author: BAREFOOT, P. J.

text:
    ROBERT SPARKS v. STATE.
    No. A-9756.
    April 9, 1941.
    (112 P. 2d 434.)
    Brown Moore and Guy Horton, both of Stillwater, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field and Jess L. Pullen, Asst. Attys. Gen., and Leon J. York, Co. Atty., of Stillwater, for the State.
   BAREFOOT, P. J.

Defendant, Robert Sparks, entered his plea of guilty to the crime of larceny of an automobile in Payne county, and was by the court sentenced to serve a term of five years in the reformatory, and has appealed.

This case comes to this court on appeal by transcript. There is no record which reveals the facts surrounding the larceny of this car. The defendant was arrested on the 24th day of April, 1939, as a result of the filing of a complaint against him in the justice of the peace court on the 20th day of April, 1939. An information was filed in the district court on May 1, 1939. On the second day of May, 1939, defendant was arraigned in the district court. The record as amended' shows the following order entered by the court on that date:

“Now, on this 2nd day of May 1939, this cause comes on for arraignment on the information filed herein, charging the defendant Avith the crime of larceny of an automobile. The state is present by its County Attorney, L. J. York, and the defendant is present in person and not represented by counsel. Thereupon the information is read and the court advises the defendant of his constitutional rights, and being thus fully advised, enters his plea of guilty to the crime as charged in the information. Thereupon the court fixes Saturday, May 6th, as sentence day.”

On the 9th day of May, 1939, judgment and sentence Avas entered in the district court of Payne county sentencing the defendant Eobert Sparks to imprisonment in the State Eeformatory at Granite for a term of five years. On the 10th day of May, 1939, there Avas filed in the district court of Payne county a motion which is labeled “Motion to Modify Judgment and Sentence.” In this motion the following grounds were set forth:

“(1) That he is 17 years of age and has never been convicted of an offense against the laws of the State of Oklahoma.
“(2) That he Avas not represented by counsel and did not understand his legal and constitutional rights when he entered a plea of guilty.
“(3) That he is not guilty of the charge.
“(4) That he is offered a job in the State of Illinois and his employment can start immediately.
“(5) That he desires that the court vacate, set aside and hold for naught the judgment and sentence rendered against him, or at least grant to him a parole to* leave the state and take up employment which is now available to him. That he did not have a preliminary hearing and was not advised by counsel of his rights.”

On the 20th day of May, 1939, the court overruled the above motion and the defendant has appealed to this court as above stated from the overruling of said motion.

The motion, while not so labeled, may be considered1 as a motion, for new trial. It is obvious from the reading of the motion that four of the grounds, to wit: 1, 3, 4, and 5, are insufficient to cause a reversal of this case on appeal and need not be considered, except that part of the fifth ground which states: “That he did not have a preliminary hearing and was not advised by counsel of his rights.”

We shall first consider that part of the fifth ground as above stated. The transcript in this case reveals the filing of a complaint in the justice of the peace court, but does not give any of the transcript of the proceedings of that court. It is contended by the defendant that for this reason this case should be reversed. In support of this proposition the following cases are cited: Bandy v. State, 13 Okla. Cr. 468, 165 P. 616; Little v. State, 21 Okla. Cr. 1, 204 P. 305; Williams v. State, 6 Okla. Cr. 373, 118 P. 1006; Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332; Steiner v. State, 33 Okla. Cr. 298, 243 P. 1002.

We have carefully read the above cases. Some of them have no* application to the facts in the instant case. In others, the facts in the case at bar are different from those in the cited cases, as will be hereafter shown, and the opinion, when properly construed, upholds the contention of the state. The facts were that defendant, after the information was filed against him in the district court, voluntarily entered lxis plea of guilty after being informed by the court of bis constitutional rights. He in no way challenged the sufficiency of the information by filing a motion to quash or by plea in abatement. He did not even file a demurrer to the information. In all of the cases cited by defendant the rule has been well established by this court that it is necessary for the defendant to challenge the information in the manner above stated, and if he did not do so he would have been deemed to have waived his rights therein. In the case of Williams v. State, supra [6 Okla. Cr. 373, 118 P. 1008], cited by defendant, the court, speaking through Judge Doyle, says:

“That the defendant did not have a preliminary examination is a fact to be established by the defendant on a plea of abatement or on a motion to quash; otherwise all essential preliminary proceedings will be presumed."

In this case the court quotes from the opinions of other Supreme Courts as follows:

“In the case of People v. Wallace, 94 Cal. 497, 29 P. 950, it was held that:
“ ‘When, as a result of an examination, such an order has in fact been made and entered upon the docket of the justice, it would seem that no further action upon his part is necessary in order to authorize the district attorney to file an information against a defendant for the offense named in the order.’
“In the case of People v. Tarbox, 115 Cal. 57, 46 P. 896, the court used the following language:
“ ‘Good practice requires that the return of the examining magistrate should be made and filed before the information is filed; but we are not prepared to say that the filing of the information after the examination was had, and the order holding the defendant to answer was in fact made, Avas more than an irregularity, which would not justify a reversal of the judgment where it does not appear that it affected any substantial right of the defendant.’
“See, also, People v. Wilson [93 Cal. 377], 28 P. 1061; Ex parte Fowler, 5 Cal. App. 549, 90 P. 958.”

In the case of Muldrow v. State, supra, also cited by defendant, the court says:

“If the defendant upon arraignment pleads to the merits and enters on the trial, he waives the right to preliminary examination, or, if one was held, any irregularities therein.”

In the case of Tucker v. State, 9 Okla. Cr. 587, 132 P. 825, 827, the court says:

“Whether an examination has or has not been had or has been Avaived is a question of fact to be raised by the defendant. If he claims that this constitutional right has been denied to him, he can and should do so when he is arraigned upon the information by filing a plea in abatement, or by a motion to quash or to set aside the information. Williams v. State, supra. The motion to dismiss Avhich we have considered here as a motion to quash is not presented by the record so as to make it available as it appears that said motion was not made until after the defendant had entered his plea of not guilty to the amended information. This plea was never Avithdrawn, nor was there any request to withdraw the same ever made. However, there can be no question but that the defendant’s constitutional right to' a preliminary examination was waived in the first instance; therefore the trial court properly overruled the motion.”

It will thus be seen that the burden was upon the defendant to protect the record by challenging the information, either by the filing of a motion to quash or by a plea in abatement, and having failed to do this, he waived any right he may have had to object to the holding of a preliminary examination or the proper certifying of the transcript from the justice of the peace court to* the district court. See, also, the following cases : Lowrance v. State, 33 Okla. Cr. 71, 242 P. 862; Ables v. State, 35 Okla. Cr. 26, 247 P. 423; Looper v. State, 42 Okla. Cr. 341, 276 P. 503.

The second ground of the motion was: “That he wasi not represented by counsel and did not understand his legal and constitutional rights when he entered a plea of guilty.” This question was briefed by counsel for defend-dant prior to the amending of the transcript. This amendment brought to the record the order made by the court on May 2, 1939, and has heretofore been quoted. This order reveals that the information was read to defendant and the defendant was advised of his constitutional rights, and after being fully advised, entered his plea of guilty. He was sentenced on the 9th day of May, 1939. In cases recently decided by this court, we have held that one has a right to enter a plea of guilty and that he may even waive certain constitutional and statutory rights if his plea is voluntarily entered. Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205; Ex parte Meadows, 71 Okla. Cr. 353, 112 P. 2d 419.

The other grounds in the motion to modify the judgment and sentence are such that would come under the supervision of the pardon and parole power of the Governor of this state through the instrumentalities of his office. The facts in this case, together with the age of this defendant, may be submitted to the Governor as a matter of clemency for such disposition as the chief executive may deem just and proper.

For the reasons above stated, the judgment and sentence of the district court of Payne county is affirmed.

JONES and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    GEORGE PRESSLEY et al. v. STATE.
    No. A-9774.
    April 16, 1941.
    (112 P. 2d 809.)

      Mathers & Mathers and Judd Black, all of Oklahoma City, for plaintiffs in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendants, George Pressley and James T. D. Williams, were convicted in the district court of Oklahoma county of the offense of robbery. The punishment was left to the court, who thereupon sentenced each of the two defendants to serve a term of five years in the State Reformatory; and they have appealed to this court.

The defendants have filed a lengthy brief in which they present 32 assignments of error.

After a review of the record, it is evident that most-of the assignments of error are wholly without substantial merit.

Among the contentions of the defendants, we find only three of sufficient importance, which, when considered together, require a reversal of this case:

(1) The alleged confessions of the defendants were inadmissible as a matter of law.

(2) Admission of evidence of other crimes having no connection with the offense charged.

(3) The misconduct of the county attorney in asking improper questions and making ex parte statements in the presence of the jury, inferring guilt of other crimes to the defendants, was so1 flagrant that the defendants did not receive a fair and impartial trial.

In order to properly discuss these questions, a short summary of the evidence is presented.

In the state’s case in chief, three witnesses were presented: Betty Harbolt, aged twelve; Lizzie Harbolt, her grandmother; and John Butler, a police officer.

Betty Harbolt testified she lived with her grandmother in Oklahoma City. That W. W. Harbolt, the police officer, is her uncle. That on January 7, 1939, about 7:30 p. m., she and her grandmother were walking along in the 3 400 block on West Third street; two' boys, a tall boy and a short boy, walked up and one of them asked what hundred block that was. “I told them it was the 1400 block.” One of the boys then grabbed her grandmother’s purse, which witness was carrying. Witness tried to hang onto the purse, and was knocked down. They jerked the purse away from her and ran. She identified the defendant Pressley as being the person who snatched her purse; and further testified that the Pressley boy lived in the next block to her, but that she had never seen him before.

