text:
    PAUL CROUSE v. STATE.
    No. A-6252.
    Opinion Filed Feb. 6, 1928.
    (263 Pac. 691.)
    Mauntel & Spellman, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, P. J.

Ón information charging that in Woods county, on the 23d day of December, 1926, "Paul Crouse sold to Roy I. Wood, intoxicating liquor, to wit, beer, a malt beverage, having an alcoholic content in excess of one-half of 1 percentum of alcohol, by volume,” he w^s convicted and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and imprisonment in the county jail for 30 days. This appeal is from the judgment.

To properly determine the questions presented, consideration of the evidence will be necessary.

The state relied for this conviction upon the testimony of Roy I. Wood and R. J. Smith, both of Hutchinson, Kan., who it appears were commissioned as deputy sheriffs and each received $10 a day as detectives to secure evidence of violations of the liquor laws in Woods county.

Roy I. Wood testified : That with R. J. Smith and Paul- Menifee he visited the defendant’s home two miles north of Alva, and there he bought a dozen bottles of beer of the defendant, and paid him $3.50. That the sale was made December 23d, at 10 o’clock in the forenoon. He produced a bottle and read the label thereon as follows:

"Paid by Roy I. Wood, Alva, Oklahoma, December 23, 1925. Bought one dozen bottles of beer from Crouse. 10 o’clock in the morning. Paid him $3.50 for same. Delivered northeast of town. Roy I. Wood and R. J. Smith.”

That they drove back to Alva, where Menifee got out of the car. Then they drove south of town; there met Sheriff Beem and Deputy Johnson and turned over this beer to them.

In answer to specific questions, he testified as follows:

"Q. Where was it you drank the one-thii'd part of the bottle of this liquor? A. In the yard of Crouse’s.
“Q. Did Mr. Smith drink any? A. I think so.
“Q. Did Paul Menifee drink any? A. Yes, sir.
“Q. Where did you go? A. Came back to town.
“Q. What did you do then? A. Turn them over this beer.
“Q. Did you open any bottles down there? A. Yes, sir.
“Q. Did you convince the sheriff and deputy sheriff you had beer? A. Yes, sir. I think they thought it was beer.
“Q. What do you get per day for your services? A. Ten dollars a day and expenses.
“Q. Are you being paid as a witness now? A. Yes, sir. I get the same wages, $10 a day.
“Q. For testifying in this case? A. Yes, sir.”

E. J. Smith testified that he was present when the sale was made, that they opened four bottles and drank some, and the rest was turned over to the sheriff.

On cross-examination, he stated that he had been doing uncover work in Colorado, Kansas, and Oklahoma for the last three or four years.

C. T. Johnson, deputy sheriff, testified that he received the stuff from Wood and Smith south of town, that “he took one bottle to have it analyzed and poured the rest out.” He was asked if he knew whether or not it was intoxicating, and answered, “No.”

G. M. Lisk, head of the department of chemistry. Northwestern State Normal School, was called as a witness, and the bottle identified by the witness Wood was handed to him. He testified that the other labél thereon was by him placed there. It reads:

“Chemistry Department Northwestern State Teacher’s College, Alva, Oklahoma. Analyzed January 16, 1926. Alcohol by volume, 4.5 per cent. By weight, 3.36.”

On cross-examination, he was asked what was the alcohol contents of the bottle on the 23 d of December, 1925, and answered, “I don’t know.”

At the close of the evidence for. the state, the defendant moved the court to direct the jury to return a verdict of acquittal on the ground that the evidence is insufficient to sustain a conviction. Then the state asked leave to reopen the case for further direct evidence. Leave granted.

Thereupon William Deaton, deputy sheriff, testified that he delivered the bottle offered in evidence to Mr. Lisk, and received it back from him. He was then asked by the court, “From whom did you receive it?” and answered, “Charley Johnson, I think.”

On cross-examination, he testified:

“Q. When did you get it from Charley Johnson? A. They brought a whole lot of. stuff in the office; 1 don’t rememJber the date.”

Here the record is as follows:

“By Mr. Wilhite: The state rests.
“By Mr. Mauntel: We now hfenew our objection, and ask the court to instruct the jury to find the defendant not guilty, for the reason that it has not been shown that there was any alcohol in the beverage at the time the alleged sale was made.
“By the Court: The burden is upon the defendant to show that. Overruled. Exception allowed.”

As a- witness in his own behalf, the defendant testified that he was running a threshing machine; that on the afternoon of December 22d he threshed 50 or 60 bushels for Fred Irwin and pulled to Charles Swear-inger’s place, threshed for him that afternoon, then pulled the machine back to Irwin’s that night, and the next day finished Irwin’s threshing, took dinner at Irwin’s place, and pulled the machine 3 miles northeast' to Charley Trammel’s place, arriving there at 5 o’clock, and after supper went to Alva, arriving there about 9 o’clock; that he did not see the witnesses for the state and had no transaction with them, did not sell them any beer.

Charles Trammel testified that he lived 22 miles southwest of Alva; that defendant was threshing Kaffir corn in his neighborhood on the 22d and pulled his machine to his house on December 23d.

Fred Irwin testified that the defendant threshed some Kaffir corn for him about 2 miles from home, then pulled to Mr. Swearinger’s, threshed some there, and came back to his place, eating dinner there on December 23rd and finished threshing about 3 or 4 o’clock.

Charley Swearinger testified that the defendant threshed for him on December 22d and finished just before noon on December 23d; that the defendant stayed there the night of the 22d and then-pulled his machine, to Charley Trammel’s place.

Louis Cecil testified that he was running the engine, and the defendant looked after the coal, oil and water and was with the threshing crew all of the forenoon of December 23d.

Several witnesses, including a minister and a banker, testified as to the good character of the defendant as a law-abiding citizen.

In support of the contention of counsel for the defendant that the judgment should be reversed, it is insisted that the ruling of the court that the burden is upon the defendant to show that there was no alcoholic content in the beverage was upon the defendant constitutes prejudicial error.

It is always incumbent upon the prosecution to establish each and every material element of the crime charged by the evidence beyond a reasonable doubt before the jury is warranted in finding the defendant guilty, and the law’ never requires a defendant to establish any material element of his defense beyond a reasonable doubt, and the burden of proof never shifts from the state to the defendant.

The statute declares certain liquors intoxicating, and no proof of the alcoholic content is necessary when it is made to appear that the liquor in question is one of the class enumerated; the liquor is presumed to be intoxicating.

On the other hand, the courts do not take judicial notice of the intoxicating character of a beverage which is not made by any standard formula and is not per se intoxicating liquor. Richardson v. State, 21 Okla. Cr. 393, 208 P. 1052; Rambo v. State, 31 Okla. Cr. 214, 238 P. 869; Skelton v. State, 31 Okla. Cr. 333, 239 P. 189.

The only evidence tending to show that the content of the bottle analyzed contained more than one-half of 1 per cent, measured by volume was the testimony of the chemist who made the analysis, which was not made until 23 days after-the alleged sale, and he testified he did not know what was the alcohol content at the time of the sale.

Generally speaking, the evidence of detectives and informers is always carefully scrutinized’ by the courts. Here the two detectives as witnesses for the state testified to drinking two or three bottles" of the liquid in question, and neither testified that it was intoxicating liquor.

It follows from what has been said that the court committed prejudicial error in placing the burden upon the defendant to show that there was no alcohol in the beverage at the time of the alleged sale.

For the reasons stated, the judgment of the lower court is reversed.

EDWARDS and DAVENPORT, JJ., concur.


source: Caselaw Access Project

author: . DOYLE, P. J.

license: Public Domain

text:
    ART NEFF v. STATE.
    No. A-6343.
    Opinion Filed Feb. 6, 1928.
    Rehearing Denied Feb. 25, 1928.
    (264 Pac. 649.)

      Morris & Tant, Orban C. Patterson, and Breck Moss, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   . DOYLE, P. J.

This appeal is from a judgment of conviction of the district court of Oklahoma county, rendered on the verdict of a. jury finding the defendant, Art Neff, guilty of manslaughter in the first degree and fixing his punishment at imprisonment in the penitentiary for a term of twelve years.

The information in substance charges that in said county on the 27th day of November, 1925, Art Neff did then and there willfully, unlawfully and feloniously drive a Cadillac brougham car at a high and excessive rate of speed, to wit, approximately 50 miles an hour, along and over Walnut avenue at the intersection of East Park place, Oklahoma City, and while so driving said automobile did then and there willfully, unlawfully, and feloniously strike a Ford coupe in which Nadine Downey was riding, thereby inflicting certain mortal wounds upon the body of the said Nadine Downey, of which mortal wounds so inflicted she did instantly die.

The deceased, Nadine Downey, was killed while riding with Charles Peoples and Miss Lydia Greer. The collision occurred at the intersection of Walnut street and East Park place, in Oklahoma City.

It appears that the defendant was driving south on Walnut street shortly before the hour of 11 o’clock that night. In the car with the defendant were three women and a man by the name of Gordon. These parties were living at that time at 128 East Ninth street, Oklahoma City, which is about two blocks south from where the collision occurred.

The testimony on the part of the state, which was all the testimony offered in the case, is to the effect that the defendant was driving his car at a rate of §peed from 45 to 60 miles an hour. The car in which Miss Downey was riding was going east on Park place, and it is undisputed that the car driven by the defendant struck and turned over the car in which Miss Dow-ney was riding, throwing her out, and causing injuries to her head and body, which resulted in her death in a few moments after the collision.

