text:
    E. R. JACKSON v. STATE.
    No. A-9868.
    June 18, 1941.
    (114 P. 2d 953.)

      Ward, Justus & Ward, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Amt. Atty. Gen., and Dixie Gilmer, Co'. Atty., of Tulsa, for the State.
   BAREFOOT, P. J.

Defendant E. R. Jackson was charged in the district court of Tulsa county with the crime of burglary in the second degree, was tried, convicted and sentenced to serve a term of seven years in the penitentiary, and has appealed.

The defendant having been unable to give bond pending this appeal, is now confined in the penitentiary, and. for this reason his case has been advanced and decided at this time.

The first assignment of error is that the court erred in overruling defendant’s motion for a continuance. This motion is based upon the absence of a witness named Marie Berry. The record discloses! that the information was filed on the 7th of November, 1939. Defendant was arraigned in open court on the 8th of November, 1939, and entered a plea of not guilty, and was at that time advised his case was set for trial on November 21, 1989. The motion for continuance was not filed until the day the case ivas called for trial. The record does not show that any subpoena was attached to the motion, nor was: any introduced in evidence in support thereof. At the time the motion was overruled no- exception was taken to- the overruling of the same. The motion for continuance stated:

“That one of the witnesses above named is Marie Berry who- lives- some five miles: west of Sapulpa, Oklahoma, at the Sapulpa Country Club, Avho- has been subpoenaed but cannot attend court at this time for the reason she is recovering from a major operation and her health will not permit her attending court at this time. * *

No- affidavit of a physician was presented, and no-proof offered that the trial court had ordered and directed said witness to attend from an adjoining county. Hudson v. State, 20 Okla. Cr. 435, 203 P. 482. Oklahoma Statutes 1931, sec. 3024, O. S. A. title 22, sec. 715.

At the time the trial was commenced defendant announced ready fo-r trial and made no request for- an attachment or assistance to produce said witness, and it further appeared that the evidence of the witness would have been only cumulative to- the testimony of other witnesses seeking to- establish an alibi which was the only defense offered by defendant. The court in our opinion did not err in overruling the motion for continuance and to which no- exception was taken at the time. Bradshaw v. State, 18 Okla. Cr. 619, 197 P. 715; Pusley v. State, 22 Okla. Cr. 192, 210 P. 306; Smith v. State, 36 Okla. Cr. 9, 251 P. 507; Davis v. State, 44 Okla. Cr. 141, 279 P. 976; Litchfield v. State, 8 Okla. Cr. 164, 126 P. 707, 45 L.R.A., N.S., 153.

This court has uniformly held that an application for continuance is addressed to the sound discretion of the trial court, and unless there is. an abuse of such discretion, the judgment will not be reversed on appeal. Lane v. State, 65 Okla. Cr. 192, 84 P.2d 807; Gorum v. State, 67 Okla. Cr. 75, 92 P.2d 1086.

In the instant case there was a failure to comply with the statute, as will be seen from a reading thereof. Oklahoma Statutes 1931,. sections 397 and 3055, O. S. A., title 12, sec. 668, and Oklahoma Statutes Annotated, Title 22, sec. 584.

It is next urged that the court erred in overruling defendant’s motion for a directed verdict and in failing to sustain defendant’s demurrer to the evidence.

The evidence reveals that the defendant was: charged with the crime of burglary in the second degree and with having prior thereto* been convicted of the same offense and 'served a term of three years in the penitentiary of this state. On the early morning of September 17, 1939', between 2 and 2:30 a. m., two newspaper reporters in the city of Tulsa were walking within half a block of ■Goldberg’s Jewelry Store in the city of Tulsa. They heard a window crash and saw a party with his hand inside the window taking property therefrom. One of the parties started in the direction of the party. The other went to telephone the police. The party committing the burglary ran and was pursued by the reporter for some distance, and who at the time of the trial positively identified the defendant as the party whom he had seen committing the burglary. Defendant was arrested a few days later and after talking with Mr. Goldberg, whose store had been robbed, the sister of defendant returned to Mr. Goldberg 13 of the 19 diamond rings that had been stolen at the time of the breaking. Evidence was. offered by the state that the defendant on the night following the burglary had attempted to sell to certain parties “rings” at a very reasonable price. Other circumstances were offered which it is unnecessary to state.

The defendant offered as a defense what in law is known as an alibi. He claimed that he was a,t the Little ■Mayo- Cafe in the city of Tulsa from 11 or 11:30 on the night of the 16th of September, 1939, until 4 a. m. on the morning of the 17th. He produced three witnesses! who testified to< this fact. The jury heard this evidence, which wasi conflicting, and were in a much better position to pass upon the same than is an appellate court.

The evidence revealed that defendant had been convicted on at least three previous occasions and had served two terms in the penitentiary, one of which was for the same offense with which he now stood charged, and the other a jail sentence. The sister of defendant testified in his behalf and stated that she had procured the rings which she had returned to the owner from an unknown person whom she met on the streets of Tulsa, and that she went in an automobile with him to the country where he took them from under a rock. She did not know his name or where he lived, but he stated to her that he had served time in Granite with her brother and did not want to see him punished when he himself committed the crime. All of this evidence was for the consideration of the jury under the law.

The evidence of the witness Goldberg, whose store was burglarized, reveals that he was much more interested in the procuring of his property which was stolen than seeing that the party who committed the burglary was brought to justice. His statement made to the defendant while he was in jail was reprehensible, and the county attorney is to be commended for Ms attitude in refusing to beed Ms. recommendations in reference to the disposition of this case.

It is further contended that the sentence is excessive. The defendant was given seven years in the penitentiary by a verdict of the jury. The record reveals, that he was charged as a second offender, having pleaded guilty in the district court of Tulsa county on the 11th day of January, 1935, to the crime of second degree burglary, and was sentenced to serve a term of three years in the penitentiary at McAlester. It was stipulated by counsel that this charge was true. The defendant while on the witness stand in his own behalf testified on cross-examination that he had been convicted of receiving stolen property in 1933 and had received a sentence of two years in the penitentiary at GraMte, and that he was convicted of arson at Gerard, Kan., in 1929, and served a jail sentence. See the case of Spann v. State, 69 Okla. Cr. 369, 103 P.2d 389, in which Judge Jones gives a full discussion of the penalty to be inflicted under the statute where one is charged as a second offender. The defendant in this case, having been found guilty as a second offender by the jury as charged in the information, could have been given a minimum of ten years in the penitentiary when the jury found him guilty of the commission of the crime with which he was charged. Oklahoma Statutes 1931, sec. 1817, O. S. A. title 21, sec. 51. Under the facts and circumstances as above outlined we are not in a position to say that the judgment and sentence rendered in this case is excessive.

It is therefore ordered that the judgment of the district court of Tulsa county be affirmed.

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


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    RALPH K. JENNER v. STATE.
    No. A-9814.
    June 18, 1941.
    (114 P. 2d 956.)
    Robert H. Warren, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   JONES, J.

The defendant, Ralph K. Jenner, was charged by information in the county court of Choctaw county with the offense of possession of a slot machine, a jury was- waived, the defendant tried, convicted and, sentenced to pay a fine of $50, and he has appealed to this court.

No brief has; been filed in this case, but the attorney for the defendant appeared before this court and argued that the evidence showed that the slot machine found in the defendant’s possession was stuffed with paper so that it was. not capable of being operated, and, therefore, its possession was not a violation of House Bill No. 125, chap. 15, art. 3, sec. 6, p. 10, Session Laws of 1939, 21 Okla. St. Ann. § 969.

The same defendant has a similar case, Jenner v. State, 72 Okla. Cr. 235, 114 P.2d 958, in which similar questions are raised and which has been briefed; and we are treating the- brief filed in that case in connection with the disposition of the assignments of error in this case.

The defendant seeks an interpretation of section 6 of House Bill No. 125, Acts of the Seventeenth Legislature, supra, which is as follows:

“That it shall be unlawful for any person to have in his possession any slot machine or punch board, or sell or solicit the sale, or take orders for the sale of, or lease or rent any slot machine or punch board in this State, and! any person violating the provisions of this Section shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Fifty ($50.00) Dollars nor more than One Hundred Fifty ($150.00 ) Dollars or by imprisonment in the county jail for a term of not more than sixty (60) days, or by both such fine and imprisonment.”

The defendant and one of his employees at the Blue Moon Cafe, where the machine in question was seized by the officers, testified that the slot machine in question was. stuffed with paper so that the mechanism could not work.

The officers who seized the machine testified that the slot machine was sitting in the front end of the cafe, and that there were a lot of people standing around the machine; but that they did not see any one playing the machine. That after the machine was brought to the sheriff’s office, they pulled down on the trip from the back of the machine, and recovered $6.35 in nickels from the machine. The sheriff testified that in his opinion the machine could be operated; and one of the deputy sheriffs testified that he did operate the machine.

