text:
    ED ELLIS v. STATE.
    No. A-8019.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 282.)
    Hal Welch, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Choctaw county of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $50, and to serve 30 days in the county jail.

An examination of the record discloses that the evidence sufficiently sustains the judgment. A statement of facts is deemed unnecessary.

It is urged at length that the court erred in overruling defendant’s motion to dismiss the prosecution for the reason that defendant was not brought to1 tidal at the next term of court after which the information was triable, as required by section 2913, Comp. St. 1921. The information was filed at the October, 1929, term of court. Defendant was arraigned on January 6, 1930, was enlarged on bail, and was not tried until June, 1930. The record recites that, when he entered a plea of not guilty, he demanded an immediate jury trial, and the court ordered the case continued until the April term. No jury term of the county court was held after the October term until the April term following, at which defendant was tried.

Conceding for the purpose of this case that defendant was entitled to a dismissal for failure to accord him a speedy trial, yet such failure is not jurisdictional. The ruling of the trial court on defendant’s motion was not assigned as error in the motion for a new trial. This was necessary in order to preserve the question for this court. Dew v. State, 11 Okla. Cr. 581, 149 Pac. 917; Signs v. State, 35 Okla. Cr. 340, 250 Pac. 938; Brashears et al. v. State, 38 Okla. Cr. 175, 259 Pac. 665.

Some complaint is made to the instructions of the court. The instructions considered as a whole correctly state the law applicable as favorably to defendant as the evidence warrants.

No error requiring a reversal having been made to appear, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


source: Caselaw Access Project

author: DAVENPORT, P. J.

license: Public Domain

text:
    G. C. STEVENS v. STATE.
    No. A-8042.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 282.)
    A. J. Stevens, for plaintiff in error.

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of selling one pint of intoxicating liquor, and was sentenced to pay a fine of $50 and be confined in the county jail for thirty days. Prom which judgment and sentence the defendant has appealed.

The testimony on behalf of the state is, in substance, as follows: K. W. Greer and Charles Johnson, who were officers, gave two $1 bills to- George Applegate and asked him to go- and try to buy some whisky from the defendant and others. George Applegate testified he went to where the defendant Avas, in company with Lee Holder and Clyde Heady, and bought one pint of whisky and paid him for the same Avith the two $1 bills the officers had given him; he returned to- the cemetery where the officers were Avait-ing for him and delivered the pint of whisky to the officers. The other parties Avith Applegate testified, in substance, the same as Applegate.

The defendant denies he sold any Avhisky to Apple-gate, but admits that Applegate and the parties who were with him came to where he Avas at his mother-in-law’s and tried to buy some wine or whisky, and that Applegate was indebted to him in the sum of $5 borrowed money, and defendant states he told Applegate, if he had money to buy Avhisky, he Avanted him to- pay him what he o-Aved him; that Applegate gave him the two- $1 bills and he accepted it as part payment on the $5 indebtedness of Applegate. The wife of the defendant and the mother-in-law testified they were eating dinner when the prosecuting witness came to the house and the defendant went out and talked to them, but he never left the premises, and did not go- away, as stated by tbe prosecuting' witness, and get whisky for them. Some of tbe witnesses against tbe defendant had been convicted of crime prior to testifying in this case, and tbe prosecuting witness admits that when they started out that morning they bad three pints of wbisky and claim they broke them Avben they saw tbe officers.

Several errors have been assigned by tbe defendant and urged as grounds for reversal. Tbe first error assigned by tbe defendant is:

“That tbe court erred in overruling tbe motion of plaintiff in error for a new trial.”

This assignment covers all tbe errors assigned and urged by tbe defendant. One of tbe main questions urged by tbe defendant is that tbe prosecuting witnesses were promised immunity for tbe wbisky they bad if they would assist tbe officers in entrapping tbe defendant. The' defendant urges that tbe law of entrapment is a good defense in a criminal action, and cites, in support of bis contention, Warren et al. v. State, 35 Okla. Cr. 430, 251 Pac. 101. Paragraph 2 of the syllabus is as follows:

“Where one is charged with a crime and depends on the theory that tbe acts constituting an essential element of tbe alleged offense were instigated by officials or persons acting under their direction, tbe test of criminality is, Did the officers or those acting under them first suggest the commission of the criminal act or lure tbe accused into the commission of such acts or perform any of tbe essential acts constituting the offense? If so, a sound public policy will not uphold a conviction. But, if tbe first suggestion for tbe commission of the crime came from tbe defendant, and all of the essential acts constituting the crime were done by him, then tbe fact that tbe offi-icers or those acting under them, for tbe purpose of entrapment, furnished an opportunity and lent aid to tbe commission of the offense less than tbe performing of some essential act constituting the offense, or were present with and apparently assisting in the commission of the crime, constitutes no defense.”

The appellate courts do not look with favor upon the practice of officers hiring men to go out and entrap parties by buying whisky from them or causing them to commit a .crime and then returning and informing the officers of what they had done. However, the state is not precluded from prosecuting a defendant for selling liquor because the purchase wats made by the officers for the purpose of instituting the prosecution against them. Caveness v. State, 3 Okla. Cr. 729, 109 Pac. 125.

In the case of De Graff v. State, 2 Okla. Cr. 519, 103 Pac. 538, paragraph 4-c of the syllabus says:

“It is not improper for officers, charged with the duty of enforcing the laws, to employ detectives to ferret out and procure evidence for the prosecution of parties who violate the law.”

The holding of the court in De Graff v. State, supra, has been adhered to until the present time. After a careful reading and study of the record we find a conflict in the evidence which conflict was settled by the jury against the defendant. The instructions of the court correctly stated the law applicable to the facts in the case. The defendant was accorded a fair and impartial trial. No reason is apparent why the judgment should be disturbed.

The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    T. R. RINGO v. STATE.
    No. A-7930.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 284.)
    Stephenson, Proffit & Shackelford, for plaintiff in error.
    J. Berry King, Atty; Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Okfuskee county of manslaughter in the first degree, and his punishment fixed by the court at imprisonment for 10 years in the state penitentiary.

The record discloses that on October 22, 1929, the defendant, a negro, shot and killed one M. A. Combs, another negro, near the town of Boley. Judgment was entered on February 17, 1930; the appeal was lodged in this court July 25, 1930. No briefs in support of the appeal have been filed, and no- appearance for oral argument was made at the time the case was submitted. Where an appeal from a conviction for a felony is prosecuted to this1, court and is not supported by 'brief or oral argument, this court will examine the record for jurisdictional or fundamental errors, and will read the evidence to ascertain if it reasonably supports the verdict and judgment; if no such errors appear and the evidence supports the verdict and judgment, the case will, be affirmed.

On account of the gravity of the case, we have examined the record with care and find no material error. The record discloses that, on the day before the date charged, defendant and deceased had had some controversy over the division of some potatoes, jointly grown on defendant’s land. That on the morning of the homicide, deceased went to defendant’s barn as usual to get the team and wagon to pick cotton, being jointly grown by defendant and deceased. That defendant came out of his house to where deceased was, and after some controversy went back into the house, got a Winchester rifle, and walking out into his back yard near a- stack of cane, saw deceased looking over the fence at him and shot him in the chin, the bullet severing the spinal cord and producing instant death. When parties reached the deceased, he was lying on his back with a curry comb in his right hand and no weapon in his hand or about his pockets. Defendant claimed he thought he saw deceased make some move and he was afraid he was going to shoot him and fired in his self-defense. Defendant’s testimony does not support his claim of self-defense and he is unsupported by any other witness. The jury was lenient in finding- defendant guilty only of manslaughter in the first degree.

No reason to disturb the verdict appearing, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    ALLEN DUNKIN v. STATE.
    No. A-7992.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 285.)
    J. M. Springer, for plaintiff in error. ■
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county of the larceny of domestic fowls, and his punishment fixed by the jury at a fine of $100, and imprisonment in the county jail for a term of 30 days.

Defendant assigns numerous grounds of error, but for the purpose of disposing of this appeal it will only be necessary to consider one, viz.: That the closing argument of the county attorney was prejudicial and unfair, and was an appeal to the passion and prejudice of the jury, and prevented the defendant from having a fair and impartial trial.

It appears from the record that the county attorney made the following statement in his closing argument to the jury:

“You see Cynthia Bowers and Frank Dunkin sitting here in the court room. Why didn’t the defendant call them as witnesses?
“By Mr. Springer: The defendant objects to- that argument and requests the court to instruct the jury that the argument is improper and instruct the jury not to consider the argument.
“By the Court: Sustained, and the jury will not consider the statement. Remember the statements of the witnesses that have testified and depend entirely on such evidence that has been permitted to go to you in the tésti-mony.”

In Mulkey v. State, 5 Okla. Cr. 76, 118 Pac. 582, 533, in paragraph 7 of the syllabus, this court said:

“A prosecuting attorney must confine his argument to a fair discussion of the issues in the case and the legitimate argument on the part of the defendant, and, where a prosecuting attorney in his closing argument to the jury went outside of the record and appealed to the passions and prejudices of the jury, the strength of the testimony against the defendant will be considered, and, if the improper argument may have determined the verdict, a new trial will be granted.”

See, also, Watson v. State, 7 Okla. Cr. 590, 124 Pac. 1101; Morgan v. State, 9 Okla. Cr. 22, 130 Pac. 522.

