author: DAVJENPOKT, J.

text:
    GENE LYLES v. STATE.
    No. A-6334.
    Opinion Filed July 14, 1928.
    (268 Pac. 999.)
    John B. Ogden, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVJENPOKT, J.

The plaintiff in error, hereinafter referred to as the defendant, was charged in the county court of Carter county with the crime of unlawful possession of intoxicating liquor with the intent to sell, barter, give away, and otherwise furnish the same to others, and upon trial was convicted, •ainld his punishment fixed at a fine of $¡50 and coist, and 30 days’ imprisonment in the county jail. Motion for new trial was filed and overruled, and exceptions saved. From the judgment and sentence the defendant has appealed to this court.

The testimony on behalf of the state is, in substance, as follows: That Bob Short, a deputy sheriff, with a search warrant, searched the premises of the defendant, and the Phipps & Gassoway General Merchandise Store, and found no intoxicating liquor, that the deputy got a key from one of the employees of the firm of Phipps Gassoway and unlocked a little building and under the couch found a gallon of whisky. He claims there was a hole in the wall of the little building large enough to put the whisky through into the building. Bob Short, a, deputy sheriff, testified that after the search was made and they found the whisky, the defendant in this case told him the whisky was his; there is no testimony showing the defendant had anything to do with this small building either actively or constructively. The only testimony tending to connect the defendant with the whisky is the testimony of the deputy, in which he states that the defendant told him it was his whisky.

The justice of the peace, W. E. Nall, was with the deputy when he made the search, and Mr. O’Dell was in the store of Phipps & Gassoway; but neither of the parties claims to have heard the defendant tell Deputy Short that the whisky he found in the small building at the rear of the Phipps & Gassoway Store was his. The witness O’Dell, called on behalf of the state, testified that the defendant did not have control of the little building in which it was claimed the whisky was found and did not have a key to the building.

At the close of the state’s testimony, defendant demurred to the evidence on the ground that the same was insufficient to sustain a conviction, which demurrer was overruled, and defendant excepted.

The defendant in his own behalf testified, in substance, as follows: That he owned a barber shop; that when the officers came he had gone down the street to a hamburger stand to get something to eat; 'that when he returned the deputy was in the back end of his place of 'business; that “he never asked me if it was all right; he did not find anything in my place; he asked me about the little building back of the Phipps & Gassoway Store, and I told him I did not have control of it; afterwards he got a key from some one in the Phipps & Gassoway Store and searched it, and claims to have found some whisky; I never told him it was my whisky; I did not have control of the building in which he claims he found the whisky;” there was no hole in the wall of the building, large or small. The foregoing is in substance the testimony introduced in the case.

The defendant has assigned seven errors alleged to have been committed by the trial court. Assignments 1, 2, and 3 are in substance the same; that is, that the verdict of the jury is contrary to the law and the evidence, and that the court erred in overruling his motion for a new trial. The question to be determined in this case is the question as to whether or not, under the evidence in this case and the law applicable thereto, the evidence is sufficient to sustain the verdict of the jury. The charge against the defendant is possession of intoxicating liquor with intent to sell, barter, give away, and otherwise furnish the same to others. The state did not offer any testimony tending to show actual possession of the whisky alleged to have been found by the officer, and there is no testimony showing constructive possession. The testimony of the state shows that the building in which it is alleged the whisky was found was in possession of others, and that the defendant did not have control of the building or a key to the building.

The only testimony offered by the state tending to show the defendant’s possession of the whisky alleged to have been found is a statement of the deputy ■ sheriff, in which he states that he had searched the premises of the defendant and found nothing, and had searched the store of Phipps & Gassoway and found nothing, he secured a key from Mr. O’Dell, an employee of Phipps & Gassoway, and unlocked a small building at the rear of the store and found a gallon of com whisky. The deputy stated that defendant told him it was his whisky. Witness Nall, who claims to have been the justice of the peace who issued the search warrant, and witness O’Dell, testifying on behalf of the state, did not hear any such statement made by the defendant. The defendant states positively that he did not make the statement to Bob Short that it was his whisky; that it was not his whisky; that hie did not have possession or control of the building in which the deputy sheriff claims it was found. Defendant also stated there was no hole in the side of the building where they claim the whisky was found, large or small. The defendant is corroborated by the witness O'Dell.

In this case the jury was instructed that the defendant was presumed to be innocent of the crime charged against him, and it devolves on the state to prove his guilt by competent and legal evidence to the satisfaction of the jury beyond a reasonable doubt. The court also advised the jury that any person who unlawfully had in his possession intoxicating liquor with, the unlawful intent to sell, barter, give away, or otherwise furnish the same to others is guilty of a misdemeanor, and if the jury found the defendant committed the crime charged in the information, it would be the duty of the jury to convict the defendant.

Under the court’s instruction, before the jury was warranted in finding a verdict of guilty against the defendant, it was necessary that they find from the testimony beyond a reasonable doubt that the defendant had in his possession the whisky alleged in the information, with the intent to sell, barter, give away, and otherwise furnish the same to others.

This court has held that it would not disturb the verdict of a jury where there is any competent evidence to support the finding of the jury, even though the evidence is conflicting. In every prosecution it devolves upon the state to prove the corpus delicti; that is, the fact that the chime charged has been actually perpetrated. Marston v. State, 9 Okla. Cr. 275, 131 P. 716; Waide v. State, 13 Okla. Cr. 165, 162 P. 1139. The corpus delicti cannot be established by the confession of the accused alone. Waide v. State, 13 Okla. Cr. 165, 162 P. 1139.

In this case there is no corroborating testimony of the witness for the state who testified as to the statement of the defendant that he owned the whisky, and the statement of the witness is contradicted and positively denied by the defendant. From a careful examination of the record, we find the evidence insufficient to -sustain the verdict and .sentence. The court erred in overruling the demurrer of the defendant to the evidence.

There are other errors assigned, but we do not deem it necessary to consider them.

The judgment is reversed and remanded.

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


source: Caselaw Access Project

author: EDWARDS, J.

license: Public Domain

text:
    CHARLES DUNCAN v. STATE.
    No. A-6520.
    Opinion Filed July 14, 1928.
    (268 Pac. 998.)

      Jesse H. Dunn, 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 Murray county on a charge of conveying intoxicating liquor from one point in the state to another, and was sentenced to pay a fine of $50, and to serve a term, of 30 days in the county jail.

The record discloses that at the time charged defendant was arrested while in the act of transporting 34 pints of “choc beer,” and there is evidence that this was intoxicating. Defendant admitted the possession of the beer, but stated that he had found it, and that he was taking it home, and did not know it was intoxicating, and had no intention of violating fthe law. On cross-examination admitted that he had been previously convicted of violating the prohibitory law.

The motion for a new trial assigns but three grounds: First, that the verdict is not supported by the evidence; second, that the verdict is contrary to the law; and, third, error of the court in overruling the demurrer to the evidence.

Defendant’s counsel argue that the evidence was obtained by an unlawful search, but, as this was not presented to the trial court by a motion for a new trial, it is not before this court.

Also it is argued that the court erred in permitting the defendant on cross-examination to be asked about a previous conviction. This was for the purpose of impeachment, and was permissible. Section 585, Comp. ■Stat. 1921. Counsel who appear here were not the counsel who tried the case in the lower court.

The case is affirmed.

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


text:
    LUTHER MORGAN v. STATE.
    No. A-6366.
    Opinion Filed July 14, 1928.
    (268 Pac. 998.)
    W. A. Bishop and Hill & Criswell, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Seminole county on a charge of rape in the second degree and his punishment fixed at one year in the state penitentiary.

The judgment was rendered in March, 1926, and the appeal lodged in this court in September, 1926. No briefs in support of the appeal have been filed and no appearance for oral argument was made at the time the case was submitted. Where briefs are not filed, nor the case orally argued, this court will examine the record for jurisdictional or fundamental errors, and ascertain if the evidence reasonably sustains the verdict. We have done this and find no jurisdictional or fundamental errors. The evidence amply sustains the verdict. The punishment assessed is less than the evidence warrants. No reason to disturb the judgment is made to appear.

The case is affirmed.

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


text:
    VICTOR FRASIER v. STATE.
    No. A-6047.
    Opinion Filed July 14, 1928.
    (268 Pac. 998.)
    I. H. Lookabaugh, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

A petition for rehearing has been filed, which, among other things, strongly urges that the judgment and sentence is excessive. It is shown that defendant is a young man of previous good reputation, has never before been in any trouble, and for this single offense his punishment should be reduced to the minimum.

We have reviewed the record, and are of the opinion that justice will be served by reducing the period of confinement from 60: days in the county , jail to 30 days in the county jail, and, as so modified, the judgment is affirmed, and the petition for rehearing denied.

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


author: PER CURIAM.

text:
    Ex parte RICHARD (DICK) DRIGGERS.
    No. A-7096.
    Opinion Filed July 16, 1928.
    (268 Pac. 1118.)
    G. W. Boyd and Lewis Hunter, for petitioner.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The petitioner, Richard (Dick) Driggers, filed his petition on July 5, 1928, for a writ of habeas corpus, asking this court to fix bail for his appearance in the district court .on a cjharge of murder alleged to have been committed in Comanche county. Petitioner has filed his motion for a dismissal of the petition, which motion is sustained, and the cause is dismissed.


text:
    Ex parte E. A. STANLEY.
    No. A-7097.
    Opinion Filed July 16, 1928.
    (268 Pac. 1118.)