Under this evidence, the court was justified in finding as a fact that the machine was set up and capable of being operated at the time it was found in the possession of the defendant by the officers; and for that reason, it becomes unnecessary for us to decide the question as to whether section 6, supra, requires that the slot machine must be set up and capable of being operated at the time it is found in order to constitute a violation of said section.

The defendant further complains of the action of the court in permitting the county attorney at the commencement of the trial to strike from the information certain allegations therein contained, wherein it is stated that the machine had been set up and was operating in the defendant’s place of business.

The defendant contended this allegation made the information duplicitous as charging both the possession of the slot machine and a violation of section 7 of the statute, 21 Okla. St. Ann. § 970, herein involved which provides a penalty for' the setting up and operation of a slot machine.

When the defendant presented this question to the court, the county attorney asked leave to strike that part of the information relating to’ the operation of the slot machine; and upon permission being granted by the court, this phrase was stricken from the information.

This was a matter addressed to the discretion of the trial court; and it is not shown that the acts of the court were an abuse of discretion or that such amendment affected any substantial rights or materially prejudiced the defendant.

This action was instituted about a month after the act herein involved became effective; and it is apparent from the record that the defendant intended to make a test case involving the constitutionality of House Bill No. 125, supra.

However, subsequent to- the filing of this charge against defendant, this court in Ex parte Davis, 66 Okla. Cr. 271, 91 P.2d 799, and Couch v. State, 71 Okla. Cr. 223, 110 P.2d 613, has sustained the validity of this act, and, no further question concerning the legality of said law is raised on appeal herein.

For the reasons above stated, the judgment of the county court of Choctaiv county is hereby affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent


text:
    RALPH K. JENNER v. STATE.
    No. A-9815.
    June 18, 1941.
    As Modified July 23, 1941.
    (114 P. 2d 958.)
    Robert H. Warren, of Hugo, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ralph K. Jenner, was charged by information in the county court of Choctaw county with the offense of possession of a slot machine, a jury was waived, the defendant tried, convicted and sentenced to pay a fine of $50, and he has appealed to this- court.

This case involves the same questions as have been this day decided in case Nx A-9814, Jenner v. State, 72 Okla. Cr. 232, 114 P. 2d 956. The facts show that the same officers who seized the machine involved in case No. A-9814, supra, went to, the defendant’s place of business ten days later at 10 p. m. There was no machine on the premises at that time. At 2 a. m. the same night, the 'officers returned and found the machine sitting in the front part of the cafe. There was no- one playing the machine when the officers arrived. This case is only different from the case of Jenner v. State, supra, in that it is admitted by the defendant in this, case that the machine was, capable of being operated, while it was contended in the former case that the tubes of the machine had been stuffed with paper to prevent its operation.

The defendant’s contention herein is that the machine had been in the kitchen, stored away from the public to where the same would not be used, but that it had become necessary to use the kitchen for the stacking of some cases, and that the machine had been temporarily moved to the front of the cafe. That it was not moved into the café for the purpose of having the same played, but that orders had been given to- the employees to not allow the public to play on the machine.

There was some small amount of money in the machine.

Some question was raised in the brief of the defendant concerning the sufficiency of the information; but attention is directed to the fact that this alleged defect was not called to the attention of the trial court by demurrer or any other pleading. The defendant was not arraigned until the day of his trial and at that time entered a plea of not guilty, which waived such alleged defect. While the information possibly should have given more details concerning the nature of the machine involved in this action, still the same is sufficiently alleged to inform the defendant of the charge against him; and in the absence of a demurrer, the same is sufficient to' confer jurisdiction Upon the county court to hear said charge and to sustain the judgment of conviction.

We find the evidence is sufficient to sustain the judgment of conviction, but under the facts and circumstances of this case justice will be met by modifying the sentence imposed upon the defendant from a fine of $75 and a term of 15 days in the county jail to a fine of $50.

The judgment of the county court of Choctaw county is therefore modified from a fine of $75 and a term of 15 days in the county jail to a fine of $50, and the judgment and sentence as thus modified is accordingly affirmed.

Mandate is ordered issued forthwith.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


text:
    WILLIE WHITE v. STATE.
    No. A-9821.
    June 18, 1941.
    (114 P. 2d 959.)

      Sigler & Jackson, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   JONES, J.

The defendant, Willie White, was charged in the county court of Carter county with unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve a term of 30 days in the county jail and to pay a fine of $50, from which judgment and sentence he appeals to this court.

Defendant makes several assignments of error; however, we find it necessary to consider only his contention that the trial court erred in overruling his motion to suppress the evidence on the ground that the description in the search warrant of the place to be searched was insufficient.

The description in the search warrant of the premises to be searched is as follows:

“The S & S Sandwich Shop, located south & west of Ardmore City limits whose more full, true and correct name is unknown, in a certain building and on certain premises described as follows, to-wit: A one story frame building, located south and west of Ardmore, City limits, just west of Highway No. 77 in said County and State.”

This search warrant was served on defendant, his! place searched, and between two and three pints of whisky found.

Defendant testified in the hearing upon the motion to suppress that the name of his place of business was the “S and S,” and that it was located a mile and a half south of Ardmore. There are eight or ten places of business between his premises and the Ardmore city limits. His place was about two hundred yards west of Highway No. 77.

The warrant does not name the owner or person in control of the premises and states incorrectly the name of the place of business to be searched. In relying upon the description set out in the search warrant, the officers were directed to> search a one-story frame building, in Carter county, west of Highway N0. 77, south and west of the Ardmore city limits.

Under this description, no' officer unfamiliar with the country could have located definitely the place to be searched. So far as the information in the search warrant is concerned, the place could have been one or ten miles southwest of Ardmore. The officers would have had to resort to outside information to find the place involved.

It has been many times held by this court that a search warrant must so particularly describe the place to be searched that the officer to whom it is directed may determine it from the warrant, and that no discretion as to the place to be searched should be left to the officer. Clanton v. State, 59 Okla. Cr. 365, 60 P.2d 415; Cook v. State, 40 Okla. Cr. 219, 267 P. 1045; Ogle v. State, 48 Okla. Cr. 4, 288 P. 1000; Burleson v. State, 47 Okla. Cr. 412, 288 P. 989.

We are of the opinion that the search warrant in this case is void for indefiniteness; in the description of the place to be searched.

This case is accordingly reversed and remanded, with instructions to dismiss.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


author: BAREFOOT, P. J.

text:
    BEN F. NEVILLE v. STATE.

      No. A-9820.
    June 25, 1941.
    (114 P. 2d 961.)
    L. E. Roseboom, of Enid, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Hugh Conway, Co. Atty., of Enid, for the State.
   BAREFOOT, P. J.

Defendant was charged in the county court of Garfield county with the crime of assault and battery, entered a plea of guilty and was by the court assessed a fine of $100 and 30 days in jail, and has appealed.

The appeal in this case is by transcript. It reveals that an information was filed in the county court of Garfield county on the 19th day of January, 1940, charging the defendant with the crime of assault and battery upon the person of Catherine Edwards, “by then and there laying his bauds upon the said Catherine Edwards in an indecent- and lewd manner.” On the same date, to wit, the 19th day of January, 1940, defendant was taken before the county judge and entered a plea of guilty and was immediately sentenced to pay a fine of $100 and serve 30 days in the county jail. On the same date and a few hours after said plea of guilty had been entered, defendant employed an attorney and filed a motion asking the court to' permit him to withdraw his plea of guilty entered therein and enter a plea of not guilty. This motion was as; follows:

“Comes now Ben F. Neville, defendant in the foregoing case, and states that he wishes to withdraw his plea of 'guilty’ in this case, heretofore entered, and asksi the court to set alside the judgment and sentence heretofore entered on his plea of guilty and permit him thereafter to enter his plea of not guilty for the followingreasons, to wit:
“First. That at the time he entered his plea of guilty, he was not represented by counsel and did not understand the nature of the crime and did not know that the offense of assault and battery carried with it a jail sentence.
“Second. That the defendant was surprised at the judgment and sentence of the court, in that, to wit: the court assessed this defendant a fine of One Hundred Dollars ($100.00) and sentenced him to serve a term of thirty (30) days in the common jail of Garfield county.
“Third. That he is in fact not guilty of the charge of assault and battery and has a meritorious defense tO' said charge, and that he verily believes that, if granted leave to withdraw his plea of guilty and have the judgment and sentence heretofore filed set aside, that upon the trial of the issues in this case, he will be found not guilty.
“Fourth. That he was never arrested before in his life or convicted of any misdemeanor or crime and had had no, previous experience in a criminal court and did not understand the seriousness of the charge; that he has been a railroader for more than 30 years and is at the present time an engineer on the Rock Island Railroad with headquarters in El Reno, Okla., a married man, and bears a reputation for being a quiet, peaceable, law-abiding citizen in the community where he has resided at El Reno; Okla.
“Fifth. That Hon. Glenn Nixon, the Chief of Police of the City of Enid, advised this defendant to plead guilty to said charge, and advised this defendant to' not employ counsel, and advised this defendant that the court would probably not fine him over Five or Ten Dollars and costs; and that he relied on said legal advice and believed the same which was voluntarily given him by the Hon. Glenn Nixon.
“Sixth. That he voluntarily gave a statement in writing to Hon. Glenn Nixon, Chief of Police of the City of Enid, Okla,., which said statement was untrue and unfounded, but which statement the chief of police told him would help to clear the record in the matter that it could be handled immediately and without delay or embarrassment to, this defendant, but that he was; taken by surprise on the judgment and sentence of this honorable court; and that the statements and representations made by the chief of police as aforesaid have proven false and untrue; and that unless the judgment and sentence is set aside and this defendant permitted to withdraw his plea of guilty and enter a plea of not guilty, that he will suffer irreparable damage on account of languishing in the common jail of Garfield County for a period of thirty (30) days in that, to wit: He will probably lose his seniority on the Rock Island Railway, get fired permanently from the employ of said railroad and lose his good reputation and standing in the community at, El Reno; Oklahoma where he has resided many years.
“Seventh. That he verily believes that if the court reopens his case and permits him to defend this action, that he will secure at the hands of a jury a verdict of not guilty.
“Eighth. That the court has jurisdiction to set aside said judgment and sentence and permit him to withdraw his plea of guilty and enter a plea of not guilty.
“Wherefore, defendant moves this honorable court to set aside the judgment and sentence heretofore entered against him and permit him to withdraw his plea of guilty and enter a plea of not guilty.”

