text:
    JIM DALE v. STATE.
    No. A-6227.
    Opinion Filed Feb. 20, 1928.
    (264 Pac. 219.)
    F. W. Brumfield, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, herein referred to as defendant, was convicted in the county court of Noble county on a charge of “maintaining a place known as ‘The Barbacue/ where intoxicating liquor, to wit, whisky, was received and kept for the purpose of bartering, selling, giving away, and otherwise furnishing the same, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Oklahoma,” and was sentenced to pay a fine of $300, and imprisonment in the county jail for a period of 30 days, and cost of the prosecution. Defendant has- appealed to this court for review of the judgment and sentence, and assigns the following errors:

“(1) The court erred in overruling motion of plaintiff in error for a directed verdict, to which action of the court in overruling said motion defendant did then and there duly except; (2) that the verdict of the jury in this cause was contrary to the law and the evidence, the jury having been unduly influenced by the erroneous action of the court as above set out, and having acted through prejudice against the defendant, and having permitted undue passion and unaccountable caprice and influenced them in their deliberation; (3') that the court erred in overruling plaintiff in error’s motion for a new trial, which motion was based upon alleged errors committed by the court as herein above set out, to which action of the court in. overruling said motion for a new trial this plaintiff did then and there except.”

The testimony on behalf of the state in this case is in substance as follows:

Ted Payne testified that he was asked by officers to get evidence on Jim Dale; that on the evening of December 26, 1925, he entered defendant’s place of business and bought whisky, paying $1.50 therefor.

Fred Yeager, on behalf of the state, testified that he was a police officer; on the 26th day of December, 1925, he searched the witness Ted Payne before the witness went to Jim Dale’s house, and that he did not have any whisky upon him; that he watched Payne go to defendant’s place of 'business: watched him come out again, and then searched him, and found some whisky on his person. R. E. Delaney testified in substance the same as witness Fred Yeager.

Joe W. Howard, county attorney, testified that the whisky introduced against the defendant was turned over to him on December 26, 1925, Fred Yeager, and admitted on cross-examination that he had hired witness Payne to procure evidence against the defendant. This in substance is the testimony on behalf of the state.

The defenda-nt testified in his own behalf; admitted that he ran the place known as “The Barbacue,” and that he had lived in Perry about eight years; that he was a cook by trade; he denied that he had sold the witness Ted Payne or any one else whisky; and that he had never kept whisky upon his premises. He was very thoroughly cross-examined by the county attorney, Mr. Howard, and denied that he had whisky, or that he had sold to the witness Ted Payne any whisky on the date mentioned in the information, or at any other time.

The record in this case shows that Ted Payne, one of the witnesses for the state, had only resided in Perry for a short while; that the county attorney and police officer got in touch with Payne and hired him to go to the defendant’s place of business and try to buy whisky in order that they might get a charge against the defendant. The record further discloses that Payne was practically a stranger to the police officer and county attorney, and, notwithstanding that, he was hired, and promised $25 if he would get evidence sufficient to convict the defendant.

The record further discloses that the police officer claims to have searched the witness Payne before he went to the defendant’s place of business, in order to ascertain whether or not he had any whisky on his person, and that he came back from the defendant’s house to where the witness who claims to have searched him was, and when he searched him again he had a half , pint of whisky. From the testimony in the record, Payne was to get no pay unless he succeeded in furnishing testimony sufficient to convict the defendant. It may be that under the laws of this state officers sworn to administer the laws are jus-ified in hiring men to go to the place of business of other men and there seek to buy whisky from them in order to make a case against a party whom the officers desire to convict. It would seem the best policy for the officer to make the investigation himself and then take such course as was proper under the law to convict the party; or if they are going to hire parties to get testimony against others, we think it would be more nearly within the law if they hired them for a certain price per day or week, and not on the condition that the party must be convicted before they are paid the price agreed upon. We mention this proceeding for the reason that the record is so clear that the procedure taken in this case, if continually followed, would in all probability result in a miscarriage of justice and oftentimes in perjury.

The state made an effort to show a search of defendant’s premises subsequent to the alleged sale of whisky to the witness Payne. This was immaterial and improper where a specific sale was had and testimony offered to establish the charge. No one can tell just what this offer to prove a search of defendant’s house subsequent to this sale had upon the jury. In this case the testimony is conflicting, and the guilt or innocence of the defendant was a question for the jury to decide, under proper instructions as to the law by the court. The jury having heard the testimony and found a verdict, this court will not disturb the same. The testimony is sufficient to sustain a conviction.

Under the testimony in this case and the small quantity of whisky alleged to have been sold by the defendant, it is the opinion of this court that the ends of justice would be best subserved by modifying the judgment from imprisonment for 30 days in the county jail and a fine of $300 to imprisonment for 30 days and a fine of $200.

We hold that the errors complained of were not such as to materially prejudice the rights of the defendant. For the reasons herein stated, the judgment is modified, and, as modified, is affirmed.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    S. E. ELLIGE et al. v. STATE.
    No. A-6034.
    Opinion Filed Feb. 25, 1928.
    (264 Pac. 220.)
    J. H. Hays, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, S. E. Ellige and A. J. Stump, hereinafter called defendants, were convicted in the county court of Love county on a charge of manufacturing intoxicating liquor, and were each sentenced to pay a fine of $75 and to serve a term of 30 days in the county jail.

The defendants and T. T. Ellige were jointly charged. Prior to the trial T. E. Ellige died. Proof of this fact being made, the prosecution as to him abated. The record discloses that at the time charged a still in operation was found by the sheriff and his deputies on the farm of T. T. Ellige about 60 or 70 yards from the residence in. a wooded spot, concealed by underbrush. Three or four gallons of whisky •vvere also found there. The defendant Stump and T. T. Ellige were at the still. Defendant S. E. Ellige was near, drawing water from a well and pouring it in a barrel, which was connected by a hose with the still. Stump was stoking the furnace. Neither of the defendants took the stand. Near the close of' the state’s case, after considerable evidence had been adduced, the objection was made that the evidence was incompetent by reason of having been procured without a search warrant. This objection is not tenable, for several reasons: First. The objection was not timely, but was not made until near the close of the state’s testimony. Second. It is to be doubted if the objection would have been available if made at any time, since the still was not located at or in the immediate proximity of the dwelling house, but in secluded woodlands 60 or 70 yards from the residence. Third. The still was not on the property of either of the defendants on trial, but on the property of T. T. Ellige, as to whom the prosecution was abated. It is well settled that the right to complain of an illegal search is personal, and is not available to one not the owner of the premises or property searched or to one who disclaims ownership. Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052; Cornelius on Search and Seizure, § 12.

The case is affirmed.

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


author: DOYLE, P. J.

text:
    GEORGE CALL v. STATE.
    No. A-6475.
    Opinion Filed Feb. 25, 1928.
    (264 Pac. 643.)

      Morris & Tant, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Wm. L. Murphy, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, George Call, was charged by information with the crime of murder, alleged to have been committed on or about the 18th of January, liKfi, by beating and striking one W. R. Mayfield on and about the head and neck. The jury found him guilty as charged, and fixed his punishment at death. Motion for new trial was duly filed and overruled. To reverse the judgment rendered in pursuance of the verdict he appeals.

The undisputed facts are that appellant, George Call, is a convict, and the deceased, W. R. Mayfield, was a guard at the state penitentiary. Appellant, age about 22 years, had been assigned to work in the penitentiary brickyard. It was the custom for all prisoners working in the brickyard to eat their noonday meal in an open shed in the brickyard. On the day alleged in the information appellant, together with several other prisoners, remained in the dining shed for a few minutes after the other prisoners had left. The deceased, W. R. Mayfield, one of the guards at the brickyard, came into the dining shed, and, after ordering the prisoners to get out, he struck appellant with his fist. Appellant went out on the brickyard and stood watching some prisoners playing cards. While standing there, the deceased came up with a cane in his hand, and began to strike and beat appellant with the cane. Appellant picked up a brick and threw it at the deceased, striking him on the head. Ed Cornell, another guard, stepped up and shot appellant twice, one bullet passing through his body. Two days later Mr. Mayfield died.

We have carefully examined the record, and in the consideration of this case we have tried to exercise that degree of caution and care that a proper administration of the criminal laws demands of all courts in eases of life and death. Our examination leads to the conclusion that it will be necessary to reverse the judgment and grant the defendant a new trial, and for this reason we will note the assignments of error only which in the new trial granted will be liable to again arise.

The record shows that the Assistant Attorney General who prosecuted this case, in making the opening statement to the jury, among other things, said:

“George Call, the accused in this case, was delivered to the penitentiary some time in the year 1924, after having been convicted of forgery, I believe, in the second degree, in Jefferson county. I believe for that offense he was given a seven-year term. That while in the penitentiary serving this term, and some time about a year ago—
“By Mr. Morris: Now, if the court please, we object to any statement concerning the conduct of this defendant in the penitentiary about a year ago as being very prejudicial.
“By Mr. Murphy: If the court please, my statement goes to the status of the accused in the case, and we are relying upon the case of Prather v. State, reported in 14 Okla. Cr. 327, 170 P. 1176, which we can prove in our main case.
“By the Court: In this state, the statute prescribes the penalty for the various crimes, and in most cases fixes the penalty, and, in the case where the defendant is found guilty of murder, the jury is bound to assess the punishment,- and the status of the defendant may be proven in relation to other offenses of the same generic class, to be considered by the jury as to the status of the defendant in order to fix bis punishment either in mitigation or aggravation. Objection overruled.
“By Mr. Murphy: I got to where I left off, while the defendant was in the pénitentiary he killed a fellow convict, was tried in this court, and given 27 years. That is his status at the present time. While a state convict in the penitentiary, as I heretofore stated, on the 18th of January he hit W. R. Mayfield with a brick, which caused W. R. Mayfield to later die. The evidence will also show, gentlemen, that the prisoners at the penitentiary are classified into first, second, and third class prisoners. The first classification is where one behaves himseif and obeys the rules of the penitentiary, and, on account of his good conduct, he is given the privileges in and around the penitentiary. In other words, a first-class prisoner. A convict classified in the second class is where a convict violates the rules, and is not given all the privileges: and the third class is one where one disobeys the rules of the state penitentiary absolutely, and he is classified as a third-class convict, and has no privileges. The evidence in this case will show that George 'Call, the accused, is a third-class convict at the penitentiary, and is employed in the brickyard, at hard labor.”

