text:
    BARNES TAYLOR v. STATE.
    No. A-6234.
    Opinion Filed Dec. 15, 1928.
    (272 Pac. 887.)
    W. F. Brumfield, 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 Noble county upon a charge of unlawfully, wrongfully, willfully, and knowingly keeping and maintaining a place where intoxicating liquor, to wit, whisky, was received and kept for the purpose of bartering, selling, giving away, or otherwise furnishing the same to others, and was sentenced to imprisonment in the county jail for 100 days and to pay a fine of $300. From the judgment and sentence defendant has appealed to this court.

The testimony on behalf of the state shows that Fred Yeager made an affidavit before E. W. Jones, county judge, to obtain a search warrant; the only charge in the affidavit being that numerous and divers persons, who were users of intoxicating liquor, frequented a public resort, indicating that intoxicating liquor was being kept there for the purpose of selling, bartering, giving away, and otherwise furnishing the same, in violation of the prohibitory laws of the state of Oklahoma. Upon this affidavit a search warrant was issued, and the officers went to the home of the defendant and found therein a colored man by the name of Herman or Herbert Kidd; they claim Kidd had a pint of whisky, and when they showed up Kidd turned and ran out of the building, carrying the bottle of whisky and a funnel, and left the defendant in the room.

Two or three witnesses testify to the same facts, and were asked by the state, before the defendant offered any testimony, the following question: “Q. Did you, on September 12, 1925, know the general reputation of the place in the community as being a place where whisky was being received and kept for the purpose of being sold?” To which the defendant objected, and the court overruled the objection of the defendant, and defendant saved an exception. The court permitted the witnesses to answer the question, and each of the witnesses stated that they knew the reputation, and that it was bad.

The defendant called several witnesses to the stand to show that he was not at home at the time Herman or Herbert Kidd went to his house, and to show that Kidd at the time had a room rented at the defendants, and their testimony tended to show that Kidd took a jug with something in it into the defendant’s house, where he had been living and had a room rented, and that the defendant had nothing to do with the jug or its contents.

The defendant’s own testimony shows that he was sitting on the porch, and that when Kidd knocked on the back door and asked to have the door opened that Alfred Grace, who had been sitting on the porch with defendant, got up and opened the back door. The defendant denied any interest or ownership in the whisky, and denied he knew it was there until he went back into the room, and when he found out what it was he told Kidd to get out of his house, or words to that effect. This is in substance all the testimony we deem necessary to set out.

The statements in the affidavit for the search warrant were insufficient to authorize the court in issuing the same, had the defendant taken advantage of it by motion or objection to the introduction of the testimony on the ground that the affidavit was insufficient.

Defendant has assigned several grounds for reversal:

First, that the court erred in overruling defendant’s motion to suppress the evidence of the state.

Second, the court erred in permitting certain evidence offered by the state to be introduced over the timely objection of the defendant.

Fourth, that the verdict of the jury in this case was contrary to the law and the evidence.

It is urged that the court erred in admitting evidence of the general reputation of the place of the defendant as being a place where whisky was being received and kept for the purpose of being sold, for the reason that there was no proper predicate laid for the testimony. This court has repeatedly held that, before evidence of the general reputation of a place can be admitted, it must be proven that the place itself was a place of public resort, and not merely that it bore such a reputation. There is no evidence that the defendant had in any way been connected with the selling or furnishing of intoxicating liquor at this place. Yakum v. State, 30 Okla. Cr. 184, 235 P. 253.

To justify or sustain a conviction for having intoxicating liquor with the intent to violate the prohibitory laws there must be evidence sufficient, not only to prove possession, but also to prove criminal intent. Fitzgerald v. State, 39 Okla. Cr. 320, 264 P. 929.

The record fails to disclose any testimony connecting the defendant with the whisky alleged to have been found in the possession of Kidd, or to show any intent on the part of the defendant to sell whisky at this place. It was error for the court to permit the state to introduce testimony, over the objection of the defendant,, as to the general reputation of his home, without the proper predicate first being laid showing that the defendant’s place was a place of public resort. The evidence is insufficient to sustain a conviction.

The case is reversed and remanded.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    EARL BYXBEE v. STATE.
    No. A-6328.
    Opinion Filed Dec. 15, 1928.
    (272 Pac. 493.)

      E. W. Snoddy, 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 convicted in the county court of Woods county upon a charge of willfully, intentionally, and unlawfully manufacturing intoxicating liquor, to wit, corn whisky, and was sentenced to pay a fine of $500 and be imprisoned in the county jail for six months. Motion for new trial was filed and overruled, and exceptions saved, and defendant has appealed to this court.

The testimony on behalf of the state is in substance as follows: L. B. Farris stated he was city marshal and had had a commission as deputy sheriff; that he knew the defendant, Earl Byxbee; that he saw the defendant on the 30th of May, 1921, north of Avard about a half mile, at the McKnight farm; that he went to the McKnight farm on the said date with William Deaton, Harry Hogdson, the sheriff, and Hugh Martin; as they approached the house they met a Mr. Knode and asked him if he had seen anything of Mr. Byxbee or if Mr. Byxbee was around there; they went on to the house and witness and Mr. Deaton went into the house and found it empty; out west and a little bit north there was a windmill and a tank of water, and they discovered a hose running from the tank down through the weeds northwest; after they discovered the hose they went to a shed that was farther west and looked down in that direction and saw the defendant, Byxbee, and a fellow named Gooch; when they first saw Byxbee he was between where the still was and the coil in the barrel; Mr. Deaton and Hogdson went down on the east side of the ravine, and I went down in the ravine; the still was on the west side of the ravine in a place dug in the bank; the still was set in some kind of a frame and had, I think, four gasoline burners under it, and the stuff was running out of the still; defendant was working at it; there was a keg there, I think about ten-gallon keg, with corn whisky in it; it was close to the coil in the barrel; there was quite a little bit of whisky, I don’t remember how much; Mr. Deaton and myself proceeded to tear the still down and get things in shape to bring them to town; Mr. Byxbee said none of the other men had anything to do with the still, only himself, and he did not want to see the other men taken to town; but we did take Mr. Gooch and Mr. Byxbee to town; Mr. Byxbee stated it was his stuff and that the other fellow was not to blame, he had just gotten there.

The witness Deaton testified in substance to the same facts as L. B. Farris. The state introduced the search warrant, over the objection of the defendant. At the close of the state’s testimony the defendant moved the court to instruct the jury to acquit the defendant for the reason that all of the testimony of the witnesses for the state was obtained by reason of a void and illegal search warrant, and therefore the same was not admissible. “By the Court: I could not do that. I don’t think it is material. Overruled.” Defendant excepts, and defendant rests. The defendant then asked to reopen the case and called as a witness L. Z. Lasley, who testified in substance that he did not remember who had drawn the search warrant; he thought he had prepared it, but now he thought Mr. Houts prepared it; he did not remember whether it was filed in this case or not; did not know whether the complaint was on information and belief; he was county attorney of Woods county at the time this search warrant was issued. Had no recollection as to what became of the search warrant.

This in substance is all of the testimony that was introduced in the case. The defendant then made the following request: “Comes now the defendant and requests the court to instruct the jury that the State relies in this case for conviction upon circumstantial evidence, and that the court instruct the jury on circumstantial evidence”— which request was overruled by the court, and defendant duly excepted. From the record in the case it appears that this case had been before the Criminal Court of Appeals, 29 Okla. Cr. 9, 231 P. 898, and had been reversed and remanded, on the ground that the information was defective, and when the mandate of the Criminal Court of Appeals was spread of record the trial court entered the following order, omitting the caption:

“Whereas, it appears that said Earl Byxbee, one of the above named defendants was convicted in the County Court of Woods County, State of Oklahoma, at the January term 1922 of said court of a violation of the liquor laws of the State of Oklahoma, to wit: manufacturing intoxicating liquor, to wit: corn whisky, and whereas, said defendant appealed said cause to the Criminal Court of Appeals of the State of Oklahoma.' and said cause was reversed and remanded for further proceedings, and whereas it appears that said cause was reversed on the ground that the Information filed therein was defective, and it appearing to the court that the defects of said Information may be cured by amendment or by filing an amended Information, and Whereas, it appears that C. E. Wilhite is disqualified to act as County Attorney in this cause, he having been interested in the defense of said action:
“I therefore appoint L. Z. Lasley to act as prosecutor in said cause and to assume all the responsibilities and privileges in said action that the County Attorney may rightfully assume.
“Witness my hand and seal of this court this 13th day of November, 1925.
“L. T. Wilson, Judge.”

November 18, 1925, amended information was filed by the special prosecutor, L. Z. Lasley. The defendant filed a demurrer to the amended information, on the ground that the information did not substantially conform to the law; that more than one offense is charged in the information ; that the facts do not constitute a public offense; that the information contains matter which, if true, constitutes a legal bar to the prosecution; that the information shows on its face that the prosecution is barred by statute of limitation — which motion was by the court overruled, and defendant duly excepted.

Defendant then filed a motion to set aside the information on the ground that the same was not filed, signed, indorsed, or verified as prescribed by the statute, which motion was by the court overruled, and defendant excepted. The defendant filed a motion to dismiss, alleging as grounds that at the prior trial defendant had demurred to the information which demurrer was overruled; defendant was tried and appealed to the Criminal Court of Appeals, which court held that the demurrer should have been sustained, and reversed said cause for further proceedings, and that the proceeding had in this case, since the opinion of the Criminal Court of Appeals was rendered, has not been in conformity to law. Which motion was denied by the court, and defendant excepted.

