text:
    W. H. NORVELL v. STATE.
    No. A-6250.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 1117.)
    Warren F. Brumfield, for plaintiff in error.
    Ed. Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, W. H. Norvell and R. L. Norvell, were convicted on a charge of manufacturing certain intoxicating liquor, to wit, whisky, and in accordance with the verdict returned by the jury they were each sentenced to pay a fine of $400 and to be confined in the county jail 4 months. From the judgments rendered on the verdict, an appeal was perfected by filing in this court on May 24, 1926, petition in error with case-made. On January 7, 1927, their counsel of record filed in this court the following motion to dismiss their appeal: “Come now W. H. Norvell and R. L. Norvell, in their own behalf and not in behalf of or for plaintiff in error Walter McKee, and dismiss their appeal in this cause, and pray that an order of dismissal be duly entered of record in this court and that said order of dismissal be so rendered that said order shall not affect their co-defendant and plaintiff in error, Walter McKee.” The motion of the plaintiffs in error W. H. Norvell and R. L. Norvell to dismiss is sustained, and their appeal herein is dismissed, and cause remanded, with direction. to the lower court to cause its judgment and sentence against W. H. and R. L. Norvell to be carried into execution.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte VICTOR TAPEDO.
    No. A-6357.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 1117.)
    M. Bristow, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

This was a petition for a writ of habeas corpus to the warden of the state penitentiary, wherein Victor Tapedo alleges that he is unlawfully restrained and imprisoned in the penitentiary at McAlester upon a commitment issued out of the district court of Caddo county, upon a judgment and sentence rendered by said county court upon a verdict of a jury finding the petitioner guilty of murder, uxorcide, alleged to have been committed on an Indian allotment, which judgment was affirmed by this court (Tapedo v. State, 34 Okla. Cr. 165, 245 P. 897), and alleging that said court, for the reason stated, was without jurisdiction to render said judgment. Pending the determination of said cause, the death of the petitioner has been suggested by his counsel. It is therefore considered and adjudged that the proceedings in this action do abate, and the cause is dismissed.


text:
    Ex parte GLEN TIMMONS et al.
    No. A-6419.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 1118.)
    Ash & Jones, for petitioner.
    The Attorney General and C. L. Clearman, Co. Atty., for respondent.
   PER CURIAM.

The petition filed on behalf of Glen Timmons and Thelmar Thompson, October 21, 1926, for writ of habeas corpus to be let to bail, discloses that they are held in custody by virtue of a certain commitment issued by R. S. Andrews, justice of the peace, of Sayre, Beckham county, as an examining magistrate, upon a complaint wherein petitioners were jointly charged with rape in the first degree, and that on habeas corpus proceedings the district judge of said county denied bail. Petitioners aver that they are not guilty of the offense charged, and that the proof of their guilt is not evident, nor the presumption thereof great, which will appear from a transcript of the testimony taken upon said preliminary examination, attached to said petition. It would serve no useful purpose to detail the testimony, and in view of a trial before a jury, to do so would possibly be prejudicial to petitioners. Upon a careful examination of the record we are of the opinion that petitioners should be allowed bail, and the same is fixed in the sum of $10,000 each, bonds to be conditioned as by law provided, and upon approval by the court clerk of Beckham county he shall notify the sheriff of said county, who thereupon shall discharge said petitioners from custody.


text:
    Ex parte HOWARD WEST.
    No. A-6467.
    Opinion Filed Jan. 15, 1927.
    (252 Pac. 1118.)
    I. F. Long, for petitioner.
   PER CURIAM.

Howard West filed in this court on January 6, 1927, a petition wherein he alleges that he is illegally restrained of his liberty and imprisoned in the county jail of Osage county by Harve Freas, sheriff of said county; that his unlawful confinement consists in this, to wit, that on December 27, 1926, he was taken before W. N. Henderson, justice of the peace at Hominy, and advised to plead guilty to a charge of drunkenness; that he pleaded guilty, and was by said justice sentenced to pay a fine of $25 and be confined in the county jail for 30 days; that no complaint or information had been filed against him; that on the 29th day of December, 1926, he filed a motion for a new trial, which motion on said day was by said justice of the peace sustained, and a new trial awarded, and said justice set the new trial for hearing on the 30th day of December, 1926, and entered and issued an order to the sheriff to return petitioner to Hominy before him at that time; that said sheriff refused to obey the order of the justice of the peace and bring petitioner before him; and praying that a writ of habeas corpus issue. A rule to show cause was entered, and issued, why the writ of habeas corpus should not be awarded as prayed for, and made returnable on the 14th day of January, 1927. It now appears that, on the day the rule to show cause was served, respondent immediately discharged petitioner. It is therefore considered and adjudged that the case be dismissed.


author: DOYLE, J.

text:
    JOHN GENTRY v. STATE.
    No. A-5717.
    Opinion Filed Jan. 20, 1927.
    (252 Pac. 73.)
    J. A. Watson, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error, John Gentry, was tried on a charge of assault with intent to kill by shooting one Rosa Dixon with a rifle. The verdict of the jury was:

“We, the jury, do upon upon our oaths find the defendant guilty as charged in said information, and fix his punishment at five years in the state penitentiary.”

Motion for new trial was duly filed and overruled.

On January 31, 1925, the court rendered judgment in accordance with the verdict.

To reverse the judgment, an appeal was perfected by filing in this court on July 29, 1925, petition in error with case-made.

It appears that the defendant is a negro, and the complaining witness, F. J. Dixon, is a negro and the husband of Rosa Dixon, the person named in the information as having been shot.

The evidence for the state shows that the defendant shot at F. J. Dixon during a quarrel that arose over some livestock belonging to F. J. Dixon, and taken up by the defendant, and that during the progress of the affray, Rosa Dixon, the wife of F. J. Dixon, was shot.

A number of errors are assigned and argued, but one of which we deem necessary to notice, and that is that the court erred in instructing the jury relative to the law applicable and to the issues in this case.

Our examination of the instructions given by the court discloses the fact that the name of Rosa Dixon .is not mentioned therein. On the other hand, the statement of the case by the court is as follows:

“Gentlemen of the jury, as a statement of this case you are informed that the defendant, John Gentry, stands charged by information filed in this court on the 3rd day of January, 1925, with the crime of assault with intent to kill, in manner and form as follows, to wit: That said defendant, then and there being, did then and there on or about the above-named date willfully, wrongfully, unlawfully, and feloniously, without authority of law, and with a premeditated design to effect the death of one Frank Dixon, then and there make an assault upon the person of Frank Dixon, with certain dangerous weapon, to wit, a large calibre rifle, which the said defendant then and there held in his hands, and the said defendant did then and there discharge, shoot off at, against, and into the body of said Frank Dixon a leaden ball from said deadly and dangerous weapon aforesaid, with a premeditated design on the part of the said defendant to then and there effect the death of the said Frank Dixon.
“To this information, the defendant has entered his plea of not guilty. Thus, gentlemen, are the issues joined which you are to try, and you will be governed in this case by the following instructions.”

Instruction No. 17 reads as follows:

“You are instructed, that after a full and fair consideration of the evidence, and beyond a reasonable doubt, you find that the defendant did on or about November 11, 1924, or within three years prior to the filing of the information in this case, wrongfully, unlawfully, and feloniously make an assault with a dangerous weapon in the hands of said defendant and did with said gun shoot at said Frank Dixon, on the body, with a felonious intent on the part of said defendant to kill Frank Dixon, then you should find defendant guilty of assault with intent to kill.”

In other instructions given by the court, the name of Frank Dixon appears as the person assaulted and shot. The objection urged to the charge of the court is that, while the' information charges the defendant assaulted with intent to kill by shooting one Rosa Dixon the court in its charge tells the jury that if they find that the defendant did shoot one Frank Dixon, with a felonious intent to kill the said Frank Dixon, then the jury should find the defendant guilty of assault with intent to kill. Neither in the original complaint nor the information filed in this case does the name of Frank Dixon appear.

It follows that the instructions, as given by the court, are clearly in violation of the universally accepted doctrine and the fundamental principle of law that a person may not be convicted of any crime other than the one charged in the indictment or information.

For the reasons stated, the court erred in overruling defendant’s motion for new trial.

The judgment of the lower court is accordingly reversed and a new trial awarded.

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


author: EDWARDS, J.

text:
    H. E. SULLIVAN v. STATE.
    No. A-5792.
    Opinion Filed Jan. 22, 1927.
    (252 Pac. 442.)
    H. S. Hurst and Ward Goble, for plaintiff in error.
    Edwin Dabney, for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance, a place where intoxicating liquors were kept, bartered, manufactured, and sold, in violation of the prohibitory liquor law, and sentenced to pay a fine of $300 and to confinement in the county jail for a term of 60 days.