It appears that the defendant did not stop his car to ascertain the result of the accident, but continued south on Walnut street at a high rate of speed; neither did he stop at the house to which the parties with him were going but continued on past said house, turned west and drove to the B. & C. garage, located on North Broadway, between Seventh and 8th streets, and there procured a Ford sedan in place of the Cadillac sedan which he was driving at the time of the collision. After procuring this Ford sedan, he drove back by the place of the accident, but did not make his presence known there, nor did he inform anybody that he was driving the car which collided with the one in which Miss Dow-ney was riding when killed. He then drove to the Missouri, Kansas & Texas depot, where he took a train to Pawhuska. there the next day he pleaded guilty in the federal court and was sentenced to serve a term of 18 months’ imprisonment in the federal penitentiary at Leavenworth for a violation of the federal Prohibition Law (27 US'CA). On the same day commitment issued.

The errors assigned and argued are, in substance, that the court was without jurisdiction to render said judgment in that the defendant was denied rights guaranteed by the Constitution and laws of the state.

It appears from the record that on November 28, 1925, a complaint was duly filed before W. P. Hawkins, justice of the peace, as a committing magistrate in and for Oklahoma City justice district, Oklahoma county, Okla., in which the defendant was charged with the offense set forth in the information filed in the district court in this case. On January 12, 1926, petition for writ of habeas corpus ad prosequendum was filed in this court on which the writ issued, and in response to the same the defendant, Art Neff, was surrendered by the federal authorities to the sheriff of Oklahoma county. On January 13, the defendant was brought before said justice of the peace and upon arraignment refused to plead; he was. then given 24 hours in which to plead. On January 14, the defendant was brought before said justice of the peace and again refused to plead. Thereupon the court entered a plea of not guilty for him, fixed January 19 for the hearing and issued subpoenas for the state’s witnesses, returnable on said date. On January 19, the cause came on for hearing and the defendant filed affidavit for change of venue, which was overruled. The state’s witnesses were sworn and testified, and the defendant was held to answer to the district court of ^Oklahoma county as provided by law. Subsequently, the county attorney duly filed an information in the district court of said county in which the defendant was charged with the crime of manslaughter committed as aforesaid.

Upon his arraignment the defendant pleaded not guilty. The case was set for trial on the 9th day of February following. When the case was' called for trial, the defendant was given leave to withdraw' his plea of not guilty, and then and there filed a motion to dismiss on the grounds that he was not given a preliminary examination as required by law, in that his motion for change of venue on the ground of the bias and prejudice of said justice of the peace was overruled; that the Oklahoma state courts have no jurisdiction of him, and especially the district court of Oklahoma county, for the reason that he is a federal prisoner. The motion to dismiss was overruled.

The defendant now urges this ruling of the court as ground for the reversal of the judgment herein.

It is contended that the defendant has not had the preliminary examination required by our Constitution and laws, and not having had such preliminary examination, he in legal effect has had none, and, not having waived the same, the district court acquired no jurisdiction of the case.

Our Code of Criminal Procedure provides (section 2966, C. S. 1921) that a defendant brought before magistrate for a preliminary examination on a complaint charging a felony may, at any time before any subpoenas are issued, have a change of venue “when he or some one for him files an affidavit that he has reasons to believe and does believe that he cannot have a fair and impartial examination * * * before the justice or county judge, whereupon the county attorney, or some one for him, may file an affidavit alleging the same disqualification against any one justice to whom it is proposed to send the cause for further proceedings, and thereupon the cause shall be sent to the next nearest justice,” and also provides, “The parties may agree upon a justice, whereupon the cause shall be sent to that justice.”

Said section provides further that:

“No witness shall be subpoenaed for either party until after the defendant has been brought before the justice, and been offered an opportunity to change the venue or has changed it, if he elects to change, and the date for the hearing has been fixed.”

In Garnett v. State, 15 Okla. Cr. 332, 176 P. 769, it is said:

“Under the constitutional provisions and the statutes quoted, the filing of a proper affidavit for a change of venue before an examining magistrate deprives him of further power or authority in the cause, and he can only transfer the cause to another justice of the peace or county judge, and such magistrate is vested with no discretion as to whether such change shall be granted nor is he authorized to determine the truth of the averments to the affidavit for á change of venue. The statute provides the manner of procedure by which a change of venue may be had.”

And see Cress v. State, 14 Okla. Cr. 521, 173 P. 854.

It appears from the record, that the affidavit filed before said justice of the peace, omitting title and verification, is as follows:

“Affidavit for Change of Venue.
“Comes now the defendant, Art Neff, and asks this court to grant him a change of venue, in the above-entitled cause for the following reasons, to wit:
“That this defendant believes that he cannot have a fair and impartial trial in this county, because of the prejudice of the citizens in this county and because of the bias of the above-named justice, and because of the prejudice and bias of said justice and the citizens in this district and county, and. the defendant respectfully asks that he be granted a change of venue from this district and this Oklahoma county.
“[Signed] Art Neff, Affiant.”

Indorsed:

“Filed Jan. 19, 1926.
“W. P. Hiawkins, Justice of the Peace.”

Obviously the foregoing affidavit does not comply with the requirements of the statute and is not a proper affidavit. The justice of the peace had no jurisdiction to grant a change of venue from the county or from the justice district, and on the averments of the affidavit he could not grant a change of venue to some other justice in the district or the county, as the defendant swears that he “believes that he cannot have a fair and impartial trial in this county.”

It is a well-settled rule of statutory construction that the requirements of a statute which are mandatory must be strictly construed. This court has uniformly held that this statute is mandatory, and that there must be. filed a proper or legal affidavit for the change.

Had this affidavit complied with the requirement of the statute, as to setting out grounds of the disqualification it was not seasonably made as provided by section 2966, above quoted, because it was not filed before any subpoenas had been issued, and it was filed “after the defendant” had appeared, and after he had “been offered an opportunity to change the venue.”

A defendant in a felony case may waive his right to a preliminary examination, and, if the entire proceeding may be waived, it would seem that any part thereof may likewise be waived, and such a waiver may be deemed to have taken place, unless the defendant at the proper time and in a proper manner indicates that he does not waive anything.

In this case the defendant was accorded an opportunity to change the venue to some other justice, but he filed an affidavit for a change of venue from the district and county; by so doing he waived the right to a change of venue to some other justice of the county.

An examination of the record discloses that the question argued was not properly raised or presented by the defendant’s motion to dismiss. He should have raised such a question by a motion to set aside the information as provided by the Code of Criminal Procedure, section 2596, Comp. St. 1921.

In the case of Quinton v. State, 10 Okla. Cr. 520, 139 P. 705, it wlas held that the showing made by the filing of an unverified motion is not sufficient to overcome the legal presumption of the regularity of the proceedings, and that the state may hold a preliminary examination, though the defendant has waived his right thereto.

In Muldrow v. State, 16 Okla. Cr. 549, 185 P. 332, it was held that a preliminary examination may be waived not only before the examining magistrate, but at the time the defendant is required to plead to the information in the trial court, and that if he pleads the general issue of not guilty, as was done here, he will be held to have waived such examination.

It follows from what has been said that there is no merit in the contentions made, and the motion to dismiss was properly overruled.

When the motion to dismiss the case was overruled, the defendant made application for a change of venue on the ground that the minds of the inhabitants of Oklahoma county are so prejudiced against him that a fair and impartial trial cannot be had therein, “that the newspapers of Oklahoma City, the News, the Times and the Daily Oklahoman, have given' the accusation against this defendant great publicity by carrying articles in the said newspapers which have a large circulation in Oklahoma county, and that by biased statements in said newspapers, and that by the bias and prejudice thereby engendered, and the general ill feeling against the defendant, he cannot have a fair and impartial trial in Oklahoma county.” And attached to the same are the articles as published in said newspapers.

The application was supported by the affidavits of the defendant and three residents of Oklahoma county. The state resisting the application called numerous witnesses.

Their testimony tended to show that there was no such state of feeling generally prevailing throughout the county as would prevent the defendant from having a fair and impartial trial therein, or would even make it difficult to obtain an impartial jury for the trial.

It must be taken as settled in this state that the granting of a change of venue is, under the statute, a matter resting within the sound discretion of the trial court, and unless it clearly appears that there is an abuse of such discretion, this court will not reverse the judgment for the failure of the trial court to grant a change of venue.

In the case of Gentry v. State, 11 Okla. Cr. 355, 146 P. 719, it is held:

“It is not an abuse of discretion to deny a petition for change of venue in a . capital case, which was based on the alleged prejudice in the minds of the people of the county, caused by the publication in certain newspapers of prejudicial accounts of the murder, such newspapers having a large circulation in the county, where the prima facie case made by the affidavits filed by the defendant is fully answered and clearly overcome by the counter affidavits filed by the state.”

See, also, Turner v. State, 4 Okla. Cr. 164, 111 P. 988; Starr v. State, 5 Okla. Cr. 440, 115 P. 356; and Tegeler v. State, 9 Okla. Cr. 138, 130 P. 1164.

Upon the record before us, we are of the opinion the application for a change of venue was properly denied.

No other reason for reversing the judgment being urged, and no substantial error appearing in the record, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: PER CURIAM.

text:
    Ex parte DUG LOGAN et al.
    No. A-6271.
    Opinion Filed Feb. 7, 1928.
    (264 Pac. 226.)

      Sylvester Grim, for petitioners.
    Edward Dabney, Atty. Gen., for respondent.
   PER CURIAM.

In this proceeding Dug Logan and Joe Collins presented to this court a petition alleging that they are unlawfully imprisoned in the county jail of Dewey county by C. C. Jones, sheriff of said county, under a commitment issued by the county judge of said county, sitting as an examining magistrate, based upon a preliminary examination held upon complaint, wherein petitioners were charged with the murder of one Albert Edwards by striking the said Albert Edwards with an automobile while the said petitioners were driving the said automobile on the public highway of Dewey county in an intoxicated condition.

Upon the hearing on the return of the writ, held on June 17, 1926, it was considered, ordered, and adjudged that said petitioners are entitled to bail, and that the bail of each petitioner be fixed at $15,000, bond to be conditioned as by law provided, and, upon the approval of the same by the court clerk of Dewey county, said petitioners to be enlarged.


author: DOYLE, P. J.

text:
    CHARLEY GREEN v. STATE.
    No. A-6255.
    Opinion Filed Feb. 8, 1928.
    (263 Pac. 680.)