The record shows that the court sustained the defendant’s objection to this reference to the rules of the penitentiary, and excluded the same.

C. C. West, record clerk at the penitentiary, produced two commitments, and, over the defendant’s objections, was permitted to testify that each was a commitment for George Call, the defendant on trial at this time. The commitments were admitted and read to the jury.

The commitment from the district court of Jefferson county is in the usual form, and recites:

“That on the 19th of April, 1924, George Call, defendant, having entered his plea of guilty to the crime of burglary .in the second degree, is sentenced to be confined in the state penitentiary for a term of 5 years for said crime by him committed.”

The commitment from the district court of Pittsburg county, rendered October 216, 1925, is in the usual form, and recites that the defendant, 'George- Call, was convicted of the crime of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for a term of 27 years.

The defendant moved to exclude from the consideration of the jury all of the evidence of the witness C. C. West, including the two judgments of conviction and commitments issued thereon, which motion was overruled.

It is contended that the court erred in overruling the defendant’s objections to the remarks of counsel for the state in his opening statement to the jury, and in admitting in evidence the commitments showing that the defendant had previously been convicted of forgery and, while serving the sentence, had killed a fellow convict, and for which he had been convicted of manslaughter in the first degree.

It would seem that counsel for the state started out on the trial of this case on the theory that the defendant should be convicted of the crime charged because he had been convicted of other crimes. This was emphasized in the opening statement, and followed up by offering in evidence the commitments objected to. Where the defendant’s status as a prisoner becomes relevant, it is a mattei which should -be shown in a proper and legal way.

An opening statement is to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. The scope of the opening statement should be limited to getting before the jury a detail of the testimony expected to be offered, and counsel has no right to state to the jury facts which he may not prove.

In the case of Manuel v. United States (C. C. A.) 254 F. 272, on writ of error from a conviction with sentence of death, Judge Stone, delivering the opinion, concludes as follows:

“Defendant was indicted while a convict at the Leavenworth Penitentiary for killing E. A. Barr, a prison guard. In his statement the district attorney said:
“ ‘Mr. Barr came in contact from time to time with this defendant who was a convict there, and I may say that this defendant was a convict there pursuant to a conviction had in the district of Alaska in 1910, at which time and in which district he was there convicted of the crime of murder, this very man, and on account of that conviction is serving a term here in this prison.’
“The reference to the crime for which defendant was confined was unnecessary and prejudicial.
“The judgment is reversed.”

In Jones v. State, 88 Ark. 579, 115 S. W. 166, it was held reversible error for the state’s attorney to say in his opening statement that the testimnoy would show that this was not the first time accused had taken human life.

In State v. Clark, 160 Iowa, 138, 140 N. W. 821, it was held:

“The criminal record of defendant is not a matter to be referred to in prosecutor’s opening statement, nor to be shown in the state’s case in chief, but for discrediting his testimony if he becomes a witness.”

The general rule is that, when a defendant is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone. Miller v. State, 13 Okla. Cr. 176, 163 P. 131, L. R. A. 1917D, 383.

The precise question which we' are now asked to decide never before has been presented for decision to this court. The case of Prather v. State, 14 Okla. Cr. 327, 170 P. 1176, cited by the Attorney General, may seem to have passed upon it, but in that case the defendant, a convict serving a life term in the penitentiary, took the stand as a witness in his own behalf, and on direct examination testified to the effect that he was serving a life term in the penitentiary. On cross-examination counsel for the state examined him in detail with reference to his former conviction for murder, and brought out the fact that on his trial he had been given the death penalty, and that the death penalty had by the Governor been committed to life imprisonment.

Judge Matson, delivering the opinion of the court, said:

“It will be noticed that on his direct examination the defendant, in detailing the facts and circumstances surrounding the difficulty with the deceased which ended in this fatal stabbing, testified to the effect that he had a life sentence in the penitentiary, and had no Way to get pardoned of paroled. It was certainly competent, therefore, on the part of the state to cross-examine him upon any subject which he had detailed in his direct examination, and, having volunteered the statement that he was a life termer in- the penitentiary, it became competent for the state on cross-examination to inquire into the nature of the crime for which he had been previously convicted and sentenced. It has been repeatedly held by this court that such is a proper inquiry to affect the credibility of any witness,' including a defendant. * * * But we believe it was also competent in this case to establish the status of the defendant as a prisoner in the penitentiary. If he was then serving a term of life imprisonment, it would be no punishment for him for the jury to assess another penalty of life imprisonment, or any other punishment less than death.”

It is a well settled general rule that, where the jury assess the punishment on a verdict of guilty, it is proper to admit evidence which goes only in mitigation or aggravation ; however, the aggravating matter must not be of a crime separate from the one charged.

The rule as to matters of aggravation and mitigation is stated in 1 Bishop’s New Criminal Law (8th Ed.) § 948, as follows:

“The entire transaction in which a crime was committed may embrace more of wickedness than the indictment charges; or there may be other circumstances of aggravation, on the one hand, or of mitigation, on the other. Therefore, if the law has given the court a discretion as to the punishment, in pronouncing sentence it will look into any evidence proper to influence a judicious magistrate to make it heavier or lighter, yet not to exceed the limits fixed for what of crime is within the allegation and the verdict. Or this sort of evidence may be delivered to the jury at the trial, if with it is the assessment of the punishment. But we have authority for the proposition that in such a case the aggravating matter must not be of a crime separate from the one charged in the indictment — a rule perhaps not applicable where the court determines, after verdict, the punishment.”

Evidence of an offense other than the one charged is admissible only when it tends to prove the offense charged. To be competent and admissible it must have some logical connection with the offense charged. Koontz v. State, 10 Okla. Cr. 553, 139 P. 842, Ann. Cas. 1916A, 689.

In People v. Molineux, 168 N. Y. 291, 61 N. E. 293, 62 L. R. A. 193, the Court of Appeals says:

“This rule, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta. It is the product of that same humane and enlightened public spirit which, speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt. This rule, and the reasons upon which it rests, are so familiar to every student of our law that they need be referred to for no other purpose than to point out the exceptions thereto.”

And see Wharton on Crim. Ev. ('9th Ed.) § 48; Underhill, Crim. Ev. § 88; 2 Bish. New Crim. Proc. § 1120.

It also appears from the record that the court failed to instruct the jury that such evidence of other offenses committed by the defendant was only to be considered as matters in aggravation in assessing punishment on a verdict of guilty.

For the reasons stated, we are of opinion that the court committed prejudicial error in admitting in evidence the two commitments showing former judgments of conviction. It follows that the defendant’s motion to withdraw the same from the consideration of the jury should have been sustained.

This is sufficient to dispose of the appeal; but, in view of the fact that the case is to be remanded for a new trial, we are constrained to say that on a careful examination of the record we fail to find any substantial evidence in support of the theory of the state that the homicide was committed in furtherance of any agreement between the defendant and others or conspiracy to commit a felony; that is, to forcibly break and escape from the penitentiary. Section 1615, 'C. S. 1921.

To summarize the testimony, it shows without dispute that the deceased came into the dining shed where the defendant and three or four other prisoners were finishing their noonday meal; that he called the defendant a vile name, and struck him with his fist; that the defendant arose from the bench, and the deceased hit him again with his fist; that shortly afterwards, while the defendant was standing watching other prisoners playing cards, the deceased walked up to him and struck him with a hickory stick or cane. It is undisputed that the deceased struck the defendant with his cane, or struck at him two or three times, before the defendant threw the brick. The defendant did not testify.

In rebuttal, Tuck Cope testified: That he .was a guard stationed that day in one of the towers at the brickyard. That he could see what persons were in the dining room, and noticed three prisoners, including the defendant, sitting at the tables after the other prisoners had left. That he saw Mr. Mayfield walk in, and heard him say to these boys, “What in the hell are you doing in here? Why don’t you get out,” Then Mr. Mayfield took the defendant by the collar, and jerked him out of the seat, and slapped him. That Mr. Mayfield slapped him again as he was going out. That he did not hear the defendant say anything to Mr. Mayfield.

The court, over the objection and exception of the defendant, gave the jury the following instruction:

“You are further instructed that, while the law permits a person to defend himself against real or apparent danger, such is a defensive, and not an offensive; and in this connection you are instructed that a person under the law cannot invite and provoke a difficulty and arm himself with a dangerous weapon and slay his adversary, and invoke the right of self-defense, and, if you believe from the evidence beyond a reasonable doubt that this defendant, prior to the homicide, entered into a conspiracy with other inmates of the penitentiary that he, the said defendant, would invite and provoke a difficulty with the deceased as one of the guards, and would engage said deceased in a fight,^ and, when said fight was on, other inmates of the penitentiary would assist and help in said fight, and thereby overcome said deceased and other guards in order to effect their escape from the prison, and that in pursuance of said agreement said defendant provoked said difficulty in which the deceased lost his life, then in that event the defendant cannot invoke the right of self-defense as herein instructed. (Excepted to by defendant because the evidence in the case does not justify the instruction.!”

