text:
    DELLA HUBBARD v. STATE.
    No. A-9722.
    April 2, 1941.
    (112 P. 2d 174.)

      See, also, 64 Okla. Cr. 18, 76 P. 2d 915.
    A. C. Brewster, of Pryor, for plaintiff in error.
    Mac Q. Williamson, Atiy. Gen., and Owen J. Watts, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

Defendant, Della Hubbard, was charged jointly with Roy Kinion with the murder of Ralph Hubbard, the deceased husband of defendant, in Mayes county, Okla., on the 4th day of December, 1937; was tried, convicted, and sentenced to serve a term of life imprisonment in the penitentiary, and has appealed.

Numerous errors are assigned by defendant. Careful reading of the record reveals the necessity for consideration of but one of the errors assigned. In defendant’s brief two- questions are asked: (1) Was there a crime committed? and (2) did Della Hubbard commit it?

If these questions are properly answered, it then becomes unnecessary to refer to' other alleged errors. This requires a reference to' the facts as revealed by the record. The defendant, Della Hubbard, was jointly charged with Roy Kinion by information by the county attorney of Mayes county with having on the 4th day of December, 1937, murdered Ralph Hubbard, her husband. A severance was granted, and the defendant, Della Hubbard, was tried, convicted, and sentenced to serve a life term of imprisonment in the penitentiary. The record reveals that thereafter her codefendant, Roy Kinion, was tried and a verdict of not guilty was returned by the jury.

The facts are that the deceased and defendant lived on a small farm in Mayes county. That Roy Kinion was a nearby neighbor. He was married and was living with his wife. Roy Kinion and the defendant began a series of secret meetings and the exchanging of burning love letters. It is useless to encumber this record with their contents. They were such as two- ardent lovers in their most thoughtless moment would write. Most of these letters were written in the summer of 1937 and three were written in November and December, 1937, prior to the death of Ralph Hubbard in December, 1937. A secret place under a rock was where the letters were placed, and a nearby haystack was the meeting place of this couple. The record reveals that defendant admitted having had sexual intercourse with Roy Kinion. On Saturday, December 4, 1937, deceased and defendant returned to their home from the town of Strang in Mayes county at about 4 p. m. This was the last time deceased was seen alive by anyone other than his wife and codefendant, Roy Kinion. On Monday morning, December 6, 1937, at some time between 10 and 11 o’clock a. m., his body was found in a small stream of water about 200 yards from his home. He was found in this small creek lying face down with his head turned slightly to the right. He was lying on his face and on his stomach with his hands and arms outstretched. The ice was frozen around his body. There were several abrasions on his body and also bruises. There was also a discoloration on his left eye and back of his ear, and an abrasion on his chin and a scratch or two on his face. His face was partly buried in the water of the creek and the evidence of the doctors was that he had in their opinion died from drowning after being struck with some instrument and rendered unconscious. There was also mud on the back of his jumper and a number of witnesses testified that it was a handprint in this mud, but nothing to indicate by whom it was made or to indicate it was the hand of a female person that made it. Cockleburs were found upon the clothing worn by deceased and in his hair, and tracks were seen upon the bank near where the body was found. There was no evidence that these tracks were that of a female person. The shoes of the deceased were clean.

The evidence further reveals that about 50 steps from where the body was found, the cockleburs were broken down and that a path which led to where the body was found indicated that it had been dragged from this spot to where it was found in the small creek. His cap was also found. Up to this point, the only evidence connecting the defendant with this matter was that, when the body of deceased was taken from the creek, a blue button fell to the ground either from the pocket of deceased or from his clothing. This button was identified as coming from the coat of the defendant, and she admitted that it had, but her explanation of this circumstance will be hereafter referred to.

A coroner’s inquest was held on the creek bank where the body was found and many persons were present to view the body. Much of the testimony in the record is from these witnesses and it is not material to the issue here involved. There, is nothing, in any of this testimony that either directly or indirectly connects this defendant with the murder other than has been heretofore stated.

The defendant made three different statements. These statements are here copied. They were somewhat conflicting, but give the facts. The first was made at the office of the county attorney on Wednesday, December 8, 1937. The second was-made at the Green Funeral Home in Pryor on December 9, 1937, when defendant was shown the body of her deceased husband, and the third was made at her home on December 11, 1937.

The first statement was as follows:

“Statement taken from Della Hubbard this 8th day of December, 1937. By H. A. Kehn, County Attorney.
“Q. Your name is Della Hubbard? A. Yes, sir. Q. Have you consulted a lawyer since this trouble came up? A. No, sir, I just talked with the sheriff. Q. Now, Della, I want to ask you some questions, but it is my duty to tell you that any answers you might make may be used against you if this case ever comes to trial. And now, with that in view, I want to- ask you some questions. A. All right,-— Q. How long have you and Mr. Hubbard been married? A. Ten years. Q. Do you have any children? A. No, sir. Q. When did yo-u last see Mr. Hubbard alive? A. Sunday morning at 11 o’clock. Q. Where was he then? A. Cutting wood. Q. How far is that from the house? A. Bight close to the kitchen. Q. Did he cut any wood? A. He cut four sticks and came in and built up my fire so that I could get my mince meat finished. Q. You say that was on Sunday morning? A. Yes, sir. Q. When did you first become uneasy about him. A. Between 2 and 3 o’clock. Q. That same day? A. Yes, sir. Q. You had been having domestic troubles, hadn’t you? A. No, sir. Q. Was he not jealous of some one? A. No-, sir. Q. Didn’t he accuse you of being intimate with some one? A. No, sir. Q. He never did accuse you of that? A. No, sir. Q. From where the body Avas found, ho-AV far was it to the house? A. I don’t know how far it was. Q. About how far from the hat was the body? A. I didn’t see the body only at a distance, and I never seen the hat at all. They showed me the things they took from his pockets. Q. Della, I am going, to tell you what we know about this case. That man was not at home Sunday morning; he was not there Saturday night. It was cold Sunday, wasn’t it? A. Yes, sir. Q. The ground was frozen, wasn’t it? A. Yes, sir. Q. Then, did you notice those tracks around there? A. No, sir. Q. Why is it that you became uneasy so soon after you missed him? A. I noticed that he had quit chopping wood, and I thought he had gone up to the corner to get the paper. I gave him plenty of time to- get back and when he didn’t come back, I went up to- Ed Kinion’s and asked if he had been there. Q. Do you know Roy Kinion? A. Yes, sir. Q. Have you ever received any letters from him? A. Yes, sir. Q. Have you got those letters or notes? (Question to Walter Panter). (Sheriff hands letter and notes to county attorney, H. A. Kehn.) Q. I will hand you this letter or note marked State’s Exhibit ‘A’, and ask you if you ever saw that before? A. Yes, sir. Q. Do you know who wrote that? A. Yes, sir. Q. Who- wrote that? A. Roy Kinion. Q. When did you get that? A. I don’t remember just what night. One night last week. I believe it was on Friday night of last week. Q. How did you get this letter through the mail? A. I got it from under a rock by a post. Q.. Did you answer that letter? A. Yes, sir. Q. I will hand you State’s Exhibit ‘B’, and ask you if you ever saw that before? A. Yes, sir. Q. Who- wrote that? Á. Roy Kinion. Q. When did you get that letter? A. I don’t know, but sometime last summer. Q. You got it before this other letter? A. Yes, sir. Q.-Is that in the same condition that it was when you got it? A. Yes, sir. Q. Was this mark on there when you got- it? A. Yes, sir. Q. What does that mark mean, do- you know? A. No-, sir. Q. I will hand you State’s Exhibit marked ‘O’ and ask you if you ever saw that before? A. Yes, sir. Q. Who wrote that? A. Roy Kinion. Q. Do you know when you got that- — -did you get it recently? A. No-, sir, I have only got three recently. Q. How did you get that one? A. Just like I got the others. Q. I will hand you Exhibit ‘O’ and ask you if you ever saw that before? A. Yes, sir. Q. Who wrote that? A. Roy Kinion. Q. Did you get that the same way? A. Yes, sir. Q. I will hand you State’s Exhibit ‘D’ and ask you if you ever saw that before? A. Yes, sir. Q. Who wrote that letter? A. Roy Kinion. Q. Did you get that in the same way? A. Yes, sir. Q. I will hand you this exhibit marked ‘E’, and ask you if you ever saw that before? A. Yes, sir. Q. Did you get this in the same way? A. Yes, sir. Q. Do- you know anything about the time you got this? A. No, sir, I haven’t got but three that was wrote lately. Most of them was wrote last summer. Q. I will hand you State’s Exhibit ‘F’ and ask you if you ever saw that before. A. Yes, sir. Q. Who- wrote that? A. Roy Kinion. Q. Did you answer all of these notes? A. Yes, sir. Q. I will hand you State’s Exhibit ‘G’ and ask you if you ever saw that before? A. Yes, sir. Q. Who' wrote that? A. Roy Kinion. Q. Do- you remember when you got that letter? A. No-, sir. Q. Was it recently or sometime ago? A. No, I haven’t got but three recently. Q. The first one I handed you is one of them? A. Yes, sir. Q. I will hand you State’s Exhibit ‘H’, and ask you to look at it and tell me if you ever saw that before? A. Yes, sir. Q. Who wrote that? A. Roy Kinion. Q. Did you answer that? A. Yes, sir. Q. When did you receive that? A. Last summer. Q. I will hand you State’s Exhibit ‘I’, and ask you if you ever saw that before? A. Yes, sir. Q. Who- wrote that? A. Roy Kinion. Q. Do you know when you got that, was it recently? A. Yes, sir. Q. When did you get that? A. I think I got it Friday night. Q. Of last week? A. Week before last. Q. That would have been on the 3rd? A. Yes, sir. Q. That is Friday before he disappeared on Sunday? A. Yes, sir. Q. I will hand you State’s Exhibit ‘K’, and ask you if you ever saw that before. A. Yes, sir. Q. Who-wrote that? A. Roy Kinion. Q. When did you get that? A. Last summer. Q. Did you answer that? A. I answered most of them, but not all of them and I don’t remember if I answered that one or not. Q. Did you meet him occasionally? A. He came down there a few times. Q. Where did you meet him? A. He came to- the house. Q. Was Mr. Hubbard there? A. Sometimes he was and sometimes he came when he wasn’t there. Q. I will hand you State’s Exhibit ‘L’, and ask you if you ever saw that before? A. Yes, sir. Q. Who is that? A. Roy Kinion. Q. I will hand you State’s Exhibit ‘M’, and ask you what that is, A. It is a picture of Roy Kinion. Q. What place is that? A. Somewhere in Colorado. Q. Was he there? A. Yes, sir. Q. When was he there? A. When that was made, I don’t know when. Q. I will hand you State’s Exhibit N’, and ask you if you ever saw that before? A. Yes, sir. Q. Who wrote that? A. Roy Kinion. Q. This says Thursday night —when was that, last Thursday? A. Yes, sir. Q. Where did you find this ? A. Under a rock by a post. Q. Did you notice there is a bottle there in that last room of your house with some kind of liquid in it? A. My husband had some gin that his brother brought him from California. Q. Did you have that bottle? A. No*, sir, Q. Did you ever drink any of it? A. I tasted of it when my brother-in-law brought it. Q. What is his name? A. Milford Stanford. Q. What was your maiden name? A. Bradley. Q. Where did you live before coming to Strang? A. In Missouri. Q. Have you been married before? A. No, sir. Q. Where did you first meet Mr. Hubbard? A. In Strang. Q. How did you happen to be there? A. We moved there from Missouri. Q. When did you move there? A. In 1914, I think it was. Q. Did your father run a livery stable there? A. My grandfather did, not my father. Q. Your husband knew about this feeling between you and Roy Kinion, didn’t he? A. If he did he never mentioned it to* me. Q. Where were you on Friday night? A. At home. Q. Where were you on Saturday night? A. At home. Q. Didn’t you talk to somebody about going to* a dance? A. My husband was teasing Clint Watkins, but we didn’t go*. Q. Were you in Strang Saturday? A. Yes, sir. Q. What time did you go* there? A. Between 1 and 2. There is a drawing there on Saturday at 1:30, and we got there for the drawing. Q. What time did you leave town? A. Between 4 and 5. Q. I wish you would tell me the truth about this. There is some of these things that just couldn’t be true. A. Well, I told this man that investigated it the truth, and I will tell the truth now if they hang. me. Q. All right, just go* ahead and tell me all about it. A. Well, that fellow came down to my house about two* years ago— Q. Do you mean Roy Kinion? A. Yes. He brought a bottle of homebrew and he set it on the table. I was in the bedroom sewing and he came in and set down on the bed and reached his arm aronnd like he was going to put it around me — ■ Q. Where was your husband? A. In the field. Q. What time was that? A. At about four o’clock. There was a stick of wood lying there that I kept the window up with, and I picked it up and told him, told him if he didn’t act right I would knock him in the head with it. He began tO' tell me how much he loved me and how long he had loved me, and things just lead on and just went from that on. Q. Hoav long had you known him? A. Ever since I was small. I had knoAvn him ever since I had been married. Q. And still after that you ansAvered his letters and everything after you had run him off Avith a piece of stove Avood, and you have met him at night, haven’t you? A. He had not been writing letters then. When he would come, he would always come in the daytime except one time last August he came at night when my husband was aAvay. Q. He came at night then? A. Yes, sir. Q. Did he come to your house? A. Once he did. Q. But you met him outside your home several times? A. I met him two times. Q. Did you ever have intercourse with him? A. Yes, sir. Q. You know where his cap was found? A. No, sir. Q. Didn’t Jess McCreary show you where his cap was found the other day when we were there? * * Q. But when he left, you didn’t hear any commotion. A. No, sir. Q. You didn’t see anybody? A. No, sir, I was busy with my mince meat because we were getting ready to move. I didn’t finish about those notes. Q. What further do you want to say about them? A. Well, his wife got on to us writing and she came down there and got on me, and then he came down and asked me what we were going to do about it. He came doAvn that night. Q. I will hand you State’s Exhibits ‘A’, ‘J’ and ‘N’, and ask you if those are the ones you received recently? A. Yes, sir. Q. State’s Exhibit ‘N’ is the one you got on Thursday? A. Yes, sir, it was put there Thursday. Q. And you got it Friday? A. Yes, sir. Q. When did you go out and look for these notes? A. When I was going to the mail box, but he changed places after his wife caught up with us and started putting them over in onr place. Q. How do yon know that he changed places? A. He told me. Q. Then you have seen him personally recently? A. Not since the first week in August, only just to speak. Q. Then Roy Kinion is a married man? A. Yes, sir. I didn’t want to start that up again because I knew that it would just cause trouble. Q. When was it his wife got on you? A. Last summer, in August sometime. Q. Didn’t you and your husband have several arguments and discussions about, your being intimate with this man? A. No, sir; if he even knew, he never mentioned it to- me. Q. Just what is your theory about this? How do- you think he came by his death. A. I believe he lost his mind or that aspirin he took made him crazy. Q. How do you account for those bruises on his head and face? A. Í didn’t see them. Q. He was bruised? A. Well, he was hit then, unless he made them when he fell. Q. Sheriff, do- you know of anything else? By Mr. Panter, Sheriff: Q. When did you get this note that is marked State’s Exhibit *F’? A. Last August. By H. A. Kehn, County Attorney: Q. You say now that all these except these three were received in August? A. Not all in August, but during, the summer. Q. Do you know about how long it was during the time that he didn’t write any notes? A. From August to- the first of December. Q. These notes that you have identified were all written in December? A. I got one of them in November and the other two- in December. Q. Who- thrashed your grain? A. Raymond Templeton. Q. What day and month was that? A. It Avas along toward the last of July. I don’t know the exact day. Q. And you and Roy had ceased being friendly then? A. Yes, sir, that was when we quit. Q. Was that before you thrashed? A. After. Q. Didn’t Roy and your husband have trouble while thrashing? A. No, it was after. Q. What did they have trouble about? A. Roy came down there drunk and jumped on Ed and my husband. Q. What did he jump on them for? A. It was about some tale that Ed told. He came over from the river, his wife said, and he jumped over the fence and called them both a son-of-a-bitch. Q. That was Roy? A. Yes. Q. Were you mixed up in that? A. I didn’t know what was told until aftenvards. Q. Did you ever meet Roy over there
by the straw stack? A. Yes, sir, twice. Q. When was that? A. In August. Q. Was it daytime or nighttime? A. Nighttime. Q. Where was your husband at these times? A. He was gone to hunt a place for ns to move. Q. Did you write these notes between times? A. Yes, sir. Q. How did Eoy know your husband was gone? A. My husband come to Pryor with him. Q. He came to town with Eoy? A. Yes, sir. Q. Where was he going? A. To Collinsville, Okla. Q. Did he stay all night? A. He stayed a week and during that week Eoy met me frequently and when he came back Eoy asked me what we were going to do. Q. Was that at night too? A. Yes, sir. Q. What was the idea of meeting at the straw stack? A. That was where he wanted to meet me. He was afraid some one would see us. Q. Had he been coming to your house? A. He had been there twice. Q. Did Eoy ever buy you a pair of slippers and put them in your egg basket? A. Yes, sir. ,Q. Did he ever give you any money? A. No, sir. Q. He was kind a crazy about you, wasn’t he? A. He said he was. Q. And he took desperate chances to see you, didn’t he? ' A. Yes, sir. Q. What do you think of Eoy? A. I don’t think anything of him. I just thought that I did, but I know now that I didn’t. Q. Do> you tell us now that you and your husband were getting along and not having any quarrels? A. I guess we had spats, but they were over in 30 minutes. I had a spell of sickness and everybody said we were separated, but my husband and brother came after me the next Sunday. Q. On the day before you say he was killed, who rode to town with you? A. No- one. Q. Who rode home with you? A. No one. Q. You and him were all by yourselves? A. Yes, sir. Q. What time did you go tO' bed? A. About 8 o’clock. Q. Did you leave the light burning? A. No, we blowed it out. Q. And there was no> light in your house from the time that you went to bed until you got up the next morning? A. No, sir. Q. Were you present when he talked to some one about going to a dance? A. Yes, sir. Q. Who was he talking to? A. Clint Watkins. Q. Now, will you tell us just what was said? A. Clint asked if we were going to Strang, to the dance, and my husband and I told him and his wife that we were going to Salina, but we stayed at home all evening. Q. Did you ever go to' any dances over at Salina? A. We went to two over there. Q. Did your husband dance? A. Once. Q. Now, on Sunday it was cold, wasn’t it? A. Yes, sir. Q. It didn’t thaw any, did it? A. Not much. Q. The sun was not shining, was it? A. No-, sir. Q. So if there were any tracks there toward the creek they were made before Sunday? A. He was home until 11 o’clock. Q. Who did you first see about your husband being absent? A. I went to the paper box first and then to Roy Kinion’s, and asked if he was there. Q. Did you go in? A. No, I just honked the horn and he stuck his head out the door and I hollered and asked him if Mr. Hubbard was there, and he said no. .Q. What time was that? A. It was between 2 and 3. Q. Was that on Sunday afternoon? A. Yes, sir. Q. And he was going to cut wood there in the yard? A. Yes, sir. Q. He was not going out in the field? A. If he was going off the place, he didn’t say anything' about it. Q. Did you have a car? A. Yes, sir. Q. What has become of the car? A. It is there at home. They used it when they searched for him on Sunday night. Q. What kind of a car is it? A. It is a Chevrolet. Q. It is a touring? A. No, it is a coupe. Q. Do you drive a car? A. Yes, sir, my husband, couldn’t drive. Q. Did you ever drive in this car with Roy Kinion? A. No, sir. Q. Did you ever say anything to Mr. Hubbard about getting a divorce? A. No, sir. Q. Did he ever threaten you with a divorce? A. No, sir. Q. When before Sunday were you ever down there in that field? A. On Tuesday when they were loading the cattle. Q. Did you help load them? A. No, sir. Q. What kind of shoes did you wear down there? A. Oxfords.”