The record discloses that defendant operated a cold drink stand and lunch room in a small building on Harrison avenue, Oklahoma City, and resided there. There were two other occupants of the building, a Singer sewing machine agent and a shoemaker. Only two witnesses testified for the state. Their testimony is that the reputation of the place in question, as a place where intoxicating liquors were sold, was bad; that about two weeks prior to the occasion in question, they saw defendant and the sewing machine agent who occupied the same premises leave the building, and go away, and then return to a point nearby with a gallon of whisky. That they had seen persons going into the back room of this building, and then coming into the front room where the cold drink stand was and drinking. That on one occasion they smelled whisky on the breath of two persons in that place. That, on the day prior to the filing of the information, they found a pop bottle with some whisky in it; that they did not know to their own knowledge that liquor was sold there. There is no proof of any violation of the liquor law at this place. Proof that a place has a bad reputation is not alone sufficient to support a conviction for maintaining a public nuisance, nor is the evidence of the finding of a small quantity of whisky, not sufficient in amount to constitute prima facie evidence of intent to violate the prohibitory liquor law, sufficient to sustain the charge. Barngrover v. State, 28 Okla. Cr. 22, 229 P. 301, and authorities cited.

Other assignments of error are argued, but, since we find the evidence insufficient to sustain the verdict, it is not necessary that they be discussed.

The case is reversed and remanded.

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


author: DOYLE, P. J.

text:
    ALFRED NOWABBI v. STATE.
    No. A-5564.
    Opinion Filed Jan. 25, 1927.
    (252 Pac. 442.)

      See, also, 29 Okla. Cr. 355, 233 P. 784.
    Phillips & Phillips and Hal Welch, for plaintiff in error.
    George F. Short, Atty. Gen., and Houston B. Teehee, Asst.. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Alfred Nowabbi, was convicted of manslaughter in the first degree on an information charging him with the murder of Nellie Nowabbi, his wife. The jury failed to agree upon the punishment; motion for new trial was duly filed, and overruled. The court sentenced him to confinement in the penitentiary for a term of 30 years. To reverse the judgment he appeals.

The following brief statment of the facts leading up to and immediately surrounding the killing of Nellie Nowabbi will be sufficient to make clear the contentions made:

•On the day of the tragedy, March 10. 1924, appellant was living three or four miles west of Hugo. His family consisted of his wife and six children. Three of his children were living with his mother in Hugo. One Yicey Sanders and her child were staying at appellant’s home, she having about three months prior thereto separated from her husband. On the morning of the day of the tragedy, appellant went to Hugo and returned home about six o’clock in the evening. With him were Joshua and Ben Roberts, brothers of Mrs. Sanders. On his way home appellant stopped at the home of Liza Logan and borrowed a pistol and some cartridges. Upon their arrival at his home, the Roberts boys took charge of the team at the barn, appellant going on to the house, which consisted of four rooms, one being used as a sitting room, two bedrooms, and one used as a kitchen and dining room. After putting up the team, the Roberts boys came into the house, and upon entering the sitting room appellant came in from one of the bedrooms with a pistol in his hand and went on into the kitchen where his wife and Mrs. Sanders were preparing the evening meal. Upon his going into the kitchen, Mrs. iSanders came out, leaving only decedent and appellant therein. A few minutes later a shot was fired. Mrs. Sanders started to go into the kitchen, and met appellant coming out with a pistol in his hand. The Roberts boys ran out on the porch followed by Mrs.Sanders, their sister. Appellant came out and directed Joshua Roberts to go into the kitchen and put out the fire on the clothes of his wife, resulting from the shot. The bullet having entered the body directly under the left arm, ranged directly through the body, coming out directly under the right arm. Death was almost instantaneous. Appellant directed the boys to hitch up his team and taking the three children, accompanied by Mrs. Sanders, drove to his mother’s place in Hugo, and there reported the death of hi's wife, stating that it was accidental. Appellant with his mother and sister and Mrs. Sanders returned to his home, arriving there about 8 o’clock that evening. The sheriff and one or two deputies arrived at appellant’s home about 9 o’clock and made an investigation. They found decedent’s body in the kitchen on a pallet with the pistol by her side. The sheriff’s investigation disclosed that the body was cold and stiff, rigor mortis having set in. The pistol was warm, indicating that it had just been placed by the side of the body:

Appellant, his mother and sister, Mrs. Sanders, and her two brothers, were all in the sitting room. Upon being questioned none of those present offered to tell the sheriff why the pistol was warm or why it was placed by the side of the body. Upon inquiring as to the manner of the homicide, appellant told the sheriff that his wife got mad and was jealous and killed herself. He was then taken into custody, and on their way to jail upon further inquiry of the sheriff, appellant stated that his wife was jealous of him and a Choctaw girl by the name of Liza Logan, with whom he had been to picture shows on several occasions. He also stated that he had been drinking Jamaica ginger that afternoon. Upon applying for bail, appellant changed his story of the homicide and said that he accidentally shot his wife. There was some evidence of quarrels between appellant and his wife after Mrs. Sanders had moved to appellant’s home. Shortly after Jim Skelton was doing some work for appellant. On cross-examination, appellant Was asked if he did not have a conversation with Skelton to the effect that- his wife had sold all her property and that Mrs. Sanders had property, and that he (appellant) wanted to marry her, but that hi's wife was in the way. He denied this. However, he admitted making the statement as to the manner of the homicide to the sheriff, but denied the truthfulness .thereof.

In rebuttal the state called Jim 'Skelton, who testified to a conversation had with appellant wherein he expressed his desire to marry Mrs. Sanders, and stating that his wife was in the way.

Mary Nowabbi, appellant’s mother, testified that her son told her, upon arriving at her home, that the homicide was an accidental killing, and that she advised him that pending consultation with an attorney to say that his wife had committed suicide.

Appellant, attempting to explain the shooting, stated that he had borrowed a pistol that day from Liza Logan to take with him for protection purposes the next day when he intended to look after some land owned by his mother in Pushmataha county, located in a wild and sparcely settled community; that he took the pistol into the kitchen for the purpose of cleaning it, and after his wife told him where the coal oil can was, he put the can on the table, and while attempting to eject the loads from the pistol ■it accidentally fired and killed his wife.

One of the grounds of the motion for new trial and assigned as error is that the court permitted the jury to separate during the course of the trial, and before the final submission of the case. The record shows that after several witnesses had testified the court announced a recess and duly admonished the jury. Thereupon counsel for defendant requested the court to keep the jury together. The request was denied. At two other adjournments the same request was made. It is now urged that, because of the fact that the jury by virtue of their separation had opportunity to mingle with the public generally during the trial, they were exposed to improper influences. It is the theory of counsel for defendant in this connection that it was not incumbent upon him to show that prejudice resulted from the separation and in support thereof cites the case of Evans v. State, 29 Okla. Cr. 9, 221 P. 794. In that case it is said:

“It is charged, and the proof offered in support of the motion for a new trial shows, that five brothers and a sister of the deceased and other relatives and friends mingled with the jury at every recess and adjournment of the trial, and this proof was undisputed by the state.”

Under the provisions of our Criminal Code, the jurors chosen to» try the cause may at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate or be kept in charge of proper officers. Section 2716, C. S. 1921. At each adjournment, whether permitted to separate or kept in charge of officers, the jury must be properly admonished by the court until a final submission of the cause. Section 2717.

In the case of Nowabbi v. State, 31 Okla. Cr. 158, 237 P. 868, it is held:

“Where a reasonable request is made that the jury in a capital case be held together in charge of a bailiff before the case is finally submitted to them, and such request is denied, in.the absence of any showing of prejudice or misconduct by any member of the jury, or any person in the presence or hearing of the jury, the error of the court in denying the request to hold the jury together is not necessarily reversible.”

And the rule is well settled in this state that where a separation is permitted prior to the final submission of the case, the burden is on the defendant to show that prejudice resulted. Armstrong v. State, 2 Okla. Cr. 567, 103 P. 658, 24 L. R. A. (N. S.) 776.

In the case of Horn v. State, 13 Okla. Cr. 354, 164 P. 683, this court said:

“There is no doubt but that the trial court should exercise sound judicial discretion in a capital case by granting the request of either party to place the jury in charge of a sworn officer during the progress of the trial. This must be done after the case is submitted to the jury. The presumption of law is that the courts and the juries perform their duty in accordance with the oaths they have taken, and that the presumption is only overcome by proof to the contrary. It is incumbent upon the defendant who complains of the separation of the jury, before the case is finally submitted to affirmatively establish that by reason of the separation he was denied a fair and impartial trial; ■that his substantial rights were prejudiced thereby.”

