text:
    ROY HARRELL v. STATE.
    No. A-6731.
    Opinion Filed June 15, 1929.
    (278 Pac. 404.)

      D. B. Madden and Walter Hubbell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county of manslaughter in the first degree, and his punishment fixed at imprisonment in the state penitentiary for a term of 10 years.

It appears from the record that at the time charged defendant was 19 years of age, and Charlie Hughes, the person killed, was 25 years of age. A brother of Hughes had married a sister of defendant, and defendant and Hughes had been acquainted and friends for several years. At the time of the difficulty, Hughes was hauling grain from a threshing machine, and defendant came there in a truck for the purpose of also getting employment in hauling away grain. They engaged in a conversation, and a difficulty followed, in which defendant twice cut Hughes with a knife, inflicting wounds from which he died about 2 weeks later. Defendant then left the state, but voluntarily returned in a few days. The state offered evidence that the conversation which led up to the difficulty was in reference to some beer which on the night preceding defendant had sold to a party of which deceased was a member. Defendant testified that some days before deceased bad insulted Ms wife, and that he demanded an apology, which led up to the difficulty; that at the time 'he cut deceased deceased had his arm about his neck, choking him; and that he used the knife in order to cause him to desist.

It is first argued that the court admitted incompetent evidence, prejudicial to defendant. This is directed to testimony in reference to the sale of beer by defendant to deceased or to a party of which deceased was a member on the night preceding the fatal difficulty. The testimony for the state was that, when the defendant approached the deceased at the threshing machine he asked him how he liked the beer the night before, and that, deceased replied that it was all right so far as he was concerned, but that he did not like it, and that he had one bottle left, and that, if it was all like that, he would have enough to do him all summer. Defendant answered, calling deceased a son of a bitch, and informed him that he could make just as good beer as he could, and then hit deceased, and said, “I am a mean, fighting son-of-a-bitch.”

On cross-examination defendant testified that nothing was said about beer at the time of the difficulty. On cross-examination the following appears :

“* * * Q. I will ask you, Dude, if Charlie Hughes didn’t buy — didn’t come down to your house the night before this cutting? A. Yes, he came to my house the night before that — to my father’s house. * * *
“Q. I will ask you if you didn’t sell to these same men that night — I will ask you if you didn’t sell Charlie Hughes some beer that night and also in the presence of Charlie Hughes sell some other men all told including 23 bottles of beer there that night? A. No, sir; I didn’t sell Charlie Hughes any beer.
“Q. Did you give him any beer? A. No, sir, I never did.
“Q. That didn’t occur. You didn’t have any beer on ‘ that occasion did you? (Objection was sustained.)
“Q. Dude, I will ask you if on tbis night before the trouble took place the next day, if you didn’t sell to Charlie Hughes, M. M. Cook, Téd Edmondson and Leonard New-some 28 bottles of beer? (Objection was overruled.)
“Q. How is that? A. I didn’t sell Charlie Hughes any beer.
“Q. Did you sell any of those three men any beer in the presence of Charlie Hughes? (Objection sustained.)
“By the Court: You may ask him if he sold to the crowd in which Hughes was a part.
“Q. Did you sell to M. M. Cook, Ted Edmondson and Leonard Newsome any quantity of beer in the crowd in which Charlie Hughes was in? A. No, sir.
“Q. He was with them? A. He wasn’t in the crowd with us at all.
“Q. He wasn’t present at the time? A. Charlie Hughes was standing at the back of the truck or out there at the gate somewhere, and we was all in front of the tire with a lantern, was tying it on. * * *
“Q. Go ahead and answer. How much did you sell them? A. I don’t know how many bottles of beer they got. I didn’t sell them' anythihg.
“Q. Did you give it to them? A. Yes, sir. * * *
“Q. Did Hughes drink any of the beer you furnished on that occasion? A. I can’t say about that. * *

There was evidence of other witnesses that on the occasion in question defendant sold or furnished the party of which deceased was a member a quantity of beer. This testimony, we think, is competent as tending to throw light upon a motive for the difficulty and as explaining and showing the relation of the parties and the origin of the fatal difficulty. This testimony was limited by the court in his instructions to this specific purpose. Wise v. State, 34 Okla. Cr. 284, 246 Pac. 656; Reeves v. State, 36 Okla. Cr. 409, 255 Pac. 162.

Complaint is further made that the verdict is a nullity; that, after the verdict had been received and the jury disehárged, and had separated and mingled with the public, they were recalled by the court, sent again to the jury room, and that they there attempted to correct th(eir verdict by writing in the words “in the first degree” after the word “manslaughter”. The record upon this point discloses that the court submitted to the jury only the crime of murder and of manslaughter in the first degree. When the verdict was first returned, it read:

“We, the jury impaneled and sworn in the above entitled cause do upon our oaths find the defendant guilty of manslaughter but are unable to agree upon his punishment and therefore leave his punishment to be fixed by the court.”

After the verdict was thus returned and the jury were excused, the county attorney called the court’s attention to the fact that the words “in the first degree” were not in the verdict. The court thereupon directed that the jury be called back, and said to them:

“I notice in preparing the verdict I submitted to you only the question if you found the defendant guilty of manslaughter, and the only degree of manslaughter submitted to you under the instructions and that was intended to have been put in the verdict at that time, and I take it you considered nothing else since nothing else was submitted to you, was manslaughter in the first degree, and in fact you were not authorized to render a verdict of manslaughter other than in the first degree and it will be proper for that to be put in. I am not satisfied whether it is necessary for that to be stated or not, but I am going to submit it to you so that you can write it in right after the word ‘manslaughter,’ ‘in the first degree.’ I take it you would consider nothing else and you may then write those words in after the word ‘manslaughter’, ‘in the first degree’.”

Defendant’s counsel then objected to the verdict as amended and returned, and on the motion for a new trial assigned this action as error. Three of the jurors made affidavit that they had walked out of the courthouse upon the street when recalled by the deputy sheriff. The only showing of any conversation with any one was that the county assessor inquired of one juror if they had been excused, and he answered they had. In Petitti v. State, 2 Okla. Cr. 131, 100 Pac. 1122, it was held that, when the jury had returned its verdict finding a defendant not guilty, and had been discharged and mingled with the public, the court could not recall the members and require or permit them to impeach their verdict by showing they intended to find the defendant guilty instead of not guilty. This is the only case in this jurisdiction called to our attention where it was attempted to recall the jury and to change a verdict after the jury had been discharged. There are numerous cases where the court has considered the attempt to impeach or explain a verdict, by jurors. We find no very recent authorities on this point, but the following sustain the rule announced:

Mills v. Com., 7 Leigh (Va.) 751, decided December, 1836, where it is held:

“On a trial for grand larceny, the jury find the prisoner guilty, but the verdict ascertains no term of imprisonment; the court tells the jurors they are discharged, but they are called back instantly, before any of them had left the courthouse, except one, who had gone a short distance accompanied by a deputy sheriff; and they then ascertain the term of imprisonment: Held, the verdict must be set aside, and a new trial awarded.”

People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776, syllabus 1:

“Where the jury, in a criminal case, after rendering a defective verdict, which is accepted by the court, are discharged, their functions as jurors cease, and they cannot be recalled, and directed to find a new verdict as they intended; and, if such proceedings are taken, they and the new verdict are a nullity.”

In Allen v. State, 85 Wis. 22, 54 N. W. 999, it was held:

“Where, on an information alleging that defendant did feloniously and of his malice aforethought kill and: murder W., the jury find defendant guilty as charged in the information, and are discharged, the verdict cannot be afterwards corrected by the court, or by reassembling the jury and ascertaining from them what degree of murder they intended to find.”

See, also, Farley et al. v. People, 138 Ill. 97, 27 N. E. 927; State v. Dawkins et al., 32 S. C. 17, 10 S. E. 772.

The statute providing for the forms of verdict is found in sections 2738 to 2740, inclusive, Comp, Stat. 1921, and these sections are to be considered together. Bowlegs v. State, 9 Okla. Cr. 69, 130 Pac. 824. The proceedings in this case, that is, the recalling of the jury after it had been discharged and attempting to amend the verdict cannot be upheld.

After the jury was discharged and had separated and had left the immediate presence of the court, their functions as jurors had ceased. The court did not have the power to recall them and invest them with the functions of a jury. His attempting to do sq and their attempting to act as such was a nullity. If a defect or informality in a verdict had been discovered after announcement of the discharge of the jury, but before they had separated, the court might then and there, however, set aside his announcement of discharge and the jury have further acted. Sections 2742 and 2743, Comp. Stat. 1921; Abbott’s Criminal Trial Brief (2d Ed.) p. 730, § 18; Petitti v. State, supra.

This action of the court in attempting to require the jury and their attempting to amend the verdict being, a nullity, the verdict as found in the first place and received by the court is not affected by the subsequent proceedings (People v. Lee Yune Chong, supra), and, if the verdict as returned in the first place is sufficient, the judgment based thereon should be affirmed.

Since the form of the verdict was not objected to at the time it was returned in the first place, and it was not challenged in its original form until the filing of a motion for a new trial, all reasonable intendments and inferences should be indulged to sustain it as to form. We are of the opinion that, so considered, it can properly be upheld. While the information charges murder, which includes the two degrees of manslaughter, yet the instructions of the court submitted to the jury only the offense of murder and the included crime of manslaughter in the first degree. So far as the jury were concerned, no crime was involved except murder and manslaughter in the first degree, and, when by their verdict they found defendant guilty of manslaughter, it was necessarily a finding of manslaughter in the first degree. No other mat.ter, crime, or degree of crime was nnder consideration by them. So considered, the verdict clearly discloses that the jury did; not find the defendant guilty of murder, but did find him guilty of manslaughter in the first degree.