On cross-examination the witness denied making statements to various parties, in which she said that it was so dark that she was unable to identify either of the boys who assaulted her.

Lizzie Harbolt testified that she and her granddaughter had been to Chapman’s Grocery Store to get some groceries, and were returning home. That she had $5.50 in her purse, which the granddaughter was carrying. That when they got down close to Mrs. Boone’s store, two boys stepped out from behind a tree and grabbed the purse that Betty had. That Betty wrestled with them until she fell to her knees. The taller boy hit her twice; and then they got the purse and ran to the alley back of Boone’s store, and went west. That this happened at night, but it was light enough that she could see their faces. She identified the two defendants as the two boys who committed the assault.

On cross-examination she testified that Wayne Har-bolt, a police officer, is her son and that he arrested these boys. That about three days after the boys were arrested, she came down to the city jail and identified them. That one of the boys was taller than the other. She further testified:

“Q. Didn’t you say there at the Boone store that it was so dark that you couldn’t identify either one of them? A. I don’t know what I said in there. Q. You were so badly scared you don’t know what conversation you had with Mrs. Boone? A. I don’t know what I said in there, because I was scared and nervous.”

She stated that she left the Boone store and went to Chapman’s store in the next block.

“Q. Didn’t you tell all of them that it would be impossible for you to identify either one of these boys right then and there? A. I just couldn’t tell you what I told1 them. Q. You were so badly frightened you could not tell what you said? A. I Avent back and told Mrs. Chapman the other day that I was ashamed of myself the way I done.”

John Butler1 testified that he is a police officer of Oklahoma City, and has been for nine years. That in January, 1939, he was attached to the Detective Division and worked with W. W. Harbolt. He and Harbolt arrested the defendants in their home on this charge on January 27th, and took them to the police station. The witness then identifies two exhibits offered by the state, which were alleged confessions of the defendants. Upon proper objection being made by the defendants, the jury was excluded from the courtroom and testimony taken upon the question of the admissibility of the confessions. Butler testified that "he was present when the defendants each signed the respective statements bearing their signatures. That no threats were made or promises given to induce them to sign the statement, but that they were voluntarily signed. He admitted the boys were taken separately into the “consultation room,” where the alleged offense was discussed with them, but denies that the defendants were either assaulted or whipped or threatened in any way to Ms knowledge. He further testified that the boys were kept in jail for four days without permitting their folks or an attorney to talk to them, until on the fourth day a writ of habeas corpus was procured from District Judge Giddings, at which time the charges of robbery were filed against the defendants.

He further testified:

“Q. Were you in there at the time Mr. Harbolt was talking to Pressley? A. Part of the time, yes, sir.”

As to the defendant, Williams, he testified:

“I wouldn’t say that I was or I was not there when he was brought out of the cell to be brought to the 'consultation room,’ or whatever you want to call that office of ours; but I was there just before he sat down and gave his statement to the clerk, Jack Mackey.”

George Pressley, one of the defendants, testified that he had signed the statement to keep Harbolt from killing him. That Harbolt took him into a room by himself, said that a purse had been stolen from his mother, and stated: “You did it.” “I told him I didn’t do it, and Harbolt hit me on the chin and knocked me down, and made me stand up and then slapped me back down, and said: ‘You see that blood down on the wall by the chair? That is what we do to them. I am going to stomp your God-damned guts out right here on the floor. You snatched my mother’s purse.’ ” That he was in a room without any windows, and that there was blood on the wall. That Butler was not in the room. That he was knocked down by the officer three times before he told the officer that he would sign a statement. That the officer then took him out before the clerk, and the officer dictated the statement, and he signed it to keep from being beat up any more. That after he was taken to the county jail, he was brought down to the county attorney’s office and told both Mr. Marlin and Mr. Morris about what Harbolt had done to' him; and also' called for Mable Bassett and had her come to the jail and told her the same thing. That he is now 18 years of age.

James Williams testified that he is now IT years old. That he was arrested on this charge on January 2T, 1939, and taken to the police station. That Officer Harbolt took him into a room and took a big book and read where a little girl had been knocked down and her money taken, and he said:

“Do you know anything about that?” “I said, ‘No.’ He said: ‘You son of a bitch, you did it.’ He took me to a little room with no windows and nothing else, and just two chairs, and said: ‘Go on and tell me everything, and I will be your friend and let you off easy.’ I said that I didn’t have anything to say, and he went out and came bach in, and said the other boy signed a confession blaming it all on me. I said I didn’t believe he did. He ashed me if I smoked, and I said, No.’ He gave me a cigarette, and I told him that gave me a headache, and he started blowing it in my face and told me he was going to stomp the God damned s — —t out of me if I didn’t confess; and he told me, with the suspended sentence, he would send me down for life or to the electric chair; and it scared me and I signed it.”

The defendant Williams further testified that the officer struck at him once, and that he ducked and was not hit. That the statement is false, and would never have been given if he had not been scared of his life by what Harbolt said to him. That there Avas nobody present but Harbolt AAhen he told him that. That they kept him in jail and would not allow him to talk to anybody for four or five days, until a Avrit of habeas corpus action was filed.

After these witnesses testified, the defendants, through their counsel, announced, “That is all.” The state then announced, “That is all.”

The court evidently had the correct view of the matter at that time, as the record shows that he addressed the county attorney as follows:

“The Court: Is there anything further? Here is the man here they say did the beating? (Indicating Harbolt, the policeman.) Mr. Black: Comes noAV the defendants separately and jointly and introduce their objection, and let the record sIioav, that this witness, after the rule having been called for and invoked, has remained in the court room and has remained in the presence of this testimony before the court and in chambers. The Court: The rule Avas put on and it was said at that time that this man would not be called as a witness. He has been in the court room and has been right here, but I am going to let him testify. Mr. Marlin: If they want to object, that is all right with us. I don’t want to ask him anything in the face of their objection. * * * The Court: All right. There is a conflict in the testimony here, and it will be for the jury to determine under proper instructions. The purpose of taking this testimony Avas to see whether there was a conflict. There is a conflict, and it is. a matter for the jury to determine under proper instructions whether there was any force or threats. Mr. Black: To Avhich the defendants except, and the defendants and each of them request the court at this time to sustain the objection that they have made. The Court: Overruled and exception.”

The jury was recalled. The policeman, Butler, resumed the witness stand; again identified the confessions and the circumstances under which they were made in substantially the same manner he had testified before the court.

After the objections by the defendants had been overruled, the assistant county attorney (Mr. Marlin) read their statements to the jury. In reading the confession of the defendant Williams to the jury, the defendants interposed an objection to the following statement which appeared in the confession:

“Mr. Marlin: (Reading) ‘At this time I am out on a five year suspended sentence for car theft, and at the time I was picked up, I was picked up Avith George Pressley, James Neiler, Madison Cobb, in a 1937 Ford coupe, which we had stolen from Geary, Okla.’ ”

The objection of the defendants to that portion of the statement, on account of it attempting to prove another crime not related to- the offense charged against the defendants, and at the time when the defendants’ character had not been made an issue, was overruled and exception allowed.

In the statement of the defendant, Pressley, appeared the following quotation: “I Avas also picked up once in a stolen car, stolen from Geary, Oklahoma, long with James Williams, James Neiler and Madison Cobb, of 1500 block N. W. 1st.”, to which a similar objection was interposed by the defendants, and the objection was overruled and exception saved.

After the introduction of these statements, the state rested its case. On behalf of the defendants, their defense was in the nature of an alibi. Each of the defendants placed on the witness stand several witnesses who testified that they were at another and different place than the robbery at the time it occurred.

The owners of the Boone and Chapman grocery stores, together with four of the clerks, also testified on behalf of the defendants that Betty Harbolt and Lizzie Harbolt, each, stated at their stores right after the robbery occurred' that it was so dark that they were unable to identify either of the parties who committed the offense. At that timé they stated that one was taller than the other and had on a jacket. The defendants stood up in the court room, and the record shows that they were about the same height.

As to the admissibility of a confession made by a defendant, this court in the case of Howington v. State, 35 Okla. Cr. 352, 250 P. 941, stated:

“Where the competency of a confession is challenged on the ground that, if made, it was not voluntary, its admissibility is primarily a question for the court. In the absence of the jury, the court should hear the evidence offered respecting the facts and circumstances attending such alleged confession, and the burden is on the defendant to show that it was procured by such means or under such circumstances as to render it inadmissible, unless the evidence on the part of the state tends to1 show that fact. If it is held competent, and proof of the same admissible, the defendant is entitled to have the evidence in regard to the facts and circumstances under which it was made given anew to the jury, not that the jury may pass upon its competency or admissibility, bnt for the purpose of enabling them to judge what weight and value should be given to it as evidence, and the jury may disregard it if they are not satisfied that it was voluntarily made.”

In the case of Lucas v. State, 26 Okla. Cr. 23, 221 P. 798, it is stated:

“Confessions induced by a promise of benefit or a threat of harm made to a defendant by a prosecuting attorney or an officer having him in custody will be deemed involuntary, and will be inadmissible in evidence.”
“Where the competency of a confession is challenged on the ground that it was not voluntary, its admissibility as evidence is primarily a question for the court, which should be determined by the court in the absence of the jury; but the defendant is entitled to have the evidence in regard to the facts and circumstances under which the confession was made given anew to the jury — not for the purpose of permitting the jury to pass upon its competency, but for the purpose of enabling it to judge what weight and value should be given to it as evidence. The jury may disregard it if they are not satisfied that the confession was voluntarily made.”