The defendant urges that the court erred in overruling his demurrer to the information filed against him, and in overruling the motion of the defendant to set aside the information, and argues at length that there is nothing in the record to show that the regular county attorney was disqualified when L. Z. Lasley was appointed special prosecutor for the state, and that the information is void for the reason that the information was not exhibited by the county attorney, or some other officer authorized to do so, and for that reason the county court had no jurisdiction to place the defendant on trial.

We cannot agree with defendant’s contention. The order appointing the special prosecutor recites that C. E. Wilhite is disqualified for the reason that he had been interested in the défense of said action.

Section 2725, Comp. St. 1921, provides as follows:

“If a county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial.”

Section 5741 of the Comp. St. 1921, makes it the duty of the county attorney to appear in the district, superior, and county courts of his county, as a prosecutor, or to defend on behalf of the state all actions or proceedings, civil or criminal, in which the state or county is interested, or a party.

We hold the statute above referred to is sufficient authority for the county judge, when the county attorney is disqualified, to appoint some competent person to represent the state in any case in which the state may be a party, or interested. Section 2725 is supplemental to section 5745, Comp. St. 1921, relied upon by the defendant; section 5745 confers authority upon the district court to appoint a special county attorney in trials of all cases where the county attorney is absent or unable to attend or perform the duties, or disqualified generally to act in his official capacity.

If there was no specific provision in the statute, the county court being a court of record, we hold that the court would have inherent power to appoint a special county ' attorney, where it was shown the regular elected, qualified, and acting county attorney was disqualified under any of the grounds mentioned in the statute. It is essential to the very life of the court that proper officers be in attendanee upon it. The power to appoint such officers is necessary for the protection and existence of the court, and absoutely essential to the administration of justice, and the enforcement of all our laws. It was not error for the court to overrule the demurrer to the amended information, and motions to dismiss the same on the grounds stated in the demurrer and motions.

It is next urged by the defendant that the former decision of this court, in holding the information fatally defective, was tantamount to sustaining the demurrer to the information, and that before a new information could be filed it would be necessary for the county court to direct the county attorney to file a new information, or direct that a new information be filed, and, no order of this kind having been made, that the judgment was final upon the information demurred to, and is a bar to another prosecution for the same offense.

Defendant cites State v. Wheatley, 20 Okla. Cr. 28, 200 P. 1004, and authorities therein cited, to sustain his position. We find that in the Wheatley Case there was no order whatever entered by the court when the demurrer was sustained, directing the county attorney to file an amended information. In this case, while the language is not specific, it is evident by the language used by the court in appointing L. Z. Lasley special attorney that he intended it to be construed that the special prosecutor was to carry out the duties of the county attorney by taking the necessary step’s to continue the prosecution; this language appearing in the order:

“And, whereas, it appears that C. E. Wilhite is disqualified to. act as County Attorney in this cause, he having been interested in the defense of said action, I therefore appoint L. Z. Lasley to act as prosecutor in said cause and to assume all the responsibilities and privileges in said action that the County Attorney may rightfully assume.”

It is not necessary that any formal language should be used in directing the county attorney as to the procedure that should be taken in the case. Davenport v. State, 20 Okla. Cr. 253, 202 P. 18; Ex parte Pebsworth, 28 Okla. Cr. 181, 223 P. 192. It is clear from the language used in the order that the court intended the special prosecutor to follow the proceedings he followed by filing an amended information and to further prosecute the case.

The court did not err in permitting the amended information to be filed by the special prosecutor. It is next urged by the defendant that the court erred in permitting the introduction of the search warrant, with the return on the same, as the return showed Earl Biggsbee and one Gooch were found at the still and arrested.

From an examination of the record in this case, we do not find the rights of the defendant were prejudiced by the introduction of the search warrant and the return, for the reason that all the proof of the state, which is not controverted by any witness for the defendant, shows that the defendant was found in the possession of a still which was in operation, and that a quantity of corn whisky was found at the still, which still was down in a ravine some distance from the house and barn known as the McKnight. place. There is no contention made by the defendant that he was occupying the house or its curtilage, and no denial made that the place where the still and corn whisky were shown to have been found was quite a distance from the house and barn, and that the defendant was found in possession of the same by the officers. The testimony is amply sufficient to sustain the verdict and judgment. The court properly declared the law.

Finding no error in the record prejudicial to the defendant’s rights sufficient to warrant the court in reversing the case, the judgment and sentence are affirmed.

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


author: DOYLE, P. J.

text:
    JOHN FOYE v. STATE.
    No. A-6204.
    Opinion Filed Dec. 17, 1928.
    (272 Pac. 491.)
    T. M. McCombs, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, John Foye, was tried for the murder of Zack Foreman. The jury returned a verdict finding him guilty of manslaughter in the first degree, and assessing his punishment at imprisonment in the penitentiary for a term of four years.

From the judgment rendered in pursuance of the verdict, he appealed by filing in this court on April 27, 1926, petition in error with case-made.

The errors assigned are that the court erred in overruling motion for new trial; that the court improperly instructed the jury on the law of self-defense.

Plaintiff in error is not represented in this court, and no brief in support of the assignments of error has been filed.

The facts and circumstances preceding the homicide are not disputed.

It appears that there was a dance at the home of Sam Hair, a mile and a half west of Redland, ¡Sequoyah county. After mid-night, the deceased, Zack Foreman, the defendant, John Foye, his brother-in-law, Buddy Youngblood, and Bud Johnson engaged in a game of poker, and, after playing for some time, a dispute arose. The defendant and Young-blood left the room; shortly afterwards the deceased and Bud Johnson left the room. It was then between 4 and 5 o’clock. As Foreman was passing from the porch to the front gate, the defendant, standing near the corner of the home, shot him with a pistol; the bullet entered the back of his head; he died within a few hours.

Bud Johnson testified: “We were playing on the floor, there was a dispute about the deal, John Foye com-, menced taking his money out of the pot and started up with his hand going towards his pocket, Zack Foreman got up with his back against the east wall and his hand down in his pocket, John Foye rushed Zack with his knife, and said, ‘Zack, don’t come out with nothing, if you do, I will cut your God-damn head off.’ Zack said, ‘You might as well cut, because I am coming out.’ Youngblood rushed Zack on his right, about that time Zack came out with his gun and they both ran out of the room, John Foye went out first, followed by Buddy Youngblood. Three or four minutes later Zack went out. Before he went out he stuck his gun in the scabbard in his overalls, he stepped off the porch and went straight towards the gate, which is 15. or 20 feet from the porch, as I came out the front door I saw John Foye with his head stuck around the corner of the house, he was holding his gun in his. hands and he shot Zack Foreman as he was walking towards the gate. Zack Foreman did not have anything in his hands when he was shot.”

Albert Bills testified: That he was standing watching the poker game when a dispute arose, and the defendant and the deceased both stood up; defendant grabbed the deceased, and said, “Zack, don’t you pull that gun, I will put my knife in your back; he had a pocket knife in his hand; Zack said, “You might as well cut, I am going to come up,” and the defendant ran out the door; Zack Foreman said, “I ain’t got a word to say, the money on the floor is Bud Johnson’s, I am going home”; that Zack Foreman, Bud Johnson, and witness stayed there in the room 15 or 20 minutes; then they started out together, and witness saw the defendant standing at the corner of the house when Zack Foreman was going towards the gate out towards his home; the defendant had his gun pointed in the direction of Foreman, and shot him just before he reached the gate; that Zack Foreman’s back was towards the defendant when the shot was fired.

Sam Hair testified that he was out in his lot when he heard the racket and started towards the house, and was standing at the end of the porch when the gun fired; then he saw John Foye trotting off towards the woods behind the house; that he saw Zack Foreman walking towards the gate when the shot was fired, and he fell forward on his face, within 3 feet of the gate; that he and others help to pick him up, and they found a pistol in a scabbard in his clothes.

Dr. Wood, physican and surgeon, testified that he was called to attend the deceased, and found him lying on the porch of Sam Hair’s house with a bullet wound in the head. The ball had entered the temporal ridge, and ranged upward, and lodged behind the right eye; that he arrived there about 6 o’clock in the morning, and the deceased died within an hour.

As a witness in his own behalf, the defendant testified ; “That trouble started over the poker game; Young-blood and Johnson both grabbed the deck and threw it over to Zack, and he would not let me cut it. I reached over to get the cards, and Bud Johnson came up with his knife and cut me across these three fingers. We all had our hands down, and when I went to get up he and Zack both stepped back and Zack took his gun and it hung; he clicked it three or four times, and Bills grabbed hold of him. I just passed out to the end of the porch. Frank Wallace was standing there, and I said, ‘Give me my gun, I am going home.’ Wallace pulled it out and said, ‘Here it is.’ I went up to the northeast comer of the yard, I could not get over the fence. Zack Foreman was coming out the door; he looked first one way and then the other; and people were going in every direction. There were 36 or 40 there. It seemed to me that it was my time to shoot, because he was looking for me and Bud, they trying to keep him back in the house, and I shot. I was afraid of him, and I knew if he saw me he would kill me. He had his gun in his hand. I was standing 10 or 15 feet from the northeast corner of the house when I fired the shot.”

We have examined the whole record with care, and find no. material error in the rulings of the court in the admission or rejection of evidence.

The instructions given fairly presented the law of the case, and were as favorable to the defendant as he had any right to demand.

It is apparent that justice has been done, and, finding no error prejudicial to the substantial rights of the defendant, the judgment rendered on the verdict is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    PAUL MILES v. STATE.
    No. A-5913.
    Opinion Filed Dec. 24, 1928.
    (273 Pac. 284.)