      C. C. Williams, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

In this case the' information, filed in the county court on August 10, 1925, charged that, on or about the 6th day of June, 1925, Charley Gréen did sell one pint of whisky to Bud Ward for $1.50. On the trial by jury he was convicted, and punishment fixed at a fine of $50 and 30 days in jail. From the judgment rendered on the verdict, he appeals.

The state relied for this conviction upon the testimony of Buddy Ward to the effect that he purchased a pint of whisky from the defendant, paying him therefor $1.50. The defendant, as a witness, in his own behalf, denied that he sold Ward the whisky. One witness testified that the general reputation of the complaining witness was bad.

Frank Carter, former sheriff of the county, testified that his reputation for truth and veracity was bad; and Berry Morgan, another witness, testified that the reputation of the prosecuting witness for truth and veracity was bad.

The credibility of the state’s witness was a question for the jury, and, where he testified to the sale, it cannot be said that there was no substantial evidence to support the verdict.

Finding no prejudicial error in the record, the judgment appealed from is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


text:
    NEWT CROW v. STATE.
    No. A-6268.
    Opinion Filed Feb. 8, 1928.
    (263 Pac. 677.)
    Madden & Hubbell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

On information charging that in Cotton county, March 8, 1926, Newt Crow did willfully and unlawfully “manufacture a certain compound mixture, mash, wort and wash, fit for distillation and for the manufacture of ¡beer, distilled spirits and other alcoholic liquors,” he was convicted, the jury leaving the punishment to be fixed by the court. Motion for new trial was duly filed and overruled, whereupon the court pronounced judgment and sentenced the defendant to pay a fine of $50 and to imprisonment in the county jail for 80 days. To reverse the judgment he appeals.

A number of errors are assigned and argued, but one of which it is deemed necessary to notice, and that is that the court erred in permitting the jury to separate after the case had been finally submitted to them.

The record discloses that the defendant, a man 80 years of age, lived in the town of Temple for 15 years; that the city marshal, accompanied by another .man, visited his home and told him that he wanted to search the place, and defendant told him he had a keg of soft beer there and invited him to search the place; that the keg contained a mixture of water, corn meal, and sugar. The officer testified that he took a sample and turned it over to the sheriff, but it had not been tested; that from his experience he knew that this mixture if it would sit for a while would produce alcohol.

There was a motion for .a. directed verdict of acquittal, which was overruled.

The defendant testified that he had lived in the community 15 years, never drank intoxicating liquors, never was arrested or convicted of any offense, made the beer from sugar, meal, and water, and that the mixture was not intoxicating, that he did not mix it for the purpose of manufacturing intoxicating liquors, did not believe that he had done anything wrong, and did not object to the officer searching his home.

Three or four witnesses testified to drinking some of the defendant’s beer on several occasions, and each stated that he felt no effects from it whatever, and it was not intoxicating.

There was testimony showing the good character of the defendant, and that his reputation in that community for being an honest, upright, and law-abiding citizen was always good..

The record shows the settling and signing of the following bill of exceptions:

“In this case the jury returned to consider of their verdict, just before the noon hour on April 21, 1926, and had not reached a verdict at 6 o’clock on the afternoon of the 21st at the time court adjourned. Just before adjournment of the court, the jury was brought in and asked if they had been able to reach a verdict, and they informed the court that they had not and expressed some doubt as to their being able to do so. Thereupon the trial judge said to the jury in substance as follows: T am going to let you gentlemen separate and go to your homes and report back in the morning at 9 o’clock, convene, and go to your jury room and try again to reach a verdict. The court is going to permit you to separate and go to your respective homes, if you desire, for the night, and you will observe the instructions heretofore given you not to converse with, anybody about this case, and not let any one talk to you about it. Now you may go, gentlemen, and return tomorrow morning at nine o’clock.’
“This all took place in the presence of Walter Hubbell, the defendant’s attorney, who objected to the court’s action in permitting the jury to separate for the night and until 9 o’clock the following day, and the court duly allowed the exceptions. The jury convened on the following morning, and about noon on said day, to wit, April 22, returned a verdict of guilty, leaving the punishment to be fixed by the court.
“Lon Moms, County Judge.”

One of the grounds for a new trial is based upon the foregoing bill of exceptions. The state offered no proof to show that the defendant was not prejudiced by such separation of the jury after the case had been finally submitted to them.

Our Code of Criminal Procedure provides (section 2723, C. S. 1921) :

“After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

This court, construing this provision in Selstrom v. State, 7 Okla. Cr. 345, 123 P. 557, says:

“Under the statute [section 2723, supra], the true rule is that upon proof of a violation of the provisions thereof, by permitting the jury to separate and converse with unauthorized persons after the final submission of the case and before a verdict, the defendant is entitled to the presumption that such misconduct has been prejudicial to him, and the burden of proof is on the prosecution to show that the defendant has suffered no injury by reason of such misconduct. There are many instances where necessary separations may be held trivial and nonprejudicial, especially where the undisputed facts are sufficient to rebut the presumption of prejudice, but that is not this case.”

Construing this section in the case of Armstrong v. State, 2 Okla. Cr. 567, 103 P. 658, 24 L. R. A. (N. S.) 776, it is said:

“It is our opinion that this section imperatively requires that, upon the final submission of the cause to the jury, they cannot be permitted to separate, and if, after such submission, the jury separates, such separation vitiates the verdict, notwithstanding no affirmative proof of prejudice is offered. When this provision of the law is violated, the legal presumption is that it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”

Upon consideration of all the evidence in the case, tested by the rule that it must appear that the defendant committed acts which are clearly made an offense by the statute we are inclined to think that the evidence is not sufficient to support a conviction.

For the reasons stated, the judgment is .reversed, with direction to the court below to dismiss the ease.

EDWARDS and DAVENPORT, JJ., concur.


text:
    LEWIS COLEMAN v. STATE.
    No. A-6226.
    Opinion Filed Feb. 10, 1928.
    (263 Pac. 676.)
    Tolbert, Hunter & Tolbert, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DOYLE, P. J.

In this case the information charges that in Kiowa, county, August 29, 1925, Lewis Coleman “did then and there unlawfully, willfully, and wrongfully transport and convey intoxicating liquor, to wit, about one-half gallon of beer, from one place in Kiowa county to another place therein, to wit, from a point 1 mile west of the town of Roosevelt, on the section line, thence south, thence west, thence north, a distance of more than 2 miles.”

On trial by jury the defendant was convicted and punishment fixed at a fine of $200 and imprisonment in jail for 120 days. From the judgment entered in pur-surance of the verdict, he appeals.

The first assignment of error argued is that the court erred in overruling the demurrer to the information and in overruling the objection to the introduction of any evidence upon the ground that the information fails to state facts sufficient to constitute an offense.

The information is sufficient, as it alleges the transportation of intoxicating liquor, to wit, beer. It follows that the demurrer thereto and the objection to the introduction of evidence were properly overruled. It is also contended that the evidence is not sufficient to support the verdict.

Bill Humble testified that he was constable at Roosevelt, that he, together with Mr. Webster, went to the Stephens place, about 5 miles southwest of Roosevelt; that there was a dance and supper there that night; that he heard a car running about a mile west of this house and went down on the section line and waited for the car to come by; that the car stopped and the defendant got out and reached back over the seat, picked up a half gallon fruit jar full of Choe beer; that he thought he was going to “bust” it on the post, and he ' shot down pretty close to him; that he called Mr. Webster and turned the defendant over to him and went back and picked up the jar.

He further testified as follows:

“Q. What did that fruit j,£,r contain? A. Choc beer.
“Q. Did you taste of it? A. Yes, sir.
“Q. I will ask you to state if it was intoxicating? A. I will have to state that it was intoxicating liquor.
“Q. You say you have that jar? A. Yes.
“Q. I will ask you to state to the jury what that is? A. I can’t state what it is now.”

W. A. Webster testified that they were having a supper down on the Stephens place, and he went there with Mr. Humble and followed Mr, Humble from the house and saw the defendant with Mr. Humble.

He further testified:

“Q. What was he doing when you first saw him? A. Well, the car had stopped, he had this Coleman and a half gallon of what is known as Choc beer. I was up to the house when the car stopped. Mr. Humble called and I drove down to where he was, something like 300 yards, possibly.
“Q. Did you examine the fruit jar of liquid at that time? A. I did.
“Q. How did you examine it? A. I tasted it.
“Q. I will ask you to state whether that liquid was intoxicating liquor? A. I would judge at that time it was.”

At the close of the státe’s evidence the defendant moved for a directed verdict of acquittal in the form of a demurrer to the evidence, which was overruled.

James Nelson testified: That he was riding in the front seat with the defendant when he stopped the car. That the defendant got out and a couple shots were fired. Mr. Humble with a searchlight grabbed the defendant and said, “Hold up there,” and “fired a couple more shots,” Mr. Webster drove up and took charge of the defendant. Mr. Humble went over the fence and ■brought a jar back. That Mose Duckett and Ned Morgan were in the back seat.

Mose Duckett testified that the defendant stopped the car and got out, and about that time some shots were fired. Mr. Webster drove up. Mr. Humble turned the defendant over to Mr. Webster and told witness to get in Webster’s car, and he got in.

L. T. Stephens testified that Mr. Humble came to his house and said that he found a keg of beer in the pasture and asked for an empty jar, and they gave him one.

The defendant testified that he stopped his car and got out and Mr. Humble fired a couple of shots and said, “Hold up or wait”; that he did not have any liquor in the car or any jars in the car; that Mr. Humble crossed the fence and came back with a jar.