See, also, Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383.

As Mr. Wharton has stated:

“The real question is, whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth, from the fear of the threat, or hope of profit from the promise.” Wharton, Cr. Ev., 9th Ed., 658.

As a general rule, all confessions are prima facie admissible in evidence. Unless an objection is interposed, the practice has been to receive confessions without question. If an objection to the admissibility of a confession is interposed by the defendant, a question of law is presented to the court and should be determined in the absence of the jury, preliminary to allowing the confession to go to the jury. The burden is on the defendant to- show that it -was procured by such means or under such circumstances! as to render it inadmissible, unless the evidence on the part of the state tends to show that fact.

The trial court, in ruling upon the question of law which was presented to him, stated: “There is a conflict in the testimony here, and it will be for the jury to determine under proper instructions.”

There may be a conflict in the testimony, and yet the trial court could find that the confessions were improperly obtained and inadmissible. Where a direct conflict appears in the evidence as to whether the confessions were voluntary, trial courts generally have adopted the practise of submitting the facts and circumstances surrounding the giving of a confession to- the jury; not that the jury may pass upon its admissibility, but for the purpose of enabling them to judge what weight and value should be given to the confessions as evidence, and the jury may disregard it if they are not satisfied that it is voluntary.

The error that arises here is in the assumption by the court that there is a conflict in the evidence as to whether the confessions Avere obtained by force or threats. It is true that Officer Butler testified that there were no force or threats to- his knowledge. But he also testified that Officer Harbolt talked to- the defendants in the “consultation room” when he Avas not present. The two defendants, as hereinabove set forth, testified positively that Harbolt threatened and abused them; and each of them testified that at the time the threats and abuse occurred they were alone in the torture room with Harbolt. The only person who could testify and present a conflict in the evidence as to what occurred is Officer Harbolt, and he was not .used as a witness. The defendants did not contend that threats or abuse were used at the time the statements were signed, but that they had been abused in the torture chamber before they were taken before the clerk and Butler to sign the statements.

The county attorney in the hearing before the court on the admissibility of the confessions did not offer Har-bolt as a witness; and the court stated at the conclusion of the evidence upon that proposition: “Is there anything further? Here is the man here they say did the beating.”

The attorney for the defendants arose and objected to Harbolt testifying, for the reason that he had not been placed under the rule. The court properly overruled that objection, as that is a question which only goes to the weight to be given to the testimony of the witness and does not affect the admissibility of his evidence. But after the court had overruled the objection of the defendant to Harbolt testifying, the county attorney still refused to place Harbolt on the witness stand.

Another significant incident in connection with the contention of the defendants that they were beaten and abused in connection with the securing of the confession is the testimony of the defendant, Pressley, that he told Mr. Marlin and Mr. Morris in the county attorney’s office what Harbolt had done to him, and had called for Mable Bassett and related to her about the beating which he sustained. None of these parties refuted his statements, although Mr. Marlin, the assistant county attorney, was sworn as a witness and testified in connection with another incident, which occurred during the trial.

Under the record before tbe court, at tbe time an objection on behalf of tbe defendants was interposed to tbe admissibility of tbe confessions, tbe confessions were inadmissible as a matter of law, for tbe reason that there is no evidence to dispute tbe testimony of tbe defendants that they were abused by Policeman Harbolt at a time when Butler was not present.

Objection was made to tbe admission in evidence of that part of tbe statement signed by tbe defendants, in which tbe defendant, Williams, stated that be was out on a five years’ suspended sentence for car theft; and tbe defendant, Pressley, bad stated be was also picked up once in a stolen car, along with James Williams, James Neiler, and Madison Cobb.

It is a fundamental principle of law that the character of tbe defendant cannot be impeached or attacked by tbe state unless be puts bis character in issue by introducing evidence of good character; also1, that evidence of offenses other than tbe one charged is admissible only when it tends to prove tbe offense charged, To be competent and admissible, it muist have some logical connection with tbe offense charged.

See, Flynn v. State, 68 Okla. Cr. 72, 96 P. 2d 96; Kirk v. State, 11 Okla. Cr. 203, 145 P. 307; Smith v. State, 14 Okla. Cr. 348, 171 P. 341.

In Flynn v. State, supra, this court stated:

“In tbe fifth paragraph of tbe syllabus of Smith v. State, supra, tbe court stated:
“‘Section 5046, Rev. Laws (1910), 12 Okla. St. Ann. § 381, permits the proof of a prior conviction of a defendant in a criminal case for tbe purpose of affecting bis credibility. This proof may be made either by the record or by tbe cross-examination of tbe defendant, and cross-examination as to other separate and distinct transactions and offenses is not permissible, unless such testimony tends to prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue, or such as may be proved by other witnesses.’
“In Cline et al. v. State, 57 Okla. Cr. 206, 47 P. 2d 191, in the first paragraph of the syllabus, this court stated:
“ ‘Conduct of prosecuting attorney in persistently cross-examining the accused by assumptions and insinuations as to previous unlaAvful acts and transactions, in spite of rulings against him, held improper and prejudicial.’
“In the third paragraph of the syllabus of Cline et al. v. State, supra, the court stated:
“ ‘It is the trial court’s duty to uphold the guaranty of a fair and impartial trial to all persons] whether innocent or guilty.’
“In the body of the opinion in Cline et al. v. State, supra, the court said:
“ ‘It is a fundamental principle of criminal law that the character of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character. Kirk v. State, 11 Okla. Cr. 203, 145 P. 307.’ ”

In Jones v. State, 20 Okla. Cr. 154, 201 P. 664, 670, this court held:

“It is not admissible to show the bad character of the defendant until after the defendant himself puts his good character in issue, and then only by showing, his general reputation, and not by particular acts. Evidence of other criminal acts not in issue in the case should be excluded; such testimony has a tendency to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the charge at issue, or to take proof of it as justifying the defendant’s condemnation, irrespective of his guilt of the crime for which he is being tried. Moreover, the use of alleged particular acts, ranging over the entire period of the defendant’s life makes it impossible for him to prepare to- refute the charges, any or all of which may be mere fabrications. The rule as above stated has received the judicial sanction of the courts of this country for more than a century. Underhill on Evidence, § 82; 1 Wigmore on Evidence, 233; 10 R. C. L. 953; Porter v. State, 8 Okla. Cr. 64, 126 P. 699; Corliss v. State, 12 Okla. Cr. 526, 159 P. 1015.”

It is improper to ask a witness if he has ever been indicted, arrested or imprisoned, before conviction, for any offense whatever. Where such question is asked, it should be promptly excluded, with a rebuke to the lawyer asking the same; and if the question is repeated, it should be treated as a contempt of court and punished as such. Porter v. State, supra.

In this connection it appears that Mr. Marlin, the assistant county attorney, repeatedly asked improper questions concerning other acts allegedly committed by the defendants. Some of these questions were addressed to-other witnesses who were testifying; for the defendant.

The following is a typical example: The witness, Y. C. Head, testified that he was employed by the Chapman Pood Market, and testified as to a statement made in that store by Mrs. Harbolt immediately after the robbery. No other questions were asked about any other matter on direct examination. On cross-examination the record discloses the following:

“Q. (By Mr. Marlin) Did you hear about Raymond Pillinger and this boy Williams, and this boy here taking this pistol (indicating) and robbing a drugstore boy on a man’s porch just about a year ago? A. No-, sir. Mr. Mathers: Just a minute. Now, let us get the record. We object to that as seeking to put the defendants’ character and reputation in evidence when it is not in evidence. It is a violation of the constitutional rights of the defendants and every principle of law that has ever been rendered since the inauguration of this government. The Court: I will sustain that. Mr. Mathers: And we ask that the county attorney be reprimanded. I never heard of such a thing. The Court: Wait a minute. I am going to instruct the jury to disregard the question and the answer to it. Don’t pay any attention at all to it in this case. * * * Mr. Black: We further move that this purported gun be put back out of the sight of the jury. The Court: All right. Mr. Marlin: I will put it away.”

The record later shows that the pistol which Mr. Marlin held up before the jury at the time this question was. asked was a wooden pistol which the state contended had been painted black by Raymond Fillinger and the defendant Williams, for the purpose of committing another crime not in any way connected with the offense charged.

Evidently the assistant county attorney allowed this wooden' pistol to remain on the counsel table in view of the jury, and afterwards referred to it repeatedly in his examination of defendants.

Without going into detail and setting forth the testimony in every instance, it is sufficient to say that the record discloses many different occasions when the assistant county attorney (Mr. Marlin) injected improper and prejudicial statements into the record; and on most of the occasions objections to his remarks were sustained by the trial judge. However, the damage was done, and the effect of continually asking these unfair questions could not be cured by the sustaining of objections to the questions.

Take, for instance, the county attorney asked many of the witnesses, who were neighbors of defendants and who testified for the defendants, this question: “Q. How many robberies have occurred in that immediate neighborhood within a block of where you live?” At another occasion, in cross-examining alibi witnesses, he would ask this question of these witnesses who were laymen: “Q. You didn’t file any notice in this lawsuit that the defendant would be at another place other than his home or where the robbery occurred?” This question was repeated three times to one witness, no doubt, for the purpose of intimating to the jury that the witness himself had failed to do something which the law Imposed on him as a duty and, therefore, was testifying falsely.