This court fully discusses the question involved in this case in the cases of Hopkins v. State, 11 Okla. Cr. 385, 146 Pac. 917; Wells v. State, 29 Okla. Cr. 11, 231 Pac. 1087; Simpson v. State, 40 Okla. Cr. 58, 266 Pac. 783, and laid down the rule that a judgment will not be reversed because of this species of argument, unless the case is close on the facts. The record discloses that the facts in the case at bar are close, and for that reason we are constrained to hold that it was misconduct for the county attorney to refer to the fact that defendant had not called his codefendants as witnesses to testify in his behalf, and that such misconduct constitutes reversible error. One of the reasons for thinking that this argument of the county attorney may have influenced the verdict of the jury is that the jury fixed defendant’s punishment at a fine of $100 and 30 days in the county jail. If he was guilty of anything, it was a felony, and his punishment should have been comparable to the crime charged.

For the reasons stated, the case is reversed.

DAVENPORT, P. J., and EDWARDS, J., concur.


text:
    HOMER SEWELL v. STATE.
    No. A-7864.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 286.)
    J. B. Dudley, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was jointly informed against with Denton Sewell, charged with assault with a dangerous weapon with intent to do bodily harm, was tried separately, convicted, and sentenced to be imprisoned in the state penitentiary for two years. Motion for new trial was filed, considered, overruled, exceptions saved, and defendant appeals.

The testimony on behalf of the state shows that Dennis McKinney and Homer Sewell were brothers-in-law ; prior to the 20th of February, 1929, there had been some difficulty between Homer Sewell and the prosecuting witness; on the date of the difficulty, the prosecuting witness McKinney was in the town of Blanchard, Okla.; shortly after he arrived in town he was going down the west side of the street and saw the defendant and his brother Denton Sewell coming up the east side of the street; shortly thereafter the prosecuting witness saw the brothers turn across the street and come toward him; when they reached the center of the street they trotted until Denton Sewell came up to the sidewalk and accosted the prosecuting witness; words passed between them and they engaged in a fight; the prosecuting witness was getting the best of the fight, and Denton hollowed to his brother, who rushed up and drew a pistol and struck McKinney over the head several times; in the fight, Denton Sewell got out a pistol and it dropped to the sidewalk; two shots were fired by one or the other of the Sewell boys; one shot glancing the back of the prosecuting witness 'and setting fire to his shirt or jacket; the defendant in this case continued to hit McKinney over the head with his pistol until they were separated.

The defendant offered testimony to show that on a previous occasion the prosecuting witness had knocked him down at a skating rink, and he had been informed that the prosecuting witness said he was going to have trouble with him the first time he saw him. The defendant and his brother admit the morning they-went to town each of them carried his pistol, and after they reached town the defendant bought some shells a short time before the difficulty.

Denton Sewell contends that during the fight he took knucks from the prosecuting witness; that he turned these over to his father after he was placed in jail. No one present at the difficulty, or the officer who arrested the defendant and his brother Denton Sewell, saw the knucks; evidence was offered tending to show the number of wounds on the prosecuting witness’ head that had been inflicted by the defendant in this case and his brother. The prosecuting witness testified he had no weapon of any kind on his person but a small pocket knife, but was fighting Denton Sewell with his fists, and had him bent back over some hog wire fence on the sidewalk when he called to' his brother to come to his assistance. This is, in substance, the testimony.

Several errors have been assigned by the defendant, but in his brief the defendant has practically abandoned all the errors excepting that the judgment and sentence of the court is excessive and should be modified; citing a number of authorities in support of the power of the court to modify the judgment.

Section 2820, C. O. S. 1921, provides:

“The appellate court may reverse, affirm or modify the judgment appealed from, and may, if necessary or proper, order a new trial.”

This statute has been interpreted by this court many times. In Maddox v. State, 12 Okla. Cr. 462, 158 Pac. 883, 884, the court used the following language:

“When the record, discloses that substantial justice requires it, this court may modify the judgment rendered by reducing the sentence imposed.”

The question of reducing the sentence was considered by this court in the following cases: Peters v. State, 22 Okla. Cr. 245, 211 Pac. 427; O’Hara v. State, 24 Okla. Cr. 376, 218 Pac. 161; Turner v. State, 33 Okla. Cr. 97, 242 Pac. 1053.

The record in this case has been carefully studied with the view of ascertaining whether or not the facts would justify this court in reducing the sentence. The circumstances surrounding the difficulty, and the recklessness with which the pistol was used by the defendant, and the shots that were fired during the fight were such as to endanger not only the parties engaged in the difficulty, but others in the town when the shots were 'fired, as they went through the glass of a business house occupied by others. It was extremely fortunate that the prosecuting witness in this case, or some bystander, was not killed. Viewing the circumstances as favorable as possible to the defendant, we cannot reach a conclusion that the court would be justified in modifying the judgment rendered. The jurors are the sole and exclusive judges of the testimony, the credibility of the witnesses, and the weight they will give to' the evidence. This court has repeatedly held that where there was any competent testimony to' justify the jury in rendering its verdict it would not disturb the same. The testimony in this case in sufficient to sustain the judgment.

There being no sufficient reason for modifying the sentence, the judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JL, concur.


text:
    H. D. MURRAY v. STATE.
    No. A-8046.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 287.)
    Fogg & Melone, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the state.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to' as the defendant, was convicted of having possession of intoxicating liquor, and was sentenced .to pay a fine of $250, and to. be imprisoned in the county jail for 90 days. This is a companion case to Murray v. State, 51 Okla. Cr. 45, 299 Pac. 506. Under the provisions of sections 2619 and 2626, C. O. ,S. 1921, the defendant, in addition to his plea of not guilty, filed a plea of former conviction.

The oral testimony introduced in the case and the stipulation is that the evidence of the state witnesses in the former case is the same as that given in the instant case; the same offense as the term is used in the constitutional guaranty, section 21, art. 2, state Constitution. The statute just referred to does not mean the same offense, eo nomine, but means the same criminal act, transaction, or omission. In order to constitute a plea of former jeopardy, the offense in which a plea is made must be the same as that in which jeopardy is attached, but to make the offense the same it is not necessary that the information be identical in language. The offense may be different in form and yet be the same. 1 Bishop, Criminal Law, par. 1050.

“If the same testimony .will support both charges it is generally said that the offenses are the same.” Estep v. State, 11 Okla. Cr. 103, 143 Pac. 64; Hayes v. State, 43 Okla. Cr. 85, 277 Pac. 954.

The testimony in this case is admitted to. be the same as in No. A-7854. The record discloses that at the time charged the defendant with another man had possession of a still and whisky in a dugout on the defendant’s premises. The defendant has been convicted of having possession of the still. The state may not split and divide up an offense into different parts and punish the accused for the different parts. Hirshfield v. State, 11 Tex. App. 207.

If the state elects, through its authorized officers, to prosecute on any one of its phases or aspects, it cannot prosecute for the same criminal act or series of acts under color of another. The defendant, having been put in jeopardy in case No. A-7854, and convicted upon a charge of possession of a still, cannot be convicted on a charge of possession of whisky in connection with that still; the evidence all being obtained at the same time, at the same place, and under the same search warrant. Hayes v. State, supra.

The case is reversed and remanded, with directions to dismiss.

EDWARDS and CHAPPELL, JJ., concur.


text:
    FLORENCE JACKSON v. STATE.
    No. A-8024.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 288.)
    Tichenor & Bristow, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as the defendant, was charged by information in the county court of Oklahoma county, with the possession of a certain quantity of intoxicating liquor, and entered her plea of guilty, and on the 5th day of September, 1930, the court sentenced the defendant to serve 30 days in the county jail and to pay a fine of $50.

On the 8th day of September, 1930, the defendant filed her motion to' withdraw her plea of guilty and enter her plea of not guilty, which motion was overruled and defendant duly excepted.

The defendant assigns as error that the court erred in overruling her motion to' set aside her plea of guilty and refusing to' let her enter her plea of not guilty. The defendant in her motion to1 withdraw her plea of guilty and enter a plea of not guilty states that she did not know she would be fined $50 and sentenced to the county jail for a period of 30 days, but only that according to the information she had received from the officer arresting her that a plea of guilty meant only a small fine. She entered her plea of guilty without the advice of counsel; jhat she is not guilty of the offense charged and that she had nothing to' do with the beer in question and knew nothing about it; she was buying the restaurant where the beer was found and it had not been turned over to her at the time of the seizure of the liquor. This motion is verified by the defendant.

This court has held many times that a motion to withdraw a plea of guilty is addressed to the sound discretion of the trial court, and that a conviction and sentence upon a plea of guilty will not be disturbed unless there appears in the record a clear abuse of the court’s discretion. Kemp v. State, 35 Okla. Cr. 128, 242 Pac. 1116; McAtee v. State, 39 Okla. Or. 10, 262 Pac. 703; Daugherty v. State, 51 Okla. Cr. 104, 299 Pac. 925; Ney v. State, 51 Okla. Cr. 187, 300 Pac. 417.

The motion of the defendant does not show suck an abuse of discretion of the trial court as to warrant a reversal of this case.

The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: EDWARDS, J.

text:
    STATE v. BRENT NEWELL.
    Nos. A-8009 to A-8013.
    Opinion Filed Aug. 15, 1931.
    (2 Pac. [2d] 280.)
    J. Berry King, Atty. Gen., and Ed. Waite Clark, Co. Atty., for the State.
    W. Lee Johnson and Freeling & Box, for defendant in error.
   EDWARDS, J.

