Q. Anything else said? A. I just looked at him and he says, ‘Do you want me to show you?’ and I says, ‘No.’ ”

The state also introduced two letters written by the plaintiff in error to this woman, as follows:

“Jan. 14, 1924.
“0 Dear Corda, I cant help to think of you. I heard you hollard Mack just as plain as if you had been heer. It seems like a deth since I moved without you if you had told me you wood not come I would thot much of it. But I have thot so much of you an you no that an fought for you and help you when sick and you said you wood stay with me, and I thot you would be it look like you quitent me for Ed an you said you meet me three times and did not. Now dont lie to me no more. I want you to come back and stay an we will raise a boy an live happily you no I allways tryed to be good an help you, when others wood not. Write me an tell me when you will come back. I will call you when I come in town and I want you to meet me an have a talk. Ses come out home with me an I will take you back thair you no you think lots of me and I do you. So I will close for this time so good byby dear. Corda. From M. C. Mc-Clintock rite Bartlesville adress to me I wood come thair an taulk with you but I hate to if you want me to come rite an tell me to come an I will rite soon Dear.”
“Januey 26, 1924.
“Dear friend Corda I will rite you a few line to day as I am coming to town you no that I have help you when no one else wood but that all rite now I am not mad at you are no one, you thot I was yestard now we just as well speek and taulk an be good friends as well as for you to be made at me. You got mad last spring an wood not speak for a while but got all rite un till now. You welcome at me place now as you as ever. An I think if some others had not talked so to you you would not get mad. Now if you want to rite that all rite and if not it áll rite I wish you would aneer this any how M. C. McClintock.”

On the 19th of February, four days before the killing, the plaintiff in error wrote to the deceased, Ed Putman, this letter:

“Ed Putman you are givne a Short Notice to get Red of that Woman are you will get in bad. Don’t Ride no more in the Care. Your are give to the 23 ans She had better Be gone to Save you trouble. You mother need that money an you give her home.”

It will be observed that the date given the deceased to get rid of the woman was the 23’d, on the night of which the killing took place. The deceased had not received it, it was delivered by the post office after the killing.

The plaintiff in error admits writing the letters in question, but testified that he spent the night at home alone on the 23d and denies that he shot the deceased. There are other circumstances tending to sustain the theory of the state.

The rule has been often announced by this court that, where there is competent evidence reasonably sustaining the verdict, its weight is for the jury, and this court will not reverse the judgment. In this case the circumstances unerringly point to the guilt of the plaintiff in error. The acts and letters of plaintiff in error show infatuation, brooding, and a scarcely veiled threat. They have extremely strong evidentiary value. “Oh that my adversary would write a book,” said Job. The plaintiff in error is shown by his own admissions to have had a powerful motive for killing the deceased. Illicit love has been a fruitful cause of assassination. No doubt more have been prompted by this motive than any other single cause. History, both profane and sacred, as well as the criminal reports, teem with accounts of homicide prompted by this motive. Anderson v. State, 8 Okla. Cr. 90, 126 P. 840, Ann. Cas. 1914C, 314; Burns v. State, 8 Okla. Cr. 554, 129 P. 657; Brown v. State, 9 Okla. Cr. 382, 132 P. 359; Borah v. State, 12 Okla. Cr. 540, 160 P. 270.

The judgment of the trial court is therefore affirmed.

BESSEY, P. J., and DOYLE, J., concur.


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    ART ESTES v. STATE.
    No. A-4844.
    Opinion Filed Feb. 17, 1925.
    (232 Pac. 1117.)
    Appeal from County Court, Pawnee County; L. M. Kim-rey, Judge.
    Art Estes was convicted of a violation of the prohibitory liquor law, and he appeals. Judgment abated because of the death of plaintiff in error.
    McCollum & McCollum, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty Gen., for the State.
   PER CURIAM.