He also, on the 20th day of January, 1940, filed a demurrer, and also> on the same date a motion to vacate and set aside the judgment and sentence, and on the same date, to wit, January 20, 1940, the court entered an order denying defendant the right to withdraw the plea of guilty and enter a plea of not guilty and also overruling the demurrer to the information, the motion to vacate the judgment and sentence, and the motion for a new trial, to all of which defendant excepted.

From the above orders and judgment defendant has appealed to this court setting forth the following, assignments of error:

“1. The court erred in overruling a motion to withdraw plea of guilty of plaintiff in error, filed within a few hours and on the same day judgment and sentence! was entered against him.
“2. The court erred in overruling plaintiff in error’s demurrer to the. information.
“3'-. The court erred in overruling plaintiff in error’s motion to vacate judgment and sentence.
“4. The court erred in overruling plaintiff in error’s motion for new trial.
“5. The judgment is contrary to> law.
“6. The court erred in not advising the plaintiff in error of his constitutional rights to twenty-four hours’ time to' plead on arraignment, right to' a trial of the issues, the right to be represented by counsel, and his legal right to appeal from the judgment and sentence of the court.
“7. The judgment and sentence is voidable on its face.”

After a careful review of this record, we are of the opinion that it is only necessary to- consider the first assignment of error, viz., that the court erred in refusing to set aside the plea of guilty entered by defendant and permitting him to enter a plea of not guilty. This question has been before this court on many occasions', both in felony and misdemeanor cases. There can be no question as to the law in this case. The only question is, Did the court abuse the discretion vested in him by denying the defendant the right to withdraw his plea of guilty and enter a plea of not guilty? Tipton v. State, 30 Okla. Cr. 56, 235 P. 259; Polk v. State, 26 Okla. Cr. 283, 224 P. 194; Morgan v. State, 33 Okla. Cr. 277, 243 P. 993; Hart v. State, 29 Okla. Cr. 414, 233 P. 1095; Mullen v. State, 28 Okla. Cr. 218, 230 P. 285; Fromcke v. State, 37 Okla. Cr. 421, 258 P. 927; Turner v. State, 33 Okla. Cr. 97, 242 P. 1053; Heath v. State, 23 Okla. Cr. 382, 214 P. 1091.

In the case of Tipton v. State, supra [30 Okla. Cr. 56, 235 P. 259], this court said:

“But where, under such circumstances, a plea of guilty is entered, a defendant should be informed of his right to counsel at every stage of the proceedings — of his right to a preliminary and to make bond if the charge is bailable. There should be no' unseemly haste. Trifling with the court by entering and withdrawing pleas is not to' be tolerated; but, under the record above recited, we believe it was an abuse of discretion to deny the defendant’s request to withdraw his plea, of guilty. Without determining whether the proceedings up to' the time of entering the plea of guilty in the district court constituted due process of law, we believe that such a state of facts is shown that makes it appear that the plea of guilty was entered hastily without proper safeguards, without deliberation, and ignorantly by the defendant; that the court should have permitted the same to have been withdrawn upon the application made even after judgment.”

In the Heath Case, supra,, the writer of this opinion recalls that the court permitted the withdrawal of the plea of guilty permitting a plea of not guilty to be entered under circumstances very similar to the case at bar.

The above cases express our feeling and conviction in the instant case. It is true that the defendant was a man of mature years, and that under the law he had the right to plead guilty, but it is also revealed that his arrest was in a county other than that of his residence and home. He had voluntarily appeared before the authorities and gave them information before he was even arrested. That he was, an engineer for the Rock Island Railroad and had been for a long period of years. That he was a resident of El Reno, Canadian county, and was a married man and had a good reputation as a quiet, peaceable, law-abiding citizen. That he had never before been arrested and had never been convicted of any crime of any character. That he had not had any experience in criminal courts and did not understand the seriousness of the charge with which he was confronted. That, he Avas advised by the chief of police, whom he named in his application, that if he entered a, plea of guilty he would not be fined over $5 or $10 and costs, and that, relying upon this advice and without employing counsel to assist him, he entered a plea of guilty and was by the court fined in the sum of $100 and sentenced to serve 30 days in the county jail. A few hours after this sentence was rendered, he secured counsel and appealed to the court to set the judgment and sentence aside and permit him to withdraw his plea of guilty and enter a plea of not guilty. This, in our opinion, could have been done without injury to the state or the defendant. There had been no unnecessary delay, and on the other hand there had been unusual haste. It was alleged in his motion that, if the judgment and sentence was permitted to stand, this defendant, who for many years, had been an engineer on the Bock Island Bailroad, would not only lose his good standing and reputation as a citizen of this state, but stood a chance of losing his valuable rights of seniority to which he was entitled as ad engineer of a great railroad, and all this without an opportunity to present the facts in the case to' a jury of his peers that they might pass upon the question of his guilt or innocence in accordance with the facts.

The charges in this case were the outgrowth of a fight between the defendant and prosecuting witness', who was hitch-hiking and had secured a ride with defendant. Defendant had immediately reported it to- the police of the city of Enid. The prosecuting witness was: apprehended and filed the charges against defendant. Certainly this was a case for the proper consideration of a, jury Under the facts above stated.

We are of the opinion that the court abused his discretion in refusing to permit the defendant the right to withdraw his plea of guilty and enter his plea of not guilty.

It is unnecessary to> consider the other assignments of error, and for the reason above stated the judgment and sentence of the county court of Garfield county is reversed and remanded with instructions to- take such further action as is deemed proper and advisable.

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


text:
    DICK BARKER v. STATE.
    No. A-9812.
    June 25, 1941.
    (114 P. 2d 960.)
    Laynie W. Harrod, of Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for the State.
   JONES, J.

The defendant, Dick Barker, was charged by information in the court of common pleas of Oklahoma county with the offense of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve a term of 30 days in the county jail and to pay a fin© of $50, from which judgment and conviction he appeals to this court.

The only assignment of error urged by counsel for defendant is that the evidence is insufficient to support the conviction.

The testimony offered by the state was that Officers Isenhour and Davis, on the evening of June 24, 1939, saw the defendant standing in some weeds behind the Swingtime Night Club. When the defendant saw the officers, he dropped an object which the officers found to1 be a pint of whisky. They searched the ground near where the defendant had been standing and found one more pint. Defendant claimed the pint he had dropped, and stated that he had come back there to take a drink from this pint, which he had hidden earlier in the evening. Officer Isenhour stated that he had seen defendant sell a pint of whisky on the Saturday night the week before he caught him with this whisky.

The evidence offered on behalf of the defendant wasi that one Fred Dobbs had been at the Swingtime that night, and had tried to buy a pint of whisky from a man in a car, whose name he did not know; however1, this bootlegger would not sell a single pint, but Avould sell him two. As Dobbs didn’t have enough money to buy two pints, defendant agreed to take one of them. When the whisky was delivered, Dobbs and defendant hid it in the weeds at the rear of the nightclub. Defendant went out to take a drink and was arrested by the officers. There was some testimony that defendant had been on a car-wrecking job at Wewoka, and had not been selling whisky.

A jury was waived, and this cause tried by the court. The defendant urges that since there was not in excess of one quart of intoxicating liquor found, the evidence is insufficient to make a prima facie case and wholly insufficient to support a conviction.

It has been stated that the intent is the gist of the offense of unlawful possession of intoxicating liquor, and cannot be presumed where the amount is not in exeesd of one quart, but must be shown by competent evidence! and beyond a reasonable donbt to exist.