      W. P. Hickok and S. C. Massingale, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DOYLE, P. J.

The plaintiff in error was convicted upon an information, which, omitting formal parts, charges:

“That the said Paul Miles in the County and State aforesaid and on the day and year aforesaid, did then and there unlawfully, wrongfully, willfully, intentionally and feloniously make an assault in and upon one Charley Mitchell, with a certain weapon, to wit: a revolver, which he, the said Paul Miles then and there had and held in his hand, and did then and there with said weapon, to wit: a revolver unlawfully, willfully, wrongfully, intentionally and feloniously shoot the said Charley Mitchell, with the unlawful, wrongful and felonious intent then and there on the part of him, the said Paul Miles to kill and murder the said Charley Mitchell, contrary to,” etc.

The jury rendered the following verdict:

“We, the jury, drawn, empaneled and sworn in the above entitled cause, do upon our oaths find the defendant guilty of assault with intent to kill, as charged in the information herein, and fix his punishment therefor at imprisonment in the penitentiary for a period of 5 years.”

To reverse the judgment rendered in pursuance of the verdict, the defendant appeals.

It appears: That the defendant, a young man about 27 years of age, a cripple having a defective or withered right arm and leg, was a teacher at Leonel. The complaining witness, Mitchell, D. L. Barry, and Paul Wills composed the school board of the district, and defendant was boarding with Paul Wills. That on the 9th day of April the three members of the school board met at the home of Mr. Wills and discussed the fact that it was reported that defendant had kissed two girls attending his school, aged 11 and 12 years. The board then went to the schoolhouse; there Mitchell demanded the resignation of defendant, although the school term lacked only a few days of expiring. Defendant refused to resign, and the board went to the county seat, interviewed the county attorney and county superintendent, and about dark returned to the home of Mr. Wills, where the defendant resided. The defendant was driving up Mr. Wills’ cows, and the members of the board waited outside until he came.

The prosecuting witness testified: “I think we turned our lights on the car possibly the last two miles. When we got there Mrs. Wills informed us that Mr. Miles had gone after the cows and we stayed outside on the south side of the house. When he came up he stopped within about 20 feet of where we were. I addressed him by saying: ‘Well Paul, we are back again.’ He said, T see.’ Then I said: ‘Have you changed your mind about resigning? He said ‘ No.’ I said ‘Well we have arranged to have a hearing in the morning,’ and he said, T am glad to know it. I hate to be kicked out of here like a dog.’ I informed him I thought for his own good it would be best that he resign. Then he said, ‘Mitchell, get off that old stuff, you know better than that. Mitchell, I have just began to find you out, I find you are a two-faced lying son of a bitch.’ At that moment I stepped forward a couple of steps, then I stepped back. When I stepped forward Mr. Miles drew a gun, and when I stepped back I stood there for several seconds, he holding this gun on me and finally he fired one shot. I hollered ‘Oh, he shot me,’ and I ran around the house. Then Mr. Berry led me to my car. which was standing in the lane, about one hundred yards from the house. Mr. Miles hollered, ‘Mitchell, how bad are you hurt?’ I told him I didn’t know, it was bad enough.”

Paul Wills testified that “Mr. Mitchell said, ‘We are back.’ Defendant said, ‘Yes, what are you going to do with me?’ Mr. Mitchell asked him if he had changed his mind and he said he had not. And defendant then said, ‘You fellows are just trying to kick me out of here like I was a dog. Mitchell, I am just finding you out; you are just a double crossing, or something of that sort of ‘son of a bitch.’ Mr. Mitchell jerked his hands out of his pockets and said, T won’t take that,’ and started towards him; Miles was off about 15 feet, and I would judge he got about half way to him, when Miles shot him. He jerked the gun out of his left overcoat pocket and it went off.”

For the defense, Paul Miles, as a witness in his own behalf, testified: “My age is 27 years, I came to Dewey county when six months old and have lived here practically all my life; I have a withered arm and leg since I was 2% years old, since old enough I have been engaged in teaching school in Dewey county, was principal of the school and Mrs. Binghnum was my assistant; I have been teaching there for four years and boarded with Mr. Wills. The school board called at the school that day and Mr. Mitchell asked me to resign and I told them that I did not think I had done any wrong and would not resign, three more days of school and two for examination would be the end of the term, the board left saying that they were going to Taloga'; that evening I went home to Mr. Wills; after supper Mrs. Wills told her six year old boy to go after the cows, I said, T will just go after them myself,’ and I went. It was cool that evening and I put on my overcoat, it was about a half mile to the pasture. Returning with the cows I saw the car drive up, the lights were burning on the car, I put the cows in the corral and came on to the house, I saw three men standing there, I supposed they were waiting for me so I stopped about 12 feet of them; Mr. Mitchell said, ‘We are back,’ and said ‘The county superintendent will be out tomorrow morning if you don’t resign.’ I said, T will just wait to see what she does, I will have a chance to state my case.’ He said, T think Mr. Miles it would be to your advantage to resign.’ I said ‘Mr. Mitchell, you don’t care for my advantage, you don’t care for my welfare at all. You have been two-faced all along. I am just finding you out,’ and I called him the words that Mr. Wills related here on the stand. He said, T won’t take that off anybody,’ and he took his hands out of his pockets and came towards me, I saw something flash in his right hand, I retreated a few steps and said, ‘Look out, Mitchell.’ He advanced to within 2 steps of me, about six feet I should judge; my gun was in the slash pocket of my overcoat; I reached in there, got the gun and shot from the hip; Mr. Mitchell hollered, ‘Oh, he shot me’ turned and ran to his car followed by Mr. Berry; I put his gun back in my pocket, walked out and said, ‘Are you badly hurt, Mr. Mitchell?’ and he said, ‘Bad enough.’ I thought Mr. Mitchell had a knife in his hand and when he got within six feet or two steps of me I considered that I could not retreat fast enough to get out of his way, I would have to turn around and by that time he would be on me and I considered that I could not wait any longer with safety so I shot Mr. Mitchell in self-defense.”

The first assignment of error is the usual one, that the court erred in overruling the motion for a new trial.

The second assignment is that the court erred in overruling the demurrer to the information.

The grounds of the demurrer were that the information does not state facts constituting an offense against the laws of the state of Oklahoma, and that said information charges more than one offense in the same count.

The information alleges that defendant shot Charley Mitchell, with the felonious intent to kill and murder. The common-law offense of assault with intent to murder is not in our Penal Code. There is a well-recognized distinction between an assault with intent to murder and an assault with intent to kill. However, we think the facts alleged are sufficient to charge the offense of assault with intent to kill by shooting with a revolver; that the words “and murder” is a mere redundance. It follows that the court did not err in overruling the demurrer.

Among others, the court gave the following instructions :

“1. An assault is any unlawful and wilful attempt or offer with force and violence to commit a corporal hurt on another; a battery is any willful and unlawful use of force or violence upon the person of another, whatsoever may be the degree or means of violence used, and every battery includes an assault.
“2. Any person who intentionally or willfully shoots, or attempts to shoot at another with any kind of firearm with intent to kill any person, is guilty of an offense and may foe prosecuted therefor, and the punishment for said offense is imprisonment in the penitentiary not exceeding ten years.
‘3. Any person who commits an assault and battery upon another with intent to do bodily harm without justifiable or excusable cause is punishable by imprisonment in the penitentiary not exceeding five years or in the county jail not exceeding one year.”

Instruction No. 4 defines the punishment for simple assault and battery.

In instruction No. 5 the court instructed the jury that the defendant was charged with the offense defined by the first clause of section 1756 of the Penal Code. Said section provides that:

“Any person who intentionally and wrongfully shoots at, or attempts to shoot at another, with any kind of firearm, airgun or other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death or in resisting the execution of any legal process, is punishable by imprisonment in the penitentiary not exceeding ten years.” Section 1756, C. S. 1921.

Our Penal Code defines other felonious assaults by" the use of deadly or dangerous weapons besides assault with intent to kill. Section 1764 provides:

“Any person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of firearm or airgun, or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding one year.”

The court instructed the jury as to the included offense as follows:

“6. But if under the evidence and these instructions you do not find the defendant guilty of the offense of wrongfully and feloniously shooting the said Charley Mitchell with intent to' kill him, but you do find and believe from the evidence, beyond a reasonable doubt, that the defendant is guilty of an assault and battery committed on or about the 9th day of April, 1925, in Dewey County, Oklahoma, in that he did then and there with intent to do bodily harm and without justifiable or excusable cause commit an assault and battery in and upon Charley Mitchell with a firearm with intent to injure the said Charley Mitchell, then you should find the defendant guilty of assault with intent to do bodily harm without justifiable or excusable cause and so say by your verdict.”

Under the charge of intentionally and wrongfully shooting another with a firearm with intent to kill as defined by the first clause of section 1756, the defendant may properly be convicted of the included offense of shooting another with a firearm with intent to injure, although without intent to kill such person, as defined by the second clause of section 1764.

Under the statute (section 2740, C. ,S. 1921) the trial court should submit the case to the jury for consideration upon every included lesser offense Which the evidence in any reasonable view of it suggests, and the instructions must be applicable to the testimony introduced upon the trial.

Under the charge of intentionally and wrongfully shooting another with intent to kill, and under the evidence in the case instructions Nos. 3 and 6 above quoted do not properly submit the issue of shooting another with a firearm with intent to injure, although without intent to kill such person. The policy of the law is that all persons shall have a fair and impartial trial. If cannot be said that a fair and impartial trial has been had unless the jury has been properly instructed as to the law of the case; and where the instructions do not fully present all the material issues raised, the judgment of conviction will be set aside. Harris v. State, 15 Okla. Cr. 369, 177 P. 122; Love v. State, 12 Okla. Cr. 1, 150 P. 913.