It is contended that the testimony of the witnesses Humble and Webster that they had tasted the contents of the jar and that it Was intoxicating was incompetent, in that they had failed to show themselves competent and qualified to judge whether or not such liquor was intoxicating or not.

We have held repeatedly that the courts do not take judicial knowledge of the alcoholic content of “Choc beer,” since its manufacture is not uniform, and it is not a liquid per se intoxicating. Welch v. State, 35 Okla. Cr. 2, 246 P. 1113; McDonald v. State, 36 Okla. Cr. 426, 255 P. 160; Worley v. State, 36 Okla. Cr. 128, 252 P. 852; Rouney v. State, 32 Okla. Cr. 111, 240 P. 142; Cook v. State, 36 Okla. Cr. 214, 239 P. 682; Rambo v. State, 31 Okla. Cr. 214, 238 P. 869.

In this case the witnesses for the state failed to qualify or to state any fact upon which their opinions were based. It follows that there was no competent evidence to show that the so-called “Choc beer” was intoxicating liquor. The acts of the constable in making the arrest were wholly unauthorized, and the evidence obtained for that reason was inadmissible.

For the reasons stated, the judgment is reversed and the case remanded to the court below with directions to discharge the defendant.

DAVENPORT, J., concurs.

EDWARDS, J., absent, not participating.


author: DAVENPORT, J.

text:
    FRAND CERDAY v. STATE.
    No. A-6269.
    Opinion Filed Feb. 11, 1928.
    (263 Pac. 1110.)

      Walter Hubbell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was charged by information in the county court of Cotton county, state of Oklahoma, “of selling one pint of spirituous and intoxicating liquor, to wit, corn whisky, to one J. R. Coleman,” was tried by a jury, and convicted. Motion for a new trial was filed and overruled, and the case is appealed to this court for review.

Four errors alleged to have been committed by the trial court are assigned by the defendant, which are as follows:

“(1) The court erred in overruling the motion of the plaintiff in error for a new trial.
“(2) The court erred in placing the defendant upon trial without an attorney, after defendant had stated in open court that he desired ,an attorney and was financially unable to employ one.
“(3) The court erred in admitting incompetent and irrelevant testimony offered on the part' of the state, upon the question of search and seizure of beer as corroborating evidence of the alleged sale.
“(4) The verdict is not supported by the evidence and is contrary to the law and the evidence.”

Before taking up the assignment of errors we deem it necessary to state the substance of the testimony as disclosed by the record:

M. J. Coleman, a witness for the state, testified: That he had known the defendant about a year. That he remembered the occasion of going to the defendant’s home about the 27th of February, and stated that he made a purchase of a pint of whisky from the defendant. That he started back to his truck, which was in front of the house, when the sheriff and his deputy came and took it away from him. That he did not remember what he gave the defendant .for the whisky. The county attorney asked him if it was about $2, and witness replied, “Something like that.” That the sheriff “searched me in my house before I went down to defendant’s house and searched my truck, and he did not find anything on me or the truck before I went to defendant’s house. I didn’t have any whisky concealed on me when I went to the house.”

C. O. Hooper testified that he made a visit to the defendant’s house on the 27th day of February; found a vehicle in front of the house; Mr. Coleman was there; took a pint of whisky off of Mr. Coleman, who was out in front of defendant’s house. We went to the door of the house and knocked, and after a while the defendant came to the door, and we told him we wanted to look him over for some whisky, and he said all right; we found about 34 bottles of home-brew in the house, home-brew contains alcohol; if given sufficient■ time it will contain more than one-half of 1 per cent. The defendant asked the witness on cross-examination if it wlas not a fact that he asked him if he had any search warrant, and the witness answered, “After we had gotten through you asked me about search warrant.”

C. B. Wade, called as a witness on behalf of the state, testified in substance to the same facts as Hooper. This is in substance what the testimony shows in the record. The defendant was not represented by counsel. It would seem from the record in this case that the sheriff and his deputy and Coleman conspired together to send Coleman down to the defendant’s house, and Coleman was to be out in front of the house, and the sheriff was to come down and search Coleman. When the sheriff came and searched Coleman he had a' bottle of whisky and claimed that he bought it from the defendant. The action of Coleman, as disclosed by the record, is not to be commended, and we regret to say that the action of the sheriff and his deputy in going into the home of the defendant as they did, without a search warrant and without any authority other than that authority which belongs to those who are charged with the duty of enforcing the law and yet are willing to violate the law in order to try to procure testimony ■against one, that so far as this record shows was peacefully in his home with his wife at the time, disturbing no one. The defendant in this case may be guilty of the offense charged, but the record clearly shows that he did not have a fair and impartial trial and was denied his constitutional right by the trial court.

The first and second assignment of errors of the defendant will be considered together, as they relate to the same question of law. Section 2590, C. O. S. 1921, is as follows:

“If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him.”

The following bill of exceptions was signed by the trial court:

“This case came on for trial on the 21st day of April, 1926, and the defendant, Frand Cerday, appeared, and when said case was called, he advised the court that he was not ready for trial as he had no attorney to represent him and on account of his poverty was unable to employ one, and that he desired an attorney, and desired that the court appoint one to defend him. Thereupon the court said to the defendant that he would not appoint him an atomey at the expense of the state, and that the case would have ito proceed to trial, whereupon the defendant in open court-asked for a continuance of the case until the next term, and upon being asked by the court why he so desired a continuance, stated that he was financially unable to employ counsel at that time, and that he did not want to go to trial without the aid of counsel. This also the court refused to do, and stated to him that he had made it a rule in this court to refrain from appointing attorneys for defendants for the reason that if he appointed one for him, that other people charged with violation of the prohibition laws would expect the same thing, and that it would be a burden upon the state in hiring attorneys for law violators, and that where a defendant was not financially able to employ counsel that the court would look after his interest in the trial of the case and see that no advantage was taken of him, and that after the above holding of the court, the defendant announced ready for trial, and the case proceeded to trial, resulting in the defendant being convicted and his punishment fixed at 30 days in jail and $50 fine. This is in substance what took place, and the court hereby signs and allows the same .to be filed in the case as bill of exceptions.”

The bill. of exceptions signed by the trial court shows that the court was fully aware that the defendant was a poor man and unable to employ counsel, and even though the court incorporated in the bill of exceptions the statement that the court would look after the interest of the defendant in the trial of the case and see no advantage was taken of him, this did not give the defendant the fair and impartial trial guaranteed to him and it was the duty of the court to have appointed counsel to have advised and defended the defendant. The statute is-plain and this court has passed upon this question many times. Baker v. State, 9 Okla. Cr. 62, 130 P. 820.

The defendant’s third error relates to the admission of incompetent and irrelevant testimony offered on behalf of the state upon the question of search and seizure of beer as corroborating evidence of sale. This assignment relates to the testimony that was offered on behalf of the state without the objection on the part of the court or the defendant. The defendant not being represented by counsel, and being forced to go to trial without the aid of counsel to keep the record for him, nó objection was interposed to the testimony offered upon the question of the search of defendant’s home and seizure of what was claimed to be home-brew, and is therefore not properly before this court for an opinion; but we desire to say that it was improperly admitted by the court. The defendant was on trial charged with selling one pint of spirituous liquors, and it was error for the court to admit proof of possession of other liquors. Smith v. State, 5 Okla. Cr. 67, 113 P. 204.

In the case of Wisdom v. State, 18 Okla. Cr. 118, 193 P. 1003, the court said:

“No rule of criminal law is better settled than that you cannot convict a defendant of one crime by proving him guilty of another and independent offense.” Smith v. State, 5 Okla. Cr. 67, 113 P. 204; Snow v. State, 3 Okla. Cr. 291, 105 P. 576.

The testimony with reference to the finding of the home-brew in the house of the defendant should not have been introduced in the record where the defendant was on trial for the specific sale of one pint of whisky. The manner of going into the defendant’s home without any authority whatever by the officers was improper, and if the'defendant had been represented by counsel and timely exceptions saved to the testimony on the ground that it was procured unlawfully, the court unquestionably would have sustained the objection. We only mention this for the reason that the defendant has raised this question, and the objection was well taken had it been objected to in the lower court.

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

For the reasons herein stated, that the defendant was forced to trial without the aid of counsel, the cause is reversed and remanded.

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


text:
    TIP BAILEY v. STATE.
    No. A-6235.
    Opinion Filed Feb. 11, 1928.
    (263 Pac. 1114.)
    W. F. Brumfield, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

The information in this case charges that in Noble county, December 4, 1925, Tip Bailey and Jap Bailey did unlawfully manufacture intoxicating liquor, to wit, whisky. A severance was granted. On his trial the defendant, Tip Bailey, was found guilty and his punishment fixed at a fine of $100 and imprisonment in the county jail for 300 days. From the judgment entered on the verdict, he appeals.

When the case was called for trial, the defendant interposed a motion to suppress the evidence on the ground that the same was obtained by an illegal search under authority of a search warrant issued upon the affidavit of R. E. Delaney, which failed to state sufficient facts to Warrant" the issuance of said search warrant. The motion was overruled.

The testimony of Emmet Delaney, a federal prohibition officer, and three other officers shows that in executing a search warrant they went to the “old Ben Battles” farm, and in the back room of a log cabin they found a 50-gallon still in operation, 14 barrels of mash, and 12 gallons of whisky. Tip Bailey was in the room where the still was, and the defendant, Jap Bailey, and a man named Edmondson were in the other room. They seized the still, mash, and. whisky and arrested the parties.

For the defense, Bill Edmondson testified that he lived 8 miles west of Stillwater and was hunting up the branch near the Battles farm and saw Tip Bailey drive up to a log cabin, which is about 300 yards in from the road; that he went up to the log house and found the Bailey boys there and sat down to warm his feet, and in about 10 minutes the officers appeared aud searched the place; that the officers asked him what he knew about it, and he told them that it w’as the first time he had ever been there and knew nothing about the still; that the case against him had been dismissed.

