text:
    E. J. MACKAY v. STATE.
    No. A-9356.
    Oct. 21, 1938.
    (83 P. 2d 611.)

      Jean P. Day and Robert Burns, both of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen and Sam H. Lattimore, Asst. Attys. Gen., and Jess I. Miracle, Co. Atty., of Okemah, for the State.
   BAREFOOT, J.

The defendant was charged in the county court of Okfuskee county with the unlawful operation of a slot machine; was tried, convicted, and was by the court sentenced to pay a fine of $25 and costs, and has appealed.

This appeal is brought to this court for the purpose of determining whether or not the setting up and operating of an “Esco Novelty Candy Vending Machine, No. 382”, is a violation of the slot machine statute of this state. The statute in question, Oklahoma Statutes, 1931, section 2193, Okla. St. Ann., tit. 21, § 944, is as follows:

“Any person who sets up, operates or conducts, or who permits to be set up, operated or conducted in or about his place of business, whether as owner, employee or agent, any slot machine for the purpose of having or allowing the same to be played by others for money, property, checks, credits or any representative of value shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than $25 nor more than $100; or by imprisonment in the county jail for a term of not more than 30 days, or by both such fine and imprisonment.”

It is admitted by the parties that the machine was set up and operated by defendant. It is the contention of defendant:

“That the vending machine used here does not come within any of the machines or devices, or the operation thereof, as described by the foregoing Oklahoma statute, and that his machine is not a slot machine at all, but a coin vending machine for merchandise, so arranged in its mechanism and operation, that the operator receives merchandise which is equal or greater than the coin deposited in the machine, and in addition thereto, may by the exercise of skill, experience and judgment, secure for himself one of the prizes placed upon the revolving turntable within the glass covered compartment.”

The evidence in this case reveals that the machine in question was about the same size and character of the ordinary slot machine. It was operated by a player placing a nickel in the slot and it drops down and makes contact with the motor which starts the turntable. On this turntable are located different articles of the value from 5 to 49 cents, as shown by the evidence. A crane is located just above the turntable, and attached to it are tongs, which are handled by an instrument on the front of the board, known as the “locator.” When the nickel is deposited and the table begins to revolve the crane carries the tongs above the prizes, and by the pressing of the “locator”, the player is supposed to grab with the tongs the prize which he desires. This is executed by his shoving the “locator” at the exact time that it is over the prize he desires.

The defendant explained its operation as follows:

“Q. Say you wanted to get some definite object, how would you operate the machine? A. I would locate the object, its distance from the outside rim, or inner rim, of the rotating table and adjust it so it would be underneath the crane and as the crane lowered, if I saw it was not coming down exactly, I could still move it over even after the crane meets the object, the crane can be jiggled and the hook will move one way or another and you have a lot of time, not a second, but plenty of time to move it. I have plenty of time after it hits the object to move the hook and make it fall over instead of closing if I am expert enough, maybe not every time depending upon my dexterity. Q. That would include your sense of distance and sense of location? A. Co-ordination between my mind and hand, that is the difficult part, what we term synchronization of mind and hand.”

On each play the person operating the machine received from a container located on the front a certain amount of candy, known as “red hots,” and as revealed by the evidence of the value of one and one-half cents. The evidence of several parties who had played the machine at defendant’s place of business was offered by the state. They testified they had played the machine, some four times and had secured two prizes, some six times and had secured two prizes, some five times and secured one prize. They also testified they were playing the machine for prizes, and that often the candy was not taken. There was an effort on the part of defendant to show that by an absolute accurate handling of the “locator” one would be able to secure the prize desired at each turn of the wheel. The evidence of the state does not bear this out. The evidence showed the tongs could only be moved forward and not to the side when they had stopped. If no prize was won the player only received the “red hots”, which were of the value of one and one-half cents, for his five cent investment.

The question of the operation of a slot machine or of coin vending machines for the sale of merchandise has been before the Supreme Court and this court upon four different occasions; but has been before the courts of this country many times. The decisions have not always been in harmony, but many uniform principles of law have been laid down by the courts which apply with force and logic to the operation of these different kinds of machines, and as to their being a violation of the statute above quoted, and coming within the terms of a gambling device. It is almost universally-held that if there is an element of chance in the operation of the machine, it then comes within the inhibition of the statute. One of the strongest attributes entering into this element of chance is whether the player secures the full value of the money invested on each play. In the case at bar it will be noted that the evidence established that when a prize was not won the player only received goods of the value of one and one-half cents, for each five cents invested, which would bring it squarely within the rule above announced.

The first case to come before this court was in State v. Johnson, 15 Okla. Cr. 460, 177 P. 926. In this case defendant was charged with the violation of the above statute by the operation of a slot machine. The evidence established that each time the machine was played the operator would secure a package of chewing gum, and at different times would receive from two to 20 checks which could be used for the purpose of purchasing merchandise at the place of business where the machine was being operated. The checks could also be used to operate the machine in the place of nickels. The lower court sustained a demurrer to the evidence of the state for the reason that “the testimony is insufficient to make out an offense under the law.” This court overruled the lower court, saying:

“By enacting the statute against slot machines, the Legislature intended to prohibit the setting up, operating, or conducting of any kind of a slot machine for the purpose of having or allowing same to be played by others for money, property, checks, credits, or any other representative of value. It was intended to prohibit the placing of such a machine in any place of business as an invitation to the public to play same for money or other property; to invite the public generally to take a chance of getting something for nothing.”

The statute was next construed in the case of Nelson v. State, 37 Okla. Cr. 90, 256 P. 939. This machine was operated by placing a coin therein, operating a lever, and the player would receive one package of mints, and in some instances, would receive trade checks, each of the value of five cents in merchandise. These checks could be played in the machine for other checks, which, however, was against the rule of defendant. The court said:

“The delivery of these checks not being uniform constitutes a chance or hazard under which the person playing the machine might receive value greatly in excess of the coin deposited. This makes the machine a gambling device. * * * It is equally gambling if he may win by chance more than the value expended by him.”

The Supreme Court of this state had under consideration this statute in the case of Colbert v. Superior Confection Co., 154 Okla. 28, 6 P. 2d 791. In this case the lower court enjoined the officers of Carter county from interfering with defendant in the operation of slot machines. The evidence established that the machine paid in checks. That the checks could only be played in the machine for amusement, and could not be cashed. The court, after quoting from Nelson v. State, supra, reversed the decision of the lower court, holding:

“That is what the record in this case shows; that is, that the player was induced to believe that, if he played the machine with nickels long enough, he would finally get some checks which he could use for the purpose of playing the machine for amusement, and the amount of checks to be received is dependent upon conditions over which he has no control. If the act in question applied only to things of value, we think that the amusement held out as an inducement is a thing of value sufficient to bring these machines within the plain provisions of the act. We are of the opinion that the act is applicable without regard to the value of the things held out as an inducement to the playing of the machine.”

This court, in the case of Overby v. Oklahoma City, 46 Okla. Cr. 42, 287 P. 796, had under consideration the construction of an ordinance passed by the city council of Oklahoma City, making it unlawful to operate or be in control of a slot machine, and declaring the same to be a public nuisance. This case is the main one relied upon by defendant for a reversal of this case. In the first place this case does not involve a violation of the state statute above quoted, but an ordinance passed by the city council of Oklahoma City. It was tried upon an agreed statement of facts. The facts agreed upon and the facts in the case at bar are in many respects quite different, and a clear distinction can be made between the two cases. In that case the court was considering a candy vending machine. Under the agreed statement of facts a nickel was deposited in the machine, a lever was pulled which turned a knob which released into a tray at the bottom of the machine a standard five cent package of mints (which are candied confections). At the same time, and by the same operation, three reels on the front of said machine are caused to spin, causing a flash of color, which are designed to attract the attention of others, and for the amusement of the players, and there is also displayed amusing sentences depicting his or her character, prospects of marriage, and other readings concerning his or her future. In addition, at certain intervals, there is dropped into a receptacle at the bottom of the machine metal slugs, or tokens, varying in number from two to 20. It is agreed that these have no monetary value, and cannot be exchanged for merchandise or other things of value. They may be replaced in the machine and played for the purpose of seeing the amusing sentences above referred to. When so used no mints or candy is secured. It will thus be seen that the facts in this case and the case at bar are quite different. In the instant case the player of the machine only secures one and one-half cents worth of “red hots”, and nothing else if he does not secure a prize. The sole inducement is a chance to secure the prize, which is of more value than the amount invested. The court says:

“The ordinance which the defendant is alleged to have violated requires that a slot machine must be a gambling device before it can be declared a public nuisance. We hold that a mere vending machine by which merchandise is dispensed in a uniform quantity to each purchaser, although the price may be deposited in a slot in such machine, is not what is meant; the use of a vending machine is not unlawful where such machine cannot be played for money, property, checks, credits, or any representative of value as the terms are used in the ordinance.”