Plaintiff in error, Art Estes, was convicted on a charge of unlawfully transporting intoxicating liquor, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 3'0 days and pay a fine of $50. From the judgment he appealed, by filing in this court on September 14, 1923, petition in error, with case-made. When the case was called for final submission, his counsel of record moved to abate the proceeding on the ground that plaintiff in error had departed this life. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceeding do abate, especially under the' judgment rendered, has abated as to plaintiff in error, Art Estes, deceased. The county court of Pawnee county is directed to enter its appropriate order to that effect.


text:
    D. H. WALTER v. STATE.
    No. A-4624.
    Opinion Filed Feb. 17, 1925.
    Rehearing Denied April 11, 1925.
    (233 Pac. 240.)
    (Syllabus.)
    1. Indictment and Information — Duplicity of Information Waived by Failure to Object. Where it is claimed that an information in two counts charges two separate offenses, but no objection is made attaching the alleged duplicity in the trial court, and the record shows that the evidence and the instructions of the court all related to count 1, the verdict will not be disturbed on the ground that the information was duplicitous.
    2. Appeal and Error — Misconduct in Communication with Jury Held Harmless. Misconduct in communicating with the jury during their deliberations held harmless.
    Appeal from District Court, Stephens County; Cham Jones, Judge.
    D1. H. Walter was convicted of second degree forgery, and he appeals.
    Affirmed.
    Walter Hubbell and Ben F. Saye, for plaintiff in error.
    The Attorney General, and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

D. H. Walter, plaintiff in error, defendant below, was convicted of forgery in the second degree, with his punishment assessed at confinement in the penitentiary for a term of one year.

The information was in two counts; the charging part being as follows:

“The said D. H. Walter did then and there knowingly, fraudulently, willfully, unlawfully, and feloniously utter as true a certain forged instrument in writing, to wit, a check, said check being in words and figures as follows: ‘T. B. Jones, Duncan, Okl., Sept. 13, 1921. Pay to the order of W. H. Wall $110.00, one hundred and ten and no/100 dollars, to Security State Bank, Duncan, Okl., for 11 days’ labor to date. (Signed) T. B. Jones. (Indorsed) W. H. Hall,’ and at the time' said defendant so uttered said instrument as true and presented the same to the Security State Bank, a corporation, Duncan, Okl., for payment, and represented said check to be the true and genuine check of the said T. B. Jones, but was a forged check, and said defendant well knew that the check was a forgery and not the true and genuine check of the said T. B. Jones, and' the said check was willfully, unlawfully, fraudulently, knowingly, and feloniously uttered by the said defendant, with the willful, unlawful, fraudulent, and felonious intent of the said defendant to cheat and defraud the said 'Security State Bank, a banking corporation, of the said sum of money.
“Second Count
“That the said D. H. Walter, late of Stephens county, Okla., and within the jurisdiction of this court, then and there being, did then and there willfully, unlawfully, knowingly, fraudulently, and feloniously have in his possession a certain forged instrument, to wit, a check, said check being in words and figures as follows: T. B. Jones, Duncan, Okl., Sept. 13,1921. Pay to the order of W. H. Wall $110.00, one hundred and ten and no/100 dollars, to Security State Bank, Duncan, Okl., for 11 days’ labor to date (Signed) T. B. Jones. (Indorsed) W. H. Wall,’ with the willful, unlawful, fraudulent, and felonious intent of him, the said D. H. Walter, to cheat and defraud the Security State Bank, a banking corporation, Duncan, Old., by uttering the said check as true and genuine, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Oklahoma.”

Under our Code of Criminal Procedure an information must charge but one offense. From an inspection of this information it is hard to say whether two separate offenses were charged, or whether but one offense, differently stated in different counts. Since there was no demurrer filed on the ground of duplicity, and since the evidence and the instructions of the court indicate that defendant was tried for delivering, uttering, and offering a forged check for sale, as set out in the first count, in violation of the provisions of section 2078, Comp. Stat. 1921, the duplicity of the pleading, if such there was, was waived.