The testimony of the defendant in his own behalf is as follows:

“I live 7 miles west of Stillwater. It was rainy-weather, and just about noon I started to the store for some groceries. I went by Mr. Blake’s place and I stopped. He told me that Jap said if he saw me to come up to the Battles farm, that he wanted to see me, and I drove up there, Jap was there, and I asked him what he_ was doing, and he said, ‘You can see what I am doing, can’t you?’ I told him he was going to get into it, and he told me to come on in, and I went in at the window because he had the door fastened up and had a wagon sheet over it; that shortly afterwards the officers appeared and raided the place.”

To reverse the judgment appellant assigns as grounds the insufficiency of the affidavit upon which the search .warrant was issued and the evidence offered by the state obtained.

In respect to the motion to suppress the evidence, it is sufficient to say that appellant’s testimony shows that he did not claim any rights there.

It is the well-settled doctrine in this state that the right to immunity from an unauthorized search and seizure and its consequences is a personal right, extending only to the home or place of business and its curtilage. Klaber v. State, 35 Okla. Cr. 238, 250 P. 142; Williams v. State, 35 Okla. Cr. 171, 249 P. 433; Hardy v. State, 35 Okla. Cr. 124, 248 P. 874; Ratzell v. State, 27 Okla. Cr. 340, 228 P. 166.

It is also contended that the evidence is not sufficient to support the verdict. An examination of the record convinces us that there was sufficient evidence to warrant the submission of the case to the jury.

No other reason for reversing the judgment being urged, and no substantial error appearing in the record, the judgment of the lower court is affirmed.

EDWARDS and DAVENPORT, JJ., concur.


author: EDWARDS, J.

text:
    ELMER BROCK v. STATE.
    No. A-6145.
    Opinion Filed Feb. 11, 1928.
    (263 Pac. 1115.)
    Chester H. Lowry, Brown Moore, and R. J. Shive, for plaintiff in error.
    Edwin' Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Noble county of manslaughter in the second degree, and his punishment fixed at confinement in the state penitentiary for a term of two years.

A brief summary of the voluminous record discloses the following facts: On December 6, 1924, defendant, in company with one Madison, one Emerson, and two women, left the town of Perry in a Nash automobile belonging to Madison, and drove south some 10 or 12 miles into Payne county. They stopped for some time at a farmhouse, and then returned toward Perry on the main highway. Defendant, Madison, and one of the women, Helen Rooney, occupied the front seat. Emerson and the other woman, Mrs. Rags-dale, occupied the back seat. On this afternoon Mrs. Grace Hetherington and her son, about five years of age, and Mrs. Will Thompson, left the city of Perry about 4 o’clock, and started southward to their home; Mrs. Hetherington driving a Ford car about a mile and a half south of Perry the car in which they were driving was struck by the car in which were Brock and the other parties. The collision completely wrecked the Ford car, and so injured Mrs. Hetherington that she died in a few moments. Mrs. Thompson was seriously injured. At the time of the collision the Nash car was going at a high speed, estimated at 45 or 50 miles per hour. After it hit the Ford car, it left the roadway, went through' two wire fences, breaking several posts in each and stopped 126 feet from the point of collision. Neither the Nash car nor any of its occupants appear to have been greatly injured. The windshield was broken at the right side, and Madison was cut on the face. After the collision, the Nash car was driven into Perry by defendant, and he, with the Rooney woman, then drove to Pawnee, where he was arrested.

There is evidence that before starting on the trip Madison had a bottle of whisky, which was passed. Defendant testifies he only tasted it. Just after the collision a two-gallon jug of corn whisky with considerable blood on the handle, was found in the grass near the Nash car. There was considerable evidence that defendant was intoxicated at the time of the collision. Emerson was so intoxicated that he could not be aroused, and testified that he knew nothing about the wreck, and did not reach a state of consciousness until some time later at the town of Perry. Different witnesses testify that a few miles south of the scene of the collision defendant was driving the Nash car with the Rooney woman in the middle of the front seat, and Madison on the right side. Defendant testified he was not driving the car at the time of the collision, but that it was driven by Madison. None of the other members of the party testified, except Emerson, who says he was in a state of unconsciousness at the time of the collision. Immediately after his arrest at Pawnee, defendant called up certain officers at Perry, who testified he stated:

“I don’t know how they can do anything with me; it wasn’t my car. I was just driving it.”

The first contention is that the information is duplicitous, uncertain, and insufficient. The information is in three counts. The first alleges, in substance, that Elmer Brock and William C. Madison, while engaged in the commission of a felony, the driving of a automobile upon the public highway while under the influence of intoxicating liquor without any design to effect death, and with a deadly and dangerous weapon, to wit, a Nash automobile, did drive said automobile against and upon one Grace Hetherington and did inflict mortal wounds from which said Grace Hetherington did then and there die.

The second count alleges, in substance, that defendant and William C. Madison, while engaged in the commission of a felony, to wit, driving an automobile upon the public highway while under the influence of intoxicating liquor, and in a manner etninently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any particular person, with a dangerous and deadly weapon, a Nash automobile, driven at an unlawful and excessive rate of speed, greater than was reasonable under existing circumstances, without due regard to traffic, the safety of pedestrians, and the drivers of other vehicles, and at such rate of speed as to endanger the life and limb of others upon the highway, did drive said Nash automobile against and upon said Grace Hetherington, and did thereby inflict mortal Wounds from which the said Grace Hetherington did then and there die.

The third count charges the defendant and William C. Madison with murder by the use of a certain dangerous and deadly weapon, a Nash automobile, containing the other allegations necessary in a charge of murder.

This information was attacked by a demurrer and by an objection to the introduction of evidence; each going to the sufficiency of the information, and raising fully the question of duplicity.

Certainly, if the information in this case charges more than one offense, regardless of the guilt of defendant, the conviction cannot be sustained. Berry v. State, 17 Okla. Cr. 186, 187 P. 248; Roberts v. State, 27 Okla. Cr. 97, 225 P. 553; Berg v. State, 29 Okla. Cr. 112, 233 P. 497; Wear v. State, 30 Okla. Cr. 118, 235 P. 271; Sturgis v. State, 32 Okla. Cr. 252, 240 P. 750; Cole v. State, 38 Okla. Cr. 396, 262 P. 712.

Under the provisions of our Criminal Code, an indictment or information must contain a statement of the acts constituting the offense in ordinary and concise language in such manner as to enable a person of common understanding to know what is intended, and must be direct and certain as regards the offense charged. Only one offense may be charged in an indictment or information, but, where the same act may constitute different offenses, or the proof may be uncertain as to which of two or more offenses the accused may be guilty, the different offenses may be set forth in separate counts in the same indictment or information, and the accused may be convicted of either offense. The same offense may be set forth in different forms or degrees under different counts. Sections 2555, 2556, 2558, Comp. St. 1921. Here evidently but one act, a single offense, is in the mind of the pleader, that of causing the death of Grace Hetherington by wrongfully and feloniously driving against and upon her a Nash automobile. In the first count the information alleges a state of facts and the commission of an act which constitute murder under the third subdivision of section 1733, Comp. St. 1921. In the second count the information alleges a state of facts and the commission of an act which constitute murder under the second subdivision of said section 1733. In the third count the information alleges murder in the usual form as murder is defined in the first subdivision of said section 1733. The county attorney, out of excessive precaution, has alleged the act to have been committed under each subdivision of said section. The information is more definite than is required under our Criminal Code. In the case of Turner et al. v. State, 8 Okla. Cr. 11, 126 P. 452, it was said:

' “An indictment for murder which charges that the homicide was unlawfully committed with a premeditated design to effect the death of the deceased, includes every character and degree of unlawful homicide, and a conviction, if warranted by the testimony, will be sustained under such an indictment for murder, manslaughter, assault with intent to murder, aggravated assault, or simple assault. * * * In its last analysis murder in Oklahoma consists in the unlawful, killing of a human being with a premeditated design to effect his death, or the death of some other person. This premeditated design to effect death must be established either by direct evidence as a matter of fact, or it arises as a conclusive presumption of law in the class of cases mentioned in paragraphs 2 and 3 of section 2268, Comp. Laws 1909 [section 1733, Comp. St. 1921.] These paragraphs do not state a rule of pleading to be followed in an indictment, but they establish a rule of evidence for the trial judge in the admission of testimony and in his instructions to the jury. * * *
“All defects or imperfections in the matter of form of an indictment or information which do not tend to prejudice the substantial rights of a defendant upon the merits are immaterial, and do not affect the validity of such indictment or information.”

In the case of Carle v. State, 34 Okla. Cr. 24, 244 P. 833, the rule announced in the Turner Case was reiterated, the court saying:

“Where an information charges murder under the first subdivision of section 1733, Comp. St. 1921, in perpetrating a homcide without authority of law, and with a premeditated design to effect the death of the person killed, a conviction, if warranted by the evidence, may be had under either of the other subdivisions of said statute.”

The information is objectionable in this, that there is no allegation that the offense charged in the second count and in the third count is the same transaction and act charged in the first count. This allegation should have been made. In the case of Wear v. State, supra, this court said:

“Where, an information contains two or more counts which are based on the same transaction, it is necessary to allege such fact. But, where an offense is sought to be charged in the different counts which are not in fact based on the same act or transaction, the allegation that they are based on the same act will not suffice. While in this case the second count alleges that the offense ought to be charged therein is a different statement of the offense stated in the first count, an examination of the offense sought to be charged in the two counts conclusively shows that they are not the same, and the allegation is not sufficient to satisfy the statute. Bonitzer v. State, 4 Okla. Cr. 354, 111 P. 980.”

As was there said, the allegation is not absolutely determinative. The including of such allegation does not conclude the matter. The transaction, acts, or omissions charged in the different counts must in fact be the same, and, if they are in fact the same, failure to so allege in express terms, where it otherwise appears from the information that they are in fact the same, is not a fatal defect. In this case, the information as a whole discloses that the three counts refer to one and the same transaction, act, and omission, and attempts to plead but one offense.