The judgment is therefore affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    CHARLES MURRAY v. STATE.
    No. A-6622.
    Opinion Filed June 15, 1929.
    (278 Pac. 407.)
    Win. T. Powell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of perjury and was sentenced to imprisonment in the state penitentiary for a period of five years. Motion for new trial was filed, considered, overruled, and the defendant has appealed to this court. The defendant filed his motion to quash the information on the ground “that said defendant did not have a preliminary examination before the filing of this information as required by the laws of the state of Oklahoma/’ which motion to quash was overruled, and defendant duly excepted; and the defendant then demurred to the information, which demurrer was by the court overruled and defendant excepted. A jury was impaneled, and, when the state called its first witness, the defendant objected to the introduction of the testimony, which motion is as follows: “Comes now the defendant and objects to the introduction of any testimony in the case for the reason that the defendant Charles Murray has not had a preliminary hearing in this cause, and for the further reason that the court has no jurisdiction to hear and determine this cause, and moves the court that the said defendant be dismissed. And we wish to introduce these three instruments and ask that they be marked defendant’s Exhibits 1, 2 and 3.”

The county attorney objected to the introduction of Exhibits 1, 2 and 3, and the court sustained the objection. It was admitted by the county attorney that the exhibits offered by the defendant were the original affidavit and transcript, and the amended affidavit filed in the preliminary held before Hon. Lon Morris, county judge.

It is urged by the defendant that his motion to quash the information on the ground that he had not had a preliminary examination before the filing of the information, as required by the laws of the state of Oklahoma, should be sustained. Upon an examination of the record we find that the defendant was brought before the county judge on June 10, 1926, and his examination set for hearing on June 14, 1926; that on June 11, 1926, the county attorney caused to be issued a subpoena for the state witnesses to appear June 14, 1926; we further find that on June 14, 1926, the defendant appeared in court and stated his attorney was out of town attending a convention and could not be present. The court gave the defendant time to consult another attorney, and at 11:45 on said date defendant appeared with his attorney who filed an affidavit for change of venue, which was resisted by the county attorney; that the defendant filed an amended affidavit for change of venue, which affidavit complied with the provisions of the statute by stating: “That he verily believes that he cannot have a fair and impartial hearing and examination before said judge above named, sitting as a magistrate, on account of the bias and prejudice against this defendant.”

In addition the defendant stated Judge Lon Morris is a material witness in said cause and thoroughly familiar with the facts which appear from the complaint in said-cause. The defendant’s affidavit and amended affidavit for change of venue were overruled, and the court proceeded to hold the preliminary over the objections of the defendant.

Section 2485, C. O. S. 1921, is as follows:

“He must also allow the defendant a reasonable time to send for counsel, and adjourn the examination for that purpose; and must, upon the request of the defendant, require a peace officer to take a message to such counsel in the county or city as the defendant may name. The officer must, without delay, perform that duty, and shall receive fees therefor as upon the service of subpoena: Provided, however, that at any time before the examination is begun, a change of venue may be had, for the same causes and. in the same manner, and be transmitted to another justice, as in cases finally triable before a justice of the peace.”

Section 962, C. O. S. 1921, provides as follows:

“If on the return of process, or at any time before the trial shall have been commenced, either party shall file with the justice of the peace before whom any cause is instituted or is pending for trial, an affidavit, stating: First, that such justice is a material witness for either party; or, second, that he verily believes that he cannot have a fair and impartial trial before such justice, on account of the bias or prejudice of the said justice against the affiant; or third, if a jury be demanded by the adverse party, then, that he cannot, as he verily believes, have a fair and impartial trial in such district, on account of the bias or prejudice of the citizens thereof, the trial of the case shall be changed to some other justice of the peace, as provided in the next section; provided, that but one change of venue shall be allowed to plaintiff and but one to the defendant.”

The amended affidavit for a change of venue filed by the defendant follows the statute, and the record shows that it was filed before the preliminary had begun. The record further shows that in the trial of the case in the district court, Lon Morris, the county judge, was called and used as a witness against the defendant.

The county judge, sitting as an examining magistrate, took occasion to incorporate in the record a lengthy statement as to his acquaintance with the defendant and that he was not biased or prejudiced, which statement was unnecessary, as the defendant had complied with the letter of the statute in filing his amended affidavit for a change of venue. The county attorney resisted the change of venue on the ground that he had caused subpoenas to be issued for the witnesses before the affidavit for the change of venue was filed, and the court sustained the contention of the county attorney, but they seemed to have overlooked the fact that the amended affidavit stated that the examining magistrate before whom the trial was to be held was a witness in the case.

In Garnett v. State, 15 Okla. Cr. 332, 176 Pac. 769, in the syllabus the court said:

“The county court or judge exercising jurisdiction as an examining magistrate loses jurisdiction of a cause when the defendant, or some one for him, files an affidavit that he has reason to believe and does believe that he cannot have a fair and impartial examination before said county judge. His duty in the cause thereafter is purely ministerial, and he can only enter a proper order Transferring the cause to another magistrate as the statute provides’.”

It will be seen from an examination of the law that it was the mandatory duty of the committing magistrate when the affidavit was filed charging bias and prejudice, and the affidavit that the committing magistrate was a witness in the case, to grant a change of venue, and that the committing magistrate had no further jurisdiction after the affidavit and amended affidavit were filed.

The Bill of Rights, § 6, declares:

“The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered' without sale, denial, delay, or prejudice.”

Section 17, art 7, of the Constitution, provides:

“County courts shall also have and exercise the jurisdiction of examining and committing magistrates in all criminal cases.”

Section 17, art. 2, of the Constitution, provides:

“No person shall be prosecuted * * * for a felony by information, without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.”

Under the constitutional provisions and the statutes* quoted, the filing of the proper affidavit for a change of venue before the examining magistrate deprived him of further power or authority in the cause, and he can only transfer the cause to another justice of the peace or county judge, and such magistrate is vested with no discretion as to whether or not the change should be granted, nor is he authorized to determine the truth of the averments of the affidavit for a change of venue. The statute provides the manner or procedure by which a defendant may. secure a change of venue. After an affidavit is filed following the language of the statute, the duty to be performed by the magistrate is ministerial, and the duty is absolute.

There are other errors assigned, but in the view we take of this record it is not necessary to consider them. For the reasons stated we hold that the county court, or county judge exercising the jurisdiction of an examining magistrate, was without authority to hold a preliminary examination and to order the defendant to be held for trial before the district court The trial court erred in overruling the motion to quash and set aside the motion filed in this ease.

The judgment appealed from is reversed, and the cause remanded, with directions to proceed in accordance with law.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWAEDS, P. J.

text:
    R. A. LOWE et al. v. STATE.
    No. A-6772.
    Opinion Filed June 15, 1929.
    (278 Pac. 353.)
    Bristow '& Johnson, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWAEDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Caddo county on a charge of having the possession of a still and were each sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that at the time charged certain officers discovered a still on the premises of defendant E. A. Lowe, which at the time was being transported by defendant Thurman Lowe. They also found the place from which the still had just been removed." It had evidently been very recently in operation, as the fire had not been extinguished. The place where the still had been operated was about 150 yards from the residence of defendants. The defendants contend that the still had been owned and operated by one Franklin, a share cropper, and that it was being transported by defendant Thurman Lowe at the request of Franklin, and that defendant E. A. Lowe had no knowledge of its being on the premises. The jury evidently did not believe this testimony.

Tbe judgment was rendered in August, 1927, and tbe appeal was lodged in this court in October, 1927. No briefs in support have been filed. No material error is apparent.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    ROY RICHERSON v. STATE.
    No. A-6430.
    Opinion Filed June 15, 1929.
    (278 Pac. 356.)

      W. M. Williams and Ross Cox, for plaintiff in error.
    Raymond Barry, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Harmon county on a charge of having possession of whisky with,' intent to barter, sell, give away, or otherwise furnish the same contrary to law, and was sentenced to pay a fine of $100 and be imprisoned in the county jail for 60 days. Following the overruling of the motion for new trial, the defendant has appealed to this court.

The witnesses who were officers of Harmon county, testifying for the state, said they had a search warrant and went out to the defendant’s place, but did not search the house; that, in a little storage house southeast of the house, they found a ten-gallon keg with five gallons of whisky in it. The sheriff testified that he placed a mark on the keg, and when the keg was brought into the court, he testified that the contents were the same as when he put the mark on it and that that was the keg and liquor found on defendant’s premises. The defendant called as his first witness, Dr. R. L. Pendergraft. Being examined by defendant’s counsel, he was asked the question: “Dr., would you say that liquid was whisky? A. I don’t know, it has the taste of whisky.” The doctor was asked the further question: “In your judgment would you say it was as much as 20% alcohol? A. I would not say.” The defendant then asked the court’s permission to permit the jury to taste a sample of the liquor taken from the keg. This permission was granted and three of the jurors drank some of the liquor and as soon as the case was closed very promptly found the defendant guilty.