From this statement it will be noted that it was the intention of the court to hold lawful only a vending machine by which merchandise is dispensed, where the operator secures only the merchandise, and of the exact value of the ainount invested; and where no element of chance is permitted. In other words, it was the intention of the court in this case to hold that the sale of popcorn, peanuts, cigarettes and other merchandise was not unlawful by reason of the fact that it was sold by the operation of a vending machine and full value was given, and there was no element of chance, and no effort to secure something of greater value than the amount invested.

As will be noted from the cases hereafter cited, many of them hold that the machines which offer amusement features as in this case are operated for value and come within the classification of gambling devices. This is especially true where metal slugs or checks are secured at intervals and deposited in the machine to secure the amusement features. Harvie v. Heise, 150 S.C. 277, 148 S.E. 66; Id., 279 U.S. 822, 49 S. Ct. 351, 73 L. Ed. 976; State ex rel. Manchester v. Marvin, 211 Iowa, 462, 233 N. W. 486; Painter v. State, 163 Tenn. 627, 45 S.W. 2d 46, 81 A.L.R. 173; Colbert v. Superior Confection Co., 154 Okla. 28, 6 P. 2d 791.

In the case of Harvie v. Heise, supra, it is said [page 69]:

“In addition to what has been said, even if it should be conceded that it is the sincere purpose of the owner, that the checks be played only for the amusement of the operator, we cannot say that they have no value whatever; for it must be that the amusement or entertainment furnished the player is worth something to him if it constitutes the inducement for him to operate the machine. It is idle to argue that he would spend his money and time in operating the machine for the purpose of obtaining something that is of no value to him — unless we impute to him the lack of that common sense which he is presumed to have. Further, especially in view of the high cost of amusement or entertainment and the immense sums paid for it by people of all classes, it is reasonable to suppose that the owners of the machine, if they expect the amusement or entertainment furnished to operate as an inducement to play, must consider it of some value to the operator. In addition, it is apparent that some cost or expense is necessarily incurred in the manufacture and distribution of these checks or tokens, and the simple assertion that they are of ‘no value’ does not establish that fact. Even the contention that the checks are not the property of ^he player, but loaned him for the purpose of playing the machine only, does not help the cause of the petitioner. He finds himself in the same predicament, namely, that he is lending to the operator something of no value to him, which comes into his possession temporarily as an inducement to play for something that he does not want.
“Viewing the question from all possible angles, we are satisfied that the checks or tokens have some monetary or trade value, and, in view of the fact that they are released by the machine at irregular intervals and in uncertain numbers, the element of chance is always present, and there is no certain and uniform return in value for the coin deposited in the machine. In these respects, the operation or possession of the machine clearly violates the statute in question.”

In the case of Painter v. State, supra, it is said [page 47]:

“The use of machines of the character here involved in the sale of merchandise is a direct effort to arouse and exploit this instinct to gamble, for the profit of local merchants and the nonresident manufacturer. If otherwise, why make the number of checks to be received dependent upon chance? It can have no wholesome effect upon legitimate business, since its tendency is to substitute the lure of an additional uncertain consideration for quality of the merchandise sold as the purchasing inducement. It is sought to clothe the practice of gaming for trifles with the livery of legitimate business and thus cause it to appear respectable. The merchandise is a confection, particularly attractive to youth, and the amusement which may be won by the purchaser is the playing of a game which appeals most strongly to youth. This combination has convinced us of the insidious evil of the display and use of the machine, as a violation of the quoted statute. The case involves not merely the small fine imposed upon the plaintiff in error, but the character of the device employed, and that this character is noxious we have no doubt. The issue is not controlled by the fact that the stakes to be played for are trifling. The fundamental and underlying principle of the offer made by the device to the customer is one of chance and hazard, and fails within the letter and spirit of the statute.”

In the case of Ex parte Fuller, 31 Okla. Cr. 289, 238 P. 512, the court had under consideration the question of the constitutionality of chapter 162, Session Laws of 1925, 68 Okla. St. Ann. § 21 note, which had reference to the taxation of slot machines, and no issue was decided therein which had reference to the question involved in this case.

As heretofore stated the question of whether the operation of slot machines comes within the inhibition of the statutes defining gambling devices has been before the courts of many states. We do not desire to unduly lengthen the opinion in this case by quoting extensively from these cases. The general rule adopted from all the courts is stated in 27 C.J. 989, as follows:

“The various courts have formulated different rules for determining when a slot machine is a gambling device, but one which seems to have been accepted very generally is that, where one who plays a slot machine stands to win or lose money, trade, or checks, by hazard or chance, the machine is a gambling device. The machine is a gambling device where its operation is such that, although the player in any event will receive something, he stands a chance to win something in addition. Some courts hold that a slot machine is not a gambling device where the element of chance is wholly absent, as where the machine indicates with absolute certainty, before the player deposits his coin or check, what he will receive; but other courts hold the contrary on the theory that the machine holds out an inducement to play in the expectation that by the play the machine will be set to indicate a larger reward the following play.” See, also, 12 R.C.L. 729.

We have examined many cases construing statutes of similar import to the one involved in this case. Some of these cases are as follows: City of Moberly v. Deskin, 169 Mo. App. 672, 155 S.W. 842; Harvie v. Heise, 150 S.C. 277, 148 S.E. 66; Id., 279 U.S. 822, 49 S. Ct. 351, 73 L. Ed. 976; State ex rel. Manchester v. Marvin, 211 Iowa, 462, 233 N.W. 486; Painter v. State, 163 Tenn. 627, 45 S.W. 2d 46, 81 A.L.R. 173; Jenner v. State, 173 Ga. 86, 159 S.E., 564; Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S.W. 2d 161; Howell v. State, 184 Ark. 109, 40 S.W. 2d 782; Snyder v. Alliance, 41 Ohio App. 48, 179 N.E. 426; Gardner v. Daugherty, D.C., 10 F. 2d 373; Commonwealth v. McClintock, 257 Mass. 431, 154 N.E. 264; State v. Apodaca, 32 N.M. 80, 251 P. 389; Commonwealth v. Bowman, 267 Ky. 602, 102 S.W. 2d 382; State v. Ellis, 200 Iowa, 1228, 206 N.W. 105; State v. Paul, 46 R.I. 347, 128 A. 12, 38 A.L.R. 71; City of Milwaukee v. Johnson, 192 Wis. 585, 213 N.W 335; People v. Kopper, 253 N.Y. 83, 170 N.E. 501; People v. Spitzig, 133 Misc. 508, 233 N.Y.S. 228; State v. Krauss, 114 Ohio St. 342, 151 N.E. 183; Ross v. Goodwin, D.C., 40 F. 2d 535; Green v. Hart, D.C. 41 F. 2d 854; 38 A.L.R. 73, note; 81 A.L.R. 177, note.

A reading of these opinions will convince one that the machine involved in the case at bar clearly comes within the inhibition of the statute of this state. It has every element of chance; the amount received by the operator when no prize is received is far less than the amount of the investment. The controlling inducement for the playing of the machine is the securing of the prize offered. The amount of candy received is no inducement, and is not often taken by the player. The argument that the proper conduct of the machine depends upon the skill and adaptness of the player is not borne out by the testimony. The witnesses testify that you cannot always win even though you possess skill and ability. If this could be done as suggested by defendant, there would then be no profit but a loss in the operation of the vending machine, and it is hardly probable that the owners would desire to operate the- machines if they were operated at a loss. We quote from some of the above cited cases because the logic and reason used therein is so applicable to the case at bar.

In the case of Harvie v. Heise, supra, it is said:

“We cannot bring ourselves to believe that this alleged amusement would induce customers to play the machines to such an extent as would bring the big returns, through stimulation of trade, claimed by those putting them on the market. It is contrary to reason that players would continue to idle away their time and waste their money operating the machine merely for the so-called amusement; if the playing is for the purpose of seeing the pictures or reading the humorous remarks, or of having a pretended ‘fortune’ told, it must be admitted that such entertainment —which is of the most elementary type — must necessarily soon grow monotonous and fail of its purpose. It is almost inconceivable that persons of any intelligence could be induced to spend money for something they do not want through the prospect of getting something of no value. Such contention does violence to every conception of reason, and is contrary to man’s natural inclination.”

In City of Moberly v. Deskin, supra, it is said [page 844]:

“In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter, but to do violence to the spirit and thwart the beneficent objects and purposes, of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of inventive genius have been allowed by the courts to accomplish no greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling that were made before the advent of the era of greatly expanded, diversified, and cunning mechanical inventions. The chief element of gambling is the chance or uncertainty of the hazard. It is not essential that one of the parties to the wager stands to lose. The chance taken by the player may be in winning at all on the throw, or in the amount to be won or lost, and the transaction should be denounced as gaming whenever the player hazards his money on the chance that he may receive in return money or property of greater value than that he hazards. If he is offered the uncertain chance of getting something for nothing, the offer is a wager, since the operator offers to bet that the player will lose and in accepting the chance the player bets that he will win. Such offer, therefore, is a direct appeal to the gambling instinct, which, it is said, possesses every man in some degree, and it is the temptation to gratify the instinct that all penal laws aimed at gambling are designed to suppress.”

