author: DOYLE, P. J.

text:
    Ex parte GARRETT BAILEY.
    No. A-3502.
    Opinion Filed March 1, 1919.
    (178 Pac. 701.)
    John S. Hale, for petitioner.
    The Attorney General and Wm. H. Zwick, Asst. Atty. Gen., for respondent.
   DOYLE, P. J.

This is a petition for a writ of habeas corpus for the release of Garrett Bailey from the penitentiary. It appears from the petition that Garrett Bailey was by information filed in the district court of Tulsa county, charged with the.crime of murder; that upon trial he was found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of four years; that on the 30th day of April, 1918, judgment was rendered in accordance with the verdict, and time was given in which to make and serve a case-made and file the same as settled in the Criminal Court of Appeals, supersedeas bond being fixed in the sum of $4,000, which bond was given and approved and the defendant enlarged thereon.

It is averred that defendant’s parents paid his counsel $136 to apply -on counsel fees for perfecting an appeal in said cause, and copies of the receipts for said sum given by counsel are attached to the petition; that defendant’s counsel informed said defendant that his appeal had been properly perfected, by filing petition in error and case-made with the'clerk of this court; that by reason of the neglect of defendant’s counsel no appeal was taken or perfected in said cause. It is further averred:

“That on the 12th day of January, 1919, the defendant, Garrett Bailey, was wrongfully committed to the state penitentiary, and is now by reason, of the foregoing facts unlawfully imprisoned in the penitentiary at McAlester, and is now by said warden illegally restrained of his liberty.”

To this petition the Attorney General filed a general demurrer on the ground that the allegations of the petition were not sufficient to show that petitioner was entitled to have a writ of habeas corpus issue.

It is a well-settled general rule, by this court often affirmed, that the writ of habeas corpus cannot be issued for the purpose of proceedings in error, and that the juris-dition in a habeas corpus proceeding is confined to an examination of the record, with a view of determining whether the person imprisoned and restrained of his liberty, is detained without authority of law. From the allegations of the petition it appears that petitioner was convicted in a; court of competent jurisdiction of an offense charged in the information, and that he is now imprisoned under an order of commitment issued upon a judgment and sentence rendered in accordance with the verdict of the jury.

Our Code provides:

“No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * * Second. Upon any process issued on any final judgment of a court of competent jurisdiction.” Section 4893, Rev. Laws 1910.

In the case at bar this court is asked to review in this proceeding alleged errors occurring upon the trial of the prisoner, because he was deprived of the right and benefit of an appeal by reason of the alleged false representations and the neglect of his attorney to prepare and perfect an appeal from the judgment of conviction.

We deem it sufficient to say that a writ of habeas corpus cannot be used to perform the office of an appeal, and the neglect or failure of counsel retained to prepare and perfect an appeal is not sufficient ground for the issuance of a writ of habeas corpus. In Wilkins’ Case, 7 Okla. Cr. 422, 115 Pac. 1118, it is held that:

“The review of a judgment of conviction and imprisonment by writ of habeas corpus is limited to the questions: Had the court which rendered the judgment jurisdiction of the subject-matter and of the person convicted? And did the court in the course of the proceedings which resulted in the judgment lose jurisdiction to render a valid judgment and sentence?”

In Woods’ Case, 7 Okla. Cr. 645, 125 Pac. 440, it is held that:

“Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, the inquiry is limited to the question whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged; and, if the trial court had jurisdiction and power to convict and sentence, the writ cannot issue to correct mere errors.”

It appearing that the petition is insufficient to show that the petitioner is entitled to have the writ issue, or a rule entered to show cause why the writ should not issue, the demurrer thereto is sustained, and the writ denied.

ARMSTRONG and MATSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re JOHN H. BREEDING. In re FRANK SOUVA.
    Nos. A-3535, A-3536.
    Opinion Filed April 29, 1919.
    (180 Pac. 191.)

      Bert Van Leuven, for petitioner.
    W. C. Hall, Atty. -Gen., for the State.
   PER CURIAM.

On motion of counsel for petitioners in the above entitled and numbered causes, the same are dismissed, and counsel for petitioners permitted to withdraw the petitions filed herein.


text:
    J. J. SHEPHERD v. STATE.
    No. A-3384.
    Opinion Filed Aug. 28, 1920.
    (192 Pac. 235.)
    Towne, Swarts & Towne, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
   PER CURIAM.

It is first contended that the court erred in overruling the demurrer to the information. It is contended in this court that the information does not state facts sufficient to charge the defendant with the crime of carrying concealed weapons. The charging part of the information is as follows:

“The said J. J. Shepherd, then and there being, did then and there willfully and unlawfully carry on and about his person a certain concealed weapon, to wit, a certain 44-calibre, new service, Colt revolver, contrary,” etc.

In the case of State v. Jones, 3 Okla. Cr. 412, 106 Pac. 351, an information charging the crime of carrying concealed weapons, the charging part of which is identical with the information in this case, was held to be sufficient. Under the holding in that case, this information is good.

The exceptions, permitting public officials while in the discharge of their duties, and while going from their homes to their place of duty and returning therefrom, and also permitting persons to carry shotguns and rifles for the purpose of hunting or having them repaired, or for the purpose of using same in public muster or military drills, or while traveling or removing from place to place, contained in separate sections of the statutes from that defining the offense of carrying concealed weapons, are not descriptive of the offense, but constitute merely defensive matter, not necessary to be alleged in an indictment or information charging the crime.

The rule that matters purely of defense need not be negatived in the allegations of an indictment or information charging the crime is discussed in the case of Penn v. State, 13 Okla. Cr. 367, 164 Pac. 992, L. R. A. 1917E, 668, and cases therein cited.

We hold therefore that the allegations of the information in this case are sufficient to charge the defendant with the crime of carrying concealed weapons. ■

Counsel for the defendant offered to prove, as a defense to this prosecution, that the revolver which the defendant was carrying was a 44-calibre gun, commonly known as an “army gun,” and that the defendant was carrying the same for the purpose of resisting a threatened attack to take his life. The trial court sustained an objection to this offered evidence on the ground that it constituted no defense to the crime, where the defendant admitted that he carried the weapon concealed upon his person.

We are of the opinion that the ruling of the trial court is sustained by the opinion of the Supreme Court of this state in Ex parte Thomas, 1 Okla. Cr. 210, 97 Pac. 260, 20 L. R. A. (N. S.) 1007, which was followed by this court in the case of State v. Jones, supra. We deem it unnecessary to enlarge upon what was said concerning the meaning and scope of the statutes against carrying weapons by the Supreme Court of this state in Ex parte Thomas, supra, wherein the said statutes were construed in relation to section 26, article 2, of the Constitution, and were held to be constitutional as not. in conflict with said constitutional prevision.

The regular panel of jurors being insufficient _ from which to select a jury to try this case, the court issued an open venire, directed to the sheriff, for 10 qualified men to be selected from the body of the county. The defendant at the time filed an affidavit, alleging that the sheriff, Ed Freeman, and his deputies, _ were prejudiced against the defendant, and that such prejudice would prevent them from selecting fair-and impartial jurors, and1 asked that a disinterested person be selected to serve said open, venire. The request of the defendant that some other person than the sheriff be selected to serve said venire was overruled by the court, to which action the defendant excepted. The defendant also interposed a challenge to the entire panel of jurors selected by the sheriff on the open venire for the same reasons, which said challenge was heard by the court and overruled.

It appears from the record that the name of Ed Freeman, the sheriff to whom the court directed the clerk to issue the special venire of jurors for service was indorsed on the information as a witness to be used by the state in chief against the defendant. The special venire was served by one George Gibson, a deputy sheriff, who was not a witness in the case, and. the record also .discloses that, although the name of the sheriff was indorsed as a witness he was not used by the state in proving the crime.

In Koontz v. State, 10 Okla. Cr. 553, 139 Pac. 842, Ann. Cas. 1916A, 689, it was held:

“It is essential to the fair and impartial administration of justice that an open or special venire should be summoned by an officer, who is not disqualified by reason of interest, bias, or prejudice.”