An instruction is erroneous, although correct as an abstract proposition of law, if it leaves the jury in doubt or uncertainty as to how it should be applied to the evidence. Roddie v. State, 19 Okla. Cr. 63, 198 P. 342.

We are of opinion that the evidence, both on behalf of the state and that of the defendant, if it established the guilt of the defendant of any offense, showed that the offense committed was shooting another with intent to kill as charged in the information, or the included offense of shooting another with intent to injure and without intent to kill and without justifiable cause. It will be observed that the verdict rendered by the jury is: “Guilty of assault with intent to kill as charged in the information.” Such an offense was not included within the allegations of the information in this case and was not shown by any evidence in the case. The verdict rendered is therefore not responsive to the issues under the evidence, and is too vague and uncertain to support the judgment rendered. Clemons v. State, 8 Okla. Cr. 452, 128 P. 739.

For the reasons stated the judgment appealed from is reversed, and the cause remanded for further proceedings in accordance with this opinion.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    WILL LOVE v. STATE.
    No. A-6364.
    Opinion Filed Dec. 24, 1928.

      (272 Pac. 1035.)

      M. D. Hartsell, 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 Muskogee county on a charge of resisting an officer, and his punishment was fixed at a fine of $250.

Defendant interposed a plea of former jeopardy. The court refused to hear any evidence on the plea, and summarily overruled it. The only contention made here is that the plea of former jeopardy constituted a complete defense and that the court erred in rejecting it. The history of the case is as follows: On June 25, 1925, defendant and one Perryman engaged in a difficulty in the town of Boynton. Charles Epperson and Bill Worley, peace officers, arrested defendant, who, after apparently submitting to arrest, suddenly pulled Epperson’s gun from its scabbard and pointed it at both officers, saying he would not go with them and ordering them to leave. Epperson seized defendant’s arm and attempted to recover the gun, and a scuffle ensued. At this time a Mexican named Pete Samara came up, secured Worley’s gun, and killed Epperson. A joint charge of murder was filed against defendant and Samara. Upon the preliminary trial Samara was held for murder without bail, and defendant was held for attempting to kill Epperson with the revolver he had taken from him. Samara was tried and convicted on the murder charge and was sentenced to life imprisonment. The case against defendant charging an attempt to kill came on for trial, a jury was impaneled and sworn and evidence of several witnesses taken, and then, upon motion of the county attorney, the court dismissed the charge. Thereafter the present case charging defendant with resisting an officer was filed in the city court of Muskogee and a trial had. Defendant was convicted and sentenced to' serve a term of 12 months in the county jail and to pay a fine of $500. From this judgment he appealed to the district court of Muskogee county, where the case was tried de novo. The jury returned its verdict finding defendant guilty of resisting an officer and assessed his punishment as stated. The plea of former jeopardy by reason of the proceedings upon the charge of attempting to kill was interposed orally in the city court and was renewed in the district court. The record discloses the following:

“Mr. Hartsell (counsel for defendant) : I want to enter a plea of former jeopardy. I would like, if agreeable to the county attorney, to enter the plea of former jeopardy and renew the same as it was entered in the lower court; and at this time add to the plea of former jeopardy this, to wit, the defendant says that he was heretofore acquitted of this charge of which he now stands accused in this cause, in cause number 3771 in the case wherein the State of Oklahoma was plaintiff and Will Love was defendant, then pending in the district court of Muskogee county, Oklahoma, wherein, in said case a jury was duly impaneled and sworn to try the cause; that the state offered proof in support of said information in cause number 3771 and after the jury had been duly sworn and impaneled and the proof so offered, the county attorney dismissed said action for want of sufficient evidence to sustain the charge.”

Then follows a recital in detail of the difficulty upon which the charge is based and of the proceedings in the former case. A stipulation in open court between counsel for defendant and the county attorney, in which the facts were admitted substantially as recited. Further, the record recites:

“The Court: You do not claim it is the same offense? Mr. Hartsell: The same criminal act and transaction. (Thereupon said matter was duly argued by counsel.) The Court: I understand that Judge Vernor has already passed upon this matter. I am not going to take this up if Judge Vernor has passed upon it. Mr. Hartsell: I want to offer in evidence this complaint and information, and to make my record. The Court: You have a right to; let the record show that the court refuses to hear any testimony upon this because of the fact that Judge Vernor has passed upon it. Mr. Hartsell: The defendant excepts, and now offers to prove each and every allegation set forth in the above and foregoing motion. The Court: The offer is denied. Mr. Hartsell: The defendant excepts. And the defendant now offers in evidence the original complaint filed in the City Court in Cause number 6045, as defendant’s Exhibit A. (The instrument referred to is by the Reporter marked as defendant’s Exhibit A.) Mr. Hart-sell : And the defendant also offers in evidence the original information filed in the district court of Muskogee county, Oklahoma, in Case number 3771, as Exhibit B. (The instrument last referred; to is by the Reporter marked as defendant’s Exhibit B.) The Court: The court will just refuse to hear it on the ground that it has; already been passed on. I am not going to hear any evidence. Mr. Hartsell:. I don’t want the court to misunderstand me, and I don’t want to misunderstand the court. I am merely offering this proof, and I assume that the court is going to refuse the offer and give us an exception. The Court: Yes, sir.”

The charge in this case is not the same charge eo nomine as in case No. 3771, district court, Muskogee county, and the proof required to convict in this case must be different in some measure and in some particulars from the proof that would have been required to convict in case No. 3771. There is no question, however, but what the charge in this case is based upon the same criminal act and transaction as the charge in case No. 3771. The entire transaction took place at the same time, the pistol was one and the same in both cases, the witnesses are one and the same, and the whole transaction of disarming the officer and taking his gun is one and the same assault.

Our Constitution, art. 2, § 21, is as follows:

“No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.”

Section 2350, Comp. St. 1921, reads:

“No person can be subjected to a second prosecution for a-public offense for which he has once been prosecuted and duly convicted or acquitted except as hereinafter provided for new trials.”

Section 2558, Comp. St. 1921, reads:

“* * * Where the same acts may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty of, the different offenses may be set forth in separate counts in the same indictment or information and the accused may be convicted of either offense. * * *”

The decisions of this court have uniformly held that as used in the constitutional provision above quoted providing that no person shall be twice put in jeopardy for the same offense, the term “same offense” does not signify the same offense eo nomine, but the same criminal act, transaction, or omission. Also, that where the state elects through its authorized officers to prosecute an accused for an offense in one of its phases or aspects and upon his trial the accused is convicted or acquitted by a j ury, the state cannot afterwards prosecute the same criminal act or transaction under color of another name. Estep v. State, 11 Okla. Cr. 103, 143 P. 64; Jackson v. State, 11 Okla. Cr. 523, 138 P. 1058; Barton v. State, 26 Okla. Cr. 150, 222 P. 1019; Hourigan v. State, 38 Okla. Cr. 11, 258 P. 1057; Courtney v. State, 41 Okla. Cr. 29, 269 P. 1059; Fox v. State, 50 Ark. 528, 8 S. W. 836; In re Nielsen, 131 U. S. 118, 9 S. Ct. 672, 33 L. Ed. 118.

The pleas that may be entered in criminal cases and the manner in which they are to be entered are covered by sections 2617, 2618, and 2619, Comp. St. 1921:

“2617. There are three kinds of pleas to an indictment or information. A plea of: First. Guilty. Second. Not guilty. Third. A former judgment of conviction or acquittal of the offense charged, which must be specifically pleaded, either with or without the plea of not guilty.
“2618. Every plea must be oral, and must be entered upon the minutes of the court.
“2619. The plea must be entered in substantially the following form: First. If the defendant plead guilty: The defendant pleads that he is guilty of the offense charged in this indictment or information. Second. If he plead not guilty: The defendant pleads that he is not guilty of the offense charged in this indictment or information. Third. If he plead a former conviction or acquittal: The defendant pleads that he has already been convicted (lor acquitted, as the case may be), of the offense charged in this indictment or information by the judgment of the court of * * * (naming it), rendered at * * * (naming the place), on the * * * day of. * * *”

The plea of former jeopardy entered is indefinite in this that it does not allege that the jury, after having been impaneled and sworn in case 3771, was unnecessarily discharged by the court, without the consent of defendant. This should appear in order to fully plead jeopardy on the ground of former acquittal, where a discharge of the jury without verdict is relied upon to constitute a bar. Loyd v. State, 6 Okla. Cr. 76, 116 P. 959. The plea of former jeopardy is an affirmative plea, and the burden of sustaining it is on the defendant. Harris v. State, 17 Okla. Cr. 69, 175 P. 627. While the plea is defective in the particular stated, yet is as full as required by section 2619, supra. The statements made in entering the plea of jeopardy and the admission of facts by the county attorney sufficiently presented the matter to require the trial court to receive evidence. The court will take judicial notice of its records and be thereby apprised whether or not the former case, 3771, was in fact unnecessarily dismissed without the consent of defendant, or evidence on this point should be taken.

The case is reversed and remanded.

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


text:
    WILLIAM REESON v. STATE.
    No. A-6215.
    Opinion Filed Dec. 24, 1928.
    (272 Pac. 1033.)

      M. B. Cope and J. A. Rinehart, for appellant.
    Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and W. P. Morrison, CO'. Atty., of El Reno, for the 'State.
   DOYLE, P. J.

Appellant, William Reeson, was charged by information with having in his possession about one-half gallon of corn whisky with the intent of selling the same. On the trial the jury returned a verdict finding him guilty, and fixing his punishment at a fine of $500 and imprisonment in the county jail for six months. To reverse the judgment he appeals.