    W. G. Boyd and Lewis Hunter, for petitioner.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The petitioner, E. A. Stanley, filed his petition on July 5, 1928, for a writ of habeas corpus, asking this court to fix bail for his appearance in the district court on a charge of murder alleged to have been committed in Comanche county. Petitioner failing to appear further, he has either abandoned his petition, or has decided the same is without merit. His petition is therefore dismissed.


text:
    J. H. BYNUM v. STATE.
    No. A-6171.
    Opinion Filed May 12, 1928.
    Rehearing Denied July 21, 1928.
    (268 Pac. 993.)

      Whiteside & Snodgrass, 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 Jackson county on a charge of having the unlawful possession of whisky and was sentenced to pay a fine of $500 and to serve 6 months in the county jail.

At the time charged two deputies of the sheriff’s office, having information that defendant was. in the city of Altus with an automobile of whisky, went to the Orient Hotel and discovered a car parked there answering the description of the car they were looking for. It had side curtains with isinglass windows. No one was present, the officers looked in, and one of them testifies he smelled whisky and saw three cases sitting in the car, one of which was open. It was found to contain 31 jars of corn whisky. They waited near the car; soon defendant, another person, and the negro porter came out of the hotel. The evidence is that the officers questioned defendant, and he at first denied ownership of the car, • and then denied that there was any whisky in it; then he asked the officers if they were county or federal men, and, on being informed they were county officers, he stated, in substance, that, to be honest with them, it was his car and his whisky. The evidence is not entirely clear whether he was arrested 'before or after he made this statement: He was taken to the jail and the car seized. Defendant did not take the stand and offered no evidence.

Before entering upon trial, defendant filed a motion to quash the information for the reason the evidence in support of it was obtained by an illegal search. This, of course, presents no reason for quashing the information. Just the extent of the investigation made by the officers to discover the contents of th'e car or just what took place was n;ot fully developed either on direct or cross-examination. One of the officers testified:

“* * * Q. Had you seen the whisky at the time? (Referring to the time of the conversation with defendant). A. Yes, looked in the car hadn’t opened the door.
“Q. Looked in? A. Looked in and saw three cases sitting there with a blanket or something over them. * * *
“Q. How did you know it was whisky? A. I smelled it.
“Q. When he came out you arrested him without a warrant for misdemeanor on suspicion that that, was his whisky and his car? A. Yes. * * *
“Q. Arrested him, took charge of him then charge of his car? A. After he told me he didn’t have any car. * * *
“Q. The curtains were up on the car? A. Yes.
“Q. Closed all around? A. One of those isinglass curtains. * * *
“Q. You had decided that the car had whisky in it before he came out? A. Yes, sir.
“Q. Had you opened the door of the car? A. No, sir.
“Q. Had you pulled the curtain back? A. Yes, I think I did. * * *
“Q. Did you see any spilled out of the car? A. Some was spilled, if [Pm not mistaken one oar was broken. * * *
“Q. Did you have conversation with defendant, Bynum, at this time? A. After he came out to the car.
“Q. What was that conversation? A. We arrested' Bynum and asked him if he had whisky in the car, and he told me he did not, and I told Southall to take him on up to the sheriff’s office, and I would get this car of whisky. When I walked around the car to get in, couldn’t get in, so I went around to the other door and Bynum was standing there. He asked me, says, ‘Are you county or federal?’ says, ‘to be honest with you, this is my car,’ and said it was his stuff. *' * *”

Counsel for defendant, arguing his objection before the court, construed the evidence in this way:

“* * * I can’t comprehend — I would have anticipated that there would be some purported search warrant or some purported waiver of it, but the witness of the state has just testified that he went up and looked in the car and saw that there was corn whisky there before he ever saw the defendant that night, had seen him some weeks before that. When he came out of the Orient Hotel, the defendant said it wasn’t his, and that he started to get in the car without a search warrant; that he couldn’t get in the north door, and that he went around to the south door, and that this defendant at that time had not waived search warrant. * * *”

There is, of course, no contention but that defendant had some 16 gallons of corn whisky in his car. The contention is that the evidence was procured by an unlawful search. The case is somewhat close, but on appeal from a conviction to this court the presumption is that the judgment is correct. The burden is on a defendant to show the commission of some prejudicial error which prevented a fair trial or which depHved ,hi’m ;'of some substantial right, before this court is warranted in reversing a case. It has been held that the mere looking into an automobile is not a search, and that the presence of whisky may appear by the sense of smell as well as the sense of sight. Sands v. State, 36 Okla. Cr. 55, 252 P. 72, and cases cited; Bullington v. State, 38 Okla. Cr. 214, 259 P. 876.

It is also well settled that, where a person denies that possession or ownership of property, he will not be heard to complain that it was searched illegally. White v. State, 33 Okla. Cr. 428, 244 P. 450; Williams et al. v. State, 35 Okla. Cr. 171, 249 P. 433; Penrod v. State, 38 Okla. Cr. 46, 258 P. 1052.

Under the record in this case, it was not an unlawful search for the officers to look through the curtains into the parked automobile, and, if they there saw and smelled whisky, such knowledge was not obtained by an unlawful search.

When defendant admitted ownership of the car and the whisky, the officers then had legal knowledge of the commission of a misdemeanor in their presence, and his arrest without a warrant was legal and a subsequent search of the car not an unlawful search. Miles v. State, 31 Okla. Cr. 4, 236 P. 907.

No reason requiring a reversal is made to appear.

The case is affirmed.

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


author: DAVENPORT, J.

text:
    G. W. McKINNEY v. STATE.
    No. A-6333.
    Opinion Filed July 21, 1928.
    (269 Pac. 321.)
    King & Crawford, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the county court of Pontotoc county, of the crime of transporting intoxicating liquor from one point in the state to another point in the state, and his punishment fixed at 30 days in jail and a fine of $50 and all costs. Motion for new trial was filed and overruled, and exceptions saved, and the defendant has appealed from the judgment and sentence.

The testimony on behalf of the state, in substance, is as follows: W. B. Walker, the sheriff of Pontotoc county, stated he was called out on the Ada-Stonewall highway in connection with a car wreck; the wrecked car belonged to Roy Rudd, the defendant, Roy Rudd, and another party were there asleep on the ground; all of them seemed to have been drinking. “We did not disturb the parties, but made a search, and about 150. yards from the car, across a little field in the brush we found some whisky; we used a flashlight and followed the track of a man from the road to where the whisky was found, and the track came back to the road near the car.” The witness stated the defendant told him this was h'is whisky; that he arrested the defendant and brought him into town.

0,n cross-examination, the witness stated he let the defendant sleep 40 or 50 minutes when he got out of the wrecked car before he woke him up; it was not daylight at that time; the defendant was drunk. The witness stated that he did not know whether the whisky they found was ever transported or not; he could not testify that it had ever been transported upon the highway; all he knew was they found the whisky about 150 yards from where the defendant and other parties were sleeping near the wrecked car; the witness did not see any one touch the whisky, handle it, or move it, but he thought the track that had left the road and gone out to where the whisky was found and came back near the car was the party who had put the whisky out where it was found. Witness does not know whether it was defendant’s track or not.

Ernest Miers testified, in substance, to the same as did the witness Walker, except he did not hear the statement claimed to have been made to witness Walker by the defendant, that it was his whisky; witness Miers stated that the car near where the defendant was found was torn up.

Defendant in his own behalf testified that he met Roy Rudd in front of a show in Ada about 9 or 10 o’clock, and that he was returning home in the Rudd car; that by so doing he could get home earlier and not have to wait for a train; that he did not know of any whisky being in the car when he got in the car, or when the wreck occurred; that he had been drinking some whisky before he left Ada; he did not know whether the others were drinking or not; he did not know there was any keg in the car; was riding in the front seat. “I got the whisky I had been drinking in Ada; I don’t remember stating to the sheriff that the whisky they claimed to have found in the woods about 150 yards away from where Rudd wrecked his car was my whisky; after we had the car wreck, I laid down and went to sleep.” He state he was a farmer, and that Bromfield, who was traveling with him and Rudd, lived 2 or 3 miles southwest of Coalgate; he did not know there was any whisky in the car when he got in Rudd’s car; that he did not tell him he had any whisky in the car.

On cross-examination, the witness was asked the following question, and gave the following answer:

“Q. You had been peddling the whisky in Ada? A. No, sir.”

The defendant assigns six errors alleged to have been committed by the court. The first, second, third, and fourth assignments will be considered together, as they all relate to the question of the sufficiency of the evidence and action of the court in overruling the defendant’s motion for a new trial.