The defendant says that in the absence of the defendant and his counsel the judge communicated with the jury upon the law of the case, as shown by a statement of the trial court made a part of the record, in this wise:

“The jury retired Tuesday night about 10 o’clock, in charge of the bailiff, to consider of their verdict; about 10 o’clock a. m., Wednesday the bailiff handed me a note, from the jury, which was in substance as follows:
“ In the event the jury finds the defendant guilty, can the jury suspend sentence during good behavior?’
“I told the 'bailiff to tell them no. About 5 o’clock Wednesday afternoon the jury returned the following verdict:
“We, the jury drawn, impaneled, and sworn in the above-entitled cause, do upon our oath find the defendant, D. H. Walter, guilty as charged in the information herein, and assess his punishment at one year in the state penitentiary, and recommend a suspended sentence on good behavior.’
“Neither the defendant nor his counsel were present at the time the request was received from the jury, nor when the answer was returned, nor were they notified of the communication from the jury to the court nor from the court to the jury until the return of the verdict and the discharge of the jury.”

Defendant says that according to the former decisions of this court this vacates the verdict, citing Watson v. State, 7 Okla. Cr. 508, 124 P. 329; Ridley v. State, 5 Okla. Cr. 523, 115 P. 628; Henderson v. State, 18 Okla. Cr. 611, 197 P. 720; Thomas v. State, 13 Okla. Cr. 14, 164 P. 995.

If we were to follow literally the rule announced in the Watson and Ridley Cases, supra, this case should be reversed. But since the decisions in those cases we have adopted as a part of our Code of Criminal Procedure the statute known as the “harmless error” statute (section 2822, Comp. Stat. 1921), which reads as follows:

“No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record,.it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

In this case the communication was concerning a matter of slight import, resulting in no harm to the defendant. One of the purposes of the “harmless error” statute was to obviate new trials on technical grounds not affecting the substantial rights of the parties.

The Henderson Case, supra, is not in point here because in that case the communication was important, dangerous, and probably prejudicial; the same is true of the Thomas Case, supra.

There was ample evidence to sustain the verdict.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    Ex parte ARTHUR HIGH.
    No. A-3983.
    Opinion Filed Feb. 17, 1925.
    (233 Pac. 248.)
    (Syllabus.)
    1. Punishment — Convicted Defendant Properly Arrested and Ordered into Custody on Unexecuted Judgment. Where a convicted defendant is at liberty and bas not served bis sentence, and tbe same is not stayed, as provided by law, be may be arrested as on escape, and ordered into custody on the unexecuted judgment.
    2. Same — Expiration of Time Withoutl Imprisonment not Execution of Sentence. Expiration of time without imprisonment is in no sense an execution of tbe sentence.
    Application of Arthur High for writ of habeas corpus.
    Writ denied.
    R. C. Roland, for petitioner.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   PER CURIAM.

This was a habeas corpus proceeding brought by Arthur High, alleging that he is unlawfully restrained of his liberty by the sheriff of Pontotoc county.

It appears that petitioner was convicted on a charge of vagrancy before a justice of the peace in Pontotoc county and was sentenced to pay a fine of $100 and be confined in the county jail for a period of 30 days, from which judgment and sentence an appeal was taken to the county court of Pontotoc county; that petitioner appeared before said county court and entered a plea of guilty and was by that court sentenced to pay a fine of $100 and the costs of the action, and upon his failure to pay such fine and costs that he serve one day in jail for each day of said fine and costs; that there was filed in the office of the court clerk of Pon-totoc county a so-called stay bond, which bond was approved by the county court, conditions of said bond being that petitioner, Arthur High, would pay the state of Oklahoma said fine and costs; that, upon the filing and approval of said bond, petitioner was discharged from custody and nothing further was done in the case until the 9th day of May, 1921, when the sheriff of Pontotoc county, under the authority of a commitment, arrested petitioner and placed him in jail.

It is urged on the part of petitioner that the stay bond executed by petitioner and approved by the court, and upon which he was at one time discharged, is a full and complete satisfaction of the judgment, and when petitioner after 30 days failed to pay the amount of the fine and costs, it was the duty of the state to proceed to collect it by taking judgment therefor on said stay bond.