Complaint is also made that during a recess of the court the county attorney, in the view, presence, and hearing of two members of the jury, picked upi the pistol introduced in evidence, and said in substance that one of the attorneys for the defense had shown him how the accident had occurred; that there was nothing to the defendant’s defense; that it would not hold water; that he could not be fooled that way; and that the jury would know better too. The county attorney made affidavit that during a recess of the court during said trial he took the pistol with which it was admitted the shooting was done demonstrating to the sheriff and some others how shells were ejected from said pistol, when some one called his attention to the fact that two jurors were present in the courtroom, and he immediately desisted; that during his argument to the jury he went through the same demonstration as he had in the courtroom, when his attention'was called to the presence of the two jurors, and even went further with it. On the record before us we do not think that the county attorney’s conduct was prejudicial to the substantial rights of the defendant. It follows from what has been said that motion for new trial was properly overruled.

Complaint is made that the court erred in permitting the state to offer evidence in rebuttal as to the conversation had between the witness Jim Skelton and the defendant. The defendant as a witness denied the alleged conversation. In rebuttal the state was permitted to call the witness Jim Skelton to testify that the defendant, in substance, had told witness that he wanted to marry Vicey Sanders, but that his wife was in the way. His objection is based on the theory that this testimony was in effect evidence in chief and not in rebuttal, and therefore was inadmissible and should have been excluded for the reason that the name of the witness had not been indorsed on the information. In our opinion it was clearly rebuttal in character, and for this reason it was not necessary that the name of the witness should be indorsed upon the information. Stanley v. State, 28 Okla. Cr. 135, 229 P. 657.

The record shows that the defendant reserved exceptions to the instructions submitting the issue of manslaughter in the first degree. It is contended that under the evidence the defendant should either have been convicted of murder or acquitted, and that no instructions of manslaughter in the first degree should have been given.

In Irby v. State, 18 Okla. Cr. 671, 197 P. 526, this court held that—

“In a prosecution for murder, when the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, in a case where the law and the facts make the crime murder, it is an error in the defendant’s favor, of which he has no cause to complain.”

A number of exceptions are reserved to rulings of the court in refusing instructions. We find that the Instructions given, taken as a whole, fully presented the law of the case; that the instructions requested were properly refused.

Complaint is also made that the trial court improperly cross-examined the defendant’s witness Vicey Sanders. An examination of the record discloses that there is no merit in this contention.

From a careful consideration of all the evidence, we are convinced that the jury would have been fully justified in convicting the defendant of murder, and he has cause to congratulate himself that the jury found him guilty of manslaughter in the first degree only.

The legislative department of this state, by the enactment of section 2822, C. S. 1921, has made it clear that the appellate courts of this state are not at liberty to set aside a judgment unless, “after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

In Harris v. State, 14 Okla. Cr. 489, 173 P. 958, Judge Matson, in writing the opinion of the court, says:

“It is not intended that the appellate courts should hunt through the numerous volumes of law books in the State Law Library to find technical reasons for reversing a conviction or to excuse the rulings and conduct of the trial judge in instances of this kind. The necessity of that has been done away with by the foregoing enactment of the Legislature, and it is the solemn intention of this court to respect that enactment. The trend of modern thought is to the effect that where the guilt of those charged with crime is established beyond the peradventure of a doubt, such as in this case, the criminal shall not escape his just punishment just because certain matters occurred and rulings were made by the trial judge during the progress of the trial that have heretofore been held to be technically erroneous.
“It is not error alone that reverses judgments of conviction of crime in this state, but error plus injury, and the burden is upon the plaintiff in error to establish to this court the fact that he was prejudiced in his substantial rights by the commission of error.”

The proof tends to show a most atrocious crime, and if there is any miscarriage of justice in this case, it was because the jury failed to return a verdict finding the defendant guilty of murder.

A careful examination of the record confirms our conclusion that the defendant was accorded a fair trial.

The judgment appealed from is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte J. L MADDOX.
    No. A-6446.
    Opinion Filed Jan. 25, 1927.
    (252 Pac. 854.)

      John B. Ogden, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

This is a petition for a writ of habeas corpus for the release of J. L. Maddox from the custody of Ewing C. London, sheriff of Carter county, in the county jail of said county, under commitment issued by the district court on a judgment of conviction of the crime of adultery and sentenced to six months' confinement in the county jail and to pay a fine of $100, and alleging that petitioner has served the jail sentence and has served more than six months of the fine and costs, that petitioner is a poor person and for this reason has been unable to pay such fine and costs, and praying that the writ issue and he be discharged from such imprisonment, and that on the 2nd day of December, 1926, W. F. Freeman, district judge, refused to grant the writ.

To this petition the Attorney General filed a general demurrer on the ground that the allegations of the petition were not sufficient to show that the petitioner was entitled to have the writ of habeas corpus issued.

It is the well-settled general rule that, where the facts alleged in the petition for a writ of habeas corpus, if established, would not warrant a discharge of the petitioner, the writ will be denied.

It appearing that the petition is insufficient to show that petitioner is entitled to have the writ issued, or a rule entered to show cause why the writ should not issue, the demurrer thereto is sustained, and the writ denied.


text:
    F. A. WETZELL v. STATE.
    No. A-5816.
    Opinion Filed Jan. 25, 1927
    (252 Pac. 1118.)
    W. M. Taylor and Geo. R. Taylor, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted on an information charging him with reckless operation of a motor vehicle, and the punishment assessed at a fine of $50 and 5 days imprisonment in the county jail. From the judgment he appeals. The errors assigned question the sufficiency of the information, the sufficiency of the evidence to support the verdict, and the sufficiency of the verdict. Upon a consideration of the record we are satisfied that the errors assigned are not well founded. The county attorney has filed a recommendation in the case, and for reasons stated concludes as follows: ‘T feel that the ends of justice will be fully met in this ease if the jail sentence were omitted. I have not heard of any complaint against Mr. Wetzell’s driving since his conviction, and I feel that the fine in the case is sufficient.” While we find the record free from prejudicial error, we are inclined to think that the recommendation of the county attorney should be sustained. The judgment appealed from is accordingly modified to a fine of $50 and the costs; as thus modified, the judgment is affirmed.


text:
    JESSE COX v. STATE.
    No. A-5654.
    Opinion Filed Jan. 29, 1927.
    (252 Pac. 1117.)
    Titus & Talbot, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter ealled defendant, was convicted in the county court of Alfalfa county on a charge of being drunk in a public place, and his punishment fixed at a fine of $50 and at confinement in the county jail for a period of 15 days. The case was tried in March, 1925, and the appeal lodged in this court June 25, 1925. No briefs have been filed in support of the appeal, and no appearance for oral argument made. An examination of the record discloses that the offense was properly charged, and the evidence sufficient to sustain the verdict, although numerous witnesses testifying for the defendant denied that defendant was intoxicated. The weight and credibility of the witnesses, however, are for the jury. In the light of the record, we believe that the judgment should be modified, by reducing the punishment imposed by striking off entirely that part of the judgment for confinement in the county jail. As so modified, the case is affirmed.


text:
    BILL LEMMONS v. STATE.
    No. A-5643.
    Opinion Filed Jan. 29, 1927.
    (252 Pac. 1113.)
    Brown, Brown & Williams, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The indictment in this case charges that the defendant, Bill Lemons, did have in his possession one pint of whisky, with the unlawful intent to sell the same. On the trial the jury returned a verdict finding him guilty, and fixing his punishment at confinement for 30 days in the county jail and a fine of $50. To reverse the judgment rendered in accordance with the verdict, he appeals.

The errors assigned question the sufficiency of the evidence to support the verdict.

The testimony of Cecil Crosby, W. W. Holder, and D. Bell, deputy sheriffs, is that, as they approached four men, the defendant dropped a bottle of whisky and they arrested the four men.

As a witness in his own behalf, the defendant testified that his age was 28 years, had worked for various oil companies until he enlisted in the World War, and on his return engaged in the same business in Wyoming; was visiting his former home at Woods-worth, in Carter county. Several of his friends decided to have a little dance and several friends were standing outside when Mr. Crosby, B. Bell, and Doc Holder came up- with a flash light and told them they were under arrest;, then Doc Holder walked 40 or 50 steps away, it was a dark night, and came back iwith a bottle, put it in his pocket, and started to dance, tand Bob Martin objected to anybody dancing with whisky, and the dance stopped, and the officers took the defendant and three others to Ardmore and placed them in jail.

For the defense, six or seven witnesses testified that they were present, and that the defendant did not have possession or did not drop the bottle of whisky which the officers claimed to have found.

