text:
    CLARENCE SINGLETON v. STATE.
    No. A-7423.
    Opinion Filed Sept. 6, 1930.
    (291 Pac. 145.)
    P. E. Reed and E. M. Anderson, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was by information charged, with one John Doe, with obtaining from Ralph Mefford, by extortion, one Ford roadster; was tried separately, convicted by tbe jury and tbe punishment left to the court, and was sentenced by the court to serve a term of three years in the state penitentiary at McAlester. Motion for new trial was filed, considered, overruled, and the defendant has appealed to this court.

The testimony on behalf of the state, in substance, is that Ralph Mefford was living with Mr. J. A. Rhodes, two miles north and one mile west of Coweta, in Wagoner county, Okla.; that it was about 30 miles from the home of Clarence Singleton, who lived about three miles southwest of Inola, in Rogers county, Okla. The defendant had known the prosecuting witness prior to the date of the alleged offense, and had bought a 1924 model Ford car from him; the prosecuting witness having bought the car from Ed Cobb, a car dealer at Coweta; at the time the car was purchased Ed Cobb did not give the purchaser a certificate of title, but later advised him the certificate was held at his garage and he could get it if he would call for it. On Saturday, April 14, 1928, Ralph Mefford and Miss Gladys Booth, who lived a short distance from the Rhodes home, drove to Webber Falls, in a 1927 model Ford car, for the purpose of bringing Yirgil Booth home with them. On Sunday morning, before their return Sunday night, the defendant and a man, representing himself to be named Brown, came to the home of Mr. Rhodes inquiring for Ralph Mefford; the defendant told Mr. Rhodes that Brown was the law from Rogers county; Mr. Rhodes was advised they wished to see Ralph Mefford about the title to the 1924 car he had sold the defendant; Mr. Rhodes asked them to get out and wait until Mefford returned from Webber Falls, as he was expected home that night; the defendant announced they would not wait but would go on to town, and drove away from the Rhodes place; later, and after the snn was down, they returned to the Rhodes place, stating they wanted to see Ralph Mefford about the 1924 model car, stating the defendant had been in jail two weeks over the car and was out at the time on a $8,000 bond; Rhodes assured the defendant the car had not been stolen and that he could get a certificate of title from Ed Cobb, at Coweta, from whom Mefford had purchased the car; the defendant and Brown left the Rhodes home stating they would try to meet Mefford on the road; about 12 o’clock that night Ralph, Gladys, and Virgil Booth returned from Webber Palls; they turned off the public highway and were driving a narrow lane leading to the Rhodes home when they observed a car parked in the lane blocking their way; the defendant and Brown came up to the Mefford car and told Mefford that Brown was the sheriff of Rogers county, and that the defendant Clarence Singleton had run over a woman and killed her with the car that Mefford had sold him and that parties were wanting damages; that the defendant in this case had been in jail two or three weeks, and was then out on $3,000 bond over the car he had bought from Mefford, and that the matter would have to be straightened up some way; the defendant and Brown then asked Mefford if he had title to the car he was driving, which was a 1927 model, and he advised them he had title to the car; the defendant and Brown then demanded him to show them the title to the car and Mefford told them it was at the house; the defendant and Brown then directed Mefford to take Virgil and Gladys home, which was a short distance from the Rhodes home; when the car started the defendant and Brown got on the side of the prosecuting witness’ car and accompanied them to' a gate near the Rhodes home and remained at the car until Mefford returned from taking Virgil and Gladys up to the house; when Mefford returned he was advised by the defendant in this case, Clarence Singleton, that the title to the car would have to be straightened up; they went with Mefford to the home of Rhodes to see if the title to the 1927 model Ford roadster he was driving was in his name; Mefford showed them the title and put the title in his pocket in the presence of both the defendant Singleton and Brown; when they left the Rhodes home they went in the Mefford car; he thought he was being taken to' Coweta to see Ed Cobb and get the title to the 1924 car; when they left the Rhodes home they traveled the lane a short distance until they came to the Singleton car parked in the lane, when Singleton got out and got in his car and followed Mefford and Brown; the defendant and Brown passed Coweta and made no effort to obtain the title to the car from Ed Cobb, and drove on to the home of the defendant about 30 miles, near Inola, arriving there some time between midnight and daylight; the supposed officer, Brown, was armed with a 45 Colts, and witness Mefford claims he was fearful, as though they might shoot him or do him some injury; Mefford was kept by Brown and the defendant at defendant’s home that night, and the next morning was told by Singleton, the defendant in this case, and Brown that he would have to give them $350 on account of the 1924 car running into a woman and killing her; that he must fix it up some way, they would have to have the money, and if he would turn his 1927 model Ford car over to them, or the money, they would turn him loose; that if he did not, they would lock him up and send him to the penitentiary; Mefford agreed to transfer his title to the car to the defendant Singleton to prevent them sending him to the penitentiary, and early Monday morning the defendant took Mefford to Inola in Mefford’s car, where he made the assignment of the certificate to his 1927 model Ford car to Singleton; Mefford stating he made it through fear of being prosecuted and sent to the penitentiary by the defendant and Brown if he did not give them the car. The defendant and Mefford returned to the defendant’s home, and the defendant had his sister take the prosecuting witness a part of the way home, and he walked the remaining distance.

The testimony, in substance, further shows that Clarence Singleton had been a resident of Rogers county for many years and knew the sheriff of that county; that the defendant never at any time went to Coweta to' see Ed Cobb about the certificate of title to the old 1924 model Ford car.

The evidence of the defendant, in substance, was that he lived three and a half miles southwest of Inola, in Rogers county, on a farm with his father; on Saturday evening, prior to the 15th day of April, 1928, he was in Inola with his father and was sitting in his car preparatory to returning home when a tall fellow came up to the car and asked if his name was Clarence Singleton, and if he had sold a car to a man by the name of Elmer Thomas; the defendant replied he had; he then told the defendant his name was Brown and that he was the law from Tahlequah, and that Singleton was the man he was looking for; that the man who claimed to be Brown arrested him, and told him he had stolen a car; the defendant advised him he had bought the car from Ralph Mef-ford ; and if he could see Mefford he could get the title to it; that Brown agreed they would find Mefford; as it was getting late, and Saturday night, it was suggested that Brown go home with the defendant and his father and stay that night, and they would see Mefford the next morning, which suggestion was agreed to by the party; the next morning Singleton and Brown went to the home of J. A. Rhodes some 80 miles away to see Mefford; Mefford was not at home and the defendant and Brown went to Coweta and ate dinner and later drove back to the Rhodes home to see if Mefford had returned; the defendant claims that while at the Rhodes home he stated the failure of Mefford to furnish him a certificate of title to the 1924 model car he had sold him had caused him trouble; that he had sold it to a man by the name of Elmer Thomas in Cherokee county, and that Brown had arrested him on account of it and wanted to see Mefford and get the trouble straightened out; that he had been taken to jail and kept three or four weeks, and was placed under $3,000 or $4,000 bond on account of it. Brown and Singleton remained at the Rhodes home for a time and left, trying to find Mefford on the road; they drove down the road about a half of a quarter and parked their car and waited for Mef-ford; that Brown became impatient and was about to take the defendant away when Mefford and the Booth girl and boy came up in a 1927 model Ford car; Brown advised the defendant he would question Mefford regarding the 1924 model car of the defendant; Brown doubted defendant’s story in regard to the purchase of the car; Singleton, the defendant in this case, greeted Mefford and informed him that he was in trouble over the car he had sold him; Brown then questioned Mefford about the title to the 1924 model car, and finally told him he would have to take him to jail over his failure to provide the defendant with a title to the car; Brown then got on the side of the car Mefford was driving, and they drove up to a gate near the Rhodes home and parked the car, and Brown permitted Mefford to go with the Booth boy and girl to their home, which was a short distance away; Brown and the defendant waiting for Mefford where the Mefford car had been parked at this gate; the defendant testified that Brown asked Mefford if he had a certificate of title to the 1927 model car he was driving, and was told by Mefford that he did have at the house, and Brown then demanded that Mefford show him the title; they went to the Rhodes home and went in the house; the defendant remained in the front room while Mefford and Brown went into the adjoining room and had a conversation regarding the title to a car; the defendant did not understand what was said; shortly thereafter they all left in Mefford’s car and drove down the lane to where the defendant had parked his car when they first met Mefford in the road; the defendant got in his car and followed Brown and Mefford, finally passing them on their way to his home; after he arrived home the prosecuting witness and Brown drove up and Brown asked if they could stay all night and he told them they could; the next morning Mefford asked Singleton to buy his 1927 car, and Singleton agreed to do it if Mefford would make the proper transfer of title.

Singleton and Mefford drove to Inola and a transfer of title was made to Singleton by Mefford, before a notary public. The defendant further testified they returned to the defendant’s home and he and his wife went to the cellar and got $350 and brought it in the room where Mefford, Brown, and the defendant’s father were and offered the money to Mefford; Mefford instructed the defendant to give the money to Brown, and the defendant handed the money to Brown, who counted it and said the amount was $350; that the defendant Singleton received the car, claiming to have purchased it from Mefford, and that he paid $350 to the officer claimed to have been Brown; that the question came up as to who would take the law to Tahle-quah, and the defendant offered to pay for having him taken back, and it was finally agreed that the defendant Singleton would take him home to Tahlequah; the defendant’s sister taking the prosecuting witness Mefford part of the way to his home, and he walked the remainder of the way.