It is the opinion of the court that this case is ruled by the case of Ex parte Eldridge, 3 Okla. Cr. 499, 106 P. 980, 27 L. R. A. (N. S.) 625, 139 Am. St. Rep. 967, and the cases of Ex parte Steed, 6 Okla. Cr. 183, 117 P. 887, Ex parte McClure, 6 Okla. Cr. 244, 118 P. 591, Ex parte Oliver, 11 Okla. Cr. 540, 149 P. 117, Ex parte Exelton, 16 Okla. Cr. 111, 180 P. 868, and Ex parte Riggert, 33 Okla. 304, 125 P. 485.

In the Eldridge Case it was held that:

“Where a convicted defendant is at liberty and has not served his sentence, and the same is. not stayed as provided by law, he may be arrested as on escape and ordered into custody on the unexecuted judgment.”

And, further, that:

“Expiration of time without imprisonment is in no sense an execution of the sentence.”

The judgment being valid and the sentence unserved, the commitment of petitioner in the execution of the judgment was a legal and valid imprisonment.

For the reasons stated the writ was and is denied.


text:
    CITY OF ADA v. RUPPRECHT.
    No. A-4182.
    Opinion Filed Feb. 17, 1925.
    (233 Pac. 238.)
    (Syllabus.)
    1. Municipal Corporations — Statute Giving State Bight to Appeal not Applicable to Municipalities. The right of the state to appeal on question reserved by the representatives of the state in the trial court is based on section 2897, Comp. Stats. 1921, but this statute does not confer the same right on municipalities.

      2. Same. A legislative act granting the state the right to appeal does not toy implication grant the same right to municipalities existing under state law. The right of the sovereign to appeal must be authorized.
    3. Appeal and Error — Dismissal—Appeal not Authorized by Law. An appeal which is not authorized by law will, upon proper motion, be dismissed by this court.
    Appeal from County Court, Pontotoc County; Tal Crawford, Judge.
    A. V. Rupprecht was convicted in the municipal court of violating an ordinance of the City of Ada, and, on appeal to the county court, that court sustained his motion to dismiss the cause, and the City of Ada appeals.
    Appeal dismissed.
    T. P. Holt, for plaintiff in error.
    King & Crawford and H. T. Carney, for defendant in error.
   DOYLE, J.

This action was begun in the municipal court of the city of Ada by filing a complaint in the name of the said city, charging A. V. Rupprecht with a disturbance of the peace. He was adjudged guilty and sentenced to pay a fine of $20 and the costs, amounting to $8.25. He appealed from the judgment to the county court of Pontotoc county. When the ease came on for hearing in the county court, defendant filed a motion to dismiss, for the reason that the said court was without jurisdiction for the following reasons: Because the ordinance under which said defendant was convicted in the municipal court provides for a fine of not more than $20 and all costs that may accrue, and further provides that the defendant may be imprisoned for the nonpayment of the fine and costs.

Thereupon it was stipulated and agreed by and between the parties, through their respective attorneys, that the city of Ada is a municipal corporation, organized and existing under and by virtue of a special charter approved by the Governor of Oklahoma on the 10th day of May, A. D. 1912, jn conformity with the provisions of the 'Constitution, article 18, § 3.

The motion to dismiss was by the court sustained as follows:

“The court finds and holds that inasmuch as the charter of the city of Ada aforesaid provides for no jury trial in cases of violation of its ordinances, where the fine may exceed $20, it is in conflict with the Constitution and the statutes of ithe state of Oklahoma, and is herefore null and void, in so far as it pertains to trials for violations of the ordinances of the city, and that Ordinance No. 206, being an ordinance defining ‘disturbing the peace,’ and fixing a penalty for violation thereof in excess of $20, is null and void.
“The court further finds that under the Constitution and statutes of the state, the municipal court of the city of Ada could not fine the defendant in a sum, including costs, in excess of $20, and that, inasmuch as said municipal court did fine the defendant the sum of $20, and $8.25 costs, the court exceeded its power and jurisdiction and said judgment was and is null and void. The court finds further that said defendant did not waive his fight to a trial by jury by making bond and appealing to the county court.
“It is therefore adjudged and ordered that said motion of the defendant to dismiss the cause be sustained in all things. To which action of the court the said city of Ada excepts and reserves the right of appeal to the appellate court, which exceptions are allowed.”