It is elementary that the giving of instructions upon a material issue in the case, not applicable to the evidence, is prejudicial error. Crabtree v. State, 18 Okla. Cr. 125, 193 P. 1005.

The circumstances which distinguish murder from manslaughter have been passed upon by this court in many cases. Where no unfair advantage is taken or deadly weapon used, in such case the slayer can be guilty of nothing more than manslaughter. In this case the issue upon the evidence was manslaughter, or justifiable homicide in self-defense. The record discloses other rulings arising during the course of the trial that would be difficult, if not impossible, to defend.

A person charged with the commission of a crime is entitled to a fair trial, which is but another way of saying, one conducted according to law. From an examination of the whole case we are impressed with the conviction that the defendant was not accorded that fair and impartial trial which the law guarantees to him.

For the reasons stated, the judgment appealed from is reversed, and the cause remanded for further proceedings in accordance with the views we have expressed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    TOM BOSTON v. STATE.
    No. A-5973.
    Opinion Filed Feb. 11, 1928.
    (264 Pac. 212.)
    Seymour Foose and R. C. Brown, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Blaine county on a charge of selling whisky, and sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The information is predicated' on the testimony of Hans Wildt and O. F. Crum. Numerous errors are argued in the brief going in the main to the admission of testimony on the part of the state and the exclusion of evidence offered by defendant. Special counsel assisting in the prosecution objected to much of the evidence offered by the defense, and his objections in several instances were sustained to competent evidence offered.

After the jury had been impaneled and sworn the county attorney asked leave to indorse the names of two additional witnesses on the information. The objection was made that the application to indorse cametoo late and the names of the additional witnesses were a surprise to the defendant; that he had not sufficient time to prepare to meet their testimony. This was overruled and the names indorsed. The opening statement was then made and the statf^ called O. F. Crum as a witness. Objection was made for the reason that the name of this witness was not indorsed on the information. The county attorney then asked to be permitted to indorse the name of this witness on the information, and no ruling upon this application was made. The counsel for defense renewed his objection, stating that the appearance of this witness was a surprise, that he had had no opportunity to prepare to meet his testimony and asked for a continuance. His objection to the application was overruled and without the name of the witness having been indorsed or any order made allowing it to be indorsed the witness was permitted to testify. His evidence was very material; this witness and one other were the only witnesses testifying to the fact of sale. Their testimony was sharply contradicted by witnesses for the defendant. It is error to permit a witness to testify in chief in a misdemeanor case, unless his name has been indorsed on the information. Section 2511, Comp. St. 1921. The law does not contemplate that the names of witnesses known to the state shall be withheld, but that they shall be indorsed on the information. Where they are omitted by oversight or inadvertence, or it is not learned until after the information is filed that certain persons may be witnesses, and there is no bad faith,,their names may be indorsed as the rule of the court may prescribe, or by leave of court even during the course of the trial. Hawkins v. State, 6 Okla. Cr. 308, 118 P. 607; Ghormley v. State, 11 Okla. Cr. 532, 148 P. 1057; Bradshaw v. State, 16 Okla. Cr. 624, 185 P. 1102.

In view of the record in this case, we think it was prejudicial error to permit the witness Crum to testify Without his name having been indorsed.

The case is reversed and remanded.

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


text:
    JIM EDGE v. STATE.
    No. A-5922.
    Opinion Filed Feb. 11, 1928.
    (264 Pac. 213.)
    John W. Tyree and J. F. Thomas, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Jim Edge, was charged by information in the district court of Comanche county with having in said county, on December 24, 1924,- killed Carl Smith. Upon a trial he was convicted of manslaughter in the first degree, and his punishment assessed at imprisonment in the penitentiary- for a term of four years. From the judgment rendered on the verdict he appeals.

No briefs having been filed, the case was submitted on the record.

There is no controversy as to the fact that the defendant killed the deceased by stabbing him with a pocket knife. The scene of the tragedy was just outside the Post-Oak schoolhouse, south of Indiahoma.

The circumstances under which the killing occurred are stated by Robert Jackson, a deputy sheriff,- and a brother-in-law of the deceased, who testified as follows:

“Carl’s father requested that Carl and I go outside to smoke; We went out and were standinginfrontofthe schoolhouse smoking. My attention was attracted 'by Mr. Edge or by some man standing about three feet from the door swearing and talking to some ladies standing in the door. ' I told Carl that I had to go over and stop that swearing around the schoolhouse, I started over to tell Edge he would have to keep , quiet or get off the grounds, and some one shoved me. When I got straightened up Carl and Jim Edge were fighting. I got to them as quick as I could, and helped Edge up off the ground. About that time I heard Carl say, T believe I have been cut,’ and he went in the schoolhouse. I told Edge he would have to get off the grounds. He said, ‘All right.’ I went in, and some one said Carl has been cut. Then I came out, and told Edge he could not go; that he was under arrest. I took hold of him to search him. He had on an overcoat, and was pulling me towards a bunch of cars, saying that he did not have a knife, and never owned a knife, and he said, ‘You can search me now,’ and I did. I didn’t find a knife on him. He wanted to go back into the schoolhouse; we went in; then came out, and got into a car, and I took him to Chattanooga. I came back to the schoolhouse and I looked where Edge and I had been scuffling, and found a knife on the ground. The knife was shut. I gave the knife to the sheriff.”

Linville Smith, brother of the deceased, testified that he was standing outside the schoolhouse when his brother Carl and Robert Jackson came out. Jim Edge was standing there, and said that he was the toughest son of a bitch on the ground. His wife and mother tried to get him to come into the schoolhouse, and his wife said, “If he didn’t shut up cussing, she would go home with him.” He said that “no son of a bitch could make him come in” a couple of times, then he struck Carl Smith in the left side, and his brother hit him with his fist, and knocked him down, then turned around, and said he believed he was stabbed; that the age of the deceased was 24 years.

Dr. Broshears testified that the deceased was brought to the Southwestern Hospital at Lawton the night of December 24th. Upon examination they discovered that he was bleeding inside; that the wound was between 4 and 6 inches on the left side, between the eighth and ninth ribs, forward under the arm, and apparently penetrated the diaphragm ; that he died the second night following.

For the defense, Bill Epps testified that he was leaning against the wall near the door of the schoolhouse, and heard Mrs. Edge ask her husband to come in and sit down by her; that the defendant acted as if he had been drinking, and said, “ I am 81 years old, and ain’t afraid of no son of a bitch”; and, when he said that Carl Smith hit him and knocked him down on the ground, that he did not see the defendant strike the .deceased.

Appellant’s own testimony was that he was standing in front of the door, and some one hit him and knocked him down on his knee; that he looked back, and saw Carl Smith and another fellow approaching, and he jerked out his knife and hit; that he had heard Carl Smith was a dangerous man, and he struck him with his knife because he was afraid he would kill him.

On cross-examination he admitted that he told the witness Jackson when he started to search him that he did not have a knife; that he threw the knife down on the ground, that the knife offered in evidence was his knife; that he had been drinking some that night; and that he probably said what the witness testified to.

Several witnesses testified that the reputation of the deceased in that community was that of being a quarrelsome and dangerous man.

The defendant makes a general assignment that the verdict is not sustained by sufficient evidence.

Without the aid of oral argument or a brief on the part of the defendant, we have carefully gone through the record and find it free from substantial error. The evidence by the state’s witnesses, which was more or less supported by the testimony of others, clearly established the crime of manslaughter in the first degree, at least. The testimony shows that the defendant was more or less under the influence of liquor, and, were it not for that fact, the tragedy would never have occurred.

Assuming that the deceased was the aggressor, the rule is well settled that the bare belief of one assaulted that he is about to suffer death or great personal injury will not in itself justify him in taking the life of his adversary. There must exist reasonable ground for such belief at the time of the killing, and the existence of such ground is a question of fact for the jury.

The instructions to which no objection was made or exception reserved fully and fairly covered the law of the case.

Upon a consideration of the whole case, our conclusion is that the defendant Was accorded a fair trial. The judgment of the court below is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JOHN BEAN et al. v. STATE.
    No. A-6207.
    Opinion Filed Feb. 25, 1928.
    (264 Pac. 223.)
    R. E. Davenport, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

The information in this case charged that in Grady county, November 10, 1925, John Bean, Marve Bean, and Irvin Holmes “did have possession of intoxicating liquor, to wit, one pint of whisky, with the unlawful intent to sell the same.” On the trial the jury returned a verdict finding the three defendants guilty, and fixing the punishment of each at a fine of $50 and 3'0 days in jail. The court set aside the verdict, and discharged the defendant Holmes, and overruled the motion for new trial as to appellants.

It is contended in this court that the verdict is not. sustained by sufficient evidence, and that it is contrary to law. ' Exceptions were also reserved to certain instructions given by the court.

The testimony of three deputy sheriffs shows that in executing a search warrant they visited the home of appellants, and found on a shelf in the house a bottle that had some whisky in it. The defendant Holmes was the only person in the house. He was in bed, and claimed to be sick.