It is first contended by appellant that error was committed by the trial court, for the reason that it refused to set aside the verdict of the jury on the ground of the disqualification of one of the jurors. It appears from the record: That during the selection of the jurors the regular panel of the county court was exhausted, and an open venire issued to the court clerk, directing him to summons six additional men to serve as jurors; that among the six men was one L. E. Day. That said talesmen were sworn on matters as prescribed by law having to do with their qualifications to serve as jurors. Said jurors, including the said L. E. Day, were examined by the trial judge as to their qualification^. Having read section 3523, Comp. St., prescribing disqualifications, the judge asked the jurors, including the said L. E. Day, if any of them disqualified under that statute. That the juror L. E. Day did not, on his voir dire examination, make it known that he had theretofore, on the 25th day.of January, 1926, been duly appointed and commissioned as a deputy sheriff of Canadian county.

In support of the motion for a new trial appellant filed his affidavit that the juror L. E. Day, called as tales-man, was a deputy sheriff; that neither appellant nor his attorney knew that the juror L. E. Day Was a deputy sheriff until after the return of the verdict; that the juror L. E. Day was examined generally as to his competency, but failed to disclose that he was a deputy sheriff'; that the said L. E. Day was selected as the foreman of the jury in the trial of the case; that about 10 days before appellant’s trial the county attorney and sheriff in a conversation agreed that said L. E. Day was a fit and proper person to be appointed as deputy sheriff, for the special duty to investigate and report any violations of the prohibitory law; that the sheriff and C. A. Pearce, a deputy sheriff, were witnesses for the state in the trial of the case; that neither the sheriff nor said deputy sheriff divulged to appellant or his attorney the fact that said L. E. Day was a commissioned deputy sheriff of 'Canadian county; that the juror L. E. Day, during a recess in the trial of the case, talked with C. A. Pearce, deputy sheriff, wherein said Pearce told the juror Day that he wanted him to arrest one T. L. Miller, charged with a violation of the prohibitory law.

T. C. Shacklet, sheriff, upon the hearing of the motion for a new trial, testified in substance to the effect that he gave the juror L. E. Day a special commission about a month before the trial, and that said commission has not been revoked or taken up by him.

Jerd Smith testified that he was in the courthouse on the 16th day of February, 1926, the day of the trial of the defendant, Reeson; that he was acquainted with both Deputy Sheriff C. A. Pearce and L. E. Day, who served as a juror in the Reeson case. He was then asked: “Did yon hear any conversation between Mr. Pearce and Mr. Day on that date?” The court sustained the state’s objection.

Thereupon counsel for the defendant made profert of proof in substance to the effect that, while the jury in the Reeson ease were in the corridor of the courthouse during a recess in the course of the trial, C. A. Pearce, deputy sheriff, had a conversation with the juror L. E. Day concerning a certain criminal case then pending in the county court of Canadian county, and the said Pearce told the juror Day that one of the defendants in said case, T. L. Miller, had not been arrested, and told the juror Day to find and arrest said Miller; that the witness Smith would so testify if permitted to answer.

It also appears and is undisputed that counsel for defendant had no knowledge previous to the trial of the case that the juror L. E. Day had been commissioned as a deputy sheriff.

Section 3523, C. S. 1921, provides as follows: “All male citizens, residing in this state, having the qualifications of electors, of sound mind and discretion, of good moral character, not justices of the Supreme Court or judges of the Criminal Court of Appeals, district court, superior court or county court, sheriffs or deputy sheriffs, constables, jailers, licensed attorneys engaged in the practice of law, habitual drunkards, not afflicted with a bodily infirmity amounting to a disabilty, and who have never been convicted of any infamous crime or served a term of imprisonment in any penitentiary, for the commission of a felony, are competent jurors to serve on all grand and petit juries within their counties.”

A review of the record shows that the juror Day was a deputy sheriff within the meaning of the statutory disqualification.

Counsel for the state insist that the disqualification of the juror was waived under the holdings of this court in David v. State, 14 Okla. Cr. 535, 179 P. 48, Tinney v. State, 19 Okla. Cr. 126, 201 P. 819, and Cooper v. State, 27 Okla. Cr. 279, 226 P. 1066.

In Thompson on Trials, § 114, the rule is stated as follows: “A known cause of challenge is always waived by withholding it, and raising it as an objection after verdict, since such a practice is incompatible with the good faith and fair dealing which should characterize the administration of justice.” This was the rule followed by this court in the cases of David v. State and Tinney v. State, supra.

In the Cooper Case it was held that “it is the duty of the defendant to question the jurors on their voir dire as to their qualifications, and if he fails to do so, he waives any objection on that point, even though the disqualification is unknown to him until after the rendition of the verdict,” and further held that “the granting of a new trial, in such case, is a matter of discretion.”

Here the record shows that the juror Day on his voir dire qualified as a juror by his answers to questions by the court and by counsel. Appellant was not bound to anticipate that talesmen would be called from among the sheriff’s deputies, and the juror Day should have disclosed the relationship on the general examination as to his competency. Gaff v. State, 155 Ind. 277, 58 N. E. 74, 80 Am. St. Rep. 235.

In Spradlin v. State, 13 Okla. Cr. 376, 164 P. 990, it is held: “Where the evidence in support of a motion for a new trial on account of the prejudice of a juror within the definition of actual bias, is clear and convincing, and the rebuttal evidence is doubtful and evasive, the refusal of the trial court to grant a new trial under such circumstances amounts to an abuse of discretion such as will au- ' thorize this court to reverse the judgment of conviction.” In the opinion it is said: “The impartiality of the jury goes to the very foundation of the accused’s liberty, and where evidence is introduced such as is disclosed by this record of a convincing character to show that there is a strong probability that the accused was not accorded that fair and impartial trial guaranteed to him by the Constitution and laws of this state, and the rebuttal evidence is of a very unsatisfactory character, the verdict should be set aside and a new trial granted.”

We are convinced from a careful examination of the record that the defendant did not have that fair and impartial trial to which he was entitled, and for the reasons stated the judgment appealed from is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    WILEY HAYES v. STATE.
    No. A-6641.
    Opinion Filed Dec. 29, 1928.
    Rehearing Denied Feb. 9, 1929.
    (274 Pac. 41.)
    Rummons & Hughes, 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 Washita county on a charge of unlawfully transporting intoxicating liquor, and was sentenced to pay a fine of $250 and to imprisonment in the county jail for a term of 90 days.

The record discloses that, on the date charged, two deputy sheriffs, with a search warrant for the search of the automobile and the person of defendant, apprehended him in the nighttime near a negro residence, a few miles out of Cordell. They served the search warrant, and searched the automobile, but found no intoxicating liquor, but on searching the person of defendant they found a pint of whisky concealed in each sock. The defendant did not take the stand, and offered no- testimony.

It is first contended that the search of the automobile and the person of defendant was unlawful and the evidence procured thereby incompetent, for the reason that the search warrant was procured by an insufficient affidavit. The affidavit in part alleges: “* * * That one Wiley Hayes * * * has in his possession and is now using a certain automobile to unlawfully transport certain intoxicating liquors, to wit, whisky * * * from some place in the state of Oklahoma to some place in Washita county, Oklahoma, the location of said places being unknown to said affiant. * * *”

It is argued that the affidavit must contain evidentiary facts and not conclusions, and, since the person making the affidavit did not know where defendant was at the time nor from what place he was transporting whisky, that the statement in the affidavit is a mere conclusion, and does not show probable cause, but upon its face discloses that it was made on information and belief. The case of Hannan v. State, 29 Okla. Cr. 203, 233 P. 249, in a measure supports this contention; That ease, however, is virtually overruled by the case of Smith v. State, 30 Okla. Cr. 144, 235 P. 273. See, also, Cahill v. State, 38 Okla. Cr. 236, 260 P. 91. The affidavit is by no means a model, but is not so defective as to require a reversal.

Complaint is also made that the court erred in refusing defendant’s requested instruction No. 1, in substance, that the state must show a transporting from one distinct place or locality to another distinct place or locality in order to constitute illegal transportation of intoxicating liquor. The information alleges a transportation from a place unknown to a certan described place in Washita county. It is not required that the particular place from which liquor is transported be alleged or proven. It may be alleged to be from a place unknown, and proof in support of such allegation will' be sufficient.

Some claim is made that the conviction is unlawful, for the reason that the county judge, on account of the absence of the county attorney, appointed a special county attorney to prosecute. When the case came on for trial the county attorney was absent on official business, the county judge thereupon appointed a member of the bar to act as special county attorney. The person appointed qualified by taking the oath; under the authority of Byxbee v. State, 41 Okla. Cr. 272, 272 P. 493, this was not error. Section 2725, C. O. S. 1921.

Also it is argued that the court erred in admitting in evidence the complaint for search warrant, and the search warrant. A motion to suppress on account of the insufficiency of the affidavit and search warrant was filed prior to the trial and evidence taken. In the trial the special county attorney offered in evidence the complaint and search warrant. This, of course, was improper and inadmissible. Objection was made, and the court stated that it might be admitted for the purpose of the record, but not to go to the jury, apparently intending to supplement the showing made on the motion to suppress. There was no prejudice in admitting it for this limited purpose.

Before going into trial, defendant’s counsel orally-moved to quash the jury panel for the reason that the county attorney at the beginning of the term, in referring to an application for continuance, stated in the hearing of a part of the jury that defendant had been convicted on a similar charge in the county court of Kiowa county. This motion to quash, if it may be so termed, Was not in writing, and states none of the grounds contained in section 2659, Comp. Stat. 1921, on which a motion to quash jury panels must be founded. No showing is made that any of the jurors sitting on the panel heard the statement, and no peremptory challenges were exercise'd. The jury panel could not be quashed for the reason assigned. Pate v. State, 15 Okla. Cr. 90, 175 P. 122. Such errors as appear in the record do not require a reversal.