Questions by H. A. Kehn, County Attorney:

“Q. What day was that? A. On Tuesday before he was killed. Q. How many cattle did he load? A. One cow and two1 heifers. Q. How much did he get for them? A. $112. Q. What did he do' with that money? A. He paid part of it on debts. Q. Who did he pay the debts to? A. First National Bank, and he owed $15 to Mr. Watkins, and he sent to Southwest City for some flour and dry goods and deposited some in the bank. He paid some on the ear and he had to- pay for some work done on the car. Q. When was that? A. I believe it was on Wednesday before we butchered. Q. Was that last week? A. Yes, sir. We butchered on Thursday. Q. Well, how many hogs did you butcher? A. Two. Q. Where is that meat now? A. In a box in the smokehouse at home. Q. Who is taking care of the stuff out there? A. Ed Kinion was. Q. Did he have any other money from any other source at the time he was killed? A. Not that Í know of. We didn’t have any income at all except from the cream, and that wasn’t very much. Q. When you went down there where they were loading the cattle, did you wear boots and overalls? A. I had on overalls, but I had on my oxfords and overshoes. Q. Where did you keep these notes? A. In the bedroom up over the door. Q. Did you keep them in this box? A. Yes, sir. Q. Did he ever ask you what was in that box? A. I don’t know that he ever seen it. Q. Was it hidden? A. Yes, sir, Q. Where was it hidden? A. Down behind the door facing. Q. Your given name is Della? A. Yes.”
“I, Della Hubbard, having had the above questions asked me and having voluntarily answered them, and without promise of reward or leniency of any kind and I have made this record in the presence of H. A. Kehn, county attorney, Walter Pan ter, sheriff, and Lillie Shearer, stenographer.”

The second statement, December 9, 1937, was as follows :

“At Green’s Funeral Home.
“Those present: H. A. Kehn, county attorney, B. F. Wilson, deputy sheriff, Walter Panter, sheriff, O. S. Brant-ley, Mr. and Mrs. Green and Lillie Shearer, stenographer.
“Confession
“I, Della Hubbard, wife of Balph Hubbard without promise of reward, without any promises having been made to me, but that the truth may be known and justice done I hereby in the presence of the said parties make the following voluntary statement:
“Q. When did Mr. Hubbard meet his death? A. Saturday night. Q. About what time? A. After 10. I don’t say just what time. Q. Who was over there? A. Roy Kinion. He just came over there and called my husband out. I just supposed they were out there talking. I didn’t go out, I heard them then, sounded like they were fighting. I heard him groaning and I ran out by the barn. He had killed him. I guess he used a post. It was about 500 yds. from the house. I never went near the body after he was killed. I went back to the house. I stayed there all night by myself. He came back and told, said he had killed him and told me not to chirp it. He never came in house. He said he throwed him in the branch. I never told until the next day. I haven’t seen him since.
“Dated this 9th day of December, 1937.
“Mrs. R. W. Hubbard.”

The third statement was as follows:

“At the Hubbard home, dated this 11th day of December, 1937. Those present: H. A. Kehn, county attorney, Walter Panter, sheriff, B. F. Wilson, deputy sheriff and Lillie Shearer, Steno.
“We got home from town Sat. evening about 4 o’clock. He went and got the cows as soon as we got home, then we milked, then ate supper about 6:30 o’clock. We went in the front room and sat down to read the newspapers. We read until about 8 o’clock, then we went to bed. Someone come up about 11:30. I didn’t see the person but I heard the voice — called ‘Hub’ — came up to the porch and told him to come out. He got up and dressed and put his coat and wraps and went around the southeast corner of the house and after they was gone awhile I heard a noise, hollered, and I jumped. I ran to kitchen door, they sounded like they was south of the house. I jumped in my clothes and ran to the corner of the barn. I seen the bulk of somebody and I seen who it was. It was Roy Kinion. I asked him what was the matter and he said, ‘By God! I killed Hub and you better not chirp it.’ It was about 15 minutes] after they left before I heard him holler. He, Roy, went on away and I thought he was mad at me too. I never went down there just then, bnt after he left I went down there and looked at the body of my husband but I was afraid to do anything. He was here about 45 minutes. The lights were not on when he came, but I lit the lamp and left the light burning about two hours. He had told me before that ‘by God’ he wouldn’t live always without me. That was in July about thrashing time. On the next day between two and three o’ clock I went up to the comer and asked Boy Kinion if he was there. Boy came to the door and said he was not there, then I went to Ed K. and he went with me to Kaylor’s, and Boy came back from the corner in the car. We drove the car there where the wagon is and stopped. He made the first round west of the straw stack across the branch and come back to the fence right close and come on toward the house. He crossed south and west 30 yards from the body. Ed Kinion went down the branch and climbed over the fence about 15 steps from the body. He was going down the branch. I was standing by the straw stack. They didn’t find him, so come back to the car, so they decided to go west and stayed awhile, then they came back. When they got back John Kinion was here. Then they went to Nelson’s to see if he had been there. When they all come back it was dark and we went to town to call the O. C. C. boys. When I first went over there to Boy K. he just stuck his head out and said no. We went on up to Kaylor’s. Boy was standing down at the corner and he got in the car and we all came back down here to the house.
“I have on this the 11th day of December, 1937, made the above statements in the presence of Walter Panter, sheriff, B. F. Wilson, deputy sheriff, H. A. Kehn, county attorney and Lillie Shearer without any promise of reward and without any threats or compulsion on the part of anybody but only that the truth may be known and that the guilty party may be punished.
“Della Hubbard.”

With the review of the evidence and the statements of the defendant as heretofore given, the answer to' the first question is that there cannot be much of a doubt that the deceased Ralph Hubbard was murdered and that his body was placed in the creek and his death caused by drowning. We shall now analyze the evidence as shown by the record before attempting to answer the second question. In this connection we shall keep in mind several well established rules of law.

First, the fact that defendant was convicted and that her codefendant, Roy Kinion, was afterwards acquitted is no justification under the law for the reversal of the case of defendant, provided the evidence justified her conviction. Woody v. State, 10 Okla. Cr. 322, 136 P. 430, 49 L. R. A., N. S., 479; Dunn v. United States, 284 U. S. 390, 52 S. Ct. 189, 76 L. Ed. 356, 80 A. L. R. 161; Chiaravalloti v. United States, 7 Cir., 60 F. 2d 192; 22 Corpus Juris Secundum, Criminal Law, page 376, § 242.

Second, the rule that has been so often announced by this court that a case will not be reversed where there is a conflict in the evidence and the jury has passed upon the same, and that where there is any evidence to support the judgment and sentence; the same will not be set aside. Williams v. State, 63 Okla. Cr. 234, 74 P. 2d 632; Saferite v. State, 67 Okla. Cr. 229, 93 P. 2d 762; White v. State, 13 Okla. Cr. 76, 162 P. 232; Morris v. State, 67 Okla. Cr. 404, 94 P. 2d 842; Gray v. State, 66 Okla. Cr. 211, 90 P. 2d 686.

Third, the rule that Avhere the evidence is wholly insufficient to support the judgment and sentence, this court will not hesitate to do its duty and set the same aside. Phillips v. State, 64 Okla. Cr. 454, 82 P. 2d 246; Clardy v. State, 64 Okla. Cr. 463, 82 P. 2d 239.

With these Avell recognized rules of law in mind, we shall proceed to examine the evidence in this case. We shall first consider the evidence independent of statements of defendant heretofore quoted, the letters written and her statements made to- officers before and after she was placed in jail. This evidence, which covers many pages of the record, concerns the life of deceased prior to the murder charges, and the letters that were written between defendant and her codefendant, Roy Kinion. It may be noted that in these love-laden letters there is never at any time any threat of any kind by either of the parties against the deceased. There are only explanations of a longing desire that they may not always be separated.

The other evidence concerns the search for the body of deceased, the finding of the body, the coroner’s inquest, and the evidence as heretofore related. In this evidence there is only one circumstance that tends to connect the defendant with the homicide, and that is the finding of the button from her coat that fell from the body of deceased at the time it was taken from the creek. Her explanation of this is the evidence of Mr. C. H. Hopper, a neighbor, who testified as follows:

“Q. I will ask you if Mr. and Mrs. Hubbard were at your home a short time before his death? A. Yes, sir. Q. About how long? A. Before his death? Q. Yes, sir. A. About two weeks. Q. What was the occasion of their ¡being at your home? A. Well, they come over there and played pitch awhile. Q. At your home? A. Yes, sir. Q. What time did they leave your home that evening? A. Well, about 10 o’clock; somewheres around about that time. Q. At that time — at the time they were getting ready to leave, what happened, if anything, to' a button on Mrs. Hubbard’s coat? Mr. Watts: Object to that, your Honor, as suggestive and leading. The Court: Well, it is in a way. Overruled. Don’t lead the witness. Mr. Brewster: Just give him the subject matter. Q. Did you see anything occur there, or know of anything that occurred in your presence about a button on a coat; if so, state what it was. A. Well, when they was getting ready to go home, why she was putting on her coat, and I heard something hit the floor and I said, ‘You dropped something there’, and she said, ‘Yes, it is a button off my coat.’ Q. What became of it, if you know? A. Well, she went ahead and put on her coat, and picked it up and handed' it to Ralph, and he went through the motion of putting it in his pocket. Q. Who was Ralph? A. Hubbard. Q. What pocket did he begin to put it in— in ivhat garment did he put it in? A. Why, he put it— he had on two jackets. Q. All right. Which one was on the outside? A. He put on a blue jumper over his jacket when he started home, and he went through the motions of putting it in his under jacket. Q. That is, what you call the bib overalls? Mr. Watts: We object to that, your Honor, leading1 and suggestive. The Court: Sustained. By Mr. Brewster: Q. What kind of a garment was this, you know? A. Just a jacket. Q. What side did he put it in? You motion with your hand which side1 — which side did you mean? A. Well, right — this side (indicating). Q. The right side? A. The right side. Q. Did you see Mr. and Mrs. Hubbard any more after that occasion when this 'button occurred? A. Yes, we stayed all night there the next Saturday night. Q. I mean, did you see him any more alive? A. No', sir. Q. You are not any kin to them? A. No. Q. Just friends? A. Yes, sir. Mr. Brewster: That’s all.”

In our view of this evidence and of the surrounding facts, it cannot be said that it is sufficient to justify the jury in returning a verdict of guilty against the defendant. This one slight circumstance, in the light of the above explanation, would not be sufficient to justify a conviction of the defendant for the murder of the deceased. The evidence, to be sufficient, must come from other parts of the record to which we shall refer.