The question to be determined in this case is the question of the sufficiency of the evidence to sustain a conviction of the defendant on a charge of transporting the whisky alleged to have been found. The state offered no testimony to show that the defendant was ever in possession of the whisky, or that he ever handled it in any way whatever. The testimony tends to show that, when the sheriff was called out, he was advised that there was a wrecked car on the road, and that he went out to the car, and the defendant, Rudd, and a man by the name of Bromfield was over near the car asleep; it was some time shortly before daylight; the deputy who went with the sheriff took a flashlight and got to looking around, and did not find any whisky near the car; he followed what he claims to be tracks of a man from near the car across a little field to the brush about 150 yards, and there found a keg containing some corn whisky; he claims that the tracks returned across the field and up to a point on the road where the wreck was. The only testimony tending to show that the defendant was the owner of the whisky is a statement claimed by the sheriff that the defendant made to him, that it ’was his whisky. The deputy did not hear this statement. There is no testimony tending to show that defendant ever moved the whisky from one place to another or that he had ever been in possession of it.

It is necessary, in order to sustain a conviction in a case of this character, not only to show the possession of the whisky by positive testimony, or by circumstances sufficient to overcome the presumption of innocence of the defendant, and to convince the jury beyond a reasonable doubt of the guilt of the defendant, but it must be shown that the whisky had been moved by the defendant from one place to another.

In this case the court instructed the jury that the defendant was presumed to be innocent until his guilt was' established beyond a reasonable doubt, and that the state must prove every material allegation made in the information.

This court has held that it would not disturb the verdict of a jury where there is any competent evidence to support the finding of the jury, even though the evidence is conflicting.

In every prosecution it devolves upon the state to prove the corpus delicti; that is, the fact that the crime charged has been actually perpetrated. Marston v. State, 9 Okla. Cr. 275, 131 P. 716; Waide v. State, 13 Okla. Cr. 165, 162 P. 1139. The corpus delicti cannot be established by the confession of the accused alone. Waide v. State, 13 Okla. Cr. 165, 162 P. 1139; Gene Lyles v. State, 40 Okla. Cr. 343, 268 P. 999.

In this case there is no corroborating testimony of the witness for the state, who testified to the statement of the defendant that he owned the whisky, and the statement of the witness is contradicted and positively denied by the defendant.

From a careful examination of the record, we find the evidence insufficient to sustain the verdict and sentence. The court erred in overruling the demurrer of the defendant to the evidence. There are other errors assigned, but we do not deem it necessary to consider them.

The judgment is reversed and remanded.

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


text:
    STATE v. ARTIS BAXLEY.
    No. A-6309.
    Opinion Filed July 21, 1928.
    (269 Pac. 326.)

      W. T. Dixon, Co. Atty., and H. N. Whalin, Asst. Co. Atty., for the State.
    J. F. Thomas, for defendant in error.
   EDWARDS, J.

The state filed an information in the district court of Comanche county charging defendant in error with obtaining property by means and use of a false and bogus check. To this information a demurrer was interposed and sustained by the court. The state reserved the question and prosecutes this appeal. The information charges:

“* * * Artis Baxley * * * did then and there willfully, unlawfully and feloniously with intent to cheat and defraud, obtain the following described property from the Hopps Furniture Company, a corporation, to wit, one Empress electric piano, of the value of seven hundred and ¡fifty dollars ($750.00), by means and use of a certain false and bogus check, of the tenor, purport, and effect following: ‘Davidson, Oklahoma, July 16, 1925. The First National Bank: Pay to the order of Hopps Furniture Company $100.00, one hundred and Na/llOO dollars, Artis Baxley,’ which said check was false and bogus, all of which he the said defendant then and there well knew, and the said defendant then and there knowingly, unlawfully, feloniously, and fraudulently, by means of said false and bogus check, did obtain said property as aforesaid, with the unlawful, willful, and felonious intent to wrong, cheat, and defraud said Hopps Furniture Company out of said property. * * *”

The demurrer is for insufficiency and assigns that the information does not state wherein the check described was false and bogus.

The statute under which this prosecution was instituted is section 2146, Comp. St. 1921, as amended by chapter 3'3, Session Laws 1923, which section as amended reads:

“Sec. 2146. Every person who, with intent to cheat and defraud, shall obtain or attempt to obtain from any person, firm or corporation, any money, property, or valuable thing, of the value of twenty ($20.00) dollars, or less, by means or 'by use of any trick or deception, or false or fraudulent representation, or statement or pretense, or by any other means or instrument or device commonly called the ‘confidence game,’ or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not to exceed one hundred ($100.00) dollars, or by imprisonment in the county jail for not more than thirty (30) days, or by both such fine and imprisonment. If the value of the money, property or valuable thing referred to in the preceding paragraph, be more than twenty ($20.00) dollars, any person convicted hereunder shall be deemed guilty of a felony and shall be punished by imprisonment in the state penitentiary, for a term not exceeding seven (7) years, or by a fine not to exceed five hundred ($'500.00) dollars, or by both such fine and imprisonment. The term ‘false or bogus check’ shall include checks or orders given for money or property which are not honored on account of insufficient funds of the maker to pay same, as against the maker or drawer thereof, the making, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and the knowledge of insufficient funds in, or credit with, such bank or other depository; provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with the protest fees, within five days from the date the same is presented for,payment; and provided, further, that said check or order is presented for payment within thirty days after same is delivered and accepted.
“The word ‘credit’ as used herein, shall be construed to mean an arrangement or understanding with the bank or depository, for the payment of such check, draft or order.”

The question that presents itself then is, Is it necessary in order to charge an offense under this statute that the information allege wherein or in what manner the check is false or bogus? Under section 2146, supra, prior to its amendment in 1923, this court held that the charge in the language of the statute was sufficient without setting out the particulars wherein the check was false and bogus. Douglas v. State, 15 Okla. Cr. 648, 179 P. 947. See, also, State v. Underwood, 17 Okla. Cr. 443, 190 P. 281. Bennett v. State, 21 Okla. Cr. 27, 204 P. 462.

The extent of the amendment is to provide that, if the amount obtained by the false or bogus check shall be $20 or less, the offense is a misdemeanor; if it shall exceed $20, .the offense is a felony. The amendment' further enlarges the term “false or bogus check” to include checks or orders not honored on account of insufficient funds, and makes the making, drawing, uttering, or delivery of a check, draft, or order, payment of which' was refused, prima facie evidence of intent and knowledge. The offense remains the same; i. e., the obtaining or attempting to obtain money, property, or valuable thing by means of a false or bogus check with intent to cheat and defraud. We perceive no reason why it is necessary to make any further or additional allegation to charge an offense under section 2146, as amended, than prior to the amendment, except that the allegation of value of the money or property obtained or attempted to be obtained would determine the degree of the offense. The amendment to include within the term “false or bogus check” a check or order not paid by reason of insufficient funds was evidently included to reach an evil which the Legislature considered did not fall within the usual definition of the words, “false and bogus.” The Supreme Court of Arizona, Williams v. Territory, 13 Ariz. 27, 108 P. 243, 27 L. R. A. (N. S.) 1032, said:

“* * * With the increasing use of checks as a substitute for currency, the frequency and facility with which frauds were successfully perpetrated by means of the use of worthless paper attracted the attention of legislators. The mischief resulting from its issuance was hardly less than the evil ensuing from the utterance of forged paper. So long as the crime was a misdemeanor, the temptation to its commission was great. It, therefore, became desirable to place a heavier penalty upon crimes so perpetrated than upon those committed by means of other false pretenses. Section 489 is one of the class of statutes enacted for the purpose of meeting this evil. If fixes the penalty therefor somewhat less than that for forgery, but greater than that for obtaining money by other false pretenses. * * *”

For the reasons stated, the order of the district court sustaining the demurrer is reversed, and the case remanded, with instructions to the trial court to overrule the demurrer and for further proceedings in accordance with law.

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


text:
    ROY LEWIS v. STATE.
    No. A-6270.
    Opinion Filed July 21, 1928.

      C. W. King, W. M. Williams, Ross Cox, and A. M. Stewart, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The judgment in this cíase was affirmed on February 4. In due time a petition for rehearing was filed which has been strongly presented. This petition for rehearing, among other grounds, insists that the verdict and judgment is excessive under all the circumstances, and that justice requires that the punishment assessed should be reduced. The Assistant Attorney General, representing the state, appeared before this court and agreed that the judgment should be reduced.

In view of the showing made upon petition for rehearing and the assent of the Attorney General, this court is of the opinion that the judgment should be modified by reducing the imprisonment assessed from six years in the penitentiary to two years in the penitentiary, and the judgment is so modified, and the petition for rehearing is denied.

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


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    FRANK SMITH v. STATE.
    No. A-6508.
    Opinion Filed July 21, 1928.
    (269 Pac. 376.)

      Clay Snodgrass, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff! in error, who for brevity will be referred to as defendant, was convicted in the county court of Jackson county on a charge of a violation of the prohibitory liquor law and was sentenced to pay a fine of $200 and to serve a term of 30 days in the county jail.

This case rests upon evidence procured by a search warrant. Before entering upon trial, defendant filed a motion to suppress the evidence obtained by the search warrant for the reason that the description therein did not conform to the provisions of section 7012, Comp. St. 1921. This section is:

“No [search] warrant shall issue but upon probable cause, supported by oath or affirmation describing as particularly as may be the place to be searched, and the person or thing to be seized.”