At another place, the county attorney asked one of the alibi witnesses for the defendant:

“Q. You didn’t have a family reunion or a marriage or anybody die? Mr. Black: We object to that as incompetent, irrelevant and immaterial. • Mr. Marlin: This is the first lawsuit I ever saw when they didn’t have that. The Court: Sustained and stricken.”

At another time, he asked a witness, who lived in that neighborhood, if somebody didn’t get robbed and slugged in that block every week.

Mr. Williams, the father of one of the defendants, testified that he had suffered an injury in which his arm had been broken; and that on the night in question, not being able to drive his car, he had his son drive his car for him. In his examination, the witness was asked the condition of his arm; and the following occurred:

“A. I think it is pretty bad, myself. Mr. Marlin: It will stay bad until we get through with this lawsuit. Mr. Black: We object to that as incompetent, irrelevant and immaterial. The Court: Sustained and jury instructed to disregard it.”

At another time, on cross-examination of the defendant Pressley, Mr. Marlin had some letters, identified as State’s Exhibits Nos. 4, 5, and 6. These letters were allegedly written to Pressley by one Raymond Fillinger, who at that time was living in California. These letters were allegedly lost by the defendant, recovered by some unknown party, and delivered to the police officers. The record discloses several questions asked by the county attorney of the defendant Pressley, over the objections of the defendants’ counsel, concerning these letters, and what Raymond Fillinger had stated in them. After some argument between counsel over the various questions asked of the defendant, the following occurred:

“Mr. Mathers: We object to that as incompetent, irrelevant and immaterial, any reference to any letters. He would not be bound by the action of a third person. The Court: That will be sustained. Q. (By Mr. Marlin) Do you have any idea now how the officers figured out-that you and James committed that robbery? Mr. Mathers: We object to that as calling for a conclusion of the witness and reading the minds of the officers. The Court: Well, I don’t know. He might know. I don’t know what he knows. Overruled. Mr. Mathers: Exception. The Witness: I don’t know what they could get out of the letters that would make them want to- pick me up. Mr. Mathers: That was not the question. The Witness: Will you state the question? Q. (By Mr. Marlin) You say you don’t know what they could get out of the letters? A. Will you state that question again? (Previous question read by the reporter.) The Witness: No, sir. Q. (By Mr. Marlin) Well, he told you, skipping a couple of portions, tO‘ get on out to California, didn’t he? Mr. Mathers: Now, your Honor— The Court: That is sustained and the jury instructed to' disregard it.”

Many pages of the record were used in the examination concerning these letters and a code used by Fillinger in writing to the defendant. The court at the beginning overruled the objections of defendants; this evidence of what some one supposedly wrote Pressley is inadmissible, and the only purpose it could serve would be to prejudice the jury towards the defendants.

At another time, these questions were asked:

“Q. (By Mr. Marlin) Did you know about this black gun? A. No, sir. Q. Were you with George Pressley and Raymond Fillinger the night he tried to rob the boy upon the porch? Mr. Black: Jnst a minute, now— The Witness : I don’t know anything about that. Mr. Black: We object to' that as incompetent, irrelevant and immaterial. The Court: Sustained.”

Objections were sustained by the court to this question, which was asked in substantially the same form many times, but the county attorney persisted in asking the question, and trying to impress on the jury the fact that the defendants were guilty of committing many offenses other than the one for which they were on trial.

The court, however, allowed the county attorney, in his cross-examination of the defendant Pressley, to question him at length concerning the alleged plan of Pressley and Raymond Fillinger to rob a drugstore messenger boy, and to cross-examine both defendants as to whether on the night of January 12th they were attempting to burglarize a D-X filling station. Both of the defendants denied that they had planned or attempted either of these two alleged offenses.

In rebuttal, the state introduced the testimony of Police Officers Ridley and Jeter, who testified over the objection of the defendants that they arrested the two defendants. at the D-X filling station on January 12th, at which time one of the boys had a screwdriver which he threw away when the officers drove up. That when the officers approached, the defendant Pressley was unscrewing a screw to the window. That the boys were released the following morning ivithout any charges being filed. All of this testimony was irrelevant on the question of the guilt or innocence of the defendants on the particular offense charged, as no connection whatever is shown between these alleged offenses and the offense upon which the defendants were being tried. It is elementary that a witness cannot be impeached upon collateral matters; and it is error to permit the defendant, as a witness in his own behalf, to be cross-examined as to any distinct collateral fact, not brought out in the examination in chief, to the view of impeaching his testimony by introducing other witnesses to contradict him. Whether the matter inquired of on cross-examination of the defendant and proved by the state in attempting to impeach him was collateral to the issue must be determined by this inquiry: Would the prosecuting attorney have been permitted to introduce it in evidence as a part of the state’s case? If he would not, it was collateral. If it was collateral, it was not competent to contradict it. See Payne v. State, 10 Okla. Cr. 314, 136 P. 201.

As was stated in Flynn v. State, supra:

“We are of the opinion that this testimony was inadmissible because, if true, it would refer to- a separate and distinct crime; and its admission cannot be otherwise than prejudicial to the defendant.”

In view of the fact that this case will have to be retried, it is our opinion that, if upon a new trial a conflict in the evidence appears as to the circumstances under which the confessions of the defendants were obtained, so as to justify the submission of the confessions to the jury as hereinabove set forth, the court should eliminate from the confessions all reference (1) to the alleged stolen car from Geary, Okla., and the suspended sentence which the defendant Williams received in connection therewith; (2) the Raymond Fillinger incident in connection with the alleged plan to rob the drugstore messenger boy; (3) the alleged attempted burglary of the D-X filling station. The fact the defendants made statements relating to these three occurrences in their alleged confessions does not render them admissible; and no evidence concerning them should be admitted either in reading the confessions to the jury or upon cross-examination of the defendants, if they should take the witness stand in their own behalf, with the exception that the defendant Williams may be examined concerning his conviction of the offense of stealing the automobile, which under the rules of evidence may be admitted for the pur-pose of affecting'; his credibility. If the defendants ask that the witnesses be placed under the rule, the police officers, as well as the lay witnesses, should be excluded from the courtroom, as the sheriff’s office should be amply able to look after the prisoners if they are not at liberty on bond.

After consideration of the entire record, we hold that the defendants were not accorded a fair and impartial trial as guaranteed to them by the Constitution and laws of this state; and for the reasons herein stated, the judgment of the district court of Oklahoma county is reversed, and the case remanded for a new trial.

BAREFOOT, P. J., and DOYLE, J., concur.


author: BABEFOOT, P. J.

text:
    STATE v. HOMER DADE.
    No. A-9766.
    April 16, 1941.
    (112 P. 2d 806.)

      Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Douglas Garrett, Co. Atty., of Muskogee, for the State.
    Pierce & Pierce, of Muskogee, for defendant.
   BABEFOOT, P. J.

This is an appeal by the state of a case which was originally tried in the municipal court of the city of Muskogee, Muskogee county, Okla., and appealed to the district court of Muskogee county. It is from an order of the district court overruling a motion by the state to dismiss the appeal. The proposition involved requires an interpretation of certain sections of the statute creating municipal courts in cities of 25,000 to 55,000 population, which includes the city of Muskogee. ‘The sections of the statute involved are sections 15 and 17 of chapter 113, Oklahoma Session Laws of 1917, Oklahoma Statutes 1931, sections 6499 and 6500, O. S. A. title 11, sections 845 and 847. They are as follows:

(1) “Appeals may be taken in all criminal cases and in all civil cases from any final order or judgment of such court, except in cases where the amount in controversy in the appeal, exclusive of interest and costs, is less than twenty dollars ($20.00), to the District or Superior courts of the county wherein such city is located, by filing in such Appellate Court within thirty days from the date of such order or judgment a petition with a bill of exceptions thereto attached, assigning the ground for reversal and causing a certificate of appeal to be signed by the court clerk to be filed with the clerk of such City Court and by serving a notice of appeal upon the opposite party, or his attorney, if found within the county; provided, that a trial de novo shall not be allowed in the Appellate Court after an appeal upon the record as in this section provided. Section 5256 of the Revised Laws of Oklahoma, 1910, shall be applicable to appeals so taken on the record on questions of law as herein provided, except that bond provided therein for stay of execution shall be filed with the clerk of such court. Section 5264 and 5265 of the Revised Laws of Oklahoma, 1910, shall in like manner be applicable to proceedings in such court except that in case of reversal of an order or judgment of such court the case shall be certified back to the lower court with the reasons for reversal and for further proceedings consistent with the holding of the Appellate Court; provided that nothing in this section or act shall be construed to prevent the general proceedings of the code of civil procedure for Justice of the Peace Courts from being applicable in all cases where the provisions are consistent with and are not covered by the provisions of this act.”
(2) “Appeals may be taken from such court in all cases of prosecution for misdemeanors in the same manner as is now provided by law for appeals from justices of the peace courts in criminal cases or by appeal on the record as provided herein, except that a trial de novo shall in no case be granted by the court appealed to, if a jury trial is demanded by the defendant in the lower court hereby established. In case of appeals upon the record in civil or criminal cases, original papers shall, as far as possible, be attached to the bill of exceptions and certified to the Appellate Court, and not copied. No special appearance shall be permitted in such City Court. In case of appeals on the record only, so much of the proceedings and the evidence shall be certified up as may be necessary for a review of the errors complained of. In habeas corpus proceedings to review convictions for misdemeanors or violations of city ordinances the court issuing the writ may, in addition to the right of review by habeas corpus now given by law, revieAv the sufficiency of the evidence to prove the offense charged and the validity and construction of the ordinance involved in the case.”