The state called in rebuttal Phil C. Ashby out of the public health department. After identifying a sample taken from the keg of liquor, he testified: “Q. I wish you would test that for the benefit of the jury and tell them what per cent, of alcohol it has? A. The scale gives it 15 per cent.” The defendant offered several witnesses who were not chemists, who testified that in their judgment it was at most a very weak grade of whisky.

Defendant’s first assignment of error is that the affidavit was insufficient to justify the search of the private residence of the defendant. The record discloses that the private residence was not searched, but only the barn, dugouts, and outhouses on the premises, and the liquor was found in an outhouse or storage house. The affidavit for the search warrant contained the description set forth in the syllabus of this case and was a sufficient description to authorize the search of the land and. outbuildings. The affidavit was positively sworn to, and in the affidavit the affiant stated “that he was on the above named premises as is described above with a man by the name of Gus Stanka on the night of June 18, 1926, and that while there he saw whisky and beer and that the above named Gus Stanka purchased one gallon of whisky and three cases of beer from the above named defendant and paid them for the whisky and beer in his presence,” in addition to the further statement that intoxicating liquors were being kept on the premises for the purpose of being sold, bartered, or given away. This affidavit was sufficient to authorize the search of every part of the premises except the private residence, and the evidence obtained by the search was properly admitted by the court.

Defendant next contends that the verdict of the jury is contrary to the law and the evidence. Since the evidence taken under the search warrant was properly admitted and since there is a conflict in the evidence as to other material facts in the case, it was for the jury and the trial court to determine in the first instance the sufficiency of the evidence. A careful reading of the record discloses ample evidence to support the verdict of the jury.

The defendant next complains that the court erred in admitting incompetent, irrelevant, and immaterial testimony over the objection of the defendant. The part complained of is that the state offered evidence showing previous sale to Gus Stanka as alleged in the affidavit for the search warrant. Counsel for the state told the court and jury that he offered this evidence only for the purpose of showing the intent of the defendant in the possession of the liquor seized under the search warrant. This court has held that, where one is charged with possession of a specified quantity of intoxicating liquors, with the intent to illegally dispose of the same, evidence of sales or attempted sales at or near the time may be shown to establish the illegal intent. The court, therefore, did not err in the admission of the testimony complained of.

The defendant next complains of the refusal of the court to give certain instructions requested by the defendant. The instructions given by the court on its own motion fairly covered the issues in the case and were as favorable to the defendant as he was entitled to have under the law and facts developed in the case. The instructions tendered by the defendant did not correctly state the law and were properly refused by the court.

Finally, the defendant argues that the conduct of the special prosecutor was prejudicial to the rights of the defendant. The evidence before the jury was that the sale set forth in the affidavit for the search warrant was made in the nighttime, and the defendant attempted to show that the witnesses could not know that it was the residence of the defendant at which the whisky and beer was purchased. The state put the sheriff on the witness stand, who testified that Bridgewater, who made the affidavit for the search warrant, went with him the next morning and pointed out the residence of the defendant where the liquor was purchased the night before. Gus Stanka had testified that he did not purchase any liquor from the defendant, as sworn to by Bridgewater in the affidavit for the search warrant. Counsel for the state announced: “Let the record show that counsel for the state is asking the question for the purpose of impeaching Gus Stanka’s testimony and that it is no way to be considered evidence against the defendant, Roy Richerson.”

Under the harmless error doctrine of this state;, we would not be justified in reversing this case because of the possible error of the special prosecutor in offering this proof. There is ample evidence in the record to support the verdict of the jury.

Defendant complains of numerous other errors, but they are without merit.

The cause is therefore affirmed.

EDWARDS, P. J., concurs.

DAVENPORT, J., dissents.


text:
    OSWARD BATSON v. STATE.
    No. A-6774.
    Opinion Filed June 15, 1929.
    (278 Pac. 359.)
    Glaseo & Glaseo, for plaintiff in error.
    W. B. M. Mitchell, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of McClain county on a charge of having possession of a substitute for a still, and was sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days. Motion for new trial was filed, overruled, and exceptions saved, and the case appealed to this court.

The charging part of the information is: “That Osward Batson did, in McClain county, and in the state of Oklahoma, on or about the 8th day of May, 1927, and! anterior to the presentment hereof, commit the crime of having in his possession a substitute for a still and still worm in the manner and form as follows, to wit: The said Osward Batson, in McClain county, state of Oklahoma, on or about the 8th day of May, 1927, then and there being did then and there unlawfully, knowingly and willfully have in his possession a substitute for a still and still worm, to wit: one copper wash boiler with the top soldered on and a hole cut in the top of the boiler for the purpose of using the same for the manufacturing and production of distilled spirits and liquors and which after being set up was capable of being used for the manufacture and production of distilled spirits and liquors, the sale, bartering, giving away of which is prohibited by the laws of the state of Oklahoma.”

The prosecution of this case was had under section 2, chap. 42, Session Laws of 1923-24:

* * A_nd it shall be unlawful for any person to set up to be used as a distillery a still worm or substitute therefor, whether kettle, washpot, metal tank or any other vessel of any kind, whether for the purpose of using same, or which after being set up, may be used for the manufacture, production or fermentation of distilled! spirits, or liquor, the sale, barter or giving away of which is prohibited by the laws of the state of Oklahoma.”

The gist of the charge against the defendant was that he unlawfully had in his possession a substitute for a still and still worm, to wit, one copper wash boiler with the top soldered on and a hole cut in the top of the boiler for the purpose of using the same for the manufacture of distilled spirits and liquors, and which after being set up was capable of being used for the production of distilled spirits and liquors. Under the information the state was bound to prove at least two facts: First, that the copper wash boiler was a substitute for a still. Second, that the substitute was capable of being used for the manufacture and production of distilled spirits and liquors.

The evidence in the case is very brief. W. W. Oliver testified that he had a search warrant and searched the premises of the defendant. He testified that he found a copper boiler with the top soldered on and a hole in the top, but no worm, and a small keg, which had been used to sour some kind of corn mash or something. When asked did he have a copper still, the witness answered, “Just a copper boiler, I don’t know whether you call it a still or a substitute.” J. M. Lynn also testified for the state to substantially the same facts, and that was all the evidence offered by the state.

There is no evidence to show that this copper boiler was a substitute for a still, nor is there any evidence that the copper wash boiler was capable of being Used, when set up, for the manufacture and production of distilled liquors. The state having wholly failed to prove the material allegations of the information by any competent evidence, the cause must be reversed for insufficient evidence to support the verdict of the jury.

The cause is therefore reversed and remanded, with instructions to dismiss.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    JOE CRINER v. STATE.
    No. A-6760.
    Opinion Filed June 15, 1929.
    (278 Pac. 360.)
    Sigler & Jackson and Thos. Norman, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for tbe State.
   PER CURIAM.

Tbe plaintiff in error, hereinafter called defendant, was convicted in the district court of Carter county for the crime of forgery in the second degree and his punishment fixed at imprisonment in the state penitentiary for a term of one year.

The record discloses that at the time charged defendant passed a forged check in the sum of $5 and received in exchange merchandise and cash. The defendant offered no testimony. The judgment was rendered in March, 1927, and the appeal was lodged in this court in September, 1927. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. No fundamental or jurisdictional error is apparent.

The case is affirmed.


text:
    MRS. FLOYD MILLER v. STATE.
    No. A-6384.
    Opinion Filed June 15, 1929.
    (278 Pac. 403.)
    Sam S. Gill, for plaintiff in error.

      Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of transporting intoxicating liquor from one place in the state to another, and was sentenced to imprisonment in the county jail for 60 days and to pay a fine of $200. Motion for new trial was filed and overruled, and defendant has appealed to this court.

The testimony on behalf of the state in this case shows that the defendant drove to the home of Obe Hathaway and got out and took something out of her car and went in the house and set it on the table in the room where Mrs. Hathaway was; the officers followed her in the house and saw her set a gallon jug on the table; they claim it was whisky. Three officers testified to having seen the defendant take something out of her car and put it under her top coat and go into the house, and saw her set it down on the table, and testify it was whisky..

Mrs. Bernice Hathaway, the wife of Obe Hathaway, testified that the officers arrested Mrs. Miller at her place; just prior to the time of her arrestl Mrs. Miller came in and set a gallon jug on her table; she could not say what the jug contained. The witness identified the jug the officers took that had been placed on her table by defendant. Mrs. Hathaway said she did not know it was whisky. Mrs. Hathaway admitted she had been convicted for violating the prohibition laws.

The defendant testified in her own behalf and denied she took any whisky into the Hathaway home, but stated' she was down there to collect some money Mr. Hathaway owed her husband; that when she arrived there Mr. Mull-inéx, Mrs. Hathaway, “and a man I did not know were all drinking; Mr. Mullinex said, ‘Don’t be afraid of me, I have my commission in my pocket;’ I went down there in a Ford coupe; when I went in the house Mrs. Hathaway had the cork and Mr. Mullinex had the jug to his lips, and asked me to take a drink; I did not drink any. Brick Garrison and the others that were there seemed to be drinking.” The witness stated she had never violated the prohibitory liquor laws. This is in substance the testimony in the case.

The defendant requested the court to instruct the jury to return a verdict of not guilty for the reason that the evidence is not sufficient to support the charge of transporting intoxicating liquor from one place to another. The request was overruled and defendant excepted.