The next evidence to be considered are the letters that passed between the defendant and her codefendant Roy Kinion. There were introduced in evidence 15 letters, three written by defendant and 12 by Roy Kinion. As above stated it is unnecessary to encumber this record and lengthen this opinion by quoting: them. They reveal the deepseated love between these parties, and coupled with the evidence afterwards revealed an illicit relation between them. This evidence was admissible for the purpose of showing the motive for the taking of the life of the deceased, Ealph Hubbard, but when one is charged with the ■crime of murder it is necessary to prove a conspiracy or an actual participation in the murder by the doing of some overt act by the one charged. The fact of the relationship between the defendants is not alone sufficient to convict this defendant of murder.

This court in a very early decision by Judge Richardson in the case of Moore et al. v. State, 4 Okla. Cr. 212, 111 P. 822, 824, said:

“To constitute one a party to a crime under this statute, it is necessary that such person be concerned in the commission of the offense — that is, that he either commit it or aid or abet its commission — and it is not sufficient that he merely acquiesce therein. Consenting and acquiescing are mere mental acts, which, unless communicated to the perpetrator of the offense, in no manner aid or abet him in its perpetration. TO' be concerned in the commission of crime, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. But a mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no- counsel and utters no- word of encouragement to the perpetrator, however wrong morally, does not in law constitute such person a participant in the crime. Drury v. Ter., 9 Okla. 398, 60 P. 101; Pearce v. Ter., 11 Okla. 438, 68 P. 504; White v. People, 81 Ill. 333; Jones v. People, 166 Ill. 264, 46 N. E. 723; Clem v. State, 33 Ind. 418; State v. Orrick, 106 Mo. 111, 17 S. W. 176, 329; Burrell v. State, 18 Tex. 713; People v. Ah Ping, 27 Cal. [489] 490; People v. Woodward, 45 Cal. 293, 13 Am. Rep. 176; Walrath v. State, 8 Neb. 80; Kemp v. Com., 80 Va. 443; Butler v. Com., 63 Ky. 435 [2 Duv. 435]; State v. Hildreth, 31 N. C. 440 [9 Ired. 440], 51 Am. Dec. 369; Connaughty v. State, 1 Wis. 159, 60 Am. Dec. 370.”

In the case of Drury v. Territory, 9 Okla. 398, 60 P. 101, 107, Chief Justice Burford in an elaborate opinion said:

“In order to convict the defendant of the crime charged, it was not sufficient to' prove that he was present at the commission of the crime, but, in the language of our statute, he must ‘aid and abet in its commission.’ ”

And in quoting from the case of Clem v. State, 33 Ind. 418, it was stated:

“ ‘It is plainly not the law that one can be guilty of murder, without overt act, win by neither word nor gesture has done anything to contribute to' the commission of the homicide, or to' assist, encourage, or evince approval of it at or before the fact, and of whom it only appears that he was present, and knew of the crime, and mentally approved it. The silent thought, however wicked in view of the Searcher of Hearts, is not a crime against our laws, but is left by them to another than a human tribunal.’ ”

In Drury v. Territory, supra, it is further said:

“It is not sufficient to' show that the defendant was present, and knew the offense was being committed. The proof must go further, and show, beyond a reasonable doubt, that he was participating in the homicide before or at the time of its commission. Wade v. State, 71 Ind. 535. ‘There is a plain distinction between consenting to a crime and aiding and abetting in its perpetration. Aiding and abetting are affirmative in their character; consenting may be a mere negative acquiescence, not in any way made known to the principal malefactor. Such consenting, though involving moral turpitude, does not come up to the meaning of the words of the statute.’ White v. People, 81 Ill. 333.”

In a late opinion by Judge Doyle, in the case of Smith et al. v. State, 66 Okla. Cr. 408, 92 P. 2d 582, it is said in the third syllabus:

“To constitute one a party to a crime, it is necessary that such person be concerned in its commission, and it is not sufficient that he merely acquiesces therein with knowledge that another is committing the offense.77

In this case the case of Moore et al. v. State, supra, is quoted and again approved, and the court further says:

“The last expression of this court is found in the case of Olin Anderson v. State [66 Okla. Cr. 291], 91 P. 2d 794, wherein this court held under our Code of Criminal Procedure, see. 1808, Oklahoma Statutes Annotated, title 21, section 172, that under this section, To be concerned in the commission of crime as a principal, one must either commit the crime himself, or procure it to be done, or aid or assist, abet, advise, or encourage its commission. A mere mental assent to or acquiescence in the commission of a crime by one who did not procure or advise its perpetration, who takes no part therein, gives no counsel and utters no word of encouragement to the perpetrator, however wrong, morally, does not in law constitute such person a participant in the crime.7 Citing the previous cases herein and also many authorities from other jurisdictions to' a like effect.77

See, also, Evinger v. State, 57 Okla. Cr. 63, 45 P. 2d 552.

There is not a line of evidence in the record to show a conspiracy between the defendant and her codefendant, Eoy Kinion, to take the life of the deceased.

We next come to the consideration of the three statements made by defendant and which have heretofore been quoted. Prior to the taking of these statements the defendant had been taken to within 15 or 20 feet of the body of her deceased husband soon after it was found and while lying on the bank. Her only comment at that time was with reference to the search that had been made for the body by Eoy Kinion and Ed Kinion, his brother, and herself. There was no admission on her part as to' who had. committed tbe murder.. On the 8th day of December, which would be the Wednesday following his death on Saturday night, the 4th of December, she was taken to the office of the county attorney of Mayes county. She had no attorney at that time, but was warned by the county attorney that any statement which she made could be used against her if the case ever came to trial. In this statement the defendant denied any knowledge of the murder of her husband, which in view of the statements later made and the evidence produced, was undeniably false. The statement that her husband had left the home for the purpose of chopping wood prior to 11 o’clock Sunday morning and that she had not seen him since that time was a false statement. The evidence is conclusive that the deceased was killed on Saturday night, December 4th, and was not alive on Sunday morning. But it should be borne in mind that while this is a circumstance to be taken into consideration, it should also be understood that this defendant is charged with murder and not with the making of false statements or the concealing, of a crime. This record reveals a relationship between the defendant and her co-defendant, Roy Kinion, that would in all probability cause her to make false statements to protect him the same as to protect herself. The statement deals with the letters heretofore mentioned and she identifies them as letters by Roy Kinion and admits that she wrote part of them.

The second statement, made on the 9th day of December, 1937 (Thursday), at Green’s Funeral Home, was labeled “confession.” A confession, under the law, is a voluntary statement made by a person charged with a crime or misdemeanor, communicated to another person, wherein he or she acknowledges themselves guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he or she had in it. Mays v. State, 19 Okla. Cr. 102, 197 P. 1064; Edwards v. State, 46 Okla. Cr. 77, 288' P. 359.

The statement made by the defendant in this instance does not come within this definition, for the reason that nowhere does she admit that she participated in or had anything to do with the commission of the offense. Her statement was strong evidence against her codefendant, Roy Kinion, and under this record, if he had been on trial and a conviction had been secured, his conviction would have been upheld by this court. But the mere fact that she had knowledge that a murder had been committed, and that she saw the body of deceased lying in the creek, is not sufficient to convict her of his murder. Anderson v. State, 66 Okla. Cr. 291, 91 P. 2d 794. It was outrageous to think that a wife should see her own husband murdered and not come to the rescue, and it is almost unbelievable.

There cannot be much doubt of her desire for his death under the circumstances in this case, but it can also be said there is no evidence in this record which reveals a conspiracy on her part to- commit the murder or any overt act on her part to carry it into effect. Every word in the statements may be true, yet- there is nothing therein that would cause this defendant to be guilty of murder under the law.

The third statement, made at the home of the defendant, and the evidence of the oral statements made to the officers at the time she was in jail and prior thereto, are practically the same as the second statement made by her. They are more elaborate, but in them she charges her co-defendant with the commission of this crime, but nowhere admits that she participated therein.

The only part of the record to' which we have not referred is that part which revealed that Eoy Kinion and deceased bad a fight during- the summer of 1937. This] would in no way militate against the defendant. Also, that on Sunday she offered to pay a funeral policy of her deceased husband. This could very easily be true, her knowing of his death, even though she did not participate therein. We have vainly searched this record to find evidence to support the judgment and sentence against this defendant for the commission of the crime of murder, and aside from the one circumstance of the button which came from defendant’s clothing, which is explained, and the relationship between her and her codefendant, Roy Kinion, that is all that can be found. Certainly these circumstances are insufficient to uphold this judgment and sentence of life imprisonment of this defendant. Certainly a murder has been committed, but this record does not justify this court in saying that this defendant, Della Hubbard, committed the murder or participated therein as required by the law to hold her responsible therefor, no matter how wrong her conduct.

For the reasons above stated, the judgment and sentence of the district court of Mayes county is reversed, and unless the county attorney is of the opinion he has evidence sufficient to convict defendant and to hold her for further trial, it is ordered by the court that she be discharged.

It is further ordered that the warden of the penitentiary deliver the defendant, Della Hubbard, to the sheriff of Mayes county to be held pending the further order of the district court of said county.

JONES and DOYLE, JJ., concur.


source: Caselaw Access Project

author: J ONES, J.

license: Public Domain

text:
    W. S. FARROW v. STATE.
    No. A-9761.
    April 2, 1941.
    (112 P. 2d 186.)
    Claude Hendon and Scott Hendon, both of Shawnee, for plaintiff in error.

      Mac Q. Williamson, Atty Gen., and Sam H. Latti-more, Asst. Atty. Gen., for defendant in error.
   J ONES, J.

The defendant, W. S. Farrow, was charged 'by information in the county court of Pottawatomie county, on June 5, 1939, with unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve 30 days in the county jail and to pay a fine of $100, from which judgment and sentence he appeals to this court.

Defendant assigns as error the refusal of the court to sustain the motion to suppress the evidence. The contentions are:

(1) That the affidavit for search warrant does not show probable cause.

(2) That the affidavit for search warrant and search warrant are insufficient in that they do- not show on their face that the justice of the peace was acting within his county and district.

(3) That the affidavit for search warrant was not made under oath or signed in the presence of the justice of the peace.