In Commonwealth v. McClintock, supra, 154 N.E. 265, it is said:

“The chance was in the prospect of gaining this prize. This was the incentive which attracted the player. The chance of gain from the second operation was the inducement. It was an appeal to the gambling desire, a temptation to take the chance of gaining a substantial prize by continuing to operate the machine. The machine was a gambling device. It was, in fact, a scheme for the distribution of prizes by chance, the price being paid for a chance of a prize.”

The record in this case reveals that defendant was a resident of Okfuskee county. That he had never violated the law in any way. That it was his purpose to take over the operating of these vending machines only if it was lawful. That he arranged with the officers to be present at the time of operating the machines, so he could be arrested and a test case made thereon before he commenced the operation of same. We deem that this statement should be made in justice to him.

Finding no error in the record, we are of the opinion that the judgment of the county court of Okfuskee county should be affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte THOMAS HERSHAL BURNS.
    No. A-9580.
    Oct. 21, 1938.
    (83 P. 2d 610.)
    Kenneth B. Kienzle, of Shawnee, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an original petition for a writ of habeas corpus wherein the petitioner, Thomas Hershal Burns, alleges he is unlawfully imprisoned and restrained of his liberty by Elza Evans, sheriff of Pottawatomie county, Oklahoma, and the jailer of said Pottawatomie county.

That the cause of said restraint according to the best knowledge and belief of your petitioner is: That he was taken before Judge Leroy Cooper, and informed that he had convicted himself and that he was guilty of public drunkenness; that said judge thereupon sentenced him to 20 days in the county jail and to pay a fine of $25, and all cost of the prosecution in the district court of Pottawatomie county, Okla., in case No. 4195, in which he was tried and acquitted by a jury on a charge of drunken driving.

Petitioner further alleges that said restraint is illegal and unauthorized in that your petitioner is restrained of his liberty and unlawfully imprisoned; that the crime of drunkenness is a misdemeanor; that your petitioner was never tried in a justice of the peace court, or any court of proper jurisdiction for the crime for which he is imprisoned; that your petitioner was never allowed to plead to any regularly filed charge; that your petitioner was never allowed bail and was not allowed a jury trial; that he has been deprived of his constitutional rights; that if he had been regularly charged with the crime for which he is imprisoned he would have pleaded former jeopardy, and he now pleads former jeopardy, in that he was duly charged, tried and acquitted by a jury in Pottawatomie county, Okla., in the district court, in case No. 4195 on the district court docket. That the statute forbids a prosecution twice for the same offense.

Upon the filing of a sworn petition this court issued a rule to show cause on the 14th day of October, 1938, returnable on the 18th day of October, 1938, at 10 o’clock a.m., in the courtroom of the Criminal Court of Appeals of the state of Oklahoma, Capitol Building, Oklahoma City, Oklahoma; which rule was duly served on Elza Evans, sheriff of Pottawatomie county, Okla.

At ten o’clock a.m., on the 18th day of October, 1938, the day the rule was made returnable, the petitioner, together with his counsel, Kenneth B. Kienzle, attorney at law, Shawnee, Okla., appeared, and the Attorney General appeared by his assistant, Jess L. Pullen; no response was filed by the sheriff, and no reason given why the response was not filed. The court proceeded to examine the petition, taking testimony of the petitioner in open court, and heard the argument of counsel for petitioner, and the case was regularly submitted.

It is the universal holding of this court that facts duly alleged in a sworn petition for a writ of habeas corpus and not denied by the respondent are considered as admitted and must be taken as true.

In Ex parte Wood, 58 Okla. 278, 159 P. 483, the Supreme Court held that where an officer, charged with an unlawful restraint, neglects to make a return to a writ of habeas corpus, and the petition duly verified on its face shows that the petitioner is by said officer illegally restrained of his liberty, no legal cause for the restraint appearing, such petitioner is entitled to his discharge.

In the opinion it is said:

“While the court has ample power to enforce obedience to its order by attachment, and require that the sheriff shall make a return to the writ, we are not required to do so, but may proceed in a summary way to determine the cause upon the verified and undenied petition.”

In Ex parte Pruitt, 31 Okla. Cr. 294, 238 P. 501, this court held:

“In a habeas corpus proceeding, where an officer charged with an unlawful restraint neglects to make a return to a rule to show cause why the writ should not issue, and the petition, duly verified on its face, shows that the petitioner is by said officer illegally restrained of his liberty, no legal cause for the restraint appearing, such petitioner is entitled to his discharge.”

In Whitten v. Tomlinson, 160 U.S. 231, 16 S. Ct. 297, 40 L. Ed. 406, and in Kentucky v. Powers, 201 U.S. 1, 34, 26 S. Ct. 387, 50 L. Ed. 633, 648, 5 Ann. Cas. 692, it is held that in a petition duly verified for a writ of habeas corpus “facts duly alleged and not denied are admitted true.” To the same effect is Matter of Depue, 185 N.Y. 60, 68, 77 N.E. 798, 800.

In Ex parte O’Connor, 80 Cal. App. 647, 252 P. 730, in the seventh paragraph of the syllabus it is held:

“In habeas corpus proceeding, where matters included in petition are not denied in return, they are considered as admitted and must be taken as true.” Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758.

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


author: DOYLE, J.

text:
    DON NOWLIN v. STATE.
    No. A-9416.
    Oct. 21, 1938.
    (83 P. 2d 601.)

      W. H. Cooper, of Anadarko, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction for the crime of grand larceny, alleged to have been committed in Blaine county, on or about the 30th day of November, 1933.

The plaintiff in error, Don Nowlin, and Edward Peek were jointly charged with the theft of approximately 900 pounds of picked and snapped cotton in the seed, of the value of $22.50, the personal property of Clarence Hoffman.

A severance was granted. Upon his separate trial the jury returned their verdict, finding the defendant, Don Nowlin, guilty of grand larceny as charged in the information, but were unable to agree upon the punishment. His motion for new trial was denied on May 8, 1937, and he was sentenced by the court to serve a term of 15 months in the penitentiary at Granite.

It is assigned as error that the verdict of the jury is contrary to the law and the evidence, and is not sustained by sufficient evidence.

The evidence for the state shows that, on the date alleged, Clarence Hoffman was living on a farm about three miles northeast of Greenfield, and that evening left a wagon load of cotton in the field, about half a mile from his house. The next morning, Thanksgiving Day, he found about one-half of the load of cotton was gone. That he called his father-in-law, W. T. Cooper. They found car tracks leading from the highway through a gate to the cotton wagon. The tracks of the rear tires were alike; the tracks of one front tire was that of an old casing, the other of a newer one. That some of the footprints around the wagon and near the gate showed a “U” piece on the heel that made a plain imprint. That they followed the car tracks leading from the wagon back to the highway where it appeared the car went north. Proceeding to Wa-tonga to notify the sheriff, they found an old Ford car, loaded with cotton, parked near the courthouse.

The testimony of John Gose, sheriff, and Charley Sherrill, undersheriff, shows or tends to show the following facts and circumstances: That together, about 2 o’clock in the morning of Thanksgiving Day, they met the defendants about two miles south of Canton, on the road to Watonga, in a Model T Pickup Ford; in passing, noticed that the car was loaded with cotton; they turned their car and overtook the defendants within a mile; the defendant Nowlin was driving the car; they asked where they got the cotton in the car; the defendant said, “South of Eagle City from a fellow named McCarley.” With the defendants they went to Eagle City. There sheriff sent Sherrill to see McCarley; when Sherrill returned he told the sheriff that McCarley said they did not get any cotton at his place. Then they went on to Watonga, placed the defendants in jail and parked their car with the load of cotton near the courthouse. About 11 o’clock the next morning Mr. Hoffman and Mr. Cooper appeared at the courthouse and reported the theft of the cotton. The officers then went to the jail and asked the defendants for their shoes, which they took to the cotton wagon and there measured the foot tracks near the wagon and at the gate. The defendants’ shoes exactly fitted the shoe tracks found there. They examined the tire tracks of the defendants’ car and found they were identical with the tire tracks they found between the highway and the cotton wagon. The sheriff sold the cotton in the car to the gin at Watonga; it weighed 875 pounds and he received therefor $22.50, and was holding the money subject to the order of the court.

Arnold Goerke testified that he was running a cotton gin at Watonga for the past 10 years, produced the scale ticket for the cotton sold to him by Sheriff Gose, eight or nine sacks, weighing 875 pounds; that the reasonable market value of the cotton at that time was 2% cents a pound.

Murry Northcutt testified that he was manager of the Lyon Gin at Grandfield; purchased a half a load of cotton about November 30th from Clarence Hoffman; that he knew the value of cotton and the fair market value of the cotton of that quality and character at that time was 2y2 cents a pound.