In the Koontz Case, the name of the sheriff who served the open venire was indorsed on the information, and1 he testified on the trial as a witness for the state. The challenge interposed to the panel was disallowed, and this court held the action of the trial court in that ease in overruling the motion to disqualify the sheriff to have been error, and in the body of the opinion said:

“Section 5848 (Rev. Laws 1910) Procedure Criminal provides: ‘When the panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the officer who summoned them, which would be good ground of challenge to a juror. Such challenge must be made in the same form, and determined in the same manner as if made to a juror.’
“The language of the statute is so plain that no room is left for interpretation. It authorizes a challenge to the.panel, on account of the bias of the officer who summoned a jury on an open or special venire, upon what would be good ground of challenge to a juror for bias. If, then a challenge for cause would have been sustained against a person called as a juror because he was a material witness for the state, a challenge would also lie upon the same ground to a panel summoned by him. If he would not be qualified as a juror because of actual or implied bias, as defined by sections 5858 and 5859 (Rev. Laws 1910), he would also be disqualified for the same reason to summon a jury, in whole or in part, whose names are not drawn as jurors from the jury box.
“The precise question has been considered by the Supreme Court of Idaho, upon a similar statute, in the case of State v. Jordan, 19 Idaho, 192, 112 Pac. 1049. (Chief Justice Stewart, delivering the opinion of the court, used the following language: ‘There is a very strong reason for the rule announced by the statute. The officer having the order for the special venire in serving the same would have the power to exercise his judgment partially, and to summon jurors whom he might think would favor the prosecution, and thus return a jury wholly favorable to the prosecution, and it is because such power might be executed partially that the statute makes the fact that the officer is a witness for the prosecution a cause for challenge to the panel thus selected by him on the ground of implied bias. For this reason we think that the court erred in denying the challenge to the jury panel’.”

In the instant case, while the sheriff did not serve the open venire, one of the deputy sheriffs did serve the same, and the principal witnesses for the prosecution and the ones who made the arrest were two of the other deputy sheriffs, all appointees and servants of the sheriff to whom the open venire was issued. Under the holding in the Koontz Case, the sheriff was disqualified to act. The act of the deputy was nothing more than the act of the sheriff himself, and, the sheriff being disqualified, the court should not have permitted the deputy sheriff to serve the open venire. The action of the trial court in so doing was erroneous, and if any substantial defense was offered by the defendant in bar of this prosecution, this court Would have no hesitancy in reversing the judgment of conviction on this ground.

But it is apparent from an examination, of this entire record that the defendant has no substantial defense on the merits, and the Legislature has specifically provided in section 6005, Revised Laws 1910, that no judgment of conviction shall be reversed because of error in pleading or procedure, unless the same probably resulted in a miscarriage of justice, or deprived the defendant of some constitutional or statutory right to his prejudice.

The Legislature has also seen fit (section 6003, Rev. Laws 1910) to lodge in this court the power to modify a judgment of conviction. We think in this instance the judgment should not be reversed because of the erroneous ruling of the trial court in issuing the open venire to the sheriff, but that the same should be modified by reducing the punishment assessed against the defendant to a fine of $25, the minimum punishment provided by law for this offense.

For reasons stated, the judgment of conviction is modified to provide a fine of $25 and costs of the action, instead of a fine of $50 and 20 days' imprisonment in the county jail and costs of the action, as originally imposed; that the judgment as so modified is affirmed.


author: EDWARDS, J.

text:
    C. L. HESS v. STATE.
    No. A-5331.
    Opinion Filed Dec. 4, 1926.
    (250 Pac. 938.)
    J. H. Foster and Womack, Brown & Cund, for plaintiff in error.
    Geo. F. Short, Atty, Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was charged, in the district court of Stephens county, jointly with J. B. Plunkett and Nixon, with having the unlawful possession of narcotic drugs, and was sentenced to serve a term of one year in the state penitentiary, and to pay a fine of $500.

A state of facts about as follows is disclosed by the record: Plunkett, Nixon, and defendant were arrested together near a Ford coupe on a byroad, about 3 y2 miles southeast of Duncan, late in the afternoon, about dusk, April 15, 1923. There were spread out on the seat of the coupe about 215 grains of morphine^ in tablet form. As the officers who discovered them approached, Plunkett threw a small box into the weeds, which was recovered and which contained an additional 200 grains of morphine. Plunkett, the owner of the coupe, was a doctor. Nixon and defendant had no regular occupation. Defendant had been a drug addict, but claimed at the time he was not using it regularly. Before the trial, Plunkett had died. Defendant was tried separately, and he testified that he was invited and went with Plunkett merely for the trip, and for the reason that he had a sister living at Comanche, where they first went, and visited with her at the time. From Comanche they went to one Leming’s place about 10 miles east, where the drug was procured. Defendant claimed to be suffering from an abscess and stated that, while they were at Leming’s Plunkett gave him “a shot” to ease the pain. Nixon testified in defendant’s behalf, in effect, that he drove the car for Plunkett and did not know what mission Plunkett was on, that neither he nor defendant knew that Plunkett had the narcotics until they stopped where apprehended, and Plunkett spread the tablets out on a piece of paper.

It is first contended and argued at considerable length that the evidence is insufficient to sustain the verdict, and the court should have instructed an acquittal. The circumstances appearing in evidence, disclosing the procuring of the narcotics, the large quantity, the fact- that it was spread out, at the time discovered, apparently for the purpose of being divided, are sufficient to carry the case to the jury, and are such that the jury might reasonably conclude that defendant and Plunkett were acting together, and that the possession was a joint possession. Whitten v. State, 25 Okla. Cr. 447, 221 P. 115.

It is also contended that the court erred in refusing defendant’s requested instruction No. 3. This request is an instruction on circumstantial evidence and correctly states the law. None of the narcotics were found on the person or in the physical possession of defendant. The car in which they were found did not belong to him, and proof of his possession is circumstantial. There is no direct proof that he personally procured the narcotics, or that he aided and abetted in its procurement, or that he controlled the vehicle in which they were transported, and his possession, if proved, is by the surrounding circumstances. The rule is that where the evidence is entirely circumstantial, the defendant, when he requests it, is entitled to an instruction on circumstantial evidence, as a matter of right. Matthews v. State, 8 Okla. Cr. 676, 130 P. 125; Robbins v. State, 12 Okla. Cr. 412, 157 P. 1027.

We are not prepared to say that the evidence is so convincing that, if the requested instruction had been given, the jury might have reconciled the circumstances upon some hypothesis other than the guilt of defendant.

For failure to give the requested instruction, the case is reversed and remanded.

BESSEY, P. J., and DOYLE, J., concur.


text:
    EDD QUEEN v. STATE.
    No. A-5231.
    Opinion Filed Dec. 12, 1925.
    Rehearing Denied Dec. 4, 1926.
    (250 Pac. 935.)

      Fred L. Hoyt, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Dewey county on a charge of selling intoxicating liquor, the plaintiff in error, hereinafter called defendant, has appealed.

The only question raised is that the evidence is insufficient to sustain the verdict. The principal evidence on the part of the state is that of Fred Horton, who was employed and deputized by the sheriff of Dewey county to discover violations of the liquor law. He testified that he went to the residence of the defendant, purchased from him a quart of whisky, and paid for it a sum of $2.50, and that' he took the whisky and delivered it to the county attorney, and it was by the county attorney identified and admitted in evidence. So far as we can determine from the record, the evidence of this witness is true. The defendant denies that he sold the witness Horton any whisky, but on the contrary says that when the witness came to his place he suggested that he had some whisky and brought a bottle from his car out of which they drank. He also offers the evidence of one Balfour, who at the time was driving a car in which'the witness Horton was traveling, and who in the main corroborates the defendant and testifies that Horton at the time produced a bottle from his car out of which Horton and the defendant drank.

Also defendant introduced one Harding, who in the main corroborates the defendant, and the witnesses Crow, Cleveland, Terrell, and Bauldin, whose testimony is to the effect that on other occasions they had seen the witness Horton when he appeared drunk or to have been drinking. So far as the weight of the evidence is concerned, if we measure the weight by the number of witnesses testifying, it preponderates strongly in favor of the defendant; but the preponderance is not to be determined by the number of witnesses testifying for or against a defendant or upon any particular point. The preponderance simply means the greater weight of evidence, and, since the jury are the exclusive judges of the facts, it is for them to say whom they will believe or disbelieve, and that is to be arrived at by the various things that impress a juror with the truth or falsity of the evidence, among which is the, appearance of the witness on the stand, his manner of testifying, his apparent candor and frankness, or the lack thereof. It sometimes happens that the testimony of one witness may outweigh that of several testifying to the contrary. Cochran v. U. S., 14 Okla. 108, 76 P. 672; Cole v. State, 16 Okla. Cr. 420, 183 P. 734.

In this case the jury saw the witnesses, heard the testimony, and by their verdict say they believe the evidence of the prosecuting witness and disbelieve that of the defendant and his witnesses. We do not feel at liberty to disturb the judgment on the sufficiency of the evidence.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    LESTER QUEEN v. STATE.
    No. A-5229.
    Opinion Filed Dec. 17, 1925.
    Rehearing Denied Dec. 4, 1926.
    (250 Pac. 935.)