In conformity to this statute and to the authorities generally, it has been many times held by this court that •a. search warrant must so particularly describe the place to be searched, that the officer to whom it is directed may determine it from the warrant; and that no discretion as to the place to be searched is left to the officer. Hall v. State, 34 Cr. 334, 246 P. 642; Phelps et al. v. State, 36 Okla. Cr. 213, 253 P. 910; Cahill v. State, 38 Okla. Cr. 236, 260 P. 91; Shanafelt v. State, 38 Okla. Cr. 345, 261 P. 380.

It has also been held that the description in the search warrant must follow the description in the affidavit. Thomas v. State, 38 Okla. Cr. 284, 260 P. 515. The description in the affidavit for search warrant in. this case is for:

“* * * A certain building, outhouse, situated in Jackson county, state of Oklahoma, or described as follows: (North half of section 22, township 1 north, range 20 west, I. M., the exact 14 unknown. * * *”

The search warrant based thereon describes the premises as follows:

“* * * North half, section 22, township 1 north, range 20 west, I. M., in Jackson county, Oklahoma, in a certain building described as follows: Bam 'and residence and outbuildings in Altus, Oklahoma. * * *”

The evidence in support of the motion to suppress and upon the trial discloses that there were two residences occupied by different persons on the north half of section 22, both of which were searched under the search warrant. This the law does not allow. Further, the search warrant sets out 'an impossible location; that is, it authorizes the search of a barn and residence and outbuildings in Altus, Okla., as being located on north half of section 22, township 1 north, range 20 west. We take judicial knowledge that the north half of section 22, township 1 north, range 20 west, is in the country some six miles from the city of Altus. The search warrant violates the plain provisions of section 7012, supra.

The case is reversed and remanded.


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    HARRY RILEY v. STATE.
    No. A-6672.
    Opinion Filed July 21, 1928.
    (269 Pac. 377.)
    Brown Moore and Guy P. Horton, for plaintiff in error.
    - Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted on a charge of selling one quart of whisky to J. H. Harden, and sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days. The record was properly saved, and defendant has appealed from the judgment.

To properly determine the questions presented, it is necessary to set out the substance of the testimony and the names of those who testified on behalf of the state.

J. H. Harden testified that he lived at Wichita, Kan.; that his business was a special investigator; that he knew the defendant, Harry Riley; that he saw him on the 1st day of August, 1926, at his home in Payne county, Oklahoma; that he went to the defendant’s home and bought a quart of whisky from him. “I went to the house and asked for Harry Riley. He said he was Harry Riley, and I told him I wanted whisky. He said, ‘Boy, I have some whisky, but I don’t know you.’ He says, ‘Who do you know?’ and I said, ‘I don’t know a soul.’ I said ‘If you are afraid of me, you can go search everything.’ We went out to the bam, but he did not go through things. We went‘back and sat on the porch and talked 20 or 30 minutes, and finally defendant said, ‘I am going to take a chance on you; meet me right west of the house, about 100 yards, five minutes from now.’ He met me down there with a quart fruit jar of whisky. I gave him a $5 bill and went on west. A. E. Smith was with me.” On cross-examination, the witness stated that he had taken a little drink the morning he went to defendant’s house; that he was being paid by the county of Payne $10 a day. and expenses, which included hotel bills.

A. E. Smith, called as a witness, testified he was with the witness Harden at defendant’s home the time mentioned by Harden, and it was about 8 o’clock in the morning; that his home was at Wichita, Kan.; that he heard Harden tell the defendant a lie about trying to get the whisky. Smith testified that he was a special investigator. When asked by defendant’s attorney, “What other name do you go by?” he answered, “These jack-leg lawyers call us most anything. Q. What other name do you go by? A. I am called a snitch by people like you.”

The defendant in his own behalf testified as to the length of time he had resided in the place where the witnesses claim to have bought the whisky, and testified that a Mr. Brunley was at his house during all the time the witnesses were there, and that he did not sell witness Harden any whisky; that the witness Harden was not drunk, but he had been drinking.

Amy Brunley was called as a witness on behalf of the defendant, and testified that he was at the defendant’s home when the witnesses Harden and Smith came; that he had gone there a few minutes before they came; that defendant talked to them for a while, but did not leave his home and go anywhere with them, and that he remained at defendant’s home during the time witnesses were there; that he had gone to the defendant’s home that morning to get him to go over and help him doctor a cow.

A number of witnesses testified to the reputation of the defendant being good.

In rebuttal the state recalled the witness Harden and attempted to show what defendant had told when they came — that he had just been over to another place doctoring a cow, and had just returned. A. E. Smith, also recalled, testified that the defendant told them he had just returned from doctoring a cow. This is in substance the testimony of the state and defendant.

The witnesses for the state being what are generally known as special hired men to induce men to violate the law, they are nonresidents of the county in which they testified, and the state. When the information was filed against the defendant, the defendant served notiee on the county attorney that on >a. certain day he would make application to the court for a commission to take depositions of certain witnesses who resided in the state of Kansas, giving the names of the witnesses, and the reason for taking the depositions. The application was heard by the court and denied, .and the defendant filed a second application, supported by affidavits of the witnesses whose depositions he wished- to take in Kansas, asking for a commission to take the depositions, and stating that he desired to prove by the witnesses that the reputation of J. H. Harden and A. E. Smith, in the community in Kansas where they lived, for truth, was bad. When the notice was served on the county attorney, it appears from the record that the county attorney took the time, and he and the sheriff made a trip to Kansas, where these witnesses resided, and undertook to investigate as to what the witnesses that were named by the defendant would testify to, and they returned and filed an objection to the application of the defendant for a commission to take depositions in Kansas, and alleged that certain witnesses named by the defendant would not testify to the facts defendant alleges they would testify to; but he does not attach an affidavit to his objection to the granting of defendant’s application, nor does he swear to his statement objecting to the application. The court denied both applications of the defendant for a commission to issue, directed to some person, to take the despositions of witnesses, who were nonresidents of the state. Defendant duly excepted, and filed a motion for continuance until he could get a commission to take depositions which he alleges to be material to his defense. The motion for continuance was overruled, and defendant duly excepted.

The defendant has assigned several errors alleged to have been committed by the trial court, the first being as follows:

“(1) That the court erred in denying both of the applications of the defendant for a commission to take depositions by interrogatories, in the state of Kansas, to which ruling of the court the defendant at the time and in the record excepted.”

Section 2853, C. O. S. 1921, is as follows:

“When an issue of fact is joined upon an indictment or information, the defendant may have any material witness residing out of the state examined in his behalf as prescribed in this article and not otherwise.”

Section 2854, C. O. S. 1921, provides the manner of making application to the court to secure an order of the court providing for a commission to be issued to take depositions. Section 2855, C. O. S. 1921, of the same statute, provides the manner in which the application shall be made and the grounds to be set forth in the applications, and section 2856, C. O. S. 1921, provides for the number of days’ notice to be given the county attorney before the hearing. Section 2857, C. O. S. 1921, is as follows:

“If the court or the judge to whom the application is made, is satisfied of the truth of the facts stated and that the examination of the witness is necessary to the attainment of justice, an order must be made that a commission be issued to take his testimony, and the court or judge may insert in the order a direction that the trial be stayed for a specified time reasonably sufficient for the execution of the commission and return thereof, or the case may be continued.”

The question to be determined in this case under the law is: Was it an abuse of discretion of the court in refusing to issue a commission directed to a proper person to take the depositions of the witnesses stated in defendant’s application? In determining that, we will ■briefly review the facts as to that part of the record in this case. The two witnesses for the state, being nonresidents and specially employed, resided in Kansas, and the defendant filed his application asking for the issuing of a commission, stating all of the statutory requirements, and stating that by certain witnesses he could prove that the reputation of J. H. Harden and A. E. Smith, witnesses for the state, was bad in the community in which they lived in Kansas for truth and veracity, and supported his application by.an affidavit of the witnesses whose depositions he desired to take. This was resisted by the county attorney, but no affidavit appears in the county attorney’s objection. Statements alleged to have been made by the witnesses and sworn to are made, but the objection of the county 'attorney is not sworn to by any one. The testimony desired, if true, was material to the defense of the defendant, and he was entitled to have the testimony by following the statute in attempting to secure the same, and the verdict of the jury may have been different to the verdict they returned, had the defendant been able to show by the witnesses he named in his application that the reputation of the witnesses for the state was bad for truth and veracity.

In Owen v. State, 13 Okla. Cr. 195, 163 P. 548, this court said:

“Under our procedure criminal the defendant has the right to take the deposition of any material witness residing out of the state, and this only when an issue of fact is joined upon an indictment or information.”

And further the court said:

“Continuance ought always to be granted when, from the showing made, justice requires it, this to enable the defendant to procure all legal and competent evidence necessary for the fair presentation of his defense, if he has used due diligence to obtain the same.”

In Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L. R. A. 1918A, 312, the court cites with approval the case of Owen v. State, supra. In the case of Westbrook v. State, 14 Okla. Cr. 423, 172 P. 464, the record shows that the defendant entered his plea on March 7, ,1916, and his case was assigned for trial March 14. On March 13, defendant filed application for commission to take deposition of nonresident witnesses, which was denied by the court on the same day, and the case was called for trial on March 15, and defendant filed a motion for continuance, which was overruled. This court, in passing on the question, says:

“We are inclined to think that, if counsel for the state refused to consent to having the facts alleged in the affidavit for a continuance read and considered as the depositions of the absent witnesses, the trial court in the exercise of a sound judicial discretion should have postponed the trial until a later day in the term in order to give the defendants the necessary time to take the depositions of the 'absent witnesses.”