The case is affirmed.

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


text:
    J. H. HARRELL v. STATE.
    No. A-7066.
    Opinion Filed Dec. 29, 1928.
    (272 Pac. 1038.)

      Sigler & Jack son and Champion, Champion & Fischl, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of selling whisky to one Bob Key, and sentenced to imprisonment in the county jail for 60 days and to pay a fine of $100. Motion for new trial was filed and overruled, exceptions saved, and defendant has appealed to this court.

The record in this case discloses that the defendant was indicted by a grand jury of the district court of Carter county. On the 1st day of November, 1926, the county attorney asked to have the case transferred to the county court, on the ground the indictment charged an offense of which the district court had no jurisdiction, and which offense charged in the indictment is within the jurisdiction of the county court of Carter county. An order of transfer was entered by the district court, and on December 1, 1926, the transcript was filed in the county court and the case was assigned for trial January 12, 1927; the defendant filed a motion to quash the indictment; on account of illness of the court, the motion was passed for the term and assigned for trial May 10, 1927, at which time the motion to quash the indictment was overruled. The state was not ready to go to trial, and asked that the case be continued for the term. The defendant announced ready for trial, and objected to the continuance. Defendant’s objection was overruled, and the case was continued for the term. No term of the county court was held in July, 1927, and the case was reset for the first Monday in October, 1927, at which time the county attorney again asked for a continuance, to which the defendant objected, and his objection was overruled, and defendant excepted. The case was again assigned for trial at the January, 1928, term, for January 23, 1928. On January 23, 1928, over the objection of the defendant the case was passed until January 28, 1928. On January 28, 1928, the county attorney asked that this case he continued, or asked that the case be passed to a later day within the term, for the reason that the state witness could not be found; the continuance was granted, over the objection of the defendant, who at the time demanded a trial.

Over the objection of the defendant, the case was continued until the 31st day of March, 1928. March 31, 1928, was the' last day of the January term of court. The case was not taken up for trial on that date, and was not called for trial until the 23d day of April, which was a day of the regular April, 1928, term of court. The defendant filed a motion to dismiss the case, for the reason that the record showed that the case was not brought to trial at the next term of court in which the indictment or information was triable after it was filed, and that the case was not postponed upon defendant’s application, or with his consent. In overruling defendant’s motion to dismiss, the court made a finding showing that all the said continuances were over defendant’s protest and objections, and that the defendant was present each time and in open court demanded a trial. To the overruling of his motion to dismiss, defendant duly excepted.

On the 23d day of April, 1928, the case was called for trial, and the trial proceeded and resulted in a conviction of the defendant.

We will first consider the fourth assignment of error, which is as follows: “That the court erred in overruling the defendant’s motion to dismiss the case.”

It is urged by the defendant that' the court erred in overruling his motion to dismiss the case, for the reason that the case was not brought to trial at the next term of court in which the indictment was triable after it was, filed; that more than four terms of court had elapsed since the indictment was returned against him, and filed in the county court, and the continuance of the case from term to term was made over the objection of the defendant and without his consent.

The question this court has to consider is the question, Should the motion of the defendant to dismiss have been sustained? Section 2913, C. O. S. 1921, is as follows: “If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable, after it is filed, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.”

In Parker v. State, 7 Okla. Cr. 238, 122 P. 1116, this court said: “Where a defendant wishes to avail himself of the provisions of our statute above quoted, he must demand a trial and object to a postponement or continuance of the case. If he does not do this, he will be held in law to have waived his right to demand a dismissal of the case on the ground of such postponements. Where he does this, the burden is then on the state to prove that good cause existed for the postponements complained of.”

In this case the court made a finding and entered an order showing that at each of the terms of court, when the state asked for a continuance, the defendant objected and demanded a trial.

In Clinkenbeard v. State, 40 Okla. Cr. 113, 267 P. 485, this court, in passing upon a similar question, held that, when the defendant had shown that the time fixed by the statute after the indictment filed had expired, and the case was not postponed on defendant’s application, if there was any cause for holding the defendant longer without trial, it was for the prosecution to show it. In this case, the motion of the defendant shows the date of the filing of the indictment, and the date of the terms of court that had passed after the indictment was filed before this case was called for trial. The state did not controvert the allegations of his motion to dismiss, or make any effort to do so. It was therefore error to deny the defendant’s motion to dismiss.

There are other errors assigned by the defendant, but in the view we take of the record we do not deem it necessary to consider them.

The judgment is reversed, with directions to discharge the defendant.

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


author: EDWARDiS, J.

text:
    HERMAN TAYLOR v. STATE.
    No. A-6365.
    Opinion Filed Dec. 29, 1928.
    (272 Pac. 1037.)
    L. G. McLean, for plaintiff in error.
    ■ Edwin Dabney, Atty. Gen., J. H. Lawson, Asst. Atty. Gen., and Dan Mitchell, Co. Atty., for the State.
   EDWARDiS, J.

The plaintiff in error was convicted of unlawful possession of narcotic drugs, and sentenced to serve a term of three years in the state penitentiary.

Judgment was entered on March 10, 1926, and appeal was lodged in this court on September 8, 1926. Extension of time to file briefs has been made, but the last extension has long since expired, and no briefs have been filed, nor was there any appearance for oral argument at the time the case was submitted.

Where an appeal is prosecuted to this court upon conviction for a felony and no briefs in support of the appeal filed, and no appearance for oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors, and, if none appear and the evidence reasonably supports the verdict, the judgment will be affirmed. An examination of the record here discloses no jurisdictional or fundamental error.

The case is affirmed.

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


text:
    BROWN MOORE v. STATE.
    No. A-5736.
    Opinion Filed Dec. 31, 1928.
    (272 Pac. 1032.)
    Brown Moore, for appellant.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

Appellant, Brown Moore, was adjudged guilty of contempt in the county court of Payne county. He has brought the proceedings to this court for a review upon a petition in error and case-made.

The errors assigned question the jurisdiction of the court or the judge thereof to render the judgment appealed from, in that the court erred “in overruling the demand of the defendant for a hearing”; and “in denying the defendant a jury trial.”

The judgment of the court recites that:

“There appearing before said Court C. C. Suman, County Attorney of Payne County, Oklahoma, and Brown Moore, a regularly licensed, and practicing attorney and member of the Bar of Stillwater, Oklahoma, and both of said parties being before said Court upon legal matters and submitting legal matters to said Court, the said C. C. Suman, in open Court and before the Judge of said Court charged and accused the said Brown Moore of having produced perjured testimony, and that he, the said Brown Moore, knew that, the testimony so produced was perjury, to which accusation and statement made by the said C. C. Suman the_ said Brown Moore then and there in open Court and in the presence of said Court and the Judge thereof replied and stated: ‘You are a damned liar,’ addressing such remarks to and toward the said C. O. Suman.
“Thereupon the Court found that the said Brown Moore was guilty of direct contempt of Court, and that the said Brown Moore should be punished by the payment of a fine of $10.00 or upon non-payment thereof to be committed to the County jail of Payne County, Oklahoma, until such fine was satisfied at the rate of $1.00 per day for each dollar of said fine.”

Thereupon, as shown by the record, appellant demanded that he be cited for contempt and that the issue be' submitted to a jury, which demand was by the court overruled, exception allowed, and demanded an opportunity to be heard, which was denied and exception allowed.

Our Code of Criminal Procedure provides: “No person can be convicted of a public offense, unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty.” Section 2352, C. S. 1921.

In a proceeding for contempt of court, if the contemnor is found guilty, the punishment imposed is a sentence in a criminal case. Such adjudication is a conviction, and the commitment in consequence thereof is in execution of sentence for a criminal offense. Burnett v. State, 8 Okla. Cr. 639, 129 P. 1110, 47 L. R. A. (N. S.) 1175.

Contempts of court in this state are governed by constitutional and statutory provisions, and not by common-law rules.

In cases of direct contempt under the constitutional and statutory provisions, the contemnor being present in court, neither a formal charge against him in writing nor process is required. Only an opportunity to be heard is given. The court in its discretion renders judgment imposing such punishment as it may deem proper within the limits prescribed by the statute. No record is made other than the judgment. In this, as the statute provides, the substance of the offense shall be set forth and made a matter of record in the court. Emery v. State, 29 Okla. Cr. 29, 232 P. 128.

In Ex parte Sullivan, 10 Okla. Cr. 465, 138 P. 815, Ann. Cas. 1916A, 719, it is said:

“Under that clause of section 25 of the Bill of Rights, providing, Tn no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given,’ an opportunity to be heard before a penalty or punishment is imposed for contempt is an indispensable essential to the administration of due process of law as contemplated by the constitutional inhibition that ‘No person shall be deprived of life, liberty, or property, without due process of law.’ Section 7, Bill of Eights.”

In Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, it is said:

“It will be observed that the first clause of section 25 of the Bill of Eights, interpreted by its own terms, has a meaning perfectly clear and definite. It constitutes a plain and clear grant of power to the Legislature to regulate proceedings in .contempt. It reads: ‘The Legislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt.’
“Having thus delegated the power to the Legislature to regulate the proceedings and punishment in matters of contempt, the framers of our Constitution went further. They provided:
“ ‘That any person accused of violating or disobeying, when not in the presence or hearing of the court, or judge sitting as such, any order of injunction, or restraint made or entered by any court or judge of the state shall, before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused.’
“In the third and last clause they provided:
“ ‘In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.’
“Thus prescribing that which the plainest dictates of natural justice must prescribe to every tribunal the law, that ‘No man shall be condemned unheard.’ ”

In cases of this kind, and in the absence of some requirement of the statute prescribing the manner or mode of hearing, in order to confer jurisdiction on the court to punish for contempts, committed in the presence of the court, we think that it would be sufficient if the contemnor be arraigned and asked whether he had any legal, cause to show why he should not be adjudged guilty of contempt of court. Ex parte Sullivan, supra.