The testimony further shows that the defendant had not met Brown prior to April 14th, and that he had not seen or heard of him since he took him to Tahlequah on th'e 16th day of April, 1928.

This is all the testimony that it is deemed necessary to set out for the purpose of arriving at an opinion as to whether or not the defendant was accorded a fair and impartial trial by a competent jury.

The defendant has assigned eight errors alleged to have been committed by the court in the trial of his case. Assignments 3, 4, 5, 6, and 7 have been grouped together by the defendant under one head.

Section 2133, Comp. St. 1921, is as follows:

“Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right.”

Section 2134, Comp. St. 1921, defines what constitutes extortion as follows:

“Fear such as will constitute extortion may be induced by a threat, either:
“First. To do an unlawful injury to the person or property of the individual threatened, or to any relative of his or member of his family; or,
“Second. To accuse him, or any relative of his or member of his family, of any crime; or
“Third. To expose, or impute to him, or them, any deformity or disgrace; or,
“Fourth. To expose any secret affecting him or them.”

It is urged by the defendant that he acted in good faith, and he thought he would be cleared by the law as soon as he found Mefford and convinced the man, who claimed to' be Brown and an officer, that he had purchased the car from Mefford, and the defendant denies any intention on his part to extort from the prosecuting witness his car.

The evidence of the witnesses for the state and the defendant is in direct conflict. The testimony of the state clearly shows the defendant and this man, who seems to be unknown to everyone, went to the home of the prosecuting witness to see him regarding the title to a car the defendant had bought from the prosecuting witness. It is further shown that the defendant represented to Mi». Rhodes, when he went to the Rhodes home, that he had been under arrest and in jail, and was out on a three or four thousand dollar bond. It is further shown by the testimony that from Saturday afternoon up until Monday morning the defendant in this case was continuously in the company of this man known by the name of Brown; that the defendant represented to the prosecuting witness and Mr. Rhodes that he had been under arrest and had been in jail; that Brown stayed at the defendant’s home on Saturday night and was with the defendant all day Sunday; they were at the Rhodes house twice on Sunday, and then waited on the road until the prosecuting witness Ralph Mefford came along, and when he came he was taken into custody and the defendant and Brown rode with the prosecuting witness to- a gate near the Rhodes home and there waited until Mefford walked to the Booth home with the Booth girl and boy; when he returned to the car Brown got in the car with the prosecuting witness and they started from that place toward the home of the defendant, which was a distance of more than 30 miles, the defendant following them in his car; somewhere between the Rhodes home and the defendant’s home the defendant claims to have passed the prosecuting witness and Brown, and later they arrived at his home and asked to be permitted to stay over night. The next morning the defendant drove with the prosecuting witness to Inola, where he executed a transfer to his 1924 model Ford car to the defendant. The contention of the defendant is that he bought the car from the prosecuting witness and paid him |850 in cash for it, and the prosecuting witness told him to deliver the money to Brown; later he took Brown in his car and drove to Tahlequah. The record is silent as to who Brown was or where he lived. The defendant claims he first saw him in the town of Inola, and that he last saw him when he drove to Tah-lequah.

The defendant also claims he sold the 1924 model car he bought from Mefford to a man by the name of Elmer Thomas who lived in Cherokee county, Okla. A letter was introduced in the record purporting to be from Thomas regarding the title to this car. Thomas was not called as a witness, nor was the man Brown. It is difficult from the testimony in the record to reach a conclusion that the defendant was not well acquainted with Brown and knew where he lived. It is clearly shown that the defendant and Brown were co-operating together.

The defendant in his argument urges that the testimony is insufficient to sustain the verdict of the jury. With this contention we cannot agree. The jury heard all the evidence, and, if it believed the evidence on behalf of the state, it was fully justified in returning a verdict of guilty. On the other hand, if it believed the evidence of the defendant, it would be justified in returning a verdict of not guilty. The question of the sufficiency of the evidence has been considered by this court many times.

In Pickett v. State, 35 Okla. Cr. 60, 248 Pac. 352, this court said:

“Where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of a defendant, this court will not disturb the verdict for insufficiency.” Davis v. State, 32 Okla. Cr. 36, 239 Pac. 940; Shields v. State, 32 Okla. Cr. 344, 240 Pac. 661; Walton v. State, 32 Okla. Cr. 133, Pac. 141; Id.; 32 Okla. Cr. 342, 240 Pac. 666.

In Whitten v. State, 25 Okla. Cr. 447, 221 Pac. 115, in the syllabus, this court said:

“Evidence considered, and held sufficient on appeal to sustain the verdict and judgment. In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that accused is guilty as charged.”

The evidence is amply sufficient to sustain the verdict of the jury.

It is next urged by the defendant in his eighth assignment of error that George Feezell, one of the jurors, propounded incompetent, irrelevant, and immaterial questions to the witness. The record discloses that one of the jurors Feezell stated he would like to ask the defendant a question, and Mr. Reed, counsel for the defendant, stated, “You have the consent of the defendant to ask anything you want to, and the juror then proceeded to ask the witness a number of questions. In view of the fact that the juror had the consent of the defendant to propound any question he wanted to propound to the witness, we hold that the defendant was not prejudiced by reason of the questions asked by the juror. The defendant had given his consent for the juror to question the witness and was present and interposed his objection to questions he thought were incompetent, irrelevant, and immaterial, and the court ruled upon the same, and the defendant saved an exception. From an examination of the record we fail to find anything in the questions propounded by the juror that would prejudice the rights of the defendant in the trial of his case. The juror propounded several immaterial questions, yet there is nothing in the questions that tend to show any prejudice on the part of the juror against the defendant, but only tended to show he was seeking information as to what had really occurred between the different parties.

The defendant urges that the court erred in overruling his motion for a new trial. The motion for a new trial was properly overruled.

The record in this case discloses a very peculiar state of facts. It tends to establish the fact that the defendant Clarence Singleton and the unknown defendant Brown entered into an agreement to obtain Mefford’s car; that they went to his home and took him in custody and brought him to the home of the defendant, Singleton, and, on the morning he surrendered his car to them, they told him if he did not get $350 or give them his Ford car they would send him to the penitentiary; that the prosecuting witness, acting under the statement made by the defendant and the man named Brown, it being represented to the witness that Brown was an officer, and believing he would be sent to- the penitentiary, went with the defendant Singleton to Inola and signed over the title to the car to defendant Singleton. The jury had before it all the testimony, and the question as to whether or not $350 was paid by the defendant to Brown, under the directions of the prosecuting witness Mfeffoird, was for it to decide, and by its verdict the jury said they did not believe the statements to be true.

We have carefully studied the record, and the instructions of the court, and find no fundamental or prejudicial errors sufficient to warrant a reversal of the case.

The judgment is affirmed.

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


source: Caselaw Access Project

author: DAVENPORT, J.

license: Public Domain

text:
    HENRY LETTERMAN v. STATE.
    No. A-7500.
    Opinion Filed Sept. 6, 1930.
    (291 Pac. 150.)
    J. G. Harley, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information with having possession of a compound mixture of mash, wort, and wash, commonly known as whisky mash or whisky beer, fit for distillation, and for the manufacture of intoxicating liquor; was tried and convicted and sentenced to pay a fine of $100 and be confined in the county jail for a term of 30 days. From which judgment the defendant has appealed.

The testimony on behalf of the state, in substance, is as follows: E. A. 'Kelly stated: “I am sheriff of Mein-tosh county; I know Henry Letterman, have known him for two or three years; I was out to his place on the 26th day of February, 1928; Mr. High, chief of police, went with me; we searched the defendant’s premises; I had a search warrant; Mr. Waddle made affidavit for the search warrant.” Witness was then asked to tell what he found on the premises of the defendant, and the defendant interposed an objection. The jury was then excused from the courtroom, and testimony was taken before the court on the defendant’s objection and motion to suppress the testimony. Before the question on the search warrant was concluded, the county attorney stated to the court that the search warrant was insufficient and that all the testimony secured by reason of the search warrant should be excluded from the jury. The county attorney stating: “I will have to stand on the place where Mr. Kelly found the beer, the description in the search warrant is inaccurate and it malees it invalid.” The defendant then asked permission of the court to ask the witness Kelly a question, which was granted, and the witness was asked the following question: “Mr. Kelly, if you had not had this search warrant, you would not have discovered this beer would you?” Objection was made by the county attorney, and the court ordered the witness to answer the question. The question was answered, “No, sir.” The defendant then objected to any further testimony, which objection was overruled. The court then stated that it would exclude all evidence of anything that might be testified to as to what was found in the residence or on the curtilage of the residence. The witness was then asked to state what he found outside the residence or yard, or curtilage of the defendant, and answered they found one barrel of whisky beer about 50 yards east of the house buried in the ground. It was whisky beer, or beer ordinarily used in manufacturing whisky.

On cross-examination the witness stated: “I tasted the beer; it was regular mash with dried apricots; I suppose he was making apricot brandy; I think it was in a state of fermentation. It showed fermentation to the extent that it was beer, it had more the odor of beer that it had apricot; I don’t remember that I put any of it in a jar and brought it in. I tasted it in the barrel.” At the close of the witness’ testimony the defendant moved to suppress the same on the ground that it was illegally secured, which motion was overruled, and the defendant excepted.

A. B. High was called as a witness and testified in substance as did the witness Kelly, but stated he did not taste the contents found in the barrel. He said the barrel was about 50 yards from the defendant’s home; there was no fence between the defendant’s house and where the barrel was found; “we happened to find this beer by following the tracks that led to it from the home of the defendant.”