To reverse this judgment the city served notices of appeal and filed in this court a petition in error with case-made.

Objection is made by counsel for defendant to the consideration of the questions sought to be presented on this appeal, on the ground that under the statute an appeal by the city does not lie on questions which arise upon the trial of complaints for violations of city ordinances.

In the case of Oklahoma City v. Tucker, 11 Okla. Cr. 266, 145 P. 757, Ann. Cas. 1917D, 984, construing the statute which provides:

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

—it was held that:

“The right of the state to appeal on a question reserved, by the representatives of the state in the trial court is based on [section 2807, Comp. Stats. 1921]; but this statute does not confer the same right on municipalities.”

And further that:

“A further legislative act granting the state the right to appeal does not by implication grant the same right to municipalities existing under state law. The right of the sovereign to appeal must be authorized.”

And further held that:

“An appeal which is not authorized by law will, upon proper motion, be dismissed by this court.”

No change in the statute above cited has been called to our attention. It may be well to say, in passing, that we think the judgment of the county court is sustained in Ex parte Johnson, 13 Okla. Cr. 30, 161 P. 1097, and Ex parte Monroe, 13 Okla. Cr. 62, 162 P. 233.

We are of the opinion that for the reasons stated in the opinion in the case of Oklahoma City v. Tucker, supra, this court is without jurisdiction to review the ruling of the county court dismissing the case.

The appeal herein is therefore dismissed.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    WILL OGLESBY v. STATE.
    No. A-5219.
    Opinion Filed Feb. 18, 1925.
    (232 Pac. 1118.)
    Appeal from County Court, Greer County; Jarrett Todd, Judge.
    Will Oglesby was convicted of' unlawfully manufacturing intoxicating liquor, and he appeals.
    Appeal dismissed.
    Stansell Whiteside, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, Will Oglesby, was convicted on a charge that he did manufacture intoxicating liquor, and in accordance with the verdict of the jury was sentenced to be confined for 30 days in the county jail and pay a fine of $100. From the judgment rendered on the verdict he appealed, by filing in this court on June 21/1924, petition in error, with case-made. The Attorney General has filed a motion to dismiss the appeal, on the ground and for the reason that no notices of appeal were ever served on the clerk of the court or the county attorney in this case, as is required by law. An examination of the record discloses that the motion to dismiss is well taken. The appeal herein is therefore dismissed.


author: DO'YLE, J.

text:
    A. C. FLOWERS v. STATE.
    No. A-4632.
    Opinion Filed Jan. 24, 1925.
    Rehearing Denied Feb. 21, 1925.
    (232 Pac. 958.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Possession — Evidence Sufficient. Evidence, upon the trial of an indictment for unlawful possession of intoxicating liquor, considered, and conviction affirmed.
    Appeal from County Court, Stephens County; Eugene Rice, Judge.
    A. C. Flowers was convicted of unlawful possession of intoxicating liquor, and appeals.
    Affirmed.
    E. H. Bond, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DO'YLE, J.

Under an indictment returned in the district court of Stephens county, and duly transferred to the county court, charging that in said county on the 4th day of November, 1922, A. C. Flowers did have in his possession about five gallons of whisky, with intent to sell the same, he was convicted and his punishment fixed at a fine of $50 and confinement for 30 days in the county jail. He has appealed from the judgment rendered on the verdict and assigns as error that the evidence is insufficient to support the verdict.

The evidence shows that on the date alleged, J. A. Brown, together with J. W. Willis and Carl Ray, all officers and acting under the authority of a legally issued search warrant, went to a house occupied by the defendant for the purpose of searching the premises for intoxicating liquors. When the officers arrived at the house, they noticed that all the window shades were down except two on the southeast corner. The defendant was sitting inside one of these windows. When he saw the officers, he jumped up and ran to the bath room, which was on the west side of the house. Willis and Ray went around the west side towards the back door, and as they passed the bath room window they heard some one flush the toilet. They found the back door locked; the defendant later let them in. '

Brown testified:

“I knocked on the door, When he unlocked it, I ran into the toilet, and it was practically full of whisky. We dipped up two bottles of whisky out of the stool. There was a five-gallon churn that had whisky in it and a three-gallon jug that had whisky in it. There was a small pitcher there with a spout to it and some pint bottles. There was about a gallon of whisky in the stool.”