      Fred L. Hoyt, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

From a conviction in the county court of Dewey county on a charge of transporting whisky, the plaintiff in error, hereinafter called defendant, has appealed.

The evidence for the state is that of Fred Horton, a special deputy sheriff appointed for the purpose of detecting violations of the liquor law. It is contended that the court erred in permitting the county attorney to ask the witness Balfour if he approved of the methods employed in catching bootleggers. The testimony of the witness Balfour, called for the defendant, was in direct conflict with the evidence of the state’s witness Horton, and the purpose ' of the question was evidently to elicit the bias or prejudice of the witness. The questions complained of do not present reversible error.

It is further contended that the evidence is insufficient to sustain- the verdict. Measured by numbers, the evidence for the defendant outweighs that of the state, but, since the credibility of the witnesses and the weight and value to be given their testimony is peculiarly within the province of the jury, they may believe the evidence of one witness upon a state of facts as against the testimony of several testifying to a different state of facts. This they evidently did in the case before us.

We will not disturb the verdict on the weight of the evidence.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    LEE McDERMOTT v. STATE.
    No. A-5226.
    Opinion Filed Oct. 23, 1926.
    Rehearing Denied Dec. 4, 1926.
    (250 Pac. 810.)
    M. D. Hartsell, for plaintiff in error.

      Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst.' Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Muskogee county on a charge of wife abandonment and sentenced to serve a term of one year in the state penitentiary.

The record discloses that on June 25, 1923, the defendant, who was 20 years of age, married Ruby Newman, who was just under the age of 16; 4% months later she gave birth to a child. We gather from the record that the marriage was in settlement of a criminal prosecution against the defendant, but whether seduction or rape does not appear. Immediately after the marriage ceremony, the defendant gave his wife $2 in money, told her to get a taxi and go home, and he would be down there. She thereupon returned to her parents, and defendant left Muskogee and was gone for some six months, during which time he did not communicate with his wife nor contribute anything to her support. He explains his directions to her to go home by saying that he expected her to go to his parents’ house, but.it is shown that the wife had never met his parents and that they had never communicated with her. During the six-month period that defendant was absent, his wife was assisted by the United Charities Organization of Muskogee.

' The charge was based upon section 1856, Comp. Stat. 1921, as amended by section 2, e. 78, of the Session Laws of 1923, which reads as follows:

“Section 1856. Every person who shall without good cause abandon his wife in destitute or necessitous circumstances and neglect and refuse to maintain or provide' for her, or who shall abandon his or her minor child or children under the age of fifteen years and willfully neglect or refuse to maintain or provide for such child or children, shall be deemed guilty of a felony and upon conviction thereof, shall be punished by imprisonment in the state penitentiary for any period of time not less than one year or more than ten years.”

The information charges:

“ * * * That Lee McDermott did * * * commit the crime of wife abandonment in the manner and form as follows, to wit, that the said Lee McDermott, in the county and state aforesaid, on the 25th day of June, 1923, did knowingly, willfully, unlawfully, wrongfully, and feloniously and without good cause abandon his wife, Ruby McDermott, and ever since said date has refused and neglected to maintain and provide for her. * * *”

No demurrer was interposed to this information, ■but upon the opening of the trial for the taking of testimony defendant objected for the reason the infor-motion failed to state sufficient facts. It will be observed that the information does not allege that the wife was in “destitute or necessitous circumstances” at the time of the abandonment, and it is contended for that reason it lacks an essential allegation; that the necessitous or destitute circumstances is the foundation of the crime of wife abandonment, citing 22 Cyc. 326; Tucker v. State, 8 Okla. Cr. 428, 128 P. 313; Seay v. State, 29 Okla. Cr. 189, 233 P. 766, and various other authorities.

It has been frequently held by this court that where a defendant goes to trial without demurring to the indictment or information and objects for the first time when the state offers testimony, the objection should be overruled, if by any intendment or presumption the pleading can be sustained. Edwards v. State, 5 Okla. Cr. 20, 113 P. 214; McDaniel v. State, 8 Okla. Cr. 209, 127 P. 358; Wilsford v. State, 8 Okla. Cr. 535, 129 P. 80; Clark v. State, 11 Okla. Cr. 494, 148 P. 676; Ralston et al. v. State, 16 Okla. Cr. 634, 185 P. 831; section 2822, Comp. Stat. 1921.

Under this well-established rule, does the information'by any intendment or inference charge the offense of abandonment of the wife in destitute or necessitous circumstances and sufficiently apprise the defendant of the charge against him? If it does, it should be upheld. The information charges that the abandonment was willful, unlawful, wrongful, and felonious, and' without good cause. The abandonment could not be unlawful nor felonious unless in violation of the statute. It is not in violation of the statute unless the wife, at the time of the abandonment was in destitute or necessitous circumstances. The information is defective; a slight examination of the statute would have suggested including in the information the allegations omitted, but certainly if this defect in the information had been challenged by demurrer and the attention of the trial court called to it, the demurrer would have been sustained and the information amended. The complaint was not filed until the 11th day of December, 1923. The case was not tried until May 31, 1924. That the wife was in destitute and necessitous circumstances was not a controverted question at the trial. The evidence abundantly proves that fact, and the defendant has not been prejudiced. The defendant not.- having seen fit to challenge the information by demurrer, we must conclude, liberally construing the allegations, that by intendment and inference the information is sufficient to overcome an objection to the introduction of evidence.

Defendant also contends that there is no sufficient proof of venue, and that there is no evidence that the abandonment or failure to provide for the wife took place in Muskogee county. We do not so read the record. The evidence is that the marriage took place in the courthouse in Muskogee county; that immediately after the ceremony the wife was sent home; that defendant did not communicate with her nor make any provisions for her support for more than six months. It is not necessary that during this time he should remain in Muskogee county in order to fix the venue there. Nor is it necessary that we hold that the venue is in the county where the duty is owing. This has been held in the courts of several of the states under similar statutes; but a determination of that question is not necessary here. Ex parte Brennen, 43 Nev. 165, 183 P. 310; Commonwealth v. Acker, 197 Mass. 91, 83 N. E. 312, 125 Am. St. Rep. 328; Bull v. State, 80 Ga. 704, 6 S. E. 179.

It is clear to us that where a defendant in a criminal case i norder to abate the prosecution marries the prosecuting witness and immediately abandons her in the countv where both reside and where the marriage took place, that the venue of a prosecution for such abandonment is in the county where the wife is deserted.

Other contentions are presented that the court permitted the introduction of incompetent evidence, which objection is directed to evidence that the prosecution was held in abeyance in an effort to have the defendant provide for his wife and the making of an agreement and the failure of defendant to abide by it. This evidence was admissible as going to the good faith of defendant. Since the statute is remedial as well as penal, it was proper for the prosecuting officers to suspend the prosecution in the event defendant should provide for his said wife.

Error is also assigned in the state’s argument to the jury. All of the argument is not incorporated. We find nothing in the argument set out that is materially .prejudicial or which calls for a reversal.

- The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    G. W. CARTER v. STATE.
    No. A-5267.
    Opinion Filed Nov. 13, 1926.
    Rehearing Denied Dee. 4, 1926.
    (250 Pac. 807.)

      H. M. Carr, Glaseo & Glaseo, and Bond & Bond, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of McClain county on a charge of offering a forged instrument for record, in violation of section 1626, Comp. Stat. 1921, and he was sentenced to pay a fine of $500.

The record discloses that the defendant had some dealings with a part blood Indian boy named Baxter Sharp Kerr, who became of age November 29, 1924. On the day following, an instrument purporting to be a warranty deed conveying certain lands belonging to Kerr to defendant, accompanied by a check in blank, signed by defendant to pay the recording fees, was received by the county clerk of McClain county. The information charges the forging of this deed. The sufficiency of the information is not challenged, nor, apparently, is the fact that the instrument upon which the charge was predicated was a forgery.

It is first insisted that there is no sufficient proof that defendant had actual knowledge that the instrument offered for record was a forgery nor that he offered it. Defendant testified that the instrument was valid, was made upon a fair consideration, and that the name of Kerr was signed by defendant’s stenographer at Kerr’s request. This is denied by Kerr, and. an issue of fact is thus presented; the verdict of the jury is sustained by the evidence. There is no direct evidence that defendant expressly ordered his stenographer to send the deed to the county clerk of McClain county for record, but it is not necessary that this be proved by direct and positive evidence. It may be proved by circumstances; the fact of its being transmitted by mail by defendant’s stenographer, with a check signed by defendant to pay the fees for recording inclosed, with the other circumstances shown, is sufficient upon this point.