This court, in the case of Hopkins v. State, 9 Okla. Cr. 104, 130 P. 1101, Ann. Cas. 1915B, 736, in discussing the application for a continuance on account of testimony of nonresident witness, said:

“Evidently the trial court was satisfied that due diligence [had not been] shown, and the absent witness’ promise to be present at the next term of court was simply a subterfuge to secure a continuance. If the defendant had exercised due diligence, he could have procured the deposition of this nonresident witness under the provisions of article 17, Procedure Criminal.”

The record in this case does not disclose why the county attorney and the sheriff objected to the depositions being taken as provided by law, nor is there anything in the record to show why they could not have attended the taking of the depositions as conveniently as they could go to Kansas and make an investigation as to.what the witnesses named by the defendant would testify to. We doubt the advisability of hiring nonresidents of the state, at the expense of the county, to go into the county and solicit citizens of the county to violate the law. The parties who go out and solicit parties to sell them whisky and make false statements are law violators, and, generally speaking, the evidence procured in this way, by this class of - informers, is always carefully scrutinized by the courts. In this case the witness testified to taking drinks with parties, and in answering the questions of the attorney for the defendant spoke in a sneering way as to the name they were known by: “These jackleg lawyers call us most anything,” and “I am called a snitch by people like you.”

In view of the testimony of the witnesses, and in view of the further fact that the defendant in this case step by step followed the law in making his application for a commission to take the depositions of the witnesses in Kansas, we hold that it was a manifest abuse of judicial discretion in overruling the applications of the defendant and refusing to issue a commission for the defendant to take the depositions of nonresident witnesses, and that the action of the court in overruling the application of the defendant was an error prejudicial to the rights of the defendant, and defendant’s exception to the action of the court in overruling his motion for a continuance, in order that he might secure a commission and take the depositions of the nonresident witnesses, was well taken.

There are other errors assigned and argued by the defendant, but in the view we take of this record it is not necessary to consider them. The ease is reversed and remanded.

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


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    W. A. BARNETT v. HEPBURN, District Judge.
    No. A-6338.
    Opinion Filed July 28, 1928.
    (269 Pac. 384.)
    R. E. Simpson, and White, Nichols & Harries, for petitioner.
   PER CURIAM.

This is a proceeding for a writ of mandamus filed in this court on the 12th day of August, 1926, setting out that a petition to call a grand jury under the provisions of section 18, art. 2, of the state Constitution has been filed with Hon. James Hepburn, judge of the district court of Okmulgee county. Among other things, said petition for a grand jury sets out as a matter for investigation the connection of the petitioner herein with the estate of Katie Fixico Daniels, and alleges that Hon. James Hepburn, district judge, is prejudiced and disqualified to conduct the grand jury proceedings, and prays for a writ of mandamus requiring him to certify his disqualification to select, impanel, advise, or in any way take part in such grand jury proceedings.

No brief in support of said application has been filed and we take judicial knowledge that the term of office of Hon. James Hepburn, district judge, has expired, and that the question presented by this application is entirely moot.

The case is dismissed.


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    JOHN WARD v. STATE.
    No. A-6367.
    Opinion Filed July 28, 1928.
    (269 Pac. 389.)

      L. A. Wallace, 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 Ok-mulgee county on a charge of having the unlawful possession of whisky, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

The record discloses that defendant was a night clerk and porter at the Antlers Hotel, a rooming house in the city of Okmulgee, which was operated by one Mrs. Tolbert. On the date charged, two deputy sheriffs went to this rooming house to look for one Ramstead. They had no warrant nor search warrant. They testified, in substance, that when they arrived there they talked with defendant, who was in the hallway. They inquired for Ramstead, and, being informed he was not there, they went away and in a few minutes returned and found defendant in the hallway with some whisky in half-pint bottles in a tub of trash. They arrested him and seized the whisky, which was introduced in evidence. Mrs. Tolbert, who operated the rooming house, testified when the officers came there she was behind the counter and saw them go down the hall and return with defendant and a tub containing trash and old paper. Defendant testified that when the officers first came to the rooming house they inquired for a Mr. Ramstead, and he informed them that Ramstead was not there; that one of the officers then told him they were going to raid the place and if he had any whisky to get it under cover. They went away then, and defendant, knowing where there was some whisky in the front end of the hallway, went to the trash barrel and was in the act of putting some trash in the barrel when the officers returned and inquired what he had in the tub, and he fold them it was whisky, and reminded them they had told him to get rid of it; that he was intending to take the whisky down and burn it with the trash; that he did not own the whisky, and had nothing to do with it, but it belonged to an oil field worker who had put it there some time before, intending to distribute it among other workers when they came in. This is briefly the substance of the evidence offered by the state and defendant.

The three assignments of error are directed to one question, that the evidence was obtained by an illegal search and is incompetent. It is argued that the record discloses the second visit of the officers was for the purpose of making a raid without a search warrant; that their acts were illegal, and any evidence obtained by them while trespassers is not admissible, citing Kinney v. State, 32 Okla. Cr. 115, 240 P. 325. The Kinney Case refers to a private residence occupied by the defendant. In this case the officers were in a public rooming house in the hallway. The rooming house was not the property of defendant, and he is not in a position to complain that the officers invaded the property of some other person. If they had entered the private room of defendant at the rooming house, a different question would be presented. It cannot reasonably be contended that an employee of a public rooming house can complain that an officer may not testify to matters coming under his observation in the hallway, although he may have entered the hallway as a trespasser without the consent of the proprietor. Williams v. State, 35 Okla. Cr. 171, 249 P. 433; Brannon v. State, 39 Okla. Cr. 207, 264 P. 835; Strickland v. State, 40 Okla. Cr. 94, 267 P. 672.

The case is affirmed.

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


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    HARRY RILEY v. STATE.
    No. A-6697.
    Opinion Filed July 28, 1928.
    (269 Pac. 390.)
    Brown Moore and Guy L. Horton, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of having illegal possession of one gallon of whisky with intent to sell, barter, give away, and otherwise furnish the same to others unlawfully, and was sentenced to pay a fine of $300 and serve a period of 90 days in the county jail.

The evidence discloses that the defendant lived on a farm, and that the officers went to his home and searched his residence, barn, and outbuildings, and found nothing, but across the fence, a short distance from the barn, on the farm of another person, they claim to have found a gallon of whisky buried in a field. This whisky was not on the premises of defendant, and was several yards from the barn, on the property of another. Neither of the officers who testified assumed to know who placed the whisky where it was found, or to whom it 'belonged. The defendant, as a witness in his own behalf, denied ownership of the whisky, and had no knowledge of its presence where it was alleged to have been found by the officers.

The defendant urges that the court erred in refusing his motion to require the sheriff, John B. Calderhead, to answer the questions that were propounded to him on cross-examination; witness Calderhead having been recalled by the state and asked the following:

“Q. Do you know the general reputation of Harry Riley, in the community in which he lived, before this raid was made? A. Yes, sir.
“Q. Was that good or bad? A. It was bad.”

On cross-examination the following questions were propounded to the witness:

“Q. Who did you ever hear say his reputation was bad? A. Brown Moore, you have heard me say many times I would not tell names of people who turned these things in to me. I won’t tell it. Neighbors made complaint is the reason I made this raid.
“Q. I want to know who they are. You wouldn’t say the man’s reputation was bad, without telling who said it was ? A. I heard it from his neighbors.
“Q. You heard these witnesses testify that his reputation was good? A. No, sir; I did not hear them.
“Q. You can’t name any one who said his reputation was bad? A. Yes, sir; but I won’t do it.
“By Mr. Moore: We ask that the witness be required . to answer the question.
“F.y Mr. Suman: I think that an officer who has rer ceived information — that he should not be required to disclose who they were.
“By the Court: Bequest refused; exceptions allowed.”

The record discloses that the witness Calderhead was called as a rebuttal witness to contradict the testimony of witnesses who had testified for the defendant. The defendant’s witnesses had been cross-examined at length by1 the state as to how they knew the reputation of the defendant was good or bad, prior to this charge. When the witness Calderhead had stated that the reputation of Riley was bad, he occupied the same position as any other witness, and defendant had the right to inquire who he had ever heard say the defendant’s reputation was bad, for being a law-abiding citizen, prior to. the bringing of this charge. If a witness can be placed on the stand, and give testimony against the reputation of the defendant, even though he may be an officer, and the defendant is not permitted to cross-examine him, to find out the source of his alleged information, it would be denying the defendant the right of being confronted by the witness and having an opportunity of cross-examining. Henry v. State, 6 Okla. Cr. 432, 119 P. 278; People v. Freshour, 55 Cal. 375; Stouse v. State, 6 Okla. Cr. 415, 119 P. 271. We think the defendant was entitled to cross-examine the witness, and ascertain from him who he had heard say the reputation of the defendant was bad.

There are other errors assigned, but we do not deem it necessary to consider them. The court is reluctant to set aside the verdict of a jury, but, when the court by its ruling has denied the defendant a right we believe he is entitled to under the Constitution and the law, it is the duty of the court to set aside the verdict and grant the defendant a new trial. After a careful examination of the record, we hold the court erred in not permitting the witness Calder-head to be examined as to the source of his information, upon which he stated that the reputation of the defendant for being a law-abiding citizen, prior to this charge, was bad.