It follows from what has been said that the court erred in denying appellant an opportunity to be heard before the judgment of conviction was pronounced, and for this reason the judgment appealed from, is reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    JOHN A. TUTT v. STATE.
    No. A-6299.
    Opinion Filed Dec. 31, 1928.
    (272 Pac. 1031.)
    W. M. Howenstein, for appellant.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

In this case the information, in substance, charges that John A. Tutt, in Tillman county, on or about the 18th day of December, 1925, did feloniously sell one quart of whisky to Darrell Jones, a minor of the age of 18 years. On a trial by jury he was convicted of the charge, the jury leaving his punishment to the court. The judgment and sentence of the court, entered on the 15th day of January, 1926, was that defendant be confined in the state penitentiary at McAlester for the term of one year for said crime by him committed. From the judgment, an appeal was duly perfected, but no brief has been, filed in support of the errors assigned.

Without the aid of oral argument or a brief on the part of appellant, we have carefully examined the record, and our conclusion is there is no merit in the assignments of error. The information is sufficient, and the demurrer thereto was properly overruled.

There is a direct conflict in the evidence. The defendant, as a witness in his behalf, denied making the sale. In this he was corroborated by the testimony of his wife and son. However, there was sufficient evidence to warrant the submission of the case to the jury, and the conflicts in the evidence were for the jury to reconcile. On the record before us we are satisfied that the defendant was accorded a fair trial, and that the evidence is sufficient to sustain the verdict and judgment.

• Finding no reversible error in the record, the judgment of the district court herein is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: DOYLE, P. IJ.

text:
    JOHN A. TUTT v. STATE.
    No. A-6298.
    Opinion Filed Dec. 31, 1928.
    (272 Pac. 1031.)

      W. M. Howenstein, for appellant.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. IJ.

The information in this case charged that John A. Tutt did unlawfully and feloniously sell one quart of whisky to Wayne Purcell, a boy under the age of 21 years. On the trial the jury returned a verdict finding the defendant guilty and leaving his punishment to the court. Motion for new trial was duly filed and overruled, and the court sentenced the defendant to imprisonment in the penitentiary at McAlester for ■ the term of one year. From the judgment, he appeals.

Upon the trial of this cause to the jury it was shown by uncontradicted evidence that the defendant sold to Wayne Purcell, a minor 16 years of age, one quart of whisky, the purchase price being $4 or $5.

Without the aid of oral argument or a brief on the part of appellant, we have carefully examined the record, and find that the errors assigned are not supported by the record. The objections as to the sufficiency of the information are without merit.

Finding the evidence sufficient, and no material error of law occurring at the trial, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    GUY FAULK v. STATE.
    No. A-6383.
    Opinion Filed Jan. 5, 1929.
    (273 Pac. 289.)
    Wright, Gill & Ramsdale, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a liquor nuisance, and was sentenced to pay a fine of $500 and to Be imprisoned in the county jail for a term of six months.

The record discloses that on the date-charged certain officers with a search warrant went to the residence of defendant in the northeast part of Oklahoma county and lay in wait for some time. A car with the wife of defendant came and the officers searched it. Later the defendant came in another car and they searched this car also. Still later one Benbrook, driving an automobile, came to the place, and the officers searched the car and found ten gallons of whisky. Benbrook testified that the car was his, that he had purchased the liquor near Guthrie, and was attempting to take it to the town of Lúther and had lost his way. The license upon the car had been procured by one McCall. Confiscation proceedings were instituted against it, and it was confiscated as the property of Benbrook. There was no competent evidence connecting defendant with this car. The only testimony tending to prove the maintaining of a place was general reputation, and there was no competent evidence that defendant was maintaining a place. From the circumstances proven we have a strong suspicion that defendant engaged in the liquor business, but the evidence falls far short of proving it.

The case is reversed and remanded.

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


text:
    Ex parte CLAUDE PRUITT.
    No. A-7238.
    Opinion Filed Jan. 5, 1929.
    (273 Pac. 288.)
    Rutherford Brett, for petitioner.
    Edwin Dabney, Atty. Gen., and F. M. Dudley, Co. Atty., of Ardmore, for the State.
   DOYLE, P. J.

In his petition for a writ of habeas corpus Claude Pruitt alleges that he is unlawfully restrained of his liberty by Edwin C. London, sheriff of Carter county, under a commitment issued out of the district court of Oklahoma county on a judgment rendered in said court on the verdict of a jury finding him guilty of assault and battery and leaving the punishment to the court. That on the judgment of the court rendered October 1, 1928, he was sentenced to pay a fine of $100 and to imprisonment in the county jail for 30 days. That said cause was tried on a change of venue from Carter county on an information charging him with assault with intent to kill.

Petitioner avers that his application for writ of habeas corpus before A. E. Walden, district judge of Carter county, was denied.

A certified copy of the judgment and sentence imposed by the district judge of Oklahoma county, also certified copies of the minutes of the court’s records,’ showing said sentence as pronounced by the court, is attached to the petition.

Petitioner further avers that he has served the 30 days’ imprisonment, and that he has tendered the balance of the fine unsatisfied, to wit, the sum of $64; that said tender was rejected by the court elerk.

On December 17, 1928, a rule to show cause was entered and issued.

The recital of the judgment, signed by the trial court and duly certified, is as follows; “The jury return into court and state to the court that they are not able to agree upon the penalty. Thereupon the court accepts the verdict by- the jury as to the crime committed, to wit, assault and battery the same being a misdemeanor and the court assessed the punishment of the defendant at 30 days in jail and a fine of one hundred dollars.”

It is agreed that said petitioner, when the rule to show cause issued, had served 67 days in jail. Pending the determination of the cause, the prisoner was released.

The judgment, as shown by the records of the court clerk, omitting title, is as follows:

“Cause comes on for judgment and sentence. Judgment and sentence of the court that you the Defendant be taken from the Bar of this Court to the County Jail of Carter County, Oklahoma for a period of 30 days and to pay a fine of $100.00.”

Certified as follows:

“I, Cliff Myers, Court Clerk, within and for the State and county aforesaid, do hereby certify that the above and foregoing is a full, true, correct and complete copy of judgment and sentence in the above entitled cause as fully as the same appears of record and on file in my office.
“Witness my hand as Clerk and official seal this 5th day of December, 1928.”
“[Signed] Cliff Myers, Court Clerk.”

It further appears from the pleadings that a formal judgment and sentence was entered by the court after the petitioner had served the term of imprisonment imposed.

The latter judgment recites that the petitioner, having been found guilty of assault with intent to kill, is sentenced to pay a fine of $100 and to be imprisoned in the county jail for 3'0 days. However, we deem the variance as immaterial.

The rule is well settled that, when a court has rendered judgment and imposed sentence upon a verdict of guilty or a plea of guilty, and such judgment and sentence has been carried into execution, the power of the court as to that offense is at an end, and the court is without jurisdiction to render a second judgment and sentence upon the same. Rupert v. State, 9 Okla. Cr. 226, 131 P. 718, 45 L. R. A. (N. S.) 60; Myers v. State, 12 Okla. Cr. 575, 160 P. 939. On these authorities the trial court was without jurisdiction to render the second judgment and sentence, or to correct the original judgment after such judgment had been executed, as in this respect the power of the court must be exercised when the original judgment is rendered.

It may be stated in passing that it is the duty of the court clerks to receive and credit any part of a fine imposed when the same is tendered.

It is the opinion of this court that, upon the pleadings and the proof in this ease that the petitioner is entitled to be discharged upon the payment of the $64 balance due of the fine imposed, and upon receipt of the same by the court clerk of Carter county, in satisfaction of the balance due of the fine, the petitioner will be discharged. '

EDWARDS and DAVENPORT, JJ., concur.


text:
    E. LEE LOVELESS v. STATE.
    No. A-6382.
    Opinion Filed Jan. 5, 1929.
    (273 Pac. 288.)

      Sam S. Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Oklahoma county, of attempting to manufacture whisky, and his punishment fixed at a fine of $250, and confinement in the county jail for 90 days. Before entering upon the trial, the defendant moved to suppress the evidence, for the reason that it had been obtained by an unlawful search, which motion was overruled and exceptions saved.

The record discloses that certain officers went to the private residence of the defendant, and made a search of the premises, claiming to have found a still, some barrels, mash, and a small quantity of whisky. The affidavit for the search warrant states that it is made on information, belief, and advice. The search warrant is invalid, and evidence procured by such invalid search warrant is incompetent. The motion to suppress the evidence should have been sustained. Myers et ux. v. State, 38 Okla. Cr. 287, 260 P. 515.

The case is reversed and remanded.

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


text:
    Ex parte HOMER HAMILTON.
    No. A-7258.
    Opinion Filed Jan. 5, 1929.
    (273 Pac. 286.)

      Jas. H. Mathers, E. L. Withington, W. R. Withing-ton, and Morris & Tant, for petitioner.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained of his liberty by Herman C. Martin, as agent for the state of New Mexico, that he is charged with being a fugitive from said state by reason of having broken the terms of a parole granted him by the board of parole of said state; that he has complied with all the terms of his parole, and is not a fugitive from justice.