It is also urged that the court erred in admitting evidence of other transactions between defendant and Kerr as being transactions entirely separate and distinct, and that this evidence was prejudicial. These items of evidence were offered as tending to show a system of dealing, or as being transactions so closely connected with the offense charged as to throw light upon it. It is true that independent transactions or independent offenses may not be shown for the purpose of raising a presumption that defendant is guilty of the offense charged. 8 R. C. L. 198. There are, however, certain well-recognized exceptions, and where evidence tends to show guilty knowledge, intent, motive, or evidence of transactions, or matters so closely connected with the offense charged as to form a part of the res gestse, it is admissible, although it may tend to prove some other independent offense or transaction.

Complaint is made of certain of the court’s instructions, particularly to instruction No. 5, in which the court limited the purpose for which the evidence of other transactions was to be considered to the sole purpose of determining whether defendant was guilty of the charge for which he was on trial. While this instruction is not happily worded, there is no substantial error in it; the jury are particularly informed that a conviction can be had, if at all, upon the charge for which defendant was on trial and none other. Defendant could not have been injured by this instruction.

It is argued that instruction No. 6, advising the jury the consideration to be given expert evidence, is erroneous. This instruction reads:

“The court instructs the jury that, so far as the expert testimony is concerned, you will consider that and treat it in the same manner as you would treat any of the other testimony in the case. The simple fact that it was offered by experts does not compel you to take their testimony in preference to any other, but you should give the testimony of the expert witnesses, the same weight, the same consideration, everything else being equal, as that of any other witness.”

The general instruction on the credibility of the witnesses and the weight and value to be given their evidence is a sufficient rule for the guidance of the jury. Munson v. State, 13 Okla. Cr. 569, 165 P. 1162; Darneal v. State, 14 Okla. Cr. 540, 174 P. 290, 1 A. L. R. 638; Cole v. State, 18 Okla. Cr. 430, 195 P. 901.

It is for the jury to say whom they will believe or disbelieve, and the court should not take from them the liberty of using their own judgment. An expert witness is different from no other witness from the mere fact that he is an expert. We think the instruction complained of could not have misled the jury and that the instructions, as a whole, fairly and impartially submit the issues involved. Collins v. State, 32 Okla. Cr. 136, 240 P. 135; Horn v. State, 31 Okla. Cr. 347, 238 P. 966; Smith v. State, 32 Okla. Cr. 121, 240 P. 143; Hickman v. State, 32 Okla. Cr. 307, 240 P. 1097; Whitworth v. State, 32 Okla. Cr. 200, 239 P. 930; Bruner v. State, 31 Okla. Cr. 351, 238 P. 1000.

Lastly, it is argued that the court erred in overruling the motion for a new trial on the ground of newly discovered evidence. Several affidavits were filed challenging the credibility of the witnesses for the state. That a motion on this ground is directed to the sound discretion of the trial judge is well settled. The affidavits are more or less cumulative of the former testimony in the case, and impeach the testimony offered ay the state. It does not appear to be at all probable that a new trial, if granted, would change the result. There was no abuse of discretion in overruling 'the motion for a new trial.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    ELMER McDANIEL v. STATE.
    No. A-4269.
    Opinion Filed April 10, 1926.
    Kefiearing Denied Dec. 4, 1926.
    (250 Pac. 804.)

      John Sykes, J. P. Evers, and F. F. Nelson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and G. B. Fulton and N. W. Gore, Asst. Attys. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Tulsa county on a charge of receiving stolen property and sentenced to serve a term of two years in the state penitentiary.

The evidence briefly stated discloses that on March 18, 1919, one D. H. Wade, residing at Jenks, lost a Ford roadster which had been used for about one year. About a month later he discovered the car parked at West Tulsa, and with a police officer waited until one Rector came to drive it away, and they interposed and asked as to how he came in possession of it. He informed them that he had purchased it from one Baker. They then went with Rector to Baker, and inquired where he got the car, and he informed them that he had purchased it from defendant. They thereupon went to defendant, and he informed them that he had purchased it from one Pardon or Parten, who lived at or near Dawson. Defendant had a bill of sale which he showed them at the time of his arrest, which, however, bore date one day before the automobile in question was stolen. Also the numbers on the engine of the car had been mutilated. He was then arrested, but was not tried until November 4, 1921. The state proved the facts above set out; the defendant offered no evidence and did not take the stand.

Only two assignments of error are argued in the

Upon the first assignment it is argued that there is brief of defendant: First, that the evidence is insufficient to sustain the judgment; second, that the county attorney in his argument commented on the fact that the defendant did not testify, no evidence that the defendant knowingly received stolen property; that at most the evidence raises only a suspicion of guilt. The statute under which the defendant was prosecuted (section 2113, Comp. St. 1921), defines the crime of receiving stolen property. The possession of property recently stolen, where the charge is receiving as well as in a case where the charge is larceny, is a circumstance for the jury to take into consideration along with the other facts and circumstances in the case; among which are the nearness or remoteness of the possession to the receiving or the larceny, the nature of the property as passing readily from hand to hand or not, and the explanation, if any, made by the accused as to his possession, the concealment or alteration of the property to prevent identification, and such other circumstances as would reasonably influence the jury. Cox v. Territory, 2 Okla. Cr. 668, 104 P. 378; Mullins v. State, 15 Okla. Cr. 347, 176 P. 765. Knowledge ordinarily is not capable of being proven by direct and positive evidence, but must generally be proven by circumstances. The possession of stolen property, with other incriminating circumstances, may be sufficient to convict. Gunter v. State. 17 Okla. Cr. 404, 189 P. 200.

Here the defendant very shortly after the larceny had possession of the stolen automobile. The numbers of it had been altered, evidently to prevent identification. When apprehended, the defendant produced a bill of sale dated a day prior to the larceny of the car. He claimed to have purchased the car in a nearby village, and, although the case did not go to trial for two years, at the time of the trial he neither produced the person from whom he claimed he got the car nor accounted for his failure to do so. He did not take the stand to explain the circumstances connected with his possession, but stood on the contention that the state had not shown that at the time he acquired possession he had knowledge that the car was stolen. If he is willing to rest his case on this state of the record without any explanation, he must abide the inferences arising from it. The evidence of possession and the incriminating circumstances shown are sufficient to sustain the judgment.

Upon the second assignment it is contended that the county attorney in the closing argument committed prejudicial error, in commenting on the fact that the defendant had not offered any evidence. The record does not contain the argument of counsel except the closing argument of the county attorney. In the course of that argument he refers to the argument of counsel for the defendant, wherein apparently he had criticized the state’s witnesses, and had argued that their testimony was not worthy of credence, and, in reference to the testimony of one witness as to the names signed to the bill of sale, said:

“ * * * And. he told you that that name was spell-either P-a-r-d-o-n or P-a-r-t-e-n. That is his testimony, and that is uncontradicted. No one attempts to dispute it except counsel in this case.
“Mr. Evers: Except to the remarks of counsel for the state in saying the undisputed — nobody attempts to dispute it except counsel in this case.
“Mr. Goldsberry: The other witnesses in this case testify that McDaniel told him that he bought the automobile from Sam Hardin. He did not see the bill of sale at the police station down there that night, nor any one else that has testified in this case except Mr. Wade, and Mr. Wade tells you what name was on that bill of sale, Pardon or Parten, and that is undisputed in this case.
“Mr. Evers: I object to the words ‘undisputed in this case,’ and ask the court to admonish the jury.
“Mr. Goldsberry: By any one who has testified in this trial.
“Mr. Evers: And ask the court to admonish counsel about the argument, referring to no one that has testified in this matter except from the logical deduction from his own testimony.
“The Court: What?
“Mr. Goldsberry: I think that is a matter of fact in this case.
“The Court: I think so; the jury remembers the evidence. I think counsel is within his province.
“Mr. Evers: My objection is he has got no right by inference or otherwise to call the attention to the fact that there is no evidence introduced by the defendant.
“Mr. Goldsberry: I haven’t said a word, and I challenge the record; there is other evidence in this case except what the defendant has introduced in this case.
“The Court: All right.
“Mr. Goldsberry: I have not; never uttered the defendant’s name in this case with reference to that matter.
“Mr. Evers: Exception. * * *”

It is a violation of the statute for counsel for the state to comment on the fact that a defendant has not testified. Section 2698, Comp. Stat. 1921. This statute may not be violated either in letter or spirit. Nor was it violated in this case. The objection of defendant to the argument is without merit, and the comment that the argument referred to the failure of the defendant to testify, if such inference may be said to have arisen, was injected by defendant’s counsel.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    JOE WARREN et al. v. STATE.
    No. A-6134.
    Opinion Filed Dec. 4, 1926.
    (251 Pac. 101.)