At the close of the state’s evidence, there was a motion for a directed verdict of acquittal on' the ground that the evidence was insufficient to justify a conviction. The motion was overruled.

Marve Bean, as a witness in his own behalf, testified that his age is 18 years, and that he was living with his brother John at the time the place was raided; that they had three men working there picking cotton for them; that he did not know anything about the whisky found by the officers being there; that he heard that' the officers were there, and came to town and gave himself up.

John Bean, as a witness in his own behalf, testified that his age was 20 years; that he did not know anything about the pint of whisky that was found in the house.

Two or three character witnesses testified that they were acquainted with the general reputation of appellants as to being law-abiding citizens in the community, and that reputation was good.

We deem it sufficient to say that the testimony in this case is insufficient to support the finding of the jury, and for this reason, at the close of all the evidence, the court should have directed the jury to return a verdict of not guilty.

The judgment of the trial court is therefore reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WILL BATSON v. STATE.
    No. A-6036.
    Opinion Filed Feb. 25, 1928.
    (264 Pac. 223.)
    H. P. Hosey, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Mc-Curtain county on a charge of having possession of a still and was sentenced to pay a fine of $500 and to serve 6 months in the county jail.

The only contention made is that the evidence is insufficient to sustain the verdict. There is very little conflict in the evidence. It is in substance as follows: At the time charged, the sheriff, with two deputies, about 11 o’clock at night went to some broken mountainous country about three or four miles north of Hochatown, and in a gulch found a still consisting of a steam cooker, tank, furnace, boilers, and some bran and meal. They waited there the remainder of the night, and in the early morning Albert Batson, a son of defendant, and Clarence Burke, each about 21 years of age, came to the still, and proceeded to connect it. Soon after defendant drove up with a wagon about ten yards from the still, being apparently about ás near as he could drive on account of the broken condition of the ground, and proceeded to unload ten 100-pound sacks of sugar, some quilts, cooking utensils, an axe, a supply of groceries, and possibly some other stuff. After unloading the supplies, defendant drove away. The officers thereupon arrested Burke and young Batson, and one of the officers followed, and arrested defendant. Defendant did not testify. Young Batson pleaded. guilty, and assumed full ownership of the still. The circumstances clearly indicate that defendant was either the owner of the still or a joint owner with his son and engaged in its operation. The evidence amply sustains the judgment.

The case is affirmed.

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


author: DAVENPORT, J.

text:
    ED BRUMMETT v. STATE.
    No. A-6237.
    Opinion Filed Feb. 25, 1928.
    (264 Pac. 224.)

      Chester H. Lowry, Brown Moore, and R. J. Shive, for plaintiff in error.
    Edwin Da'bney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, Ed Brum-mett, hereinafter styled defendant, was by information charged with the crime, viz.:

“One Ed Brummett, then and there being, did then and there willfully and unlawfully manufacture and ferment one barrel of corn mash, with the unlawful intent of him, the said Ed Brummett, to then and there manufacture spirituous liquor, to wit, whisky, by cooking, boiling and distilling said whisky from said fermented mash.”

A trial was had, and defendant was found guilty as charged in the information, but the jury failed to agree upon the punishment and wrote into the verdict, “cannot agree on punishment.” The defendant Was sentenced to pay a fine of $200 and costs of this action and serve a period of 60 days in the county jail. Motion for a new trial was filed and overruled, and defendant prosecutes his appeal to this court.

The evidence on behalf of the state shows that the officers went out to the farm occupied by the defendant, and, in searching around the premises, found what they claim to be a barrel of corn mash in an outbuilding a short distance from defendant’s premises. Defendant, taking the witness stand in his own behalf, denied any knowledge of the barrel of mash on the premises, and stated that, if it was there, it was there without his knowl-' edge and consent, and it was probably put there by his son, who ran off while the officers were at his place. This, in substance, is all the testimony introduced at the trial.

The defendant has assigned several errors alleged to have been committed in the trial of his case. We will first consider the eleventh assignment of error of defendant, which is as follows:

“(11) For the reason that the defendant, plaintiff in error herein, did not have a fair and impartial trial in said cause on account of the misconduct of the county attorney in the introduction of the evidence and in the examination of the witness for the state and for the defendant, to which misconduct of the county attorney the defendant at the time objected and excepted, all of which residted in arousing the passion and prejudice of the jury in said cause and diverted their minds from the consideration of competent evidence legally admissible against the defendant, all as shown by the record in said cause.”

The above assignment of error goes to the conduct of the county attorney in the cross-examination of the defendant. That part of the cross-examination to which the defendant objected, and which objection was overruled and defendant duly excepted, is as follows:

“Q. Mr. Brummett, I am going to ask you if you didn’t, on the 17th day of November, 1925, sell to one Thomas Steele, for the sum of $3’, a quart of whisky, over at your house? A. No, sir; I didn’t.
“By Mr. Moore: We object to that question as being incompetent, irrelevant, and immaterial, and for the further reason he is not on trial for the sale of whisky.
“By the Court: Objection overruled; exception allowed.
“By Mr. Suman: And now, Mr. Brummett, you stated to counsel that you never had anything to do with whisky out there? A. Yes, sir. :
“Q. You know that you sold that whisky to Steele for the sum of $3. A. No, sir.
“By Mr. Moore: We object to the question as being incompetent, irrelevant, and immaterial and improper cross-examination.
“By the Court: Objection overruled; exception allowed.
“Q. And do you know where Tom Steele is now?
“By Mr. Moore: We object to that as being incompetent, irrelevant, and immaterial, and improper cross-examination. It is unfair to this witness. (And county attorney asked that this case be continued, and upon his statement in open court he asks that it be continued.)
“By Mr. Suman: I am cross-examining him on what his business was.
“By Mr. Moore: We object to that statement assuming something not in evidence by the court. (Objection overruled; exception allowed.)”

To each of the questions the defendant objected and the court overruled said objection. To the overruling of the objections to the questions propounded to the defendant by the county attorney, the defendant duly excepted. The manifest purpose of the questions asked by the county attorney, and to Which the defendant objected, was to convey to the jury the impression that he knew that he had sold whisky. Certainly the county attorney had no reason to expect an affirmative answer to the questions asked, nor does the record disclose that the county attorney offered evidence to contradict the evidence of defendant. In our opinion the questions asked by the county attorney, and objected to by the defendant, were improper and were calculated to prejudice the minds of the jury against the defendant, and that the questions asked were prejudicial to the rights of the defendant..

Our statute permits proof of a prior conviction of the defendant in a criminal case for the purpose of affecting his credibility. This proof may be made from the record or by cross-examination of the defendant; but it does not permit cross-examination as to other separate and distinct transactions or offenses, unless said testimony tends to prove the commission of the offense charged, and should in general be limited to matters pertinent to the issue. This court has passed upon this question many times.

In Pickrell v. State, 5 Okla. Cr. 391, 116 P. 957, the court said:

“Such conduct tends to destroy public respect for the prosecuting attorney’s office and invites contempt for the dignity of the court. A person accused of crime is entitled to a fair and impartial trial conducted according to the established principles of law, the most important of which is that the verdict of the jury shall be founded only upon competent evidence. If a defendant cannot be fairly convicted, he should not be convicted at all, and to hold otherwise would be to provide ways and means for the conviction of the innocent.”

See Selfridge v. State, 27 Okla. Cr. 22, 224 P. 742; Baldwin et al. v. State, 11 Okla. Cr. 228, 144 P. 634; Nathan Byars v. State, 15 Okla. Cr. 308, 176 P. 253; Landrum v. State, 33 Okla. Cr. 417, 244 P. 208; Gabler v. State, 33 Okla. Cr. 317, 243 P. 981.

It- is a well-settled rule of law that, when the defendant testifies in his own behalf, he is subject to cross-examination as an ordinary witness on matters affecting his credibility; however, it is the duty of the court to confine such examination within reasonable bounds, and it is an abuse of judicial discretion to allow questions to a witness which are manifestly calculated to create prejudice in the minds of the jury against the defendant testifying as a witness, it may influence them to find against him because of such prejudice. It is one thing to honestly ask questions on cross-examination for the purpose of discrediting a witness and quite another to ask questions of a witness testifying in his own behalf for the purpose of injuring his case in the eyes of the jury and leading them to believe that he was likely to have committed the offense charged.

The objection of the defendant to the questions propounded was well taken, and the court should have sustained the same. The court erred in not reprimanding the county attorney for asking such questions, and in not sustaining the objection of the defendant and overruling the motion of the defendant for a new trial.

There are other errors assigned and argued by the defendant, but in the view we take of this record it is .not necessary to consider them.

For the errors herein indicated, the case is reversed and remanded.

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


text:
    T. I. ROBBINS v. STATE.
    No. A-6031.
    Opinion Filed March 3, 1928.
    (264 Pac. 841.)
    Wilkinson & Hudson, for plaintiff in error.

      Edwin Dabney,- Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Atoka county on a charge of placing dynamite in a stream in violation of section 6526, Comp. St. 1921, and was fined the sum of $100.

The record discloses that defendant with others, including Ed Slaughter, went to Jack Fork creek on a fishing excursion. Soon after arriving at the creek, Slaughter was drowned. It is the contention of the state that the defendant and others put dynamite in the creek. The wife of Slaughter testified that soon after the party went to the creek, before word of his death was brought to her, she heard a roaring sound at the creek where they had gone. There was evidence that the day before this one of the party had procured dynamite, and in the wagon in which they went to Slaughter’s house there was a box with something in it wrapped in brown paper which the parties took to the creek with them. Two or three witnesses testified that on the afternoon of that day defendant said they were dynamiting the creek and the boy (referring to Slaughter) got drowned. Another witness testified that on the day following the death of Slaughter he talked with defendan, who stated, in substance, they were dynamiting the creek and Slaughter accidentally got drowned. There were some other circumstances in support of the state’s case. The defendant and the three others who were with him denied that they had any dynamite or put any in the creek.