The cause is reversed and remanded.

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


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    HECK CREMER v. STATE.
    No. A-6340.
    Opinion Filed July 28, 1928.
    Rehearing Denied Aug. 25, 1928.
    (269 Pac. 507.)
    Bridges, Vertrees & Ivy, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Jefferson county on a charge of having possession of intoxicating liquor for the purpose of selling, giving away, and otherwise disposing of the same in violation of the prohibitory liquor laws, was sentenced to 90 days’ imprisonment and to pay a fine of $150, perfected the record, and has appealed to this court.

The testimony in substance shows that the defendant was living at a house on lot 15, block 59', in the city of Ryan, Jefferson county, OMa.; that a man by the name of George Walters had the house rented; a search warrant was issued to search the premises and the sheriff and other parties went and searched the house and found the defendant in bed in one of the rooms of the house asleep; they roused him up and in the room in which he was asleep found IV2 gallons of whisky, some empty bottles, and a number of other articles.

The testimony on behalf of the defendant admits that he was in the room asleep and shows it was not in the room he had rented from George Walters, but that he went to a dance and returned home late, and his bed was all torn up, and he went to sleep in this bed; that he knew nothing about the whisky being in the room, did not own it, and had nothing to do with it; that he rented his room from George Walters, paying $3 per month for the room, and furnished his own bed. George Walters was not called as a witness. This is all the testimony that it is deemed necessary to set out in the record.

The defendant has assigned five errors alleged to have been committed by the court in the trial of his case, all of which may be properly treated together. Thg record discloses that the defendant filed a motion for a new trial, but he fails to allege that as one of the errors committed by the court. This court has carefully examined the record and errors assigned to see whether there is any merit therein.

A careful examination of the record clearly shows that the evidence is sufficient to sustain the verdict of the jury, and that the court properly declared the law; that there were no errors occurring during the trial sufficiently prejudicial to the rights of the defendant to warrant the court in reversing this case. This court has repeatedly held that,. where the evidence is conflicting, it is the province of the jury-to determine whom to believe and whom to disbelieve. The weight of the evidence and credibility of the witnesses are for the jury.

Finding no error in the record prejudicial to the rights of the defendant, the judgment and sentence are affirmed.

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


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    LUM REEVES v. STATE.
    No. A-6310.
    Opinion Filed July 28, 1928.
    (269 Pac. 391.)
    E. G. McComas, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted in the district court of Beckham county, on a charge of assault with intent to commit rape upon the person of Anna Laura Elliott, a female under the age of 16 years, and his punishment, fixed at a term in the penitentiary for 5 years. The record was properly saved, and defendant has appealed from the judgment.

In order to determine whether or not the defendant was accorded a fair and impartial trial, it is necessary to set out in substance the testimony in the case.

Anna Laura Elliott testified that she was 15 years of age May 31, 1925; that her home was in Elk City, Beck-ham county, Okla., on July 25, 1925; that she saw the defendant in Elk City on the evening of July 25, 1925, in company with Bill Ward; that he hollowed and motioned to the witness and Vera Sitterding, and asked them where they were going, and they replied to a party, and defendant told them he was going to take Bill Ward to the party; they were in a large touring car; they got in the back seat; Bill Ward was standing by the side of the car. “Before they drove off they asked me to get in the front seat with Mr. Reeves, but I said I did not know him; Mr. Ward said, ‘Meet Mr. Jones’; his name was Reeves; he is the defendant here, but I did not know him at that time; after we got in, we drove west on Third street and went west to the end of the pavement and then turned out Second and went up to the house where the party was to be held; when we met the defendant, we had been to the post office and started home; we were going to my home, and from there we were going to the party; after we left town on the highway, we drove out on the highway about 5 miles and stopped; we were just a little ways from the highway; after we stopped defendant begged me to get out of the car, and I said, T won’t do it;’ and he said he had some rubbers, and asked me to get out and start back like we were going back home, and said that we would go behind the car; he said he would use these rubbers; well he said he wanted some, he did not say what; I did not get out of the car; he put his hand on my legs under my clothes; he did not hug and kiss me right at that time but had been; we were there about 30 or 40 minutes from the time we stopped the car until we left; he was trying to do this to me about 20 minutes; he quit when I got to hitting him, and he got in the back seat; Bill Ward got in the front seat with me; defendant was in the back seat and treating Vera pretty badly; I tried to get back there to help her, but Bill would not let me; the defendant commenced making the advances to me as soon as we stopped; he tried to open the door of the car, and I held it and would not let him; when we left there, the defendant drove the car; he tried to hug me on the road home; we went back to town the same way We came, and got out at Mr. Carver’s some time about 10 o’clock in the evening; it was about 7:30 when they picked us up; Bill Ward asked us not to tell, and I told him I was, and Mr. Reeves said he did not care as he was going to leave that night on the train; Mr. Carver’s house and my home is in the same block. I went home from Mr. Carver’s house; Vera was with me.”

On cross-examination, the witness stated as follows: “Q. What was the condition of your clothes when you got home? A. Well, my hair was torn up. Q. I said your clothing. A. Mine wasn’t torn any.” “This was July 29, 1925; it was raining when we got home; the defendant and Ward asked us to get in the car when they drove up; we knew Bill Ward; he had been going with Vera’s sister; we had not asked them to take us to the party; neither of us told these boys that we wanted to take a ride; while Mr. Reeves was on the back seat Mr. Ward begged me not to tell; Mr. Ward did not do anything while Mr. Reeves was handling me; neither did Vera say anything; I don’t know what they did; Mr. Ward did not attempt to stop Mr. Reeves from bothering me; I told my mother and she told father; my father did not tear my clothes or beat me up; the next morning I saw Mr. Clearman; I did not know what Bill and Vera was doing in the back seat because I had to fight against him (referring to defendant) ; I had to use force and fight to keep him from doing something to me. My father scolded me.”

Mrs. Joe Matt Elliott testified she was at home on the 29th day of July, 1925; the girls asked to take a walk. “The crowd was to gather at my house and go to the party; my daughter had not been in the habit of going out without her older sister; it was something like 10 o’clock when my daughter returned; Vera went right out, did not stay at my house; I told her to go home, her mother was looking for her; as soon as my daughter came into the house I saw she was white and her hair was torn up> and I asked where she had been, and she laid her head in my lap and told me all about it; she told me she did not know anybody but Bill Ward; that he introduced the other fellow as Mr. Jones and after they started she said to Mr. Reeves that she had seen him before at Mr. Bearfield’s; she told me she asked him if he wasi not Mr. Reeves, and he said that he was not, that Mr. Reeves had a mustache and he did not; he said he was not drinking, that it was hair tonic you smell; my husband started to whip my daughter, and I told him to quit.”

Vera Sitterding testified, in substance, that she and Anna Laura Elliott met the defendant and Bill Ward the evening of July 29, 1925. “They said they were going to the party and if we wanted to ride we could ride; Anna Laura Elliott got in the back seat; Bill ward introduced Mr. Reeves as Mr. Jones; they asked Laura to get out and get in the front seat, and they started south, and we told them we wanted to go back to the party; I knew Mr. Reeves was a married man, but I did not know the party that was introduced as Mr. Jones was Mr. Reeves at that time; the defendant is the man that was introduced as Mr. Jones and the man that was riding in the front seat with Anna Laura Elliott; when we got out about 5 miles he turned the ear like he was going to turn around and killed the engine and turned out the lights; I did not see what happened in the front seat, nor did I hear anything said; the defendant and Anna Laura was sitting in the front seat; it looked like he was talking to her; I was talking to Mr. Ward; we stayed there about 10 minutes; Mr. Reeves got out of the front seat and got on the back seat; he acted like heh tried to get me out.”

On cross-examination, the witness testified they were coming from town and the parties asked them if they were going to the party, and they said they were, and they said, “Get in”; “We got in and they went up by the party, and from the party went south on the highway to the regular Sayre and Elk City highway; I did not know anything unusual was happening between Anna Laura Elliott and Mr. Reeves; I could not tell what he was doing; she did not scream or hollow, nor raise any disturbance very loud; I don’t remember of hearing anything; she acted kinda like she was scared; when we got back to town we drove back to where the party was and from there home; if the party had been on we would have stopped there, but the party as over.”

J. P. Elliott testified for the state, in substance: “I am the father of Anna Laura Elliott; when I came in from work that evening my daughter was at home; I was tired and laid down, and when I got up she was not there; I next saw her about 10 o’clock in the evening; she was home; she was crying when I went in; I had been down town to hunt her; I did not go into the matter with her; I went after the boys.”