      C. R. Reeves, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were convicted in the district court of Oklahoma county of the crime of robbery with firearms, and each sentenced to a term of five years in the state penitentiary.

An unusual state of facts appears in the record. It appears that Leo Williams, now a fugitive, formed a plan for the robbery of the Big Four and the New State ice plants, and for this purpose called to his aid the defendants. Williams imparted his plan to Cothran, an employee of the Big Four Company, and Cothran advised Anderson, the manager of that company and the county attorney, who thereupon decided to entrap Williams and these defendants. For fear some one would be hurt in the attempt if made at the • ice plant, Anderson was unwilling that the attempt be made there, and suggested to Cothran that the plan be changed so that Williams and the defendants would commit the robbery by holding up a crap game or something of that kind at Cothran’s house. Cothran suggested this change of plan to Williams, and Williams and one of the defendants went to Cothran’s house the day before the robbery to look the ground over. The following night Cothran invited two friends, Langley and James, down to his garage near his house as material for the defendants to rob, telling them they would have a poker game or shoot craps. They did not know that any robbery was to take place, and had no connection with the entrapment. Langley and James, about 9 o’clock, came to Cothran’s garage, a blanket was spread down and some money was out and the dice game was ready to begin, when Williams and the defendants came on the scene, entered the garage, ordered Cothran, Langley, and James to put up their hands, which they did. The trio - then went through the pockets of Cothran, Langley, and James and took what money they found. Defendants and Williams then were backing out of the garage when the officers appeared and arrested them. The defendants admit their participation in the affair as testified to by the officers, but contend that it was a joke, and that they did not intend to retain the money taken in the robbery, but expected to return it and participate in the game.

Complaint is first made that the court did not acquire jurisdiction of the person of defendants, for the reason that the preliminary complaint upon which the warrant was issued was not sworn to. The preliminary complaint was signed by W. V. Brown, but the jurat wak not signed by the justice of the peace, but upon a motion to quash the state introduced evidence that Brown signed and verified the preliminary complaint before the justice of the peace issuing the warrant, and the failure of the justice of the peace to sign the .jurat was a mere oversight. Section 30, art. 2, of the Constitution requires that probable cause shall be shown, supported by oath or affirmation, before a warrant shall issue. But, if a sworn complaint was in fact filed, showing probable cause, as the evidence here clearly shows, it is a sufficient basis for the issuance of a warrant, although the jurat of the officer administering the oath was not attached. In the case of James v. Logan, 82 Kan. 285, 108 P. 81, 136 Am. St. Rep. 105, it was held:

“If a declaration has in fact been made under oath, it is an affidavit, although no jurat be attached. The jurat is merely evidence that an oath was duly administered, and, in the absence of a jurat, the fact may be proved by evidence aliunde.”

It is next argued that, under the facts shown, no crime was committed; that the evidence discloses an entrapment and fraud perpetrated by Cothran and the officials, that the defendants were inveigled into the alleged offense under such circumstances, that there was no criminal intent as a matter of law and of fact, and that their acts do not constitute a crime; that the motion for an instructed verdict should have been sustained, citing Shouquette v. State, 25 Okla. Cr. 169, 219 P. 727.

The Shouquette Case involved a state of facts wherein the State Bankers’ Association employed as a detective or stool pigeon an ex-convict named Saunders to aid in discovering and entrapping bank robbers. Pursuant to some arrangement made between Saunders and Shouquette, the Bank of Sperry was robbed. The state contended that Saunders was a mere informer and decoy. The defendant contended that he was a chief actor and instigator, who initiated ánd planned the robbery. An instruction covering defendant’s theory was requested and refused by the trial court. This court, in reversing the case, held there was sufficient evidence under all the circumstances to require a submission of defendant’s theory to the jury. The rule of law announced in that case and cases cited in support is that consent to the taking of property by one in authority to give consent is a defense to the charge of robbery, larceny, burglary, and kindred crimes, even though the taker has no knowledge of such consent and intends to commit the crime.

The turning point in this class of cases is that a decoy may be used to detect or entrap a criminal, and as such may afford an opportunity for a criminal to commit a crime, and may be present apparently assisting in the commission of a crime, and such action on the part of the decoy will not constitute a defense. But, when the decoy first suggests, initiates, or induces the commission óf the crime, or, as it is sometimes said, “artificially propagates” the crime, and thereby lures an otherwise innocent person to aid and abet him, or where the decoy himself does some act essential to the crime charged, a sound public policy will not uphold a conviction. Shouquette v. State, supra, and authorities cited; U. S. v. Healy (D. C.) 202 F. 349; City of Chicago v. Brendecke, 170 Ill. App. 25; State v. Jansen, 22 Kan. 498; Crowder v. State, 50 Tex. Cr. R. 92, 96 S. W. 934; Davis v. State, 70 Tex. Cr. R. 524, 158 S. W. 288; State v. Piscioneri, 68 W. Va. 76, 69 S. E. 375.

Applying the rule stated to the evidence presented by the record, it is apparent that Williams proposed to Cothran the robbery to be done by himself and the defendants. Cothran, for the purpose of entrapment, consented, aided, and encouraged the others; that is, he furnished the opportunity, and the defendants and Williams carried out the criminal design initiated by Williams and defendants. The information charges the robbery of James, who knew nothing of the plan and never gave his consent that his property be taken. It was taken from him under circumstances containing all the elements constituting robbery. The court fully instructed the jury on the defendants’ theory. No reason is apparent why the judgment should be disturbed.

The case is affirmed.

BESSEY, P. J„ and DOYLE, J„ concur.


author: BESSEY, P. J.

text:
    L. E. WILLIAMS v. STATE.
    No. A-5253.
    Opinion Filed Dec. 4, 1926.
    (251 Pac. 100.)
    Mathers & Renegar, for plaintiff in error.
    G'eo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

This prosecution was by indictment,1 which, in substance, chárges that L. E. Williams, on the 16th day of June, 1923, did unlawfully, willfully, and feloniously, by means of fraud, and without the consent or knowledge of F. C. Bradberry, take, steal, and carry away from the person of Bradberry, a written instrument of the value of $50. This instrument is set out at length in the indictment, showing it to be a check for $50, payable to the order of Williams and signed by Bradberry, and that the taking and carrying away of the check by Williams was with a fraudulent and felonious intent, and appropriated its value to his own use; in short, the indictment charges a larceny by fraud.

The evidence on the part of the state shows that Bradberry, for some months, had been a porter at the Broadway Central Hotel in Oklahoma City; that he was charged in the county court of Oklahoma county with the offense of selling a half pint of liquor. Williams, who, up to that time, was a stranger to Brad-berry, went to Bradberry’s house and told him that he understood that he was charged with the illegal disposition of intoxicating liquor. Williams assured Brad-berry that he could cause the case to be dismissed for $200. At this conference, Bradberry gave Williams the check in question, for $50, which Williams was to use in bringing about the dismissal of the prosecution. In carrying out this arrangement, the proof shows that other payments were made by Bradberry to Williams, aggregating $150. On the day the case was set for trial, Bradberry employed another attorney. His trial resulted in a verdict of “not guilty."

Williams claims that this check and the other sums of money were paid to him for the purpose, and with the understanding that he (Williams) was to hire attorneys to defend Bradberry. It was shown that Williams had a number of conversations with a firm of lawyers— Wright and McGill, in which an indefinite arrangement was made with this firm to represent Bradberry. One of the members of this firm testified that he had had a number of conferences with Williams concerning the case; that a fee had been agreed upon, and that his firm expected to represent Bradberry; that he had urged Williams to bring Bradberry to his office for a conference, and to arrange for witnesses, and that no such conference ever took place; that, on the date set for trial, he went to the courthouse expecting to represent Bradberry, but found that Bradberry had employed another attorney. This attorney, also attorney of record in this case, claimed that he considered their firm had rendered some service for which they were entitled to compensation from Williams, who had previously informed him that Bradberry had paid him money to employ attorneys. This same firm of attorneys are the attorneys of record in this case.

From all that appears in the record, it seems to be a fair deduction that Williams may have refused to refund the money to Bradberry upon the advice of his attorneys in this case, and who claim to have represented Bradberry in the other case.

It would prolong this opinion unnecessarily to attempt to relate all the peculiar incidents disclosed in the record. The record is also remarkable for what it does not disclose.

Upon consideration of the whole record upon rehearing, it is the opinion of the court that the interlocking relationship of all the parties concerned and the attorneys makes it seem probable that a felonious intent upon the part of Williams to obtain this money under circumstances amounting to larceny by fraud is not sufficiently established. . Bradberry seems to have been an ignorant negro porter, who had no proper conception of court procedure or the propriety of employing an unofficial emissary to bring about the dismissal of the prosecution. On the other hand, the conduct of Williams and his attorneys was not above reproach; but, the inference is fair that Williams expected to use this money to employ attorneys, possibly expecting some personal advantage to himself.