It is next contended that the evidence is insufficient, and that the court admitted incompetent evidence prejudicial to defendant. We think it is unnecessary to review the facts further to support our view that the evidence is sufficient to sustain the judgment. The facts proven and the inferences logically arising from them abundantly support the verdict and judgment. In the course of the trial the state introduced evidence that a two-gallon jug of whisky was found near the Nash car immediately after the accident. The witness Foster, a deputy sheriff, testified that immediately after the collision, and while other persons attracted there by the collision were still on the ground, he followed the tracks of the Nash car from where it struck the Ford car, and said:

“* * * As I went over the last place, the rough place the car went over down into the road, I saw a man down below the car in the grass with a jug in his hand. I went down immediately to the jug, and it was covered with finger marks and splotches of blood in a dozen places, at least, on the jug, and I took possession of the jug, and on the handle where it had been carried it was very bloody. I got my hand very bloody carrying the jug by the handle on the jug. Now I can’t name the man who picked that jug up. * * * The next morning, pretty early in the morning, I believe the county attorney went out with me, and we traced the blood tracks from where the car had stopped down through the grass to right very near, at least to where the jug was found.

This evidence, we think, was competent as a circumstance corroborating the testimony of various witnesses that defendant was intoxicated. It is also argued undei this assignment that the court erred in permitting witnesses to testify whose names were not indorsed on the information. None of these witnesses Were witnesses in chief, and it was not necessary that their names be indorsed.

Complaint is also made that the court erred in his instructions Nos. 10, 12, and 15, and in refusing various requested instructions. Instruction No. 10 informs the jury, in substance, that a deadly weapon is an instrument with which death can be easily and readily produced, whether the instrument be for the purpose of destroying animal life or made for some other purpose. This is not a particularly apt definition, but We fail to see how it is prejudicial to defendant. In the recent case of People v. Benson, 321 Ill. 605, 152 N. E. 514, 46 A. L. R. 1056, it is said:

“One attempting to pass an overtaken automobile in a highway under conditions rendering his conduct so reckless and wanton as to show an utter disregard of the safety of the persons in the overtaken car may, if he strikes such car and causes injury to its occupants, be found guilty of an assault, with a deadly weapon.”

Authorities in support of the ruling are cited in the notes. See, also, notes, 42 A. L. R. 1120; 41 A. L. R. 725.

The court’s instruction No. 12 is a definition of culpable negligence and is substantially the language used by this court in the case of Nail v. State, 33 Okla. Cr. 100, 242 P. 270.

Instruction No. 15 tells the jury the manner in which an automobile should be operated upon the public highway, and the duty owing by a driver of an automobile to others on the highway. The particular part of the instruction complained of is that it embodies a portion of section 2, c. 16, of the Session Laws 1923, held void for uncertainty in the case of Missel v. State, 33 Okla. Cr. 376, 244 P. 462. That part of the instruction is not applicable to the facts proven, as the accident did not take place at an intersection. The remainder of the instruction correctly states the duty owing by one operating an automobile on the public highway to the public generally. The including in this instruction of the invalid portion of section 2, c. 16, Session Laws 1923, could not have misled the jury, and presents no reason for a reversal.

The various requested instructions, so far as proper and applicable, are substantially covered by the court’s general charge. The instructions as a. whole, considered all together in connection with the evidence in the case, fairly and correctly state the law applicable. They contain no fundamental error nor misstatement of law calculated to mislead the jury.

Several other assignments of error are briefly presented, but none of them are of sufficient importance to require special discussion. It is a matter of common knowledge that the operating of automobiles upon the highway by persons under the influence of .intoxicants is all too prevalent. It is almost a daily occurrence for an automobile collision to occur, or for an automobile to injure some pedestrian at some point in the state. In many of these cases undoubtedly the injury is caused by speeding, criminal negligence, recklessness, or other violation of highway or traffic regulations by an intoxicated driver. Where no error substantially prejudicial is made to appear, persons convicted for this class of offense must be made to suffer the consequences.

The case is •affirmed.

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


text:
    GEORGE GUTHRIE v. STATE.
    No. A-5981.
    Opinion Filed Feb. 11, 1928.
    (263 Pac. 1119.)
    Oscar Cooper, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Creek county on a charge of giving whisky to Norman Birdsong and Fred Birdsong, and was sentenced to pay a fine of $200 and to serve 90 days in the county jail.

The record discloses that at the time charged defendant and one Roy Peoples went to the Birdsong home and procured Norman Birdsong, 24 years of age, Homer Birdsong, 21, and Fred Birdsong, 18, to furnish music at a dance to be held at the home of Audrey Peoples. The Birdsongs went to the dance, and the evidence is that defendant said to Roy Peoples, “Let’s go get a quart and get things started.” Peoples assented, and they left in a car, were gone an hour or more, came back, got out of the car, picked up the bottle, each took a drink and called Norman and Fred Birdsong, gave the bottle to them, and both drank out of it. The evidence is not entirely clear whether the bottle was handed to the boys by defendant or Roy Peoples.

Defendant admits the circumstances substantially as testified to by the witnesses for the state, but states that the whisky was distributed by Roy Peoples. We think it not very material whether defendant or Peoples actually passed the bottle. It has generally been held that the giving of a social drink in the home or to one’s guests is not within the purview of the law. But this rule does not cover the state of facts shown here.

The principal contention argued is that the court admitted incompetent evidence. This has reference to evidence of a difficulty that arose at the dance some time after the parties had returned with the whisky. This evidence was incompetent, :and, while we think it does not affect the question of either the guilt or innocence of defendant, it may have affected the punishment assessed. For this reason, justice requires that the punishment should be reduced to imprisonment in the county jail for a period of 30 days and to a fine of $100, and, as modified, the judgment is affirmed.

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


text:
    BRUCE STILES v. STATE.
    No. A-6260.
    Opinion Filed Feb. 25, 1928.
    (264 Pac. 226.)

      Anglin & Stevenson and Forrest M. Darrough, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of perjury in the district court of Hughes county, and was sentenced to serve 18 months in the state penitentiary.

It appears from the record that Margaret Turpén resided with her father near Welty, Okla. She was 15 years of age on April 14, 1925. On March 27, she ran off from home and went to the oil fields in Hughes-county. The defendant was 30 years of age, had resided near Welty until about three weeks prior to this time, when he moved to the oil field at Papoose. The Turpén girl worked at a cafe and was at times in the company of defendant. Defendant arranged a marriage between the Turpén girl and one H. D. Cook. He introduced them, brought them together, suggested the marriage, and gave Cook $10 for the occasion, and procured the marriage license. The affidavit to the application for the marriage license forms the basis for the charge of perjury. There is evidence that Cook, who appears to be weak in intellect, and the Turpén girl, had not talked to each other alone prior to the time of the marriage, and evidence that, at the time defendant suggested the marriage to Cook, Cook informed him that he did not think the girl was old enough to marry. In the affidavit to the application, defendant gave the age of the Turpén girl as 18 years. The next day after the marriage, Cook and the Turpén girl were arrested, taken to jail at Okemah, where she was. recovered by her father. The defendant admits that he procured the license, but testified that prior to procuring it he asked the ages of the parties, and that the Turpén girl told him that she was over 18.

It is urged that under the quantitative rule of evidence there is not sufficient corroboration of the testimony of the father of Margaret Turpén as to her age. The mother w'as deceased; there was no family record. The father testified that she was born April 14, 1910. Under the rule invoked, it was formerly' necessary to establish the falsity of the oath on which the perjury was predicated by two witnesses, but this rule has been much modified in the more recent cases. It is now generally said that the charge may be sustained by one witness, supported by corroborating circumstances. 21 R. C. L. 272; Shoemaker v. State, 29 Okla. Cr. 184, 233 P. 489; Wright v. State, 30 Okla. Cr. 425, 236 P. 633.

The school records showing the age of the girl were offered in evidence by the state, but, on objection, they were excluded. Margaret Turpén Was called for the state, but was an unwilling witness. She was examined at some length on direct and on cross-examination, but was not asked her age. Defendant testified he did not know the girl’s age, but had no knowledge that she was under 18. It appears from the evidence that for most of the time after Margaret Turpén was 5 years old the defendant lived near her father; a part of this time she passed his house going to school.

The question is presented, Is the evidence of the falsity of defendant’s affidavit sufficient to satisfy the quantitative rule of evidence? The testimony of the father is the best evidence under the circumstances by which the age of Margaret Turpén could be proven. That his evidence is true appears not to be directly contested. But to sustain a charge of perjury there must be other evidence or corroborating circumstances. The defendant had lived near the father of Margaret Turpén, and had seen her frequently since she Was a small child. In Wigmore on Evidence, vols. I and II, secs. 222, 257, 660, 1154, it is said that experience teaches that corporal appearances of age should be accepted and weighed for what it may be worth in each case, and in particular the appearance of an alleged minor may be considered in judging his age. Again, it is said that a witness may testify to a person’s age merely from his appearance, that the appearance is usually regarded as relevant evidence of age, citing numerous authorities. In section 1168, this character of evidence, designated as autoptic preference, is discussed at length by the same author. The objections to it are discussed, and the conclusion is reached that such evidence is competent.

In the case of Hunter v. State, 6 Okla. Cr. 446, 119 P. 445, this court held:

“In prosecution for statutory rape, the age of the complaining witness is always a question of fact for the jury, to be determined by them from all the evidence in the case; and, when the prosecuting witness appears on the witness stand before them, they may consider her apparent age in determining this question.”

We are of the opinion that the evidence adduced, including the appearance of Margaret Turpén, sufficiently complies with the quantitative rule of evidence.