On cross-examination the witness stated they found the beer by reason of following the tracks from the house to where it was. The testimony shows that the officers, under a search warrant admitted to be invalid by the state, had searched the home and outbuildings of the defendant, and a barrel of mash was found as near the curti-lage as the garden, corrals, and barn. The officers further stated that they would not have found the barrel of mash had it not have been for the search warrant which they had, and under which they searched the home and curtilage of the defendant.

The defendant has assigned several errors alleged to have been committed in the trial of his case. In his seventh and eighth assignments the defendant complains that the court erred in the refusing to strike all the state’s evidence from the jury at the conclusion of the state’s case, as it was incompetent, having been unlawfully secured. The eighth assignment is that the court erred in refusing to sustain the demurrer of the defendant to the evidence at the conclusion of the state’s case.

The defendant also complains that the verdict returned against him is not sustained by competent and lawful evidence. The testimony of the state showing that the officers found a barrel of mash was brought out by the county attorney after the court had advised the jury not to consider any testimony secured by reason of the void warrant, in the house or the yard, or on the curti-lage of the defendant. Without this testimony to show the tracks they claim they saw going from the yard or curtilage toward where the barrel of mash was found, there is not a single circumstance tending to connect the defendant with the barrel of mash found, and the officers admit they would not have found any evidence of the barrel of mash had it not been they were on the premises searching the house and curtilage and saw the tracks going from the curtilage into the field. We hold this testimony leading to the finding of the barrel of mash was unlawfully secured and inadmissible in this case, and that the testimony was secured by reason of an unlawful search and seizure.

There being no competent testimony to sustain the conviction, the judgment is reversed.

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


author: CHAPPELL, J.

text:
    CHARLIE DAVIS v. STATE.
    No. A-7457.
    Opinion Filed June 21, 1930.
    On Rehearing Sept. 6, 1930.
    (291 Pac. 158.)
    Bridges & Ivy, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Jefferson county of the crime of having unlawful possession of mash, wort, and wash, and his punishment fixed at a fine of |200 and confinement in the county jail for 60 days.

The defendant contends that the court erred in overruling his motion to suppress the evidence because of an unauthorized alteration in the search warrant and because the premises searched were not the premises described in the affidavit and search warrant before its unauthorized alteration. The affidavit described the premises as the, “N. E. % of sec. 34, twp. 7, R. 7, Jefferson county.” The same description was written into the search warrant. Some person with ink drew a line through the “N. E. % of sec. 34,” and in different ink and. in different handwriting wrote, “N%, S. W. % and S. tí, N. W. tí sec. 31.” This warrant was obtained by an affidavit made by W. M. Bass, a deputy sheriff, who testified that he knew that the warrant had been altered but did not know who' had done it, and finally said that the warrant was changed to fit the place searched at the time the search was made.

In the case of Spencer et al. v. State, 47 Okla. Cr. 262, 287 Pac. 1044, this court had under consideration the precise question involved in the case at bar, and the case was reversed for the reason that the description in the warrant was altered to fit the place searched without any authority of law. No sheriff, constable, or peace officer has any authority to make a material alteration in the search warrant after the same has been delivered to him. Any search and seizure made under a search warrant so altered is illegal and void and the evidence inadmissible.

For the reasons stated, the cause is reversed.

On Rehearing.

On June 21, 1930, the court rendered an opinion reversing this case. Thereafter, on application of the state, a rehearing was granted and the state and the defendant required to file briefs.

After examination of the briefs and upon further consideration of the questions presented, the original opinion is adhered to and the case reversed.

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


author: PER CURIAM.

text:
    Ex parte FLORENCE JACKSON.
    No. A-7972.
    Opinion Filed Sept. 11, 1930.
    (291 Pac. 1118.)
    M. Bristow and F. E. Tichenor, for petitioner.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the respondent.
   PER CURIAM.

This is an original proceeding in habeas corpus to be let to bail. Petitioner alleges that she was convicted on a plea of guilty in the county court of Oklahoma county of a violation of the prohibitory liquor law, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail, and that she intends to appeal from said judgment to the Criminal Court of Appeals, that she made application to the county judge that he fix the bond pending appeal, and that the judge has refused to fix any bond, and that for that reason she is denied her right of appeal, and she prays that bond be fixed. Upon said petition, a writ was issued returnable on September 11, 1930, at 10 o’clock a. m. The county attorney did not appear, and the issuance of the writ is not contested.

It appearing to the court from the verified petition that petitioner is entitled to bail pending the time within which appeal may be taken, and, in case appeal is taken within said time, until said appeal shall be determined, it is therefore ordered that bail be allowed said petitioner in the sum of $500, conditioned as provided by law and to be approved by the court clerk of Oklahoma county.


text:
    CHRIS WIEDERKEHR v. STATE.
    No. A-7493.
    Opinion Filed Aug. 16, 1930.
    Rehearing Denied Sept. 13, 1930.
    (290 Pac. 936.)
    Wieck & Armstrong and D. E. Hodges, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of possession of whisky, and his punishment fixed at a fine of $500 and confinement for six months in the county jail.

The evidence of the state was that they procured a search warrant, and upon search of defendant’s premises they found more than a quart of whisky in three pint bottles. Jim Powell testified that he was at defendant’s home when the officers started to make the search and that he poured some whisky in the toilet out of two pint bottles; that previous to the coming of the officers he had seen four pints of whisky; and that they belonged to the defendant. The defendant did not take the witness stand and offered no' defense.

Defendant contends that the evidence is insufficient to support the verdict and that the verdict is contrary to law. There is no merit in this contention.

Defendant next contends that the court erred in excluding testimony tendered by the defendant. Upon cross-examination of the witness Powell, defendant attempted to show that the bottles were what was known as short pints. The state objected for the reason that the witness had testified that he had not measured the bottles and did not know, and for the further reason that the bottles themselves were the best evidence.

Since the proposed examination could have brought out only the opinion of the witness, and it appearing from the witness’ answer that he had no knowledge on the subject, the objection to that line of questioning is not reversible error.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without merit, the cause is affirmed.

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


text:
    R. L. HOGUE v. STATE.
    No. A-7394.
    Opinion Filed Aug. 16, 1930.
    Rehearing Denied Sept. 13, 1930.
    (291 Pac. 137.)

      Waldrep & Haight, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county on a charge of having possession of 10 gallons of whisky, and his punishment fixed at a fine of |500 and confinement for six months in the county jail.

The evidence of the state was that they procured a search warrant and upon search of the defendant’s premises they found 10 or 12 gallons of whisky in two kegs, a large jug, and two or three smaller jugs. The defendant did not take the witness stand or offer any evidence.

Counsel for defendant contend, first, that the affidavit and search warrant were insufficient. Examination of the record discloses that both the affidavit and the search warrant were sufficient on their face to authorize a search of defendant’s premises.

Counsel for defendant next complain that the evidence was insufficient to support the verdict of the jury. There is no merit in this contention.

Counsel for defendant finally contend that the court erred in its instructions to the jury. The instruction complained of is not a model, but, when all of the instructions are considered together, they fairly state the law of the case.

For the reasons stated, the cause is affirmed.

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


text:
    R. L. HOGUE v. STATE.
    No. A-7396.
    Opinion Filed Aug. 16, 1930.
    Rehearing Denied Sept. 13, 1930.
    (291 Pac. 137.)
    Waldrep & Haight, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county on a charge of having unlawful possession of 10 gallons of whisky, and his punishment fixed at a fine of $500 and confinement for six months in the county jail.

The evidence of the state was that they found on the premises of the defendant, about a quarter of a mile west of his house, in the river bottom, an underground dugout covered with poles, with some 6 to 10 inches of dirt thrown over that, which made it level with the top of the ground. There were two trapdoors, one from the south and one from the north, which had been closed, and some straw or grass put over the south door, but with no dirt over it. In the dugout the witnesses found a 50-gallon copper still complete, 10 barrels of mash, a 5-gallon keg of whisky, a 5-gallon water bottle about two-thirds full, a half-gallon jar full, and another half-gallon jar a little over half full; that the defendant came to the officers about the time the dugout was found; that the next day the defendant admitted the dugout and the liquor were on the farm he occupied; that the defendant admitted he had plowed the land where the dugout was found with a four-horse team and that he had plowed deep to get rid of the John grass. The defendant took the witness stand and denied knowledge of the dugout or the liquor.

The defendant contends, first, that the search and seizure was unauthorized, because the officers had no search warrant. This case falls within the rule laid down in Mitchell v. State, 38 Okla. Cr. 167, 259 Pac. 661, and Perry v. State, 42 Okla. Cr. 92, 274 Pac. 686, wherein the court said:

“Where the commission of an offense is suspected, a search of woodlands, pastures, or fields, not within the curtilage or close proximity of a dwelling house, is not unreasonable, and a search warrant is not necessary.”

Defendant next complains that the court erred in its instructions to the jury. The instruction complained of is not a model, but, when the instructions are all considered together, they fairly state the law of the case.

For the reasons stated, the cause is affirmed.

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


text:
    FIE CROW v. STATE.
    No. A-7578.
    Opinion Filed Sept. 13, 1930.
    (291 Pac. 157.)

      Womack, Brown & Cund, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

The evidence of the state was that the officers had a search warrant, and, searching the premises of the defendant, found 31 gallons of whisky, a still set up and ready to run, 21 barrels of mash, and about 150 pounds of sugar; that the whisky was in 62 half-gallon jars, concealed in some grass about a quarter of a mile from the still; that a trail led from this still to the defendant’s house; and that defendant admitted that the liquor and the still belonged to him. Testifying for himself, defendant said that what he said about the whisky and still being his was made in a joking vein on account of being afraid of the officers, who threatened him.