The contention is that the court admitted hearsay testimony, prejudicial to defendant. This assignment is directed to the testimony of the witness Winsberry, who was permitted to testify that, subsequent to the time charged, Herman Miller, one of the persons with defendant at the time charged, stated that they had dynamited the creek, and the testimony of the witness Osborn, that he heard Earl Johnson, who was with defendant at the time of the offense charged, make a, similar statement. The court apparently admitted this on the theory, that Johnson and Miller were co-conspirators and a statement made by one was therefore admissible as to all. The court entirely overlooked the law that in such case, to be admissible, the statement must be made prior to the completion of the conspiracy. The evidence of these two witnesses was purely hearsay. As the case was sharply contested and the evidence conflicting, this testimony may have influenced the verdict of the jury, and its admission requires a reversal of the case. Tucker v. State, 6 Okla. Cr. 714, 119 P. 1134; Spear v. State, 7 Okla. Cr. 383, 123 P. 852; Payne v. State, 10 Okla. Cr. 314, 136 P. 201.

The case is reversed and remanded.

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


text:
    HELEN THOMPSON v. STATE.
    No. A-6045.
    Opinion Filed March 10, 1928.
    (264 Pac. 916.)

      Hill & Criswell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The information filed in the county court of Seminole county charges Helen Thomas with the unlawful possession of intoxicating liquor, with the unlawful and willful intent to barter, sell, give away, of otherwise dispose of the same, in violation of the prohibitory laws. All the other pleadings in this case charge the defendant as being Helen Thompson. When the defendant was called on to plead, she pleaded in the name of Helen Thompson, and there is nothing in the record to show why she was informed against as Helen Thomas, or why the record fails to show that her true and correct name was Helen Thompson. She was tried and convicted in the name of Helen Thompson, and sentenced to pay a fine of $¡250, and to imprisonment in the county jail for 90 days. An appeal was filed in this court February 5, 1926.

Under the rules of this court, where an appeal is not supported by brief, and no appearance is made for the plaintiff in error, it is assumed that the appeal has been abandoned or is without merit.

We have carefully examined the record, and find that the information sufficiently charges the offense; that the evidence supports the charge; that the instructions of the court were reasonably fair to the defendant. That there are many minor errors committed by the court in the introduction of the testimony, but, in view of the fact that the appeal has not been followed up, we do not deem them sufficient to justify this court in reversing the case.

The judgment is affirmed.

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


text:
    RICHARD McCULLOUGH v. STATE.
    No. A-6170.
    Opinion Filed March 10, 1928.
    (264 Pac. 916.)
    John L. Ward and Wash Hudson, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county-court of Tulsa county, on a charge of unlawfully, willfully and wrongfully having in his possession intoxicating liquors, to wit, 38 pints of whisky, three-fourths gallon of alcohol, and one can of beer, with the unlawful intent then and there on the part of the said defendant to barter, sell, give away, and otherwise furnish the same in violation of the prohibitory laws of the state of Oklahoma, and was sentenced to pay a fine of $500 and imprisonment in the county jail for a period of 6 . months. Defendant prosecutes an appeal to this court for a review of the judgment and sentence, and alleges a number of errors committed by the trial court as grounds for the reversal of this case.

The testimony on behalf of the state in substance is as follows: F. G. Murray testified that he was a deputy sheriff of Tulsa county; that he went to defendant’s place with a search warrant on the 6th day of August, 1924; that his place was located out between Dawson and a filling station, on'the highway — a five-room house. Witness had never been inside the house until the night he searched it, but he had watched the house on two or three different occasions immediately prior to getting the search warrant and searching the house; that he had seen people go into the house and come away with a package; when they searched the house they found 38 pints of red corn whisky, three-fourths gallon of alcohol, and one can of beer. Jack Quast in substance testified to the same facts as F. G. Murray. This is all the testimony introduced.

The first error assigned by the defendant is as follows:

“(1) The court erred in not sustaining the plaintiff in error’s motion to exclude and suppress evidence and testimony which was obtained through an illegal and unlawful search warrant, which motion was heard before any evidence was introduced on behalf of the state, and to which ruling of the court the plaintiff in error at the time excepted in open court, and which exception was duly allowed.”

It is strongly argued by the defendant that the affidavit does not state sufficient facts to give the court jurisdiction to issue a search warrant, and that by reason of that fact the search and seizure was illegal. The affidavit for the search warrant states:

“That certain intoxicating liquor is being manufactured, sold, bartered, given away, and otherwise furnished, and is being kept for the purpose of being sold, bartered, given away, and otherwise furnished, in violation of the prohibitory laws of the state of Oklahoma; the kind and description of said liquor being as follows, to wit, wine, beer, whisky and other intoxicating liquor and imitations thereof and substitutes therefor, the exact quantity thereof being unknown to this affiant. That saíá. liquor is being disposed of and kept in the manner aforesaid by one John Doe, whose real name is unknown to informant, on the following described premises situate in Tulsa county, Oklahoma, within said county and state, to wit, one 5-room gray house located second house east of Dawson on south side of pavement on Dawson paved highway, together with the curtilage thereof and appurtenances thereto. That said building is a private residence and is used as a place of public resort, and for the storage and furnishing of intoxicating liquor.”

Section 7013, C. O. S. 1921:

“No such warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may .be the place to be searched, and the person or thing to be seized.”

Section 7013, C. O. S. 1921;

“No warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

The statements in the affidavit which was the basis on which the search warrant was issued in this case seems to contain every provision required by our statute. The statements are in positive language and were sufficient to give the court jurisdiction to issue the warrant. At the hearing on defendant’s motion to suppress and exclude the testimony secured under the search warrant, it was shown by F. G. Murray that he watched this house on more than one occasion prior to the date he made application for the search warrant, and that he had seen persons going to the house and coming away with packages, and on one occasion he had stopped a man who had two pints of whisky and on another occasion a man who had one pint of whisky.

In support of his motion to suppress the evidence the defendant has cited a number of authorities, but upon examination of the authorities cited' we find the facts are not the same as in this case. Under the laws1 of the state, section 1, c. 123, p. 144, Session Laws 1923, 1924, “the keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any liquor or compounds of any * * * description whatsoever * * * which contain as much as one-half of one per cent of alcohol, measured by volume, and which is capable of being used as a beverage,” is “prima, facie evidence of an intention to convey, sell or otherwise dispose of such liquors.”

The motion of the defendant to suppress the testimony was properly overruled. Phillips v. State, 34 Okla. Cr. 52, 244 P. 451.

In Dolan v. Commonwealth, 203 Ky. 400, 262 S. W. 574, it was said:

“It is the rule in this state that, if the affidavit and search warrant are sufficient on their face, the evidence obtained by the search is admissible and the court will not permit the accused to show that the statements in the affidavit are not true, or to raise any question as to the accuracy or source of affiant’s information, or the means by which it wás obtained.”

There are other errors assigned by the defendant, but, upon careful examination of the record, we hold the errors assigned did not prejudice the rights of the defendant. The evidence was sufficient to sustain the verdict and judgment. From a consideration of the whole case the guilt of the defendant is clearly proven. There being no error prejudicial to the rights of the defendant, the judgment and sentence is affirmed.

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


text:
    JAKE HALES v. STATE.
    No. A-5979.
    Opinion Filed March 10, 1928.
    (264 Pac. 918.)
    R. H. Galyen, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on. a charge that he did willfully, unlawfully, knowingly, and wrongfully manufacture a certain compound mixture, to wit, 72 pints of a certain common compound mixture commonly known as “home brew” fit for the manufacture of .beer and other alcoholic liquors, the sale, barter, giving away, and otherwise disposing of which is prohibited by the laws of the state of Oklahoma, and his punishment fixed at 30 days in jail and a fine of $175.

The fifth assignment of error relates to an error committed by the trial court in admitting evidence as to the character of the defendant. The evidence offered by the state tended to prove the following facts r

S. E. Cook testified that he went to the defendant’s house with a search warrant; there was no one at home, and they went around the house to the barn, and on around to the west side of the house, where they found three cases of beer; I did not know whether to take it or not, and phoned Judge Morris, and told him what I had found, and he said it was all right, if I had a proper search warrant.

Mr. B. F. Suitor, in substance, testified to the same facts as S. E. Cook. This is all the testimony that was introduced. In the examination in chief, over the objection of the defendant, the court permitted the county attorney to ask the witness S. E. Cook the following-questions :

“Q. I will ask you, Mr. Cook, if you are acquainted with the reputation of the defendant in the community in which he lives as being connected or not with the illicit manufacture and sale of liquor?
“By Mr. Galyen: We object; you cannot put defendant’s reputation at issue, unless done so by defendant himself.
“By the Court: You can’t as to his character, or honesty, but you can as to his reputation as being, connected in the illicit liquor business; it is admissible. (To which ruling of the court defendant excepts and exceptions are by the court allowed.)
“A. Yes; I am.
“Q. Is it good or bad. A. Bad.”