•Several errors are assigned by the defendant. The second being, the trial court erred in overruling plaintiff in error’s motion for a new trial and in refusing to grant a new trial. The defendant also assigns as errors that the trial court erred in overruling her demurrer to the information. Upon an examination of the information we hold that it states facts sufficient to advise the defendant of the crime with which she is charged, and the court did not err in overruling the demurrer.

The testimony in this case is conflicting. The state’s testimony tends to show that the defendant took a jug of whisky from her car into the Hathaway home and set it on the table. Mrs. Hathaway states the defendant brought the jug in and set it on the table. Some of the state’s witnesses, without giving any reason for saying the jug contained whisky, stated the contents of the jug was whisky. The county attorney, over the objection of the defendant, was permitted on cross-examination to ask the defendant if she did not associate with bootleggers and if her husband was not in jail for bootlegging and many other improper questions. The defendant was charged with transporting intoxicating liquor and the evidence should have been confined to that charge. This court has repeatedly held that, where the testimony is conflicting, it will not disturb the verdict of the jury. We hold the evidence is sufficient to sustain a conviction.

There are several other errors assigned by the defendant, some of which have merit, but we do not think they are sufficient to justify this court in reversing the same. The instructions of the court substantially declare the law. In view of the record in this case and the many questions improperly propounded to the defendant by the county attorney, we believe the ends of justice will be properly met by a modification of this sentence to 30 days in jail and a fine of $100, and as so modified the judgment is affirmed.

EDWARDS, P. J., and CHAPPEDL, J., concur.


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    FRED RUMBAUGH v. STATE.
    No. A-6761.
    Opinion Filed June 15, 1929.
    (278 Pac. 399.)

      Brown Moore and Guy P. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant, was convicted on a eharge of transporting whisky, and his punishment fixed at a fine of $50 and imprisonment for a period of 30 days. Record was perfected and case appealed to this court.

This is a companion case to No. A-6673, Fred Nowlin v. State, 43 Okla. Cr. 305, 278 Pac. 398, in which an opinion has been handed down by this court to-day. The same witnesses testify as in No. A-6673, and the alleged offense occurred at the same place and at the same time. It is not deemed necessary to set out the testimony in substance or in full in this opinion.

For reasons stated in case No. A-6673, this case is reversed and remanded.

EDWARD'S, P. J., and CHAPPELL, J., concur.


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    FRED NOWLIN v. STATE.
    No. A-6673.
    Opinion Filed June 15, 1929.
    (278 Pac. 398.)

      Brown Moore and Guy E. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of conveying one-half pint of whisky from one place in Payne county, Oklahoma, unknown to affiant and county attorney, to another place in said county and state, and was sentenced to pay a fine of |50 and be imprisoned in the county jail for a period of 30 days. Motion for new trial was filed, considered, and overruled, and defendant has appealed to this court.

The state to sustain the allegations in the information introduced testimony tending to show there was a dance going on in Payne county, near Charlie Dennis’ place; the three officers testifying claim they hid behind some brush and weeds near the highway, and this defendant came down the highway, in company with two other parties, and when they reached a point near where the officers were located, some of the party stated there ought to be one here, and they saw them bend down and pick up something; another party said there ought to be one here, and “we rushed out to the parties and threw the flash-light on them.” It is contended by the state’s evidence that the defendant threw something in the field and started to run and one of' the officers shot two or three 'times before they caught him; that about the time the second shot was fired the defendant fell. The officer admits the shooting, but says he was not shooting at the defendant, but shot to make him stop. The charge against the defendant is transporting liquor.

The defendant testified in his own behalf, and stated his occupation was farming; “I attended a dance at the Charlie Dennis place on the 18th of September, 1926; I did not have any liquor nor did I drink any liquor over there; I did not throw away a bottle of liquor as testified by Mert Poole; I saw Mert Poole, Mr. Ferguson, and Mr. Williams there that night; Fred Eumbaugh and John Humphrey was standing there by the dance hall; we had an occasion to answer a call of nature and walked down a little ways and stopped, and these fellows jumped up and said, stop or halt, and when they said that I started to run and one of them shot; I do not know who did the shooting, but it excited me; I run into a ditch and fell. After I was arrested Poole went about 15 or 20 steps out in the field and came back with a bottle; I did not transport any whisky, nor did I have any liquor out there where we were; I have never been convicted of violating the liquor laws; this is the first time I have been arrested.” On cross-examination he stated, “Humphrey and I had a conversation out there where Eumbaugh could hear it; we did not have a conversation about whisky; Fred Eumbaugh suggested we go down the road and answer a call of nature; I don’t know just how far it was from the dance 'hall to where we were; I did not stop and pick up any whisky down the road, near the officers, or any other place; I did not pick up a bottle; I did not drink any at the dance that night; I did not run because I had whisky; the officers jumped and hollowed and started shooting, and I just could not stand; he hollowed and I jumped and started to run, and he started shooting.” A number of witnesses testified as to the good character of the defendant.

The first assignment presented and argued by the defendant is that the court erred in overruling defendant’s demurrer to the state’s evidence, and in refusing the defendant an instructed verdict; to which ruling of the court the defendant at the time and in the record duly excepted. The defendant also urges that the verdict of the jury is contrary to the law and is not supported by the evidence; and that the verdict is contrary to the evidence.

The information in this case charges the defendant with the crime of conveying liquor from a place in Payne county, Oklahoma, unknown, to another place in said county and state, near a platform of Charlie Dennis. It was necessary to allege a conveyance or transporting from one point in the state to another point, and if the state expected to establish the charge in the information, the burden was on it to prove by competent testimony that, if any liquor was transported by the defendant, it was transported from a place unknown to a definite place in the state. Brown v. State, 18 Okla. Cr. 509, 196 Pac. 967; Kelley v. State, 31 Okla. Cr. 51, 236 Pac. 915; Aycock v. State, 32 Okla. Cr. 302, 240 Pac. 1081; Tice v. State, 18 Okla. Cr. 32, 192 Pac. 434.

Webster defines “locality” in his New International Dictionary, p. 1226, as follows: “Locality: 1. fact, or state of being; 2. specif, limitations to the county, district or place; as location of trial.”

In DeGraff v. State, 2 Okla. Cr. 519, 103 Pac. 538, this court said:

“The removal of liquor from one room in the house to another room in the same house is not an offense of transporting liquor within the meaning of the statute.”

The gist of the offense charged in this case is the conveyance from one place to another. The word “place” has a variable meaning; as used in the statute it means “region or locality.” In Proctor v. State, 8 Okla. Cr. 537, 129 Pac. 77, this court said:

“On the essential ingredient of the offense charged, there must be a conveyance from a place beyond the premises of the defendant.”

Boswell v. State, 26 Okla. Cr. 193, 223 Pac. 208; Wilder v. State, 34 Okla. Cr. 291, 246 Pac. 660; Davis v. State, 38 Okla. Cr. 39, 259 Pac. 172.

Upon consideration of all the evidence in the case, we are of the opinion that it is wholly insufficient to warrant a verdict of guilty, and that the court erred in overruling defendant’s demurrer to the evidence, and refusing to advise the jury to return a verdict for the defendant.

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

The case is reversed and remanded.

EDWARDS, P. J., and CHAPPELL, J., concur.


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    HENRY FROMCKE v. STATE.
    No. A-6636.
    Opinion Filed June 22, 1929.
    (278 Pac. 409.)

      Owen F. Renegar, for plaintiff in error.
    J. Gr. Springer, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Washita county on a charge of transporting intoxicating liquor and sentenced to pay a fine of $350 and be confined in the county jail for a period of 90 days. Proper steps have been taken and the cause is now in this court on appeal.

The witnesses for the state were deputy sheriffs of Washita county. Witness J. B. Wallace testified that he was undersheriff; that his attention had been attracted to the defendant on account of his suspicious actions and; on account of a transaction he had seen between the defendant and one Cal Longley. The officer had seen the defendant pass a package out of the car to Cal Longley on an occasion and under circumstances which led the officer to believe that the defendant might have whisky in his car.

This witness testified the defendant had been moving his car from place to place in the city of Cordell and that, at the time he had asked permission to search the car, it was standing in front of a little restaurant by Charlie Smith’s barber shop. The witness further testified that, when he climbed up into the car, the defendant reached around behind himself and pulled out a pint bottle and broke it over the pedal in the bottom of the car. The witness J. C. Kitchen corroborated the testimony of witness Wallace. The defendant called Cal Longley as a. witness in his behalf, Longley testified that he and the defendant had driven from Clinton to Cordell on that day and that on the road the defendant stopped and picked up an empty bottle and put it on a cushion behind himself. On cross-examination the witness admitted that there might have been bottles of whisky in the car for all he knew.

The only question in the case is, Was voluntary consent of the defendant given to search the car? The officer testified that he had no search warrant and made no claim to the defendant that he had one, but merely told him that he would like to search his car, and when the defendant consented, he started to make the search, when the defendant grabbed the bottle of whisky and broke it over the pedal of the car. The evidence discloses consent of the defendant was given to search the car.

In the case of Strong & Johnson v. State, 42 Okla. Cr. 114, 274 Pac. 890, syl., par. 2, this court said:

“Where voluntary consent is given to search automobile, without a valid search warrant, or warrant of arrest, evidence obtained thereby is admissible.”