“Question by the County Attorney: I will ask you whether or not, as soon as this case was filed, if you have been approached on the subject to not come here and testify or prosecute this case? A. I have.
“By Mr. McComas: We object to that as incompetent and irrelevant.
“The Court: Let him answer, for, unless you connect the defendant with it, he won’t be responsible for what somebody else did. I,f it was the defendant or some agent of his, you may use it.
“Q. We will let defendant answer ‘Yes’ or ‘No.’ Did any one come to you and represent he came from the defendant ?
“By Mr. McComas: Objected to as incompetent, irrelevant, and immaterial.
“The Court: Overruled.
“By Mr. McComas: Exceptions.
“A. They did.
“Q. Who was that person? A. Doc Donald.
“Q. What statement, if any, did he make to you? A. He made the statement, he said, ‘Elliott,’ he said, T can give you $100 not to come down there,’ he said, ‘You won’t get justice,’ and he said, T could give you $100 if you won’t come.’
“By Mr. McComas: If the court please, we would like to ask a question.
“A. (continues) : And he told me he could give me $100 not to come.
“The Court: Did he tell you that the defendant had anything to do with that? A. No, sir; he did not say.
“The Court: Gentlemen of the jury, you will not consider that statement binding on the defendant. There is no evidence so far to show that he had anything to do with it. It would be unjust to charge him with that statement made by a man by the name of Donald.”

On cross-examination, witness stated that he believed his daughter’s statement when she came in and told her mother that night, and he went out to hunt the fellows. This is, in substance, the testimony on behalf of the state.

The defendant on his own behalf testified, in substance, that he was the def endant in this case; that on the 29th day of July, 1925, he was section foreman of the M. K. T. Railroad. “We were just driving, and the best I can remember — I am not acquainted with the streets — we were driving north, me and Bill; we were in the front of the car the best I can remember they hollowed and asked us to ride; we stopped the car and both the girls got in; Ward got in the back seat and the Elliott girl dumb over in the front seat with me; I believe I had seen the Sitterding girl, but I was not sure; when they got in the car we was going to take a ride; they said, ‘Let us ride’; that is all they said; we drove on; they did not say anything about wanting to go by the party; she said she wanted to go riding; it was about 9 o’clock in the evening; we went about 5 miles on the Sayre highway until we come to the corner where it turns, and went probably 300 yards and stopped on the highway; when we stopped we were just laughing and talking; there was nothing went wrong between us that I know of; I did not make any indecent proposals to Miss Elliott: we were stopped out there 20 or 30 minutes and came back to town; we first went to the party when we come back; the girls went up to the porch, and we left; me and Mr. Ward went back to the depot to meet my wife; I am a married man, have four children.”

On cross-examination, witness stated he had lived in Elk City something like a year; he was section foreman of the M. K. T. Railroad. “Am now working with the T. P. west of Sweetwater, Tex.; am a married man and have four children; the girls hollowed at us, and we stopped, and they got in the car, and we drove out in the country about 5 miles on the main highway; when we stopped, we were headed west I believe; I was driving; I did not pull out to the side of the road; the girls wanted to go back, and we-turned around and went back; I did not make any indecent approaches to these girls, none whatever; the 20 or 30 minutes we were there we were just sitting there talking; there was something said about our ages, and I believe Miss Elliott asked Ward how old he was, and he said about 18, and she asked me how old I was, and I. said about the same; and she said we are all about 18; I do not remember anything else we talked about; we turned around and came back home; I cannot remember exactly anything else we talked about while out there; we did not take the girls back home; we took them to the party; we stopped the car by the gate, and the girls got out, and we. drove on.”

W. E. Ward, called as a witness for the defendant, testified that he met the girls about 8:30 or 9 o’clock about one block west of the Baptist Church on Broadway. “The girls hollowed at us, and we whipped right around the corner and stopped, and they come and crawled in the back seat; they got in the car to take- a ride; we said something about going to the party; we started up that way, and when we got there we drove on; we drove out the highway I think about 5 miles and stopped the car ;■ there was nothing unusual transpiring up until that time; it was not very long; we stayed there 10, 15 or 20 minutes; I was in the back seat; I did not see Mr. Reeves and Miss Elliott at the time; I just did not pay any attention to them; I did not see Mr. Reeves make any motion or do anything that would indicate he was trying to make an assault upon these girls; could not hear very much of the conversation; there was something said about our ages; after we were there 15 or 20 minutes we turned around and came back to town; we never did leave the highway; Mr. Reeves never did get in the back seat with Miss Sitterding; he never got out of the car at any time, and I never heard anything unusual.”

On cross-examination, witness stated that he talked with Mr. Clearman, the county attorney, the day after the alleged offense. Witness was asked the following question:

“Q. I will ask you whether or not, did you tell Mr. Clearman that Mr. Lum Reeves got in the back seat with Vera Sitterding? A. I wouldn’t say for sure, but I am pretty sure he did not. The Court: He did not ask you that. Listen to his question. A. About all I can remember of the conversation was about our age; I did not tell the county attorney I heard a conversation between Anna Laura Elliott and Lum Reeves, when Reeves asked for some, and she told him she did not want to get knocked up, nor did I tell him that I got over in the front seat and talked to Anna Laura Elliott while Reeves was in the back seat’; I did not get in the front seat, nor did I tell the county attorney I did.”

C. S. Clearman, county attorney, called in rebuttal, stated that he was county attorney of Beckham county on the 29th day of July, 1925; that he had occasion to talk with W. E. Ward July 30, 1925. “After this occurrence I was called to Elk 'City, and I talked to Mr. Ward about the case, and he told me that Mr. Lum Reeves got in the back seat of the car after fooling around in the front seat for a while, and after that I asked him what the conversation was at that time, and the only conversation he could remember was that Mr. Reeves asked Miss Elliott to give him some, and she spoke up in a real pert way and said that she was afraid of being knocked up; I talked to him a little bit, and said, ‘You did not hear that, did you?’ and finally he admitted that he did not, but that some one had put those words into his mouth.”

“By Mr. McComas: We object to that, and move the answer be stricken. The defendant could not be bound by it.
“Q. That was all the conversation? A. Yes, sir; well, there was some other conversation.
“Q. Was it pertaining to this case?
“The Court: That conversation is not admissible except as you have asked the witness about it. It is merely a matter of impeachment, not a matter of evidence. It goes to the credibility of the witness.”

H. C. Newby was called in rebuttal for the state; testified that on the 30th of July, 1925, he had a conversation with Mr. Ward in Elk City. “Mr. Ward stated in my presence that about the only conversation he heard was Mr. Lum Reeves asked Anna Laura Elliott to give him some, and she answered by saying that she did not want to be knocked up. Mr. Ward further stated that Mr. Reeves got out of the front seat and got in the back seat."

On cross-examination, the witness stated in a conversation that took place out southwest of the jail in Elk City he was charged with being out with these girls; he did not threaten Ward or charge him with assault with intent to commit rape; the county attorney never said anything about it.

■ W. E. Ward was recalled, and stated that he did not make the statement as sworn to by the county attorney and Mr. Newby, at the jail in Elk City. “They told me I was subject to the same thing they were going to try to get Mr. Reeves on; they had me scared up; they was telling me I had to swear in this case."

This is, in substance, the testimony on behalf of the defendant.

The defendant alleges ten errors committed by the court in the trial of his case. The first, second, seventh, ninth, and tenth errors will be considered together as they relate to the question of the sufficiency of the evidence, the overruling of the demurrer of the defendant, and the overruling of defendant’s motion for a new trial and in arrest of judgment.

The record in this case discloses a. peculiar condition. We find two girls of immature years who had gone to the post office on the evening of the alleged offense and were returning to their home for the purpose of attending a party at a neighbor’s home; two men, one of whom the girls had seen before, the other an absolute stranger, a married man with a wife and four children, was introduced to the girls by a fictitious name. The testimony on behalf of the state shows that the men called to the girls and asked them to take a ride; defendant’s testimony tends to show that the girls asked for a ride. Be that as it may, the girls were taken into the car, where the defendant and Bill Ward were riding, the prosecuting witness in this case was placed in the front seat with the defendant and the other girl in the back seat with Ward. The testimony on behalf' of the state tends to show that the girls advised the men they were going to a party and the defendant denies that. All agree that, instead of going to the party, they drove down the street by the house where the party was to be held and continued to drive on until they were out in the country about 5 miles from Elk City, where the defendant in this ease, who was driving the car, turned, as though to turn the car around in the road, and, when partially around, stopped the car and turned out the lights. The- defendant in this case made indecent proposals to the prosecutrix, and then assaulted her by putting his hands on her legs under her clothing. Ward and Miss Sitterding who were in the back seat did not hear the conversation that took place between the prosecutrix and the defendant, but Miss Sitterding claims that, when the defendant got out of the front and got in the back seat with her, the prosecutrix seemed to be scared or excited. The testimony of the prosecutrix is that, on the trip out, and before the car was stopped, the defendant was hugging and kissing her against her wishes. The defendant insists that nothing improper took place while they were out where the car was stopped; they were only talking and laughing; the only thing he could remember they discussed were the ages of the respective parties, and the prosecutrix mentioned they were all about the same age.

The prosecutrix in this case is a young girl of immature years just past 15 when this alleged offense happened. It is not necessary or essential to the conviction that the state prove the assault with force or violence by overcoming resistance. All that is necessary for the state to prove is that the defendant .assaulted the prosecuting witness with intent existing in his mind at the time to have sexual intercourse with her. The intent is inferred from the actions of the defendant. The prosecuting witness being under the age of 16, it was legally impossible for her to consent to the assault or to an intercourse, nor could she by any act of hers waive the assault, provided the defendant’s act in law constituted an assault if committed on a female over the age of consent, without her consent and against her wishes. Lee v. State, 7 Okla. Cr. 141, 122 P. 1111; Bouie v. State, 9 Okla. Cr. 345, 131 P. 953.