It is contended that, assuming the state’s evidence shows or tended to show possession of the bottle of whisky in question, there was no evidence introduced tending to show unlawful intent.

The rule of evidence, or the statutory presumption (section 6999, C. S. 1921) that possession in excess of one quart of spirituous liquors shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquor, was not met by the evidence in this case. The gist of the offense charged being the purpose and intent of unlawful sale, the evidence is insufficient to support the verdict.

The judgment of the lower court is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    RALPH FORESTER v. STATE.
    No. A-5566.
    Opinion Filed Jan. 29, 1927.
    (252 Pac. 861.)

      E. L. Mitchell and Meacham & Meacham, for plaintiff in error.
    George F. Short, Atty. Gen., and Houston B. Teehee, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

In the information in this case, appellant, Ralph Forester, and Pearl Forester were jointly charged with the crime of murder, alleged to have been committed in Custer county, on or about the 26th day of May, 1924, by killing one Oakley Sturgis. A severance was granted, and upon his separate trial appellant, Ralph Forester, was found guilty of murder and his punishment fixed at confinement for life at hard labor.

Motion for new trial was duly filed and overruled, From the judgment rendered in pursuance of the verdict, he appeals.

The errors assigned as grounds of reversal are that the jury were guilty of misconduct, in that they separated while the case was being tried, and also after the same was submitted; that the county attorney was guilty of-misconduct in the trial; and that the verdict was the result of passion and prejudice.

The material facts in the case, as disclosed by the record, may be briefly stated as follows:

It appears that Ralph Forester and his brother, Pearl Forester, were going about the city of Clinton, making threats that they were going to get some one that night; that about 8 o’clock they went to the Armstrong garage and tried to rent a car, and exhibited an automatic pistol; from there they went to the Hugh White garage and rented a Ford coupe, then they drove the car up the street and passing -a car occupied by Harold Frans, his sister, Glessie Frans, Lowe Lorence, Charley Cook, and Ted Sturgis, a brother of deceased, they crowded the Frans- car against the curb. The testimony of the occupants of the car is, in substance, that the defendants used vile language, appellant having a knife in his hand and his brother holding an automatic pistol; that they commanded the party to follow them out into the country, and started on; that Harold Frans drove his car, occupied by other young people by the city hall, and stopped and asked a man ■where he could find an officer, then drove on about two blocks, stopping in front of the Dell West store. Oakley Sturgis, a young man, had returned from California two days before and was visiting hi's parents who lived over the Dell West store; he was standing in front of the store when Harold Frans stopped his car in the street; one of the parties called to him to come over, and he walked up near to the car and placed his foot on the running board; just then the Forester boys drove alongside. Glessie Frans left her brother’s car and entered the car with the Forester boys. Appellant uttered an oath and wanted to know who Oakley Sturgis was; decedent said, “What do you mean?” and appellant stabbed him with a knife. The blade entered the left side between the fourth and fifth ribs, near the heart. The wound resulted in his death about 36 hours later. Each of the occupants of the car testified that the assault was unprovoked in any way.

Appellant, as a witness in his own behalf, testified that with his brother, Pearl, he went about 8 o’clock that evening to rent a Buick car at Armstrong’s garage, in Clinton; that they did not have a Buick, and he said to his brother, “Let’s go and get one from Hugh White”; then they went to White’s and rented a Ford sedan that was parked in front of the Hawk Hotel; that his brother was going to take him out to Bob Meacham’s, and drove down the street; about that time the Frans car came along, and Miss Frans called out, “We want to see you boys out of town”; Mr. Frans pulled into the curb, and! as his brother stopped the back ends of both cars came together. Harold Frans said, “You accuse us of stealing your whisky”; his brother, Pearl, said “I don’t doubt it a bit but what you did.” He denied having pulled his knife, and denied that his brother pulled an automatic pistol, that his brother drove on up the street then drove back and found the other car parked in the middle of the street, that they stopped alongside and Miss Frans left her brother’s car and got into their car ; that he noticed Oakley Sturgis coming across from the north side of the street, about that time one of the 'boys in the other car said, “There they are now”; that Oakley Sturgis put one foot on the fender and hit him on the shoulder with his fist; that he said to him, “God damn you, get oif here,” and Oakley Sturgis said, “God damn you, I will get you,” and reached back to his hip; that he thought he was going to kill him, or maybe shoot him, and he struck him with his knife; that what he did was done in self-defense.

His codefendant, Pearl Forester, took the stand and his testimony is substantially, the same as that given by appellant.

In support of the alleged misconduct of the jury, the proof shows or tends to show that the jurors occupied three adjoining rooms and the bailiff the next room at the hotel; that some members of the jury engaged in conversation with bystanders in the lobby of the said hotel; that after the case had been submitted six or seven members of the jury, together with the bailiff, left the jury room and the other jurors in the case and came down two flights of stairs to the lavatory in the basement.

The state called all the members of the jury with the exception of one for whom the county attorney filed an affidavit. All of the state’s evidence was to the effect that the conversations had no relation to the case, that no one discussed the case with them upon their separation, and that they were in no wise influenced by the fact of such conversation and separation in arriving at their verdict. The bailiff testified that, while taking the six or seven jurors to the lavatory, he locked the remaining jurors in the jury room; that they did not converse among themselves, nor did any person converse with any juror after the submission of the case.

After hearing the evidence and argument of counsel, the court made a finding that there had been no substantial violation of either the statutes or the decisions of the appellate court shown, and overruled the motion for a new trial.

As a general rule, the findings of the trial court upon an issue of fact, arising upon affidavit and evidence introduced on motion for new trial, will not be disturbed when the evidence reasonably tends to support such finding. Horton v. State, 10 Okla. Cr. 294, 136 P. 177.

In Elkins v. State, 29 Okla. Cr. 175, 233 P. 491, it was held:

“In. a capital case, where the necessity of accommodating the jury requires that there be a division of the jury in its sleeping quarters, where each such division is in charge of an officer, this is not such a separation as will vitiate the verdict.”

In the opinion it is said:

“It must be evident, however, that where the necessity of accommodating the jurors requires a division, such as the use of toilet accommodations, sleeping quarters, and such, it is not the sepai'ation contemplated by the statutes.”

In Mayes v. State, 19 Okla. Cr. 102, 197 P. 1064, it was held that:

“The fact that while the jury were in charge of the bailiff one of the jurors spoke to a bystander in the presence of the other jurors about a matter not connected with the case, while an irregularity, will not warrant a reversal of the judgment.”

Upon a careful examination of the record, we find that there was no prejudice to the substantial rights of the defendant resulting from the irregularities complained of, and for this reason the court did not err in refusing a new trial upon this ground.

It appears from the record that, upon his cross-examination, the defendant was asked the following questions :

“Q. Ralph, this isn’t the first knife trouble you have had, is it?
“Objection sustained.
“Q. Ralph, isn’t it a fact that you pleaded guilty in this court to a charge of assault with a knife.
“Objected to as incompetent, irrelevant, and immaterial, as the record is the best evidence.
“The Court: Well, unless it was a felony, I think probably it would not be competent.”

Counsel in their brief say that:

“Though the court did not approve of this cross-examination, the ill effect was there just the same, and it was certainly prejudicial and constituted misconduct.”

The general rule is that, when the defendant in a criminal case voluntarily takes the stand as a witness in his own behalf, he has all the rights of other witnesses and subject to the same rules of cross-examination and impeachment as other witnesses. Smith v. State, 14 Okla. Cr. 348, 171 P. 341; Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101; Ann. Cas. 1915B, 736.

Our statute provides (section 585, C. S. 1921) that a witness may be discredited by showing on cross-examination his conviction of a criminal offense, and section 2699 provides that:

“The rules of evidence in civil cases are applicable also in criminal cases.”

This proof may be made either by record or by cross-examination of the defendant.

The defendant had elected to testify as a witness In his own behalf, and, having done so, the county attorney had a right to ask him on cross-examination any question pertaining to the matter at issue, or that Would go to his credibility as a witness. Key v. State, 10 Okla. Cr. 206, 135 P. 950, and cases cited.

It follows that this was error in favor of the defendant.

Under the last assignment, the defendant complains of alleged improper remarks of the county attorney in the closing argument.

It appears that no objection was made and no exception taken to the alleged remarks until the motion for new trial was filed, and then only by the defendant’s affidavit, which is controverted by the affidavit of the county attorney.