However, the question of the intent with which a possession of whisky is had is a question of fact which may be determined by all the facts and circumstances in the case. Here the facts, show that the defendant was an employee of the Swingtime Night Club; neither of the two' pints of whisky which were found had the seals broken. On a similar occasion, a few nights previously, one of the officers had seen the defendant make a sale of whisky.

In Richerson v. State, 43 Okla. Cr. 293, 278 P. 356, it is stated:

“Where one is charged with the possession of a specified quantity of liquors with an intent to illegally dispose of the same, evidence of sales or attempted sales at or near the time may be shown to establish the illegal intent.”

See, also, Brady v. State, 59 Okla. Cr. 60, 56 P.2d 913.

It is significant that the defendant testified in his own behalf, but did not deny the testimony of the officer who said he had seen the defendant make a, sale of whisky a few days before the occasion in question.

The defendant admitted the possession of whisky and makes an explanation that one pint of the liquor was for his use to drink and the other pint belonged to one Fred Dobbs, who, had bought it and had hidden it in the weeds where he could later take a drink from it.

The question of the intent with which the possession was had, under the circumstances herein, was a matter for the determination of the trial court. There is, sufficient evidence in the record to sustain his finding that the defendant had the possession with intent to sell.

The judgment of the court of common pleas of Oklahoma county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J,., absent.


text:
    Ex parte LeROY TINER.
    No. A-10020.
    June 25, 1941.
    (115 P. 2d 282.)
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
    H. M. Shirley, of Coalgate, for petitioner.
   BAREFOOT, P. J.

Petitioner, LeRoy Tiner, has filed in this court a petition for writ of habeas corpus seeking'his release from the penitentiary at McAlester, where he is now serving a term of 15 years for robbery with firearms in Tulsa county. His petition is based upon the grounds that in the preliminary complaint filed against him in the court of common pleas of Tulsa county, he was charged Avith having robbed Hansel Dunbar, and that in the information filed in the district court he was charged with having robbed Chester Purcell, contending he had never had a preliminary examination for the robbery of Chester Purcell and had not been arraigned for the robbery, and that the judgment and sentence is contrary to the laws of the state of Oklahoma and in violation of his constitutional rights. .

The Attorney General on behalf of the state has filed a demurrer to the petition.

Attached to the petition is a copy of the preliminary 'complaint and also a copy of the information filed in the district court. At the time of the hearing to show cause, counsel for petitioner introduced in evidence the case-made in Roy Tiner v. State, 64 Okla. Cr. 13, 76 P.2d 411, which was filed in this court on appeal of the said Roy Tiner upon the identical charge here being considered. This appeal was fully briefed and presented both by the defendant and by the state and was affirmed by this court.

In the brief on behalf of petitioner it is contended that the distinct court appointed an attorney to represent him and that he was not properly represented and his rights protected. We have carefully examined the record which was introduced in evidence by petitioner and find that no part of the proceedings before the committing magistrate is contained in the record. There is nothing to show whether petitioner waived preliminary examination or whether evidence was taken and the defendant afterward bound over to the district court. Under the law the presumption is that the proceedings were regular. In the recent case of Potts v. State, 71 Okla. Cr. 91, 113 P.2d 839, 841, it, is stated:

“It has been the holding of this court that, where one is charged in a justice of the peace court by preliminary complaint and an examining trial has been had and the defendant held to the district court, the county attorney is authorized to' file an information in the district court upon any reasonable charge which the facts at the preliminary examination justify, and that if a preliminary is waived, as was done in this case, he may file an information in substantial compliance with the complaint filed before the justice of the peace. Rickman v. State, 70 Okla. Cr. 355, 106 P.2d 280; Little v. State, 21 Okla. Cr. 1, 204 P. 305; Wade v. State, 18 Okla. Cr. 592, 197 P. 180; Johnson v. State, 21 Okla. Cr. 17, 204 P. 311.”

The presumption is that the evidence taken at the preliminary revealed facts sufficient for the filing of the information in the district court in its present form. It is revealed by the record that Chester Purcell was assistant manager of the Sipes, Grocery Company, the store that was robbed by defendant and his codefendant. The general manager was absent. The record does not affirmatively show whether Hansel Dunbar was the manager who- was; absent. If the facts developed at the preliminary were that Chester Purcell was the party actually robbed, then the county attorney under the rule above announced would be authorized to file an information charging defendant with the robbery of Chester Purcell. In the absence of proof, the presumption is that he followed the law.

The record reveals that when defendant appeared in court for arraignment he was accompanied by his counsel, Bill Foreman. The defendant entered his plea of not guilty and the case was set for trial on November 16th. On November 10th defendant and his counsel appeared in court, and Mr. Foreman was permitted to- withdraw as counsel. No- motion to- quash the information or demurrer thereto was filed. When the case was finally reached for trial on the 18th of November, defendant was represented by attorney C. L. Hamilton. There is no order in the record showing that he was appointed by the court, and there is nothing to show that defendant was not properly represented at the trial. The same counsel continued to represent defendant in the filing of a motion for new trial and securing an order for the preparation of case-made at the county’s expense preparatory to an appeal. The appeal was presented by other counsel, presumably employed by defendant. Under the above statement of facts, it clearly appears that habeas corpus will not be allowed to correct errors or irregularities of procedure where the court had jurisdiction of the person and subject matter. There was nothing to render the judgment and sentence void. In the case of Ex parte Robinson, 56 Okla. Cr. 404, 41 P.2d 127, the court says:

“Habeas corpus cannot be used to correct errors or irregularities of procedure, where there is jurisdiction. There must be illegality or irregularity to render the proceeding void or to constitute a want of due process before habeas corpus will lie. * * *
“(a) The constitutional provision, article 2, § 17, Oída. St. Ann., that hm person shall be prosecuted for a felony by information without having had a preliminary examination before an examining magistrate, or having waived such examination,’ is for the benefit of an accused and which, by express terms of the Constitution, he may waive.
“(b) The fact that accused has had a preliminary examination need not be alleged in the information or shown affirmatively by the state, the law presumes that accused has had a preliminary examination or has waived it, and when accused relies upon the want of a preliminary examination, the proper practice is to raise the question by motion to quash or set aside, before pleading to the merits.
“(c) Objections to an information, based on the absence of any essential preliminary proceeding, should be made by proper motion or plea, before pleading to the merits.
“(d) A preliminary examination may be waived before the committing magistrate or the entire preliminary proceedings may be waived in the trial court and is waived by failure to file a motion to quash or set aside in apt time.”

See, also, Sheller v. State, 58 Okla. Cr. 204, 52 P.2d 105; Ex parte Davis, 68 Okla. Cr. 29, 95 P.2d 915; Ex parte Newman, 67 Okla. Cr. 401, 94 P.2d 556; Ex parte Wheeler, 65 Okla. Cr. 290, 85 P.2d 434.

For the reasons above stated, the demurrer of the state to the petition for writ of habeas corpus should be sustained, and the writ denied. It is so ordered.

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


text:
    LEE HERREN v. STATE.
    No. A-10034.
    June 25, 1941.
    (115 P. 2d 258.)

      John B. Ogden, of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gem, and Jess. L. Pullen and J. Walker Field, Asst. Attys. Gen., for defendant in error.
   JONES, J.

The defendant was; charged by informa.tion filed in the district court of Garter county with the crime of receiving stolen property, was convicted and sentenced to- serve one year and one day in the State Penitentiary, and has appealed.

Three assignments of error a,re presented in the brief of the defendant filed herein, to wit:

First. Action of the justice of the peace in refusing to continue the preliminary hearing because of the absence of defendant’s counsel was a denial of the defendant’s constitutional right to> be represented by counsel in every stage of the proceeding.

Second. The justice of the peace did not have jurisdiction to conduct the examining trial for the reason that the defendant filed an affidavit for a change of venue on account of the bias and prejudice of the justice of the peace, which change of venue was denied.

Third. Error of the district court in permitting the county attorney to materially amend the information after the trial had begun.

Counsel for defendant has filed a comprehensive brief covering- the first two assignments of error, thoroughly presenting the law in support of his contentions. At the time the case was argued, this court remarked that it was much impressed with the merit of counsel’s; argument; but upon thoroughly checking the record, we are unable to find anywhere in the record any facts to support the contention of counsel. The propositions of law presented are correct; but they have no factual situation in the record to support, them,.