The case is reversed, and remanded for a new trial.

DOYLE and EDWAEDS, JJ., concur.


author: DOYLE, J.

text:
    T. C. SHOCKLEY v. STATE.
    No. A-5638.
    Opinion Filed Dec. 18, 1926.
    (251 Pac. 514.)

      A. W. Anderson and D. E. Ashmore, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

On information charging that on or about January 23, 1925, T. C. Shockley did unlawfully have in his possession 90 gallons of mash, he was tried and convicted, and his punishment fixed at confinement in the county jail for 60 days and a fine of $100. To reverse the judgment rendered on the verdict, he appeals and assigns as error the admission of evidence obtained by an unlawful search of his home.

The state relied for this conviction on the testimony of Billy Boots and George Loots, deputy sheriffs, admitted over the defendant’s objection that it was obtained by an unlawful search. Their testimony was to the effect that they searched the defendant’s home about four miles west of Henryetta and found in an outhouse two barrels, containing mash fit for distillation.

Boots testified:

“I had a search warrant out of Judge Hinton’s court; he is a justice of the peace. We went to the barn, defendant was east of the house, probably 100 yards; I went down where he was and told him we wanted to look his place over, and he said it was all right to go ahead, and we did.”

George Loots testified:

“We went out there to search his place. I asked the defendant if he had any whisky or a still there at the place and he said, ‘No/ he didn’t. I went in the building, and he came up and asked me To go on and let him alone and not bother him.’ ”

The state rested, and the defendant moved for a directed verdict on the ground that all the evidence was obtained illegally and unlawfully.

„ The record shows, beyond a doubt, that no search warrant was served, as required by law, and the search of the defendant’s home was without authority of law, unless the defendant waived his constitutional rights.

The witness Boots testified that he made the search under authority of a search warrant, and that the defendant, after they went upon the place, said to “go ahead.”

Officer Loots testified that the defendant stopped him and asked him to go on and let him alone.

We do not think that the defendant waived his constitutional rights.

In Smith v. State, 34 Okla. Cr. 434, 246 P. 1109, we said:

“There is much conflict of authority as to what constitutes a waiver of defendant’s constitutional rights in search and seizure cases. We think the rule supported by reason and the weight of authority requires the state, where objection is properly made, to show that defendant waived his constitutional rights by freely and voluntarily consenting to the search. The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected by every court in the English speaking world, from Magna Charta down to the present, and is embodied in every Bill of Rights defining the limits of governmental power in our own republic.
“The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to enter and search the private premises of another for evidence of crime without a legal warrant procured for that purpose.”

And see Whitford v. State, 25 Okla. Cr. 187, 249 P. 430; Graham v. State, 31 Okla. Cr. 125, 237 P. 462.

The admitted acts of the officers show that they acted without authority of law.

It has been repeatedly decided by this court that evidence in liquor prosecutions, obtained by an unlawful search and seizure, and contrary to section 30 of the Bill of Rights, is inadmissible against the defendant, as being in violation of section 21 of the Bill of Rights, giving one accused of crime immunity from becoming a witness against himself. Committi v. State, 28 Okla. Cr. 380, 231 P. 316, and cases collated.

The judgment of the lower court is reversed and cause remanded, with direction to discharge the defendant.

BESSEY, P. J., and EDWARDS, J„ concur.


text:
    HARRY SIPES v. STATE.
    No. A-5762.
    Opinion Filed Dec. 11, 1926.
    (251 Pac. 511.)

      Matson & Mathers, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   DOYLE, J.

An information was filed April 4, 1925, in the district court of Carter county, charging that in said county on or about the 6th day of July, 1924, Harry Sipes did—

“feloniously buy and receive from one Abbott Brady, for the consideration of $100, certain personal property, to wit, an automobile of the reasonable market value of $100, which said property ‘Candy’ Renfro and Raymond Garrett had previously stolen from the owner thereof, whose name is to this informant unknown, as he, the said Harry Sipes, at the time he bought and received said property, then and there well knew the same to be stolen property.”

On April 15th a trial was had thereunder, the defendant was found guilty as charged, and his punishment assessed at imprisonment in the penitentiary for a term of four years.

In support of the contention of counsel for appellant that the judgment rendered on the verdict should be reversed, a number of errors are assigned and argued.

The following synopsis of the testimony will be sufficient to make clear the contentions made.

Homer (Candy) Renfro testified, in substance, as follows: That he had lived in Ardmore about 10 or 12 years; knew the -defendant, also Abbott Brady and Raymond Garrett; that on or about June 16, 1924, witness and Raymond Garrett sold to Abbott Brady a Ford coupe; that he and Garrett had stolen the car in Dallas about two days before they sold it to Brady; that the car was practically new; that Brady paid them $200 for the car; that witness signed a bill of sale and gave it to Brady, which he identified. Against the defendant’s objections, he further testified that they told Brady that it was a stolen car, and that they told him where they stole the car in Dallas; that he and Garrett had Brady paint the car for them.

Abbott Brady testified that he knew the defendant, also Renfro and Garrett; that on or about June 16, 1924, he bought a Ford c-oupé from Garrett and Renfro, and that they gave him a bill of sale, covering the car which he knew was executed under a fictitious name; that the defendant came in and told him “that their cars were stolen cars, and told him that he ought not to be trying to fool with them because he did not know enough.” Against the defendant’s objection, he further testified that he had a conversation with Garrett and Renfro about the time he purchased the car, in which they told him that it was a stolen car; that the defendant was not present at that time; that witness sold the car to Walter Martin, who worked for the Bomar drug store, for $375; that Martin became dissatisfied with the car, and “after Con Kiersey and Carl Holden got some cars back, one of which he had painted,” he looked for them to get the Ford coupé back, so he took it back from Martin; that he called the defendant on the telephone and afterwards talked with him, and that Sipes told him to park the car somewhere and tell him where it was parked, and he would get it; that he parked the car north of the post office and told the defendant where the car was and “he said that he would see me at the First National Bank and give me the money”; that he pointed the car out to the defendant, and afterwards went inside the post office and looked out the north door and the car was gone; that he met Sipes at the First National Bank, and Sipes paid him $100 for the car; that he turned the car over to the defendant about July 7th or 8th.

On cross-examination he testified as follows:

“Q. And that was the car you were informed against in this case? A. Yes, sir.
“Q. You have since pleaded guilty to receiving stolen property, and it was for receiving this same identical car, is that right? A. Yes, sir.”

On redirect examination, he testified that, just before he took the car back from Martin, he had a conversation with the defendant and told him that there had been a couple of cars picked up here, one of which had been stolen and which had been painted in his shop, and he was afraid they would take this car from Martin, and he wanted it where they could not find it, and the defendant said he could fix it so they wouldn’t know it.

It appears that witness Brady has never served the sentence imposed on his plea of guilty.

Ed Sandlin testified that he was connected with the First National Bank and was familiar with the deposit accounts, and he produced the deposit ledger showing the deposits by defendant for the month of July, and the checking account showing that on the 3d day of July, 1924, there was a check for $100 drawn against his account by the defendant; that there was no way of telling how that check was made payable.

At the close of the state’s case, the defendant moved the court to direct the jury to return a verdict of acquittal for the reason that the only evidence in the case that tends to prove the defendant guilty of the crime charged against him is that of the witness Abbott Brady, who, the evidence shows, is an accomplice, and that there is no evidence tending to corroborate his testimony.

The defendant testified that he lived at Ardmore, and in the month of July, 1924, he was there engaged in the business of buying and selling automobiles; that he never bought or handled a car from Abbott Brady; that he never gave Brady $100 for a car; that he knew nothing whatever about the car that was said to have been stolen by Renfro and Garrett.

It appears that the Ford coupé was never seen after •it was in the possession of the witness Brady.

At the close of the evidence, the defendant interposed a demurrer thereto and moved the court for a directed verdict, which motion was overruled.

The defendant submitted and requested the court to give an instruction on the law of accomplice testimony and requested the court submit the question, as to whether or not the witness Brady was an accomplice, as one of fact for the jury in a form approved by this court in the case of Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251. Exceptions reserved to the court’s refusal to give the requested instruction.

The court instructed the jury, in part, as follows:

“If you should find beyond a reasonable doubt that the goods, or Ford automobile mentioned in the information, were previously stolen from some other person, and that the defendant bought or received it from some other person or aided in the concealment of it, and that at the time he so bought or received it, or aided in the concealment of it, if you find that the defendant did so do, and that he knew at the time that it had 'been stolen and that such receiving on the part of the defendant was with a dishonest intent on the part of him, the said defendant, then you will find the defendant guilty, as charged in the information, and assess his punishment as the law provides.”