Further complaint is made that the evidence of defendant’s knowledge of the falsity of his affidavit stating the age of Margaret Turpen is not sufficiently proven. It is well settled that to constitute perjury the statement upon which the perjury is predicated must not only be false but the party making it must know it to be so. A conviction cannot be had though the statement be false, if the defendant by honest mistake or misapprehension believed it to be true. Pilgrim v. State, 3 Okla. Cr. 49, 104 P. 383; Mathes v. State, 15 Okla. Cr. 382, 177 P. 120; Downard v. State, 26 Okla. Cr. 274, 223 P. 718.

Knowledge or belief is a state of mind, It cannot ordinarily be proven by direct and positive evidence but must be proven by circumstances. There are here various circumstances that clearly indicate that defendant knew Margaret Turpén was under the age of 18 years. He had known her since she was a small child. He had been associating with her just prior to procuring the marriage, under circumstances that indicate their relations were intimate. This line of evidence was admissible as showing a motive for his desire to bring about her marriage with Cook and his interest in procuring the license. The jury was fully warranted in finding that at the time he made the affidavit defendant knew it was false.

The contention is next made that the court made prejudicial statements in the presence of the jury. In the cross-examination of Margaret Turpén, counsel for defendant asked if she had had any trouble with her father before leaving home. The state objected, and the objection was sustained. Counsel for defendant then argued with the court as to the correctness of the ruling, beginning with this statement, “Now, I do not like to argue the proposition, but here, judge, * * *” then stating the. theory of the state and the purpose of the defendant in offering the evidence and insisting it was competent. In response to this argument, the court said there could be only one issue in the case: At the time he got the marriage license did he make a false statement? An exception was taken to the ruling but not to the remark, or at least not so stated. There was no motion to withdraw the remark. Such is the proper practice. Klein v. State, 15 Okla. Cr. 350, 176 P. 414. The statement of the court was not correct as an abstract matter of law and certainly was not intended to lay down -at legal proposition, but was an answer or explanation to counsel’s argument of the court’s ruling. The statement of the court was in a sense invited by the argument of counsel challenging the ruling of the court, and is not of sufficient importance to require a reversal.

The final assignment of error argued is that the court erred in his instructions. No exceptions are reserved to any of the instructions of the court, and no instructions Were requested, but it is contended that the court should have instructed the jury the substance of the quantitative rule of evidence; that is, the trial court in its charge should somewhere tell the jury that a conviction for perjury could not be had except by the testimony of two witnesses or one witness and corroborating circumstances.

In those states where the quantitative rule of evidence has become a matter of statute, it is analogous to the law forbidding the conviction of an accused upon the testimony of an accomplice unless he be corroborated by other evidence tending to connect the defendant with the commission of the oifense, and it is generally necessary to instruct the jury in the substance of the statute. Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Aguirre v. State, 31 Tex. Cr. R. 519, 21 S. W. 256; Montgomery v. State (Tex. Cr. App.) 40 S. W. 805; Saucier v. State, 95 Miss. 226, 48 So. 840, 21 Ann. Cas. 1155.

In this state the quantitative rule is not a matter of statute, but a rule of evidence adopted by the court following the common-law rule and to prevent the danger of a conviction for perjury on conflicting testimony. No case has been called to our attention in which it is held fundamental error in the absence of a statute and in the absence of a request to fail to give this instruction. The question has not been directly decided by this court, but the case of Campbell v. State, 23 Okla. Cr. 250, 214 P. 738, a case very similar as to the facts, was affirmed. In that case the charge w'as based on the affidavit attached to an application for a marriage license. The instructions defining the offense and the elements required to be proven in order to sustain a conviction are set out, and the rule of evidence here contended for is not contained therein.

Where no exceptions are reserved to the instructions given and no requests nor suggestion for additional instructions tendered, the presumption is that the defendant is satisfied with the instructions, and, unless there is a failure to embody in the instructions some essential matter, the omission of which constitutes fundamental error, a conviction in such case will not be reversed for failure to give other instructions.

Upon the whole record, it appears that defendant was properly charged, fairly tried; that the evidence fully sustains the charge; that there has been no miscarriage of justice nor any error so prejudicial as to require a reversal.

The case is affirmed.

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


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    Ex parte WALTER COPPEDGE et al.
    No. A-6787.
    Opinion Filed Feb. 28, 1928.
    (264 Pac. 1118.)
    Anglin & Stevenson, for petitioners.
    The Attorney General, for respondent.
   PER CURIAM.

In this proceeding petitioners, Walter Coppedge and Herschel Huckabay, by their attorneys, have presented to this court verified petition, wherein they allege that they are unlawfully imprisoned at Holdenville by' S. B. Turner, sheriff of Hughes county; that the cause of their restraint is a commitment issued by G. A. Holloway, justice of the peace, of Holdenville, on a complaint charging petitioner with the crime of robbery with firearms, in that they did hold up a poker game and robbed certain parties, to wit, Henry Johnson, Sam Graves, Travis Huckabay, Kirk Bilyeu, Vernon Moore, Bronce Ligón, Wince Harris, Amos Marshall, and Elmer Abernathy, on the 18th day of October, 1927, and wherein said petitioners waived preliminary examination and were held without bail to await the action of the district court of said county; a copy of the information therein filed attached. It is further averred that the' proof is not evident nor the presumption great of their guilt. It is further averred that Geo. C. Crump, Judge of the Ninth Judicial District and the district court of Hughes county, is at this time absent from the district, and is in Wesley Hospital, at Oklahoma City, for medical treatment. Upon a hearing had it was ordered and adjudged that the petitioner Walter Coppedge be admitted to bail in the sum of $5,000', and that the petitioner Herschel Huckabay be admitted to bail in the sum of '$2,000; said bonds to be conditioned as by law provided, and to be approved by the court clerk of Hughes county, and upon his approval of said bonds the petitioners to be discharged from custody by said respondent.


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    Ex parte LAWRENCE L. CALLOWAY.
    No. A-6901.
    Opinion Filed Feb. 28, 1928.
    (264 Pac. 641.)
    James H. Mathers, for petitioner.
    The Attorney General, Smith C. Matson, Asst. Atty Gen., Carroll J. Moody, Co. Atty., Homer L. Hurt, Asst. Co. Atty., and Blanton, Osborn & Curtis, for respondent.
   DOYLE, P. J.

Application for writ of habeas corpus, alleging petitioner is unlawfully imprisoned at Pauls Valley, by D. T. Blanton, sheriff of Garvin county, on a commitment issued on a judgment and sentence of imprisonment in the petitentiary for a term of 25 years, rendered on a conviction of robbery with firearms; that the district court of said county fixed his appeal bond in the sum of $35,000, which sum is alleged to be excessive and in violation of the constitutional rights of petitioner, and that petitioner is able to give a reasonable bond to answer any judgment that may be rendered upon his appeal.

The return to the rule to show cause alleges: That petitioner, Lawrence L. Calloway, heretofore made bond .in the district court of Grady county, Okla., for the crime of robbery with firearms in connection with Jack Long and Check Fowler, all of whom are under bond in the sum of $12,500. That said charge arose out of the robbery, of the First State Bank of Tuttle in April, 1927, the bonds of said codefendants having been forfeited by their failure to appear for trial, and that said petitioner, at the time of his arrest in connection with the robbery of the First National Bank in Wynne-wood, was out of the state of Oklahoma contrary to the terms and conditions of his said bond in the district court of Grady county. That said petitioner was arresiy ed at Kansas City on November 10, 1927, in connection with the robbery out of which his sentence above mentioned arose. That he resisted return to the state to answer said complaint, demanded requisition papers in due form, and contested the validity of said papers and the right of the state of Oklahoma to have him returned to Oklahoma to answer said complaint, by reason of the fact that he was under bond to appear in the circuit court of Cass county, Mo., wherein he was charged with complicity in the robbery of the bank at Belton, Mo. That said petitioner was returned to Oklahoma only after he had exhausted all efforts to evade extradition. The respondent is informed that said petitioner is elsewhere wanted in connection with robbery of other banks, especially at Mounds, Kan., and further, alleging that said bond in the sum of $35,000 is not excessive under the circumstances surrounding the arrest and conviction of said petitioner.

The Bill of Rights provides: “Excessive bail shall not be required.” Const. iart. 2, § 9.

It is uniformly held in an application to this court upon habeas corpus for a reduction of bail, upon the ground that the amount fixed by the trial court is excessive, it must clearly appear that the trial court has abused its discretion to an extent that denies the petitioner his constitutional right before this court will reduce the amount of bail as fixed by the trial court. The rule is well established that appellate courts will not interfere with the action of trial courts unless it clearly appears that the amount fixed by the trial court is excessive and clearly disproportionate to the offense involved.

Upon a careful consideration of the matters presented, we are of the opinion that the bail fixed by the trial court is not excessive.

The application is therefore denied.

EDWARDS and DAVENPORT, J1J., concur.


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    WAYNE BRIDGES v. STATE.
    No. A-6188.
    Opinion Filed Feb. 28, 1928.
    (264 Pac. 640.)

      Percy Powers and H. D. Henry, for appellant.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

This appeal is from a conviction had in the district court of Greer county, rendered January 30, 1926, upon a verdict convicting appellant of the crime of robbery, and fixing the punishment at confinement in the state reformatory at Granite for a term of 15 years.

The information on which appellant was tried and convicted jointly charged appellant Wayne'Bridges and Roxie A. Seal, with the crime of robbery, committed December 5, 1925, by pointing a pistol at, and threatening to shoot, and taking from the possession of, J. T. Williams, $65. Each defendant was granted a separate trial. Appellant was tried first, with the result above stated. His codefendant upon her trial was acquitted.

The errors assigned question the sufficiency of the evidence, and that the punishment imposed is excessive.

Without the aid of oral argument or a brief on the part of appellant, we have carefully examined the record, and find there is sufficient evidence to sustain a verdict of guilty, but we do not think it called for the punishment assessed.