Where the defendant is charged with a specific oifense as in this case, it is a fundamental principle of criminal law that the character or reputation of the defendant cannot be impeached or attacked by the state, unless he puts his character in issue by introducing evidence of good character. The precise question here presented was decided by this court in the case of Kirk v. State, 11 Okla. Cr. 203, 145 P. 307. In the opinion it is 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 * * * evidence of good character.”

Again the court says :

“The fact that an oifense has been committed cannot be proved by common rumor or general repute.” Cleve Morris v. State, 26 Okla. Cr. 399, 224 P. 377.

The admission of this incompetent evidence may have turned the scale against the defendant. Its admission was prejudicial to his substantial rights. There are other errors assigned, but in the view we take of this record it is not necessary to consider them.

The judgment of the trial court is reversed.

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


text:
    JESS HALES v. STATE.
    No. A-5980.
    Opinion Filed March 10, 1928.
    (264 Pac. 919.)
    R. H. Galyen, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted on a charge that he did willfully, unlawfully, knowingly, and wrongfully manufacture a certain compound mixture, to wit, TOO pints of a certain common compound mixture commonly known as “home brew” fit for the manufacture of beer and other alcoholic liquors, the sale, barter, giving away, and otherwise disposing of which is prohibited by the laws of the state of Oklahoma, and his punishment fixed at 60 days in jail and a fine of $250.

The fifth assignment of error relates to an error committed by the trial court in admitting evidence as to the character of the defendant. The evidence offered by the state tended to prove the following facts:

S. E. Cook testified that he went to the defendant’s house with a search warrant, that there was no one at home, and they went on around the house to the barn, and on around to the west side of the house, where they found three cases of beer; “I did not know whether to take it or not, and phoned Judge Morris, and told him what I had found, and he said it was all right, if I had a proper search warrant.”

Mr. B. F. Suitor testified, in substance, to the same facts as S. E. Cook. This is all the testimony that was offered. In the examination in chief, over the objection of"the defendant, the court permitted the county attorney to ask the witness S. E. Cook the following questions:

“Q. I will ask you, Mr. Cook, if you are acquainted with the reputation of defendant in reference to being engaged in the illicit manufacture and sale of liquor.
“By Mr. Galyen: We object to this, as it is incompetent, irrelevant, and immaterial; you-cannot put defendant’s reputation at issue, unless done so by defendant himself. (Which objection is by the court overruled. To which ruling of the court defendant excepts, and exceptions are allowed.)
“A. I am.
“Q.. Mr. Cook, state if that reputation is good or bad? A. It is bad.”

Where the defendant is charged with a specific offense as in this case, it is a fundamental principle of criminal law that the character or reputation of the defendant cannot be impeached or attacked by the state unless he puts his character in issue by introducing evidence of good character. The precise question here presented was decided by this court in the case of Kirk v. State, 11 Okla. Cr. 203, 145 P. 307. In the opinion it is 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 * * * evidence of good character.”

Again the court says:

“The fact that an offense has been committed cannot be proved by common rumor or general repute.” Cleve Morris v. State, 26 Okla. Cr. 399, 224 P. 377.

The admission of this incompetent evidence may have turned the scale against the defendant. Its admission was prejudicial to his substantial rights. There are other errors assigned, but in the view we take of this record it is not necessary to consider them.

The judgment of the trial court is reversed.

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


text:
    LAWRENCE MORGAN v. STATE.
    No. A-6216.
    Opinion Filed March 10, 1928.
    (264 Pac. 919.)
    E. I. Saddler, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that ih Tulsa county, October 31, 1925, he did unlawfully point a deadly weapon, to wit, a revolver at one F. M. Payne, Lawrence Morgan was tried and convicted, and, in accordance with the verdict of the jury, was sentenced to imprisonment in the county jail for 90 days and to pay a fine of $50. From the judgment rendered March 4, 1926, an appeal was perfected by filing in this court on May 4, 1926, a case-made, but no brief has been filed and no appearance made in behalf of appellant in this court, and the case was submitted on the record.

While appellant is not represented in this court, we have carefully gone through the record, and find it free from substantial error. The evidence in support of the allegations of the information is practically undisputed; the instructions fairly presented the entire law o'f the case, and appellant, from all that the record discloses, had a fair trial.

The judgment appealed from is accordingly affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WILL WALLER v. STATE.
    No. A-6042.
    Opinion Filed March 10, 1928.
    (264 Pac. 922.)

      Geo. W. Martin, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was tried and convicted of the crime of having possession of about four gallons of whisky, with the intent to sell, barter, give away, or otherwise furnish the same. Motion for new trial was filed and overruled, and exceptions duly saved. The court upon the verdict rendered sentenced the defendant to imprisonment for 30 days in the county jail, and a fine of $100. The defendant has appealed to this court for the reversal of the judgment.

The testimony on behalf of the state in substance is as follows: 'John Weaver testified he was city marshal and deputy sheriff on the 22d day of May, 1925; that he lived at Gotebo, and knew the defendant; that a Mr. Maxwell called him to watch some whisky he had found near the road in a cotton patch Mr. Maxwell was cultivating; that, when he got out to where the whisky was, he found eight one-half gallon jars partially buried in the ground; that the defendant came out on a horse and rode up to where the jars were buried, and got down and picked up two jars of whisky and put them On his horse; he started to ride away, and, when I hollowed, defendant started off hurriedly on his horse, and threw the jars of whisky away and broke them.

W. N. Maxwell, called as a witness for the state, testified as to the same facts as the other witness, and also testified that he found the whisky in the cotton patch; that he saw the defendant early that morning come out in a car, and seemed to have some car trouble near where the whisky was found, and turned his car and went away; that they waited until the defendant came out and got two'jars of whisky; witness did not know who put the whisky where it was found.

The defendant in his own behalf testified: That he lived at Gotebo; that on the 22d day of May, 1925, he started out with his car, and kept having car trouble, and finally turned and went back to town; that he saw witness Maxwell at that time. That the witness was chopping weeds out of his cotton patch. In the afternoon of the same day he went out to the Maxwell place, and started to cross the Maxwell cotton patch to where a Mr. Collier was plowing. That he found this whisky, and took two jars of it. That, when he saw the officers, he threw the jars down and broke them. This in substance is all of the testimony.

We will consider the first assignment of error, which is:

“(1) That said verdict, judgment, and sentence is contrary to law; to which plaintiff in error excepted.”

The testimony fails to disclose how the whisky came to be buried in the Maxwell cotton patch, but the testimony is specific that during the morning of the day the whisky was found the defendant in this case drove out by the Maxwell place, and seemed to have car trouble; that Mr. Maxwell discovered the whisky, and went to town and notified the officers; that a watch was kept, and later in the afternoon of the same day the whisky was found, the defendant in this case came back to the place where the. whisky was buried, got off his horse, and took two one-half gallon jars con-the officers called to him, he threw the jars down and taining whisky, and started away with it; that, when broke them. The quantity of whisky found at the place where the defendant was seen is prima facie evidence of an intent to sell, .barter, give away, or otherwise furnish the same. Chapter 123, Session Laws 1923-24, p. 144.

The jury had the right to take into consideration the conduct of the defendant on the day he was found on the Maxwell place with the two one-half gallon jars of whisky in his possession, .and the circumstances surrounding the finding of the whisky in the cotton patch, to determine as to the guilt or innocence of the defendant. The defendant insists in his argument that the testimony is insufficient to sustain a conviction, and cites Tice et al. v. State, 18 Okla. Cr. 33, 192 P. 434. In the Tice Case there is no testimony whatever to connect the defendant with the possession of the whisky he was alleged to have conveyed. Defendant also cited Ward v. State, 15 Okla. Cr. 61, 175 P. 60, and Jackson v. State, 13 Okla. Cr. 520, 165 P. 619; Ren v. State, 9 Okla. Cr. 671, 132 P. 1131, but in each of these cases there was a failure of testimony to connect the defendant with the whisky. In this case the defendant admitted having in his possession two one-half gallon jars of whisky and destroying the same when the sheriff pursued him. He also admitted that he had been out near where the whisky was found the forenoon of the day that he started away from the cotton patch in the afternoon with the two one-half gallon jars of whisky. In this case the evidence is sufficient to sustain the verdict and judgment.

This court will not interfere with the finding of the jury, where there is credible evidence to sustain the verdict. There are other errors assigned, but, upon careful examination of the record, they were not prejudicial to the rights of the defendant.

The judgment is affirmed.

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


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    EMMETT WALLACE et al. v. STATE.
    No. A-6278.
    Opinion Filed March 10, 1928.
    (264 Pac. 924.)
    G. V. Pardue, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellants, Emmett Wallace and Mrs. Lacy Phillips, were tried and convicted on a charge of transporting one-half gallon of whisky from “Hewitt to a point one-quarter of a mile north of Midway, all in Carter county,” and, in accordance with the verdict of the jury, they were each sentenced to pay a fine of $50 and confinement in the couiity jail for 30 days, and they appeal.

» The main, if not the only, question presented is whether the evidence was sufficient to sustain the verdict and judgment.

The state relied for this conviction upon the tes-' timony of W. W. Holder, who testified that he saw the defendants about 9:30 that night in' a Ford touring car in the town of Hewitt, driven by Bealer Caldwell, and that he followed them in his car a mile and a quarter east to the cemetery north of Midway; there going down hill they stopped, and Emmett Wallace got out and set a half gallon jar down behind the car; that his brakes were not good, and he ran a little by their car before he stopped; that he came back and found this jar; that Wallace was drunk; that Bealer 'Caldwell got out of the car also; that “Mrs. Phillips did not talk like she was drunk.”