Where the officer approaches the car and advises the defendant that he desires to search the car and the defendant consents to the search, no search warrant is necessary. The defendant further urges that the evidence is insufficient to establish the guilt of the defendant beyond a reasonable doubt. There is sufficient evidence in the record to sustain the verdict of the jury.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    MARGARET JOHNSON v. STATE.
    No. A-6503.
    Opinion Filed June 22, 1929.
    (278 Pac. 411.)
    Wieck & Armstrong, for plaintiff in error.
    Roy R. Carver, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of selling three pints of spiked beer, the same being a spirituous and intoxicating liquor and capable of being used as a beverage, and was sentenced to pay a fine of $100 and be confined in the county jail for 30 days. The cause is now on appeal in this court. The defendant was charged jointly with her husband, Allen A. Johnson, but the court instructed the jury to find Allen A. Johnson not guilty.

P. C. Copeland and W. W. West testifying for the sítate said that they were federal officials; that they visited the business place of the defendants in Tonkawa and told the defendant Allen A. Johnson that they wanted to buy some beer; he sent them into the back room where the defendant Margaret Johnson was; they told her they wanted to buy some beer; she brought out three bottles of beer and asked them what they wanted it spiked with, whisky or alcohol; they told her whisky; thereupon the defendant filled an ordinary whisky glass with whisky and poured it into the beer, which the witnesses drank; after waiting a few minutes, they wanted three more bottles of beer, which was delivered to them by Allen A. Johnson, who filled a whisky glass with whisky and poured it into the beer; that after drinking this, they felt some effect from drinking the mixture; that they knew whisky when they saw it, smelled it, and tasted it; and that the mixture they drank was composed of whisky and near beer and was intoxicating. The witnesses testified that some people were in the room when they went in and others came in while they were there and that they were each and all served with spiked beer or whisky straight by the defendant.

The court told the jury this evidence was being admitted for the purpose of corroborating the testimony of the witnesses as to the sales of intoxicating liquor. The only question strenuously contended for is, Is the evidence insufficient to support the verdict of the jury? This court has often held that the credibility of the witnesses and the weight to be given their testimony and the sufficiency of the evidence were questions for the jury and the trial court upon motion for new trial and that this court would not disturb the verdict of the jury where there was any evidence to support the verdict.

The evidence offered by the state being sufficient to support the verdict and no fundamental errors of law appearing upon the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    C. I. OLDHAM v. STATE.
    No. A-6732.
    Opinion Filed June 22, 1929.
    (278 Pac. 663.)
    Madden & Hubbell and Hays Dillard, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Cotton county, Oklahoma, upon a charge of grand larceny, and Ms punishment fixed by the court at imprisonment in the penitentiary for three years.

This case is a companion case to that of Oldham v. State, No. A-6417, 42 Okla. Cr. 209, 275 Pac. 383. The defendant was charged in the former case with petty larceny; the crime being the stealing of some oats. The sheriff with a search warrant searched the premises of the defendant, found the stolen oats, and in addition found other stolen property in the possession of the defendant, including the articles of harness charged to have been stolen by the defendant in the case at bar.

The first ground of error alleged in the petition in error in this court is that the court erred in admitting over the objection of the defendant incompetent, irrelevant, and immaterial testimony, offered on the part of the state, and objected to by the defendant. That was the first question raised by the defendant in A-6417, recently decided by this court. In that case this court held:

“The evidence of the theft of other articles at the time the oats was stolen and the finding of such articles in the barn of the defendant in his possession was clearly admissible for the purpose of establishing the systematic scheme to steal and rob as indicated in this case.”

The oats alleged to have been stolen in No. A-6417, and the harness alleged to have been stolen in the case at bar,, were all found by the sheriff at the same time, in the same place, and in possession of the defendant. Under the rule laid down in the case of Mose Jackson v. State, 42 Okla. Cr. 86, 274 Pac. 696, this court reaffirmed the rule heretofore laid down, that evidence of other stolen property recently stolen and found in the possession of the defendant was competent as tending to establish a theft of other articles by the defendant at or about the plan or scheme to steal and rob. The evidence of the same time was properly admissible in this case.

The defendant next complains that the court erred in not suppressing the evidence obtained under the search warrant, alleging, that the affidavit and warrant were •insufficient to justify the search.

In the case of Reutlinger v. State, 43 Okla. Cr. 261, 277 Pac. 950, recently decided by this court, this court said:

“Where a motion is filed to suppress the evidence secured by the service of a search warrant, the burden rests on the defendant to establish the insufficiency of the affidavit and the illegality of the search and seizure. * * * The presumption of law is that the affidavit for the search warrant was sufficient and the search made under the warrant legal.”

Under the facts as disclosed in the case at bar, the defendant made no sufficient showing to sustain his motion to suppress the evidence, and the motion was properly overruled.

Finally the defendant suggests that, if the cause is affirmed, the punishment of three years in the penitentiary as fixed by the court is excessive. The record in the case at bar and in the case against the defendant recently decided in this court discloses that the defendant was stealing from various people different kinds of property and carrying the property off into another county. The trial court heard the evidence, saw the defendant, heard his explanations, and understood the conditions surrounding this case better than this court could know them from the reading of the record. Under this record we cannot say that the judgment is harsh or unjust nor that the punishment is excessive.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    G. L. GAMBLE et al. v. STATE.
    No. A-6773.
    Opinion Filed June 22, 1929.
    (278 Pac. 665.)
    Glaseo, Glaseo & Ballard,, for plaintiffs in error.
    W. B. M. Mitchell, Co. Atty., for the State.
   CHAPPELL, J.

Plaintiffs in error, hereinafter called defendants, were convicted in the county court of McClain county on a charge of selling intoxicating liquor, and their punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for 30 days for each of them.

Judgment was rendered in said cause on the 10th day of June, 1927, at which time the defendants for good cause shown were given 60 days in which to prepare and serve case-made on appeal. The state was given 10 days to suggest amendments and the case to be settled on 5 days’ notice. On the 8th day of August, 1927, on application of the defendants, the court granted 60 days’ additional time in which to prepare and serve the case-made. The state to have 10 days to suggest amendments and the case to be signed and settled on 5 days’ notice. Neither of the defendants made application to have the time extended in which to file their appeal in this court, and the case-made does not disclose any order of the court extending the time.

In the case of Erwin v. State, 43 Okla. Cr. 249, 278 Pac. 397, the court said:

“Case-made does not automatically extend the time within which to file the appeal. Holly v. State, 16 Okla. Cr. 164, 181 Pac. 518, and cases therein cited. Wilson v. State, 24 Okla. Cr. 268, 217 Pac. 1057; Aubrey v. State, 38 Okla. Cr. 271, 260 Pac. 783.”

For the reason that the appeal was not lodged in this court within 60 days after the rendition of the judgment and no order extending the time within which to take the appeal was made by the trial court, the appeal is dismissed.

EDWARDS, P. J., and DAVENPORT, J., concur.


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    WALTER M. YEAGER v. STATE.
    No. A-6768.
    Opinion Filed June 22, 1929.
    (278 Pac. 665.)

      Errol Joyce and E. G. Wilson (E. C. Searcy and P. H. Moroney, on the brief), for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of murder, and his punishment fixed at life imprisonment in the state penitentiary. Motion for new trial was filed, overruled, proper exceptions taken, and the cause is now on appeal in this court.

The information alleged that the defendant, Walter M. Yeager, on the 10th day of January, 1927, in Tulsa county, with premeditated design to effect the death of one E. A. Craig, shot him with a revolver or pistol, and did then and thereby cause the death of the said E. A. Craig. There seems to be no serious question about the sufficiency of the evidence in this case to support the verdict of the jury. While the evidence on the part of the state was wholly circumstantial, yet it was that kind of circumstantial evidence that established the guilt of the defendant beyond a reasonable doubt. The facts and circumstances proved in the case at bar were not only consistent with, and pointed to, the guilt of the defendant, but they were inconsistent with his innocence. Although the defendant in his motion for new trial assigns the insufficiency of the evidence as one of the grounds for granting a new trial, he has not briefed and does not argue the question in this court. The evidence in the case being sufficient to support the verdict of the jury, the cause must be affirmed, unless it affirmatively appears from the record that the defendant has been deprived of some statutory or constitutional right, or that fundamental error was committed by the trial court in the trial of the case. This court will consider the questions raised by the defendant in the order in which they transpire in the trial of the case, rather than in the order set forth in, defendant’s brief.

The first error complained of, occurring in the proceedings, is the unlawful arrest and the search and seizure of letters, papers, and effects of the defendant, which effects and papers were introduced in evidence by the state. Section 2471, C. O. S. 1921, provides:

“A peace officer may, without a warrant, arrest a person:
“First. For a public offense, committed or attempted in his presence.
“Second. When the person arrested has committed a felony, although not in his presence.
“Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
“Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

Section 2473, C. O. S. 1921, provides:

“He may also at night, without a warrant, arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest though it afterward appear that the felony had not been committed.”