The five foregoing styled and numbered cases are attempted appeals by the state from a judgment in favor of defendant sustaining pleas of former jeopardy. The record in each of the cases is identical, except that the indictment in the different cases charges a different embezzlement. To' these indictments defendant filed what is styled “Plea in bar and motion to' dismiss indictment.” This instrument alleges, in substance, that in January, 1928, defendant was charged by information in five counts in the district court of Pawnee county with embezzlement as a bank official of the moneys of the Bank of Skeedee. The plea alleges, in substance, that an agreement was entered into by the county attorney, defendant’s counsel, attorneys for the State Banking Department, and with the approval of the district judge, ■that defendant will enter a plea of guilty to the charges contained in said information; that such plea of guilty ■shall embrace all matters and things with which defendant had been connected in said bank, including those em-bezzlements embraced in the information then on trial, and all other embezzlements from said bank and not included in the information; that pursuant to said agreement defendant did enter his plea of guilty and was by the court sentenced to serve a term of seven years in the state penitentiary on each of the counts in said information, the same to run concurrently. That it was fully understood and agreed by the prosecution and the defense and the trial court that such plea of guilty was intended to and did wipe out all embezzlements growing out of defendant’s connection with the bank. That thereafter, in violation of such agreement, the indictments here involved were returned. The court treated the motion as a plea of former jeopardy, heard evidence, and at the conclusion made a finding- of fact sustaining defendant’s contention, finding that the offenses were barred by reason of former jeopardy and entered judgment accordingly, among other things reciting:

“It is, therefore, adjudged by the court that the evidence introduced sustained the plea of former jeopardy and the indictment shall be dismissed, the defendant discharged from further custody and his bondsmen released.”

The state thereupon reserved a question of law, gave notice of appeal, and prepared and served case-made. The judgment in each case was entered on April 7, 1930; the appeal in each case lodged in this court October 14, 1930, more than six months from the date judgment was rendered.

An appeal may be taken by the state as provided by section 2807, Comp. St. 1921. The time within which an appeal must be taken applies equally whether the appeal is taken by the state or by the defendant, and in felony cases it must be taken within six months after the judgment is rendered. Section 2808, Comp. St. 1921. Where the appeal is not taken within the time fixed, this court does not acquire jurisdiction, and the attempted appeal will be dismissed. Self v. State, 8 Okla. Cr. 70, 126 Pac. 582; Howey v. State, 9 Okla. Cr. 453, 132 Pac. 499.

The attempted appeals are dismissed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    WILLIAM M. NEARY v. STATE.
    No. A-7807.
    Opinion Filed May 23, 1931.
    Rehearing Denied Aug. 15, 1931.
    (1 Pac. [2d] 819.)

      M. D. Hartsell, B. B. Wheeler, Thos. E. Neary, and Wm. N. Harrison, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of arson in the second degree and was sentenced to serve a term of two< years in the state penitentiary. ,

At the time charged defendant, with his wife and child, lived in the city of Muskogee in a house which belonged to his brother. The household goods belonged to defendant. The house ivas insured for $8,500, the household goods for $1,200. On the afternoon of June 4, defendant, his wife, child, and brother, drove from Muskogee to Tulsa and spent the night, and returned to Muskogee in the afternoon of June 5. About 2 o’clock a. m., of June 5, a fire alarm called the fire department to the bouse in question. When it reached there in about five minutes, the house was all in flames; several different rooms already were burned through the doors. The fire was finally put out, and an examination then revealed that the walls, which were mainly of beaver board and plaster, were cut or broken through in various places and .were stuffed with newspapers, and other inflammable material saturated with kerosene or gasoline. A can was found on the premises and a mop with oil on it, which apparently had been used as a torch. Remains of the furniture and fittings of the house were scattered about the floors.

As is usual in cases of this kind, the evidence connecting defendant with the burning of the house is circumstantial. One witness testified that on Saturday preced- , ing the fire on Tuesday morning, he was at the place and ' saw no bed clothing on the bed of one of the rooms, but there was a big pile of excelsior there, and in the walls of the rooms he saw holes with paper stuffed in them. Other witnesses testified that, contrary to the usual custom, the window shades were down a few days before the fire, and there was a knocking and hammering at the place and a rasping sound as of the use of a saw. There was some other evidence along the same line. The testimony of these witnesses was shaken considerably on cross-examination and was contradicted and to' some extent impeached by other evidence and by showing ill will of some of the state’s witnesses. The state was unfortunate in the mental qualifications of witnesses who testified as to the preparation for the fire, but that the walls were broken and stuffed with inflammable material, saturated with kerosene or gasoline, and that the fire was of incendiary origin, is conclusively proven and in fact is not controverted. This very strongly corroborates the testimony of the unsatisfactory witnesses as to the hammering and other noises at the house just prior to the fire. Defendant denied any knowledge of or connection with the burning of the property and introduced testimony of good character and to' show the property was insured for much less than its value.

The contention is made that the evidence is not sufficient to sustain the verdict and judgment, citing People v. Kelly, 11 App. Div. 195, 12 N. Y. S. 756, and other cases. This contention is directed more to the-credibility of the witnesses for the state and the reasonableness of their testimony than to its sufficiency. If the witnesses are to be believed, there is ample testimony to sustain the • judgment. It is hardly conceivable that any one could have prepared the house for an incendiary fire in the manner shown without at least the connivance of defendant. This evidence excludes any reasonable hypothesis of his innocence. The plan must have gone awry on account of the speed and efficiency of the fire department.’ The jury saw the witnesses, observed their appearance and demeanor on the stand, and it was for them to say whom they would believe or disbelieve. This court will not disturb the verdict on the weight of the evidence.

It is argued there was error in overruling the application for a continuance. The motion and supplemental motion in substance set out that the wife of defendant is a material witness; that she is physically ill and could not appear at the trial. That she is insane, but has lucid intervals, and at such times can detail a correct statement of facts and, if the case were continued two or three months, her mental condition would improve, and she would be able to give coherent testimony. Further, that other named witnesses were absent who if present would testify to a state of facts to' impeach one or more of the state’s witnesses. As to defendant’s wife, it was shown she had been insane two or three years; that the day following the fire she had been adjudged insane, and it appeared that it was problematical whether she would improve mentally. As to the other witnesses there is no sufficient showing of diligence. A careful scrutiny of the record convinces us that the court did not abuse its discretion in overruling the application.

Complaint is made that the court excluded competent evidence offered by defendant. In the main this is directed to testimony tending to discredit the state’s witnesses. In an instance or two> the evidence offered should have been admitted, but the matter excluded was of no particular significance, and in the light of the entire record could not have affected the verdict of the jury. This error was harmless. Section 2822, Comp. Stat. 1921.

Several other assignments are argued in the briefs, including the admission of incompetent evidence, misconduct of the county attorney, and prejudicial remarks of the court. These assignments have not been overlooked, but have had consideration. The case was closely tried by zealous and able counsel, and as may be expected some of the proceedings may be justly criticized. We are certain, however, that defendant had a fair trial, and that the verdict is just, and. that the court committed no error materially prejudicial to defendant.

The case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.


text:
    ROY E. FREEMAN v. STATE.
    No. A-8062.
    Opinion Filed Aug. 21, 1931.
    (2 Pac. [2d] 290.)
    Conn Linn and H. O. Bland, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county of murder, and was sentenced to life imprisonment.

The record discloses that, at the time charged, defendant, as a result of some quarrel over the use of a garage, shot and killed Charles Morton. Morton at the time was in an automobile attempting to enter the garage, and defendant was on the running board. In this altercation defendant himself was twice shot by the pistol in his own hands. The theory and testimony for the state is that defendant was shot accidentally in the scuffle with Morton, while the theory of the defense is that defendant was insane at the time, and that he shot himself immediately after shooting Morton in an attempt to commit suicide. After shooting Morton, he threw the pistol aside, and Mrs. Mary Morton, wife of Charles Morton, approached, and defendant picked up the pistol and shot her, severing the jugular vein, from which she died in a few minutes. He is prosecuted in this case for the murder of Mrs. Mary Morton. Defendant did not testify. Counsel for defendant made oral argument a.t the time the case was submitted, but have filed no briefs in support of the appeal.

The case was cleanly tried; the sole issue being the sanity or insanity of defendant. Upon this point a rather strong showing of mental disturbance is made.

Where a homicide is admitted, and the defense is made that defendant is not guilty of crime by reason of his insanity at the time of the homicide, the issue as to whether or not he was then sane or insane is a question of fact for the jury under proper instructions. Reed v. State, 23 Okla. Cr. 56, 212 Pac. 441. The instructions cover fully the law of insanity, and no exceptions were taken. The jury by its verdict has found the issue against defendant. There is ample evidence to support the judgment.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    L. S. STONE v. STATE.
    No. A-8065.
    Opinion Filed Aug. 21, 1931.
    (2 Pac. [2d] 602.)

      Jesse H. Dunn, for plaintiff in error.
    J. Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter called the defendant, was jointly charged by information with Bill Brown, was tried and convicted, and his punishment fixed at a fine of $50 and 30 days in the county jail, and has appealed.