As a witness in his own behalf, Don Nowlin testified that in November, 1933, he was living near Canton; that T. M. McCarley, his second cousin, lived near Eagle City, 200 or 300 yards off Highway 270; that on November 29th, he returned a borrowed horse to McCarley; that Edward Peek came there to get his car, a Model T. Ford Roadster, with the turtle-shell taken off, that McCarley had borrowed; that there was cotton in the car; that they left McCarley’s place about one o’clock, and were stopped on the road by the officers. Asked where they got the cotton and he told the officers they got it at McCarley’s place, near Eagle City; the officers said they would all go to McCarley’s.

He further testified that he never stole any cotton from Mr. Hoffman or any other person.

On the part of the defense, R. W. Judd testified that he lived in Caddo county, has been raising cotton about 15 years, and knew the fair market value of seed cotton in November, 1933, and it was $1.50 to $2 a hundred.

' Verlin Hite testified that he lives in Caddo county, that on the 29th day of November, 1933, the defendants were at his place, they were driving a Model T. Ford; ■ that he asked them to stay all night, and they said they had to be going; that they had to make a little money that night; that he had been raising cotton all his life and knew the value of snapped cotton in November, 1933, and the customary price was from $1.50 to $2.

Fred Petty testified that he was a cotton buyer, and that he looked at the cotton in the Model T. Ford, parked near the courthouse, and made the statement that he did not think the cotton was worth $20.

Elmer Dickens testified that he worked at the gin there, November, 1933, and was familiar with the value of cotton and the top value of good snapped cotton at that time was $2.15.

Tom Nowlin testified that he lives 12 miles east of Mineo, raised cotton all his life and knows the value of good snapped cotton in November, 1933, and at that time it was worth from $1.50 to $1.75.

T. L. McCarley testified that the undersheriff was out at his place on or about November 30, 1933, to see him about some cotton; that he did not sell Don Nowlin or Edward Peek any cotton.

When the state rested, the defendant interposed a demurrer to the evidence and moved for a directed verdict of acquittal, on the ground that the evidence was insufficient to show that said defendant committed the crime charged in the information, which was overruled. Exception taken.

It is urged that the court erred in overruling the demurrer and motion for a directed verdict of not guilty, because evidence was not sufficient to support a conviction, in that the state failed to prove the value of the cotton alleged to have been stolen was of the value of more than $20.

An examination of the record leaves no reasonable question in our minds as to the sufficiency of the evidence to justify the submission to the jury of the question as to the defendant’s guilt, and we think the evidence is without a doubt sufficient to sustain the verdict and judgment.

Several errors are assigned which relate to rulings of the court upon the admission of evidence.

In the case of Ricketts v. State, 23 Okla. Cr. 267, 215 P. 212, this court held:

“Forcibly taking shoes from a defendant under arrest for purposes of comparison of footprints does not violate his constitutional right not to be compelled to give evidence against himself.”

Complaint is made as to the introduction of cotton samples, state’s exhibits one and two.

An examination of the record shows that these exhibits were sufficiently identified and properly admitted.

One of the grounds of the motion for new trial and here assigned as error is that the court erred in permitting private counsel, namely, Ted R. Fisher, to prosecute the defendant without having been duly appointed as deputy prosecuting attorney of said county, in the absence of Nelson Crow, the duly elected, qualified and acting county attorney of said county, who was not present at said trial.

The record shows that Mr. Fisher was county attorney at the time the prosecution was instituted and as such filed the information in the case.

The record recites:

“A jury was duly impaneled and sworn to try said cause, counsel for the state, at the direction of the court, read the information, stated the plea and made an opening statement to the jury, after which testimony was introduced by the state, as follows.”

The record shows that no objection was made, or exception taken to Mr. Fisher appearing as counsel for the state. The record does not show that Nelson Crow, county attorney, was not present during the trial, and does not show who was appearing for the state in the examination of the witnesses for the defense.

Our Procedure Criminal provides:

“If the county attorney fails, or is unable to attend at the trial or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial.” Section 3056, St. 1931, 22 Okla. St. Ann. § 859.

In the case of Baggett v. State, 35 Okla. Cr. 119, 248 P. 875, this court held:

“The district courts of this state have the power to appoint a suitable person to perform for the time being the duties required by law to be performed by the county attorney, when the county attorney shall be absent from the county, or unable to attend to his duties, or disqualified in any particular case. Aside from any statute this power is inherent in a court of general jurisdiction.”

And see Bethel v. State, 8 Okla. Cr. 61, 126 P. 698; Hisaw v. State, 13 Okla. Cr. 484, 165 P. 636; Teeters v. State, 49 Okla. Cr. 13, 292 P. 879.

It has been repeatedly held by this court that only those questions can be considered on appeal, unless jurisdictional or of a fundamental character, which were raised in the trial court on exceptions taken, and unless incorporated in the motion for a new trial, and thereby submitted to the trial court, the same will not be considered on appeal. Kennamer v. State, 59 Okla. Cr. 146, 57 P. 2d 646.

This court has often held that on appeal the burden is upon the appellant to establish both error and prejudice resulting therefrom. Upon the record before us there is nothing in this assignment to justify this court in interfering with the judgment.

Another assignment is:

“That the court erred in the giving of supplemental instructions after the jury had retired to consider its verdict, at the request of the foreman of said jury, and in the absence of the defendant.”

The record shows that the court gave a supplemental instruction to the jury as to the right to return a sealed verdict. It does not appear from the record that the defendant was not personally present when the supplemental instruction was given. It appears from the record that the jury returned its verdict on the day the case was submitted, and it was not a sealed verdict.

We think there is no merit in this assignment.

The record fails to show that any objection was made during the trial, because of absence of the defendant, and it appears that no such objection was embodied in the defendant’s motion for a new trial.

In the case of Burns v. State, 8 Okla. Cr. 554, 129 P. 657, this court held:

“Unless the record affirmatively shows the absence of a defendant during his trial, the question that he was not present at such trial cannot be raised for the first time upon appeal.”

In the case of Woodring v. Territory, 15 Okla. 309, 310, 81 P. 631, the Supreme Court of Oklahoma Territory held:

“Where the record shows the presence of the defendant in a criminal case at a session of court it will be presumed that he continued to be present in court during the day, or until the first adjournment, unless the contrary is made to affirmatively appear.”

It must be taken as settled in this state the rule that error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise the judgment of the trial court will be affirmed. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Chappelear v. State, 10 Okla. Cr. 392, 136 P. 978; Ables v. State, 35 Okla. Cr. 26, 247 P. 423.

No other reason for a reversal of the judgment being urged, and no substantial error appearing in the record, the judgment to the district court of Blaine county herein is affirmed.

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


author: BAREFOOT, J.

text:
    AARON MILLER v. STATE.
    No. A-9362.
    Oct. 28, 1938.
    (83 P. 2d 879.)
    A. L. Commons, H. E. Chandler, and J. G. Austin, all of Miami, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and William E. Poteet, of Miami, for the State.
   BAREFOOT, J.

An information was filed in the county court of Ottawa county, charging the defendant with the unlawful possession of intoxicating liquor. He plead guilty and was sentenced to pay a fine of $50, and serve 30 days in jail. From this judgment and sentence he has appealed.

The state has filed a motion to dismiss the appeal, and no response has been filed thereto. Counsel for defendant having filed a brief upon the merits, we have decided to pass upon the merits of the case.

The facts shown by the record are: The information was filed on December 16, 1936, charging defendant with the unlawful possession of 48 quarts and 452 pints of whisky on December 14, 1936. When he was arraigned on December 16, 1936, defendant entered a plea of guilty. An order was entered deferring his sentence to February 1, 1937, and fixing his bond at $500. On the 2nd day of March, 1937, an order was made on motion of defendant and his counsel, as follows:

“Now on this the 2nd day of March, 1937, comes the defendant, Aaron Miller, by his attorney, Conn Linn, and requests a further extension of time for sentence and judgment, and it appearing that the day originally set for judgment and sentence in this case was the 1st day of February, 1937, and it having been continued by agreement of the defendant and the county attorney to this date on account of illness alleged by the defendant;
“It is therefore ordered that the date for sentence and judgment on the defendant be and the same is hereby extended to the 5th day of April, 1937, and that said date is set for the sentence and judgment of the court. (Signed: John H. Venable, County Judge).”

The next order reveals that on the 12th day of April, 1937, an order was made sentencing defendant to pay a fine of $50, and serve 30 days in jail, the defendant to be confined in jail until all of such fine and costs are paid. Notice of appeal was given, and appeal bond fixed at $500. In the journal entry of judgment it is stated that an order was entered on the 5th day of April, 1937, continuing the same until April 11, 1937, for sentence. On the 15th day of April, 1937, a motion for new trial was filed by defendant, and on the 8th day of June, the same was overruled, and an extension of 40 days was granted for the purpose of filing an appeal in this court. The case-made was served on the county attorney on June 23, 1937. The case was filed in this court on July 17, 1937.

The contention of defendant is expressed in the brief filed by his attorney, as follows:

“To our mind this case presents only one question: Did the judge in postponing sentence postpone it to an unreasonable time?”