It is clear that, under subdivision 3 of section 2471, the sheriff had full authority for making the arrest of the defendant. Under section 2473 the sheriff was authorized to make the arrest in the nighttime. The record discloses that the sheriff visited the place where the body of the deceased was found about 10 o’clock on the night of the homicide, and accompanied the body to Sand Springs, after having called an undertaker to come and remove the body. Later the sheriff learned that the defendant had had business dealings with the defendant, and had an appointment to meet him at the place where the deceased’s body was found on the day of the homicide, and that defendant had been seen on or near the lease with the deceased at about the time of the homicide. The sheriff returned to Tulsa after midnight, and, further learning that the defendant was planning to leave for New York, arrested him without a warrant at about 2:30 a. m. on the 11th day of January. The sheriff was accompanied to the home of defendant by one Thompson, who was the evidence man for the county attorney’s office of Tulsa county. After the arrest of the defendant, Thompson took charge of a grip sitting beside the bed in which the defendant had been sleeping, which contained papers and effects of the defendant, tending to establish a motive for, and to connect the defendant with, the commission of the crime for which he was arrested. The defendant earnestly contends that the seizure of the papers by Thompson without a search warrant was illegal, and for that reason the evidence secured by the seizure was inadmissible, and that without this evidence no motive could have been established for the commission of the offense by the defendant.

Section 2477, C. O. S. 1921, is as follows:

“A private person may arrest another:
“First. For a public offense committed or attempted in his presence.
“Second. When the person arrested has committed a felony although not in his presence.
“Third. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”

Under the provisions of this section, Thompson as a private citizen would have been authorized to arrest the defendant, and, having arrested him, he would have been authorized to seize whatever was found upon the person or under the control of the defendant which might be used to prove the offense. The fact that Thompson accompanied the sheriff, and acted with him and apparently under his supervision, would have been sufficient to authorize the seizure of the papers and effects of the defendant, which were competent evidence to be used against him, and the further fact that Thompson was authorized under section 2477 to make the arrest and seizure, even as a private citizen, shows there is no merit in the contention of the defendant that the arrest was improper or illegal, and that the seizure of the papers and effects rendered them inadmissible.

The defendant next complains of the selection of the juror P. H. Gallagher, because it appeared from an examination of the juror on his voir dire that, from reading the accounts of the homicide in the newspapers and from what he had heard, he formed an opinion that E. A. Craig had been murdered, but that he had formed no opinion of the guilt or innocence of the defendant. The defendant had exhausted all of his peremptory challenges and could only have the juror Gallagher removed from the jury box upon challenge for cause, and alleges that he was not given a fair trial by a legal jury, because the trial court overruled his challenge to the juror for cause.

In the examination of the juror by the court, he testified as follows:

“Q. You would not take á man’s life away from him on the assumption that he was murdered? A. No, sir.
“Q. Would you not require the state to prove beyond a reasonable doubt that he was murdered? A. Yes, sir.
“Q. Will you start out on the assumption that the deceased was murdered, or will you require the state to prove it? A. They will have to prove it.
“Q. Now, there is no doubt in your mind on that, is there? A. Absolutely not.
“Q. You will require the state to prove the illegal death of Craig beyond a reasonable doubt, as well as any other allegation in the information; will you do that? A. Yes, sir.”

Section 2678, C. O. S. 1921, provides:

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

The fact that the juror had formed an opinion as to the cause of the death of Craig did not disqualify him as a juror. The opinion formed must go to' the guilt or innocence of the defendant, and not to the manner in which the homicide was accomplished. In the case of Martindale v. State, 16 Okla. Cr. 23, 180 Pac. 385, this court said:

“An assignment of error based upon the court’s action in overruling a challenge for cause to an individual juror will be of no avail on appeal unless there is an affirmative showing that the challenge for cause was well founded, and that the defendant was compelled to accept such disqualified juror by reason of having theretofore exhausted all of his peremptory challenges. Also the acceptance of such juror by waiving a peremptory challenge as to him will render such an assignment of error unavailing.”

In the case of Turner v. State, 4 Okla. Cr. 164, 111 Pac. 988, the court said:

“A mere impression not amounting to an opinion, derived from newspaper reports or rumor does not disqualify a juror, and is not sufficient cause for challenge. It must appear that he has formed a fixed opinion. A juror who states on his examination on the voir dire that he has an impression, not amounting to an opinion, from the reading of a newspaper account of the tragedy, and that his impression did not ,amount to an opinion, and was not such as would in any way influence his verdict, is competent, and a challenge for cause by reason of implied bias was properly overruled. The statute which provides (section 6814, Snyder’s) that: No person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon rumor, statements in public journals, or common notoriety, provided it appears to the court, upon his declaration, under oath or otherwise, that he can and will, notwithstanding such opinion, act impartially and fairly upon the matters to be submitted to him,’ is not in violation of the constitutional guaranty of the right to a trial by an impartial jury.”

It appearing from the record that the juror Gallagher was without bias and prejudice, and could act fairly and impartially in the trial of the case, and the trial court having in the exercise of his discretion held the juror to be qualified, this court will not reverse the case, unless that discretion of the trial court appears to have been abused. It appearing from the examination of the juror on his voir dire that he was not biased and prejudiced against the defendant, the challenge of the juror for cause was properly overruled.

The defendant next complains that the court erred in admitting incompetent, irrelevant, and immaterial evidence. At the time of the arrest of the defendant, when apprised of the death of Craig, he told the sheriff, “I would not harm a hair of his head.” A short while after, on reaching the sheriff’s office, the sheriff testified that the defendant manifested unconcern as to the death or manner of death of Craig, who had been his business associate and friend. The sheriff testified that he asked the defendant if he wanted him to tell him how he thought Craig met his death, of which the defendant answered he did. Thereupon the sheriff described to the defendant the manner in which he believed the defendant had killed Craig, and the defendant denied that he had done the killing. Any voluntary statement made by the defendant after his arrest was properly admissible in evidence. The evidence of the sheriff discloses that the defendant did promptly deny any connection with the killing of Craig, and the evidence could not have been prejudicial to him, because it got before the jury the fact that the defendant promptly denied any connection with the killing of Craig. At about 8 :30' in the morning of January 11th, the defendant was brought to the office of the county attorney, where he made a voluntary statement concerning all the matters in question concerning his relations with the deceased, his whereabouts; on the day of the homicide, and his connection with the same. This statement was taken in shorthand at the time it was made and reduced to writing and offered in evidence by the state. The defendant at first objected to the introduction of this statement, but finally withdrew the objection, agreeing to its admission, and through his counsel vouched for its truthfulness in the presence of the jury-

In the case of Cowan v. State, 42 Okla. Cr. 316, 275 Pac. 1070, this court said:

“When a defendant is clearly proven to be guilty, this court will not reverse a conviction upon any technicality or exception which does not affect the substantial rights of the defendant.”

The defendant having consented to the introduction of his statement taken in writing, we are unable to see how the admission of the evidence of the sheriff complained of could have influenced the jury, or have substantially affected the rights of the defendant.

The defendant next complains because the court permitted the jury to visit the scene of the crime. The following proceedings.appear in the record:

“The Court: Gentlemen, as I understand it, it was agreed here that the jury might view the premises.
“Mr. Joyce: Both sides have rested the case.
“The Court: I understand. That is right, isn’t it?
“Mr. Joyce: Yes, sir.
“The Court: Do you want them to go this afternoon or in the morning?
“Mr. Joyce (counsel for defendant) : Whatever the jury says about it.
“The Court: When do you want to go, gentlemen?
“A Juror: To-morrow.
“The Court: Does the defendant agree they may go to-morrow? To-morrow is Sunday.
“Mr. Joyce: Oh, yes.” ■

The court then admonished the jury not to discuss the case among themselves, or permit any one else to discuss it with them, and not to form or come to any conclusion as to the guilt or innocence of the defendant, advising the jury that it had been agreed that they were to be taken to view the place where the homicide was committed, and that that would be evidence, and that the case had not been finally submitted to them. The court then placed the jury in the charge of sworn officers and gave them the usual instruction. The defendant having consented in open court to the jury visiting the scene of the homicide, and the court having admonished the jury as to their conduct and having advised the jury that what they would see would be evidence, and the defendant having made no objection to the admonitions of the court, and having failed to have the court rule upon the question of the propriety of the admonitions, there is no question before this court for it to pass upon. This court has repeatedly held that upon request, jurors may be permitted to view the premises.

In the case of Bird v. State, 22 Okla. Cr. 264, 210 Pac. 925, this court said:

“Where, before final submission, the jury were permitted to separate, and three jurors without permission inspected the place where the homicide took place, and where the whole panel, after submission, with the consent of the court, inspected the place, such irregularity will not operate as a reversal where nothing prejudicial appears.”

If the facts revealed in the case of Bird v. State, supra, were not sufficient to bring about the reversal of that case, it is evident that where each juror, by agreement of the defendant and state and upon instructions of the court and under its direction, should be permitted to view the place where the homicide occurred, this would not be error, but would be altogether proper. In all other acts) in connection with this view of the premises by the jury there is nothing that should even create a suspicion of any wrong in connection therewith.

The defendant strenuously insists that it was fundamental error for the court to advise the jury that what they saw at the place where the homicide was committed would be evidence. This court has never heretofore passed upon that question. In the case of Starr v. State, 5 Okla. Cr. 440, 115 Pac. 356, in syllabus 11, this court said:

“Quaere;, whether a view by the jury in a criminal case of the place of the crime is the taking of evidence within the meaning of the constitutional provision conferring upon the accused the right to be confronted with the witnesses against him, or is only a means of enabling, the jury to better understand and apply the evidence presented in the court.”

Thus leaving the question undecided whether the au-toptic preference of the place of the crime was evidence.