On cross-examination he stated that he had a little difficulty with Emmett Wallace, that he pulled him loose from the car and told him to get into his car, and Wallace hit him, and he arrested him and took him to Wilson.

As a witness in her own behalf, Mrs. Lacy Phillips testified that she is the wife of Lacy Phillips, her age 33 years, was reared in Carter county; that her home is 9 miles from Wilson; that Bealer Caldwell is her nephew, and she left her home that evening in his car to go to her sister’s, a mile and a half east of the Rex-roat schoolhouse; that Emmett Wallace was at her home and got in the car to go to Rexroat' where hfe lives; that she did not see any liquor in the car or taken from the car, but she did see Bealer Caldwell throw something out just before he stopped the car; that there was no whisky drank in the car, and that Emmett Wallace was not under the influence of liquor; that, when the car stopped, Wallace got out to crank the car, Mr. Holder drove by and stopped, and came back, and, while Wallace was cranking the car, he said something to him, and they commenced to fight, then Wallace went and got in Mr. Holder’s car, and with her nephew she went on to her sister’s; that she was never before a witness.

As a witness in his own behalf, Emmett Wallace testified that he left the Phillips’ place in Bealer Caldwell’s car, and Mrs. Phillips was with them; that he did hot have any whisky in the car, and did not take any whisky out of the car; that, when the car stopped, he got out and went around to crank it; that Mr. Holder came up, and took hold of him, and told him to come and get into his car, and they had a little scrap; that he was perfectly sober; that he had never before been arrested for any crime.

It is contended that the evidence given upon the trial was not sufficient to sustain the verdict and judgments of conviction. From all the evidence in the case, carefully considered, it would seem quite plain that the evidence was sufficient to sustain a charge of unlawful transportation as to Bealer Caldwell. He was the owner of the car, and was driving the car at all times testified to by the state’s witness. There was no proof of participation in the crime by appellants further than the fact that they were riding in Caldwell’s car.

Generally, the weight of the evidence is for the jury, where there is substantial evidence tending to establish guilt. However, the weight of the evidence is for the jury only if there is sufficient evidence to show guilt.

On the undisputed facts, we are of the opinion that the evidence is insufficient to show a conveyance by appellants of the whisky in question.

The judgments appealed from are accordingly reversed.

EDWARDS and DAVENPORT, JJ., concur.


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    ROBERT McCURDY v. STATE.
    No. A-6187.
    Opinion Filed March 10, 1928.
    (264 Pac. 925.)

      J. M. Springer and John F. Vaughan, for plaintiff in error.
    George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Payne county on a charge of murder and was sentenced to imprisonment in the state penitentiary for life.

The record discloses that at the time charged in the information defendant with Raymond Porter and Edward F. McMurtry drove into the little town of Mehan. After a few minutes they drove to the edge of town, stopped their car, and walked to the store of Dorsey Andrews. McMurtry had a rifle and waited outside the store while Porter and defendant went inside and attempted to ro'b it. Andrews resisted the robbery and in the ensuing difficulty was shot three times with a 45-caliber pistol from which death resulted. After the shooting, the parties fled. McMurtry testified for the state; defendant did not take the stand. The defendant, Porter, and McMurtry were jointly charged and had a preliminary. McMurtry waived examination and was held for prosecution in the district court. At the preliminary hearing the state offered in evidence the testimony of an undertaker who examined the body of Andrews immediately after his death, who testified as to the number of wounds and the location thereon and ■ the scene surrounding the body. His evidence sufficiently proves the unlawful killing of Andrews. In addition there was evidence that the codefendants Porter and McMurtry, in the presence of defendant, had each voluntarily made a confession that they, with defendant, killed the deceased. There was further introduced these statements or confessions of Porter and McMurtry, setting out fully the circumstances of the robbery and the killing of Andrews and the participation of defendant therein. These statements were signed iby the respective witnesses ' and were certified by the official court reporter of the district court. The admission of these statements before the justice of the peace was objected to and exceptions taken to the ruling of the court admitting them. Before his arraignment in the district court defendant filed a motion to quash the information for the reason that the evidence at the preliminary hearing was hearsay, not the best evidence, and there was not sufficient competent evidence to warrant the magistrate in holding defendant for trial. In support of this motion the record of the evidence at the preliminary was introduced, the motion was overruled and exceptions saved, and the ruling assigned as error here.

A preliminary examination, under the provisions of section 11, art. 2, of the state Constitution, is analogous to an investigation by a grand jury. The grand jury upon an investigation has authority to return an indictment which becomes the basis for a prosecution. The magistrate upon a preliminary examination has authority to hold an accused for trial, and when so held for trial and a transcript of his order is filed in- the district court, the county attorney is authorized to file an information charging the offense for which 'accused jls held by the committing magistrate. The information so filed then begomes a basis of the prosecution in all respects similar to a 'charge by indictment. It is subject to attack in the same manner as an indictment by motion to quash or by demurrer. An investigation by a grand jury or a preliminary examination by a magistrate is not a trial, and the rules of evidence are not applied as rigidly as in the trial of a case .before the court.

The signed confession of Porter was certainly ad-1, missible against him, and the signed confession of Mc-Murtry was admitted without objection as to Porter and may be said to be admissible as to him. There is no question of the sufficiency of the evidence in the preliminary as to Porter. As to defendant the committing magistrate had competent evidence that Andrews was unlawfully killed. He had competent evidence of the fact that Porter and McMurtry, jointly charged with defendant, had each made a written and signed confession admitting their participation in the killing. In order to warrant the magistrate in holding defendant for the action of the district court, it is only required that it appear that a public offense has been committed, and that there was sufficient cause to believe defendant guilty of an offense. Section 2495, Comp. Stat. 1921. This court, in Ex parte Miller, 29 Okla. Cr. 301, 233 P. 775, said:

“In a preliminary examination it is not necessary that the evidence upon which the accused is bound over for trial be sufficient to support a conviction. Under the statute (section 2497, Comp. Stat. 1921) it is enough if it is shown that an offense was committed and that there is sufficient cause to believe the defendant guilty thereof.
“In an examination of a complaint against Aaron Burr before Chief Justice Marshall, sitting as a committing magistrate, he said: ‘On an application of this kind., I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused; but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it.’ 1 Burr’s Trial, 12 F. Cas. No. 14692a.”

We think the committing magistrate was not required to ignore the fact of a confession by the code-fendants, nor the contents of such confession implicating the defendant in the murder of Andrews, particularly where the defendant did not testify and offered no testimony at the preliminary. The facts proved with the inferences arising therefrom constitute sufficient cause for the magistrate to believe defendant guilty of the crime of murder. However, as a matter of sound practice, the county attorney should have produced further evidence which plainly he could have produced without difficulty. If he did not so do on his own volition, the committing magistrate should have required "him to do so.

Complaint is next made that the court erred in overruling the challenge for cause to certain jurors. The point, however, is not stressed and an examination of the record discloses that the jurors are not disqualified under section 2678, Comp. Stat. 1921, and under the rule frequently announced by this court.

It is next argued that there is not sufficient corroboration of the testimony of the accomplice and not sufficient competent evidence to sustain the judgment. The. testimony of the accomplice, McMurtry, is in substance that on the day of the murder he went to Yale in the forenoon with Raymond Porter and the defendant; that he bought some groceries there, and after taking these home he returned to Yale and from there he and Porter and defendant, McCurdy, drove to Mehan, arriving there just about dark; that when they first drove into Mehan, Porter got out of the car and went into Mr. Axtell’s store to see which store contained the post office because They did not want to rob that, and Porter stated he would ask for some tobacco or about a train or something like that as an excuse for' coming to the store. After a short stop on the street of Mehan they drove west a little way, then turned around and came ■back by the railroad track at the edge of town and got out of the car; that he got a rifle ofut of the."car and walked with Porter and the defendant to the store of Andrews; there he went past the door while the others went inside; that a truck was in the street near the store. Soon he heard three shots inside the store and saw McCurdy and Porter run out, and all three went to the car and drove to his place. On the way there McCurdy said he had lost a pistol, referring to one formerly owned by McMurtry and by him taken from the possession of O. J. Smith and sold to Porter. He further said that McCurdy told him to see O. J. Smith and tell him not to know that pistol if he ever saw it again, and that he did see Smith and gave him that message. McMurtry further testified that defendant had owned a 45 Bizley model pistol which he bought at Cushing, in his presence, not long before at a gun-shop.

There are various corroborating circumstances of the evidence as to the commission of the murder and the details leading up to it. Some of these will be noticed. Francis Main testified that she walked by and saw the parked car near the railroad track at the time and place detailed by McMurtry. Betty Lewis testified as to the number of men, the number of shots, and that one man of the party remained outside the store with a rifle; also as to the truck in the street. O. C. Townsend also testified as to the truck in the street, and that he saw the car where Betty Lewis was; also as to three men, the rifle, the approach to the store, and the shots. The testimony of this witness also tends strongly to corroborate McMurtry in reference to Porter going into Axtell’s store for tobacco. Francis Tully corroborates some details, as to Herman Axtell and C. P. Booth. As to the testimony of the accomplice that he procured a gun from O. 'J. Smith and sold it to Porter, he is in some particulars corroborated by 0. J. Smith and Mrs. Smith and by Ed Johnson and Mrs. Ed Johnson. Johnson and wife testify that Porter and McMurtry and defendant were present and Porter bought the pistol from McMurtry on March 28, the killing occurred on April 11, following. He identified the pistol found in Andrews store as the one sold by Mc-Murtry to Porter. Roy Hilton testified that between March 8 and 12, he sold a Bizley model 45 Colt’s to defendant, and he identified the pistol taken from defendant at the time of his arrest as this pistol. Several other witnesses corroborate him. D. L. Irwin testified as an expert that the bullet that killed Andrews was from a 45-caliber gun with .rifling similar to the gun of defendant. The accomplice had testified that this was the gun used in killing Andrews. There are various incidental incriminating items, separately not particularly strong, but when grouped together they present material points of corroboration of the testimony of McMurtry.