The affidavit in this case is from a printed form which is set out in full in Spikes v. State, 65 Okla. Cr. 254, 85 P. 2d 327. This court has held specifically that such form of affidavit states sufficient evidentiary facts to show probable cause on which to base a search warrant. See Key v. State, 69 Okla. Cr. 71, 100 P. 2d 291 (Pottawatomie County) ; Pitzer v. State, 69 Okla. Cr. 363, 103 P. 2d 109.

As to the second assignment of error, the affidavit and search warrant were both signed “W. F. Durham, Justice of the Peace.” The affidavit and search warrant are both styled: “Before me, W. F. Durham, Justice of the Peace, in and for Pottawatomie County, Oklahoma.”

The justice of the peace was called as a witness upon the motion to suppress and stated that he was “Justice of the Peace, Shawnee Township.” The testimony showed that the affidavit was presented to the justice of the peace and the warrant issued at the justice’s home.

The deputy sheriff testified that the warrant was issued out of the justice of the peace court of W. F. Durham in Shawnee.

Section 4136, O. S. 1931, 39 Okla. St. Ann. § 6, provides :

“Justices of the peace and constables shall reside and keep their offices in the district from which they are elected.”

In addition to the actual proof of residence, as testified to by the justice of the peace and the deputy sheriff, it will be presumed that the residence of the justice of the peace was within his district.

In Hays v. State, 70 Okla. Cr. 62, 108 P. 2d 186, 187, this court held that a search warrant which was signed, “Given under my hand at Enid, Oklahoma, this the 19th day of November, 1938. (Signed) J. S. Jacobs, Justice of the Peace,” was sufficient, in that the warrant showed on its face that the justice of the peace was acting within his district.

There is no proof that the justice of the peace was acting outside of his district when he issued the search warrant. The attorney for the defendant based his contention solely upon the ground that the warrant did not recite the justice district from which it was issued.

Where the search warrant is not sufficient upon its face to show the district from which it is issued, a question of fact is presented for the trial court as to whether the justice of the peace had jurisdiction. The presumption is that the official acts of the justice of the peace were performed within his jurisdiction.

In the case of Blair v. State, 55 Okla. Cr. 280, 29 P. 2d 998, 999, the Criminal Court of Appeals had up for construction an affidavit in which the title of the person administering the oath was wholly omitted; and in that case this court stated as follows:

“The justice of the peace failed to attach his title to the jurat attached to the affidavit made by the witness Y. I). Firestone for the search warrant. His failure to do so did not make the statement in the complaint void, and the defect could have been cured by the court at any time its attention was directed to it by having the justice come into' court and attach his title to the complaint. The defendant saved the state the trouble of calling the justice of the peace by placing the witness who had sworn to the complaint on the stand, and asking him the direct question, if he had sworn to the complaint, and he answered he did.
“The defendant cured the defect in the complaint, and cannot be heard to- complain. Blackburn v. Commonwealth, 202 Ky. 751, 261 S. W. 277; James v. State, 188 Ind. 579, 125 N. E. 211; Warren et al. v. State, 35 Okla. Cr. 430, 251 P. 101.”

The evidence is certainly sufficient to sustain the finding, of the trial court that the justice of the peace was acting within his district at the time the affidavit was filed with him and he issued the warrant.

As to- the third proposition, that the affidavit was not made under oath, the testimony of the deputy sheriff, which is relied upon by the defendant to- support this contention, is as follows:

“Q. At the time you went before W. F. Durham and presented the complaint do you recall whether or not that you were sworn by Judge Durham? A. No-, sir. Q. Were you sworn? A. No, sir. Q. He did not ask you to- hold up your band and be sworn either on affirmation or upon oath invoking the deity, so help you God? A. I never did on any search warrant. Q. And you did not in this case? A. No, sir. Q. Then the purported showing that it was sworn to by you in the presence of W. H. Durham, that is not correct? A. I read it. I knew what I signed.”
The affidavit which was admitted in evidence was signed by the officer and by the justice of the peace with the following recital appearing above the signature of the justice of the peace: “Signed in my presence and sworn to before me, this the 3rd day of June, 1939.”
At the beginning of the affidavit is the following recital : “Bill Miller, being first duly sworn, on oath, states * * * >?

These recitals constitute prima facie evidence that the affidavit was duly sworn to by the affiant. Blair v. State, supra.

Although this statement in the affidavit is prima facie evidence, the same is not conclusive; and the fact that the affiant was not sworn may be overthrown by clear and convincing, proof to the contrary.

This identical question has never been before this court for construction, and no case is cited in the brief of the defendant from any other jurisdiction sustaining his point.

The general rule as to the validity of an affidavit is stated in 22 C. J. S., Criminal Law, § 308, p. 461, as follows:

“No set formula is required as to an oath verifying the complaint if there is an unequivocal act whereby af-fiant consciously takes on himself the obligation of an oath. * * * Where a complaint is sworn to before a magistrate, notary, or other official qualified to administer the oath, his certificate of this fact in the usual form is prima facie or conclusive evidence of a compliance with the statute, and the complaint is sufficient although no formal verification is appended to it.”

In the case of State v. Tull, 83B Mo. 152, 62 S. W. 2d 389, 391, the Supreme Court of Missouri stated:

“In the Privitt Case [State v. Privitt, 327 Mo. 1194, 39 S. W. 2d 755] we said that ‘by uniform decisions of our courts and by our statutes, no set formula is required to constitute an oath or to- impose the obligation of an oath’; and, quoting from 2 Corpus Juris, p. 338, § 49: ‘* * * No-particular ceremony is necessary and it is only required that something be done in the presence of the officer which is understood by both the officer and the affiant to constitute the act of swearing.’ There must be some unequivocal act by which the affiant consciously takes upon himself the obligation of an oath. 48 C. J. p. 855, § 77, and see cases in note. But it need not be evidenced by any set formula. The Minnesota Supreme Court said: ‘The particular formality with which an oath is administered has never been regarded in this state as of great importance. The essential thing is that the party taking the oath shall go- through some declaration, or formality, before the officer which indicates to him that the applicant consciously asserts or affirms the truth of the fact to which he gives testimony.’ State v. Day, 108 Minn. 121, 124, 121 N. W. 611, 613. For illustrative cases, see State v. Ruskin, 117 Ohio St. 426, 159 N. E. 568, 56 A. L. R. 403; United States v. Mallard (D. C.) 40 F. 151, 5 L. R. A. 816; McCain v. Bonner, 122 Ga. 842, 51 S. E. 36; Dunlap v. Clay, 65 Miss. 454, 4 So. 118; State v. Holladay, 120 S. C. 154, 112 S. E. 827; Markey v. State, 47 Fla. 38, 59, 37 So. 53. See, also, for collation of cases, note to Curry v. Rex (Can.) Ann. Cas. 1914B, 591, 595, et seq.”

In the case of State v. Holladay, supra, it was held that an oath was sufficiently administered when the af-fiant stated to the magistrate: “I want to make this affidavit before you,” and then both signed it, it being the understanding, according to the testimony of the magistrate, that the affiant was thereby swearing to the affidavit.

In the case of Town of Grove v. Haskell, 31 Okla. 77, 116 P. 805, it is stated:

“Where the electors at a county seat election, after having passed the challengers and before given a ballot, permitted the clerks to fill out a statutory form of affidavit which they signed and delivered to the election commissioners with the intent of having the same uttered and published as true and on which they received the blank ballots, the said affidavit will be deemed complete in all particulars, and the ballots which the electors so received, prepared, and cast will not be rejected for the reason that the officers failed to require the electors to raise their hands and go through the form of taking the oath, or for the reason that the entire contents of the affidavits were not restated to the electors on the occasions when the officer formally swore them. * * *
“When the literal enforcement of a statute would result in great inconvenience or lead to' consequences which are absurd and which the Legislature cannot be held to have contemplated, the courts are bound to presume that such consequences were not intended, and to adopt a construction which shall promote the ends of justice, and avoid the absurdity.”

This is a construction of section. 12, art. 4, Sess. Laws 1907-1908, as to the procedure for voting at a special election.

In the case of Town of Checotah v. Town of Eufaula, 31 Okla. 85, 119 P. 1014, 1017, under the above statute, the election commissioner filled in the jurat of the affidavits, the voters read the affidavits, filled in the blank spaces, signed their names and returned the affidavits to the commissioner. They were not sworn. The court states:

“* * * There is no room for doubt that it was the intent of the Legislature by this act to' provide that where one delivered, as shown, an affidavit or a paper containing the elements which we have referred to above, to another person with the intent that it should be uttered or published as true, that its making should be deemed or adjudged to be free from deficiency, entire, and complete with no part, item, or element lacking. This being true, then perjury was assignable upon these affidavits from the time when they were delivered by the electors with the intent that they should be acted on as true in securing their ballots, and this, too, without reference to whether the signers were formally sworn or not.”

In the case of In re State Question No-. 236, etc., 183 Okla. 355, 82 P. 2d 1017, 1020, the Supreme Court said:

“* * * In keeping with the progress of the present day custom and practice prevailing in the transaction of business where an oath is required, it is held that tO' constitute a valid oath it is not necessary that the affiant hold up his hand and receive a formal oral statement from the officer. It is sufficient if the affiant’s attention is called to the. fact that his statement is not a mere assertion, but must be sworn to-, and that both the affiant and the officer believe that they have done all that was necessary to complete the oath, and that affiant intends to- swear to the facts set out in the affidavit. Atwood v. State, 1927, 146 Miss. 662, 111 So. 865, 51 A. L. R. 836.”

Apparently defendant bases his contention in respect to this assignment of error solely upon the statement of the deputy sheriff that he did not formally swear to the affidavit by raising his right hand and taking the oath, including an invocation to the deity. It is apparent from the testimony of the magistrate and the deputy sheriff that when the deputy sheriff signed the affidavit and presented it to the justice of the peace with the request for a search warrant, it was understood by both parties that said acts of the deputy fulfilled the requirements as to taking an oath, and said instrument was just as valid as though an invocation to the deity had been made.