By numerous decisions of this court the rule is well settled that misconduct of the prosecuting attorney in his argument to the jury can only be shown by being properly incorporated in the case-made or by bill of exceptions duly allowed, and when not so preserved in the record, cannot be shown by mere recitals in a motion for new trial. Tucker v. State, 9 Okla. Cr. 587, 132 P. 825; Irvine v. State, 10 Okla. Cr. 4, 133 P. 259; Sanditen v. State, 22 Okla. Cr. 14, 208 P. 1040; Copus v. State, 26 Okla. Cr. 366, 224 P. 364.

On the record before us, it appears that the challenged argument was not improper as answering certain argument of counsel for the defendant.

We are unable, after a careful examination, to find anything in the record to indicate that the defendant did not obtain a fair trial, free from prejudice.

After the final submission of the case, counsel for appellant filed a supplemental brief in this court, contending that the superior court was without jurisdiction to try the cause and to render said judgment, for the reason that no order transferring the cause from the district to the superior court was ever entered.

Under the statute, the district judge, Seventeenth judicial district, was ex officio judge of the superior court of Custer county, and the court clerk was clerk for both the district and superior courts.

The statute (chapter 68, § 2, Session Laws 1923-24) provides:

“That all cases now pending in the district court of such county, or that may hereafter be filed therein, and all such cases in the county court of which said superior court may have jurisdiction, shall be by the court clerk transferred to such superior court, upon the application by motion filed by either plaintiff or defendant in the court where such case was originally filed.”

The record shows that the county attorney filed the following motion for the transfer of this cause:

“Comes now Fred E. La Rue, county attorney of said county and state, and moves that the above-entitled cause and all the papers filed therein be transferred to the superior court of Custer county, Okla.”
“Filed in the district court and refiled in the superior court September 5, 1924. R. H. Dunn, Clerk.”

Upon this motion, the court clerk entered of record in the superior court all of the papers filed in the case.

We understand the rule to be that where the court has jurisdiction of the subject-matter, proceedings calling into exercise that jurisdiction, although irregular, are not subject to challenge for the first time upon appeal. If the defendant, upon arraignment, pleads to the merits, and enters upon the trial, he thereby waives any irregularities therein. Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332.

In Brown v. State, 9 Okla. Cr. 382, 132 P. 359, it was held:

“Jurisdiction of the subject-matter cannot be conferred by consent, and the want of such jurisdiction cannot be waived, but jurisdiction of the person can be conferred by consent and the want of such jurisdiction is waived unless objected to in apt time.”

It follows from what has been said that there is no merit in this contention.

No further reason for reversing the judgment being urged, and no substantial error appearing in the record, the judgment appealed from is affirmed.

DAVENPORT, J., concurs.

EDWARDS, J., having presided in the court below, disqualified.


text:
    TOM SANDERS v. STATE.
    No. A-5569.
    Opinion Filed Jan. 29, 1927.
    (252 Pac. 855.)

      Wilkinson & Hudson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called, defendant, was convicted in the district court of Pittsburg county of manslaughter in the first degree and sentenced to serve a term of six years in the state penitentiary.

On the night of November 22, 1924, there was a dance in an isolated and rough part of Pittsburg county at the home of Hunter Cowan. The record indicates that it was a rough and lawless community. Numerous attendants at the dance were drinking “cat whisky” and “choc beer,” and various of the attendants carried concealed weapons. During the course of the. evening, the defendant and two or three other persons gathered near a doorway in the hearing of the ladies, who were in the house, and were cursing freely. Craig Fite came up . and in rather, temperate language rebuked them for this language in the hearing of the ladies, upon which defendant said, “You big son of a bitch you, what is it to you? * * *” Fite said, “Don’t say that to me or I will hit you.” Defendant repeated it with an oath, and Fite struck defendant knocking him down. While rising, defendant fired twice with a pistol; at the last shot the gun was against the side of Fite, who was unarmed. Immediately after the shooting, Fite was taken to a hospital at Hartshorne, and died about 22 hours later. Before his death he made a statement, which was admitted in evidence as a dying declaration. The morning following the difficulty, an officer arrested defendant. He testified at the time defendant stated that he had heard the shooting but knew nothing about it; that he was “so damn drunk that he did not know anything.” Defendant testified that he did not engage in the quarrel with deceased, but it was some one else; that he said nothing, and was struck by deceased without provocation, and fired two shots in his necessary self-defense.

While confined in the jail, defendant told hi's cellmate, Tom Collins, who was also an eyewitness of the shooting, the best thing all of them could do was to keep their mouths shut and say nothing. The assignments of error argued may be considered under the following heads: First. The denying defendant’s application for a continuance. Second. The admission of incompetent evidence, including the purported dying declaration. Third. The excluding of competent evidence offered by defendant. Fourth. Erroneous instructions and refusal of requested instructions. These assignments will be considered in the order presented.

Before entering the trial, defendant filed an application for a continuance, based on the absence of Bill Dugan, an eyewitness to the homicide, who lived in an outlying section of Pittsburg county. His name was indorsed on the information as a witness for the state, and a subpoena was issued by the state for his attendance, but it was returned February 18, showing no service. The trial did not begin until February 22.

An application for continuance is addressed to the sound discretion of the trial court, and, unless there is an abuse of discretion, this court will not reverse the judgment of the trial court because of the overruling of such application. It is fundamental that, in order to entitle a defendant to a continuance on account of the absence of a witness, due diligence to procure the attendance of such witness must have been used. Here, of course, the defendant knew of the presence of Dugan at the time of the homicide. If he desired the presence of this witness, it was his duty to use all reasonable diligence to secure his attendance. In the early case of Kirk v. Territory, 10 Okla. 46, 60 P. 797, the territorial Supreme Court, in passing on a somewhat similar state of facts, said:

“The defendant contends that he was excused from making any effort to procure the attendance of the brother and sister-in-law, for the reason that he had a right to rely upon the fact that their names were on the indictment, and that the territory was bound to produce them. We do not regard this as sufficient excuse for a failure to make an effort to secure their attendance in his own behalf. The law requires that one who requests a continuance shall show by affidavit that he has used due diligence to procure the attendance of the absent witness; this is required of him as an evidence of his good faith. It is not sufficient for him to show that the adverse party has used due diligence to obtain the absent witness and failed. If this w.ere permitted, the party might in every case ascertain from the subpoenas issued by the adverse party the names of the witnesses not found, and then make affidavit that such persons were necessary witnesses for him, and that he had issued no process because the adverse party had done so. The party who causes a witness to be subpoenaed may excuse them before attendance, or discharge them before testifying. He is under no obligation or duty to hold them for the adverse party.”

It is not diligence to rely upon the effort of the state to procure his attendance, and, failing to use diligence, his application is bad on its face and properly denied.

The second contention, the admitting of incompetent evidence, is' directed to the evidence of Willie Hall, a nurse at the hospital at Hartshome, who testified to a statement made by deceased that Tom Sanders shot him, and he believed kicked him in the stomach. There was no sufficient predicate laid for the admission of this testimony as a dying declaration, and, after being admitted, it was later stricken by the court, and the jury admonished that they should not consider it. The fact that deceased was shot by defendant being admitted, this statement of the witness was immaterial, so there remains only the bare statement that deceased believed defendant kicked him. It is not always possible, by withdrawing evidence and instructing the jury to disregard it, to remove the effect of admitting incompetent evidence. It appears to us, however, that at most this single statement would not influence the jury in arriving at the guilt or innocence of defendant, but conceivably might influence them in fixing the punishment. The jury here, however, did not fix the punishment, but were unable to agree on it, and it was assessed by the court. This single statement does not require a reversal. Under this assignment the admissibility of the dying declaration is also challenged. The proof of the belief by deceased of impending death is not shown clearly by a direct statement of deceased. The strongest statement of the deceased is that he realized the seriousness of his condition and that his wound would probably result in death. Upon this point B. M. Johnson testified:

“ * * * I asked him, the question, ‘Who shot you?' His answer was, ‘Tom Sanders shot me; I guess the first shot weakened me some; that is about all there is to it.’ I asked him the question, I says, ‘Craig, I suppose you realize you are in a serious condition, don’t you?’ His answer was, ‘Yes: I am.’ My next question, ‘Do you realize that this is likely to cause your death?’ His answer was, ‘Yes; it is.’"

To render a statement admissible as a dying declaration, it is not essential that there be any express statement that declarant believed he was going to die, or that he has no hope of recovery, but such condition may be inferred from his evident danger, his conduct, or the opinions of medical attendants or others stated to him, or from othér circumstances of the case, such as the length of time elapsing between the declaration and death. Morris v. State, 6 Okla. Or. 29, 115 P. 1030; Poling v. State, 12 Okla. Cr. 27, 151 P. 895, Ann. Cas. 1918E, 663; Allen v. State, 16 Okla. Cr. 136, 180 P. 564; Morehead v. State, 12 Okla. Cr; 62, 151 P. 1183, Ann. Cas. 1918C, 416; Greenleaf Ev. § 158.