The term accomplice, as used in our Code, must be considered as meaning one culpably implicated in the commission of the crime of which the defendant is accused; that is, an associate, one who knowingly and voluntarily co-operates, or aids, or assists in the commission of the crime. Hendrix v. State, 8 Okla. Cr. 530, 129 P. 78, 43 L. R. A. (N. S.) 546.

Mr. Wharton, in hi's work on Criminal Ev. § 440, thus defines accomplice:

“One who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime."

In 3 Rice on Criminal Ev. par. 318, an accomplice is defined as:

“A person involved, either directly or indirectly, in the commission of a crime. To render him such, he must in some manner aid or assist or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other persons by reason of the criminal transaction.”

In Cudjoe v. State, supra, we said:

“When the question of an accomplice arises in the trial of a case, the general and accepted rule is for the court to instruct the jury on the law of accomplice testimony and leave the question as to whether or not the witness is an accomplice for the determination of the jury as a question of fact. But where the facts are not in dispute, or where the acts and conduct of the witness are admitted, it becomes a question of law for the court to say whether or not those acts and facts make the witness an accomplice. Where he is admitted to be such, or where the undisputed facts show him to be an accomplice, the court may so charge, without invading the rule that the court should not comment on the credibility of any witness.”

In this case, the testimony of the witness Brady is that he told the defendant that this was a stolen car. He further testified that before he took the ear back from Martin he had the following conversation with the defendant: “I told him that there had been a couple of cars picked up over here, one of which had been stolen and which had been painted in my shop, and I was afraid they would take this car from Martin, and I wanted it where they could not find it”—and that, in response to that, the defendant said: “He could fix it to where they wouldn’t know it.”

In the instruction given and above quoted, to which the defendant excepted, the court informed the jury that if they should find beyond a reasonable doubt that the Ford automobile mentioned in the information was previously stolen from some other person, and that the defendant bought or received it from some other person, or aided in the concealment of it, and that he knew at the time that it had been stolen, and that such receiving was with a dishonest intent on the part of the said defendant, then they will find him guilty as charged.

The testimony of Brady shows that, after advising with the defendant, he took the car back from Martin, and that the defendant was his associate, his coconspirator, his aider and abettor, in receiving the car from Martin, and in the concealment of it, and if the defendant under Brady’s testimony was a receiver of the stolen car, then Brady induced, aided, and encouraged the defendant to receive such property.

It follows from what has been said that the court erred in refusing to give the instructions requested. The only other question necessary to notice is the sufficiency of the evidence to support the verdict.

The information in this case was based and the conviction had under section 2113 of the Penal Code, which declares:

“Any person who buys or receives, in any manner, upon any consideration, any personal property of any value whatsoever, that has been stolen from any other, knowing the same to have been stolen, is punishable by imprisonment in the penitentiary,” etc.

On an information under this section the first thing to be proved is that the property, alleged to have been bought or received, was stolen. After the larceny has been proved, it becomes necessary to establish the fact that the accused received the stolen property, knowing it to have been stolen; guilty knowledge being an essential ingredient of the offense. Mullins v. State, 15 Okla. Cr. 347, 176 P. 765.

Assuming that the mere statement of the witness Renfro that he and Garrett had stolen a Ford coupé in Dallas, which they sold to the witness Brady, giving him a purported bill of sale, executed under a fictitious name, is sufficient proof of the corpus delicti. The only testimony in the case that tends to connect the defendant with the receiving of the stolen property is that of the witness Brady. He testified that he sold the Ford coupe that he received from Renfro and Garrett to Walter Martin; that, while the stolen car was in the possession of Martin, he told the defendant that Renfro had told him that it was a stolen car. There is no proof in the record that Renfro ever saw the car that Brady received from him after Brady bought it, nor is there any evidence from any witness directly to the fact that the defendant ever had possession of the alleged stolen car, except the mere inference from Brady’s testimony that he left the car near the post office in the city of Ardmore to be taken by the defendant. Nobody saw the defendant take the car, nor did any person ever see the defendant with the car, not even the witness Brady.

In the absence of some independent proof that the defendant ever came into the possession of the alleged stolen car, we are inclined to think that the evidence is insufficient to sustain a conviction.

There was no testimony tending to connect the defendant with the commission of the offense charged, except that of the witness Brady, which was tested by the inflexible rule of law that a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense. Section 2701. The testimony of the witness Brady cannot support a conviction.

For the reasons stated, the judgment of conviction is reversed and the cause remanded, with direction to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.


text:
    FRANK SMITH v. STATE.
    No. A-5850.
    Opinion Filed Dec. 11, 1926.
    (251 Pac. 507.)

      M. Bristow, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Frank Smith, plaintiff in error, here referred to as the defendant, was, by a verdict of a jury, found guilty of the illegal sale of one-half pint of whisky, with his punishment assessed at a fine of $50 and confinement in jail for 30 days.

Two young men, visiting strangers in Carnegie, claim they made inquiry about where they could get whisky and were referred to the defendant, whom they afterwards approached and the sale and delivery followed.

The exact hour of the commission of the offense was uncertain. A motion for a continuance was interposed on account of the absence of two witnesses, who would give testimony corroborating other testimony tending to establish the presence of the defendant elsewhere at a particular hour of the day. The court did not abuse his discretion in refusing this application, because the evidence sought was of cumulative nature and of uncertain probative force.

Two witnesses testified that they purchased this whisky from the defendant. There was evidence indicating that one, or possibly both, of the state’s witnesses were under the influence of whisky when first seen by the officers. This condition may have arisen from the consumption of the whisky here in issue, or liquor obtained from some other source. Be that as it may, the weight of the testimony was for the jury.

The defendant claims that evidence that should have been introduced in chief was withheld and introduced in rebuttal. Evidence received out of order will not work a reversal, where, if introduced in order, the result would probably have been the same.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    CLAUDE BENJAMIN McCLENDON et al. v. STATE.
    No. A-5302.
    Opinion Filed Dec. 18, 1926.
    (251 Pac. 515.)
    Hoyt & Butler, for plaintiffs in error.
    Geo. F. ¡Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiffs in error, hereinafter called defendants, were jointly tried and convicted in the district court of Dewey county for the crime of manslaughter in the first degree, and each sentenced to serve a term of 15 years in the state penitentiary.

The facts disclosed by the record are about as follows: The defendants are brothers, married men, each under the age of 40 years, living on adjoining farms near the town of Leedy. The deceased, W. H. Morrison, was a widower, 66 years of age, who lived near. On the afternoon of December 11, 1924, Morrison, for the purpose of leaving some mail, stopped at the home of defendant Claude Benjamin McClendon, and, upon invitation, ate supper there, and played cards later. He returned there on the morning of December 12th, as he states in his dying declaration, for the purpose of helping defendant butcher a hog. Apparently there was a jealousy on the part of this defendant because of' a suspicion of intimacy between his wife and deceased. According- to the dying declaration, this defendant began cursing and abusing deceased, and charged him with attempting to break up his home, and ordered deceased off the place. Deceased attempted to leave, and this defendant followed him into the section line. At this time defendant Stephen Alexander McClendon from his place saw some difficulty was occurring, and came up to where deceased and his brother were, and joined in the difficulty, and together they assaulted deceased, inflicting eight wounds on the head, some two to three inches long, apparently by striking him with rocks. Several of his ribs were broken, his side and part of his back bruised into a jelly-like condition, apparently by beating or kicking him. From the effects of these wounds Morrison died four days later. Before his death he made a full statement to his son, a man aged 33 years, and to his son’s wife, detailing the manner in which the difficulty occurred, which statement was admitted as a dying declaration. Several assignments are argued in the briefs. All have been considered, and those which are deemed material will be separately referred to.