Wigmore on Evidence, volume 2, § 1168, (3), on page 1372, says:

“The suggestion that, in a view or any other mode of inspection by the jury, they are merely 'enabled better to comprehend the testimony,’ and do not consult an additional source of knowledge, can be easily shown to be simply not correct in fact. The following passages well expose the fallacy of the notion that the jury’s view is not an obtaining of evidence, in the sense of consulting additional sources of knowledge.”

And on page 1373 says:

“The theory that a jury’s view does not involve the obtaining of evidence has come before the courts for consideration in many cases involving the propriety of instructions to juries and the weight to be accorded by juries to witnesses’ testimony; and, in spite of some favoring precedents, it has'in most jurisdictions been repudiated.”

In support of this doctrine Wigmore quotes the following cases: People v. Milner, 122 Cal. 171, 54 Pac. 833; Peoria, A. & D. R. Co. v. Sawyer, 71 Ill. 361; Maywood Co. v. Maywood, 140 Ill. 216, 29 N. E. 704; Lanquist v. Chicago, 200 Ill. 69, 65 N. E. 681; Kansas C. & S. R. Co. v. Baird, 41 Kan. 69, 21 Pac. 227, and many cases from other states. Mr. Wigmore does not attempt to define what kind of evidence autoptic proference would be, but merely lays down the rule that it is evidence. Under the Constitution and statutes of this state, a view of the premises by the jury in a criminal case is not a receiving of evidence by the jury in the ordinary sense, as used in the Constitution and statutes of this state. It is a special kind of evidence, generally referred to by all the authorities as autoptic proference, and is permitted to go to the jury only in the special manner provided by the statutes, for the purpose of enabling the jury to better understand and apply the evidence introduced in the ordinary manner, and it may also enable the jury to be able to determine the accuracy of the information of witnesses and the credibility of their testimony, by comparison of the facts testified to with the facts disclosed by the examination of the place where the offense was committed.

A witness might testify that there were no windows in the north side of the state capitol at Oklahoma City. A visit to the capitol and an inspection of the north wall of the building would reveal that the witness was either mistaken or testifying to an untruth, and in that kind of a case a visit to the place and an examination thereof would most certainly be evidence, not, however, being the kind of evidence included in the common use of the term in the Constitution and statutes of this state. The defendant cannot be heard to object that it was receiving evidence outside of the place where the court is held, or that the defendant is deprived of his constitutional right of confrontation, nor yet in the sense that it is evidence that cannot be incorporated in the record on appeal. The courts of the United States and England have long since almost unanimously settled these questions in favor of the state, and held that the evidence produced by autoptic proference was not subject to any of these objections. The contention of the defendant that the view of the premises, therefore, was not evidence as defined in this opinion, was without merit, and the court committed noerror in telling the jury that what they saw at the place where the crime was committed was evidence.

The defendant next complains of instruction No. 10, which instruction went to the question of impeaching the testimony of a witness in the case. There was some evidence offered by the defendant to impeach the testimony of the witness Ben C. Axley for truth and veracity. When evidence has been introduced to impeach the testimony of a witness, that does not necessarily mean that a person cannot and will not tell the truth, and especially in matters in which he has no personal interest, and it is not the law of this state that, because a person has been impeached in this way, therefore the jury cannot consider his testimony at all. This court has repeatedly held that the credibility of the witnesses and the weight and value to be given their evidence is for the determination of the jury. The jury, having heard the evidence of the witness Axley, noted his demeanor upon the witness stand and his manner of testifying, were in the proper position to determine the truthfulness of his evidence, and they were not bound to reject his testimony because the defendant had offered impeaching testimony. Especially is this time in the case at bar, because Axley was corroborated in some of his material statements by a witness whose evidence the defendant did not attempt to impeach. It was not necessary to give this special instruction, as the general instruction on the credibility of the witnesses and the weight to be given their testimony correctly stated the law of the case. The eminent trial judge, apparently in his desire to safeguard the rights of the defendant, gave the instruction complained of. We are unable to see bow the rights of the defendant could have been prejudiced in any manner by giving this instruction.

Finally, the defendant complains of the misconduct of the assistant county attorney, Mr. Coffey. The defendant first complains that it was misconduct for the assistant county attorney to refer to the fact that the defendant had failed to take the stand and testify in his own behalf. The defendant’s attorneys objected to the statement of the assistant county attorney with reference to the defendant not having taken the witness stand, and asked the court to instruct the jury not to consider it, and the court said:

“Let the record show that the court overrules the objection upon the ground and for the reason that counsel for the defendant in his argument stated to the jury that the reason the defendant was not placed upon the stand was for the reason that he had made a statement, introduced in evidence, and that that statement was the truth, and for that reason the objection is overruled.”

The record does not contain the argument of counsel for defendant, but this court, in the case of Moody v. State, 13 Okla. Cr. 327, 164 Pac. 676, in syllabus 6 said:

“Where the argument of the county attorney is not taken down in shorthand and embodied in the record in full and a dispute arises as to what was said in argument, this court is bound by the finding of the trial court recited in the record as to what occurred.”

The same rule would apply to the address made by the attorney for the defendant. There appears to be no dispute about the fact that the attorney for the defendant first spoke of and gave reasons for the defendant not having. been placed on the stand as a witness in his own behalf.

In tbe case of Soper v. State, 22 Okla. Cr. 27, 208 Pac. 1044, syllabus 2, this court said:

“Where the defendant’s attorney in his argument to the jury first mentions the subject and attempts to explain why the defendant did not take the stand in his own behalf, to that extent the defendant waives his constitutional and statutory right protecting him from comment upon his failure to testify. Where such discussion is invited by defendant or his counsel, the defendant has no cause of complaint.”

In the case of Cherry v. State, 33 Okla. Cr. 37, 241 Pac. 833, syllabus 2, this court said:

“It is not reversible error for counsel for the state to comment on the failure of a defendant to testify, where defendant’s counsel himself first comments on the fact that the defendant did not take the stand.”

See, also, Copus v. State, 26 Okla. Cr. 366, 224 Pac. 364, syllabus 3; Sanditen v. State, 22 Okla. Cr. 14, 208 Pac. 1040; Payne v. State, 21 Okla. Cr. 416, 209 Pac. 334.

Counsel for the defendant having explained to the jury the reasons why the defendant did not take the witness stand in his own behalf, the county attorney had a right to discuss the failure of the defendant to take the stand, and the court did not err in overruling the objections of the defendant.

The defendant complains of other acts of misconduct of the assistant county attorney in the argument of the case. In the case of Halsey v. State, 42 Okla. Cr. 221, 275 Pac. 405, this court said:

“Where certain remarks of the county attorney' in argument to the jury are not such as are made grounds for reversal by statute, and there was no motion to exclude such remarks from the consideration of the jury, nor any ruling of the trial court adverse to the defendant to which an exception was saved at the time, there is no question presented for this court to consider.”

From an examination of the entire record, we cannot say that the remarks of the assistant county attorney were prejudicial, and, not being such grounds as are made reversible by statute, the court did not err in overruling the defendant’s motion for new trial on the ground of misconduct of the assistant county attorney.

The defendant complains of numerous other errors, but they are without sufficient merit to justify a reversal of this case. The record discloses that a foul crime was committed, and the evidence clearly shows that the defendant was guilty of this crime. It would not be possible to try a case of this character, considering the size of the record, the length of the trial, the number of witnesses, and the zeal of counsel, without error creeping into the record. The errors complained of by the defendant are none of them of such a nature as would require a reversal of this case. The Criminal Court of Appeals never presumes error in the proceedings of a court of record. Every presumption favors regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; otherwise, the judgment of the trial court will be affirmed.

The evidence offered by the state being sufficient to support the verdict of the jury, and no fundamental errors of law appearing upon the record, the cause is affirmed.

. EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    WILL MORRIS v. STATE.
    No. A-6645.
    Opinion Filed June 22, 1929.
    (278 Pac. 401.)
    P. E. Reed and John C. Graves, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Wagoner county of manslaughter in the first degree and his punishment fixed at ,10 years in the state penitentiary. Plaintiff filed his petition in error in this court with a transcript of the proceedings attached, and raises but one question:

“That the court erred in proceeding with the trial of said cause after the attention of the court had been called to the fact that since the introduction of certain testimony by the state defendant had for the first time become aware of the fact that one of the jurors, trier of said cause, was in all probability biased and prejudiced against the defendant as set forth in the motion of the defendant to discharge the jury and declare the case a mistrial.”