Complaint is next made that the court excluded evidence of the general reputation of deceased, and counsel in his brief asserts that, if permitted, he could have proven deceased was a professional law 'breaker, running a “wild cat” still, and other matter of this character. Even if this class of evidence was true, we fail to see how it was material to the issue being tried. Evidence of the reputation of deceased as a violent and dangerous person was admissible as tending to throw light on the state of mind of defendant at the time he shot deceased, or to show who was the aggressor, but much of the excluded matter complained of is entirely irrelevant. It appears that the court was fairly liberal in admitting evidence of character of deceased, and there is nothing in this contention of substantial prejudice.

It is next argued that the court erred in his instruction No. 19 in submitting to the jury the admissibility of the dying declaration. In this instruction the jury are told: that, if they find the declaration was made under a fixed belief that death was impending, they should receive the same and give it such weight and credit as they deemed it entitled to have, and, if the statement was not made in fear of impending death and the absence of a hope of recovery, it should not be considered by them in reaching a verdict. The admissibility in evidence of the dying declaration is a question for the court. The proper practice when a dying declaration is offered in evidence requires that the court, in the absence of the jury, shall hear the necessary preliminary proof. If this proof is deemed by the court sufficient to make the declaration admissible, then both the preliminary proof and the declaration should be given anew before the jury in order that they may know the circumstances under which the statement is made and thereby be able to give it proper weight and credit. The territorial Supreme Court in the case of Willoughby v. Territory, 16 Okla. 677, 86 P. 66, 8 Ann. Cas. 537, affirmed a conviction where the identical instruction was given. Even if we should hold the giving of this instruction error, it is error beneficial to defendant. Since the trial court had already held the statement admissible, the submitting its competency to the jury, if it had any effect, would tend to weaken its probative force. In any event it is not reversible.

The requested instructions refused by the court of which complaint is made, so far as they were applicable, were covered substantially by the general charge of the court. Considered as a whole, they fairly and correctly state the law of the case and are sufficient.

The case is affirmed.

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


text:
    JOE HODGE v. STATE.
    No. A-5650.
    Opinion Filed Jan. 29, 1927.

    (252 Pac. 854.)

      C. H. Parrick, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of drinking intoxicants in a public place, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $100. Defendant was charged in the justice court of Oklahoma county under the provisions of section 7028, Comp. Stat. 1921, with drinking intoxicating liquor in a public place. He was convicted, and appealed to the district court, and was there convicted, and has prosecuted an appeal to this court.

The complaint is seriously defective, but as it was not challenged until the beginning of the trial in the district court, and then by objection to the introduction of evidence, every intendment and inference will be indulged in to sustain it. It is sufficient as against objection interposed. The defendant was at Elmwood Park, something of a dance resort and amusement place just south of Oklahoma City, with some other persons. With another individual, he went into the toilet room, and there the other individual took a drink out of a bottle and handed the bottle to defendant, but just at this time a special constable employed at the park came upon the scene and seized the bottle, and in the scuffle following the contents were poured out. There is no positive evidence that defendant ever drank out of the bottle. He created a disturbance, and is deserving of punishment, but the evidence does not sustain the charge of drinking intoxicating liquor in a public place.

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


text:
    JAMES WORLEY v. STATE.
    No. A-5635.
    Opinion Filed Jan. 29, 1927.
    (252 Pac. 852.)
    Chester H. Lowery, Brown Moore, and R. J. Shive, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Payne county, on the 16th day of March, 1925, James Worley “did then and there willfully and unlawfully manufacturé spirituous liquor, to wit, corn whisky, contrary to,” etc. On the trial the jury returned a verdict finding the defendant guilty, and fixed his punishment at a fine of $50 and imprisonment in the county jail for 60 days. Of the various errors relied on for a reversal, it is only necessary to consider the one the evidence is insufficient to sustain the verdict and the judgment.

~ The proof shows, or tends to show, that two deputy sheriffs, armed with a search warrant, visited the home of the defendant in his absence and found a barrel buried level with the ground, about a fourth full of corn chops and water; it was about 300 yards northwest from the defendant’s house; there was a ravine just south of it; they filled a fruit jar with the contents, and then filled the barrel with trash and dirt. They each testified that they searched the premises and did not find anything but a milk can.

J. B. Calderhead, sheriff, testified that he visited the premises the next day with a warrant and arrested the defendant; that the defendant denied any knowledge that the barrel was there. Each of the witnesses testified that the contents of the glass jar had not been analyzed. The defendant, a colored man, testified:

“I have lived in Payne county 15 years. I am a married man, and have five children. I am a farmer. I arrived home about 8 o’clock that night. The next day I was arrested by the sheriff. They took a milk can from my place, and this stuff in the fruit jar, they said they got that at my home. I did not know it was there. I have never made any liquor. I never had any corn mash at my home. I don’t know what is in that jar. The milk can belongs to my wife. She worked for an old man that was sick, and his wife gave that milk can to her, half full of molasses. It had been there two years. The barrel was about 300 yards from my house and about the same distance from the house of Clarence McKinney. It was just as close to his house as it was to mine. I asked them to search up there, I told them that the folks up there had framed up on me, because I had trouble with them over a team of mules. I was never before arrested in my life.”

The defendant’s wife, Jessie Worley, testified in substance as follows:

“My husband never made any liquor there. I don’t know anything about the barrel found by the officers.”

Thus it appears that there was not a scintilla of evidence offered upon the part of the state showing, or tending to show, that the defendant manufactured corn whisky as charged in the information. There is no evidence to show that the mixture found upon defendant’s premises contained as much as one-half of one per cent, alcohol, measured 'by volume, or that it was capable of being used as a beverage. Where, as in' this case, the proof wholly fails to show the commission of the crime charged, or any offense necessarily included, it is the duty of the court to direct a verdict of not guilty.

Because the evidence is entirely insufficient to support the verdict and judgment of conviction, the judgment is reversed, with directions to dismiss.

EDWARDS and DAVENPORT, JJ., concur.


author: DAVENPORT, J.

text:
    A. B. PHILLIPS v. STATE.
    No. A-6175.
    Opinion Filed Jan. 29, 1927.
    (252 Pac. 454.)
    John Remy and W. L. Johnson, for plaintiff in error.

      Edwin Dabney, Atty. 'Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against in the county court of Lincoln county, Okla., on a charge of having committed the crime of having possession of mash, the charging part of the information being as follows:

“That A. B. Phillips, late of the county aforesaid, on the 16th day of August, in the year of our Lord, 1925, in the county of Lincoln, and state of OWahoma, aforesaid, then and there being, did then and there willfully, unlawfully and knowingly have the possession of certain spirituous liquor, vinous liquor, malt liquor, fermented liquor and intoxicating liquor, to wit: 20 gallons of mash, containing more than one-half of 1 per cent, alcohol and capable of being used as a beverage, with the intent then and there on the part of him, the said A. B. Phillips, of selling, bartering, giving away, and otherwise furnishing the same.”

The defendant demurred to the information on the ground that:

“The same does not state facts sufficient to constitute a public offense against the laws of the state of Oklahoma.”

Which demurrer was by the court considered and overruled ; and the defendant reserved an exception to the ruling of the court; a jury was impaneled, and, after hearing the evidence and instructions of the court, returned a verdict of guilty, fixing the punishment of the defendant at a fine of $100 and imprisonment of 30 days in the county jail. Motion for a new trial was filed and overruled, and exceptions duly saved, and the cause was by the defendant appealed to this court.

The first error assigned by the defendant is that:

“The court erred in overruling the defendant’s demurrer to the information.”

From the language of the information we cannot tell whether the pleader intended to charge the defendant under section 7002 of the Compiled Statutes of Oklahoma of 1921, or under section 1, p. 43', of the Session Laws of 1923, 1924.

That part of section 7002 of the C. O. IS. 1921, which we deem necessary to quote here, is as follows:

“It shall be unlawful for any person, individual or corporate, to manufacture, sell, barter, give away, or otherwise furnish except as in this chapter provided, any spirituous, vinous, fermented or malt liquors, or any imitation thereof or substitute therefor; or to manufacture, sell, barter, give away, or otherwise furnish any liquors or compounds of any kind or description whatsoever, whether medicated or not, which contains as much as one-half of one per cent, of alcohol, measured by volume.”

Under the provision of the statute quoted, the information fails to charge in the language of the statute or its equivalent, by omitting the words “measured by volume,”

If the pleader intended to charge under section 1, p. 43, Session Laws 1923, 1924, which is as follows:

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

—the information fails to charge the offense by omitting the words in the statute above quoted, “fit for distillation.” In either event, the information fails' to state a cause of action in the language of the statute or its equivalent.