The testimony of Willis and Ray was substantially the same as that of this witness.

At the close of the state’s evidence the defendant demurred to the evidence and moved the court to advise the jury to return a verdict of not guilty, for the reason that the evidence shows that there was not to exceed one gallon of whisky in his possession, and that it is not shown that he had it for an unlawful purpose, which motion was overruled and exception allowed.

As a witness in his own behalf, A. C. Flowers testified that he had just a pint, and had taken a drink when he saw the officers coming, and he stepped into the bath room and poured it into the toilet; that he did not have this whisky with intent to sell the same.

On cross-examination he admitted that he had been convicted twice of violating the prohibitory liquor laws, and had been convicted in the federal court at Wichita Falls, Tex., for conspiracy to violate the prohibitory liquor laws and served a term in the federal penitentiary.

We see no reason to doubt that this conviction was warranted by the evidence, and, finding no error prejudicial to the defendant, the judgment of the lower court is affirmed.

BUSSEY, P. J., and EDWARDS, J., concur.


text:
    LESS MAHANEY v. STATE.
    No. A-4820.
    Opinion Filed Feb. 21, 1925.
    (233 Pac. 239.)
    (Syllabus.)
    Appeal and Error — Failure to File Brief — Affirmance. Where a felony case is duly appealed to this court and no briefs filed for the plaintiff in error, the court will examine the record and, if no prejudicial error appears, affirm the case.
    Appeal from District Court, Cherokee County; J. T. Parks, Judge.
    Less Mahaney was convicted of adultery, and he appeals.
    Affirmed.
    J. I. Coursey, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The appeal in this case was filed on August 24, 1923, and no briefs have been filed either for the plaintiff in error or the state.

We have examined the record, and find no prejudicial error, and the case is therefore affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    LYMAN BOGGESS v. STATE.
    No. A-4596.
    Opinion Filed Feb. 21, 1925.
    (233 Pac. 239.)
    (Syllabus.)
    Receiving Stolen .Goods — Person from Whom Property Received Must Re Alleged and Proved. In an information charging the crime of receiving stolen property from a named person, the allegation of the person from whom the property is alleged to have been received is a material allegation, and must be proven as charged.
    Appeal from District Court, Ellis County; T. P. Clay, Judge. ■ ;
    Lyman Boggess was convicted of receiving stolen property, and he appeals.
    Reversed.
    Adkins & Kimbrough and Charles Keffer, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The information charges the plaintiff in error with having received from one Clarence Williams various items of personal property, knowing the same to have been stolen. The case has been well tried both on the part of the state, and the plaintiff in error. Various assignments of error are presented and argued in the briefs; among them the assignment that there is no proof that the plaintiff in error, if he ever received any part of the stolen property in question, received it from 'Clarence Williams, but that, if received at all, it was from one Austin Tillman and Joe Derrick, and from a careful examination of the voluminous record we believe this contention is correct.

In an information charging the receiving of stolen property, the name of the person from whom the property is received must be alleged, or, if unknown, that fact should be alleged. Hartgraves v. State, 5 Okla. Cr. 266, 114 P. 343, 33 L. R. A. (N. S.) 568, Ann. Cas. 1912D, 180; Lugo v. State, 93 Tex. Cr. R. 605, 248 S. W. 387.

In the case of Hartgraves v. State, supra, this court held:

“An indictment for receiving stolen goods should allege the name of the person from whom such goods were so received; and, if the name of such person is unknown, that fact should be alleged.”

And in the case of Lugo v. State, supra, the court held:

“Every material allegation of an indictment must be supported by proof, and, if it alleges the name of the owner of stolen property or the thief from whom the receiver is alleged to have gotten it as unknown, proof of that fact must be made.”