Defendant contends, first, that the evidence of the finding of the still was inadmissible, because it tended to show defendant guilty of another offense. This question is not an open one in this state. State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807; Jackson v. State, 42 Okla. Cr. 26, 274 Pac. 696.

Defendant next contends that the verdict is the result of passion and prejudice, for the reason that the jury assessed the penalty at $500 and six months’ imprisonment in the county jail. It is within the discretion of the jury to fix the punishment. When all of the facts and circumstances of the case at bar are considered, the jury was justified in the penalty fixed by them.

Defendant further complains of the instruction given by the court and of the insufficiency of the evidence to support the verdict. An examination of the record reveals that these contentions are without merit.

For the reasons stated, the cause is affirmed.

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


text:
    HORACE ROPER v. STATE.
    No. A-7486.
    Opinion Filed Sept. 13, 1930.
    (291 Pac. 157.)
    Jesse H. Dunn, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Murray county on a charge of selling intoxicating liquor, and his punishment fixed by the jury at a fine of $100 and imprisonment in the county jail for a period of 30 days.

The evidence of the state was furnished by R. J. Smith and E. D. Smith, who' were hired detectives and testified that they purchased a pint of whisky from defendant. The defendant testifying denied that he sold them any whisky.

. ¡Defendant filed a motion asking the court to quash the jury panel, for the reason that some of the jurors had sat in the trial of other cases, against other defendants, for the sale of liquor at different times and places, and that, by reason of the fact that the jurors had sat in such trials, they were disqualified, and the defendant could not have that fair and impartial trial guaranteed him by the Constitution and the laws of the state.

A challenge to the panel can only be predicated upon the grounds set forth in section 2659, C. O. S. 1921. It was not error, therefore, for the court to overrule the defendant’s attempted challenge to the panel. The defendant should have challenged the jurors for cause upon their voir dire examination, and then should have exercised his peremptory challenges. Having failed to exercise any of his peremptory challenges, he will be held to have waived the same, and cannot now be heard to complain that he was not tried by a fair and impartial jury.

The evidence being sufficient to support the verdict of the jury, and the errors of law complained of being without substantial merit, the cause is affirmed.

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


author: EDWARDS, P. J.

text:
    BEN LEMMONS v. STATE.
    No. A-7459.
    Opinion Filed Sept. 13, 1930.
    (291 Pac. 159.)

      Adam S. Garis, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith 0. Matson, Asst. 'Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Major county on a charge of selling, whisky to Henry Cully, a minor, and was sentenced to pay a fine of $500 and to serve one year in the state penitentiary.

The evidence for the state discloses a state of facts about as follows: At the time charged, four high school boys of the town of Cleo, all under the age of 21 years, made up a purse of $1.50 and three of the boys went in an automobile to a point near the house of defendant, where two of them got out of the car, and the other, Henry Cully, went to the house alone and bought a pint of whisky from defendant, which they took back to school with them, and these boys then drank it, after which, and during, the course of the afternoon, they had two car wrecks. The defendant testified that Cully came to his place at the time and sought to buy whisky, but that he did not sell him any. His testimony is corroborated by his wife.

It is first argued that there is no sufficient proof that the liquor claimed to have been purchased was intoxicating, and the evidence is therefore insufficient. It is shown the liquor was purchased as whisky and was in the ordinary pint whisky bottle. Two of the witnesses testified, in substance, that they had drunk whisky before, and this was whisky. Others testified to the taste and smell, that it burned and was strong. The proof upon this point is sufficient; the contention cannot be sustained.

It is further argued that Cully, the principal witness for the state, is an accomplice, and that there is no corroboration of his testimony tending to connect defendant with the commission of the crime. It is the defendant’s theory that, as Cully shared the whisky with other boys who had contributed a part of the purchase price, he was an accomplice and equally guilty, citing Kendrick v. State, 11 Okla. Cr. 380, 146 Pac. 727; Moore v. State, 14 Okla. Cr. 292, 170 Pac. 519. Defendant is not charged with selling to any person other than Cully, and it is not shown that he had any knowledge that any other person had contributed to the purchase price or was interested in the purchase. So far as the defendant is concerned the sale is to Cully only. Where one person delivers to another intoxicating liquor in consideration of money then and there paid, such transaction is a completed sale, and, so far as the seller is concerned, it is immaterial that the purchaser subsequently delivers a part of such liquor to other persons who have contributed to the purchase price. In such case the purchaser is not an accomplice of the seller. Buchanan v. State, 4 Okla. Cr. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83; Darneal v. State, 14 Okla. Cr. 395, 171 Pac. 737; Leigh v. State, 34 Okla. Cr. 338, 246 Pac. 667. These cases simply follow the general rule that the purchaser of intoxicating liquor at an illegal sale is not an accomplice of the seller, and, not being an accomplice, the statutory requirement of section 2701, Comp. St. 1921, requiring corroboration of an accomplice in order to sustain a conviction, has no application.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    BEN HUGHES v. STATE.
    No. A-7621.
    Opinion Filed Sept. 13, 1930.
    (291 Pac. 1118.)
    F. R. Blosser, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Roger Mills county on a charge of having possession of intoxicating liquor, and was sentenced to pay a fine of $250 and to serve 60 days in the county jail.

The case was tried in July, 1929, and the appeal was lodged in this court in October, 1929. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record; the evidence is sufficient, although circumstantial, from which the jury might reasonably and logically find the defendant guilty.

The case is affirmed.


text:
    BEN HUGHES v. STATE.
    No. A-7620.
    Opinion Filed Sept. 13, 1930.
    (291 Pac. 1118.)

      F. R. Blosser, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Roger Mills county on a charge of having possession of intoxicating liquor, and was sentenced to pay a fine of $100 and to serve 30 days in the county jail.

The case was tried in July, 1929, and the appeal was lodged in this court in October, 1929. No briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record, and the evidence is sufficient from which the jury might reasonably and logically find the defendant guilty.

The case is affirmed.


text:
    MRS. ARTHUR ATKINSON v. STATE.
    No. A-7624.
    Opinion Filed Sept. 13, 1930.
    (291 Pac. 1117.)
    H. W. Morgan, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Caddo county on a charge of selling whisky, and was sentenced to pay a fine of $500 and to serve six months in the county jail.

The case was tried in August, 1929, and the appeal was lodged in this court in October, 1929. No' briefs in support of the appeal have been filed, nor was there any appearance for oral argument at the time the case was submitted.

We have examined the record, and the evidence is sufficient from which the jury might reasonably and logically find the defendant guilty. No material error is apparent.

The case is affirmed.


author: DAVENPOBT, J.

text:
    JACK LEASURE v. STATE.
    No. A-7628.
    Opinion Filed Aug. 23, 1930.
    Rehearing Denied Sept. 13, 1930.
    (290 Pac. 931.)

      W. E. Crowe and G. W. Buckner, for plaintiff in error.
    J. Berry King, Atty. Gen., for the ’State.
   DAVENPOBT, J.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of selling whisky to> a minor, and sentenced to pay a fine of $2,000 and be confined in the penitentiary for 5 years. Motion for new trial was filed, considered, and overruled, and the defendant reserved an exception and has appealed by petition in error and case-made to this court.

James Moran testified on behalf of the state, in substance, that he knew where Jack Leasure was living on February 2, 1929; he went out to his place about 8:30 or 9 o’clock in the evening; Frank Leverton and Bill Porter were with him—

“We drove out to his house and stopped in the northeast part of the yard and headed the car back toward the house; I got out and started to the house and Jack Leas-ure met me with a search light and asked what I wanted; that is about all I remember now. I told him I wanted a quart of whisky; he went in the house and came back out and said he would have to go get it, he did not have it at the house; I got back in the car and drove down the road, the defendant standing on the side of the car; we were driving a Ford roadster; we got down to a point and stopped and defendant got off the car and crossed the road to the left side and was gone about five minutes and came back and handed me the whisky and I handed him the money; we got two pints of whisky and paid $3.50 for it.”

Bill Porter and Prank Leverton testified in substance to the same facts as did James Moran. James Moran testified he was 17 years old at the time he claims he bought the whisky from the defendant. The defendant denied selling the whisky to the prosecuting witness, and denied he was at home the evening it is alleged he sold the whisky to Moran, and called several witnesses who' testified he was at another place visiting a family and was not at home. He called several witnesses as to the reputation for truth and veracity of the state’s witnesses being bad. This is, in substance, the testimony.

Several errors are assigned by the defendant alleged to have been committed by the court in the trial of the case. The first assignment argued is error of the court in submitting to the jury, over the objection of the defendant, the instruction to fix the punishment should they find the defendant guilty, the defendant not having requested the court to instruct the jury on that question; the said error complained of being instruction No. 8 of the court.

Section 2750, C. O. S. 1921, provides:

“In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.”

The question to be determined, then, is section 2750, supra, mandatory or directory; that is, is it such an error for the court to instruct the jury to fix the punishment without the defendant having first requested it as to justify a reversal, or does such an instruction under the statute, where the defendant did not request it, have a tendency to prejudice the rights of the defendant before the jury?