The demurrer of the defendant to the information was well taken and should have been sustained.

Various assignments of error are argued and authorities cited, none of which we think necessary to consider in view of the conclusion reached as to the information.

For the reasons herein stated, the case is reversed and remanded.

DOYLE, P. J., and EDWARDS, J., concur.


author: EDWARDS’, J.

text:
    FRANK K. WILLIAMS v. STATE.
    No. A-5640.
    Opinion Filed Jan. 29, 1927.
    (252 Pac. 453.)
    R. C. Roland, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS’, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of intoxicating liquor, to wit, choc beer, with the intent to violate the prohibitory liquor laws. The conviction rests on the testimony of two deputies of the sheriff that they found a keg containing about 10 gallons of choc beer about 250 yards from the residence of the defendant, and that there were tracks leading from near the house of defendant to the keg. There was at the keg a drinking glass and a salt shaker. There was no evidence that any of these tracks or those of defendant were measured. The defendant denied ownership or knowledge of the beer. He offered some hearsay evidence that some other person had claimed ownership of the beer, but it was clearly incompetent and was properly excluded. One of the deputies testified he delivered a sample of the beer to a chemist to be analyzed, and an analysis from the chemist was offered bearing the case number and name, but the chemist testified he did not know from whom he received the sample, and neither he nor the officers testified that the analysis was of the beer in question, or that he placed any identifying mark upon it, or that it bore any when received by him. The identification is not sufficient. There is no proof that any person resorted there for the purpose of drinking, and the connection of the defendant with the beer found is rather indefinite. Taken as a whole, we believe the evidence is insufficient.

The case is reversed and remanded.

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


text:
    CARL LONG v. STATE.
    No. A-5791.
    Opinion Filed Jan. 29, 1927.
    (252 Pac. 450.)
    H. C. Goodloe, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pawnee county on May 1, 1925, on a charge of maintaining a place where intoxicating liquors were kept for the purpose of violating the prohibitory liquor law, and was sentenced to pay a fine of $500 and to be confined in the county jail for a period of six months. Motion for a new trial was overruled and sentence passed on May 2, 1925.

The defendant prepared case-made which was filed in this court on September 2, 1925; petition in error was not filed until September 8, 1925, which is more than 120 days from the date of the judgment. The longest period of time in which an appeal from a misdemeanor may be lodged in this court is 120 days. Fuhr v. State, 31 Okla. Cr. 409, 239 P. 679, and authorities cited.

The attempted appeal is dismissed.


text:
    CAREY SMITHERS v. STATE.
    No. A-6352.
    Opinion Filed Feb. 2, 1927.
    (251 Pac. 751.)
    R. C. Roland, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The information in this case jointly-charged appellant Carey Smithers and Gus Key with having in their possession one gallon of whisky with the unlawful intent to sell the same. Upon their joint trial, the jury failed to agree as to the defendant Key, but returned a verdict finding appellant guilty, and fixing his punishment at a fine of $100 and 60 days’ imprisonment in the county jail.

The evidence shows that officers visited the Key Drug Store in the City of Ardmore, in executing a search warrant ; that they found defendant Gus Key and his. brother, Emmitt Key, in the front part of the store, and appellant in the rear; that defendant Key spoke to appellant, and he dropped two jars containing whisky into a tub containing creosote. Appellant, a young man, was employed as clerk in the Key Drug Store. Several errors have been assigned for a reversal of the judgment, and it is insisted that the evidence does not support the conviction.

We have carefully examined the record, and nothing that would in any way tend to prejudice the substantial right of appellant is presented for our consideration. However, we are inclined to think that, in view of the fact that the jury failed to convict the proprietor, and in consideration of the youth of appellant, the penalty imposed is excessive, and that substantial justice requires a modification of the judgment.

The judgment appealed from will be modified, by reducing the sentence to a fine of $50 and 30 days’ imprisonment in the county jail; as so modified, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    Ex parte E. A. INMAN.
    No. A-6352.
    Opinion Filed Feb. 2, 1927.
    (252 Pac. 1117.)
   PER CURIAM.

This is an application for a writ of habeas corpus to be admitted to bail. Cause dismissed, and leave granted to withdraw petition, on the motion of counsel for petitioner.


text:
    WALTER HICKEY v. STATE.
    No. A-5639.
    Opinion Filed Feb. 2, 1927.
    (252 Pac. 858.)
    Thos. J. Huff and Walter Hubbell, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

This appeal is from a judgment of the county court of Cotton County, rendered on the verdict of a jury finding “the defendant guilty as charged” and fixing his punishment at a fine of $50 and 30 days in the county jail.

The record shows that the trial was had on a criminal complaint, which, omitting venue and title, is as follows:

“Complaint.
‘‘State of Oklahoma, Cotton County—ss.:
“W. T. Stapp, of lawful age, being duly sworn, upon oath deposes and says: . That at and within the county of Cotton and state of Oklahoma, on the 18th day of April, 1925, Walter Hickey, then and there being, did then and there willfully, unlawfully, knowingly, and wrongfully manufacture and possess certain mash, to wit, 50 gallons of corn grain mash, fit for distillation, and for the manufacture of beer, distilled spirits, and other alcoholic liquors, the sale, barter, giving away, and otherwise disposing of which is prohibited by the laws of the state of Oklahoma, contrary to the form of the statute in such cases made and provided against the peace and dignity of the state of Oklahoma. W. S. Stapp.
“Subscribed and sworn to before me this 28th day of April, 1925.
Lon Morris, County Judge.
“I have examined the facts in the foregoing complaint and recommend that a warrant do issue.
Toby Morris, County Attorney.”
Indorsed:
“Filed in the county court this 18th day of April, 1925.
C. S. McCuiston, Court Clerk.”

Upon arraignment, defendant interposed a demurrer, on the ground that the same is insufficient to charge said •defendant with a violation of the prohibitory laws of the state. The first contention is that the accusation does not meet the requirements of article 2, § 17, of the Constitution, which reads:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. * * * Prosecutions may be instituted in courts not of record upon a duly verified complaint,”

—and does not meet the requirements of the statute (section 2511, C. S. 1921), which reads:

“The county attorney shall subscribe his name to in-formations filed in the county, superior or district court and endorse thereon the names of the witnesses known to him at the time of filing the same. * * * All informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.”

The accusation filed in this case was not signed by the county attorney, and the names of the witnesses were not indorsed thereon. It is the well-settled doctrine in this state that the county court has no jurisdiction as a court of record to place a defendant upon trial upon a verified complaint only. Morgan v. State, 15 Okla. Cr. 158, 175 P. 625; Gibson v. State, 26 Okla. Cr. 246, 223 P. 406; Berg v. State, 28 Okla. Cr. 281, 230 P. 296; George v. State, 28 Okla. Cr. 388, 231 P. 318.

In Fullingim v. State, 7 Okla. Cr. 333, 123 P. 558, it was held:

“It is essential to the validity of an information charging a misdemeanor that the county attorney shall subscribe his name thereto after the charge has been made, and the failure of the county attorney to so sign an information is sufficient ground for quashing the same.”

In Evans v. Willis, 22 Okla. 310, 97 P. 1047, 19 L. R. A. (N. S.) 1050, 18 Ann. Cas. 258, it was held that:

“Where the paper writing purporting to be an information is not exhibited or presented by the county attorney, or some one authorized by law, the same being invalid, and not capable of being amended, the county court did not acquire any jurisdiction of such action or prosecution.”

The Code of Criminal Procedure before Justices of the Peace provides:

“In all misdemeanor cases, before a warrant shall issue for the arrest of the defendant, the complaint must be submitted to the county attorney, or drawn by him and indorsed as follows: T have examined the facts in this case and recommend that a warrant do issue,’ and then filed with the court. If the action be brought without such indorsement the complaining witness must file with the court a bond to be approved by the court in a sum not less than fifty dollars, conditioned to pay all costs, and the county shall in no event be liable for any costs incurred in that action, unless the complaint be first so indorsed by the county attorney.” Section 2993, C. S. 3921.

Under this section, complaints for misdemeanors, triable in justice of the peace courts, or any other courts not of record, may be verified and filed by individuals. It was held in Boswell v. State, 19 Okla. Cr. 443, 200 P. 256:

“Section 17 of the Bill of Rights of our Constitution and our statutes on criminal procedure provide for two methods of prosecuting misdemeanor cases. In courts of record the prosecution must be by indictment or information; prosecutions in courts not of record may be instituted' upon a duly verified complaint. By statutory provision only the latter requires the indorsement, T have examined the facts in this case and recommend that a warrant do issue.’ ”

It must therefore be regarded as the settled doctrine in this state that prosecutions for crime in courts of record must be either by indictment or information.