In order to sustain this contention counsel for defendant calls the attention of the court to one case, that of Collins v. State, 24 Okla. Cr. 117, 217 P. 896. A careful reading of this case will reveal that it does not sustain the contention of defendant, but on the other hand fully sustains the action of the trial court, as applied to the facts in this case. The facts in that case were that a period of nearly five years elapsed from the time the court appointed for the time to pronounce sentence. At the time appointed for sentence on January 25, 1917, the defendant did not appear for the reason that he was in the hands of the United States Marshal for the purpose of being transported to the federal penitentiary. The court entered an order staying the proceedings until such time as the defendant should be out of the custody of the United States Marshal. No definite date was set. This proceeding was had in the superior court of Muskogee county, and by an act of the Legislature the superior court of Muskogee county was abolished effective March 24, 1921. Laws 1921, c. 47, 20 Okla. St. Ann. c. 5, note. The county court of Muskogee county, on September 21, 1921, as the successor of the superior court, entered the judgment and sentence. The court held:

“That, in view of the length of time elapsing between the verdict and sentence, nearly five years, and the failure of the trial court to enter judgment at the time appointed or at the succeeding term, and as no definite time was fixed within which sentence would be pronounced in the order of the trial court entered March 17, 1917, the trial court lost jurisdiction to pronounce judgment. Therefore the county court, as the successor of the trial court, was without jurisdiction to pronounce judgment and sentence.”

The court in this opinion refers to the case of Beaubein v. State, 13 Okla. Cr. 440, 165 P. 213, and Ex parte Sparks, 9 Okla. Cr. 665, 132 P. 1118, which are somewhat similar to the case at bar. In those cases it is held:

“The statute does not require that a judgment must of necessity be pronounced at the same term of the court at which a verdict of guilty in a criminal case is rendered. If the court is unable to render judgment at such term, it may be rendered at a subsequent term.”

The court then says:

“It seems to be well settled that, in the absence of a statute to the contrary, sentence need not necessarily be imposed at the same term of court at which the verdict or plea of guilty was had, and, if the court’s purpose in postponing the imposition of sentence is incident to the administration of justice within its conceded powers, and its orders postponing sentence are unconditional and to definite periods, the jurisdiction of the court to impose sentence at a term after the trial term is not affected. Miner v. U. S., 244 F. 422, 157 C.C.A. 48, 3 A.L.R. 995, and see Editor’s Annotation, 3 A.L.R. 1012.”

See, also, Stone v. State, 55 Okla. Cr. 209, 27 P. 2d 1057; Stuckey v. State, 47 Okla. Cr. 423, 288 P. 394.

The rule here stated applies to the facts in the case at bar. Proper orders were made by the court for the extending of the time to pass sentence. These orders were made at the request of defendant, and upon the grounds of his illness. Certainly he should not be allowed to take advantage of the extension which he had requested. There was no unusual delay, as in the Collins Case, supra. There was no question of the court losing jurisdiction to pronounce judgment on the verdict rendered. There should be no long or unreasonable delay in passing upon motions for new trials, or upon passing sentences. This is for the benefit of both the state and defendant.

We do not think the delay in this case was unreasonable under the facts presented, and for this reason the judgment and sentence of the county court of Ottawa county is affirmed.

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


text:
    JOHNNY WHITWELL v. STATE.
    No. A-9432.
    Oct. 28, 1938.
    (83 P. 2d 881.)

      R. K. Robertson, of Sapulpa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   DOYLE, J.

On information charging that in Creek county on the 14th day of September, 1935, Johnny Whit-well did have in his possession two and one-half pints of whisky and one-half pint of gin, with the unlawful intention of selling the same, he was convicted, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and serve a jail term of 30 days.

To reverse the judgment he appeals and assigns as error the insufficiency of the evidence to sustain the verdict, and:

“That the court erred in overruling the defendant’s motion to suppress the evidence obtained under a purported and illegal search warrant, for the reason that no legal affidavit was filed upon which said warrant could issue, and that no copy of a search warrant was ever served upon the defendant, and that said warrant was not issued, served and returned as required by law.”

The record recites that when the case was called for trial the county attorney stated:

“We have made diligent search for the original search warrant in this case, and it cannot be found in the court clerk’s office. The affidavit for the search warrant was executed on the 14th day of September, 1935 by Curt Brumley, and subscribed and sworn to before your Honor. The information is gone. Not in the files, and we ask permission at this time to offer a certified copy of the information. Mr. Robertson: Your Honor, please, we will agree to the substitution. Mr. Harris: We are ready, your Honor. Mr. Robertson: We have a motion to suppress. We would like to have Mr. Brumley sworn.”

Curt Brumley testified that he is a deputy sheriff and made affidavit for a search warrant in this case before the county judge.

The affidavit, omitting situs, reads in part as follows:

“Curt Brumley, being first duly sworn, on his oath states: That intoxicating liquors are being sold, bartered and given away, and are being kept and stored for the purpose of sale, barter and gift, in violation of the prohibitory laws of the state of Oklahoma, on the following described premises and the buildings thereon, to wit:
“Lot 6, Block 37, original town of Sapulpa, Creek county, Oklahoma, said premises occupied by Johnny Whitwell.
“That the reason for affiant’s knowledge and belief as aforesaid is that he has been told by several persons that liquors are being kept, stored, bartered, sold and given away on and about said premises; that the names of such persons are at this time unknown to affiant.”

He further testified that he made twelve or possibly fifteen affidavits for search warrants that day, and they were all the same.

Cross-examination:

“Q. Did you obtain a search warrant upon this affidavit? A. Yes, sir. Q. Did you execute it? A. I think Mr. Chandler did. Q. Now, upon what did you base your information that intoxicating liquor was kept, stored, bartered, sold or given away from the above and said premises? A. Just as I said, rumors, and what people said. Q. Who told you? A. Two or three. I could not tell you who it was. The Court: Mr. Brumley, you have rumors of places that you don’t investigate, don’t you? A. Some, not many. Q. But you didn’t make search upon all the rumors you had? A. Well, not all of them, no. Q. No, you didn’t ask a search warrant and search all the places you had rumor on? A. No, sir. The Court: Motion overruled. (Exception.)”

A substantial statement of the evidence follows:

Lee Snyder testified, as court clerk, he has custody of the files in the case of State v. Johnny Whitwell. Asked:

“Q. Have you ever seen the original search warrant? Answered: I would not say that I have seen the search warrant, I have seen the rest of the papers. Q. Have you seen the affidavit for a search warrant? A. Yes, sir. Q. I hand you what has been marked ‘State’s Exhibit One’, tell the court and jury exactly what that it? A. That is an affidavit for search warrant to search lot 6, block 37, original town of Sapulpa. Q. And what court was that issued from? A. George D. Willhite, county judge. County Attorney: I ask that it be offered in evidence. (Over the defendant’s objection the affidavit was admitted in evidence.)”

Curt Brumley testified that he is a deputy sheriff, under Lew Wilder, sheriff, and made a search of what is known as Johnny’s Cafe on or about September 14, 1935, that he had a search warrant and served it on Johnny Whitwell.

He further testified:

“Q. What did you find? A. I don’t know, two or three pints of whisky, I don’t know just exactly what it was. Q. Where did you find it? Mr. Robertson: Object to this testimony and ask it be stricken unless the search warrant is proven, because that is the only authority by which this evidence can get into this record and to the jury. The Court: Further qualify the witness. Q. Did the search warrant contain the same description? A. I would have to check it on the book down there to see. I know it did. Mr. Robertson: We object and ask that the answer be stricken. The Court: He said he knew it. Objection overruled. (Exception.)”

On cross-examination he was asked:

“Now, Mr. Brumley, did you testify just prior to this case, on motion to suppress evidence? A. Yes, sir. Q. And didn’t you testify then that Mr. Ben Chandler served the search warrant? A. I don’t think so.”

Redirect-examination:

“Q. Did you make a return to the search warrant? A. Yes, sir. Q. And who did you make the return to? A. To the undersheriff, Mr. Pickett. Q. Did the return you made on the search warrant show the amount of whisky you recovered at that place? Objected to as not the best evidence. The Court: Overruled. Exception.)”

Ben Chandler testified that he was a deputy sheriff under Lew Wilder, sheriff.

He further testified as follows:

“Q. Did you assist Mr. Brumley in making the raid? A. The both of us, yes, sir. Q. Who served the search warrant there? A. Curt Brumley. Q. Did you find anything there? A. I didn’t.”

Carson Antrikin testified that he was a deputy sheriff, appointed by Lew Wilder, and was present when the search was made at Johnny’s Cafe.

Asked what was found if anything.

Over the defendant’s objection that the search warrant would be the best evidence. Answered: “Curt Brum-ley found the whisky, I was in the front of the restaurant at the time.”

Curt Brumley recalled testified as follows:

“Q. I will hand you what has been marked as ‘State’s Exhibit 2.’ and tell this court and jury what it is? (Objected to as incompetent, no lawful search having been proven for the admission of such evidence.) The Court: Objection overruled. (Exception.) A. Pint of whisky taken from Johnny Whitwell’s Cafe. Mr. Collins: Ask that it be offered. (Same objection as heretofore made. Overruled. Exception.)”