Even in those jurisdictions where it is not essential that the name of the person from whom the property is received should be alleged, if it is so alleged it must be proven. 17 Encyclopedia of P. & P. 894, note 4.

In the case of Huggins v. People, 135 Ill. 243, 25 N. E. 1002, 25 Am. St. Rep. 357, it was said:

“* * * But where the pleader, although unnecessarily, alleges the commission of the larceny, or burglary or robbery, by a particular person, or that the property was bought or received of a particular person, the allegation becomes matter of description, and must be proved as laid.” Commonwealth v. King, 9 Cush. (Mass.) 284; State v. Hazzard, 2 R. I. 474, 60 Am. Dec. 96; U. S. v. De Bare, Fed. Cas. No. 14, 935, 6 Biss. 358, 22 Cyc. 445A.

This material allegation was not proven by either direct or circumstantial evidence. We think the failure to prove the property was received from the person charged constitutes a fatal variance. It will not be necessary to notice the other assignments of error.

The case is reversed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    J. HENDRICKS v. STATE.
    No. A-4660.
    Opinion Filed Feb. 21, 1925.
    (233 Pac. 242.)
    (Syllabus.)
    Evidence — Ex Parte Written Statement by Codefendant After Arrest Held Inadmissible. An exj parte written statement made by one codefendant after his arrest, in the absence of the others, concerning an offense fully consummated, and implicating another codefendant, is inadmissible against the latter.
    Appeal from County Court, Beaver County; H. D. Meese, Judge. , I
    J. Hendricks was convicted of manufacturing whisky, and he appeals.
    Reversed.
    R. E. Dickson, for plaintiff in error.
   BESSEY, P. J.

J. Hendricks, plaintiff in error, defendant in the trial court, was convicted of manufacturing whisky, with his punishment assessed by the jury at confinement in the county jail for 30 days, and to pay a fine of $50.

The defendant was a farmer who owned and controlled 560 acres of land in Beaver county, 40 miles from the town of Beaver, the county seat. A portion of this land he rented to Art Sumner, a codefendant. The officers found a still and some whisky on the portion of the land occupied by Sumner; the whisky was found in Sumner’s chicken house. No one was in charge of the still at the time it was seized.

There was no direct evidence that Hendricks had anything to do with the operation of the still or the whisky found in the possession of Sumner. At the time of the latter’s arrest he made a written statement, which he delivered to the sheriff, as an explanation of his (Sumner’s) connection with the affair. The statment was as follows:

“On the 11th day of September, 1922, the three .Tiffney girls came to my place, which I had rented from Jay Hendricks; they came to help pull broom corn. At noon, at the dinner table, Alice Tift'ney said she had found something on Joe Hendrick’s place on her way over that morning, and described it as a lot of barrels, one of which was filled with stuff and a lot of pipe and other things. On the following Sunday, which was the 17th, I and Lum Blakley went to the place she had described, and found the complete outfit for making whisky, the same one that the sheriff brought to town. It was located on Joe Hendricks’ place between a quarter and a half of a mile from Jay Hendricks’ house. I made a contract with Lum Blakley to buy the still for $25. He was to help run the whisky and help peddle it until he got the money to pay for the still; he gave me the names of his customers. Tim Clifford and Bill Waters were among the names, and said all of the Mexicans at Follet would buy it. The price was $5 a quart or $17 a gallon. We moved the still that night to about a quarter or a half of a mile east of where it was to the place I have rented from Jay. Hendricks, and the place where the sheriff found it. On Friday night, the 22d of September, Lum Blakley run part of the whisky, and he and I went back Sunday night and run the balance, which was the whisky found in my chicken house on Jay Hendricks’ place. At the time the Tiffney girl told about the still it was talked about all over the neighborhood. I heard it talked about in the presence of Jay Hendricks.”