From the petition, the exhibits attached thereto, the response, and the admitted facts, it appears that petitioner was convicted in the state of New Mexico of the larceny of an automobile, and was sentenced to a term. of five years in the penitentiary; that he served about two years of said sentence, and was then granted a parole by the board of parole, on the express condition set out therein that he will obey the law, conduct himself as a good citizen, and observe the rules governing paroled prisoners, which rules are embodied in the parole, one of which provides that any violation of any of the said rules forfeits the parole, and renders him liable to be returned to the penitentiary to serve out the maximum sentence. This parole bears an indorsement signed by petitioner that he has carefully read and clearly understands the contents and conditions of the rules regulating the parole of prisoners, that he accepts same, and pledges himself to comply therewith. The parole contained this clause: “Know all men by these presents, that the Board of the State of New Mexico, desiring to test the ability of Homer Hamilton, Register No. 5669, a prisoner in the New Mexico State Penitentiary at Santa Fe, New Mexico, to abstain from crime and to lead an upright, frugal, and industrious life, do by these presents, parole the said Homer Hamilton, and permit him temporarily and conditionally, as provided by law, to go outside the enclosures of said penitentiary, and proceed at once to Oklahoma City, Oklahoma, and there remain, if practicable, for at least 12 months from May 1st, 1928, in accordance with the above rules and statute in such case made and provided, or until he has been finally discharged in pursuance of law. * * *”

It is made to appear that under the terms of this parole petitioner came from the state of New Mexico to Oklahoma City, and, for reasons not disclosed by the record, the parole was revoked by the board of parole of New Mexico. A requisition from the Govern- or of the state of New Mexico to the Governor of this state was made, and after a hearing the requisition was honored by the Governor of this state.

The principal contention here made is that, since petitioner was permitted to leave the state of New Mexico and .come to this state, he is not a fugitive within the meaning of the federal extradition laws; that the Governor of New Mexico was without authority to revoke said parole for any violation of its terms committed outside the state of New Mexico.

It is generally held that a fugitive from justice within the meaning of the extradition law is one who having committed, a crime leaves the state and is found in another state. It is not necessary that he should have left the state in which the crime was alleged to have been committed for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a state committed a crime against its laws, he has left its jurisdiction, and is found within the territory of another state when he is sought to be subjected to its criminal process to answer for his offense. 25 C. J. p. 258, § 13, note 66; 11 R. C. L. p. 730, § 23.

It is also held that one convicted of a crime who has been paroled and violates such parole and goes into another state may be extradited therefrom. This court in Ex parte Williams, 10 Okla. Cr. 344, 136 P. 597, 54 L. R. A. (N. S.) 668, held:

“To be a fugitive from justice under the laws of the United States, it is not necessary that the person charged with having left the state in which the crime was alleged to have been committed should have done so for the purpose of avoiding prosecution anticipated or begun, but simply that, having committed a crime within the state, he leaves such state, and, when he iá sought to be subjected to its criminal process to answer for his offense, he is found within the territory of another state.
“(b) A convicted prisoner, who has a parole, and who goes into another state, is a fugitive from justice within the provisions of the United States Constitution and laws, and as such is subject to extradition if his parole is revoked.
“(c) The legality of the revocation of. a parole in the State of Indiana is a question for the courts of Indiana, for they alone have the right to construe the Constitution and laws of that state.”

See, also, Scott on Interstate Rendition, p. 83, § 60.

We have found no case exactly in point, that is, where a prisoner is paroled and permission given him to go into another state. The mere fact, however, that by the terms of the parole the petitioner is permitted to go into another state does not make the going into another state any the less a voluntary act on his part. If he were taken out of the state in which he was under parole by extradition proceedings or otherwise against his will, a different question would be presented. Ex parte Youstler, 40 Okla. Cr. 273, 268 P. 323. In re Whittington, 34 Cal. App. 344, 167 P. 404. It was within the province of the Governor or the parole board of New Mexico to revoke the parole granted by it as it saw fit. We will not inquire into the legality of such order. Ex parte Williams, supra; Ex parte Collins, 32 Okla. Cr. 6, 329 P. 693. It being undisputed that petitioner, while on parole in the state of New Mexico, although with the consent of the parole board of that state, voluntarily left the state of New Mexico and came to Oklahoma, and thereafter the parole board of the former state revoked his parole, the status of petitioner is that of an escaped convict, and, being found in this state, he is a fugitive from justice within the meaning of the extradition laws, and subject to rendition upon requisition to that state.

The writ is denied.

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


text:
    LEE ROBERTS et al. v. STATE.
    No. A-6639.
    Opinion Filed Jan. 5, 1929.
    (273 Pac. 282.)
    Wilson & Roe and Hussey & Conner, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a judgment of conviction rendered on the verdict of a jury finding the defendants Lee Roberts and D. Roberts guilty of shooting another with intent to do bodily harm and fixing their punishment at confinement in the county jail for ten days.

Since the appeal was taken and awaiting decision before this court, plailntiff in terror Lee Roberts departed this life, as shown by the suggestion of his death by his counsel and by the Attorney General. It is therefore considered and adjudged that the proceedings as to the plaintiff in error Lee Roberts do abate.

The sole question presented by counsel for the reversal of the conviction as to the plaintiff in error D. Roberts is the insufficiency of the evidence to sustain the same.

The prosecuting witness, John Henry, testified that on the evening of the date alleged he, in company with two other men, drove to the home of the defendants, at which place several negro cotton pickers lived in a shack nearby; that a white man, Jack Jameson, was driving the car; that he left the car and went to the cotton pickers’ shack, and was there talking to the cotton pickers when the defendant Lee Roberts came up with a shotgun and ordered all of the negroes to go into the shack; that defendant D. Roberts, son of Lee Roberts, searched witness, and then ordered him off the place; that he started to leave, and, when he reached the fence, another altercation arose between him and the defendant D. Roberts. The defendant Lee Roberts came up and struck witness over the head with a gun and then shot him.

Jack 'Jameson, the white man who drove the prosecuting witness to the Roberts’ home, testified that he was sitting in his car some 200 yards from the house, and heard a gun fire, and heard some one say, “shoot the black son-of-a-bitch;” that he did not know who made the remark, nor could he see anything, owing to the darkness.

Defendant Lee Roberts testified, in substance, that a number of negro cotton pickers that he had hired in Texas were living in the shack on his place; that he had been having considerable trouble with them on account of their getting drunk; that the prosecuting witness, John Henry, had a reputation in the community for making choc beer and other liquors and furnishing it to negroes in the community; that on the date alleged, shortly after dark, a car stopped, and a negro came by the house, going to the shack occupied by the cotton pickers; that with his son, D. Roberts, he went down to the car that had stopped in the road and asked Mr. Jameson who was driving the car, who the negro was that went to the negro house, and Mr. Jameson said it was “shine;” that with his son he went to the negro shack; there was some trouble among the negroes — one remarked that there was a negro in the house with two guns; that he took a gun off a negro woman who was in the house, and ordered the prosecuting witness to get off the place, and prosecuting witness left the shack, and after going some 20 or 30 feet, Lee Roberts asked him why he came back and caused trouble among the negroes; then the prosecuting witness turned back and attacked D. Roberts, who struck at the negro with a stick, and was backing away from the negro when witness fired the shot.

Witness positively denied that D. Roberts said anything about shooting the negro or any other person.

As a witness in his own behalf, D. Roberts testified in substance to the same facts as his father. He further testified that a few days prior to the date of the shooting he had ordered the prosecuting witness to stay away from his father’s premises; that the prosecuting witness, after leaving the shack, turned and hit him, and his father fired the shot. He denied that he ever told his father to shoot.

•Considering all the testimony in the case, it is apparent that it is insufficient as a matter of law to show that the defendant D. Roberts was an accomplice in the commission of the act charged.

In our opinion, it would be destroying the presumption which arises in favor of the innocence of the accused and permitting the subversion of the rule which requires establishment of guilt beyond a reasonable doubt to allow -the conviction of the defendant D. Roberts to stand.

The judgment of the lower court as to the defendant D. Roberts is accordingly reversed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    DICK DRIGGERS v. STATE.
    No. A-6346.
    Opinion Filed Jan. 5, 1929.
    (273 Pac. 282.)
    D. B. Madden and Walter Hubbell, 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 Cotton county on a charge of manufacturing mash fit for distillation for the manufacture of alcoholic liquor.

The record discloses that one Flipo was arrested in possession of a copper still and 200 gallons of mash, the same as that upon which the charge here is predicated. He pleaded guilty and was sentenced to pay a fine of $100 and to serve a term in the county jail. After he had been in jail some time, he informed the sheriff and county attorney that defendant and one Jim Johnson and two parties by the name of Calfey were the owners of the still and mash, and that he was employed to. operate the still, and that in case of arrest he was to take the responsibility. Defendant and Johnson were informed against, tried, and convicted in the instant case. The verdict was set aside as to Johnson.

It is first contended that the conviction rests entirely on the testimony of Flipo and the two Calfeys; that by their testimony they are accomplices and that there is no corroboration of their testimony, and for that reason the conviction cannot stand. An examination of the record discloses that the only incriminating evidence is that of Flipo and the two Calfeys. These witnesses were accomplices of defendants, and were so recognized by the trial judge, who instructed the jury that they were accomplices. The testimony of all of them indicates that they are perjurers, ready to swéar falsely when they deemed it to their interest to' do so. The Calfeys were unwilling witnesses, and evidently receded from their statements made to the county attorney. The county attorney apparently was in the situation that he was unable to procure any credible testimony to corroborate these accomplices in those matters connecting defendant with the crime.

Since we must follow the plain provisions of the law as embodied in section 2701, Comp. St. 1921, and the many decisions of this court in conformity with it, the case is reversed and remanded.

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