The defendant relies upon the following cases: Chandler v. State, 3 Okla. Cr. 254, 105 Pac. 375, 107 Pac. 735; Baker v. State, 3 Okla. Cr. 265, 105 Pac. 379; and McClure v. State, 42 Okla. Cr. 302, 275 Pac. 1073. In each of these cases it is held that an instruction to the jury by the court, not requested by the defendant, was not grounds for a reversal in the absence of a showing that the punishment fixed by the jury was excessive; the holding of the court being that it is not the duty of the court to give an instruction to the jury directing it to fix the punishment when not requested by the defendant. Unless it is disclosed by the record that the punishment fixed by the jury is excessive, the giving of an instruction to fix the punishment is not grounds for reversal. It is urged by the defendant that in the case at bar the punishment fixed is excessive and for that reason the court erred in directing the jury to fix the punishment. While it is true the jury fixed the maximum punishment fixed by the statute, we hold there is nothing in the record to show that the instruction given by the court in any way whatever biased or prejudiced the rights of the defendant before the jury, and the court did not err in giving the instruction complained of.

It is next urged by the defendant that there was misconduct on the part of the jury in receiving and considering. evidence outside the courtroom, after it had retired to deliberate on its verdict, prejudicial to the rights of the defendant. The defendant, in support of his contention that there was misconduct on the part of the jurors, while the jury was considering its verdict, offered affidavits of witnesses who claim to have had a conversation with one or more of the jurors after the verdict had been received and returned by the court and the jury discharged.

In the case of Baumle v. Verde, 50 Okla. 610, 150 Pac. 876, this court held:

“Upon- grounds of public policy, trial' courts will not receive the affidavits, depositions, or oral testimony of jurors to impeach their verdict.”

In Hayes v. State, 35 Okla. Cr. 19, 247 Pac. 111, this court says:

“The verdict of a jury cannot be impeached by the affidavit or oral testimony of a juror. * * * The defendant sought to impeach the verdict by the affidavit and oral testimony of a juror to the effect that another juror knew two of the witnesses who testified in support of defendant’s alibi, and that this juror stated, during the deliberations of the jury, that these witnesses were not entitled to credence. If any such statement was made or considered, the verdict could not be impeached in this manner.”

In Brantley v. State, 15 Okla. Cr. 6, 175 Pac. 51, in the syllabus, the court says:

“Affidavits or oral testimony of jurors are inadmissible to impeach their verdict, and affidavits of the defendant, or any other person, of alleged misconduct of a juror, upon information derived from particular jurors, are inadmissible to impeach the verdict.”

In Revis v. State, 42 Okla. Cr. 198, 275 Pac. 351, this court, in the second paragraph of the syllabus, said:

“The verdict of a jury cannot be impeached by the affidavit or oral testimony of the jurors.”

The motion for a new trial on the ground of alleged misconduct of the jury in arriving at a verdict was properly overruled by the court.

It is next contended by the defendant that the verdict of the jury is contrary to the facts and is not sustained by sufficient evidence; the evidence on behalf of the state’s witnesses showing- positively that he bought whisky from the defendant, that the witness James Moran was only 17 years of age at the time of the purchase of the whisky. The witnesses on behalf of the defendant attempt to- sho w that he was not at home at the time of the alleged sale of the whisky. The testimony is conflicting, and it was a question for the jury to decide which of the two witnesses it would believe. Where there is any competent testimony to go to the jury, though there be a conflict, this court will not disturb the verdict on that ground alone.

Finding no errors in the record sufficient to warrant a reversal, the judgment of the trial court is affirmed.

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


text:
    W. S. BURKETT v. STATE.
    No. A-7372.
    Opinion Filed Aug. 16, 1930.
    Rehearing Denied Sept. 13, 1930.
    (291 Pac. 139.)
    Kienzle & Hickok, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county on a charge of maintaining a public nuisance and his punishment fixed at a fine of $500 and imprisonment for three months in the county jail.

The evidence of the state was that the defendant operated a cold drink stand and domino parlor in the city of Wanette. A search of the premises resulted in finding nine half-pints of whisky in a back room, some domino tables and chairs on the first floor, a poker table and some chairs on the second floor, and three half-pints of whisky on one of the men found in the place of business.

The defendant contends that he was materially prejudiced by the way the jury was drawn from the box by the court clerk. It appears from the record that the following proceedings were had with reference to the jury:

“Mr. Kienzle: Come now the defendants and object at this time to the method of selecting the jury called in this case, for the reason that the ballots on which are printed the names of the jurors in the ballot box are not folded, as provided by law.
“The Court: Let the record show that the names of the jurors were drawn in such manner that the names cannot be seen by the clerk. Overruled.
“Mr. Kienzle: Exception. Comes now the defendant and offers to show by the testimony of sundry witnesses that the ballots in the jury box are not properly folded as provided by law, and can easily be read by anyone taking the same out of the box.
“The Court: All right, put on your testimony on that point.”

Kenneth Kienzle, being first duly sworn, testified as follows:

“Mr. Kienzle: My name is Kenneth Kienzle, I am one of the attorneys for the defendant in this case, and I was present and had occasion to see the ballots in the jury box at the time the names of the jurors were drawn forth by the clerk, and said ballots were not folded so that they could not be read by anyone drawing the same out of the box. * * *
“The Court: You mean to tell this court that she could see the names as she drew them from the box?
“The Witness: I don’t know whether she could or not.
“Mr. Lewis: If they are not satisfied, draw the jury over. No cross-examination.
“The Court: This is the most frivolous proceeding I have ever heard of, Mr. Kienzle.
“Mr. Kienzle: Exception, and to the remarks of the court.
“The Court: Exceptions allowed.”

Whereupon the jury was sworn and examined for cause and passed by the state, and thereupon the following proceedings in part were had on voir dire:

“Mr. Hickok: We challenge the juror Virgil Miller.
“The Court: Q. How long have you lived in Pottawatomie county, Mr. Miller?
“The Juror: A. About 30 years.
Q. Are you a voter in this county? “The Court:
Yes, sir. “The Juror:
Challenge overruled. “The Court:
“By Mr. Kienzle:
“Q. Mr. Miller, you stated you do not own your own home here? A. No, sir.
“Q. Did you state whether or not you owned any other real estate? A. No real estate except some royalty interests and. one piece of fee and some interests.
“The Court: You pass the jury for cause?
“Mr. Hickok: We pass the rest of the jury.”

Section, 2644, C. O. S. 1921, provides:

“At the opening of the court the clerk must prepare separate ballots, containing the names of the persons returned as jurors, which must be folded as nearly alike as possible, and so that the same cannot be seen, and must deposit them in a sufficient box.”

This court had under consideration the question raised by defendant in the case of Young v. State, 41 Okla. Cr. 226, 271 Pac. 426, wherein this court said:

“The statutes of this state providing for the impaneling of jurors in criminal cases is not in all particulars mandatory. A substantial compliance will be sufficient where the deviation is not material and has not prevented an accused from having a fair and impartial jury, selected by lot from the entire panel,” Michael v. State, 42 lected by lot from the entire panel.” Michael v. State, 42 Okla. Cr. 124, 274 Pac. 900.

The question involved is not a frivolous one, as indicated by the judge, but, since the defendant examined only one juror on his voir dire and waived all his peremptory challenges, he accepted the jury and waived the objection. Trial judges are admonished that the secrecy of the jury box must be maintained. The statute should be complied with in the matter of folding the ballots with the names of the jurors on them, and the jury box should be handled by the clerk so that the names that are being drawn from the box cannot be seen by the clerk until after the name is drawn from the box. In the case at bar the court should have inquired of the clerk if she could see the names as they were drawn from the box. Since the defendant’s counsel admitted that he did not know whether the clerk saw the names or not, and since the defendant failed to examine the jurors on their voir dire and to exercise his peremptory challenges, we hold the error was not such as requires a reversal of the case.

Defendant next contends that the evidence is insufficient to support the verdict of the jury, but this contention is without merit.

For the reasons stated, the cause is affirmed.

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


text:
    HOMER COATNEY v. STATE.
    No. A-7446.
    Opinion Filed Aug. 16, 1930.
    Rehearing Denied Sept. 13, 1930.
    (290 Pac. 932.)
    L. M. Gensman, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county on a charge of transporting intoxicating liquor, and his punishment fixed at a fine of $500 and imprisonment in the county jail for 6 months.

The evidence of the state was that Conway Garner, wlio was a motorcycle patrolman in the city of Lawton, and had a deputy sheriff’s commission for the county, saw the defendant driving his car on the streets of the city of Lawton without a tail light; that this officer attempted to stop defendant, but that defendant speeded up his car and raced out of the city at 60 miles an hour; that while yet inside the city limits a large quantity of whisky was poured out of a container onto the side of the car and running board and onto the person of this officer who was following after the car, and that a half-gallon glass jar was thrown out of the car; that the officer fired a bullet into one of the tires and forced the defendant to-stop. Thereupon he arrested the defendant and one Breedlove, who was riding with him. The empty fruit jar was picked up near where the car was stopped.

The defendant was charged with transportation of intoxicating liquor. Garner and several other officers who came up immediately afterward testified that the side of the car and the running board were wet and had a strong smell of intoxicating liquor. The defendant took the stand and denied that any liquor was poured out of his car that night. He admitted, on cross-examination, that he had been convicted once and served time in the federal court for violation of the prohibition law, and that he had been convicted on the 30th day of May, 1929, in the county court of Comanche county of the unlawful possession of 100 gallons of whisky, and admitted that he supposed the reason the officers were trying to arrest him when he fled was because they knew he had been convicted of a violation of the prohibitory liquor law.

No motion was made to suppress the evidence, for the reason that none was obtained by any search of the defendant’s car. The defendant contends that this evidence was insufficient to support the verdict of the jury. There was sufficient evidence to justify the jury in finding the defendant guilty.