Defendant was tried in the municipal court of Muskogee on February 1, 1939, where he was charged with the Unlawful possession of 25 pints of intoxicating liquor. A jury was demanded by the defendant, and he was convicted, and his punishment was assessed at a fine of $100 an 90 days in jail. He thereupon appealed to the district court of Muskogee county by the filing of a bond in the manner prescribed by Oklahoma Statutes 1931, section 3369, O. S. A. title 39, sec. 581, Avhieh is the procedure for appeals from justice of the peace courts to the district or superior court.

When the appeal was perfected to the district court the county attorney of Muskogee county filed a motion to1 dismiss the appeal and have the defendant sentenced in accordance with the verdict of the jury for the reason that no bill of exceptions or petition in error was filed in the time provided by law and as provided by the statute above cited, Oklahoma Statutes 1931, section 6499, O. S. A. title 11, sec. 845. To this motion a response was filed by the defendant in which he admitted the facts as heretofore set forth, but contended that that part of the statute which provides “that a trial de novo shall not be allowed in the appellate court after an appeal upon the record as in this section provided”, was unconstitutional and void for the reason that the same was in conflict with certain provisions of the Constitution of this state, Okla. St. Ann., to wit: Article 2, section 7, Avhieh provides: “No person shall be deprived of life, liberty, or property, without due process of law”, Article 2, section 19, which provides in part as follows: “The right of trial by jury shall be and remain inviolate * * and article 2', section 20, a part of which is as follows: “In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed * * and in contravention of article 5, section 57, which in part provides: “Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. * * *”

The court, after hearing the motion, upheld the contention of the defendant and overruled the motion of the state. The order does not reveal the reason of the court or the ground upon which his decision was based. The county attorney has regularly appealed to this court from the above ruling.

The defendant, when convicted in the lower court, executed an appeal bond and appealed in the manner provided by the first part of Oklahoma Statutes 1931, section 6500, O. S. A. title 11, section 847, which provides:

“Appeals may be taken from such court in all cases of prosecution for misdemeanors in the same manner as is now provided by law for appeals from justices of the peace courts in criminal cases. * * *”

No attempt was made to- appeal by transcript. The motion filed by the county attorney was that the appeal be dismissed. It was evidently based upon the theory that under the statute above quoted, Oklahoma Statutes 1931, section 6499, O. S. A., title 11, sec. 845, there was only one mode of appeal provided in criminal cases from the municipal court, and that was an appeal by transcript or on bill of exceptions; that there was no method of appeal by giving an appeal bond, and that, by reason of defendant’s not having complied with said section above quoted by the serving of notice of appeal and filing a petition with bill of exceptions, together with a certificate of appeal, his appeal should be dismissed. We are of the opinion the court did not err in overruling the motion of the state, and our reason for this opinion is that both sections of the statutes above quoted should be so interpreted as to give effect to both. To uphold the contention of the state would completely nullify the first part of Oklahoma Statutes 1931, sec. 6500, O. S. A. title 11, sec. 847, which provides :

“Appeals may be taken from such court in all cases of prosecution for misdemeanors in the same manner as is now provided by law for appeals from justices of the peace courts in criminal cases * *

We are of the opinion that it was the intention of the Legislature to provide two methods of appeal, the first by the giving of the appeal bond as provided by Oklahoma Statutes 1931, section 3369, O. S. A. title 39, sec. 581, following the samé procedure that had theretofore been followed in appeal of misdemeanor cases from the courts of justices of the peace to the district or superior court, and second by appeal by transcript or bill of exceptions as provided by Oklahoma Statutes 1931, section 6499, O. S. A. title 11, section 845, where questions of law could be tried on appeal without the necessity of presenting the whole case anew to the district or superior court of appeal. With this construction of the two sections of the statutes, we are of the opinion that the court did not err in overruling the motion of the county attorney to dismiss the appeal.

The question of the procedure to be had in the district court on appeal by giving the bond as heretofore set out and what Avas the intention of the Legislature when they used the expression in Oklahoma Statutes 1931, section 6500, O. S. A., title 11, sec. 847, as follows: “* * * except that a trial de novo' shall in no case be granted by the court appealed to, if a jury trial is demanded by the defendant in the lower court hereby established”, is a question not easy of solution. The construction to be placed upon this statute has not been briefed in this case. We therefore do not desire to pass upon the same. This issue may be settled when properly presented and briefed.

Whether or not it was the intention of the Legislature when they used the word “de novo” that they meant only to deprive the defendant of a second jury trial on appeal to the district court, or whether this exception applies to both modes of appeal, or whether it has application only to the last sentence where appeals are had on the record and not by the giving of bond as provided in the first sentence, are questions reserved for future consideration. The record in this case does not reveal whether it was the intention of the court to try the defendant with or without the intervention of a jury. The state, in this case, after the motion was overruled, could have taken an exception and the court could have tried this case and the state could then have appealed. We very much doubt that the overruling of the motion to dismiss was such an order from which an appeal could be taken.

Entertaining this view, it is unnecessary for this court at this time to pass upon the constitutionality of that part of Oklahoma Statutes 1931, section 6500, O. S. A. title 11, sec. 847, which provides: “* * * except that a trial de novo shall in no case be granted by the court appealed to, if a jury trial is demanded by the defendant in the lower court hereby established”'.

For the reasons above stated, the judgment of the district court of Muskogee county is affirmed.

JONES, J., concurs. DOYLE, J., absent.


author: DOYLE, J.

text:
    ROY MURPHY v. STATE.
    No. A-9708.
    April 9, 1941.
    (112 P. 2d 438.)

      Mathers & Mathers, of Oklahoma City, for plaintiff in error.

      Hugh Conway, Co. Atty., of Enid, Garfield County, Mac Q. Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen., for the State.
   DOYLE, J.

This is an appeal from a judgment and sentence of the district court of Garfield county, pronounced and entered pursuant to the verdict of a jury finding defendant, Eoy Murphy, guilty of murder and assessing his punishment at death.

The errors assigned and argued will be considered in the order presented in appellant’s brief.

It is first urged that the court committed reversible error in overruling defendant’s application for a continuance.

When the case was called for trial, May 10, 1939, defendant filed a motion for continuance, alleging in substance that for three weeks he has not and could not eat anything or take any food or nourishment; and he is mentally incompetent to make a rational defense to the charge against him; that he is physically too weak to go to trial, and is in constant pain and suffering, and his mind so affected that he cannot go to trial at this time; that having been brought here in an ambulance he has been required to appear in this court upon a cot; that he cannot on account of his weakened mental and physical condition consult with his attorney as to his defense and on account of his condition is unable to take the witness stand to testify as to what occurred at the time of the fatal difficulty; that he is wholly unable to withstand the ordeal of a trial at this time, and prays the court to order an examination by physicians as to his physical and mental condition.

The application was resisted by counsel for the state. Thereupon a hearing was had.

Ole Hill, county jailor, called by the state, testified: “Roy Murphy was placed in jail January Ifth, and has off and on received medical treatment; that he has been in bed and has refused to partake of any food since April 19th. He gave no reason for his refusing to eat”; that when he talked to him today he appeared rational.

Dr. O. R. Gregg, jail physician, testified that in January defendant said he was sick and could not keep anything on his stomach, and he gave him glucose injections; that after April 19th, he refused to eat, and his present condition is brought about by the lack of food; that he talked to him today at the jail, offered to give him an injection of glucose and he refused to take it; in his opinion defendant at this time is rational and able to go, to trial.

Dr. R. G. Jacobs, physician and surgeon, testified that he is on the staff of the three hospitals in Enid, that on the request of the wife of defendant he called on him in January and three or four times later. That going without food for a period of three weeks would not affect his mind materially.

At the request of counsel for defendant he examined the defendant in open court, found his blood pressure down, but not more so than any other man who had been in bed and not eaten; and he could see no reason why he could not testify intelligently, but not all at one time.

At the request of his counsel the defendant was sworn. Asked several questions by his counsel, he made no answer.

Mrs. Alma Murphy testified that she frequently visited her husband in jail; that he could not keep anything in his stomach; that yesterday in jail she talked to him, but he just whispered, and she could not understand what he said; that he had lost about 40 pounds in weight since placed in jail.

After hearing the argument of counsel, the court ruled: “The defendant’s motion for continuance will be overruled. Exceptions allowed.”

It has been uniformly held by this court that applications for a continuance are addressed to the sound discretion of the trial court, and that this court will not reverse a judgment of the trial court upon the ground that it refused to grant a continuance, unless a manifest abuse of discretion appears.

The rule as stated in 22 C. J. S., Criminal Law, § 845, is as follows:

“Continuances, based on the mental or physical condition of accused at the time of the application therefor, are addressed largely to the discretion of the trial court, and the court may properly deny a continuance asked on such ground in the absence of a showing that proceeding with the tidal will operate to the substantial prejudice of accused or endanger his life or health.”

Citing Nix v. State, 20 Okla. Cr. 373, 202 P. 1042, 26 A. L. R. 1053, wherein this court held:

“Where, in a motion for a continuance, the defendant urges that he is a necessary witness in his own behalf, and is physically and mentally unable to stand the strain and tension of a trial and to properly aid and advise his counsel, held, that the overruling of the motion, under the circumstances recited in the opinion, was not error.” And see Morrison v. State, 35 Okla. Cr. 311, 250 P. 543; Cole v. State, 46 Okla. Cr. 365, 287 P. 782.