Both of these assignments of error are based upon events; which are alleged to have happened before the magistrate who' held the preliminary examination. The transcript of the papers filed before the justice of the peace are not included in the record. No transcript of the evidence or proceedings had before the justice of the peace appears in the record. The only statement in the record, which would in any way indicate that the events upon which these two propositions are based occurred before the examining- magistrate, is set forth in a motion to quash the information filed by defendant upon his arraignment in the district court. This motion to- quash the information properly raised the two questions presented by counsel. The motion to quash raised certain questions of fact for the determination of the district judge. In examining the record, we do not find any evidence submitted by the defendant in support of his motion to quash; and, in fact, so far1 as the record discloses, the motion to quash was never presented to the district court as there is no minute and no order appearing anywhere in the record showing that the motion to' quash was ever presented or passed upon by the judge. So far as the record discloses, the motion to quash was filed prior to the time a demurrer attacking the sufficiency of the information was filed; but there appears a minute of the district court proceedings upon arraignment showing the demurrer was overruled, with exception allowed to the defendant, whereupon the defendant entered his plea of not guilty. The minute is silent as to any presentation or disposition of the motion to quash. The record is properly certified that it contains a true and correct copy and transcript of all pleadings, motions, orders, objections, and rulings by the court, all of the evidence and other proceedings in said cause; and this court is bound by such record. Nowhere in the record is there shown what disposition was made of the motion to quash. Asi was stated by this court in the recent case of Sweet v. State, 70 Okla. Cr. 443, 107 P.2d 817, 821:

“A matter assigned as error in the motion for a new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered in the appellate court,” cited from Saunders v. State, 4 Okla. Cr. 264, 111 P. 965, Ann. Cas. 1912B, 766.

When a motion to quash an information is filed upon arraignment of an accused in district court because of the absence of some essential proceeding in a preliminary examination, a question of fact is raised for the determination of the district court. In order for this court to determine whether the trial court proceeded correctly in the! disposition of this motion, a record should be made of the facts introduced in support of the motion toi quash. In the absence of any record as to the facts introduced pro and con on a motion, the presumption follows that there were facts introduced which sustained the judgment of the court.

The defendant’s constitutional right to be heard by counsel is a right which may be waived. The record is silent as to whether defendant wras heard by counsel at the preliminary examination or whether he even had a preliminary hearing. When a record is silent as to' certain proceedings had upon the trial, every presumption of law is in favor of the regularity of the proceedings; and in order for this presumption to be overcome, the contrary must affirmatively appear in the record. Killough v. State, 6 Okla. Cr. 311, 118 P. 620; Henry v. State, 10 Okla. Cr. 369, 136 P. 982, 52 L.R.A., N.S., 113.

It is stated in 22 C.J.S., Criminal Law, § 589:

“In the absence of proof to the contrary, the proceedings of courts properly exercising criminal jurisdiction are presumed to be regular, and the mere failure of their records to' show this, does not overcome the presumption. •X* *X* w
“In the absence of a showing to' the contrary, the law presumes that accused has had a preliminary examination or has waived it, that proceedings leading up to a commitment by a magistrate were regularly conducted, that the magistrate performed the duties imposed on him by law, and that such duties were performed by the magistrate in good faith.”

In the case of Ex parte Robinson, 56 Okla. Cr. 404, 41 P.2d 127, 129, it is held:

“A preliminary examination may be waived before the committing magistrate or the preliminary examination, and the entire preliminary proceedings may be waived in the trial court and. is waived by failure to file motion to quash or set aside as provided by the statute before entering a plea on the merits.”

Counsel for defendant raised the questions presented in his first two assignments of error by filing a motion to quash the information; but this motion to quash, soi far as is disclosed by the record, was never presented to the court, and counsel waived the presentation of the same by entering his plea to the merits of the case.

After a plea of not guilty is entered, the question as to failure to have a preliminary examination may not be raised by an objection to the introduction of evidence at the beginning of the trial, which was attempted by counsel for defendant.

When the objection to the introduction of evidence was interposed, defendant had incorporated in the record affidavits from four parties residing in the State of Texas, in which they stated that counsel for defendant was engaged in the trial of a case in Texas at the time it is alleged that the defendant had a preliminary examination. These affidavits are included in the case-made; and other than the fact that such question could not be raised at that stage of the proceedings, these affidavits, standing alone, are not sufficient to sustain the contention of counsel.

The first two assignments of error must fail because they are not sustained by the record.

The other assignment of error presented by the defendant concerns an amendment to the information made by the county attorney just before the close of the state’s ■case.

The original information charged as follows:

“That the said Lee Herren in said county and state aforesaid, on the day and year aforesaid, did knowingly, willfully, unlawfully, wrongfully and feloniously buy and receive from Lester Herren, Earl Herren, Helen Herren and Walter Brady for the consideration of $-, lawful money of the United States, certain personal property, to- wit: three pairs of men’s shoes, three silk slips, 12 new men’s shirts, 20 pairs of socks, 8 bolts of outing, bacon, and various other merchandise, which said property the said Lester Herren, Earl Herren, Helen Herren and Walter Brady had heretofore stolen from Willie Ho-lmes, as he, the said Lee Herren at the time he bought and received said property then and there well knew; contrary to the form of the Statutes, in such cases made and provided, and against the peace and dignity of the State.”

The record discloses the following:

“By Mr. Pullen, Assistant Attorney General: Comes now the State of Oklahoma by and through the Attorney General and the County Attorney of Carter County, and asks- leave of the court to amend the information herein by interlineation by adding after the word ‘Brady,’ in the fourth line of the body of the charge, ‘and others unknown,’ and then in the seventh line after the word ‘bacon’ we desire to- add the words-, ‘coffee and syrup pepsin,’ and then in the ninth line after- the word ‘Brady’ we desire to- add the words ‘and others unknown to- your county attorney.’ By Mr. Ogden (of counsel for defendant) : To which the defendant objects for the reason it is improper- at this- time, and the state announced ready for trial heretofore, and it is. now 3':2o o’clock in the afternoon and the case has been in progress since 9 o’clock this morning, and a. great number of witnesses who- have testified and the defendant is not ready to- go- to trial and has not had an examining trial, other than that originally charged in the information and has not had time to plead thereto, and has not been arraigned thereon, and objects to any amendment being made as it deprives: him of his. constitutional rights and his rights to plead, and he has- never been arraigned on this new charge now, or had an examining trial on that charge-, the purported new charge. By the- Court: I will overrule the objection and permit the interlineation of the information for the reason it is not a material variance. It does not change any of the dates, or any of the names of the defendant, or the names, it will not affect the witnesses in the least as the same witnesses would probably testify now as heretofore. By Mr. Ogden (of counsel for defendant) : To> which we except as we have never had an examining trial' and have never been arraigned or plead to this charge. Ho you desire to arraign him on this new charge, if the court please? By the Court: It; is not a material variance, proceed.”

As to just what constitutes a variance in a criminal case is defined by this court in the case of Hatley v. State, 72 Okla. Cr. 69, 113 P. 2d 396, 397:

“A variance in a criminal case is an essential difference between the accusation and the proof. A variance is not material unless it is such as might mislead the defense or expose a defendant to being put twice in jeopardy for the same offense.” Brashears v. State, 38 Okla. Cr. 175, 259 P. 665; Woods v. State, 22 Okla. Cr. 365, 211 P. 519.

It is the theory of the defendant that the addition of the articles, coffee and syrup of pepsin, substantially changed the offense with which the defendant stood charged, and was such an amendment as to constitute a new charge, requiring the defendant to be rearraigned! and to entitle him to the statutory period of 24 hours in which to plead to the new charge.

In determining this question, we are confronted with two queries:

First. Was the amendment one of substance or one of form?

Second. Hid such amendment prejudice the rights of the defendant?

In determining these questions it becomes necessary to examine the evidence introduced by the state. The testimony of a large number of witnesses was introduced, including the testimony of several merchants whose places of business had been robbed in various counties in southern Oklahoma and who had recovered a part of their property in the store of the defendant.

Willie Holmes testified that on October 26, 1939, his store in Johnston county was burglarized and some $500 worth of merchandise taken. Earl Herren, Lester Herren and Walter' Brady were seen (according to the testimony of other Avitnesses) to drive up in front of the Holmes store and stop, while Walter Brady got out and went into the store and purchased a bottle of soda pop. The burglary occurred that night. Earl and Lester Her-ren and Walter Brady were tried for burglary and convicted in the district court of Johnston county. Holmesl testified that he recovered most of the stuff taken from his store at Earl Herren’s place in Johnston county, but that he did recover about 15 sacks of sugar and some coffee and syrup of pepsin at Lee Herren’s store in Carter county.

He identified the coffee by its brand and by reason of the fact that it had set under a box containing salt meat, and salt had sifted through and caked on the top of the coffee cans'. The syrup of pepsin was identified by a peculiar blue spot on the side of the box, down towards the bottom. About two days after this stuff Avas stolen from the complaining witness, the witness went with the sheriff of Johnston county to’ Lee Herren’s store in Carter county to ascertain whether any of his stolen property was in the defendant’s store. There were a large number of people there at that time from other places! on a similar mission. The only property which the witness was positive belonged to him Avas later taken back to Johnston county and left in the custody of the sheriff of that county. The witness was asked on cross-examination concerning the various items specifically named in' the information; and he testified that that stuff was stolen, but recovered at Earl Herren’s place. The witness further testified that the sheriff of Carter county did not want them to take the coffee and syrup of pepsin, which he had identified at that time, after which the following questions and answers appear in the record:

“Q. He told you he could not let you have it because Lee Herren claimed it also? A. Yes, sir. Q. Lee Herren is still claiming it, he was claiming it on Monday wasn’t he? A. I guess SO1. * * * Q. Mr. Holmes, when did you first discover this blue mark on the side of the syrup of pepsin box? A. When the truck brought it into' my place. Q. You testified at Tishomingo in a case against Earl Herren? A. Yes, sir. Q. Didn’t I ask you! how you could identify it and you said you would not testify on that at that time and later you went, out and came back and testified about it? A. No. Q. Didn’t you testify on cross-examination that you did not observe the blue mark on the box of syrup of pepsin — tell how big it was. A. If I had a piece of paper I might show you how big, I might show you about the size of it.”