The testimony on behalf of the state tends to show that Cecil Cozby, a deputy sheriff of Carter county, was in Murray county, looking for Bill Brown; that the officers started out on the Ardmore-Sulphur highway, and saw Bill Brown and the defendant L. S. Stone in a car driving toward the town of Sulphur; the officers turned their car and followed the defendants; defendants broke some jars in the car, the contents of which smelled like whisky. The defendants were arrested, charged with transporting liquor. During the taking of the testimony, objections were interposed by the defendant to the admission of the testimony on the ground that the officers did not have a warrant to search the car the defendant was riding in. No testimony was offered by the defendant.

The defendant has assigned several errors as grounds for reversal of his case. The record discloses that the officers saw the defendant, together with Bill Brown, driving along the highway, and, when they started to follow them, either the defendant or Bill Brown broke some jars, the contents of which the officers stated was whisky; when they caught up with the car, the whisky was running out of the car. Where officers see a crime committed, they are authorized to> arrest without a warrant. The court properly overruled the objections of the defendant to the admission of the testimony.

There is nothing in the record to warrant a reversal of this case. The defendant was given the minimum punishment. He was accorded a fair and impartial trial. The court properly instructed the jury as to the law. Finding no errors of sufficient merit to warrant a reversal, the judgment is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


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    CHARLIE ROTH v. STATE.
    No. A-8064.
    Opinion Filed Aug. 21, 1931.
    (2 Pac. [2d] 595.)
    Jesse H. Dunn, for plaintiff in error.

      J. Berry King, Atty. Gen., and J. H. Lawson, Asst. A tty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error, hereinafter referred to as- the defendant, was convicted of having possession of intoxicating liquor, and sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days; and appeals.

The testimony on behalf of the state tends to show that the sheriff and his deputies went to the home of the defendant and found no one at home; they searched the premises and in the henhouse found a one-half gallon jar of whisky. The defendant denies the whisky belonged to him. He admits he occasionally takes a drink, but states that he knew nothing about the whisky being in the hen-house, and that he was away from home the date the search was made by the officers.

The defendant assigns several errors alleged to have been committed in the trial which he deems sufficient to reverse the casei. The testimony in this case is conflicting. The testimony on behalf of the state shows that the whisky was found in the henhouse of the defendant. The defendant’s testimony denies he knew anything about the whisky. This conflict in the testimony has been decided by the jury against the defendant.

The only question to be considered is, Did the court properly instruct the jury as to the law. The defendant complains of some of the instructions of the court, but upon an examination of the record we find the defendant reserved a general exception to the instructions given by the court. If counsel desires to save an exception, to an instruction given by the trial court, he.should point out the particular instruction to which he desires to except, in order that the court may correct the error, if any. Summers v. State, 7 Okla. Cr. 10, 120 Pac. 1031; Maddox v. State, 12 Okla. Or. 462, 158 Pac. 883; Star v. State, 9 Okla. Cr. 210, 131 Pac. 542; Hess v. State, 9 Okla. Cr. 516, 132 Pac. 505.

The defendant was accorded a fair and impartial trial. There are no fundamental or prejudicial errors in the record. The judgment of the lower court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


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    M. A. McHENRY v. STATE.
    No. A-8031.
    Opinion Filed Aug. 21, 1931.
    (2 Pac. [2d] 596.)
    Rizley & Sweet, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Beaver county of the crime of grand larceny, and his punishment fixed by the court at imprisonment in the state reformatory at Granite for a period of tvro years and six months.

The evidence of the state was that J. E. Ingland was the owner of one grease gun for a caterpillar tractor and one eight-gallon cream can, all of the value of $35; that defendant lived about a mile and three-quarters from the home of Ingland; that on the 2d day of August, 1929, when Ingland finished using the tractor, he took it back to his home, but left the grease gun and cream can in the field where he had been working; that on the 4th day of August, Ingland went back to the field to get the grease gun and cream can and they were gone; that on the 29th day of August a search warrant was issued for defendant’s premises to search for this stolen property, and as a result of such search the property was found in the garage and blacksmith shop of defendant on his premises; that there was a man’s track leading from the field where the grease gun had been left, to the road, where it appeared from the car tracks that a truck had been stopped.

Defendant, testifying for himself, admitted possession of this property, but explained the same by saying that on the second day before his premises were searched, he had found the property by the side of the road about a quarter of a mile from where he lived, and had taken it and put it in his garage to keep until he could notify George McBroom, whose name appeared on .the cream can, that he had the property in his possession.

It thus appears from the evidence of the state that this property was stolen from Ingland without his knowledge and without his consent and was within a short time thereafter admittedly found in the possession of the defendant. Under this evidence there was only one question for the jury to determine and that was whether defendant took this property in good faith with the intention to return it to the owner, or took it in bad faith with the intention of converting it to his own use.

The trial court excluded evidence of the finding of other stolen property in the defendant’s possession at the time the stolen property was found. This • evidence was competent and should have been admitted.

In Morrow v. State, 23 Okla. Cr. 98, 212 Pac. 1008, this court said:

“Not every explanation, reasonable or unreasonable, of the possession of recently stolen property, or of the possession of property similar to' that stolen, will justify an acquittal. To so operate, the explanation should be both reasonable and worthy of belief.”

In Brinkley v. State, 37 Okla. Cr. 362, 258 Pac. 1071, this court said:

“The truthfulness of an explanation of possession of stolen property, although uncontradicted, must be determined by the jury.
“Whether an explanation respecting the possession of property recently stolen is reasonable or not is ordinarily a question for the jury, the same as any other question of fact.”

The jury were not bound to believe defendant’s explanation, and evidently did not do' so.

Defendant’s contention that the evidence is insufficient to support the verdict of the jury is without merit.

Defendant next contends that the court erred in refusing to give his requested instruction No. 5.

It was not error for the trial court to refuse to give this requested instruction for the reason that the court on its own motion had, in substance, given the same instruction.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    M. A. McHenry v. STATE.
    No. A-8032.
    Opinion Filed Aug. 21, 1931.
    (2 Pac. [2d] 597.)
    Rizley & Sweet, and Miles & Miles, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Beaver county of the crime of grand larceny, and his punishment fixed by the jury at imprisonment in the state reformatory at Granite, Okla, for a period of one year and six months.

The defendant was charged with having, on or about January 17, 1929, stolen from W. J. Learning, one Peter Wright anvil, one Heavy Duty vice, one post drill, two pair tongs, one bolt clipper, and one Champion Lancaster No. 40, all of the value of $50.

The evidence of the state was that Learning and the defendant were farmers living about a mile and a half apart and northwest of the town of Forgan, in Beaver county; that Learning had a blacksmith shop on his premises and this property stolen from him was kept in this blacksmith shop; that in November, 1928, Learning locked the property in his blacksmith shop and left the premises in charge of his brother who lived about one mile therefrom ; that some time after Learning left, the property was stolen and this fact reported by the brother to the sheriff; that about the 17th day of January, 1929, Learning returned to his home and then discovered that his blacksmith shop had been broken into' and the property taken; that on the 29th day of August, 1929, the sheriff and some of his deputies were searching the premises of the defendant for other stolen property, and in that search discovered this stolen property; that the officers called Learning, who identified the property as that stolen from him during his absence; that the property was locked up in defendant’s garage; that the only windows in the garage were so high that you could not see anything in the garage without climbing up to the windows; that some of the stolen property had certain identification marks placed on it by the owner, and that the other had marks on it placed there by the factory; that these identification marks had been tampered with and some of them obliterated; that other recently stolen property was found concealed in the garage at the time this property was found.

The defendant-did. not take the witness stand, and made no effort to explain his possession of this property.

It is contended first that the evidence is insufficient to sustain a conviction because the case rests entirely upon the possession of the alleged stolen property, and that said possession was not of recently stolen property.

The record discloses other circumstances than mere possession which tend to connect the defendant with the larceny of the property in question.

The property stolen consists largely of heavy metal tools that are not easily moved, that do not pass readily from hand to hand, and would not have any ready sale.

The general rule is that the possession of property recently stolen, unexplained, does not constitute a presumption of guilt, but creates an inference of guilt which may be sufficient with other incriminating circumstances to connect the prisoner with the larceny and warrant a conviction.

In the case at bar the possession is not disputed, but the contention is made that this possession was not so recent as to authorize a conviction.

In 36 Corpus Juris, 870, § 428, the rule is stated:

“Whether the interval of time between the larceny of the property and its possession by accused is sufficiently short or long to render the possession recent or remote depends upon the facts of the particular case, including the character of the property stolen, the test of recency being: Was the interval so short as to render it morally certain that there could have been no intermediate change of possession? The interval after the lapse of which possession will be considered remote is relatively short in the case of money, for the obvious reason that of all forms of property money is the easiest to dispose of; and as a general rule lengthens in the case of other property inversely with its salability, the presumption being held to arise in the case of property which does not pass readily from hand to hand at a time more remote from the theft than in the case of property readily transferable. The other circumstances of the case must be taken into consideration, however, and may control.” Citing numerous authorities in support of the rule.

In Wiley v. State, 92 Ark. 586, 124 S. W. 249, that court said:

“The question whether the possession of stolen property is recent does not depend wholly on the lapse of time, but the actions of accused and the nature of his claim to the property on his subsequently making a claim of title, and all the circumstances must be considered in determining whether the possession is recent or so remote that it may not be considered.”