Upon the record before us we think it evident that there was no manifest abuse of discretion in overruling the motion and application for a continuance in this case. Further, there is no reason to believe that upon a second trial an intelligent and honest jury would arrive at any other verdict than that of guilty of murder as charged in the information.

On the same day, the defendant, through Alma -Murphy, his wife, and James H. Mathers, his counsel, filed his motion for a jury trial on the issue of present insanity. A jury was duly impaneled, and the evidence introduced. The jury returned their verdict finding the defendant, Roy Murphy, sane.

Thereupon the defendant asked the court to give three days in which to file a motion for new trial, which was denied. Then defendant asked the court for time within which to make up a case-made and appeal from said finding, which the court denied. Exceptions allowed.

The next two assignments based on these rulings of the court are wholly without merit, as was said by this court in Alexander v. State, 71 Okla. Cr. 47, 107 P. 2d 811:

“The proceeding prior to murder trial to- test defendant’s sanity was a collateral issue, and hence an order finding defendant to be sane was not an ‘appealable order’ since the only effect that the proceeding could have had on the murder trial would have been to postpone it had defendant been found insane.”

In Weiland v. State, 58 Okla. Cr. 108, 50 P. 2d 741, 744, it is said:

“The tidal of the question of present sanity is in the nature of a special proceeding not involving any question of guilt or innocence, but a collateral issue. The court here followed the civil procedure, that is, he ruled and instructed that the burden was on the defendant on that issue, and that he was entitled to the opening and closing in • presenting his testimony and in the argument, and further ruled and instructed that nine of the jurors might return a verdict. His ruling was in conformity to the statute regulating the procedure in such cases. Sections! 3214, 3215, Okla. Stat. 1931 [22 Okla. St. Ann. §§ 1164, 1165], as well as in conformity to the general rule, 16 C. J. p. 791, § 2017; 14 R. C. L., Insanity, § 59.” And see Alder v. State, 53 Okla. Cr. 374, 12 P. 2d 545.

In 16 C. J., Criminal Law, sec. 2017, it is said:

“The only issue presented at a preliminary trial of present insanity is whether defendant has sufficient soundness of mind to appreciate the charges against him, and the proceedings thereon, and to enable him to make a proper defense, and therefore whether or not he may be compelled to proceed with the trial of the main issue of guilty or not guilty; and the evidence should be confined to defendant’s mental condition at the time of trial, except as far as his mental condition at other times may aid in determining his present condition.” See, also, 23 C. J. S., Criminal Law, § 940.

The next assignments are in substance that the court erred in overruling defendant’s challenges for cause to certain jurors on the ground that said jurors had formed a fixed opinion as to the guilt or innocence of defendant.

From the jurors selected to try the ease, it appears the jurors Paul Caskey and Roy Stotts were passed unchallenged for cause by defendant.

, As to jurors Charles Horton, C. F. Korthank, Marion Brown, Henry Gellerman, Henry Beaman, Fred Skouby, and Glenn Hamons, their voir dire examinations do not appear in the record. *

From the examination of the juror Mike Pritchett, by defendant’s counsel, it appeared that he had read some of the testimony that was published in the newspapers, and that he had talked to several people about the case, but they did not detail what the evidence would be or what they understood the facts to be; that he did not form an opinion as to the guilt or innocence of the defendant, and did not have any opinion now. That if selected on the jury he would require the state to prove beyond a reasonable doubt that Roy Murphy is guilty before he would return a verdict of guilty.

From the examination of the juror Floyd Goff, it appeared that he read about the case in newspaper articles; had not discussed the case with any one who purported to know the facts about the case; any impression he might have about the case was from what was in the newspapers.

Asked:

“Q. Could you lay aside any impression you might have gotten from the newspapers and hearing people talk and pass on the case solely from the evidence you hear here from the witness stand? A. Yes, sir. Q. At this time you do not have any fixed opinion of the guilt or innocence of the defendant? A. No, sir. Q. You could enter the case with your mind open and would do it? A. Yes, sir. Q. Go you know of any reason why you could not sit here and act fairly and impartially both for the state and the defendant? A. No, sir. Q. And you would do that if selected? A. Yes, sir.”

His examination by counsel. for defendant was as follows:

“Q. You didn’t let what you read and heard cause you to form an opinion? A. No, sir. Q. Now, you have been reading all these articles in the newspapers? Yes, sir. Q. You didn’t read any article purporting to give what any witness testified in any hearing? A. No, sir. Q. From reading these articles did you not come to any opinion or conclusion as to the guilt or innocence of the defendant on this charge? A. No, sir. Q. Whatever opinion you arrived at from this reading you still retain at this time? A. Yes, sir. Q. And the only way you will get rid of that opinion is by hearing something that will be different from what you read and heard that will cause you to change it? A. Yes, sir. Mr. Mathers: We challenge the juror for cause. Mr. Conway: Q. Mr. Goff, I understand the opinion you received has been from newspaper reports and perhaps the radio? A. Yes, sir. Q. Any impression you might have had about the guilt or innocence of the defendant, you could lay that aside and pass on this case entirely from the evidence you receive here? A. Yes, sir. Q. And you would lay that aside? A. Yes, sir. Mr. Mathers: Q. But it would take evidence to change the opinion you have now formed, wouldn’t it, or how could it be changed? The Court: He said he didn’t know anything about the facts but formed his opinion on newspaper items. Mr. Mathers: Q. You say you didn’t talk to any one? A. No, sir. Q. Then the opinion you got is from what you heard and read? A. Yes, sir. Q. And you don’t know whether they are facts or not? A. No, sir. Mr. Mathers: We think this juror is disqualified and we challenge him. The Court: The challenge is overruled. Exceptions.”

As to the juror Donald Edwards, his voir dire examination does not appear in the record.

The record shows that 15 jurors were excused by the court upon challenges by defendant for having fixed' opinions as to the guilt or innocence of defendant. The defendant exhausted his nine peremptory challenges.

In his brief defendant states that he was obliged to exhaust all his peremptory challenges upon jurors he had challenged for cause, which were overruled by the court.

The question presented is: What shall be deemed a disqualifying opinion?

These jurors were challenged for actual bias, as defined by paragraph 2 of section 2997, Sts. 1931, 22 Okla. St. Ann. § 659:

“For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging, and which is known in this chapter as actual bias.”

The Code of Criminal Procedure further provides:

“In a challenge for implied bias, one or more of the causes stated in the second preceding section must be alleged. In a challenge for actual bias, the cause stated in the second subdivision of the third preceding section must be alleged; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon ■his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him. The challenge may be oral, but must be entered upon the minutes of the court.” Sec. 3000, Sts. 1931, 22 Okla. St. Ann. § 662.

One accused of crime is by the Constitution guaranteed a fair and impartial trial, OMa. St. Ann. Const. Bill of Rights, § 20, but to insure this, it is not meant that jurors shall never have heard of the case, or shall not have any impression, concerning any of the facts. In this day and age it would be difficult to find citizens competent for jury service who have not some impression as to the case, derived from newspaper accounts. The constitutional guaranty only excludes those jurors who have an opinion upon the merits of the case, based upon such testimony as may reasonably be expected to be presented upon the trial, or an opinion founded on personal ill will towards the accused.

In the case of Turner v. State, 4 Okla. Cr. 164, 111 P. 988, 996, we said:

“Under the statute, an opinion formed or expressed as to the guilt or innocence of the defendant founded upon rumor or newspaper reports does not disqualify a juror, provided it appears to the court upon the declaration of said juror he can and will notwithstanding such opinion act impartially and fairly upon the law and evidence. As we construe the statute, the competency of a juror is a question of fact, to be determined by the court in the exercise of a sound discretion, and constitutes a legislative definition of the constitutional provision. However, it cannot be regarded as changing in any degree the essential qualifications which jurors must possess. It merely furnishes a test by which those qualifications are to be determined. It malíes the declaration of the juror ‘that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him, competent, as bearing upon the question of his impartiality, and requires the court to consider such declaration, when so made.’ The statute does not attempt to determine what shall be the probative force of the declaration of the juror, or how far it shall have the effect of relieving him of the disqualification arising from such an opinion. The declaration when so made is evidence to be received and given such weight as under all circumstances appearing it is fairly and justly entitled to. Before it can operate to remove the disqualification, the court must be satisfied of its truth, and that question is left to be determined from all the facts and circumstances appearing from his examination upon the voir dire.”

In the case of Gentry v. State, 11 Okla. Cr. 355, 146 P. 719, this court- held :

“The issue raised upon a challenge for cause to* a juror in a criminal case, on the ground that he had formed or expressed an opinion, as to the issues to be tried, is one óf mixed law and fact; and the finding of the trial court upon the issue ought not to be set aside by an appellate court unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.”

• In the opinion it is said:

“The increased facilities, through the press, of spreading stories of crime, as items of news, especially among the more intelligent classes, makes it difficult to lay down a fixed rule which would disqualify persons who formed their opinions from newspaper reports, or common report and rumor, unless it be of that character which impairs the impartiality of the juror by engendering a bias or prejudice which is fixed, and would require evidence to remove. Under the provisions of the statute the competency of a juror is a question of fact to be determined by the court. Before the court can so determine, it must be shown by an examination of the juror, upon his voir dire, not only that his opinion was formed solely in the manner stated, but, in addition to this, the juror must swear unequivocally that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence. * * *
“Under our statute, the mere expression of an opinion by a juror in common conversation, without anything to show ill will, hostility, or a fixed determination of belief, is not a legal ground of challenge for cause. * * *
“The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he has formed an opinion founded upon rumor, statements in public journals, or common notoriety, and upon which he has expressed an opinion, is one of mixed law and fact; and; the finding of the trial court upon the issue ought not to be set aside by a reviewing court, unless it appears that upon the evidence the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.”