At the close of the state’s evidence the defendant demurred thereto and moved for a directed verdict of acquittal. Overruled. Exceptions.

Thereupon the defendant requested the court to instruct the jury that no seizure or search can be made only upon a valid and lawful search warrant, and the state has not proven any such existed in this case, and therefore they should acquit the defendant. “The Court: Refused. Exception allowed.”

On the motion for new trial hearing, Margaret Jennings, called as a witness, testified that she served as court reporter and reported the case. Asked if the state offered in evidence a bottle of bonded whisky, identified by the witness, Curt Brumley. Counsel for the state objected on the ground that Mr. Robertson had opportunity at the time this evidence was offered to make an objection. Mr. Robertson stated:

“I appeal to the record. I objected to the introduction of this evidence. The Court: All right. Objection sustained.”

Thereupon Mr. Robertson offered to show by this witness that she as such reporter marked the bottle as “State’s Ex. 2, Oct. 13-1937. Margaret Jennings, Rep.” That on this bottle there appears the statement: “This whisky taken in raid at Johnny’s Cafe, the same being the place of Johnny Whitwell. Officers Ben Chandler and Curt Brumley. Dated 11-12-1936.” And that at the time this bottle was offered and received in evidence there was a government seal thereon of the Internal Revenue Department of the U. S., that covered the top of the bottle, and had not been broken, and on said seal there appeared the government stamp of the year 1936; that said seal was intact when it was received by her and that it was intact when it was turned over by her to Mrs. Hayes, the regular court reporter, and offered to show by this witness that a portion of the seal which contained the year 1936 stamped thereon has been torn off. That she would so testify if permitted to do so.

“The Court: Objection sustained. Exception allowed. The Court: The statement that this court is going to make does not apply to Mr. Robertson, but this court is going to make this statement: That it is evident from the circumstances in this case that there has been some evidence fixing going on in this case. The evidence shows that this raid was made September 14, 1935, and the label on this bottle here bears an entirely different date from what the date alleged in the information bears, and there must have either been some very gross error on the part of somebody unintentionally, or some intention on the part of somebody who had something to do with that evidence. The Court (continuing): This motion for new trial is overruled. (Exception.)”

It is evident from the record that the defendant was convicted, the evidence and the law to the contrary notwithstanding.

Probable cause for the issuance of a search warrant is a mixed question of law and fact, and the true test of sufficiency of complaint or affidavit to warrant the issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon if any material allegation contained therein is false. Mason v. State, 60 Okla. Cr. 392, 64 P. 2d 1238.

The statute, section 2644, St. 1931, 22 Okla. St. Ann. § 1264, of the Prohibition Enforcement Act, provides that:

“Any officer willfully making a false affidavit, as provided in section one of this act, shall be guilty of perjury, and upon conviction therefor shall be imprisoned in the penitentiary not less than two years nor more than five years for each offense.”

It is a well established rule of the law of evidence that the best evidence must be produced of which the nature of the case is capable.

The rule of evidence shall be produced, to the exclusion of secondary and hearsay, is violated by the admission of oral testimony to show the contents or recitals of a search warrant.

The statement of the custodian of a record as to its contents is no more valuable than the statement of any other person who has read it. The record itself is the evidence, and the affidavit and the warrant issued thereon is the best evidence of what they contain. Where the record is lost or destroyed, the statute, section 810, St. 1931, 67 Okla. St. Ann. § 1, provides the procedure for substitution. Uhlenhake v. State, 58 Okla. Cr. 248, 52 P. 2d 117.

Section 3233, St. 1931, 22 Okla. St. Ann. § 1233, provides that a return to a search warrant shall be verified by the affidavit of the officer. The written return to the execution of a search warrant is ordinarily the best evidence as to what the executing officers did. Welch v. State, 30 Okla. Cr. 330, 236 P. 68.

Section 2635, St. 1931, 37 Okla. St. Ann. § 84, of the Enforcement Act, provides in part as follows: “and to make return of said warrant within three days, showing all acts and things done thereunder, with a particular statement of all property and things seized.’5

Section 2642, St. 1931, 22 Okla. St. Ann. § 1261, of the Enforcement Act, provides that in all cases where intoxicating liquors shall be seized by an officer-, with or without a search warrant, such officer is required within five days to make a written report under oath and file the same with the county clerk of the county where the same shall be so seized, which report shall state the name of the officer or person making the seizure, the place where seized, and an inventory of the intoxicating liquors so taken into possession. The sheriff and his deputies shall be required to make the affidavit and otherwise comply with the provisions of this act, provided that all liquors so seized shall be preserved for use as evidence in the trial of any action growing out of such seizure, and all officers seizing any such liquors are hereby required to mark the bottles or containers for identification by writing thereon the date of the seizure and the name of the person from whom seized.

Under section 2654, St. 1931, 37 Okla. St. Ann. § 94, of this act, all sheriffs, constables, marshals, and police officers are required to do and perform their duties as required by the provisions of this act. If any such officer shall fail and refuse to do or perform any duty required by the provisions of this act, he is subject to being removed from office as therein provided.

The Enforcement Act does not make invalid what was legally done under authority of a search warrant by failure of the officer to make due return thereon.

This court has held that a search warrant, otherwise valid, which has been executed within ten days from the time it was issued, is not rendered invalid by failure of the officer to make return thereon. Viadock v. State, 30 Okla. Cr. 374, 236 P. 56; Youngblood v. State, 32 Okla. Cr. 336, 240 P. 1100.

Upon the record before us We hold that the court erred in the admission of oral testimony against the defendant’s objections to show the recitals of a search warrant, and to show the return of the officer thereon.

And the admission of the affidavit as independent evidence was prejudicially erroneous. Williams v. State, 34 Okla. Cr. 359, 246 P. 895; Weeks v. State, 41 Okla. Cr. 95, 270 P. 858; Bruner v. State, 44 Okla. Cr. 425, 281 P. 319; Ging v. State, 57 Okla. Cr. 20, 42 P. 2d 902; Thornhill v. State, 58 Okla. Cr. 114, 50 P. 2d 415.

The affidavit in this case shows upon its face that it was made on information and belief.

This court has repeatedly held that an affidavit for a search warrant, made on information and belief, is not sufficient to authorize the issuance of a search warrant, unless the affiant states the facts upon which his belief is based, and shows that the facts stated are within his personal knowledge, and it must appear that such facts are sufficient to constitute probable cause. Garrett v. State, 40 Okla. Cr. 195, 267 P. 683; Bornheim v. State, 39 Okla. Cr. 224, 264 P. 921; Cole v. State, 38 Okla. Cr. 396, 262 P. 712; Sprinkle v. State, 36 Okla. Cr. 36, 251 P. 614; Hancock v. State, 35 Okla. Cr. 96, 248 P. 1115; Hall v. State, 34 Okla. Cr. 334, 246 P. 642.

It follows from the foregoing review that there was no competent evidence showing that the officers had lawful authority to search the defendant’s place, and that all the state’s evidence was improperly admitted in violation of the defendant’s constitutional and statutory rights.

The judgment of the trial court is accordingly reversed, and the cause remanded with direction to dismiss.

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


author: DAVENPORT, P. J.

text:
    ADOLPH WYATT v. STATE.
    No. A-9351.
    Oct. 28, 1938.
    (83 P. 2d 886.)
    Homer Caldwell, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for the State.
   DAVENPORT, P. J.

On rehearing the petition in error of the defendant was sustained and the facts reconsidered by this court. The facts in the record discloses a row between two brothers, Claud and Adolph Wyatt, which resulted in Adolph Wyatt shooting Claud.

Nellie Rector Washington stated:

“I was in the pool hall at the time Claud Wyatt was shot; I was at Claud’s house a short while before the shooting; there was a shot fired at Claud’s house by Adolph; after the shot was fired I left and went down to the pool hall; I saw the shooting at the pool hall by Adolph; I do not know what kind of a gun he used; I heard no conversation between Adolph and Claud Wyatt before the shot was fired. I left immediately after the shot was fired and do not know what happened to Claud. Claud and Adolph are brothers.”

Several other witnesses testified to facts in substance the same as Nellie Rector Washington, from the time Adolph arrived at Claud’s house up to the time of the shooting. The evidence further shows that these two men are brothers; that they are negroes, and live in the same neighborhood and near each other; that there is a large family of children and all mix and mingle together daily.

It is not deemed necessary to set out the testimony in full as there is practically no controversy as to the facts in the case, and the testimony is sufficient to sustain a conviction of an offense if the defendant was granted a fair and impartial trial.

The defendant has assigned 16 errors which he alleges is sufficient to warrant this court in reversing his case. The 12th and 13th assignments of error are as follows:

“That the trial court erred in that it did not provide proper forms of verdict for the jury.
“That the trial court erred in submitting to the jury a verdict carrying this notation: ‘Not over ten years’, in that said notation was suggestive and prejudicial to the jury and that the said defendant was prejudiced thereby.”