It is better practice for the magistrate to formally swear the affiant to the affidavit for search warrant and all other papers which require the administering of an oath for their validity. This court, however, realizes that practically all acknowledgments of deeds, verification of written instruments, including affidavits, are generally perfected by the mere act of signing and handing the same to the party who places his jurat upon the instrument. In legal contemplation, the oath is sufficient. In the instant case, that the justice of the peace deemed the oath completed is evidenced by his act of placing his jurat on the affidavit and going ahead and issuing the warrant, in which warrant he recites that Bill Miller did appear before him, and after being duly sworn, upon oath, stated certain facts which are set forth in the affidavit.

In further support of this construction, see, also, State v. Kemp, 137 Kan. 290, 20 P. 2d 499; State v. Dodd, 193 Wash. 26, 74 P. 2d 497.

For the foregoing reasons the judgment of the county court of Pottawatomie county is hereby affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., dissents.


author: JONES, J.

text:
    G. M. COBURN v. EMIL SCHROEDER.
    No. A-10019.
    April 2, 1941.
    (112 P. 2d 191.)

      Springer & Springer, of Stillwater, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and D. P. Hervev, Co-. Atty., Payne County, of Stillwater, for respondent.
   JONES, J.

This is an original proceeding wherein the petitioner, G. M. Coburn, by habeas corpus, seeks to procure his release from the county jail of Payne county.

The petition filed herein alleges in substance as follows :

“That the petitioner is confined in the common jail of Payne county by virtue of a commitment issued out of the district court of Payne county, Oklahoma, in a certain action wherein the petitioner was convicted of a second violation of the prohibitory laws of the State of Oklahoma, and adjudged to pay a fine of $100, and to- be confined in the county jail for a period of 90 days.
“That the petitioner is afflicted with a dangerous heart ailment and that the confinement in the county jail of Payne county has enhanced, and will continue to- aggravate the dangerous condition, and is liable to- cause the death of the petitioner.
“The petitioner prays that the writ of habeas corpus issue, directed to the respondent, who is the sheriff of Payne county, and that upon a hearing, that he be discharged from custody.”

The respondent filed his answer in which he admits that the petitioner is confined in the county jail by virtue of the commitment set forth in the petition. The respondent specifically denies that the confinement of the.petitioner is illegal, and further denies that the petitioner is afflicted with a heart ailment which will be aggravated as a result of any confinement in the county jail of Payne county.

“The respondent further states that the petition of the plaintiff does not show facts sufficient to maintain a cause of action in favor of the petitioner and against the respondent.”

By agreement of the parties hereto, Paul L. Myrick, county judge of Payne county, was appointed commissioner by the Criminal Court of Appeals to take the testimony of certain witnesses in Payne county.

The facts are that on May 24, 1939, the petitioner was convicted of the felonious possession of intoxicating liquor, and sentenced to pay a fine of $100, and serve a term of 90 days in the county jail. Upon appeal, this case was affirmed by the Criminal Court of Appeals and a mandate issued to the district court of Payne county on January 31, 1941. Coburn v. State, 70 Okla. Cr. 329, 106 P. 2d 533. Subsequently, the defendant was incarcerated in the county jail to serve the sentence, where he served 28 days before he was released on bond by this court, pending the final disposition of this proceeding.

In the argument herein, the petitioner made two contentions :

(1) That the punishment imposed was a cruel and unusual punishment and should be modified.

(2) That the prisoner is in such poor health that continued confinement will endanger his life, and that this court should discharge him from custody.

The first contention is wholly without merit. The petitioner was convicted in the district court of Payne county. He was convicted of a felony in which the punishment under the statute (sec. 2632, O. S. 1931, 37 Okla. St. Ann. § 12) could have been five years in the State Penitentiary and a. fine of $2,000.

Upon appeal to this court, no question of cruel and excessive punishment was raised; and it is quite clear that the petitioner cannot now in a habeas corpus proceeding raise this point. It is established law that the writ of habeas corpus cannot be used to perform the office of a writ of error on appeal. Ex parte Sneed, 46 Okla. Cr. 53, 287 P. 1062; Ex parte Justus, 3 Okla. Cr. 111, 104 P. 933, 25 L. R. A., N. S., 483; In re Talley, 4 Okla. Cr. 398, 112 P. 36, 31 L. R. A., N. S., 805; Ex parte Rupert, 6 Okla. Cr. 90, 116 P. 350; Ex parte Lair, 29 Okla. Cr. 282, 233 P. 789; Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.

An examination of the testimony taken before the county judge discloses a disputed question of fact as to the physical condition of the petitioner. The county physician testified that he had examined the petitioner three times while he was confined in jail, to wit, on February 3rd, February 10th, and February 24th, that the first time he examined petitioner his pulse was 100 and blood pressure was 184/108; that on February 10th, his blood pressure was 178/104; and on February 24th, his blood pressure was 154/92 and his pulse rate was 74; that from all physical indications, the condition of the petitioner had improved materially by reason of his confinement in jail. That if he had a private patient with-the same ailment from which the petitioner was suffering, he would give him the same treatment that the petitioner received in jail.

L. A. Mitchell testified that he had been treating the petitioner for high blood pressure and arteriosclerosis of the vessels of the body.

“That persons suffering from this ailment will often live a long time, but that they are incurably sick. That a person in that condition could not perform hard manual labor long. That he could do chores and work around, but couldn’t dig ditches or work on the railroad. That he has not seen the petitioner since he went into jail. That confinement in jail itself, so far as the rest which the petitioner would receive is concerned, would be beneficial; but that if conditions in the jail are not conducive to quietness so that the petitioner would have quiet and peace of mind, as well as peace of body, that the confinement would be hard on his heart.”

The petitioner testified that he was 69 years of age and had been taking treatment for his heart ailment about two years,* that when the ailment strikes him, “It swells my ribs right here and bums until I can’t get my breath.” That the worry and anxiety over his confinement in jail had aggravated his condition; that he had had spells every night while he was incarcerated in jail; that he was ready and willing to pay the fine and costs assessed against him if he could procure relief from serving the jail sentence.

Two of the persons who were serving sentences in the jail at the time the petitioner was confined testified on behalf of the petitioner, that the petitioner would get up at nights, and walk around, and state that he couldn’t get his breath.

The jailor testified that during all of the time the petitioner was confined in jail, he never knew of his having, any sinking spells, and that not once during the 28 days that he was in jail did he ever make any complaint to him; that he never did ask for a doctor, but that he had the county health physician check the petitioner on each Monday.

The proof further discloses that the petitioner had made application for clemency, and that after the Pardon and Parole Attorney had made an investigation, in which statements were taken from the petitioner and many other individuals at Stillwater, the application was denied. It was after the denial of the application for clemency that this proceeding was instituted in the Criminal Court of Appeals.

Without stating our conclusions upon the question of fact as to the actual physical condition of the petitioner, we deem it only necessary to state that in a habeas corpus proceeding, where no question is raised as to the validity of a judgment upon which a commitment is based, but the only question involved is one of fact as to the health of the accused, such question involves a matter of clemency to be addressed to the Governor. Since the petitioner may again seek clemency at the hands of the Governor, it is not proper that we express an opinion as to this man’s physical condition, as such question is a question for the sole determination of the Chief Executive in whom the power to extend clemency is vested.

Section 693, O. S. 1931, 12 Okla. St. Ann. § 1342, provides that no court or judge shall inquire into the legality of any judgment or process whereby the party is in custody or discharge him when the term of commitment has not expired upon any process issued on any final judgment of a court of competent jurisdiction. See, also, Ex parte Woods, 7 Okla. Cr. 645, 125 P. 440; In re Talley, supra; Ex parte Hollingshead, supra; Ex parte Harry, 6 Okla. Cr. 168, 117 P. 726.

Article 6, sec. 10, Oklahoma Constitution, Okla. St. Ann. Const., provides:

“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to' such regulations as may be prescribed by law. * * *”

We have held in Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L. R. A., N. S., 110, in one of the early opinions of this court by Judge Doyle, that under this constitutional provision, the Governor has exclusive power to parole a convict, with such restrictions and limitations as he may deem proper; and any law which restricted this power would be unconstitutional and void. This case further held that under our Constitution, it is the duty and prerogative of the legislative department to define crime and fix the maximum and minimum penalty, and to fix by law the kind and manner of punishment, and provide such disciplinary regulation for prisoners, not in conflict with the fundamental law, as the Legislature deems best. It is the duty of the judiciary department to try offenders against those laws, and upon conviction to sentence them under the statute. That after a conviction has become final, it is not within the functions of the courts or Legislature to interfere with the pardoning power of the Chief Executive.

Under this section, no one is given power to reprieve, commute, parole, or pardon an offender for any cause, with the exception of the Governor.

The office of Governor is the proper one with which to lodge the responsibility for determining whether the petitioner is a fit subject for clemency. It is beyond tbe power of the courts or the Legislature to determine whether the Chief Executive acts wisely or unwisely in passing upon applications for clemency. The exercise of executive clemency is a matter of discretion. It is an official duty vested in the Governor, not for the benefit of the convict only, but for the welfare of the people.

The petitioner has heretofore invoked the jurisdiction of this court for the purpose of determining, the correctness of the judgment of conviction rendered against him by the district court of Payne county. In the opinion of this court in that case, it was determined that the trial proceedings were legal and proper; and the conviction was affirmed. As to any circumstances which have intervened since the judgment of this court on appeal has become final, which questions solely concern the possible effect of the confinement upon the health of the accused, it is our opinion that such question is a proper matter to be addressed to the Chief Executive in which, if he sees fit, he may extend clemency under the power vested in him by the Constitution of this state.

For the reasons hereinabove stated, the petition for writ of habeas corpus is denied.

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


text:
    In re EARNEST McDONALD.
    No. A-9986.
    April 9, 1941.
    (112 P. 2d 428.)

      Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Go. Atty., of Oklahoma City, for respondent.
   JONES, J.

This is an original proceeding in habeas corpus by Earnest McDonald to effect his release from the State Penitentiary at McAlester, Okla., where he was committed from Oklahoma county to serve a term of five years for robbery.

Petitioner states in his application for writ of habeas corpus that he has been deprived of all legal rights and due process of law guaranteed to him by the Oklahoma and federal Constitutions. That he is 61 years of age; on July 30, 1940, he was taken into custody and accused by the arresting officer, Bo Baker, of having stolen a watch from one Hattie Carter, by wrhom he was confronted, and that she stated the watch was stolen on July 11, 1940. Baker asked petitioner to plead guilty, which he refused to do.