In State v. Foulk, 59 Kan. 775, 52 Pac. 864, 865, that court said:

“Possession of stolen property by the defendant may be shown, even though at a period SO' remote from the date of the theft that a number of transfers of possession might have been made, and the jury would be authorized to take this circumstance into consideration in determining the guilt or innocence of the defendant. * * * It is only where the conviction rests on the possession alone that the rule requiring the possession to be so recent that it is morally certain that no change of possession after the theft could have taken place applies.”

The rule is that the presumption arising from the possession of stolen property which is not readily salable and does not pass readily from hand to hand prevails for a longer period of time than that of money. It has been held that possession after two, three, four and one-half, and eleven months is not too' long, and that such possession is a circumstance tending to show guilt. Mondragon v. State, 33 Tex. 480; Wiley v. State, 92 Ark. 586, 124 S. W. 249; Boehm v. United States (C. C. A.) 271 F. 454; State v. Miller, 45 Minn. 521, 48 N. W. 401.

In State v. Miller, supra, that court said:

“In a criminal prosecution for the larceny of goods discovered in the defendant’s possession, the fact of such possession, though considerable time may have elapsed (in this case 11 months) between the date of the larceny and the discovery, may be considered, in connection with other facts and circumstances tending to1 criminate the accused.”

In the case at bar, the time elapsing between the larceny of the property and its discovery in the possession of defendant was about eight months. Considering the character of the property stolen and the facts and circumstances in the case, this possession was not too remote, and the evidence of this possession concurrently with other recently stolen property was properly admitted and is sufficient to support the verdict of the jury.

Defendant next contends that the court erred in giving instruction No. 4. This instruction must be considered with instructions No. 6 and No. 10, and when considered together they fairly state the law on the possession of recently stolen property. When considered altogether, the instructions state the law of the case and are as favorable to the defendant as the evidence warrants.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    STATE v. B. W. WEINDEL et al.
    No. A-8209.
    Opinion Filed Aug. 21, 1931.
    (2 Pac. [2d] 599.)
    J. Berry King, Atty. Gen., W. C. Lewis, Asst. Atty. Gen., and J. A. Tillotson, Co'. Atty., for the State.
    John F. Pendleton, for defendants in error.
   EDWARDS, J.

This is an appeal by the state. Defendants were- charged in the county court of Nowata county with the unlawful tailing of fish. A demurrer to the information was by the court sustained. The state appeals.

The prosecution is based upon section 1, art. 5, c. 24, Session Laws of 1931, which section is an amendment and substitution for section 23, c. 35, Session Laws 1927, and reads:

“Sec. 1. That section 23, of chapter 35, of the Session Laws of 1927, be and the same is hereby amended to read as follows:
“ 'Section 23. It shall be unlawful for any person or persons to take, catch or kill any game fish as defined in section 15, of said chapter 35, from any of the streams, creeks, lakes, ponds or waters of this state other than privately owned ponds or lakes by any means, except with hook and line attached to a pole or rod, throw line or trot line; said trot line shall not contain more than 100 hooks, providing that it shall be unlawful to' fish with devices known as artificial devices containing more than 15 hooks, provided, however, that all fish not defined by section 15 as game fish may be taken from the waters of this state by means of nets or seines of any kind, the meshes of same, however, not to be smaller than 2Vz inches; provided, no seining or netting shall be done during the months of April and May, and provided further, that no netting or seining shall be done unless there shall be present some game ranger, deputy game ranger, state, county, or municipal or township peace officer, and providing further, that such fish may be taken by the use of gigs or spears; said gigs or spears to have but one point with not more than two barbs.”

The information charges defendants

“* * * qqq then and there * * * unlawfully catch and take fish with their hands from Big Creek, in Nowata county, Oklahoma, with the unlawful intent * * *to violate the provisions of Senate Bill No. 6, amending section 23, chap. 35, Session Laws 1927. * * *”

It is stipulated the fish so taken were “mud-cat” and not game fish as the same are defined by section 15, c. 35, Session Laws 1927. The only question before the court is, Does the information charge an offense under the statute above quoted? The inhibition in this section applies to “game fish as defined in section 15.” It does not forbid the talcing of fish other than game fish, except that in the first proviso' of the section it is made unlawful to fish with certain devices, and to this proviso is the further proviso that all fish other than game fish may be taken by nets and seines, etc., if there shall be a game ranger or other officer present, and further that such fish may he taken by gigs or spears.

The catching of fish other than game fish with the hands is colloquially called “noodling.” This term is applied in the rural sections! of the southwest and probably in other sections to the practice of feeling out and catching with the hands fish in holes or recesses, under rocks or the banks of streams. The word, as thus used, does not appear to be recognized in any dictionary. Its origin, so far as we are aware, is unknown. We must leave its source and derivation to the etymologist. It is likely a fisherman’s word such as “sniggling,” or “tickling,” which has not yet been accepted.

It is a well-settled principle of statutory construction that criminal statutes are not to be extended by construction to cases not fairly and clearly embraced in their terms; that is, the operation and scope of criminal laws shall not be construed to enlarge them by implication, but they shall be liberally construed. Where there is any well-founded doubt as to any act being a public offense, particularly where such act is not malum in se, the act must be clearly within the terms of the statute, or it must be excluded from its operation.

To catch nongame fish with the hands is not clearly forbidden by section 1, art. 5, c. 24, Session Laws 1931, supra. The application of the statute cannot be enlarged by construction to cover the admitted facts in this case. The taking of game fish with the hands is forbidden, but not nongame fish. McCord v. State, 2 Okla. Cr. 214, 101 Pac. 280; State v. Clifford, 3 Okla. Cr. 419, 106 Pac. 557; State v. Lawrence, 9 Okla. Cr. 16, 130 Pac. 508.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    BILLY McCOLLUM v. STATE.
    No. A-8030.
    Opinion Filed Aug. 21, 1931.
    (2 Pac. [2d] 291.)
    E. M. Carter, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Lincoln county of the crime of perjury, and his punishment fixed by the jury at imprisonment in the state penitentiary for ten years.

The evidence of the state was that there was a case pending and on trial in the district court of Lincoln county, wherein the state of Oklahoma was plaintiff, and Golden McCollum and Graham Hill were defendants, being charged with the robbery with firearms of the First National Bank of Prague, Okla.; that defendant was called as a witness in said cause on the part of the defendants and, after being duly sworn to testify the truth in said cause then on trial, testified that at 12 o’clock noon, on the 10th day of August, 1929, which was the hour the bank was robbed, defendant Golden McCollum was present in Okmulgee county, at a place near Pumpkin Center; that this evidence was false and known by the defendant to be false at the time he gave the same; that Golden McCollum was present in the city of Prague personally, participating in the robbery of said bank at said time. Several witnesses unqualifiedly identified Golden McCollum as one of the men who robbed the bank, and that he was personally present at the hour defendant testified he was at Pumpkin Center, in Okmulgee county. As far as the facts in this case are concerned, the evidence is amply sufficient, if believed, to sustain the state’s contention that this defendant committed willful and deliberate perjury in the trial of his brother for bank robbery.

The evidence being sufficient to sustain the verdict of the jury, the cause must be affirmed unless the errors complained of by defendant require a reversal.

It is first contended that the trial court erred in overruling defendant’s demurrer to the information.

The demurrer was based on the general ground that the information did not state facts sufficient to constitute a crime. The particular contention defendant makes is that it does not allege that the robbery case was tried, and does not show what the issue was, if any, that was joined, and that it does not show how the evidence given by defendant was false. The allegations of the information, in substance, charge that the robbery case came on for trial; that defendant was sworn as a witness in said cause by Don Dunham, deputy court clerk, and that defendant thereupon testified in said cause under oath; that what defendant testified to was material to' the issue in said cause; the information then sets out the defendant’s testimony, alleges it to be false, and that the defendant knew it to be false at the time he gave it, and sets out a state of facts diametrically opposed to that testified to' by the defendant, and alleges that such statement of facts is true and known by the defendant to' be true at the time he testified in said cause.

An information is sufficient which states facts clearly and distinctly, in ordinary and concise language, without repetition, and which, construed under the ordinary rules of construction of the English language, would enable a person of common understanding to know what was meant and to apprise the defendant of the exact nature of the offense with which he is charged, although the same does not contain all the phraseology and technical language ordinarily used in criminal proceedings.

In Gray v. State, 4 Okla. Cr. 292, 111 Pac. 825, 32 L. R. A. (N. S.) 142, and Williams v. State, 14 Okla. Cr. 100, 167 Pac. 763, this court had under consideration the question of the sufficiency of informations in perjury cases and there established a liberal rule of pleading in that class of crime and gave its reasons for such rule.

In Thomas v. State, 40 Okla. Cr. 204, 267 Pac. 1040, this court said:

“The common-law doctrine of strict construction of criminal law and all proceedings in criminal cases, and that an information should be certain to a certain intent in every particular, is not in force in Oklahoma.
“Those averments in an indictment or information for subornation of perjury which form the foundation for the commission of the offense, commonly called ‘inducement/ may be pleaded in general terms. Under our Code, such matters are not required to be pleaded with precision and particularity as are averments which charge the offense itself.”

Tested by these authorities, the information was sufficient to charge the offense.

The defendant next contends that the evidence is insufficient to support the verdict of the jury.

It is not seriously contended that the facts are not sufficient to support the judgment, but rather that the facts are not proved in the proper way and by the best records.