For the reasons herein expressed, the judgment appealed from is reversed, and the cause remanded to the court below for further proceedings in accordance with this opinion.

EDWARDS and DAVENPORT, JJ., concur.


text:
    GROVER HYDE v. STATE.
    No. A-5798.
    Opinion Filed Feb. 5, 1927.
    (251 Pac. 752.)
    J. G. Ralls, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county on a charge of having possession of a still, and was sentenced to confinement in the county jail for a period of 80 days and to pay a fine of $50.

The principal contention argued is that the information does not charge a public offense. A demurrer was directed against the information, which was overruled and exceptions taken. In the motion for a new trial the overruling of the demurrer is not assigned as error. The only assignments in the motion for a new trial are the overruling of the plea of former acquittal, that the verdict is contrary to law, that the verdict is contrary to the evidence, that the court erred in failing to instruct the jury to acquit, and in admitting the evidence of one witness.

It is well settled by many decisions of this court that errors in the proceedings to be reviewed on appeal must be assigned as error in the motion for a new trial and thus presented to the trial court and his ruling thereon excepted to. This was not done. The information is not so defective as to deprive the court of jurisdiction. The error in overruling the demurrer is waived. Botkin v. State, 16 Okla. Cr. 610, 185 P. 835; Rhoades v. State, 16 Okla. Cr. 446, 184 P. 913; Luce v. State, 36 Okla. Cr. 49, 252 P. 452.

No other matter presented in the brief is of sufficient importance to require discussion.

The case is affirmed.

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


text:
    JIM DUPREE v. STATE.
    No. A-5562.
    Opinion Filed Feb. 5, 1927.
    (252 Pac. 857.)
    Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a public nuisance where whisky was manufactured, sold, bartered, and given away, and sentenced to pay a fine of $500 and to be confined in the county jail for a period of six months.

Defendant operated a small stand a few miles north of Oklahoma City, on the Edmond road, where he resided and sold gasoline, lunches, cold drinks, and probably surrepetitiously furnished intoxicating liquor. A temporary injunction against this place was procured in the district court of Oklahoma county, and certain officers went there to serve the order and nail up the house. They entered and made a search and found some glasses, in one of which was a small amount of corn whisky. Near the house was found a sack with a half pint bottle in it, which also contained a little whisky. Across the paved highway, some 100 yards away, was found a box containing several bottles, in some of which was a small quantity of whisky.

Defendant objected to the introduction of the evidence obtained by the search and objected to argument and reference to the injunction suit. These objections were overruled. This, we think, was error. The search was made without a search warrant. It was not authorized by the injunction process and on timely objection should have been excluded. The argument of the assistant county attorney, as shown by the record, also was error, since, apparently, the injunction was issued ex parte and no trial had been had on that matter. If the defendant had liquor about his premises, the state could easily have procured a search warrant and have proceeded according to law.

The case is reversed and remanded.

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


text:
    JIM TRACEY v. STATE.
    No. A-5760.
    Opinion Filed Feb. 5, 1927.
    (252 Pac. 859.)

      Wright & Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Jim Tracy, hereinafter called the defendant, was convicted in the county court of Cleveland county, state of Oklahoma, on a charge of maintaining a nuisance by unlawfully and willfully keeping and maintaining a place on the southwest quarter of section 4, township 10 north, range 1 east, where intoxicating liquor, to wit, whisky was manufactured, sold, given away, and otherwise furnished to various and divers persons.

A jury was impaneled and a trial had, the jury found the def endant guilty, and assessed his punishment at a fine of $300, and six months’ imprisonment in the county jail.

The section of the statute under which the defendant is charged is section 7022 of the Compiled Statutes of Oklahoma of 1921, which section defines what is necessary to be done in order to constitute a nuisance, and describes the punishment for one who is found guilty of committing one or more of the acts alleged in the statute necessary to constitute a nuisance. It is a very drastic and far-reaching statute. , ,

The defendant has filed twelve assignments of error; 1, 2, 3, 4, and 5, may be treated together, as they each substantially cover the same question raised, and the assignments are as follows:

“(1) The trial court erred in overruling plaintiff in error’s motion for a new trial.
“(2) The trial court erred in refusing to grant plaintiff in error a new trial.
_ “(3) The trial court erred in rendering judgment against, and passing sentence upon, plaintiff in error.
“(4) The verdict is contrary to the evidence in that same wholly fails to prove the offense charged in the information.
“(5) The verdict is contrary to law.”

Under the assignments herein set out, the question to be decided is, Is the verdict contrary to the evidence in this case, and does the evidence fail to prove the offense charged in the information? In order to properly consider the assignment set out, and to reach the proper conclusion as to contentions of defendant, we deem it necessary to set out in this opinion a summary of the testimony of the witness as disclosed by the record.

W. W. Jennings testified: That he was an under-sheriff, and knew the defendant. That he had searched defendant’s premises on the date mentioned in the information, and found a still of 100-gallon capacity, a vat, worm, cooler, four barrels of mash, 3'0 pounds of sugar, a little bran and a keg, about 300 yards north of the defendant’s house in a dugout in the side of a ravine. The still was about 150 feet northeast of the dugout in another dugout. That some tracks led from one dugout to the other. That the tracks were followed about 300 yards back toward the house, where they were lost in a wagon track. That the land where these dugouts were found was timbered, and they were well concealed. That they did not see any path leading from the defendant’s house to the caves. That there was a trail leading from the still north to the section line. That the officers had been out to this place some two months previous, and that the defendant was not living there then, but a man by the name of Bob Stevens was living on the place at that time.

C. I. Adams testified for the state that he was a deputy sheriff, and assisted in the raid; that he found the mash 300 yards, or perhaps 350 yards, north and a little east of the Tracey house; that they did not try to measure defendant’s shoes; that defendant, Jim Tracey, went with the officers on the search, and was not reluctant about going; that the still was concealed in the cave by brush.

The defendant, Jim Tracey, in his own behalf, testified that he was a married man and farmer, having lived in that country for 27 years, but had been on these premises a little less than 2 months; that he knew nothing about the still, mash, or other things found; that he went with the .officers in the afternoon, and assisted in making the search; that the land where the still and other things were found was rough, and had never had the timber cut from it; that the defendant had not turned stock into this pasture, because he had not yet had time to look over the fences and see what shape they were in, but had kept his horses in the lot at the house. The defendant also testified that he had never been arrested or tried for violating any law prior to his arrest; that he discovered tracks leading from the still and mash away from defendant’s house, and north to the section line, and showed them to the officers.

Mrs. Gladys Tracy, wife of defendant Jim Tracey, testified that she and defendant had been married 8 years; that her husband did not know anything about the things that were found; and that her husband was not in the liquor business, and had not been. A number of his neighbors testified in behalf of this defendant, stating that they had known him for many years, and that his reputation was good as a law-abiding citizen in the community in which he lived. This in substance is all the evidence in the case.

There is no testimony in the record to show that any evidence of whisky or a still, or material from which whisky might be made, was found in or near the residence of the defendant. All of the evidence tends to show that the still, mash, and other things found by the officers were 350 or 400 yards from the defendant’s house, in a canyon, and there is no evidence tending to show any connection of the defendant with the still and other things found in the canyon and dugouts.

A careful examination of the evidence in this case only tends to create suspicion or a possibility that the things found by the officer belonged to the defendant, and a verdict based on a possibility or supposition is not justified. The state made no effort to show defendant’s place had a reputation of a place where whisky was sold. There is no evidence showing that people congregated around defendant’s place, or that any of his neghbors even suspicioned the defendant of maintaining a nuisance as set forth in the information. Where there is evidence to support the verdict, this court will not pass upon its weight or sufficiency in order to determine whether or not the defendant is guilty as charged, but we do hold that there must be evidence tending to support the essential allegations of the information.

In this case there is no direct evidence to show that the defendant had possession of the still, mash, and other things claimed to have been found by the officers, nor is there any evidence tending to show that he had any knowledge that these things were in the canyon in the timber where they were found. The defendant denied possession and ownership, or any knowledge of the property that was found in the canyon. There is no evidence of sale, or attempted sale, or of any person, or persons congregating around his place or resorting there for the purpose of drinking liquor.

Several other assignments of error are argued by the defendant, none of which we think it necessary to consider.

The evidence is insufficient to sustain the verdict and judgment. The.case is reversed and remanded.

DOYLE, P. J., and EDWARDS, 'J., concur.