Petitioner further alleges that on August 1, 1940, the officers told him that he was accused of attempted rape upon Hattie Carter on July 15, 1940; that he was confronted again by her. She stated that the attempted rape occurred about 10 o’clock at night. Petitioner asked her how she knew what time; she stated she looked at her watch. He asked her if she had recovered the watch; she answered that she had not. He inquired if she had two watches, to which she replied that she had not.

Petitioner relates that he was taken to a room where he watched Baker beat two other negroes until they pleaded guilty. He was advised to plead guilty and guaranteed not to receive over a six months’ sentence. On account of his age he knew that such a beating as the others received would kill him. After a few blows he agreed to plead guilty, and was advised by Baker to plead guilty to robbery. On that same day he was taken before District Judge Hooker, wlm asked him what his plea was. Baker answered that petitioner had already pleaded guilty. He was sentenced to serve five years in the State Penitentiary on recommendation of the officers.

The county attorney of Oklahoma county received a copy of the petition and without this court issuing the rule to show cause has filed a response to the petition, stating that defendant is 46 years of age, an habitual criminal, and denying every material allegation contained in the petition to the effect that a statement was taken by force and duress, and that petitioner was struck or abused.

Attached to the response is a written statement made by petitioner before Officers Harbolt, Butler, and Mackey, in which he stated:

“I, Earnest McDonald, make this statement of my own free will and accord, without threat or promise having been made on the part of anyone concerned having been first advised that what I say herein may be used as evidence in the event criminal charges are filed.
“On July 12, 1940, along about dark, I went into a house at 417 N. E. 1st street, in the rear, Oklahoma City, Oklahoma, where I saw a woman standing in the door. I walked on in this house and took $1.13 in money away from this woman then walked east on N. E. 1st street. My brother was arrested for this crime, and I went and talked to' a negro woman by the name of Mildred Oanty, and told her to go over and find out what she could and I told her at this time that they had the wrong man in jail for this crime. At this time she asked me if it would be all right to wait until 2:30 p. m. or 3:00 p. m., but I did not go back to talk to her.
“The foregoing statement has been made and read by me in the presence of witnesses in the detective bureau, at tlie Oklahoma City police department, this 1st day of August, 1940, and it is the truth to the best of my knowledge, so help me God.”

Also, attached to the response is a copy of the criminal record of petitioner furnished by the Federal Bureau of Investigation, which shows many convictions for felonies, including rape, larceny, and forgery; also-, two> different occasions when he had escaped from prison.

The petition should have been presented in the district court of Pittsburg county. Ex parte Johns, 7 Okla. Cr. 488, 124 P. 941.

This court will not entertain original application for habeas corpus, except in some extreme emergency, where application has not been presented to district court and writ refused. Ex parte Dockum, 20 Okla. Cr. 468, 204 P. 134. However, to avoid a repetition of the filing of this petition, we deem it advisable to state that, after considering the criminal record of petitioner, this court can give no credence to the statements in this application for writ where the same conflicts with the record and evidence of the officers.

For the reasons above stated, writ of habeas corpus is denied.

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


text:
    JACK DREW v. STATE.
    No. A-9784.
    April 9, 1941.
    (112 P. 2d 429.)

      Ogden & Thompson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Jack Drew, was by information charged, on May 4, 1989, in the district court of Carter county, with the offense of driving an automobile while under the influence of intoxicating liquor; was tried, convicted, and sentenced to pay a fine of $50, from which judgment and sentence he appeals to this court.

For a reversal of this case, the defendant makes two assignments of error:

(1) That the trial court erred in failing to give certain requested instructions to the jury.

(2) That the trial court erred in refusing to permit defendant to introduce certain evidence.

The defendant was arrested while driving a Buick coupe, with a house trailer attached, on Highway No. 77 in Carter county.

The state introduced the testimony of Highway Patrolmen Adams and Hall that they observed defendant weaving from one side of the road to another, and that they had a great deal of trouble forcing him to stop. That he stopped his car in the middle of the road and was slumped over the wheel in a drunken condition. They smelled alcohol on his breath; he was flushed; his eyes blood-shot; and he was talkative, but incoherent in conversation.

Deputy Sheriffs Bartlett and Cunningham, who saw defendant when he was brought to the county jail, testified that he was drunk.

The defendant testified that he was not under the influence of intoxicating liquor. He stated that on account of the length of his car and trailer he had to swing over to- the wrong side of the road to- ascertain whether or not he had room to pass another car. Defendant stated that he had spent approximately two hours at the Green Hoop, a road side tavern north of Ardmore, and that he had-drunk four or five bottles of Falstaff beer.

Defendant offered the testimony of two- witnesses who served him beer at the Green Hoop that he was all right when he came in the place and all right when he left. He then tendered proof, which was refused, to show that beer similar to that which he drank contained less than 3.2 per cent, alcohol.

The defendant presented three requested instructions in writing, all of which were in substantially the same language and in effect had the same meaning. These requested instructions were to- the effect that if the jury found that the defendant was under the influence of beer which did not contain more than 3.2 per cent, of alcohol by weight, he would not be guilty of the offense of driving an automobile while under the influence of intoxicating liquor, for the reason that under the laws of the State of Oklahoma beverages containing no- more than 3.2 per cent, of alcohol by weight are declared to be non-intoxicating. The court was correct in refusing to give these instructions. Since the trial of this case, the Criminal Court of Appeals has passed upon this same question in five different cases, to wit: Odom v. State, 68 Okla. Cr. 117, 95 P. 2d 916: Curtis v. State, 69 Okla. Cr. 278, 101 P. 2d 1062; Foglesong v. State, 69 Okla. Cr. 360, 103 P. 2d 106; Ashcraft v. State, 68 Okla. Cr. 308, 98 P. 2d 60; Daniels v. State, 68 Okla. Cr. 324, 98 P. 2d 68.

In these cases it was held that section 1, ch. 153, Session Laws of 1933, 37 Okla. St. Ann. § 151, defines what are “intoxicating” and “nonintoxicating” liquors. The definition under this act was for the purpose of thus classifying beverages, as a foundation for the subsequent licensing and taxing provision. It was not intended to regulate the provisions of the law with reference to the enforcement of the criminal statutes.

These cases further held that section 10824, O. S. 1931, 47 Okla. St. Ann. § 93, makes it an offense for one who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, to operate or drive a motor vehicle on any highway within this state. Under this statute it was the intention of the Legislature to punish those who were in fact “under the influence of intoxicating liquor,” whether it be caused from drinking beer with an alcoholic content of less than 3.2 per cent, or liquor in excess thereof.

After these requested instructions in writing were presented to the court and the instructions delivered to the jury, the defendant, through his counsel, verbally requested the court to define the term “intoxicating liquor.” A considerable portion of the brief of the defendant is devoted to the contention that the court erred in refusing this request.

The instructions given by the court are not numbered, but on page 95 of the record appears the following instruction :

“In this connection you are told that if intoxicating liquor has so far affected the nervous system, brain or muscles of the driver of an automobile as to impair, to any appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is ‘under the influence of intoxicating liquor’ within the meaning of the statute.”

This instruction is in the identical language of the instruction which this court approved in the case of Luellen v. State, 64 Okla. Cr. 382, 81 P. 2d 323. Apparently counsel for the defendant thought the above instruction did not go far enough, as the record shows the following after the instructions were given:

“By Mr. Ogden, of Counsel for Defendant: (Out of hearing of the jury.) Comes now the defendant and most respectfully requests the Court to define to the jury the term Intoxicating liquor.’ By the Court: The request is denied. By Mr. Ogden, of Counsel for Defendant: Exception.”

In Merriott v. State, 18 Okla. Cr. 247, 194 P. 263, 266, it is stated:

“Where counsel for a defendant believe that the instructions of the court should more definitely or fully state any proposition embraced in the charge, it is the duty of counsel to prepare and present to the court a correct and complete instruction, and request that it be given, and in the absence of such request this court will not consider an objection that * * * the court failed to instruct upon any given proposition, where the instructions, considered as a whole, embody the law applicable to the case.”

See, also, Pulliam v. State, 61 Okla. Cr. 18, 65 P. 2d 426; Carpenter v. State, 56 Okla. Cr. 76, 33 P. 2d 637; Fitzsimmons v. State, 14 Okla. Cr. 80, 166 P. 453.

It was not necessary for the court to define the term “intoxicating liquor,” but we have held that it is proper for the trial court to define the term “under the influence of intoxicating liquor,” which the record shows was done in this case.

The trial court was under no duty to define the term “intoxicating liquor” for the jury, since the term is self-definitive and there is nO' arbitrary distinction between what constitutes “intoxicating liquor” and “nonintoxicating liquor” under this statute (sec. 10324, supra). The point was settled definitely in Ashcraft v. State, supra, when the court stated:

“In using the expression ‘under the influence of intoxicating liquor’ [sec. 10324, O. S. 1931, 47 Okla. St. Ann. § 93], the Legislature undoubtedly used the term in the same sense as it had been used in the Constitution, and had reference to all liquor which is intoxicating in fact. * It Avas the intention to punish those Avho were in fact-‘under the influence of intoxicating liquor’, whether it be caused from drinking beer with an alcoholic content of 3.2 per cent, or liquor in excess thereof.”

In Markinson v. State, 2 Okla. Cr. 323, 101 P. 353, it was held:

“The words ‘intoxicating liquors,’ as used in the prohibition ordinance of the Constitution, reasonably construed, mean liquors which will intoxicate, and which are commonly used as beverages for such purpose. * * *

The defendant next contends that the court erred in rejecting evidence offered by the defendant that the next day after the arrest of the defendant, he returned to the Green Hoop Tavern, where he had drunk the Falstaff beer, and bought tAvo bottles of the same kind, character, out of the same box, and which contained identically the same percentage of alcohol, if any, as was contained in the beer which was drunk by the defendant the day before; that this beer was analyzed by the State Chemist, and that the State Chemist was present and ready to testify as to - the results of the chemical analysis. That the analysis showed said beer contained less than 3.2 per cent, alcohol by weight. FiAre witnesses were placed on the witness stand to lay the predicate for the introduction of this evidence. Objection to the testimony of each witness was sustained.