It is urged that the proof of the record of the first trial, to wit, the robbery case, should have been made by the introduction of the journal kept by the court clerk, rather than by the appearance docket kept by such officer in said cause. The record discloses that the entries in the appearance docket in the robbery case were admitted without objection and with the consent of counsel for the defendant, and it was not contended at that time that the journal of the court was the better evidence with which to prove the matters for which the entries in the appearance docket were offered.

Section 865, C. O. S. 1921, requires the court clerk to keep an appearance docket. Section 866, Id., provides, among other things, that the appearance docket shall contain the date of the filing of the petition and all subsequent pleadings and papers, and an abstract of all judgments and orders of tbe court. Section 654, Id., makes these books and records competent evidence. Especially would this be so where they were admitted without objection that they were not the best evidence. The appearance docket was sufficient to show the pleadings and issues in the case, the orders of the court, and an abstract of the judgment. Counsel for defendant may not permit matters of this kind to be introduced in evidence without objection, and then for the first time in this court contend that there is better evidence available to prove the matters and things that the state relied upon in the trial court to establish by this kind of a record. If counsel had made this objection in the lower court, the journal of the court would have been available at that particular time, and these matters could have been more fully, but not more effectively, shown.

The objections urged by defendant are extremely technical. Perjury is a crime that strikes at the very foundation of justice, and such crime will not be permitted to go unpunished because of technical objections that do not go to the merits of the controversy.

For the reasons stated, the cause is affirmed.

DAVENPORT, P. J., and EDWARDS, J., concur.


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    JOHN HIX v. STATE.
    No. A-8052.
    Opinion Filed Aug. 21, 1931.
    (2 Pac. [2d)] 590.)

      W. H. Cooper, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Caddo county of larceny and his punishment fixed at four years and six months in the penitentiary.

The defendant was jointly charged with one Lester Pierce of the larceny of two sets of harness of the value of $30. The evidence sufficiently sustains the judgment. Defendant did not take the stand and offered no testimony.

The only assignment of error argued is that the county attorney made improper argument in arguing the prevalence of crime, the expense incident thereto, and the necessity for severe punishment as an example to others criminally inclined. Also it is insisted there is a reference to the failure of defendant to take the stand. Objections to the argument were overruled by the court. The argument cannot be considered as a comment on the failure of the defendant to testify. Counsel for the state unduly stressed the prevalence of crime and the expense of suppressing crime and appealed to the interest of the jurors as taxpayers, which may have resulted in the assessing of a more severe punishment than is warranted.

Having regard for the value of the property stolen, the punishment assessed is excessive. The judgment is modified by reducing the sentence from four years and six months to two years in the penitentiary. As modified, the case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


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    R. L. McMILLIAN v. STATE.
    No. A-8099.
    Opinion Filed Aug. 28, 1931.
    (2 Pac. [2d] 590.)
    Jack W. Page, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county of the crime of unlawful possession of intoxicating liquor, and his punishment fixed by the jury at a fine of $500 and imprisonment in the county jail for a period of six months.

. The evidence of the state was that the sheriff’s office was called to send officers to the eleven hundred block on east Twelfth street, in Oklahoma City; that this call was put in by .the owner of the property; that the officers went out to the address and found the garage open, with a lot of empty bottles in it and with some old felt hats like those you strain whisky through, and funnels; that the defendant drove up to the place in a Chevrolet coupe; that the officers heard glass crash and could smell whisky and see that defendant was throwing the whisky out of the car; that defendant got out of the car; that the officers went up to the car and found two' one-half gallon fruit jars broken; that whisky was running out of the car and they could smell it; that in the back of the coupe they found forty gallons of whisky; that, after the defendant came, the officers remained for some time, and, in the presence of defendant, the phone rang, and the officers answered it fifteen or twenty times, taking orders for whisky in five and ten gallon lots.

The defendant did not take the witness stand and offered no evidence.

Prior to the impaneling of the jury, defendant filed an unverified motion to suppress the evidence, but offered no evidence in support of this motion.

In the trial of the case defendant objected to the introduction of this evidence, for the reason that it was obtained by an unlawful search of his car.

The officers were on the premises with the consent of and upon the invitation of the owner. The officers could see, smell, and hear sufficient to advise them that an offense was being committed in their presence. Under such circumstances, no search warrant was necessary. Wilson v. State, 31 Okla. Cr. 389, 239 Pac. 188; Sands v. State, 36 Okla. Cr. 55, 252 Pac. 72.

There being no other question involved in the case, the cause is affirmed.

EDWARDS, J., concurs. DAVENPORT, P. J., absent, not participating.


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    CLYDE FAWCONER v. STATE.
    No. A-8045.
    Opinion Filed Aug. 28, 1931.
    (2 Pac. [2d] 609.)
    J. Hugh Nolen and Walter Benson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of manslaughter in the first degree and his punishment -fixed at 25 years in the penitentiary.

The case was tried and judgment rendered June 21. The appeal was lodged in this court December 24. The record for appeal is styled “case-made” and was settled and signed as such, but it is in fact a transcript. It does not contain the testimony of the witnesses. Defendant’s counsel have attempted to procure a remand of the case on motion, setting out they are unable to procure from the court reporter all the testimony taken at the trial. It is not necessary that we consider this claim, since the attempted appeal was not lodged in this court until more than six months from the date the judgment was rendered. The statute fixes the time for appeal and this court is without power to enlarge the terms of the statute. When an appeal is filed after the expiration of the six months’ period, this court does not acquire jurisdiction. Section 2808, Comp. St. 1921; Peyton v. State, 41 Okla. Cr. 186, 270 Pac. 860.

The attempted appeal is dismissed. The cause is remanded to the district court with instructions to enforce the judgment.

CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.


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    FRED PHIPPS v. STATE.
    No. A-8077.
    Opinion Filed Aug. 28, 1931.
    (2 Pac. [2d] 607.)
    Darnell & La Rue, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Custer county of the crime of transportation of intoxicating liquor, and his punishment fixed by the court at a fine of $250 and imprisonment in the county jail for a period of 60 days.

Defendant contends, first, that the court erred in overruling his motion to dismiss the case, for the reason that he had not been brought to trial at the next term of court.

It appears from the record that the information was filed on the 27th day of February, 1929; that the case was set for trial on the 1st day of June, 1929, and continued upon motion of the defendant because his attorney, A. E. Darnell, was a member of the Legislature and in attendance at that time upon official business at the Capitol; that on the 6th day of December, 1930, defendant filed a motion to dismiss the case because he had not been brought to trial at the next term of court after the information was filed; that this motion was overruled and defendant put on trial December 8, 1930. The case having been continued on June 1, 1929, at the request of the defendant, defendant having been previously enlarged upon bail, the presumption is that the further delay was Avith the consent of defendant, and the burden is upon him to show the contrary. The motion to dismiss was properly overruled.

Defendant next contends that the court erred in pronouncing judgment upon the verdict of the jury.

It appears from the record that two verdicts Avere returned into court, one of which reads as follows:

“We, the jury, impaneled and sivorn to try the issues in the above entitled cause, do upon our oaths, find the defendant, Fred Phipps, guilty.
“C. A. Hammons,
“A. V. Bryant,
“Lewis Potter,
“Ike Hooper,
“Dave Hughes,
“Dave Hughes, Foreman.
“No. 1513 Cr.
“Returned into court and filed this 8 day of Dec. 1930.
“Lauriena King, Clerk District Court.” ■
The other reads as follows :
“We, the jury, impaneled and sworn to try the issues in the above entitled cause, do upon our oaths, find the defendant, Fred Phipps, not guilty.
“U. G. Armstrong.
“Dave Hughes, Foreman.”
Indorsements:
“No. 1513 Cr.
“Returned into court and filed this 8 day of Dec. 1930.
“Lauriena King, Clerk District Court.
“■-Deputy.”

Thereafter, and on the 8th day of December, 1930, the following proceedings were had:

“The defendant being present in court and by his attorneys, Darnell & LaRue, the defendant objects and excepts to the form of the verdicts and asks at this time that the jury be required to return to' their jury room and return a proper verdict.
“Upon return of verdict jury was polled by the court and the names of the jurors whose names were signed to guilty verdict informed the court that such was their verdict, upon which the court ordered the verdicts- filed.
“And the motion of the defendant was overruled to which defendant excepted and exceptions were allowed.”

Defendant earnestly contends that it is impossible from these two verdicts to tell whether the legal number finding the defendant guilty concurred in the verdict.

Article 2, § 19, of the Constitution, provides:

“* * * In civil cases and in criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein.”

In the case at bar it was not necessary that the verdict should be unanimous. Five jurors could return a verdict by personally signing the same. Five jurors did sign the verdict finding defendant guilty, but one of the five joined with the other juror in signing the verdict finding the defendant not guilty. While the court polled the jury on the first verdict, he did not poll them on the second. We have no way of knowing from the record what the answer of the two jurors signing the second verdict would have been had they been polled.

Section 2743, C. O. S. 1921, provides:

“If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it, and it cannot be recorded until it be rendered in some form from which it can be clearly understood what is the intent of the jury.”

When defendant made the timely objection to the receiving of these verdicts and requested the court to refuse to receive them and to send the jury out to further consider their verdict, it was the duty of the court under section 2743, supra, to sustain such motion. Rea. v. State, 6 Okla. Or. 366, 118 Pac. 815.

Defendant complains of other errors, but, since they are not likely to occur in another trial of the case, they are not passed upon at this time.