This written statement was introduced 'by the state over the objection of the defendant Hendricks. This was error. The statement, so far as it implicated Hendricks, was partially hearsay testimony — a statement not made under oath — and deprived the defendant of his right to confront and cross-examine Art Sumner. If Hendricks and Sumner were co-conspirators, the conspiracy was at an end, and the statement was not admissible on that theory.

For the reason that the evidence is insufficient to support the verdict, and because of the reception in evidence of the incompetent statement above quoted and other .incompetent testimony not recited, the cause is reversed.

DOYLE and EDWARDS, JJ., concur.


text:
    FRED FERGUSON et al. v. STATE.
    No. A-4635.
    Opinion Filed Feb.
    (233 Pac. 497.)
    (Syllabus.)
    Intoxicating Liquors — Unlawful Transportation — Sufficiency of Evidence. The evidence examined, and held sufficient to sustain a charge of illegal transportation of whisky as to one defendant, and insufficient as to the other.
    Appeal from County Court, Kay County; H. S. Burke, Judge.
    Fred Ferguson and Mrs. Fred Ferguson were convicted of transporting liquor, and they appeal.
    Affirmed as to Fred Ferguson,, Reversed as to Mrs. Fred Ferguson.
    B. C. 'Wieck, for plaintiffs, in error.
   BESSEY, P. J.

The defendants, plaintiffs in error here, were each convicted of transporting intoxicating liquor, with the punishment of each fixed at a fine of $50 and confinement in the county jail for a period of 30 days.

The evidence on the part of the state indicates that the defendant Fred Ferguson and three other men had been riding about on the streets of Ponca City in an automobile, engaged in a drinking debauch, that the defendant was in an advanced stage of intoxication. At the time of the arrest the car had been stopped and an officer found in the possession of one of the men at the, car a gallon jug partly full of whisky; other containers with whisky in them were broken at the rear of the car. while the officer was attempting to effect the arrest of the members of the party. Just prior to the arrest, defendant Mrs. Fred Ferguson and another woman had joined the men.

There is evidence tending to show that the men were acting in concert, and that some one or more of them had conveyed the whisky from some point unknown to this place.

The trial court committed no error in refusing to instruct the jury on circumstantial evidence, at least, so far as the defendant Fred Ferguson is concerned. While technically it was not error to refuse a proffered instruction on ■ circumstantial evidence as to the issues affecting Mrs. Ferguson, it would have been proper, in all fairness to' her, to have gjiven such an instruction.

Mrs. Ferguson was with her husband, who was in an intoxicated condition. She says that she had heard that her husband had been drinking and had just found him and his bibulous companions a few minutes before they were all arrested. Beyond being in her husband’s company, there was no evidence that she was implicated in transporting liquor. Moreover, a wife acting in concert with her husband, in his presence, in the commission of an offense, is presumed to be under his influence and duress. Section 1516, Comp. Stat. 1921; Neff v. State, 29 Okla. Cr. 2, 231 P. 898.

The judgment as to Mrs. Ferguson should be and is reversed.

The evidence, though conflicting and largely circumstantial, is sufficient to support the verdict as to Fred Ferguson as a principal offender, or at least as an aider and abbettor of his codefendant Evinger. The judgment against Fred Ferguson is therefore affirmed.

DOYLE and EDWARDS, JJ., concur..


text:
    WILLIAM BECKNER et al. v. STATE.
    No. A-4783.
    Opinion Filed Feb. 21, 1925.
    (233 Pac. 496.)
    (Syllabus.)
    Appeal and Error — Failure to File Brief — Affirmance. Where a felony ease is duly appealed in this court, and no briefs are hied for the plaintiff in. error, the court will examine the record and, if no prejudicial error appears, affirm the case.
    Appeal from District Court, Oklahoma County; James I. Phelps, Judge.
    William Beckner and Celia Johnson were convicted of adultery, and they appeal.
    Affirmed.
    J. Q. A. H,arrod, for plaintiffs in error.
    George F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The appeal in this case was filed on July 28, 1923', and no briefs have been filed either for the plaintiffs in error or the state.

We have examined the record and find no prejudicial error, and the ease is therefore affirmed.

BESSEY, P. J,, and DOYLE, J., concur.