These questions and answers are significant as bearing on the question as to. whether the defendant was surprised by the nature of the testimony given by this witness., for here we find the attorney for the defendant thoroughly cross-examining him on the items which were not specifically named in the information, but which the witness identified and claimed that he found in the store of the defendant. A reasonable person could but conclude! from this testimony that the defendant knew what property Holmes had claimed at defendant’s store, and knew before the trial started that Holmes would limit the items recovered from the possession of defendant to coffee, syrup of pepsin, sugar and K. C. Baking Powder.

•Mm Willie Holmes corroborated the testimony of her husband as to the articles which were stolen from their store. The rest of the state’s testimony included testimony by peace officers from various counties and from merchants who had recovered merchandise which had previously been stolen from them at Lee Herren’s store. One merchant testified concerning a radh> which (had been stolen from him and found in the defendant’s store, which he identified by a serial number which was) on the invoice which he had received for the radio'. A large amount of merchandise belonging to different merchants was identified by the cost mark of the different merchants, who had placed the cost mark upon the merchandise, which was later stolen and recovered in defendant’s store.

This testimony of other offenses was admitted by the court as bearing upon the question of the guilty knowledge of the defendant in the particular crime for which he was being tried.

The record discloses that a large amount of the testimony concerning the coffee and syrup of pepsin, which the witness, Holmes, testified had been stolen from him, was admitted in evidence without any objection on the part of the defendant; and the witnesses whn testified concerning these articles were cross-examined at great length. And it is very evident from the record of the cross-examination that counsel for defendant had advance knowledge concerning the coffee and syrup of pepsin by the nature of the questions which he asked on cross-examination.

It is further significant that at no* time did counsel for defendant move to strike the testimony as being at variance with the allegations contained in the information; and at no time did counsel for defendant indicate they were surprised or ask for a continuance for the purpose of enabling them to meet this evidence.

The record discloses that after the state had introduced the testimony of 14 witnesses and had introduced all of its evidence with the exception of the testimony of one witness that the Assistant Attorney General asked leave to amend the information, which application, together Avith the objection of defendant and all proceedings thereon, have been hereinabove set forth.

It is noted that the objection of the defendant is directed solely to the proposition that the amendment constituted a new charge and that the defendant should have been rearraigned upon the new charge. There is no contention made by counsel for defendant in the record that the amendment to the information operated against him in any manner or Avas prejudicial to; his defense:. All of the objections which counsel interposed at the time are set forth in the statement hereinabove given.

As further evidence of the fact that the defendant was not prejudiced by reason of the admission of the evidence concerning the coffee and syrup of pepsin and of the amendment of the information to conform to the proof is the fact that the defendant had present at the beginning of the trial and introduced the testimony of the witness who' claimed that he was the traveling salesman and who sold defendant’s wife, at defendant’s store, coffee and syrup of pepsin Avhieh defendant and his wife testified was that claimed by the Avitness, Willie Holmes.

Never at any time in the record is there a contention made by the defendant that he Avas not prepared to meet the question as to the ownership of the coffee and syrup of pepsin.

Section 2830, O. S. 1931, 22 Okla. St. Ann. § 304, is as follows:

“An information may be amended in matter of substance or form at any time before tbe defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause any delay of the trial, unless for good cause! shown by affidavit.”

In applying this statute, our court has held that if the amendment is one of substance so that it charges a new crime, or where the amendment has the effect of charging a crime where the information never had charged any offense prior to the amendment, that it was error for the court not to> rearraign the defendant and give him the statutory time in which to plead to the new charge. Trent v. State, 66 Okla. Cr. 302, 91 P.2d 790; Potts v. State, 72 Okla. Cr. 91, 113 P.2d 839.

The statute has been given this construction because a literal interpretation of it, in some instances, may conflict with article 2, § 20, of the Constitution of this state, Okla. St. Ann. Const., which provides that one accused of crime shall be informed in writing of the nature and cause of the accusation against him. Webb v. State, 27 Okla. Cr. 104, 224 P. 991.

An amendment under some circumstances and facts might be one of substance; but at the same time the defendant would not be misled, and it would not have the effect of confusing the defendant as to the nature of the charge against him. And in this case, if the record disclosed that the defendant had been surprised by the testimony of the witness, Holmes, and did not know at the beginning of the trial that the proof by the witness, Holmes, would be to the effect that he could only positively identify the two articles, coffee and syrup of pepsin, as being in the defendant’s possession, then we would unhesitatingly reverse this case for the reason that the allowance of the amendment, without postponing the trial to allow defendant to prepare to- meet the new issue, had (materially prejudiced the defendant. But the facts are entirely contrary. The defendant had a transcript of the evidence of the witness, Holmes, which he had given in another hearing concerning this matter, in which he had stated that the only articles which were stolen from his store and which he would positively identify as being found in the possession of Lee Herren were the coffee and syrup of pepsin; although, he felt sure that sugar and K. C. Baking Powder found there belonged to him, there were no means of identifying these articles.

Just why the attorney who conducted the prosecution delayed until after the commencement of the trial to amend the information, Avhen he had these facts: in his possession, is not clear. Certainly, a person of diligence would have prepared his record before the commencement of trial. But the fact that the prosecutor neglected to make this amendment before the trial had commenced has not resulted in prejudicing the defendant, and this court will not punish the taxpayers of this state by requiring the expense of a new trial upon a case unless the evidence shows that there has probably been a miscarriage of justice or the action of the trial court has probably resulted in the violation of some of the substantial rights of the defendant. § 3206, O. S. 1931, 22 Okla. St. Ann. § 1068.

The defendant makes no affidavit as required by § 2830, supra, which would require a delay of the trial. Evidently it is the theory of defendant that the amendment is one of substance, which automatically entitles the defendant to a continuance without any showing as to prejudice or surprise:

There seems to be some conflict in the interpretation which this court has placed on § 2830, supra. In addition to the two cases hereinabove cited, this court, in the case of Hill v. State, 46 Okla. Cr. 56, 287 P. 1080, laid down the following rule as shown by the first and second paragraphs of the syllabus :

“A conviction on an amended information will not be set aside on the ground that the defendant had not entered a formal plea to the information, where the defendant had been arraigned on the original information and where the defendant ivas placed on trial on said amended information before a jury in all respects as though he had entered his formal plea of not guilty.
“The rights of the defendant were not prejudiced by reason of the court directing the trial to proceed on the amended information, where there was» no showing that the defendant was prejudiced in any way whatever by the action of the court in refusing to grant the defendant time to examine the amended information and directing the case to proceed to trial.”

In that case the amendment was clearly one of substance, but this court sustained the co»nviction on the grounds that the amendment had not operated to prejudice the defendant.

In the case of White v. State, 23 Okla. Cr. 198, 214 P. 202, 203, this court stated:

“Where the information states the date, the place, and the names of the persons from who»m the stolen property was received, and by whom received, but fails to describe the property, the information is not void in the sense that it ma,y not be amended to» specifically describe the property; and such an amendment may be made, Avithi proper safeguards, after the jury have been qualified.
“The fact that the original information was adjudged insufficient for want of descriptive averments, and that the defendant was subsequently confronted with a new or amended information, does not of itself give him the right toi demand another preliminary hearing. The same offense was described in both informations. The preliminary examination was sufficient to support the information on which he was tried and convicted.”

In the instant case, the date, the names of the parties from whom the defendant is alleged to have received the stolen property, the name of the parties from whom the property is alleged to have been stolen, and a, statement of certain ■ articles (and various other merchandise) is inserted.

Under the holding in the White Case, supra,, this information is sufficient to charge a crime. An amendment to the information to> conform to the proof by inserting the specific articles- of merchandise received doesl not change the nature of the offense nor the dates nor the names of the parties involved, and under the facts as shown by the record did not prejudice the defendant.

In the case of Arms v. State, 49 Okla. Cr. 34, 292 P. 76, it is held:

“An information may be amended in matters of either form or substance when it can be done without prejudice to the rights of the accused.”

See, also, in this connection, Ward v. State, 34 Okla. Cr. 296, 246 P. 664; Hammons v. State, 47 Okla. Cr. 297, 287 P. 1076; Little v. State, 21 Okla. Cr. 1, 204 P. 305.

It is our conclusion that the amendment in question was an amendment as to form in order to more fully describe the term “other merchandise,” and to comply with the proof introduced by the state, and more fully developed by the cross-examination of the state witnesses.