It is true that the fact that the defendant had drunk only 3.2 per cent, beer is not a defense to this charge. If the liquid consumed by the defendant had contained only 1 per cent, of alcohol, it would be immaterial if such liquid Avould in fact produce intoxication of the person who drank it. It was a question of fact for the determination of the jury as to the state of intoxication of the defendant, if in fact he was at all intoxicated.

The trial court, in refusing this evidence,' evidently was proceeding on the theory that the defendant was contending that since the proof would show that he had only drunk a beverage which was legalized for sale, the same was a defense. As shown above, the defendant was proceeding on this theory; but at the same time he was entitled toi show to the jury just what liquid he had consumed, and whether it contained any alcohol, and, if so, the exact amount of alcohol it had contained.

The fact of intoxication is proved or disproved in the same manner as any other disputed fact; and the rules of evidence are much the same as in other judicial inquiries. Hence, evidence of all facts and circumstances directly tending to establish or negative the intoxication of the accused is admissible. 42 A. L. R. 1506.

If the prosecution had evidence to show that the accused had consumed a liquid, although called beer, but which in reality had contained 20 per cent, of alcohol, the court certainly would have admitted this evidence for whatever weight the jury might have seen fit to give it in order to determine the degree of intoxication of the accused. Likewise, the defendant is entitled to show the nature and kind of liquid he drank.

The jury may have come to the conclusion from the testimony of the officers that the defendant was under the influence of intoxicating liquor by virtue of the manner in which his car was being driven. The defendant’s evidence was to the effect that there was an exceptionally strong wind blowing on that day, which caused his trailer to swerve; and if the jury had been permitted toi hear the testimony of the chemist, that the particular beer which defendant drank was less than 3.2 per cent, alcohol, it would hare strengthened the testimony of the defendant and his witnesses, who testified defendant was sober.

It would have been difficult for the defendant, if allowed to proceed with his evidence, to have sustained the offer of proof which urns made. In order to make the chemical analysis competent as proof, evidence would first have to be made to establish that the beer which was analyzed was identical in every way, including alcoholic content, with that which was drunk. The defendant, through his counsel, so worded his profert of proof as to come within this rule and to make it competent. Counsel for defendant in making this offer stated that the proof would show that the beer which was drunk and that which was analyzed was the same kind, character, and contained the same percentage of alcohol. An objection by the state to this offer was sustained by the trial court.

The state contends that, if the rejection of this evidence is error at all, it only could be harmless error, as by the defendant’s own admission he had drunk five bottles of Falstaff beer which contained at least some percentage of alcohol, and that the evidence of the state was so conclusive that the jury could have arrived at no other verdict than that of the guilt of the defendant.

Here we have a man, who the record shows is a first lieutenant in the Officers Reserve Corps of the United-States Army and subject to be ordered to active duty at any time. If this conviction, which is a felony under the statute upon which the prosecution was based, should be permitted to stand, it would disqualify the defendant from serving in the armed forces of our country. This is not a defense to the crime, but since the conviction was sustained in this case, the Eighteenth Oklahoma Legislature has amended the statute under which this charge was filed by passage of House Bill No. 37 to1 provide that the commission of the first offense of driving while intoxicated shall be a misdemeanor. The Legislature has thus declared the policy of the state towards first offenders of driving while intoxicated, and all offenses committed subsequently to the effective date of that act will be prosecuted under the misdemeanor statute, under Avhich defendant does not forfeit any of the rights of citizenship in case of a conviction.

As stated above, these are not matters of defense to the alleged commission of a crime; but in a case where the question as to whether error of the court is harmless or an error which affects the substantial right's of the defendant, they are certainly entitled to consideration.

It is our opinion that the court erred in rejecting the testimony offered by the defendant above set forth. It had the effect of refusing the defendant the right to offer his defense.

The judgment of the district court of Carter county is reversed, and the defendant remanded for further proceedings consistent with this opinion.

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


author: BAREFOOT, P. J. BAREFOOT, P. J.

text:
    HOBSON G. DENMARK v. STATE.
    No. A-9755.
    April 9, 1941.
    (112 P. 2d 437; 113 P. 2d 608.)

      James W. Flinn, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., and Phil E. Daugherty, Asst. Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit, 20 pints of tax-paid liquor; was by agreement tried before the court without the intervention of a jury, was convicted, and sentenced by the court to pay a fine of $50 and serve 30 days in the county jail, and has appealed.

For reversal of this case it is contended that the court erred in overruling the motion of defendant to suppress the search warrant, and that the evidence was insufficient to justify the conviction of defendant. These questions may be considered together. Counsel for defendant filed a written motion to suppress the evidence for the following reasons, to wit:

“(1) That the search warrant, under which the evidence to be adduced was seized, was not obtained by an affidavit as required by law. ,
“(2) That the subject matter seized by said search warrant was not examined by the officer issuing said search warrant, and no determination made by the magistrate or justice of the peace that said evidence was a violation of the law.
“(3) That said warrant is void, ineffective and of no force and effect for the reason that the same does not state facts sufficient for the search and seizure of the evidence to be adduced and does not properly describe the premises where the search and seizure was made.”

When the above motion was presented counsel for defendant stated, “I think it is best to let the motion be overruled at this time.” It was by the court overruled, and the defendant excepted. No evidence was offered to sustain the motion, and the search warrant was not introduced in evidence and a copy, of the same nowhere appears in the record.

The state offered in evidence to sustain the allegations of the information the testimony of four police officers. They testified that they searched the premises of defendant located at 113 Northeast 10th street in Oklahoma City. One of the officers testified that he had a skeleton key which unlocked the basement door. That in the front part of the building was a paint shop and office. That back of this were living quarters occupied by the defendant, Hob-son G. Denmark, and his brother and his wife. It was in two' apartments. The basement was under the building occupied by the defendant and his brother. That on the day the premises were searched, December 1, 1938, the defendant was present and accompanied the officers to the basement. That the only property in the basement was a lot of junk consisting of cans and bottles. That no> paint was stored there. Upon moving one of the cans the officers found a hole in the floor where was secreted 20 pints of tax-paid whisky. The defendant denied to' the officers finding the whisky that it belonged to him, but one of the police officers, C. W. Scott, testified that the defendant said to him: “If I had come on and stayed out of there, they would never found the whisky.”

This witness was further asked this question:

“Q. What did he have to say about the whisky business, if anything? A. Oh, nothing, more than that business was very poor and had a lot of hard luck trying, to sell it. * * * Q. But on this.date, there wasn’t anybody there except Denmark, was there? A. I am positive that there was not; yes, sir.”

The defendant when confronted with the whisky by the officers made the statement: “I haven’t got the basement, the man that runs the paint company has got it.”

The officer then said to defendant:

“Well, I guess we will just take him down,” and he (the defendant) said, “Well, he thought we was going to,” and he said, “You know it is not his whisky, he is not in the whisky business,” and he said, “I will go down with you.” That’s what happened.

Twenty pints of tax-paid whisky was identified by the officer in charge of the storage room at the county jail as having been turned over to' the sheriff’s office by the police officers and was introduced in evidence. The defendant did not take the witness stand and offered no evidence. From the above statement it will be seen that the court did not err in finding the defendant guilty.

An attempt is made to question the description in the Search warrant, but, as above stated, the defendant did not offer the search warrant in evidence and the same does not appear in the record. The presumption is that all proceedings in a court of record are regular, and the burden is upon him who assails such proceedings to show clearly the irregularities complained of. This burden was not met in the instant case. Lancaster v. State, 2 Okla. Cr. 681, 103 P. 1065; Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Jones v. State, 10 Okla. Cr. 216, 136 P. 182, 137 P. 121; Ables v. State, 35 Okla. Cr. 26, 247 P. 423.

It is also contended that, by reason of defendant’s brother and his wife living at the same premises, the search was irregular and did not justify the conviction of defendant. We think from the evidence above quoted that the same was sufficient to convict the defendant, regardless of the fact that his brother occupied a part of the premises.

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

JONES and DOYLE, JJ., concur.

On motion for rehearing. Motion denied.

Mac Q. Williamson, Atty. Gen., and Phil E. Daugherty, Asst. Go. Atty., of Oklahoma City, for the State.

James W. Flinn, of Oklahoma City, for defendant.

BAREFOOT, P. J.

Motion for rehearing in this case calls our attention to the fact that there was a stipulation on file signed by the assistant county attorney of Oklahoma county, attorney for defendant, and the judge of the court of common pleas, whereby it was agreed and understood that the court would consider the evidence taken on the motion to suppress the evidence as if the same had been submitted on the trial of the case, and that the original affidavit and search warrant would be made a part of the record and considered by the court in the final hearing of the same. This stipulation and the search warrant were not attached to the case-made, but will now be considered as a part of the record.

It is contended that the decision in the case at bar is in conflict with the former decision of this court rendered on the 18th day of December, 1940 (Denmark v. State, 71 Okla. Cr. 95, 108 P. 2d 550, 551), against this same defendant, and in which the identical premises were searched, and in which case the judgment and sentence of the court of common pleas of Oklahoma county was reversed.

We have carefully examined the record in both cases) and find that the facts are materially different. In the first case the intoxicating liquor was not found in or about the building occupied by defendant, but was found by the officers in an abandoned automobile and also- under the steps of a building separate and apart from the premises occupied by defendant and one to- which the public had access; that the defendant was not present at the time the liquor was found and made no statement in reference thereto. There was no evidence to show his actual possession of the intoxicating liquor.

In the instant case he was present at the time the search of the premises was made and made statements to the officers which were practically an admission that the liquor found in the basement belonged to him. We have examined the search warrant, and it describes the place to-be searched as follows: “A two- story frame building and all out-buildings located in the rear of 113 Northeast 10th Street Oklahoma City, Oklahoma County, Oklahoma.”

The liquor was found in the basement and a part of the premises above described. It runs in the name of John Doe. As in the former case, we do not think it is the best-practice for officers to- place the name of John Doe or any other fictitious name in search warrants where the name of the party to be searched is known to the officers, and this practice is condemned, but as stated in the former opinion: “We are not saying that this, within itself, would be reversible error”.

The officers testified that the defendant occupied the premises as described in the search warrant. The liquor was found in the basement, and the statements made by defendant to- the officers were amply sufficient fo-r the court to find that the intoxicating liquor was in his possession.

We are of the opinion the petition fo-r rehearing should be denied.

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