For the error of the court in receiving the contradictory verdicts and overruling the motion of the defendant to send the jury out for further consideration of the case, the cause is reversed and remanded, with directions to proceed with the trial of the case in accordance with this opinion.

' EDWARDS, J., concurs. DAVENPORT, P. J., absent, not participating.


text:
    WILBUR HARRAGARA v. STATE.
    No. A-7961.
    Opinion Filed Aug. 28, 1931.
    Rehearing Denied Aug. 28, 1931.
    (3 Pac. [2d] 749.)
    A. IT. Meyer and W. E. Stewart, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county of driving an automobile while intoxicated and his punishment fixed at six months in the penitentiary.

The testimony for the state is, in substance, that, at the time charged, defendant was driving a heavy truck west on Fourth street, Oklahoma City, at the Hudson street crossing. The weather was rainy and the street slippery. He did not observe the stop line, but drove into the crossing at a speed from 35 to 40 miles an hour. As a result, a collision with a car driven by one Denniston occurred in which the truck was overturned. Broken bottles were found in the cab of the truck, with one bottle about half full of whisky. The clothes of defendant were partially saturated with whisky. A police officer testified that the breath of defendant smelled of whisky; that he staggered as though intoxicated and sat down in a chair in the police station and went to sleep. Defendant denied that he was drinking; stated that he knew nothing of the empty bottles, nor -of the bottle containing whisky, and that they may have been put there by a man who was with him in the cab; that he ran the stop line on account of the slippery condition of the streets. The issue of fact thus presented was a question for the jury. There is ample evidence to sustain their finding, It is also argued that the punishment is excessive. The jury having found the issue of fact against defendant, it cannot be said that six months’ imprisonment is excessive. Some contention is also made that the instructions are erroneous, and that the argument of the county attorney was prejudicial. The instructions; by agreement, were given orally and transcribed, and no exceptions were taken, nor was there any exception to the argument of counsel.

The appeal is without merit.

The case is affirmed.

CHAPPELL, J., concurs. DAVENPORT, P. J., absent, not participating.


author: PER CURIAM.

text:
    ELMER LEEPER v. STATE.
    No. A-8104.
    Opinion Filed Sept. 5, 1931.
    (2 Pac. [2d] 1036.)
    Stanley B. Catlett, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Ok-fuskee county of having the unlawful possession of whisky, and was sentenced to' pay a fine of $250 and to serve 90 days in the county jail.

The record discloses that at the time charged, officers with a search warrant found on premises adjoining that of defendant a half gallon of whisky. There is also' testimony that the defendant at the time said the whisky was his and that he would come in later and plead guilty. The evidence of defendant’s possession is weak.

The appeal was duly lodged in this court, but no briefs in support have been filed. We are not prepared to say there is not sufficient evidence to' sustain the judgment. Justice requires that the judgment be modified by reducing the punishment assessed to a fine of $50 and confinement 30 days in the county jail.

As modified, the case is affirmed.


text:
    J. E. SNODGRASS v. STATE.
    No. A-8081.
    Opinion Filed Sept. 5, 1931.
    (2 Pac. [2d] 982.)
    Bishop & Short, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Seminole county of manslaughter in the first degree ,and his punishment fixed at four years in the state penitentiary.

The record discloses that at the time charged defendant was driving an automobile while in an intoxicated condition, and while doing so struck and killed Harry Hannah, a youth about 12 years old. Defendant denied that he was intoxicated; said he had only taken one small sip of whisky, and that the Hannah boy had stopped in the highway to tie his shoe, and that defendant, in meeting another car, was forced to one side, and struck him accidentally and without fault on his part. The evidence of the guilt of.defendant is conclusive, and it appears the jury was lenient in assessing the punishment. No briefs in support of the appeal have been filed. We have examined the record with care, and perceive no substantial error.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.


text:
    EDDIE CONDEN et al. v. STATE.
    No. A-8109.
    Opinion Filed Sept. 5, 1931.
    (2 Pac. [2d] 981.)
    P. L. Long, for plaintiffs in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiffs in error were convicted in the district court of Wagoner county of the crime of forgery in the first degree, and their punishment fixed at hard labor for a term of fifty years in the state penitentiary, and have appealed.

The petition in error and case-made was filed in this court on March 12, 1931. No further appearance has been made by the plaintiffs in error; nor any further extension of time asked in which to file brief in support of the assignments of error.

Where no brief is filed and no personal appearance made, the court presumes that the appeal is without merit or has been abandoned. We have carefully examined the record and find the information properly charged an offense; that the defendant was accorded a fair and impartial trial. No fundamental or prejudicial errors appear in the record.

The judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


text:
    VANCE NEWSOME v. STATE.
    No. A-8107.
    Opinion Filed Sept. 5, 1931.
    (2 Pac. [2d] 981.)

      Joe Ad won, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, P. J.

The plaintiff in error was convicted in the county court of Oklahoma county of the crime of maintaining a. public nuisance, and his punishment fixed at a fine of f 100 and confinement in the county jail for 30 days, and has appealed.

The petition in error and case-made were filed in this court March 5, 1931. No' further appearance has been made by the plaintiff in error; nor any further extension of time asked in which to file brief in support of the assignments of error. ‘

Where no brief is filed and no personal appearance made, the court presumes that the appeal is without merit, or has been abandoned. We have carefully examined the record and find the information properly charged an offense; that the defendant was accorded a fair and impartial trial. No fundamental or prejudicial errors appear in the record.

The judgment of the trial court is affirmed.

EDWARDS and CHAPPELL, JJ., concur.


author: DAVENPORT, P. J. EDWARDS, J.

text:
    Ex parte PEGGY DRAKE.
    No. A-8191.
    Opinion Filed Sept. 5, 1931.
    (2 Pac. [2d] 978.)

      C. R. Reeves, for petitioner.
    Albert L. McRill, Municipal Counselor, Harlan T. Dupree, A. P. VanMeter, and W. H. Brown, Asst. Municipal Counselors, for respondent.
   DAVENPORT, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that she is unlawfully imprisoned and restrained at Oklahoma City by the chief of police of said city, John Watt; that according to the best of her knowledge and behalf she is charged with the pretended violation of an ordinance of the city of Oklahoma City for the crime of vagrancy. Petitioner alleges that said restraint is illegal and unlawful in this, that the municipal court has no jurisdiction of her because there was no written verified complaint filed against her; that the alleged judgment of conviction rendered and entered is illegal and void for the reason that it was rendered without jurisdiction; that she was not informed by a complaint in writing of the charge against her. No verified complaint was filed, as required by the laws of the state of Oklahoma, and the Constitution of the state of Oklahoma; that she is now imprisoned in violation of the laws of the state of Oklahoma, the Constitution of the state of Oklahoma and the United States, and said procedure of the municipal court was in violation thereof; that said conviction is wholly void.

At the time fixed respondent filed his reply showing that he held the petitioner by reason of a conviction in the city municipal court of the city of Oklahoma City. Testimony was taken, and it was shown that no verified written complaint was filed against the defendant charging her with a crime, and the police judge testified that he did not swear any one to a complaint charging the petitioner in this case with a crime.

Petitioner contends that under the provisions of section 17, art. 2, state Constitution, and section 1, art. 7, state Constitution, and section 4639, Comp. Stat. 1921, her imprisonment without a verified complaint is in violation of the law.

The respondent contends that the petitioner appeared in .the municipal court and entered her plea of guilty and by reason of that fact she waived any right to question her conviction on the ground that no written verified complaint had been filed charging her with an offense prior to her trial.

Section 17, art. 2, state Constitution, in part provides :

“Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

Section 1, art. 7, state Constitution, provides:

“The judicial power of this state shall be vested in the Senate, sitting as a court of impeachment, the Supreme Court, district courts, county courts, courts of justices of the peace, * * * commissions or boards, inferior to the Supreme Court, as may be established by law.”

Section 1, ch. 147, of the Session Laws 1915, now section 4652, Comp. Stat. 1921, defines municipal courts and offenses against municipal ordinances. This court in the case of Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537, said:

“In this state a municipal court is a constitutional court and as such is bound by the constitutional provision found in. section 17 of the Bill of Rights: ‘Prosecutions may be instituted in courts not of record upon a duly verified complaint.’ * * *
“That part of section 650, R. L. 1910 [section 4639 Comp. Stat. 1921], providing that ‘The complaint when made by the marshal, assistant marshal or regular policeman against any person arrested without process * * * need not be in writing,’ is in conflict with section 17 of the Bill of Rights. Held, that all prosecutions of a criminal nature should be maintained upon a verified written complaint.”

The respondent insists that the petitioner by entering her plea waived the statute requiring a verified complaint to be filed, and that she cannot now be heard to complain. The laws of this state require a sworn complaint to be filed in order that the municipal courts may acquire jurisdiction of a charge of violation of a city ordinance.

This is not disputed by respondent, and the only reason respondent gives for holding the defendant is that she by coming into the municipal court and entering her plea and receiving a sentence waived the requirement of the statute requiring the filing of a sworn complaint. Respondent cites a number of authorities which he insists sustain his position. After a careful reading of the authorities relied on by respondent we cannot agree that they sustain his contention. The majority of the cases cited by the respondent relate to the irregularity of the procedure in courts of record, and we do not think they are applicable to the facts in this case.

In State v. Sheffield, 45 Utah, 426, 146 Pac. 306, in the second paragraph of the syllabus, the court said:

“A verified complaint or an affidavit before a magistrate, charging accused with a public offense, is essential to a preliminary examination, since without it the magistrate’s jurisdiction to act is not judicially invoked.”