Defendant next complains that the court erred in its instruction to the jury. Defendant made no' objection to the instructions given by the court and no exceptions to the same, and submitted no other or different instructions to the court with the request that they be given. While the instructions are not as full as they might have been, they fairly state the law as applicable to the facts’in the case.

For the reasons stated, the cause is affirmed.

EDWARDS, P. J., concurs. DAVENPORT, J., absent and not participating.


text:
    HOWARD KIRKPATRICK v. STATE.
    No. A-7382.
    Opinion Filed June 5, 1930.
    Rehearing Denied Sept. 13, 1930.
    (290 Pac. 933.)
    Sherman & Warren, for plaintiff in error.
    The Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Pottawatomie county on a charge of baying unlawful possession of beer, and bis punishment fixed at a fine of $300 and confinement in the county jail for a period of three months.

The evidence of the state was that the officers procured a search warrant and searched the premises occupied by defendant and found some empty bottles and glasses setting on a little table in a back room where some parties had congregated and had been drinking. They found quite a lot of empty beer bottles in the building and found a sack and barrel full of empty beer bottles outside the house, and some 10 or 15 steps from the house found a sack with some bottled beer in it and something like a case of beer, and 40 or 50 yards from the house found two ten-gallon stone jars of beer; that at the time the arrests were made defendant told the officers he had the place rented from Mrs. Mason and had charge of the ¡place. The officers testified that they had watched the place for several days, and that people came and went from there and congregated there, and that it was a place of public resort, and that the place had the reputation of being a place where intoxicating liquors were kept and sold. The state had the beer analyzed for alcoholic content, and the evidence was that it contained 4.8 per cent, alcohol.

The defendant contends first that the evidence is insufficient to support the verdict of the jury. There is no merit in this contention.

The defendant filed a motion to suppress the evidence for the reason that the affidavit was insufficient to authorize the search of the premises. The defendant in his own defense denied that he knew anything about the beer or that he had been given possession of the premises at the time of the raid; that a Mrs. Mason was the owner of the premises, and while he had leased it from her, she bad not moved out and turned it over to him. An examination of tbe affidavit shows that it was sufficient. If the contention of the defendant was true that he was not in possession of the premises, then he was in no position to contest the sufficiency of the affidavit or the legality of the search, since the immunity from unreasonable search and seizure is personal. Hunter v. State, 43 Okla. Cr. 136, 277 Pac. 952; Vale v. State, 43 Okla. Cr. 158, 277 Pac. 608.

The other errors complained of by the defendant are all without merit. For the reasons stated, the cause is affirmed.

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


text:
    LUKE SHORT v. STATE.
    No. A-7580.
    Opinion Filed Aug. 16, 1930.
    Rehearing Denied Sept. 13, 1930.
    (290 Pac. 934.)
    L. C. McLean, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Garfield county on a charge of having unlawful possession of one-half gallon of whisky, and his punishment fixed at a fine of f500 and confinement for six months in the county jail.

The state called E. J. Peel and Charles Allen as witnesses, who testified that they went to the home of defendant, and not finding him at home, they nsed a skeleton key and entered the house and there found a funnel, some empty fruit jars and empty bottles that smelled strongly of whisky, and found a half-gallon of whisky hid under the covers in the bed. Thereupon the witness Peel identified a half-gallon jar of whisky as found in the home of the defendant and the state introduced the same in evidence. The defendant filed no motion to suppress the evidence, and made no objections to the testimony of the state nor to the introduction of the whisky, and did not cross-examine the state’s witnesses.

When the state rested, the defendant demurred to the evidence for the reason that the state had wholly failed to prove the allegations in the information or to charge the- defendant with the commission of any crime, which demurrer was by the court overruled. The defendant then took the witness stand in his own behalf and admitted the possession of the liquor and paraphernalia found by the state in the search, but claimed he had the liquor for his own personal use. Defendant now contends that the court erred in admitting the evidence of the state for the reason that the search and seizure was void as made without any search warrant.

Where the defendant makes no motion to suppress the evidence and makes no objection to the introduction of the evidence, he thereby waives any objection to the manner in which the evidence introduced against him was obtained.

For the reasons stated, the cause is affirmed.

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


text:
    T. J. GOLDEN v. STATE.
    No. A-7604.
    Opinion Filed Aug. 29, 1930.
    Rehearing Denied Sept. 20, 1930.
    (290 Pac. 1111.)
    K. S. Howe, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

T. J. Golden, hereinafter referred to as defendant, was convicted in the county court of Choctaw county of the crime of pointing a deadly weapon at another, and was sentenced to pay a fine of $50 and to serve a term of three months in the county jail, which is the minimum sentence under the statute.

The defendant first contends that the evidence is insufficient to support the verdict of the jury. Defendant argues in his brief that there is no evidence showing that the defendant pointed a rifle at the complaining witness, but that the evidence shows that before defendant could point the rifle his wife grabbed it and the team ran away, thus preventing the commission of the crime.

Defendant overlooks the testimony of Joe Gladden, the complaining witness, Mrs. Joe Gladden, and Helen Gladden, who testify positively that the defendant pointed the rifle at Joe Gladden, and that the wife of defendant grabbed the rifle after defendant had pointed it, and that it was during the scuffle between defendant and his wife over possession of the rifle that the team ran away.

There was a sharp conflict in the evidence; the witnesses for the state testifying positively to the pointing of the rifle, and the witnesses for the defendant testifying that the rifle was not pointed. The jury settled this conflict in favor of the state. There is ample evidence in the record to support the verdict.

Defendant next contends that the court erred in overruling his demurrer to the information, the charging part of which reads as follows:

“That he, the said T. J. Golden, did then and there wilfully, wrongfully, unlawfully point a firearm to-wit: a rifle, at one Joe Gladden contrary to the form of the statutes in such case made and-provided, and against the peace and dignity of the state.”

This information was duly approved by the county attorney and verified by Joe Gladden, the complaining Avitness.

In the case of Sherman Billings v. State, 14 Okla. Cr. 12, 166 Pac. 904, this court said:

“An information for pointing’ a deadly weapon at another which alleges: ‘The said Sherman Billings did then and there unlawfully, willfully, and feloniously point a weapon, to wit, a Winchester rifle, at one J. L. Burns, contrary to the form of the statute,’ etc., is sufficient. A Winchester rifle is a deadly weapon per se.”

The only difference in the information in the Billings Case and the information in the case at bar is that in the Billings Case the rifle was alleged to be a “Winchester” rifle. In the case at bar it is alleged that the defendant pointed “a firearm, to wit, a rifle,” at the prosecuting witness. Any firearm in the nature of a rifle is per se a deadly weapon. A rifle is more deadly than a pistol because of its longer range and the accuracy with which it may be fired. The contention that the trial court erred in overruling the demurrer to the information is without merit.

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

The jury fixed the defendant’s punishment at the minimum provided by law. There being no substantial error in the record, the cause is affirmed.

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


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    CLAUDE JONES v. STATE.
    No. A-7412.
    Opinion Filed Aug. 29, 1930.
    Rehearing Denied Sept. 20, 1930.
    (290 Pac. 927.)

      U. G. Winn, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was tried for the crime of murder, and convicted of manslaughter in the first degree, and sentenced to he confined in the state penitentiary for a period of four years. Motion for new trial was filed, considered, overruled, exceptions saved, and the defendant has appealed to this court.

The record is voluminous. The testimony on behalf of the state that is deemed necessary to set out is, in substance, as follows:

Mrs. Emma T. Welborne stated:

“I.live at 710 North Hickory Street, at the corner of 5th and Hickory; Thelma Jones is my daughter; she was formerly the wife of the defendant; I knew William Bod-die in his lifetime, and remember the date when he was killed; I Avas on my back porch when Claude Jones passed; the ground betAveen my barn lot and where Mrs. Jones lived slanted toAvard the west; there Avas nothing to obstruct my vision, I could see the Jones’ house plainly; the plot of ground on which Mrs. Jones’ house was located comprises one acre and the house sets back from the street; I saAv the shooting from my barn lot; I saw the defendant twice the afternoon before the shooting, first about one o’clock and then about four-thirty; he came to my house and asked about Thelma; Thelma was in the house but the defendant did not get to see her; he did not seem to be mad at that time; he came again about four-thirty and asked Thelma where she had been and she replied that it was none of his business, that she had her divorce. Bill Boddie came up in a car and stopped a. little below the gate and called to Thelma and she went out and got in the car and drove down to her house and got out; before Boddie came the defendant was not mad, and after Roddie came he remarked that he did not intend for his children to have a step-daddy; I saw the defendant the next morning about nine o’clock at my daughter’s house; Allen Wise went there with the defendant; Bill Roddie, the deceased, delivered milk to my daughter about eight o’clock that morning. The defendant and Allen Wise remained at the house until Thelma and I left. The defendant and Allen Wise were drinking. Thelma and the defendant were fussing, and Thelma asked the defendant and Wise to leave and they finally left in the Wise car; I was on the back porch at my home at the time the killing took place; it was a screened in porch facing south, with a screen door in the west side; the defendant and Allen Wise passed going west on 5th Street, traveling fast; when I saw them I finished washing my hands and ran out to' the barn yard; when I got out in the barn yard I saw Bill Roddie, he was coming south to the gate, he would have to' go south a piece to get to the gap and then east and go on out; it seemed he had just stepped out of the house when I saw him, he was walking along slow, facing south, the best I could tell he was walking with his hands in his pockets; I next saw Claude come out of the door, and hold the screen until the baby came out, and he tiptoed, sorty bending down a little; he went out between the last two gallery posts and when out a little ways his arm came up and the g.un fired and I saw the smoke and Bill went over; Bill had just got out to where he turned east and fell; there was only one shot fired; the defendant was only seven or eight feet from Bill Roddie when the shot fired; Thelma came out of the house and Allen Wise right behind her; I was still in the barn lot when they came out of the house. I ran to the telephone and phones T. O'. Cullins, the justice of the peace, to send the law; to get there as soon as they could.”