To the same effect are; Smith v. State, 14 Okla. Cr. 250, 174 P. 1107; Pope v. State, 15 Okla. Cr. 162, 175 P. 727; Tuggle v. State, 20 Okla. Cr. 314, 209 P. 187; Littrell v. State, 22 Okla. Cr. 1, 209 P. 184; Warren v. State, 24 Okla. Cr. 6, 215 P. 635; Elkins v. State, 29 Okla. Cr. 175, 233 P. 491; Lemke v. State, 56 Okla. Cr. 1, 32 P. 2d 331.

The purpose of the examination of a juror on his voir dire is to ascertain whether there are grounds for a challenge for either actual or implied bias, and, further, to enable the defendant to exercise intelligently his peremptory challenges.

A defendant is entitled to a jury which will insure him a fair and impartial trial, but not to unlimited choice in attempt to secure a jury which will acquit him.

In the case at bar there is nothing in the record which indicates any abuse of discretion on the part of the trial court in the selection of the jury, and we find nothing in the record which indicates that the jury was anything but fair and impartial.

It follows the trial court did not commit error in overruling the defendant’s challenges for cause.

It is next urged that the trial court erred in permitting improper cross-examination of defendant in asking him if he had not been arrested several times here and in Tonkawa, for short changing. And the further question: “I will ask you if you didn’t kill a woman in Tulsa by the name of Nell Bailey in a rooming house?”

As a general rule the scope of the cross-examination of a witness is largely a matter of discretion of the trial, court.

It may be shown on cross-examination that a defendant has been convicted of a crime for the purpose of affecting his credibility. Sec. 268’, Sts. 1931. 12 Okla. St. Ann. § 381.

The rule obtains in this jurisdiction that a defendant taking the witness stand and testifying in his own behalf may be cross-examined the same as any other witness. He, like any other witness, may be asked questions pertaining to the matter at issue or that would go to his credibility as a witness. His cross-examination is not confined to a mere categorical review of the matters stated in the direct examination. He may be asked questions irrelevant and collateral to the issue for the purpose of testing his memory, affecting his credibility and the weight of his testimony. Graham v. State, 28 Okla. Cr. 266, 230 P. 763.

Another well-settled rule is that any previous act of the defendant may be admitted in evidence against Mm provided it has any logical or legal tendency to prove any matter which is in issue. The general principle is thus tersely stated by Cushing, Chief Justice, in State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69 :

“Any act of the prisoner may be put in evidence against him, provided it has any logical and legal tendency to prove any matter which is in issue between him and the state, notwithstanding it might have an indirect bearing, which in strictness it ought not to have, upon some other matter in issue.”

In the case before us it appears from the record that the errors complained of were invited on the part of the defense. Defendant on direct examination in response to counsel’s questions testified that he has never before shot any person, and that together with his brother, Harry, in Tonkawa, they had a dispute with a service station attendant over the price of gasoline furnished, and were arrested, but were immediately discharged.

In Harris v. State, 14 Okla. Cr. 489, 173 P. 958, 963, it is said:

“The alleged errors are technical, but this court is frank to- admit that certain things occurred during the trial of this case which should not have occurred; but the doctrine has been thoroughly established that where evidence on the part of the state makes out a case of coldblooded murder, and under defendant’s own testimony he is at least guilty of manslaughter in the first degree, and the conviction is only for manslaughter in the first degree, the judgment of conviction under such circumstances will not be set aside, although certain technical errors, occurred during the trial, the defendant being deprived! of no constitutional or statutory right.”

The Legislature of this state, by the enactment of section 3206, O. S. 1931, 22 Okla. St. Ann. § 1068, has made it clear that no judgment of conviction shall be set aside or new trial granted “on the ground of misdirection of tbe jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”

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 right, by the commission of error; where, according to defendant’s testimony, he is guilty of the crime for which he was convicted, under such circumstances, none but fundamental error will operate to reverse the judgment of conviction.

Finally, it is contended that the court erred in refusing defendant the right to prove by testimony of witnesses other than himself certain specific acts of personal violence upon numerous persons, committed by the deceased, all of which were known by defendant at the time and prior to the homicide. Citing the case of Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532.

In the Mulkey Case, where the defense was justifiable homicide in self-defense, evidence to prove specific acts of violence on the part of the deceased excluded these acts of violence being known to the defendant; the court held:

“Competent for the purpose of showing the disposition of the deceased to become violent without provocation, and as tending to show his condition of mind, and violent temper on such occasions, and his disposition to use deadly weapons.”

In the opinion we said:

“As a general rule, the evidence of the character of the deceased must be confined to his general reputation, and evidence of particular acts of violence is inadmissible unless they were directly connected with that involved in the homicide. Usually testimony of this character would have but little bearing upon the case, and the general reputation of the deceased as being a desperate and dangerous man would be sufficient. But, under the facts which the evidence here tends to' prove, these prior assaults and acts of violence, being known to the defendant, were important circumstances in determining from the standpoint of the defendant the reasonableness of the danger apprehended by him, and for this reason it ivas error to exclude this testimony.”

We deem it unnecessary to burden this opinion with each specific offer of proof, and will only refer to the record as stated in defendant’s brief:

“Mr. Mathers: We make all these offers and ask the court’s permission to introduce such evidence before the jury, that they may determine whether or not Roy Murphy at the time of the fatal difficulty, had reasonable grounds to believe that his life was in danger at the hands of the - deceased, Harry Murphy, that the jury may determine that Harry Murphy was a dangerous man, easily angered and mad and without any apparent reason or provocation would attack and assault and kill people on slight or no provocation.
“Mr. Watts: (Asst. Atty. Hen.) For the purpose of the record the state will agree if the witnesses were permitted to and allowed to testify in this case at this trial, that they would testify substantially and materially as stated by defendant’s counsel, however the state doubts the competency and materiality of the statement made by Mr. Mathers, the defendant’s counsel.
“We would call tlie court’s attention to' the fact, that prior to calling of this witness to the stand the defendant has taken the stand and testified that he had heard and believes these things and knew the deceased to be a violent, turbulent character, and from what he had heard and knew himself and believed — the truthfulness of these matters are not involved in this law suit, and the state has no objection, at this time, of the defendant’s counsel making any additional offer to show specific acts of violence on the part of the deceased which he caires to offer in evidence at this time.”

It is a general rule in most jurisdictions that on a trial for homicide where the defendant has laid a proper foundation by evidence tending to show that, in committing the homicide he acted in his self-defense, he may introduce evidence of the turbulent and dangerous character of the deceased. See Annotation in 64 A. L. R. 1029, and Annotation 121 A. L. R. 380. Citing Sneed v. Territory, 16 Okla. 641, 86 P. 70, 8 Ann. Cas. 354; Mulkey v. State, 5 Okla. Cr. 75, 113 P. 532; Mathews v. State, 16 Okla. Cr. 466, 184 P. 468; Elliott v. State, 18 Okla. Cr. 230, 194 P. 267; Edwards v. State, 58 Okla. Cr. 15, 48 P. 2d 1087.

In Robinson v. Territory, 16 Okla. 241, 85 P. 451, it was held that the ruling of the trial court excluding the testimony of a third person as †0' the details of a fight between such person and the deceased, a short time before the homicide, did not constitute reversible error. The trial court having permitted the introduction of testimony by such witness with reference to the deceased’s being armed with a revolver at the time of the difficulty between himself and deceased, and the appellate court pointing out the details of a personal encounter between the third person and the deceased, could not be material or relevant to the questions at issue in a homicide prosecution. The court observed that even if the ruling of the trial court was erroneous, two other witnesses, who were eyewitnesses to the encounter between the third person and deceased, were permitted to testify to all of the facts and details.

In Brock v. State, 55 Okla. Cr. 410, 32 P. 2d 88, 89, the trial court permitted defendant to testify relative to numerous specific acts of violence which deceased had told defendant he had committed on other persons, but which acts of violence defendant did not witness or have knowledge of, other than as told him by deceased, which information the defendant testified he believed and acted on in part as a foundation for his belief of imminent danger to himself. It was held that the trial court properly refused to permit the defendant to' introduce the alleged third persons to give their version of such alleged acts of violence and difficulties on the part of deceased, which they had witnessed or known.

In the opinion it is said:

“The question before the jury was not whether the stories told by deceased to defendant of his quarrels, brawls, and difficulties were true, but was: Did defendant believe deceased had committed such acts detailed to him and by reason thereof believe deceased was a dangerous and violent man, and, acting on such belief, commit the killing, in his own self defense. If he believed what deceased told him, it was immaterial whether it was the truth or a lie for the purposes of the trial. Hence, the mere fact that defendant might have shown by the proffered testimony that deceased had told him the truth could not have affected the issue in the case.”

It follows from what has been said and the authorities cited, no error was committed by the trial court in excluding the offer of proof of specific acts of violence by the deceased against others than defendant, he in his direct examination as a witness in his own behalf having testified that all of said acts were known by him at the time of the homicide.

We have given this case that careful study which its importance demands, and having considered the alleged errors argued and given due weight to every proposition urged by counsel for defendant, we find no error committed on the trial of the case that would require or justify a reversal of the conviction.

A judgment and sentence of death should be above suspicion of any partiality, passion or prejudice. A most careful examination has revealed nothing in the voluminous record that gives us the right to say that the interest of justice requires a new trial.