In White v. State (Tex. Cr. App.) 35 S. W. 391, the court said:

“A complaint is a prerequisite to a prosecution on information; and, where the record fails to show that one was filed, a conviction cannot be sustained.”

In Gilbert v. State, 17 Ga. App. 143, 86 S. E. 415, the Court of Appeals of Georgia, in the second paragraph of the syllabus, said:

“An affidavit, neither attested by an officer authorized to administer oaths, nor purporting to be sworn to in open court, is void as the basis of a criminal proceeding.”

Every person accused of a crime in this state, under the Constitution and statutes, has a right to be informed of the nature and cause of the accusation against him; to be represented by counsel, and to have compulsory process to obtain witnesses in his behalf. It is difficult to see how this provision can be complied with without a definite verified accusation or complaint. We think section 17, art. 2, considered in connection with section 1, art. 7, state Constitution, and section 4652, Comp. Stat. 1921, contemplates that, in a prosecution whereby a person accused of an offense may be fined or imprisoned, the nature of the accusation against him shall be set out in a verified complaint, so that the accused person may be informed of the nature of the accusation against Mm, and, where a municipal judge assesses a fine or imprisonment, against an accused for the violation of a municipal ordinance without a written verified complaint having been filed, he is without jurisdiction, and the party restrained of her liberty is entitled to be released on habeas corpus. Ex parte Bochmann, supra; Ex parte Mosgrove, 47 Okla. Cr. 40, 287 Pac. 795.

The filing of a verified complaint is jurisdictional and may not be waived.

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

CHAPPELL, J., concurs.

EDWARDS, J.

(dissenting). I am unable to agree with the majority opinion of the court. In my opinion it violates the well-settled rules of statutory construction and several decisions of this court. The petition, the response, and the evidence and stipulation at the hearing disclose that petitioner, Peggy Drake, was charged with vagrancy in soliciting as a prostitute on the streets of Oklahoma City. ,She was arrested when she solicited a plain clothes police officer. After such arrest she was taken to police headquarters and a written complaint charging vagrancy signed by the officer was filed. This complaint was not verified at the time, though later, and, before this proceeding in habeas corpus was filed, the police judge attached his jurat thereto, although the officer did not verify the same. The proceedings are regular on their face.

A habeas corpus case such as this cannot take the place of an appeal or writ of error. It can only be in-yoked where the validity of the proceedings appear upon the face of the record. Ex parte Barnette, 29 Okla. Or. 80, 232 Pac. 456; In re Talley, 4 Okla. Cr. 398, 112 Pac. 36, 31 L. R. A. (N. ,S.) 805; Ex parte Waldock, 142 Okla: 258, 286 Pac. 765.

Petitioner was arraigned on this complaint and entered a plea of guilty, was fined, and was incarcerated in the city jail, pursuant to said judgment of conviction. The majority opinion, in substance, holds that the last sentence of section 17, art. 2, of the state Constitution requires that the written complaint filed must be verified or the court is without jurisdiction, and a party so charged must be discharged on habeas corpus. The cases of Ex parte Bochmann, 20 Okla. Cr. 78, 201 Pac. 537, 541, and Ex parte Mosgrove, 47 Okla. Cr. 40, 287 Pac. 795, are relied on. The Bochmann Case, supra, is clearly not in point. In that case no written complaint was filed, but the municipal authorities were attempting to act under the provisions of section 650, Bev. Laws of 1910 (section 4639, Comp. Stat. 1921), providing that a complaint made by a marshal, assistant marshal, or policeman need not be in writing, which was held invalid. In that case, too, it did not appear that the offense for which petitioner was convicted was committed in the presence of the officer. The court there said:

“If a prosecution in a municipal court, under our Constitution and statutes, may be maintained without a written complaint against one in custody, arrested without a warrant, it necessarily follows that such arrest and custody must be for an offense committed or attempted in the presence of the officer. Otherwise, the arrest and detention of the accused would be in violation of both the Constitution and the statutes. It may be that the offense of vagrancy, according to the several definitions of the offense contained in the ordinance, could be committed in the presence of the arresting officer. Upon this point the record in this, case is silent, and to obviate such uncertainties and possible miscarriage of justice there should be some kind of complaint or written accusation to promote and facilitate an orderly investigation of a specific, definite charge, to which the accused could intelligently plead and from which he could appeal if he so desired.”

In that case there also was imposed a fine and costs greater than $20, which raised it above the degree of petit offenses and violated the rule announced in Ex parte Johnson, 13 Okla. Or. 30, 161 Pac. 1097; Ex parte Monroe, 13 Okla. Cr. 62, 162 Pac. 233, and various other decisions of this court. The conviction in that case was further without any sworn testimony, in violation of section 650, Rev. Laws 1910, supra (section 4639, Comp. Stat. 1921). While the opinion refers to a verified complaint, there is nothing in that case sustaining the majority opinion.

In the case of Ex parte Mosgrove, supra, while the words “duly verified complaint” are used, it does not sustain the majority opinion. In that case there was no written complaint filed. The municipal authorities relied on section 650, Rev. Laws 1910 (section 4639, Comp. Stat. 1921), which had been held invalid in the Boch-mann Case, supra. In the instant case a written complaint was filed, but was not verified at the time. In order to authorize the issuance of a warrant, the complaint must be verified. Section 2959, Comp. Stat. 1921. But, where a complaint is not verified, it is sufficient for all purposes, except to authorize the issuance of a warrant. The want of verification must be attacked by motion to quash the warrant, but, if a warrant is issued on such complaint and an accused is apprehended and submits to the jurisdiction of the magistrate, such defect is waived. Steiner v. State, 33 Okla. Or. 298, 243 Pac. 1002. In this case it was said:

“* * * The law requires that a complaint be verified. Section 2959, Comp. Stat. 1921. This provision of the statute is intended to safeguard the personal security and liberty of the individual and to prevent the issuance of warrant and arrest upon baseless and unfounded prosecutions. An unverified complaint is sufficient for all purposes except the issuance of a warrant. The failure to verify may be waived, and is waived by proceeding without objecting to the sufficiency of the complaint on that ground to give jurisdiction of the person. Here the defendant made no objection to the preliminary complaint, but demanded and was awarded a preliminary hearing upon it. He did not challenge it until an information was filed in the superior court. The objection came too late. In re Talley, 112 Pac. 36, 4 Okla. Cr. 398, 31 L. R. A. (N. S.) 805; In re Cummings, 66 Pac. 332, 11 Okla. 286; Bergdahl v. People, 61 Pac. 228, 27 Colo. 302; State v. Brown, 79 S. W. 1111, 181 Mo, 192.”

If the verification could be waived in a felony case by submitting to the jurisdiction of the magistrate, there would appear to be much more reason for holding that the verification could be waived in a petit offense where the accused was arrested in the commission of the offense as in the instant case.

In the case of Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359, a felony case, it was held that the court was not divested of jurisdiction, although the information was neither signed by the county attorney nor verified. The case of In re Talley, 4 Okla. Cr. 409, 112 Pac. 36, 40, 31 L. R. A. (N. S.) 805, differs from the instant case, in that it was a prosecution for a felony, but the case is extremely pertinent as supporting the rule that the verification is no part of the complaint and may be waived, and in that case Richardson, Judge, speaking for this court, said:

“We take it as established, therefore, both on principle and by the authorities, that a defendant waives any objection which he may have to the information on account of a defective verification thereof or a total want of verification, by pleading thereto without moving to quash or set aside the information on that ground. He thereby admits what the verification is intended to show, namely, that there exists probable cause to believe him guilty; * * * and, after pleading to such information, he can no more take advantage of its want of verification than he could then take advantage of the fact that the indictment, if he were being prosecuted by indictment, was returned by the grand jury without hearing any evidence, or that the indictment was not indorsed ‘a true bill/ and signed by the foreman of the grand jury, both of which matters by the terms of the statute are waived unless a timely motion to set aside is filed. It was even held by the.Supreme Court of the United States, in an opinion rendered by Justice Brewer in the case of In re Wilson, 140 U. S. 575, 11 S. Ct. 870, 35 L. Ed. 513, that, if the law required that a grand jury be composed of not less than 17 nor more than 23 members, and a grand jury composed of only 15 members returned an indictment, ‘the defect in the number of grand jurors did not vitiate the entire proceedings, so that they could be challenged collaterally on habeas corpus, but it was only a matter of error to be corrected by proceedings in error’; and that ‘it is doubtful, a.t least, whether such defect is not waived if not taken advantage of before trial and judgment.’ ”

The following cases also support the rule that the failure to object before plea constitutes a waiver: Thayer v. State, 16 Okla. Or. 712, 183 Pac. 931; Simpson v. State, 16 Okla. Or. 533, 185 Pac. 116; Braught v. State, 17 Okla. Cr. 1, 179 Pac. 769; Dismone v. U. S. (C. C. A.) 12 F. (2d) 63; People v. Clark, 211 Ill. App. 586; People v. Green, 200 Ill. App, 59, affirmed 276 Ill. 346, 114 N. E. 518; Schell v. People, 65 Colo. 116, 173 Pac. 1141, L. R. A. 1918F, 954; Laffey v. People, 55 Colo. 575, 136 Pac. 1031.

For the reasons stated, I cannot assent to the majority opinion.