On cross-examination, the witness stated that when the constable, Hyden, came out she was on the parking and Hyden was going as fast as he could; she saw Mrs. Atkinson and Mrs. Ralston when she came out of the house after she had phoned the law.

Thelma Jones testified for the state that she had seen the defendant twice the day before the shooting, and almost daily for some time prior thereto; they were married and she had two children—

“The evening before the shooting the defendant wanted me to go to the house with him but I refused; I then went home with Roddie; Roddie was there the morning the defendant came and he was friendly with him and tried to get me to go back to him; that night I went out riding with Roddie and when I came back the defendant was there and I went to my mother’s for the night. The defendant stayed at my house; he seemed to be mad then; the next morning Roddie brought the milk to the house and defendant offered him a drink to show him that he was not mad; Allen Wise was at my house with the defendant; I went to town and came back about one-thirty and they were gone; Roddie came about two-thirty and the defendant and Allen Wise came about four; just after Wise and the defendant came into the house Roddie left, he went out the front door; the next thing I knew I heard a shot and rushed out there, I was in the kitchen when the shot fired; I went out of the house in front and Allen Wise followed me, and when I got out in the yard I saw Roddie lying there dead in the gap; the defendant was standing there almost at Roddie’s feet; the defendant made me step back; when I got out there the defendant made the remark, ‘See he has tore his pants off of him trying to get his gun.’ The defendant would not let me go to the body, saying I was trying to take the gun off Roddie’s body. Hyden and Green came up, and the defendant gave Hyden his gun.”

There is considerable other testimony as to the officer taking the gun out of his pocket, and about the pocket of his trousers being torn. Other witnesses were called to show the surroundings at the place. The defendant called several witnesses who testified in his behalf, telling of threats made by the deceased against the defendant, which threats were shown to have been communicated to the defendant, but the greater part of the testimony tends to show that, notwithstanding these threats against the defendant by the deceased, they were together quite often, and back and forth to the house where the defendant’s divorced wife resided with the children, and on more than one occasion had been drinking and engaged in poker games. The testimony all tends to show that the trouble arose because the defendant objected to the fact thatRod-die visited at the home of his diverged wife where the defendant’s children were. The testimony shows that the deceased was armed with a pistol.

The defendant testified he was 38 years old; that he married Thelma Sevier, who testified against him; they had two children, the oldest about 7 and the youngest 5; he had known Bill Roddie since 1911; that he played poker and drank with Roddie; that Roddie delivered milk at his home in 1926; later he noticed and was told by others that Roddie’s attention to his wife was marked; that he received information that Roddie was going to his home during his absence, and about the 1st of February, 1928, he told Roddie he would have to stay away from his home; that Roddie quit for a few days and then asked permission to deliver milk again to square an account he owed the defendant—

“My wife fussed about it; one morning Roddie and I was at John Blocker’s playing poker, and in a short while I missed Roddie, and when I went home I saw Rod-die holding my wife by each arm, and I said, ‘Bill, I have stood this as long as I can, you will have to get away and stay away’; Roddie wanted to kno w what was the matter, and I said I did not want my home tom up and that he would have to get out and stay out; my wife got mad and began to pack her things up and on the 6th day of February, filed suit for divorce, and moved to her mother’s. I was sent to the Muskogee jail on a charge of possession of whisky found in the house; I remained in the house until I went to Muskogee and when I came back my wife was back there and we lived together as man and wife; my wife and I again got to discussing Eoddie and I told her I would not stand for Eoddie coming there, and she said that if Eoddie could not come back there she would go where he could come, and she left me again. The suit for divorce went to trial about a month afterwards and a divorce was granted. After my wife left me I heard threats that Eoddie made against me; I also had information that Eoddie carried a pistol, and had heard Eod-die ' testify in the Crews case, for the murder of Jim Granger, that he always carried a gun. I believed from what I had heard, and from Eoddie’s testimony that he carried a gun all the time. I was willing to take my wife back for the sake of the children; I wanted her to quit running around with Eoddie; from the threats I had heard I thought Eoddie was liable to kill me; I had been carrying a gun something like a week before the trouble; my wife never ordered me away; the day before the shooting I saw my wife in Ada, and she called me over to her car and I got in and went with her to look for the oldest boy, who was getting so bad that my wife could not do anything with him; I was at Thelma’s house about 7:30 the nest morning; my wife told me of the trips she and Eoddie had made to Coalgate for the purpose of getting whisky; I had not taken a drink that day; about four o’clock Allen Wise went with me to Thelma’s house; we parked the car just outside the garden gate, I did not know Eoddie was there; I had a bad throat trouble, and when I reached the south end of the porch I began spitting and put my left hand up on the post; Wise went on in the house; while I was standing at the post Eoddie came out, when he passed by I did not look up, I just glanced and saw it was him, when he passed on I kindly straightened up and he said, ‘Claude, don’t go in there,’ and he had his hand on his right front pocket; I was about seven or eight feet from him; when I turned around I saw the handle of his gun, I jerked my pistol and fired; when I fired that shot I thought my life was in danger or that I was in danger of receiving great bodily harm; I don’t remember where Roddie had his left hand at the time I fired the shot; when Roddie made the pass for his gun I fired as quick as I could; when I fired he just kindly staggered or stumbled and went down; my wife came running out of the house and said something about me killing Roddie and commenced screaming and crying; I kept her from going to him; I stayed until the officers came.”

On cross-examination, the testimony of the defendant was the same in substance as direct examination, as to what occurred at the time the shot was fired and as to what his previous relation with the deceased had been.

There is no dispute in the record as to the cause of Roddie’s death; the defendant admits the shooting, and pleads justification on the ground that at the time he fired the shot the deceased was trying to draw a pistol from his pocket. The defendant and the deceased are the only two parties that were anywhere near the scene of the difficulty; Mrs. Welborne, who testified to seeing the shooting, was something like 350 or 400 feet away, and could not tell just what the deceased was doing with his hands at the time the shot was fired. This is, in substance, all of the testimony that it is necessary to incorporate in this opinion.

The defendant has assigned several errors alleged to have been committed by the court in the trial of his case. In his argument he presents only three errors assigned: First, the verdict is contrary to law; second, the verdict is contrary to the evidence; third, the court erred in overruling his motion for a new trial. These three assignments may be considered together as they have been in the brief. The contention of the defendant is that a careful consideration of the evidence will disclose that its nature is such that it is wholly insufficient under the previous holdings of this court to justify the verdict returned by the jury. Under the law, in order that the evidence may be held sufficient to sustain a conviction, it must establish all the essential facts of the crime charged in the information, and must be of such a character that this court can see that it was not influenced by passion or prejudice, and musí be such as to show beyond a reasonable doubt the guilt of the defendant. The testimony in this case tends to show that the deceased was keeping company and often appearing at the home of the defendant’s divorced wife; the defendant also was back and forth to the home of his former wife; and that information had been brought to the defendant that the deceased had been threatening violence against the defendant. The defendant and his divorced wife had been having some trouble about the attentions of the deceased to her.

The testimony on behalf of the state, on the morning prior to the killing and the day of the killing, tends to show that deceased was leaving the home of the defendant’s divorced wife as the defendant was approaching the home, and, after the deceased had passed the defendant, or as he was going toward the gate to leave the home of the defendant’s divorced wife, the defendant drew his pistol and fired the shot that took the life of the deceased. The defendant says that deceased passed him and did not speak to him, and that he glanced up and saw the deceased make an effort to draw his pistol from his pocket, and he believed he was in danger of losing his life or receiving great bodily harm at the hands of the deceased, and that he fired the shot that took the life of the deceased. This testimony, under proper instruction of the court, was submitted to the jury for its consideration, and the jury returned a verdict of manslaughter in the first degree, fixing the minimum punishment.

There is no controversy as to the law in this case, nor is there any controversy in the previous holdings of this court. This court has recently passed on this question in the case of Parker v. State, 43 Okla. Cr. 374, 279 Pac. 362, in which it was held:

“To sustain a conviction, it should appear not only that the offense was committed, but the evidence inculpating the defendant should do so to a degree of certainty, transcending mere probability or strong suspicion.
“Where the evidence in a case to sustain a verdict of guilty, is of such a weak and uncertain character that the court cannot say that the jury was not influenced by prejudice, passion, or irrelevant and incompetent testimony, a great deal of such testimony appearing in the record, this court will order a new trial.”

A number of authorities are cited by the defendant, all relating, to the question where a verdict of guilty is returned by the jury, without sufficient evidence to support it, the same will be set aside. In this case there is a conflict in the testimony on the question as to- whether or not the defendant was justified in firing the shot that took the life of the deceased. This question was properly submitted to the jury by the court, and the'jury by its verdict said that the defendant was not justified in firing the shot that took the life of the deceased, and returned a verdict of guilty of manslaughter in the first degree, fixing the minimum punishment. The weight of the evidence and the credibility of the witnesses in a criminal case is for the determination of the jury, and this court will not set aside the verdict of the jury unless it is clearly evident that the jury acted arbitrarily, or in violation of their oaths, and returned a verdict based on prejudice or passion, or without sufficient evidence to sustain the verdict.