During the progress of the trial the following proceeding was had:

“Court having met pursuant to adjournment and now comes the defendants Will Morris and Will Kernel and move the court to discharge the jury from further consideration of this cause for the following reasons, to wit; that the defendants and their attorneys have since noon of this day been informed and therefore state and allege that one C.. C. Capps or Coley Capps, a member of the jury trying the defendants in this cause, is the father-in-law of one French, who is one of the state’s witnesses in cause No. 1250, entitled State of Oklahoma v. Will Morris, charged with assault with a dangerous weapon with intent to do bodily harm, which said cause is set for trial immediately after the cause now pending, and that by reason of the relationship existing between the said French and said juror these defendants’ rights are prejudiced in this, that in all probability the said Capps has heard the version of said alleged assault from his son-in-law and would' therefore be biased and prejudiced against these defendants, therefore these defendants move the court to permit us to examine the juror in order to learn from him of any information that he has from his son-in-law or other person as to said last mentioned offense, and that after such question if the court be of the opinion that said juror is so biased and prejudiced that the motion of the defendants be granted. These defendants by their attorneys state that this motion is not made at this time for the purpose of evading trial but in order that justice may be done. We ask that this juror be brought in and questioned before the court either in public or in private by the court, and if it appears that said juror Capps has heard of the matters involved in said cause No. 1250 and if prejudiced thereby then that said juror be discharged and a new jury impaneled without prejudice.
“By Mr. Moss: To which motion the state objects for the reason that no relationship exists between the case now on trial and the case No. 1250 referred to in defendants’ motion, that at the time of impaneling the jury in the case now on trial the juror C. C. Capps, referred to in defendants’ motion, in answer to questions by the state and defendants touching his qualifications to act as a juror said that he knew nothing about the facts of the case now on trial; that he had not formed or expressed any opinion as to the guilt or innocence of the defendants now on trial in this case and was not biased or prejudiced, and on such' statements has been accepted as a juror by both the state and defendants; that the defendants had an opportunity to make peremptory challenges for cause which said challenges were exercised and the juror in question was not challenged by defendants and was accepted as a juror for the trial in the cause and is now a juror and a qualified juror under the law.
“By the Court: Objection is sustained.
“By Mr. Graves: The defendants each except to the ruling of the court.”

.This was a motion made in open court unsupported by any evidence or showing to support the same. The juror on his voir dire examination had answered all questions touching his competency as a juror favorably and had been accepted by the state and the defendant as a competent juror and had been duly sworn to try the case. The showing made by the defendant was insufficient to justify the court in calling in the juror to be examined.

In the first place the motion makes no charge that the juror is biased and prejudiced, and in the second place, even if the juror was related to the witness in another case pending against the defendant, there is no showing that there was any connection between these two cases, nor any showing that what the son-in-law would testify to in the other case would have any influence on the juror in this case, nor was there any showing that the juror had ever talked with his son-in-law, the witness, about the facts in the case then on trial. This court has previously held that the trial court may at any time before verdict is rendered call a juror in for examination when it is made to appear to the satisfaction of the trial judge that the answers of the juror on his voir dire were false; but we find no case holding that a statement of facts like that set out in the motion in this case, even if the same were true, would justify a re-examination of the juror or a mistrial of the cause.

In the case of Stouse v. State, 6 Okla. Cr. 415, 119 Pac. 271, this court said:

“As a general rule, a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause, which existed before the juror was sworn, but which was unknown to the accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case.”

The question as to whether a juror is competent is one of mixed law and fact, and the ruling of the trial court will not be disturbed unless it appears that the jury was prejudiced.

The motion of the defendant to call the juror in for further examination not stating facts sufficient to justify such examination, and no showing having been made to the court during the progress of the trial that the juror had expressed an opinion or was otherwise disqualified to render an impartial verdict in the case, the motion was properly overruled.

For the reason stated, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    Ex parte JOHN BROWN.
    No. A-7371.
    Opinion Filed June 22, 1929.
    (278 Pac. 671.)
    Howard F. Wilson, for petitioner.
    Edwin Dabney, Atty. Gen., and Smith 0. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

This is an original petition for writ of habeas corpus, based on the following facts, as * shown by the petition and rule to show cause why the writ should not issue:

It appears from the petition in this case that the petitioner, John Brown, a minor under the age of 16 years, was upon a complaint filed by Conception Bonilla, before Yancil K. Greer, county judge of Kingfisher county, arrested and brought before the county judge on the 30th day of June, 1928, and without aid of counsel waived a preliminary examination, and was held to answer to the district court for the offense of robbery. The clerk’s minutes show that the defendant entered his plea of guilty and was held to the district court, and bond for appearance fixed at $1,000; that the defendant stated his age to be over 17 years. The minutes of the clerk show that the county judge, sitting as an examining magistrate, advised the defendant he was entitled to 24 hours to plead, and that he had a right to counsel. No testimony was taken at the preliminary examination, and the record does not show that defendant was under oath when he made the statement, as shown by the minutes of the court, that he was 17 years of age.

The record further shows that on July 20, 1928, an information was filed by the county attorney in the district court of Kingfisher county, charging the petitioner herein with robbery, and on the 21st day of July, 1928, the petitioner was brought into court and the information was read to him, and the court advised the defendant he was entitled to be represented by an attorney, and that he was entitled to 24 hours’ time in which to plead to the information.

The record further shows that the defendant advised the court that he had no attorney and did not desire to be represented by one, and that he did not desire further time in which to plead to the information, and in open court waived further time to plead, and requested permission of the court to enter his plea to the charge in the information at this time. The record further shows the request of petitioner was granted, his plea of guilty entered, and petitioner was sentenced by the court to serve a term of 8 years at the state reformatory,, at hard labor, from the date of his delivery to the warden. The record shows "the receipt of the petitioner by the warden of the reformatory.

It is averred in the petition that John Brown, at the time he entered his said plea of guilty, was of. the age of 15 years. It is further averred his imprisonment in the state reformatory at Granite is unlawful, and that said restraint is illegal, for the reason that the district court of Kingfisher county had no jurisdiction at the time the judgment was pronounced and said sentence imposed on the said John Brown, and that no investigation was ever had before the county judge, Vaneil K. Greer, sitting as a juvenile court, concerning the charge against him before the information in the district court of said county charging him with said crime was filed; that he was arraigned before the said county judge, sitting as an examining magistrate, on the 29th day of June, 1928, and waived preliminary hearing before said judge, and thereafter on the 21st day of July, 1928, in the district court of Kingfisher county, the said petitioner entered his plea of guilty to the said information theretofore filed against him, and was by said court sentenced to imprisonment in the Oklahoma state reformatory, at Granite, for a term of 8 years at hard labor.

Petitioner further alleges that his restraint is illegal and unauthorized, because at the time of the said conviction he was under the age of 16 years, and no hearing was had by the juvenile court of Kingfisher county, as provided by sections 8070 to 8084 of the Oklahoma Statutes, 1921, and no determination was had by the said juvenile court that the said petitioner knew the wrongfulness of his acts. And petitioner further alleges that, by reason of the failure of the court to determine this fact, the said district court of Kingfisher county did not acquire jurisdiction over the petitioner and was without authority to sentence the said John Brown to imprisonment.

In habeas corpus proceedings jurisdictional questions only are to be considered. A writ cannot be invoked for the purpose of reviewing the actions of courts or officers, where they act within their jurisdiction, nor for the purpose of correcting irregularities or errors, or as a substitute for an appeal from a judgment of conviction. To entitle the petitioner to be released from imprisonment upon a writ of habeas corpus, it must appear that the court issuing the commitment has acted entirely without jurisdiction.

In this case the age of the petitioner is not disputed, and the only effort to dispute his age is a notation in the minutes of the clerk of the examining magistrate that the defendant stated he was 17 years of age. The question to be determined upon the undisputed evidence in* this action is: Can the defendant, under the age of 16 years of age, make a statement binding upon him, and thereby waive his right to the statutory provisions requiring a defendant under age of 16 years to have a hearing before a juvenilé court, to ascertain whether or not he understands the wrongfulness of his acts. The county judge, sitting as a magistrate, in making his finding did not find the petitioner was more than 16 years of age. The Attorney General has filed a demurrer to the petition and alleges :

“That the petition and the exhibits thereto attached and made a part thereof show upon their faces that the said petitioner is not entitled to the relief prayed for.”

With this contention we cannot agree. The petition and exhibits attached thereto state sufficient facts to entitle the petitioner to the writ, and the demurrer is overruled. It has been held by this court that under the statute (sections 8070-8084, Comp. St. 1921), relating to juvenile courts and their jurisdiction and control over delinquent children, a child under 16 years of age cannot be guilty of the commission of a crime, except in cases wherein it is shown and determined by the juvenile court of the county wherein the crime is alleged to have been committed that such child knew the wrongfulness of his acts, at the time they were committed, and such a determination is a prerequisite to the jurisdiction of the district court to try a child under the age of 16 years upon an information charging a felony. Ex parte Bonitz, 30 Okla. Cr. 45, 234 Pac. 780.

In this case it is conceded that no proceedings were had before the juvenile court of Kingfisher county. The record shows conclusively that at the time the petitioner was arraigned he was under the age of sixteen years, and in this proceeding his age is not denied. In view of the fact that no proceeding was had before a juvenile court of Kingfisher county, it follows that the district court of Kingfisher county was without jurisdiction to render the judgment and sentence under which the petitioner is now held in custody by the warden of the state reformatory. We therefore conclude that the judgment and sentence of the district court of Kingfisher county in this case is illegal and void, and that the execution of the judgment and sentence deprived: petitioner of his liberty without due process of law.

It is therefore adjudged and ordered that the petitioner, John Brown, be discharged from imprisonment under said judgment and sentence, and that he be returned to the custody of the sheriff of Kihgfisher county to abide the action of the juvenile court of said county.

It is further ordered that said warden, in whose custody the prisoner is held, deliver him to the custody of the sheriff of Kingfisher county, who shall keep him in custody until discharged by law.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    CHARLES CARTER v. STATE.
    No. A-6312.
    Opinion Filed June 22, 1929.
    (278 Pac. 398.)
    For former opinion, see 41 Okla. Cr. 253, 273 Pac. 376.
   DAVENPORT, J.

On petition for rehearing. Sentence modified by reducing the term of imprisonment from ten years to six years.

Petition for leave to file second petition for rehearing denied.

EDWARDS, P. J., and CHAPPELL, J., concur.