The law in reference to the corroboration of an accomplice has been considered and stated by this court in many decisions. It is said that, where the corpus delicti is well proved and there is competent evidence independent of that of the accomplice showing the actual commission of the crime, which tends to connect the defendant with the commission thereof, the sufficiency of such corroboration is a question for the jury. Martin v. State, 12 Okla. Cr. 510, 159 P. 940; Moody v. State, 13 Okla. Cr. 327, 164 P. 676.

It is not necessary that the corroborating evidence connect the defendant with the offense; if it tends to do so, it is sufficient. Alderman v. Ty., 1 Okla. Cr. 562, 98 P. 1026.

It is not necessary to review the authorities. We think there is sufficient corroboration of the testimony of McMurtry to carry the case to the jury and that the weight and sufficiency is for the jury.

The defendant next argues that instruction No. 12 is prejudicially erroneous. This instruction states correctly the law as to the testimony of an accomplice, defines an accomplice, and informs the jury that Mc-Murtry is an accomplice, and that the jury must find that his testimony has been corroborated by such other evidence as tends to connect the defendant with the commission of the offense. Then this language is used:

<<* * * The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof, but there must be evidence which within itself, without aid from the accomplice’s testimony, tends to connect defendant with the offense committed. The corroborating evidence is sufficient, although by itself slight, if it connects the defendant with the commission of the offense, and it need not corroborate the whole testimony of the accomplice, and if you find the testimony of the accomplice has been corroborated under this rule, then it is sufficient for you to consider the testimony of such accomplice and determine whether the defendant is proved guilty or otherwise.”

The defendant argues that the use of the word “slight” is improper; that, in effect, there may be slight corroboration, and the evidence yet not be sufficient. The court does not tell the jury that slight corroborating evidence is sufficient to warrant a conviction, but tells them there must be corroboration of the testimony of the accomplice tending to connect defendant with the commission of the offense before it can be considered, and if they find there is such corroboration then they may consider the testimony of the accomplice. We do not approve this part of the instruction, but the inaccuracy is more technical than real, and, considered in the light of the testimony in the case and all the instructions together, we think it could not have injured the defendant.

Some objection is also' directed at the court’s instruction No. 171/2 which states, in substance, that the going under an assumed name in certain contingencies might be considered in evidence as a circumstance. The record does not disclose that any exception was taken to this instruction. If erroneous the error is not fundamental. Schiffner v. State, 28 Okla. Cr. 290, 230 P. 274; Inman v. State, 22 Okla. Cr. 161, 210 P. 742; Hess v. State, 9 Okla. Cr. 516, 132 P. 505.

Complaint is also made that there was misconduct in the argument of counsel for the state which prevented defendant from having a fair trial. Under this assignment various statements from the argument of ’counsel are set out. A number of these are directed to that point of the argument of counsel enumerating the various items of corroboration of the accomplice as viewed from the standpoint of the state. It is insisted that several of these misstate the evidence and are unfair deductions. We have examined these with care, and, while they state the extreme view of the state and draw the strongest deductions the evidence will warrant, we cannot say that they are unfair or constitute misconduct. Exceptions are then taken to the argument of counsel in commenting on the failure of defendant to call his wife as a witness. Numerous authorities are cited supporting the view that such comment constitutes improper argument. In this state, however, the rule is different. It has several times ibeen held by this court that where the wife of a defendant in a criminal case might be a material witness in his behalf and she is not placed upon the stand by him, nor her absence accounted for, the failure to produce her as a witness to testify is a legitimate matter for comment in the argument of the case. Wissinger v. State, 39 Okla. Cr. -, 264 P. 631, and authorities there cited. See, also, 1 Wigmore, § 285. We think the rule announced by this court is proper and adhere to it.

In some instances the argument complained of appears not to have been objected to, and in no instance was there any request that the court withdraw any argument from the consideration of the jury.

Upon a consideration of the entire record, it appears to us that the jury could have arrived at no other verdict than that of the guilt of the defendant, and, while /there are sotne irregularities and errors in the record, none of them are fundamental in character nor so materially prejudicial as to require a reversal.

The case is affirmed.

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


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    SWANNIE FITZGERALD v. STATE.
    No. A-6038.
    Opinion Filed March 10, 1928.
    (264 Pac. 929.)
    Thomas Norman, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Carter county upon a charge of having possession of 16 gallons of Choctaw beer, with the unlawful Intent to sell, barter, give away, and otherwise furnish the same to others, and sentenced to pay a fine of $200 and cost, and imprisonment in the county jail for a term of 60 days. From the judgment and sentence, the defendant has appealed.

The testimony on behalf of the state is, in substance, as follows::

Carl Holden, a deputy sheriff, stated he was acquainted with the defendant on or about the 23d day of December, 1925. that he was out to defendant's home on said date; that he searched all around defendant’s place and found a lot of choc bottles; we found a 16-gallon keg of choc; the choc was sitting under a barbed wire fence; there was a trail right from the choc back under the fence toward the defendant’s house to the rocks. On cross-examination, witness stated that they. went out to defendant’s place; they went south and came back to the house; - they came around a point of timber back southeast; that they did not find anything; went northwest of the house and looked around the henhouse and well, and around the house and found some empty choc bottles; went on west from the henhouse to the line fence; come to a trail, crawled under the fence and turned into curve of a little hollow where they found the keg of 16 gal= Ions of choc; did not see the defendant there or anywhere near where he claims the choc was found. The keg of choc was 200 yards or more from the defendant’s house, and not on the land the defendant was occupying. The empty bottles found were choc bottles because those are the kind that are used to put choc in.

J. F. Dunn, called as a witness, testified as to the same facts as Holden, except Dunn places the distance from the house to where they found the choc at from 200 yards to á quarter of a mile.

J. L. Bullock, a chemist, testified he examined the sample of choc delivered by -witness Holden, and it contained 9 per cent, alcohol, measured by volume.

The first error assigned and argued by the defendant is:

“The court erred in admitting, over the objection and exceptions of the defendant, certain incompetent, irrelevant, and highly prejudicial testimony, to wit, evidence of the general reputation of the place where the defendant lived, said place being his private home; it being neither charged or proved to be a place of public resort, and in refusing to strike the same from the consideration o'f the jury.”

The assignment of error quoted relates to the following questions and answers that were propounded to the witness Dunn, a witness for the state:

“Q. How long have you been acquainted with the place where the defendant lives? A. Good 'while, new house, had not been built very long.
“Q. How long has he been living in the immediate location? A. About a year.
“Q. Are you acquainted with the place? A. Yes, sir.
“Q. Are you acquainted with the general reputation of the place, in that community, for being a place where intoxicating liquors can be bought and sold?
“Mr. Norman: We object; no proper predicate has been laid and developed by the state. It is incompetent, irrelevant, and immaterial.
“Court: Overruled.
“Mr. Norman: Exceptions.
“Q. Is that reputation good or bad? A. It is bad.
“Mr. Norman: We move the answer of the witness be stricken and the jury instructed to disregard the answer of the witness.
“Court: Overruled.
“Mr. Norman: Exceptions.”

It is contended that the court erred in admitting evidence of the general reputation of the home or place of defendant as being a place where intoxicating liquors can be bought and sold, for the reason that there was no proper predicate laid for such testimony and that before evidence of the general reputation of his home or place can be legally admitted, it must be shown that the place itself was a place of public resort, not merely that it bore such reputation. There is no evidence in the record showing that parties resorted to the defendant’s place or home,' or that the defendant had in any way whatever been connected with the buying or selling of intoxicating liquors at his place.

We think that, under the rule laid down by this court in the case of Yakum v. State, 30 Okla. Cr. 184, 23b P. 253, the objection of the defendant was well taken, and the court should have sustained the same, and that it was error for the court to admit the testimony as to the general reputation of defendant’s place without a proper predicate being laid by the state showing the defendant’s place was a place of public resort. To justify or sustain a conviction of having intoxicating liquor with the intent to violate any provision of the prohibitory laws, there must be evidence sufficient not only to prove possession, but also to prove criminal intent. Ward v. State, 15 Okla. Cr. 150, 175 P. 557; Severns v. State, 31 Okla. Cr. 281, 238 P. 217.

The third error assigned is as follows:

“(3) The court erred in overruling defendant’s demurrer to the evidence of the state.”

From a careful examination of the record we fail to find any testimony connecting the defendant with the possession of the choc alleged to have been found on an adjoining place to where the defendant resided. The fact that some empty bottles were found in or near the place is not sufficient testimony to sustain a conviction of possession of intoxicating liquor with intent to barter, sell, give away, or otherwise dispose of the same, in the absence of any testimony connecting the defendant with the possession of the choc alleged to have been found; The demurrer of the defendant was well taken, and should have been sustained.

There are other errors assigned, but the view we take of this record we do not deem it necessary to discuss them.

The case is reversed and remanded.