The age of the prosecuting witness was such that all good citizens should have sought to protect her. The defendant, it seems, forgot his marital vows and his children, and was willing to go out joy riding with the prosecutrix and if possible to' persuade her to have sexual intercourse with him; he told her he had rubbers and wanted her to get out of the car and go back behind the car. It is clearly shown from the record that the defendant did not desire the prosecutrix to know his real name, and that he and Mr. Ward both knew at the time he introduced the defendant to the prosecutrix that they were not telling the truth and was not giving the correct name of the defendant. The testimony in this case is amply sufficient to show that defendant committed the assault upon the person of the prosecutrix, and that he intended to persuade her to yield to his passion and cohabit with him. The surrounding circumstances were such that it is difficult to believe that the defendant would have undertaken to cohabit with the prosecutrix against her consent; the other parties being in the rear seat of the car in which, the prosecutrix and defendant were sitting.

The testimony of the prosecutrix is positive, and definitely shows that, when the defendant assaulted her and told her he wanted some, that she refused, and that the defendant continued his assault on her until she began hitting him and compelled him to stop. The circumstances surrounding the drive to the country tend to show that they had an ulterior motive when they drove these young girls to the country, without the knowledge or consent of their parents. Walker v. State, 20 Okla. Cr. 319, 202 P. 799; Ravenscraft v. State, 23 Okla. Cr. 361, 214 P. 946.

Where the evidence is conflicting, it is the province of the jury to determine whom to believe and whom to disbelieve. The weight of the evidence and the credibility of the witnesses are for the jury. This court is convinced there is sufficient evidence in the record on behalf of the state to warrant the jury in returning a verdict of guilty of the offense so attempted.

The defendant in his sixth assignment urges that the court committed an error in permitting the county attorney, over the objection of the defendant, to ask the witness J. P. Elliott, father of the prosecutrix, as to a conversation he had with Doc Donald when Doc Donald told the witness he could get $100 if he would not appear at the trial. The record discloses that, when the question was propounded to the witness, the defendant interposed an objection to the testimony and the court permitted the witness to answer. The court then asked the witness if the man making the proposition to him claimed to represent the defendant, and witness said “No.” The court then sustained the objection of the defendant, and directed the jury as follows;

“Gentlemen of the jury, you will not consider that statement binding on the defendant. There is no evidence so far to show that he had anything to do with it. It would be unjust to charge him with any statement made by a man by the name of Donald.”

The action of the court in sustaining defendant’s motion to exclude the testimony improperly brought out by the county attorney was timely. This court will not reverse a judgment on that ground unless the action of the court was so arbitrary and prejudicial to the rights of the defendant as to amount to an abuse of sound judicial discretion. In view of the court’s action on the question, we do not think that the rights of the defendant were prejudiced. Valentine v. State, 16 Okla. Cr. 76, 194 P. 254.

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

In our opinion, there is ample evidence to sustain the judgment; however, under the record before us, we believe the punishment assessed is excessive, and the judgment is therefore modified by reducing the punishment from 5 years to a term of 2 years in the penitentiary, and, as so modified, is affirmed.

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


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    FRANK DUNCAN v. STATE.
    No. A-6799.
    Opinion Filed July 28, 1928.
    (269 Pac. 380.)

      Clarence Mills, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in er^or, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of larceny of an automobile, and was sentenced to serve a term of five years in the state penitentiary.

Complaint is made that the court erred in his instructions 4, 5, 6, and 7. This assignment is not particularly stressed, but we have examined these instructions with care, and, while some of them are not well worded, they are, as a whole, as favorable to defendant as the law warrants. We deem it unnecessary to set them out or discuss them at length.

The contention particularly relied upon is that the evidence is insufficient to sustain the verdict and judgment. The evidence is entirely circumstantial; that for the state discloses a state of facts about as follow's: An automobile Drive Yourself system at Oklahoma City, about 3 o’clock in the afternoon, rented a car to a salesman. About 5 o’clock he notified the lessor that the car had been stolen from Northeast Park, a resort about five miles out of the business district. The car concern notified the police department, furnishing number and description of the car. Two policemen, York and Farris, having information of the larceny, about 7 o’clock p. m. of that day, noticed three men looking over an automobile parked at Harvey and First street. Their actions were ■ suspicious, and these two officers followed them for several bloeks to Third and Dewey, where one of them stopped in the shadow of a tree near the corner. The other two went down Dewey and turned into an alley between Second and Third, went along the alley to a garage and unlocked the door. The defendant was one of these men, and was standing at the door of the garage. He had a 45-caliber Colt’s pistol in the front of his shirt. York was following them to this point. He arrested defendant, and shot at the other as he fled. Defendant was the only one of the three apprehended at the time. He talked but little to the officers, and his explanation to them was somewhat contradictory. The garage at which defendant had been arrested had been rented that afternoon to two persons, and in it was the stolen car. Defendant testified in substance: Thatj he did not know his age, but was about 21 years old, had never been to school in his life, had been roaming the country looking for work, had gone from Denver, Colo., to Illinois, and got a job with a carnival, then helped a boilermaker at Bloomington. Went from there through St. Louis, Kansas City, and reached Oklahoma City about noon on that day. He did not have any money. That he ran across these two boys, and one asked if he wanted to make some money on a job. He said, “Yes,” and they told him that, if he would carry a gun, they would give him $2. Be took the gun, put it in his bosom, and they gave him $2, took him to a restaurant, gave him something to eat, and told him to follow them, about a block behind. That they went then to a little park and told him to wait until they came back. This was about 5:30. That while there he hid the gun, and he waited there for them until 9:30, when they returned and said that they would go and get their car, and he went with them, and when they got near the garage they told him to stand there until they came back, and he would give them the gun, and they would go on. That he had; never seen them before; did not know their names; did not know why they wanted him to carry the gun. He was to do nothing but carry the gun, and when they came out of the alley with the car was to hand it to them. He did not know they had a car.

That the car was stolen is not questioned, and that it was found some hours later under circumstances sufficient to show defendant either assisted in the taking or aided and abetted the other two men with him in the taking. Defendant’s explanation is so unreasonable that we can well understand why the jury did not believe it. The defendant’s language and conduct, also, is a circumstance indicating guilty knowledge. When asked by the officers to drive the car to the police station, he told them that he did not know how to drive a car; but he later drove the car to the station. He explained his reluctance by saying he did not want his finger prints about the car.

We agree with counsel who was appointed to defend that the record shows defendant to be poor, illiterate, and an object of pity. It is too bad that society is so organized that such conditions exist. Such conditions, however, present a problem that the courts are not able to solve. Betterment must come through some other channel of government or welfare organizations. There is proof of circumstances from which a reasonable and logical inference arises that defendant either directly committed the larceny or aided and abetted his two companions in the taking. It is well settled that, where there is substantial evidence, although circumstantial, from which a jury may reasonably and logically find the guilt of an accused, this court will not disturb the verdict for insufficiency.

The case is affirmed.

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


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    WILLIAM E. OLIVER v. STATE.
    No. A-6148.
    Opinion Filed Aug. 4, 1928.
    (269 Pac. 508.)
    Wallace & Wallace, S. M. Cunningham, and Wayne H. Lasater, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the district court of Creek county on a charge of manslaughter in the first degree, and was sentenced to serve a term of ten years in the state penitentiary.

The judgment was rendered in October, 1925, and the appeal lodged in this court in March, 1926. No briefs in support of the appeal have been filed, nor was any appearance for oral argument made at the time the case was submitted. We have examined the record, and find that the information properly charges the crime of murder, the evidence supports the verdict and judgment, the issues were fairly submitted, and no jurisdictional or fundamental error is apparent.

The case is affirmed.

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


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    RILEY PRESTON v. STATE.
    No. A-6100.
    Opinion Filed Aug. 4, 1928.
    (269 Pac. 507.)
    Whiteside & Snodgrass, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, who for brevity will be referred to as defendant, was convicted in the county court of Jackson county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $150 and to serve 50 days in the county jail.

The appeal seeks to raise the question that the conviction was procured by evidence obtained by an illegal search warrant. An examination of the record discloses that the certificate of the trial judge is not attested by the clerk, as required by the provisions of section 785, Comp. St. 1921. This court has .several times held that this provision of the law is mandatory, and unless the case-made is attested by the clerk it is not properly before this court. Lewis v. State, 3 Okla. Cr. 448, 106 P. 647; Humphrey v. State, 3 Okla. Cr. 504, 106 P. 978, 139 Am. St. Rep. 972. The record contains a certificate of the clerk and the case-made is sufficient as a transcript. Butler v. State, 22 Okla. Cr. 241, 223 P. 193; Tracy v. State, 24 Okla. Cr. 144, 216 P. 941.

An appeal by transcript raises only those questions appearing on the face of the record proper. The testimony is not before the court. Section 2777, Comp. St. 1921; Jenkins v. State, 11 Okla. Cr. 168, 145 P. 500. Considered as a transcript, no material error is made to appear.

The case is affirmed.