These two errors are the only errors the court deems necessary to consider.

The following is the verdict returned by the jury, with all the endorsements thereon:

“Verdict. Not over ten years.
“In the District Court of the Thirteenth Judicial District of the State of Oklahoma Sitting in and for Oklahoma County. State of Oklahoma, Plaintiff, vs. Adolph Wyatt, Defendant. Verdict No. 11115.
“We, the jury, impaneled and sworn in the above entitled cause, do upon our oaths, find the defendant guilty of assault with intent to kill and fix his punishment at imprisonment in the state penitentiary for a term of 7 years. Seven Years.
“D. A. Riley, Foreman.”

Endorsements:

“No. 11115 The State of Oklahoma, Plaintiff, vs. Adolph Wyatt, Defendant. Filed in the District Court of Oklahoma County, Oklahoma, Dec. 8, 1936. Cliff Myers, Court Clerk, By Roger Rogers, Deputy.”

The defendant argues at length and insists that together with other errors committed the form of the verdict submitted by the court carrying the notation on the verdict, “Not over 10 years,” was a suggestion to the jury tending to indicate that the court felt a verdict of guilty should be returned, and only left the punishment to be fixed by the jury.

The defendant further insists that the severity of the punishment imposed on the defendant clearly shows the jury was influenced by the notation on the verdict. There is no explanation made by the state, or anyone interested in the prosecution why the trial court in submitting this case to the jury submitted a form of verdict carrying the notation, “Not over 10 years.” Ten years is the maximum punishment that could be inflicted upon the defendant for the charge against him.

In Sherman v. State, 20 Okla. Cr. 306, 202 P. 521, in the fifth paragraph of the syllabus the court said:

“Trial courts should abstain from giving instructions that might be construed as a comment upon the weight or importance of any particular evidence.”

In this case the question presented is not a question or comment on the evidence, but a question of the court’s action in submitting to the jury a form of verdict containing a notation, “Not over 10 years.” The form of the verdict complained of by the defendant on which the jury returned a verdict of guilty and fixing the punishment of the defendant at seven years in the state penitentiary clearly indicates that in fixing the punishment the jury must have been influenced by the notation on the verdict herein complained of, and that the defendant did not have a fair and impartial trial.

No one can tell what influence the notation on the verdict had on the jury, and to what extent it influenced the jury in arriving at its verdict fixing a penalty of seven years. J urors pay a great deal of attention to what the trial court says or does in the trial of a case, and any action or remarks by the court which indicates the feeling of the court is observed by the jurors and often the jury will go beyond the evidence and consider the action and remarks of the court.

It was a prejudicial error for the court to furnish the jury with a form of verdict on which was written a notation, “Not over 10 years,” as was done in this case.

We hold that the notation on the form of the verdict submitted to the jury was prejudicial to the rights of the defendant and a violation of his constitutional rights and deprived him of a fair and impartial trial. The notation on the verdict was such that the jury in all probability reached a conclusion that the court wanted the defendant convicted and wanted the jury to have directly before it the maximum penalty provided by law.

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

DOYLE and BAREFOOT, JJ., concur.


text:
    JOE LANE v. STATE.
    No. A-9486.
    Nov. 3, 1938.
    (84 P. 2d 807.)
    Tillman & Tillman, of Pawhuska, for plaintiff in error.

      Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Sim T. Carman, Co. Atty., of Pawhuska, for the State.
   BAREFOOT, J.

The defendant was charged in the district court of Osage county with the crime of assault with a dangerous weapon, was convicted and sentenced to serve a term of two years in the penitentiary, and has appealed.

The first assignment of error is that the court erred in giving instruction No. 10, which is as follows:

“You are instructed that if you find from the evidence, facts and circumstances in proof, beyond a reasonable doubt, that the defendant herein armed himself for the purpose of making an assault upon the prosecuting witness, with the intention then and there existing in his mind to kill or do great bodily harm to the prosecuting witness, and if you further find that under such situation he pointed the gun at the prosecuting witness with the result that said gun was accidentally discharged, then and under such circumstances the fact, if you find it to be a fact — that said gun was accidentally discharged would be no defense to the commission of the crime charged in the information.”

This instruction should be considered together with all the instructions given by the court, and especially with instruction No. 9, which was as follows:

“The defendant herein claims that, upon the occasion complained of in the information, he armed himself for the purpose of defending himself against an assault upon the part of the prosecuting witness; and that, while so armed, he accidentally discharged his gun, which resulted in the injury to the prosecuting witness.
“In this connection, you are told that under the law of this state, every person has the right to defend themselves from an attack or threatened attack from any person or persons. And in this connection, you are told that if the defendant herein, in good faith, armed himself for the purpose of defending himself against an attack upon the part of the prosecuting witness and that the gun which he held in his hands was accidentally or unintentionally discharged, without any unlawful intent upon the part of the defendant to kill or injure the prosecuting witness, then and under such circumstances it would be your duty to find the defendant not guilty.”

It will be noted that in instruction No. 9, the court, in a clear and concise manner, presented to the jury defendant’s theory and contention. He informed the jury that if defendant armed himself for the purpose of defending himself from an assault by the prosecuting witness, and that while so armed, he accidentally discharged his gun without any unlawful intent on his part, and the prosecuting witness was injured thereby, that it would be the duty of the jury to find the defendant not guilty. By instruction No. 10, the court informed the jury that if defendant armed himself for the purpose of making an assault upon the prosecuting witness and that there existed in his mind the intention of killing, or doing great bodily harm, and as a result of this he pointed the gun at the prosecuting witness and it was accidentally discharged, that this would be no defense to the commission of the crime charged in the information. This is a true statement of law and does not, in our opinion, place the burden of proof upon the defendant, nor does it take away the right of the jury to pass upon the question of intent. It leaves the jury to pass upon the question of intent as presented by the facts in this case. Where the defense is based upon accidental death or injury to come within the terms of the statute of excusable homicide by misadventure all of the authorities agree that three elements must be present. First. The act resulting in death or injury must be a lawful one. Second. It must be done with reasonable care and due regard for the lives and persons of others. Third. And the killing must be accidental and not intentional. All of these elements must exist before the defendant is entitled to the protection of the statute on accidental death by misadventure. The rule is stated in 30 C.J., p. 88, as follows:

“Even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act, such as pointing or presenting a gun, pistol or other firearm at another person in such a manner as to constitute an offense under the laws of the state.” Wharton on Homicide, sec. 358, p. 571; Barnes v. State, 134 Ala. 36, 32 So. 670; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416, 417; Sanders v. State, 16 Ala. App. 511, 79 So. 504; Lundsford v. State, 2 Ala. App. 38, 56 So. 89; Lewis v. State, 96 Ala. 6, 11 So. 259, 38 Am. St. Rep. 75; People v. Venckus, 278 Ill. 124, 115 N.E. 880; McDaniel v. State, 156 Ala. 40, 46 So. 988, 21 L.R.A. (N.S.) 678, 130 Am. St. Rep. 74; State v. Reese, 25 Del. 434, 2 Boyce 434, 79 A. 217; Kent v. State, 8 Okla. Cr. 188, 126 P. 1040; Palmer v. State, 17 Okla. Cr. 220, 187 P. 502.

The statute of this state makes it unlawful to point a gun at another. Section 2591, Okla. Stats. 1931, Okla. St. Ann., tit. 21, § 1279.

We have carefully examined the cases cited in defendant’s brief and they lay down the rule that there must be a felonious intent to commit a crime, but they are in no way in conflict with the rule above announced. The court in the instant case instructed the jury under section 1873, Okla. Stats. 1931, Okla. St. Ann., tit. 21, § 652, as charged in the information, where one attempts to shoot at another with intent to kill, and also instructed the jury under section 1870, Okla. Stats. 1931, Okla. St. Ann., tit. 21, § 645, where one commits an assault upon the person of another, or shoots at another with intent to injure another such person, but without intent to kill. The jury found the defendant guilty under the last charge and his punishment was assessed thereunder. Crain v. State, 24 Okla. Cr. 343, 217 P. 888. From an examination of the court’s instructions as a whole, we do not find that defendant was prejudiced thereby. They fairly presented the law of the case and gave to the defendant every right which he had under the law.

It is next contended by the defendant that the court erred in refusing to grant the motion for continuance filed in this case. The motion was as follows:

“Comes now the defendant and moves the court to continue the case against him for the following reasons:
“1. That he has heretofore caused a subpoena to be issued for the witnesses Earl Thomas and Bell Thomas, and that subpoena has not been returned so that the defendant is unable to state whether the witnesses have been served or not, but they are not present and defendant says that he has been informed that they are not in Osage county. That he has been served with a copy of a statement given by them, which statement is different from the sworn testimony of the witnesses given at the preliminary hearing, and that said testimony is material and competent and can not be proven by any other witness and that if present the said witnesses would testify substantially as follows:
“ ‘That they were present at the time of the alleged shooting, and that the said Beebe Morton was advancing upon the said Joe Lane in a menacing manner and had followed said Joe Lane into the house and had threatened him and was attempting to carry out said threat at the time of the shooting. That he was acting in an angry and boisterous manner.’ That this request for continuance is not asked for the purpose of delay, but that substantial justice may be done the defendant.”