In Ammons v. State, 25 Okla. Cr. 164, 219 Pac. 426, 427, the court said:

“Where the inference of guilt can be reasonably drawn from the evidence, this court will not pass upon the weight of the evidence in order to determine whether the defendant was guilty as charged. On the record before us it was for the jury to judge the weight of the evidence and the credibility of the witnesses, under the instructions of the court which gave the defendant the benefit of all reasonable doubt. * * *
“While it is undoubtedly true that there was, under the testimony, ample room for a different verdict, we cannot substitute our judgment for that of the jury.”

In Haley v. State, 39 Okla. Cr. 186, 264 Pac. 635, this court said:

“It is not for this court [Criminal Court of Appeals] to substitute its judgment on questions of fact or of the weight of the evidence for that of the jury, where there is competent evidence from which the jury may reasonably and logically find the guilt of the defendant, even though the evidence may be conflicting, or such that different inferences may reasonably be drawn therefrom.” Cain v. State, 37 Okla. Cr. 282, 257 Pac. 1114.

After a careful reading- of the record in this we hold that, while there is a conflict in the testimony, the evidence is sufficient to sustain the verdict and judgment.

The judgment is affirmed.

EDWAKDS, P. J., and CHAPPELL, J., concur.


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    LEONARD CLYMER v. STATE.
    No. A-7609.
    Opinion Filed Sept. 20, 1930.
    (291 Pac. 1117.)
    R. B. Strong, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Custer county on a charge of having illegal possession of a still, and was sentenced to pay a fine of $250 and to serve 60 days in the county jail. The case was tried in June, 1929, and the appeal lodged in this court in October, 1929.

Where an appeal is prosecuted to this court and no brief in support of the petition in error is submitted and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and will read the evidence to ascertain if it reasonably supports the judgment, and, if no fundamental error is apparent and the evidence is sufficient, the case will be affirmed.

We have examined the record, and find that the evidence fully sustains the verdict and judgment. No jurisdictional error is apparent.

The case is affirmed.


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    VIRGIL KNIGHT v. STATE.
    No. A-7572.
    Opinion Filed Sept. 6, 1930.
    Rehearing Denied Sept. 20, 1930.
    (291 Pac. 142.)
    Darnell & LaBue, for plaintiff in error.
    Tbe Attorney General, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Custer county of the unlawful transportation of intoxicating liquor, to wit, about one pint of whisky, and his punishment fixed at a fine of $250 and confinement in the county jail for a period of 60 days.

The defendant contends first that the information fails to charge facts sufficient to constitute an offense; the charging part of which reads as follows:

“On the 21st day of October, in the years of our Lord one thousand nine hundred and twenty-eight (1928), at and within the said county and state, did then and there unlawfully, willfully, intentionally and knowingly transfer and convey certain prohibited liquors, to-wit; about one half pint of whisky in a pint and half pint bottle, in an automobile, from a place in the State of Oklahoma to affiant unknown to another place, to-wit; a point on the section line between sections 23 and 26, township 12, range 7, W. I. M. in Custer county, Oklahoma, to an unknown point between said sections 23 and 26, contrary to the form of the statute,” etc.

After the jury had been impaneled and sworn, the defendant for the first time raised the question of the sufficiency of the information by an objection to the introduction of evidence in the case, for the reason that said information did not charge an offense under the laws of the state of Oklahoma.

In Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635, this court said:

“The true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.”

Where defendant goes to trial and for the first time objects to the information or indictment when the state attempts to introduce testimony thereunder, the objection should be overruled if by any intendment or presumption the information or indictment can be sustained. Wilsford v. State, 8 Okla. Cr.. 535, 129 Pac. 80; Brashears v. State, 38 Okla. Cr. 175, 259 Pac. 665; Chamberlain v. State, 42 Okla. Cr. 410, 276 Pac. 507.

The charging part of the information in the case at bar is not a model one, but was sufficient under the authorities cited herein to put the defendant upon trial.

The other errors complained of by the defendant being likewise without merit, and the evidence being sufficient to support the verdict of the jury, the cause is affirmed.

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


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    LEE CHAMBLEE v. STATE.
    No. A-7217.
    Opinion Filed Aug. 23, 1930.
    Rehearing Denied Sept. 20, 1930.
    (291 Pac. 143.)
    Thomas Conner and W. R. Wheeler, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kiowa county of the crime of rape in the second degree, and bis punishment fixed by the court at confinement in the state penitentiary at McAlester for a term of six years.

The evidence of the state was: That the defendant and one Fred Ingraham went to the home of H. C. Boren, father of the prosecuting witness, and, after drinking some whisky with Boren, they went to the home of Mrs. Romine, where the prosecuting witness, Lillie Boren, had gone. That they represented to- the prosecuting witness that her father had told them to bring the prosecuting witness home, and, on this representation, she left the Romine home with the defendant and Ingraham. That after they left the Romine home the defendant and In-graham produced a bottle of whisky and forced the prosecuting witness, who was a 14-year old girl, to drink some of the whisky with them. That, after driving several miles farther, Ingraham left the car on a pretense of getting some water for the radiator, and, while he was away, defendant had intercourse with the prosecuting witness. That from this place they went several miles farther, where defendant left the car and Ingraham had intercourse with the prosecuting witness. Later they drove to an old shack, where Ingraham and the girl spent the night. The prosecuting witness is corroborated in all the details of the crime, except the actual act of intercourse. Defendant and Ingraham denied having intercourse with the girl, but corroborated much of her story in other details.

Defendant contends, first, that the information is insufficient to charge an offense. In Warren v. State, 24 Okla. Cr. 6, 215 Pac. 635, this court said:

“The true test of the sufficiency of an indictment or information is not whether it might possibly have been made more certain, but whether it alleges every element of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet.”

Beginning with State v. Feebeck, 3 Okla. Cr. 508, 107 Pac. 442, and continuing to Scott v. State, 40 Okla. Cr. 296, 268 Pac. 312, this court has uniformly held, similar informations sufficient.

Defendant next contends that the court erred in overruling his motion to dismiss the case because of failure, of the state to give him a speedy trial. After several months in the county jail, the defendant was released on a cash bond. There is nothing in the record to indicate why the trial of the case was delayed. The record discloses no demand on the part of the defendant for a trial and no showing made by the defendant at any time that any continuance was granted over his objection. The defendant being at liberty on bond and there being nothing in the record to indicate that defendant demanded, or that it was the fault of the state that he was denied a speedy trial, it was not error for the court to overrule his motion to dismiss.

The defendant next contends that the court erred in overruling his motion to dismiss the case for the reason that his codefendant had been acquitted on the charge.

Section 2575, C. O. S. 1921, provides as follows:

“An accessory to the commission of a felony may be prosecuted, tried and punished, though the principal felon be neither prosecuted nor tried, and though the principal may have been acquitted.”

Under this section, the fact that Ingraham had been acquitted on the charge that he also had committed the crime of rape against the prosecuting witness was immaterial.

Defendant next contends that the court erred in his instructions to the jury.

A careful examination of the instructions reveals that they fairly state the law as applicable to the facts in the case. The substance of the instruction requested by the defendant was given by the court on its own motion.

Defendant complained of numerous other alleged errors of the court, but examination of the record reveals that they are all without any substantial merit. Defendant was a man of mature years and the father of five children. The prosecutrix was 14 years of age. The record discloses that by artifice and deceit the prosecutrix was induced to go with defendant and Ingraham, and her evidence, with all of the facts and circumstances in the case, conclusively establishes the fact that the defendant is guilty of the crime of rape. When all of the circumstances are considered, the punishment meted out to the defendant is not excessive.

For the reasons stated, the cause is affirmed.

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


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    FRANK SPENCER v. STATE.
    No. A-7610.
    Opinion Filed Sept. 23, 1930.
    (291 Pac. 987.)

      Cox & Cox, for plaintiff in error.
    J. Berry King, Atty. Gen., and -Smith C. Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

Plaintiff in error, hereinafter called defendant, filed his appeal in this court on the 18th day of October, 1929, from the judgment rendered against him in the district court of Lincoln county on the 20th day of April, 1929. The Attorney General has filed a motion to strike the case-made and consider the appeal only upon the transcript of the record, because the record shows that the case-made was not served on the county attorney within the time allowed by any order of the trial judge for its service.

In this connection the record discloses that judgment and sentence was pronounced on April 20, 1929, at which time the defendant was allowed 60 days to make and serve his case-made. This time expired on and with June 19, 1929. On June 15th, and within the time previously allowed by the trial judge, a further order was made extending the time to make and serve case-made 30 days in addition to the time theretofore allowed. This time expired on and with July 19, 1929. Thereafter, and on July 10, 1929, the trial judge made a further order extending the time to make and serve case-made 30 days in addition to the time theretofore allowed. This time expired on and with August 18, 1929. Thereafter, and on August 8, 1929, the trial judge made a further order extending the time to make and serve case-made 30 days in addition to the time theretofore allowed for that purpose. This time expired on and with Tuesday, September 17, 1929. No further order extending the time to make and serve case-made appears in the record, and the case-made was not served until Wednesday, September 18, 1929. The case-made not having been served on the county attorney within the time fixed by the trial judge, the motion of the state is sustained and the case-made stricken. Philips v. State, 10 Okla. Cr. 353, 136 Pac. 776.

The appeal will be considered only on the transcript of the record.