In determining the question as to whether the action of the trial court in allowing the amendment prejudiced the rights of the defendant, we have carefully considered the whole record in this case, including certain other questions' as. to* the admissibility of the evidence raised by objections of defendant’s counsel during the trial but not urged on appeal. There was some error in the admission of evidence, such as the hearsay statement of one of the sheriffs that a certain party identified his property in Lee Herren’s store. But under the record, the proof of guilt was overwhelming; and the jury was very lenient in the punishment which they assessed. In fact, the evidence would have justified the infliction of a more severe penalty, as the jury could have reasonably concluded from the evidence that the defendant, while occupying an apparently respectable position in the country community where he operated his mercantile store, was, in fact, operating a business for the reception of stolen property which had been taken from many of the merchants in various' parts of southern Oklahoma. In fact, if the evidence of the state’s witnesses is to. be believed, a large band of thieves was operating; and the defendant, while not actually participating in the thefts, was. allowing his store to* be used as an outlet for the disposition of stolen merchandise.

To allow a new trial under the record of this case would defeat the very purpose of the law.

Finding no error of sufficient importance to* require a reversal, the judgment of the district court of Carter county is accordingly affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


author: BAEEFOOT, P. J.

text:
    WILLIAM A. ALBRECHT v. STATE.
    No. A-9831.
    July 2, 1941.
    (115 P. 2d 274.)

      Mac Q. Williamson, Atty. Gen., Sam H, Lattimore, Asst. Atty. Gen., and George M. Frittz, Co. Atty., of Guy-mon, for the State.
    Grester H. LaMar, Jack Stuart Harris, and L. E. Tryon, all of Guymon, for defendant.
   BAEEFOOT, P. J.

Defendant, William A. Albrecht, was charged in Texas county with the crime of driving a motor vehicle upon the public highway while under the influence of intoxicating liquor, was tried, convicted and sentenced by the court to serve a term of one year in the penitentiary at Granite, and has appealed,.

The only error to be seriously considered is that the judgment and sentence imposed against the defendant is excessive. The defendant was tried before a jury and was found guilty and his punishment was left to the court, who assessed the punishment at one year in the penitentiary at Granite. The verdict of the jury has the notation, “We, the jury, recommend mercy.” This notation was not binding on the court, as we have heretofore decided in the following cases: Estes v. State, 35 Okla. Cr. 335, 250 P. 809; Presnell v. State, 71 Okla. Cr. 162, 109 P. 2d 834; Severn v. State, 72 Okla. Cr. 141, 114 P. 2d 181. But it should in no way prejudice the rights of the defendant.

The facts, as revealed by the record, were that two officers of the state highway patrol, with headquarters at Woodward, were in Guymon, Texas county, on the evening of September 5, 1939:. They were performing their duties, and one of the officers went to the hotel and retired about 10 o’clock p. m. The other patrolman, Mr. Green, went to the “Wheat Belt Cafe” to get a cup of coffee and talk with parties working there with whom he was acquainted. While sitting at the counter defendant came into the cafe and occupied a seat close to the patrolman and engaged him in conversation. The defendant, according to the evidence of the officer and others who< were in the cafe at the time, was under the influence of intoxicating liquor and drank three bottles of beer while there. About 11 o’clock p. m. he stated that he was going home, and the patrolman told him not to drive his car home, this: for the reason that he was under the influence of intoxicating liquor. Defendant left the cafe and was followed by the patrolman, who entered a car with another party and drove down to a filling station. Defendant went across the street to where his car was parked and backed it out and started home. He turned the corner near where he was parked when he was stopped by the patrolman, and he drove his car up to the curb. He was placed under arrest and was later placed in jail by the sheriff of Texas: county, who was called and who testified the defendant was under the influence of intoxicating liquor at the time. Defendant was tried, convicted and sentenced, as above stated, to one year in the penitentiary at Granite.

Since this case was tiled, the Legislature of this state has passed a, law making the first offense for drunken driving a, misdemeanor. 47 Okla. St. Ann. § 93. Drew v. State, 71 Okla. Cr. 415, 112 P. 2d 429.

The evidence in this case reveals that there was no accident of any kind, nor was defendant driving at an excessive rate of speed. The defendant simply failed to heed the advice of the patrolman not to drive his car home because of his condition. The conduct of the patrol officer was. courteous in every way. He performed his duty under the law as an officer should.

We are clearly of the opinion the judgment and sentence in this case is excessive under the facts, and while this court is slow to modify a, judgment and sentence that has been pronounced by the court, under the facts in this case it becomes our duty to do so: Frantz v. State, 70 Okla. Cr. 214, 105 P. 2d 561. We are of the opinion that the judgment and sentence should be modified from one year in the penitentiary at Granite to a fine of $50 and costs', and it is so ordered.

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


text:
    ORVILLE LITTLE v. STATE.
    No. A-9827.
    July 2, 1941.
    (115 P. 2d 266.)

      Reuel W. Little and Jack H, Smith, both of Madill, for plaintiff in error,
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Orville Little, was charged by indictment presented and filed by a grand jury of Carter county with the offense of rape in the first degree, was tried, convicted of the offense of assault with intent to commit rape, and sentenced to serve a term of five years in the State Penitentiary, and has appealed to this court.

Three assignments of error are presented by the defendant :

(1) The evidence is insufficient to sustain a conviction.

(2) Throughout the proceedings the court conducted himself in a partisan manner and conveyed to the jury the thought that the defendant, in the opinion of the court, was guilty and should be convicted.

(3) The court erred in excluding from the consideration of the jury a written statement made by the prosecuting witness.

The first assignment of error is without merit. There is a conflict of evidence which raised an issue of fact for the determination of the jury. Under' the testimony of the prosecuting witness, the evidence was sufficient to sustain the charge of rape in the first degree. Some of her statements were highly improbable, but if believed by the jury were sufficient to sustain the conviction.

The third assignment of error concerns a written statement executed by the prosecuting witness, Mae Stow-ers, on the 30th day of January, 1939, as follows:

“I, Mae Stowers, of lawful age, and first being duly sworn deposes and says: That I do not want to prosecute Arvil Little for the charges which I had filed against him in form of a complaint. I feel that it is as much my fault as it was his and I desire to drop all charges against him. I did not have any right to> make a complaint against him in the first placó, and ask that youl dismiss the case against him.
“I give this statement of my own free will and accord, and this is my own voluntary act.
“Witness my hand this 30th day of January, 1939.
“ (Signed) Mae Stowers.
“Witnesses:
“(Signed) Robert Clark
“(Signed) A. J. Jarmon
“(Signed) A. E. Mundy.”

During the course of the cross-examination of the prosecuting witness this instrument was handed to the witness for examination, and she testified that she had signed it. Counsel for the defendant then offered the instrument in evidence, and an -objection by the county attorney was sustained. The defendant then offered each! separate thought or part of said statement, and an objection was sustained. Counsel for defendant, out of the presence of the jury, offered to prove by the prosecuting witness that the instrument was executed freely and voluntarily by the prosecuting witness in the presence of her husband, and in the presence of her uncle, A. J. Jar-mon, and in the presence of S. P. Faulk, D. L. Faulk, .and A. E. Mundy.

Upon objection being made by the state to this offer, the court sustained the objection for the reason as stated by the court:

“This witness is not authorized to determine when the prosecution can be instituted or maintained and is without authority to determine when a prosecution should be conducted or dismissed.”

Counsel for defendant excepted in each instance to the action of the court in sustaining objections by the state to the questions and offers made by the defendant.

In determining the question as to whether' the action of the trial court materially prejudiced the defendant, it is necessary to consider the evidence of both the state and the defendant.

There is a decided conflict in the testimony. The ■prosecuting witness was a married woman, 24 years of age. She testified that she was- on the streets of Madill, about 8 p. m., with two' of her girl cousins with her. That the defendant drove up to> the curb and asked her to ride to the drugstore with him and have a Coca Cola; that she got into the car with him, and defendant drove on out of town. While on the way, he slowed doAvn and picked up one Boyd Raburn; that they drove to Ardmore. The defendant and Raburn were drinking alcohol or whisky, and bought a chaser for the drinks. That they drove out to the Shamrock Tavern about 9:30 or 10 o’clock. The boys ordered Avhisky. She did not drink any whisky or beer. About 1 o’clock they started to leave; and after' she got into the car, the defendant claimed something! was wrong Avith the gear shift. The defendant left presumably to call about the car. When he returned he dragged her out of the car and into a cotton patch; and both the defendant and Raburn there raped her-. That one held her while the other raped her; and when the first had finished the act, he held the prosecutrix while the other man raped her. That she hollered and resisted to her utmost; ran back to the Shamrock as quickly as she could get loose, and told them what had happened. That her face was bleeding and her knees were skinned. That the people at the Shamrock notified the policeman; that she was taken to the police station, and later to her father’s home at Madill.

The proprietor of the Shamrock testified that about. 2 o’clock a. m., the prosecutrix came into his place in a nervous condition; her hair was rumpled, her clothes were wrinkled, and she asked for the officers, and said the boys had mistreated her.