As to the character of this homicide there can be no doubt. On the undisputed facts it was deliberate murder. According to his own statement on the witness stand, appellant is guilty of a cruel and cowardly assassination. While the necessity for taking human life need not be one arising out of real or actual or imminent danger in order to justify the slayer, as he may act upon the belief arising from appearances which give him reasonable cause to apprehend danger of death or great bodily harm, although there may be ho actual danger and his guilt must depend upon the circumstances as they appeared to him, yet the danger must not be brought on by the unlawful acts or wrongful conduct of the slayer, and no person has the right to kill another through unfounded fear or cowardice.

It is also urged that the jury abused its discretion in assessing the death penalty, and that the judgment and sentence should be modified to imprisonment for life.

In a capital case, the law of our state in its great humanity allows the jury, after they have first determined the question of guilt, to assess the punishment, which may be death or imprisonment for life at the diseretion of the jury (section 2222, C. S. 1931, 21 Okla. St. Ann. § 707), and, even after the jury say the defendant" should suffer death, this court, in furtherance of justice, has the power to modify the judgment to imprisonment for life at hard labor. Sec. 3204, O. S. 1931, 22 Okla. St. Ann. § 1066.

In the case of Wilson v. State, 17 Okla. Cr. 47, 183 P. 613, 620, it is said:

“By this provision it seems to have been the intention of the Legislature to vest this court with power to modify the judgment, when such a course would be in furtherance of justice and conduce to the humane administration of the law. In a capital case it is the duty of this court to examine, with the greatest care, the whole record in favor of life, and review the case upon the merits to determine whether justice requires a modification of the judgment to imprisonment for life.” And see Fritz v. State, 8 Okla. Cr. 342, 128 P. 170; Anthony v. State, 12 Okla. Cr. 494, 159 P. 934; Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464; Chambers v. State, 16 Okla. Cr. 238, 182 P. 714; McConnell v. State, 18 Okla. Cr. 688, 197 P. 521; Young v. State, 19 Okla. Cr. 363, 200 P. 260; Phillips v. State, 27 Okla. Cr. 108, 225 P. 180.

In the case of Methvin v. State, 60 Okla. Cr. 1, 60 P. 2d 1062, 1070, it is said:

“The law regards human life as the most sacred of all interests committed to its protection; and no more solemn duty can be imposed upon the courts than the duty of protecting,, and the duty of taking, human life. To take the life of a human being is an awful thing even when it is taken by the law in the due administration of justice.”

In Anthony v. State, supra, it is said:

“The power of this court to modify a judgment inflicting the death penalty for murder to imprisonment for life at hard labor, Avhen deemed proper in the furtherance of justice, is not the power to commute by the chief executive of the state. The judicial power to modify a judgment and the executive power to pardon or commute are wholly distinct in their nature. The one is an award of justice. The other is an act of grace.”

After a careful consideration of all the facts in this case we are unwilling to lend the sanction of our approval1 to inflicting the death penalty, because in our opinion the undisputed facts in evidence do not justify the highest punishment authorized by the law.

While we think the defense by reason of fear entirely failed and was properly discredited by the jury, yet it appears that deceased had previously made assaults with intent to kill upon both defendant and his codefendant, and it appears that on a subsequent day of the term his codefendant on his trial was convicted only of manslaughter in the first degree with sentence of imprisonment for six years. It appears that defendant during the trial was unable to leave the stretcher upon which he was each day brought into court; that he is illiterate and was reared by the two older brothers in an atmosphere of crime, and it would have been more satisfactory if the guilt of defendant had been altogether established by the testimony of reputable witnesses, free from any imputation of interest.

Our conclusion is that the punishment assessed is excessive, and that the ends of justice would best be served by modifying the judgment and sentence of death to imprisonment at hard labor in the penitentiary for life.

The judgment of the district court of Garfield county herein is therefore modified to the extent that the sentence will be changed from the infliction of the death penalty to that of imprisonment in the state penitentiary at hard labor for life, as thus modified the judgment is affirmed.

BAREFOOT, P. J., and JONES, J., concur.


text:
    DICE ROBERTS v. STATE.
    No. A-9780.
    April 16, 1941.
    (112 P. 2d 804.)
    •Mac Q. Williamson, Atty. Gen., and Phil E. Daugherty, Asst. Co1. Atty., of Oklahoma City, for the State.
    Jim Barnett, of Oklahoma City, for defendant.
   BAREFOOT, P. J.

Defendant, Dice Roberts, was charged in the court of common pleas of Oklahoma county with the unlawful possession of intoxicating liquor, to wit: 15 half-pints and 29 pints of tax-paid liquor, was tried before the court without the intervention of a jury by agreement, was convicted and sentenced to pay a fine of $50 and serve 45 days in the county jail, and has appealed.

A motion to suppress the evidence obtained by reason of the search warrant issued in this case which was overruled by the court is the only ground for reversal. A hearing was had before the court upon this motion and the evidence of one officer, Deputy Sheriff Ross Pierce, was taken. The search warrant was introduced in evidence. It is contended that the affidavit is insufficient under the law upon which to base the issuance of a search warrant for the reason it does not state sufficient facts. The affidavit states:

“* * * in certain buildings and premises described as follows, to wit: The Dixie Club located on the ground floor of a two (2) story brick building located at 203 N. W. 2nd street, in Oklahoma City, Oklahoma County, Oklahoma, in said County and State, did then and there unlawfully and willfully have in his possession and under his control, and did then and there unlawfully keep and does now unlawfully have in his possession and under his control, and does keep intoxicating liquors, described, as wine, whisky, beer and other spirituous, fermented and malt liquors, a more particular description of which this affiant cannot give, and certain personal property, fixtures and furniture, consisting of bars, glasses, jugs, bottles and other furniture, containers and fixtures, a more particular description of which this affiant cannot give, used for same.
“That the said persons are still willfully and unlawfully keeping the said property and intoxicating liquors! above described for the purpose and with intent to violate the laws of the State of Oklahoma and that are used in and about the business of keeping a place where intoxicating liquors are willfully and unlawfully sold, and that all of the said above described devices, furnitures, fixtures, and appliances are being used by said persons in aid of said unlawful business.
“And the affiant further says that the above named persons at the said place and the said building, are now engaged in keeping a place where intoxicating liquors are sold, given away and otherwise furnished to divers persons whose names are to this affiant unknown, in violation of the prohibitory liquor laws of said State of Oklahoma, and is using all of the above described property in connection with and in aid thereof.
“Affiant further states that the above descrdbedl premises is a place of public resort where divers persons congregate for the purpose of buying, selling, drinking and offering for sale intoxicating liquors and where intoxicating liquors are manufactured, bartered, stored and given away in violation of the prohibitory laws of the State of Oklahoma and constitutes a public nuisance.”
It will be noted that the affidavit is not upon information and belief, but consists of positive statements. It states that the place to be searched is: (a) The Dixie Club; (b) it is located on the ground floor of a two-story brick building located at 203 N. W. 2nd street, Oklahoma City; (c) that the party named in the affidavit had in his possession and under his control certain intoxicating liquor; (d) that the place had certain personal property, fixtures and furniture consisting of bars, glasses, jugs, bottles, etc.; (e) that the intoxicating liquor was kept with the intention of sale; and that devices, fixtures and appliances were being used in aid of such unlawful business ; (f) that said place was a place of public resort where persons congregate for the purpose of buying and drinking intoxicating liquor; (g) and that- said place constitutes a public nuisance. This affidavit is positive in its terms and is not made upon information and belief. The place to be searched was a public place. There is no evidence that any part of the same was a residence or a home. Three officers testified to the execution of the search warrant and the finding in a plant in the floor of the rear room of 15 half-pints and 29 pints of whisky, and that defendant was the owner of the premises and was present at the time the search was made.

Deputy sheriff Ross Pierce testified:

“Q. And did you have any conversation with Roberts about that whisky? A. Yes. Q. Tell us what that was? A. He said, if you will notice, this is the first time you ever caught me with half pints; he said that is about all the trade that there is down here. Q. And what else did he have to say? A. Well, he mentioned that he had just finished that plant and just started to using it, and all that work was for nothing now. Q. Did he or did he not say anything about the amount of liquor that he was handling or selling? A. It seems to me as he did, but I don’t remember Avhat it Avas. He showed me a card and on the back of it Avas his day’s receipts, and he said he had a pretty good notion to> go back and open his old stand at 21 BroadAvay Circle.”

It Avas admitted by the defendant that the other officers would testify to the same facts.'

The defendant did not testify on the motion to suppress nor on the trial, and offered no evidence in his behalf. In support of his contention defendant cites several decisions of this court. The strongest one is the case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249. An examination of this case reveals that the facts were very much different from the facts in the instant case. It is unnecessary to draAV the distinction. This case Avas discussed in the case of Smith v. State, 30 Okla. Cr. 144, 235 P. 273.

We have often held that where statements made in the affidavit were positive and the facts are such that would justify the issuance of the warrant, it Avas not error of the court to overrule the motion to suppress the evidence obtained thereon. Gransbury v. State, 64 Okla. Cr. 423, 82 P. 2d 240; McCullough v. State, 39 Okla. Cr. 293, 264 P. 916; Dobbs v. State, 39 Okla. Cr. 376, 265 P. 658; State v. Skelton, 36 Okla. Cr. 377, 254 P. 754; Smith v. State, 30 Okla. Cr. 144, 235 P. 273.

For the reasons above stated, the judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

JONES, J., concurs. DOYLE, J., absent.