Okla. Stats. 1931, sec. 397, Okla. Stats. Ann. tit. 12, sec. 668, provides what is necessary to secure a continuance because of the absence of a witness. The same statute applies to civil and criminal cases. Oklahoma Statutes 1931, section 3055, Oklahoma Statutes Annotated, title 22, section 584. A reading of the motion for continuance filed in this case does not comply with the requisites of the above statute, and as the same has been construed by the holdings of this court. The affidavit does not show that due diligence was used to secure the attendance of the absent witnesses. It only says that affiant has been informed that they are not in Osage county. The application shows that the witness testified at the preliminary examination. It is not shown whether the testimony was taken at that time and transcribed. If so, it would have been available upon proper showing. It does not show the probability of being able to secure the witnesses within a reasonable time. In fact, there is nothing to show due diligence on the part of the defendant to secure the evidence of these witnesses. Merely having subpoenas issued for a witness is not due diligence. Affiant says that if the witnesses were present, they would testify “that they.were present at the time of the alleged shooting”, and that the witness Earl Thomas would testify that the said prosecuting witness Beebe Morton was advancing upon defendant and had threatened him and was attempting to carry out said threat at the time of the shooting. This evidence would be contrary to the evidence of the defendant himself who testified that the witness Earl Thomas had left the room prior to the time that the shooting occurred and was not present at that time. There was no testimony of any one that the witness Bell Thomas was at any time present during any part of the difficulty. An application for continuance is addressed to the sound discretion of the trial court, and unless there has been an abuse of this discretion, a judgment of conviction will not be reversed on appeal. We do not find that the trial court abused its discretion in this case. This court has passed upon many applications for continuance and this has been its holdings from its earliest existence. Lowe v. State, 7 Okla. Cr. 32, 121 P. 793; Seigler v. State, 11 Okla. Cr. 131, 145 P. 308; Petty v. State, 11 Okla. Cr. 438, 147 P. 782; Martin v. State, 35 Okla. Cr. 248, 250 P. 552; Herndon v. State, 35 Okla. Cr. 371, 250 P. 942; Guest v. State, 46 Okla. Cr. 228, 287 P. 818; Wagner v. State, 46 Okla. Cr. 269, 285 P. 141; Wininger v. State, 55 Okla. Cr. 78, 24 P. 2d 664.

It is finally urged that the evidence is insufficient to support the verdict in this case. This proposition is not briefed by defendant. The facts were that the defendant was the uncle of the prosecuting witness. Both were full-blood Osage Indians. They were both residing with the mother of defendant and the grandmother of the prosecuting witness, Randall Morton, who was known as Beebe Morton. She owned an automobile and it seems that each of the boys were in the habit of driving it, and they were jealous of each other. On the day of the difficulty defendant had possession of the car on the streets of Tulsa. He had been gone several days with the car. His mother sent her grandson after it and he found defendant parked in front of a cafe in the city of Tulsa, drinking a bottle of beer. He had with him his ex-wife, Elizabeth Lane, and Earl Thomas. Beebe Morton had taken with him Joe Sisk, who was working for his grandmother. They had some words over the possession of the car, but defendant finally agreed to let Morton have the car if he would take him home. There was a dispute as to where Morton was to take defendant, but he finally took him to the country home owned by his grandmother, and upon which certain tenants were living. The defendant was staying at this home part of the time. The witnesses for the state claimed that defendant had abused and cursed him, and that when he got to the Rosa Lane place he got out of the car, and told defendant he had taken it as long as he was going to, and told him to come out of the car with his “dukes up”. There was some talk and defendant finally got out of the car and went in the house and asked one of the parties for a gun, telling him that Beebe Morton and Joe Sisk were going to jump on him. This party got the gun out from under a mattress and handed it to defendant. It had one shell in it and he loaded it with another he took from a shelf. Defendant’s testimony with reference to the actual shooting was as follows:

“Q. Now, tell us what you did when you went in the house? A. I w'alked in the house and met Lester Barnes, the man that was staying out there and I told him we were having trouble out there, and that Fat and Bee was going to jump on me, Bee took the car and Fat had a contract to drive it, and it was Fat’s place to take the car and besides I had borrowed the car and I said I will just get this gun, I said where is it, and he just went in the bedroom and got it, it Was under the mattress, and I brought it out and there was a shell upon the dresser there and I just reached up and put it in. By the Court: Who got the gun, you or Barnes? A. Barnes, so I took the gun, and by that time Earl came in and went back out. By Mr. Tillman: Earl who? A. Thomas. Q. Go ahead. A. And by that time Beebe came in. Q. Where were you when Beebe first came in the house? A. Well, the kitchen sits here and the dining room and the bedroom here and I was standing right over here in the door. Q. Well, the door to what? A. The door to the bedroom. Q. All right. A. And Beebe came in from the kitchen to the dining room. Q. Now, let me ask you, did he come round in the back part of the house? A. Yes, sir. So I asked him, I said Beebe stop, I didn’t have any intention of shooting him or anything, I just said stop, I asked him three times and I had the gun something like this. Q. Now, did you say you asked him— A. To stop. Q. How many times? A. Two or three times. Q. Did he stop? A. No, he just kept coming. Q. What was his condition or position at that time, with reference to whether he appeared to be angry ? A. Well, he just kept coming. Q. Did he seem excited or otherwise? A. He looked like he was to me. Q. What was your thought, Joe, with reference to whether he was about to begin an attack upon you? A. Well, I didn’t know, I had just — I told him to stop three times, and I just had the gun down this way and I just pulled the trigger. Q. At that time did you intend to shoot him ? A. No, sir, I didn’t intend to shoot him or pull the trigger either, I didn’t think he would come on after I pulled this gun. Q. And the shot from the gun struck him? A. Yes, sir. The Court: Well, you say this was accidental, was that your statement? A. I didn’t intend to pull the trigger when I pulled it, I thought he would stop when I pulled the gun, when he saw I had it I thought he would stop.”

On cross-examination he testified:

“Q. After you got this gun and while you were still loading it, Beebe came in the room. A. Yes, sir. Q. And that is the time you shot him? How big is that room? A. It is about 14 by 12 I imagine; it is 14 this way, the way he was coming. Q. And he advanced to about the middle of the room, hadn’t he? A. Just — no, about one third of the way I guess, but when he came in the door I hollered for him to stop.”

He further testified on cross-examination:

“Q. What did you shoot this boy for? A. I didn’t intend to shoot him when I shot him. Q. Do you say the shot was accidental? A. Well, I just pulled it off before I knew it, because I never went hunting, I don’t know anything about a shotgun. Q. You knew enough about one to load one and shoot him, didn’t you? A. Yes, sir.”

The testimony of the prosecuting witness was that after asking the defendant to get out of the car with his “dukes up,” he told him he was through seeing him come home drunk and that he was going to protect his grandmother, and that if defendant would not come back and annoy her, he would let the matter drop. Defendant then got out of the car and went into the house, and that upon learning that defendant was going to get a gun he stepped inside the door, and as he did so defendant told him to stop, and just at that time the gun fired, and he was struck in the hand and abdomen. That he ran out of the house and defendant followed him, and he said to him, “Uncle, my God, you have shot me,” and he said, “You son of a so and so, I will kill you, you can’t do that to me, I will kill you.” That he then pointed his gun at Joe Sisk and said, “You son of a so and so, you are next.” That Joe Sisk and Earl Thomas had just come in the door after the shooting and they all ran into the yard, and the defendant pursued them with his gun still in his hands. That he ran out from the house and defendant came to where he was and he told him, “he was bleeding to death out here, let me come back,” and he said, “No, go on and bleed to death.” That the defendant then pursued Joe Sisk and Earl Thomas, who had fled from the house. That prosecuting witness was finally brought to the hospital at Tulsa by the ex-wife of defendant. That he remained there for a period of two months. The prosecuting witness’s testimony was corroborated by the witness Joe Sisk. Both swore that the prosecuting witness was doing nothing, or making any demonstration toward defendant before or at the time of the shooting.

Other witnesses testified that immediately after the difficulty they talked with defendant and he said in substance that he did not allow anybody to run over him. That Fat (Joe) Sisk is the one that ribbed the whole deal, and that he was the one he ought to have killed, and he would have but that he ran off.

From the above statement it is clearly seen that the evidence was sufficient to sustain the verdict. The defendant’s own statement does not show that he acted in self-defense. The prosecuting witness was not armed, and was a distance of about twelve feet from defendant at the time he was shot. Under the law, if he pointed the gun at prosecuting witness and pulled the trigger accidentally, as he said he did, he would be guilty under the law.

The jury found him guilty under the statute providing for an assault without intent to kill. A judgment under the attempt to kill statute would have been upheld under the facts in this case. The defendant had a fair trial and is fortunate that the jury did not assess a higher punishment.

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

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