The witness testified that he later went to' the place where she had said the attack occurred and found two' rubbers on the ground. Other witnesses identified the condition of the prosecutrix after the alleged attack, which corroborated the story of the prosecutrix as to her physical appearance.

Both of the girl cousins who' were with the prosecu-trix at the time she met the defendant testified on behalf of the defendant. Their testimony in substance was that they were crossing a street in Madill when they saw the defendant, who> had his car parked in the street at the side of the curb. That the prosecutrix whistled at the defendant and went over to the car where he was parked. There were two boys in the car. Later the prosecutrix called the two cousins over to’ the automobile and introduced them to the defendant and the other boy whoi was-there with him. That the prosecutrix did not know the defendant’s name, but had to' ask him his name after the girls walked up so that she could make the introduction. That the prosecutrix asked the two girls to' goi with them to Ardmore, but that they refused to do so; and then the prosecutrix went off in the automobile with the defendant and the other man, and that she was sitting between them in a single seated car. That they saw the prose-cutrix the nest morning, but there was no indication of blood or torn clothes at that time.

The defendant testified that he was 28 years of age and had been married; that the first time he saw thei prosecutrix was: in front of the Corner Drug Store in Madill; that the prosecutrix came out to the car and asked! him if he would take her over to a dance in Ardmore; that he said he would; that she called her two cousins out and introduced them to him and Boyd Baburn who was with him in the car; that the prosecutrix did not object in any way to anything on the way to Ardmore; that when he got to Ardmore he went inside to a bar and got a coke, staying about 10 or 15 minutes, during which time the prosecutrix was left alone in the car. That he and the prosecutrix went to the Shamrock, and each drank three or four rounds of beer and danced several times; that defendant propositioned prosecutrix to come with him and have a little fun; she replied that she did not believe she wanted to; that later they went outside and she stated: “Get that blanket there”; that they went out and sat down on the spread blanket. Prosecutrix asked if he had any protection, and he replied, “Yes.” That they discussed about her husband being in jail, and she said she had a note which was coming due, and she needed money to pay it off; that he put on some protection and started to get on the prosecutrix when Boyd Baburn walked up; that both the defendant and prosecutrix thought it was the police or something, and jumped up ; that he saw who it was and grabbed hold of her to keep her from running; and when she jerked loose, she fell in the gravel; that prosecutrix then ran inside the tavern; that he later followed her into the tavern and tried to get her to go hack with him, and she refused; that he did not have intercourse with her.

On cross-examination the defendant admitted leaving after the incident occurred and going to California. He further admitted serving a year in the penitentiary on a rape charge.

Counsel for defendant further introduced excerpts from a transcript of evidence taken at a former trial, which showed conflicting statements made at that, trial by the prosecutrix from those given by her in the instant trial.

In Douglas v. State, 19 Okla. Cr. 257, 199 P. 927, this court held:

“In a prosecution for rape, the credibility of the prosecutrix may be impeached by proof that she has made statements relevant to the issues, out of court, contrary to what she has, testified to on the trial.
“Where a witness has made statements in writing, different from those made on the trial, and the statements are shown the witness, who admits having made them, and witness is given an opportunity to- explain them, they may be read in evidence for the purpose of impeachment.”

In the body of the opinion it is stated:

“We also think that the court erred in refusing to admit in evidence the affidavit made by the prosecutrix in the office of the county attorney. The affidavit was, offered by the defendant to discredit, the witness, and, being proper for such purpose, it should have been admitted. The court also erred in refusing to admit in evidence the letters written by the prosecutrix to the defendant and his, wife. The general rule is that, where a Avitness had made statements in writing different from ■those made on the trial, and the statements are shown the Avitness, who admits having made them, they may be read' in evidence for the purpose of impeachment,. The credibility of the prosecutrix may be impeached by proof that she has made statements relevant to the issues out of court, contrary to what she has testified to on the trial, and the court erred in rejecting- the offered evidence as to what the prosecutrix stated to Dr. Tarleton. 1 Greeoleaf Ev. (16th Ed.) par. 461.”

See; also) Thomas v. State, 34 Okla. Cr. 63, 244 P. 1116; Wheat v. State, 38 Okla. Cr. 119, 259 P. 279; Morris v. State, 30 Okla. Cr. 382, 236 P. 443; Ferbrache v. State, 21 Okla. Cr. 256, 205 P. 617.

The statement by the trial court that the prosecutrix is not authorized to determine when a case should be dismissed and a prosecution instituted is correct ; but that part of her statement in which she says that she was as much to blame as the .defendant is contrary to her testimony and corroborates the story related by the defendant about this incident.

The general rule is that upon the laying of proper predicate, it may be shown that a, witness has made statements upon material matters different from his. testimony for the purpose of affecting the credibility of such witness. In the recent case of Self v. State, 62 Okla. Cr. 208, 70 P. 2d 1083, it is stated:

“In prosecution for * * * rape, the credibility of the prosecutrix may be impeached by proof that she made statements relative to' the issues contrary to what she has testified to on the trial.”

We think, under the facts in this case, where the prosecutrix admits that she had never met the defendant prior to the night in which the alleged attack occurred, and the fact that she was a married woman and went with him to' a neighboring town; and, under her own testimony, defendant was drinking intoxicants and she danced with him until the early hours of the morning; that her written statement that the incident which occurred was as much her fault as the defendant’s would certainly be entitled to consideration by the jury. The jury might reasonably have concluded that her conduct was such as to' invite the solicitations made by the defendant, and that the events occurred in substantially the manner as testified by the defendant. The prosecuting witness had several opportunities when she was not in the company of the defendant to have left him prior to the time of the alleged attack, if for any reason she did not like the drinking, which she says the defendant was doing, or the attentions he was paying to her. We think, under the record, this statement should have been admitted for whatever weight the jury might have seen fit to have given it.

With this conclusion established, it becomes unnecessary to consider the other assignment of error. However, if this case is retried, it would be well for the trial judge to leave the interrogation of the witnesses to the prosecuting attorney wlm seemed very able to' conduct the prosecution. We are not stating, however, that the actions of the trial court in this regard were prejudicial.

It is the duty of the trial courts to refrain from in any manner, either through their actions or words, to indicate to' the jury their opinion upon the merits of the case being tried before them. For that reason, except when it appears absolutely necessary to the administration of justice, the trial judge should not interrogate Avitnesses. Generally, the trial court Avill be motivated only by a spirit of fairness when he proceeds to ask questions of a witness, but often a lay jury is apt to' confuse the actions of the court and become impressed that the court has an opinion upon the merits of the case, which he is trying to convey to the jury.

It is a fundamental principle of our law that the jurors are the judges of the credibility of the witnesses, and the weight to be given to their testimony; and for that reason the trial courts cannot be too careful and guarded in their efforts to' avoid allowing the jurors to discover the opinion of the judge as to the weight of the evidence and credibility of the witnesses.

For the reasons hereinabove given, the judgment of the district court of Carter county is reversed and said cause is remanded for a new trial.

BAREFOOT, P. J., concurs. DOYLE, J., absent.


author: PER CURIAM.

text:
    Ex parte SWINBURN J. STEWART, Jr.
    No. A-10093.
    July 2, 1941.
    (115 P. 2d 258.)
    J. B. Dudley, of Oklahoma City, and Fred B. Cornels, of Sayre, for petitioner.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Jim Ted Robinson, Co. Atty., of Sayre, for the State.
   PER CURIAM.

The application of petitioner, Swin-burn J. Stewart, Jr., for writ of habeas corpus was filed in this court on the 18th day of June, 1941. It Avas alleged in said petition that petitioner was confined in the county jail of Beckham county by Earl Francis, the sheriff of! said county. That he was charged by information with the murder of Swinburn J. SteAvart, Sr. That he filed in the district court of Beckham county an application before Judge T. R. Wise, district judge, for bail pending' trial of petitioner in the district court of said county, and that bail had been denied. Wherefore, he prayed that a writ of habeas corpus issue directing the sheriff of Beck-ham county to have the body of petitioner before this court for the purpose of determining whether he was entitled to bail pending trial in the district court. Attached: to the petition was a transcript of proceedings and evidence taken a.t the preliminary hearing in the justice of the peace court and at the hearing before the district court on the application to be allowed bail and for the return of the petitioner from the penitentiary at McAles-ter, where he had been taken, to Beckham county. An order to show cause was entered and a hearing on the petition was had before this court on the 24th day of June, 1941.

Since this case will be tried before the district court, we refrain from discussing the evidence. We have examined the record and are of the opinion that, under the law as applied to the facts, the proof is not evident and presumption great, and therefore the petitioner is entitled to bail pending the trial of said charge. Ex parte Della Hubbard, 64 Okla. Cr. 18, 76 P. 2d 915.

An order was entered by this court on June 24, 1941, permitting the defendant to be released on bail in the sum of $15,000 pending the trial in the district court of Beckham county, said bond to he executed in the manner provided by law and to be approved by the court clerk of Beckham county, and it is so ordered.