Counsel for the state, including the county attorney who prosecuted the case, concede that the sentence is too severe, and suggest that it be modified.

On the record before us, we are convinced that the punishment imposed is excessive, and that the sentence should be reduced to confinement in the state reformatory at Granite for a term of 10 years. With this modification, the judgment is affirmed.

EDWARDS and DAVENPORT, JJ., concur. .


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    Ex parte WILLIAM BECKNER.
    No. A-6841.
    Opinion Filed Feb. 28, 1928.
    (264 Pac. 633.)
    See, also, 29 Okla. Cr. 239, 233 P. 496.
    Earley & Choate, for petitioner.
    The Attorney General, for respondent.
   DOYLE, P. J.

The petition for writ of habeas corpus filed in this court December 7, 1927, avers that petitioner, William Beckner, was tried and convicted in the district court of Oklahoma county on a charge of adultery and was sentenced to serve a term of two years in the penitentiary; that he is now in the custody of Ben B. Dancy, sheriff of Oklahoma county, for the purpose of being taken to the penitentiary to begin serving said term.

It is averred that the district court of Oklahoma county did not have jurisdiction to try the petitioner because no transcript of the proceedings had before the committing magistrate holding petitioner for trial to said district court was ever filed.

Counsel for the state interposed a demurrer to the petition.

It appears from the record that no objection to the information was made in the lower court. If a transcript of the proceedings had. before the committing magistrate was not on file with the court clerk, the question could be properly raised only by a motion to set aside the information on this ground before trial. The filing of the information gave the court jurisdiction to proceed in the case, and, no objection to the information having been made at the proper time, the district court properly proceeded with the trial, its judgment is regular and valid, and the imprisonment of the petitioner is lawful. The demurrer to the petition is therefore sustained and the writ denied.

EDWARDS and DAVENPORT, JJ., concur.


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    JOE HALEY v. STATE.
    No. A-6288.
    Opinion Filed Feb. 29, 1928.
    (264 Pac. 635.)

      Sam S. Gill, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was informed against in the district court of Oklahoma county, charged with the crime of assault and battery, with such means and force as likely to produce death; was convicted by a jury of the crime of assault and battery upon the person of Theodore Newcomer with a sharp and dangerous weapon with intent to injure him, and his punishment fixed by the jury at imprisonment in the penitentiary for a period of one year. Motion for a new trial was filed and overruled, and exceptions saved, and defendant has appealed to this court.

The testimony on behalf of the state is, in substance, that on or about December 7, 1923, at Valley schoolhouse, south of Choctaw in Oklahoma county, Okla., the neighborhood Was engaged in a pie supper, and about 10 or 10:30 o’clock, at night, and at the close of the pie supper the defendant came to the schoolhouse on horseback, and rode his horse up on the porch in front of the schoolhouse; that about this time the prosecuting witness Newcomer started home, and stopped on the porch, and defendant turned his horse, or while the horse was being backed out, struck the prosecuting witness, pushing him up against the schoolhouse wall. The prosecuting witness kicked the horse, and was told by the defendant that, if he kicked the horse again, he would get down and thrash hell out of him, and that prosecuting witness told him to get down. The prosecuting witness had a small child in his arms, and he turned and handed the child to a neighbor, and immediately returned to the place of the difficulty, and, when the prosecuting witness returned, the defendant had gotten off his horse, and was standing ready for the combat. Prosecuting witness went toward the defendant, and got hold of him, and defendant immediately cut him with a pocket knife.

Other witnesses testify as to the defendant being present, and one of the witnesses corroborated the prosecuting witness as to the defendant’s horse being upon the porch.

The defendant in his own behalf stated that he happened to be at the schoolhouse the night of the difficulty; that his brother Rube Was at the schoolhouse that night. He denied that he rode his horse upon the porch of the schoolhouse, but stated he rode up close to the porch, and called his brother out of the house. He say- he guesses he made the assault upon Theodore Newcomer; that before his brother came out Mr. Newcomer walked up close to the edge of the porch with a baby in his arms; that his horse must have switched its tail, and Mr. Newcomer kicked him. Defendant said:

“I looked down, and said, ‘If you kick my horse again, I will get down off on to you,’ and Mr. Newcomer said, ‘By God get down on me.’ And I said, ‘Well, put the kid down,’ and I got down off my horse, and waited for my brother to come out there. Before my brother came out, Mr. Newcomer run up and struck me and grabbed me, and said, ‘Durn you, I will kill you,’ and said that two or three times, and when he said that about the second time, I got my knife out, a little bladed knife, and opened it and commenced cutting him. He then turned me loose.”

This is, in substance, the testimony.

The defendant has assigned fourteen errors alleged to have been committed by the trial court, but the first, second, third, fourth, fifth, sixth, and seventh assignments may all be considered together, as they relate to the same question — the overruling by the court of defendant’s motion for a new trial, and imposing the sentence and judgment upon the defendant based upon the verdict of the jury.

There is some conflict in the evidence on some minor matters; yet the weight of the evidence is all one way. It is not ‘denied by the defendant that he was at the schoolhouse. And it is admitted by him that, when the prosecuting witness came out of the schoolhouse with a child in his arms, and kicked the horse or did something to it, the defendant informed the prosecuting witness that, if he did that again, he would come down on him; that the prosecuting witness turned the child to a neighbor, and got back near where the defendant was, and defendant had gotten off his horse and was ready for combat, that he was ready to accept the challenge of combat, and did accept it, and immediately thereafter, when the prosecuting witness got hold of him, began to stab the prosecuting witness with ;a knife.

The jury' was the sole judge of the evidence and the credibility of the witnesses, and this court has repeatedly held that, where there is credible evidence to support the verdict of the jury, this court will not disturb the verdict.

In the case of Browning v. State, 31 Okla. Cr. 373, 239 P. 272, syl. par. 2, this court held:

“Where there is evidence from which the jury may reasonably and logically find the defendant guilty of the crime charged, in the absence of unusual circumstances, this court will not set aside the jury’s verdict on account of insufficiency of the evidence.” Wilson v. State, 32 Okla. Cr. 139, 240 P. 155; Shields v. State, 32 Okla. Cr. 344, 240 P. 661.

There are a number of errors assigned, but in the view we take of this record it is not necessary to consider them. We hold that the evidence in this case is sufficient to sustain a conviction; that the instructions of the court were fair to the defendant, and, taken as a whole, correctly stated the law; that the defendant had a fair and impartial trial.

There being no error in the record, the judgment and sentence of the trial court is affirmed.

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


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    Ex parte D. V. LIDDELL.
    No. A-6914.
    Opinion Filed Feb. 29, 1928.
    (264 Pac. 637.)
    Sigler & Jackson, Adams & Jones, and J. W. Dixon, for petitioner.
    Edwin Dabney, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

In this proceeding petitioner filed in, this court on February 23, 1928, a duly verified petition for writ of habeas corpus to be admitted to bail.

It appears that petitioner was committed 'by T. R. Thompson, a justice of the peace in Love county, after a preliminary examination, and without bail, to answer in the district court of that county upon a complaint charging him with the murder of one S. C. Long, and that he was committed by said magistrate on another complaint wherein he was charged with the crime of robbery with firearms, and without bail; said commitments having issued on February 14, 1928; that thereafter he made application to the district court of Love county for bail in each case, which was denied.

It is further averred that he is not guilty of said crimes, or either of them, and that the proof of his guilt is not evident or the presumption thereof great.

Attached to the petition is a copy of all the testimony taken on the examining trial and all the testimony taken before the district court of Love county upon his said application for bail.

As to the contention on the part of petitionér that he is entitled to be let to bail, we deem it sufficient to say that the Attorney General concedes that in each of these cases 'bail should be allowed.

It is the uniform holding of this court that under the constitutional provisions (article 2, §8) one charged with a capital offense is entitled to bail as an absolute right unless the proof of guilt is evident or the presumption thereof great.

Upon a consideration of the testimony we are of opinion that the petitioner is entiled to bail as a matter of legal right in each case.

It is therefore adjudged and ordered that said petitioner be admitted to bail on the charge of murder now pending against him, and his bail - is hereby fixed in the sum of $20,000.

It ■ is further adjudged and ordered that said petitioner be ■ admitted to bail upon the charge of robbery with firearms now pending against him in the sum of $10,000, bonds to be conditioned as required by law, and the same to be approved by the court clerk of Love county, and upon his approval of said bonds he shall notify the sheriff, who shall thereupon discharge said petitioner from custody.

EDWARDS and DAVjENPORT, JJ., concur.


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    Ex parte J. D. HARRISON.
    No. A-6766.
    Opinion Filed Feb. 28, 1928.
    (264 Pac. 637.)
    Thos. W. Cheatwood and Allen & 'Grigsby, for petitioner.
    The Attorney General, for respondent.
   PER CURIAM.

The petition herein and the return to the rule to show cause issued thereon shows: That on November 6, 1927, in a cause pending in the district court of Cleveland county, on information charging petitioner with the crime of driving a motor vehicle on the public -highway while under the influence of intoxicants, petitioner was admitted to bail, and, having made appearance as required in open court, withdrew his plea of not guilty theretofore entered and entered his plea of guilty. Whereupon the court pronounced judgment, and said petitioner w-as sentenced to pay a fine of $100 and the costs. That thereafter and on the said date the petitioner was discharged. Thereafter petitioner was committed to the county jail by Frank Boggs, sheriff of Cleveland county ^ upon a commitment issued on said judgment and sentence.

Upon the hearing it was shown that a certified check for the sum of $200 had been deposited with the court clerk in lieu of a bond; that the cashier of the bank at first refused to honor said check, whereupon the commitment issued; that since the rule to show cause issued in this case said check has been honored and the judgment and sentence satisfied by the payment of the fine and costs.

It thus appears that petitioner is entitled to be discharged, and it is so ordered.