Complaint is first made that the dying declaration was not admissible. Before the statement of deceased was admitted, the court, in the absence of the jury, took testimony as to the circumstances under which it was made, and, after determining its admissibility, submitted to the jury all the evidence, so they might properly weigh it. Upon the question of the statement having been made under a sense of impending death, the record shows the following:

“Q. Did he make any statement at thát time as to his condition? A. Yes, sir.
“Q. I mean with reference as to what he thought about whether he would survive his injuries or not. A. Yes, sir.
“Q. What did he say? A. Well when I first went in there, I says, ‘What is the matter ?’ and he said, ‘They have nearly killed me.’ I said, ‘Who?’ and he said, ‘Steve and Claud.’ I asked him if he was hurt very bad, and he said, ‘Yes, I thought I was dying a couple of times before you came.’ I took hold of him, and started to raise him up, and he said: ‘Don’t do that.’ He said, T can’t get up. I am dying right now.’ As soon as he moved he seemed to be in quite a bit of pain. * * *
“Q. Did you have any conversation with your father, you and your wife, or both of you? A. Both of us. He talked quite a bit that night, and that next morning until about 10 o’clock. He didn’t talk very much after Thursday at 10 o’clock.
“Q. Did he say anything with reference to your leaving him? A. Yes, sir.
“Q. What was his statement? A. Well, he says, ‘Don’t leave me.’ He says, ‘Stay with me.’ He says, ‘ I am going to die,’ and he called me once. He says, ‘Fan me.’ He says, T am dying.’ He says, T am gone.’ ”

It is not essential that there be an express statement that declarant is going to die or that he has no hope of recovery. If the circumstances, the nature and extent of the injuries, his evident danger, or the opinion of medical attendants, stated to him, or other circumstances, such as the length of time between the time of the statement and death, make it evident that he believed he could not survive, they are sufficient to make the declaration admissible. Under this rule, announced many times by this court, the statement was properly admitted as a dying declaration. Hawkins v. State, 11 Okla. Cr. 73, 142 P. 1093; Poling v. State, 12 Okla. Cr. 27, 151 P. 895, Ann. Cas. 1918E, 663; Allen v. State, 16 Okla. Cr. 136, 180 P. 564.

It is also argued that the court erred in striking the evidence as to whether deceased believed in a Supreme Being. When defendant Stephen Alexander McClendon was on the stand he was asked:

“Q. In your talk with Mr. Morrison was the question of religion or a Supreme Being ever discussed? * * * A. Yes, sir.
“Q. Did he ever tell you whether he believed there was a God? * * * A. He acknowledged there was not.”

Later the court said:

“Gentlemen of the jury, the court directs you not to consider the testimony of this witness with reference to what deceased said about his religious belief for the reason that under the Constitution of this state such evidence is not admissible. The Constitution and laws do not admit that character of testimony. * * *”

A dying declaration violates the general rule against hearsay evidence. It is admitted without the sanction of an oath and without opportunity for confrontation and cross-examination. It is an exception or special class of evidence, admitted by reason of necessity, since it frequently happens that no third person is present in a case of homicide as an eyewitness to the facts. In a sense, the declarant is a witness, and it is uniformly held that his evidence may be impeached the same as that of any other witness. At common law, where the absence of a belief in God and a future state of rewards and punishments rendered a witness incompetent, such absence of belief also rendered his dying declaration inadmissible in evidence. Most, if not all, of the states of the Union, however, by some constitutional provision expressly provide that no religious test of any kind shall be required. Hence it may be said that the competency or admissibility of a dying declaration is not affected by the religious belief or lack of religious belief of the declarant. State v. Hood, 63 W. Va. 182, 59 S. E. 971, 15 L. R. A. (N. S.) 448, 129 Am. St. Rep. 964; Worthington v. State, 92 Md. 222, 48 A. 355, 56 L. R. A. 353, 84 Am. St. Rep. 506; (notes) 1 R. C. L. p. 532, § 74.

The proof adduced, or attempted to be adduced, on this point is not in proper form. The answer of the witness states a mere opinion or conclusion, and was properly stricken by the trial court, although the wrong reason for striking was given. In 4 Encyc. of Ev. 1014, § 3, it is said:

“For the purpose of affecting the credibility of the declarations, it is competent to show that the declarant, because of his want of religioús belief, was not a person of such a character as.was likely to be impressed, with a religious sense of his approaching dissolution, and that consequently no reliance is to be placed upon what he said. * *

In 1 R. C. L. 548, § 97, it is said:

“The dying declaration of a person is simply a part of the evidence. * * * It is subject to discredit and impeachment by any competent testimony which impairs its value. * * * The oath or affirmation presupposes a belief by the one making it in that Superior Power which is clung to by all Christian people. As affecting the credit of any witness’ testimony it may be shown that he has no sense of the binding force of his oath or affirmation, because he does not believe in a Supreme Being. For the same reason such testimony is admissible as affecting the credit to be given by the jury to a dying declaration. * * * The dying declaration may be discredited by any testimony which would be permissible to discredit the testimony of the declarant, were he in court testifying. This being the case, the dying declaration may be discredited by showing that the declarant was a nonbeliever in God, and such testimony is for the jury to pass on, and to say to what extent it shall be allowed to affect the value of the dying declaration as evidence. * * * (Authorities cited.)”

Even if the proof or offer of proof had been in the proper form, in the light of all the evidence, the rejection of this evidence would not require a reversal.

After verdict, a motion for a new trial was filed, along with the other assignments of error set out, that the defendant Claud Benjamin McClendon, during the progress of the trial, and while his counsel was arguing to the jury, was absent from the courtroom to answer a call of nature, and was denied his legal right to be present at every stage of the trial. This was supported by an affidavit of Fred L. Hoyt, one of the attorneys for defendant, and also by an affidavit of a deputy sheriff. It appears that defendant Claud Benjamin McClendon requested to be taken out of the courtroom, and, without notifying counsel or the trial judge, he was taken to a toilet, and was absent about three minutes, and returned into court. The affidavit does not disclose whether or not his counsel at the time knew of this absence. Section 2641, Comp. Stat. 1921, is in part:

“If the indictment or information is for a felony, the defendant must be personally present at the trial, but if for a misdemeanor not punishable by imprisonment, the trial may be had in the absence of the defendant. * * *”

As a general rule, a defendant on trial for a felony must be present throughout the trial, and is not permitted to waive his presence. Humphrey v. State, 3 Okla. Cr. 504, 106 P. 978, 139 Am. St. Rep. 972; Ex parte Lyde, 17 Okla. Cr. 618, 191 P. 606; Cole v. State, 35 Okla. Cr. 50, 248 P. 347. This requirement is for the benefit of the defendant that he may be accorded his constitutional and statutory rights, and it is said to be against public policy, and contrary to the dictates of humanity, to permit an accused to waive the advantage his presence may afford him. There are, however, exceptions to the literal enforcement of his right under all conditions. Thus it is generally held that, Where the jury during a criminal case is permitted to view the scene of the crime, although such view is a part of the trial, and is the taking of evidence, the presence of defendant is not essential. 16 C. J. 816, § 269. Many authorities are cited in support of this exception. A great many of the states hold in effect that in a case not capital, if the defendant has been released on bail, and absconds, or is voluntarily absent after his arraignment and plea, the trial may proceed, and the verdict be received in his absence. Numerous authorities also hold that a temporary absence from the courtroom for a short time during the trial, even in a capital case, is not such an invasion of a defendant’s rights as to be ground for a reversal. Several of the following cases are very similar to this case: 16 C. J. 817, § 2071; People v. Bush, 68 Cal. 623, 10 P. 169; People v. Miller, 33 Cal. 99; Van Houtan v. People, 22 Colo. 53, 43 P. 137; State v. Rubaka, 82 Conn. 59, 72 A. 566; State v. McGinnis, 12 Idaho, 336, 85 P. 1089; Doyle v. Commonwealth, 37 S. W. 153, 18 Ky. Law Rep. 518; State v. Ricks, 32 La. Ann. 1098; State v. Gonce, 87 Mo. 627; State v. Bell, 70 Mo. 633; State v. Grate, 68 Mo. 22; People v. Bragle, 88 N. Y. 585, 42 Am. Rep. 269; Commonwealth v. Simon, 44 Pa. Super. Ct. 538.

To permit the short absence of one of the defendants from the courtroom during the argument of his counsel to work a reversal would be to permit him to take advantage of his -own wrong. Certainly, if the attention of the trial judge had been called to the desire of the defendant to withdraw, the proceedings would have been suspended. His leaving under the circumstances he did without the knowledge of the counsel for the state and the trial judge, although at his request he was accompanied by a deputy sheriff, puts him in the same position as if he had escaped from the courtroom for that period of time.

Upon a consideration of the whole case, we believe defendants had a fair trial, that the issues of law were fairly submitted, and the verdict and judgment is amply sustained by the evidence.

The case is affirmed.

BESSEY, P. J., and DOYLE, J., concur.


text:
    MAY VICE v STATE.
    No. A-5637.
    Opinion Filed Dec. 18, 1926.
    (251 Pac. 509.)

      D. E. Ashmore and A. W. Anderson, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that on May 21, 1924, May Vice did have in her possession one half pint of whisky and four gallons of Choctaw beer with the unlawful intent to sell the same. On the trial the jury returned a verdict of guilty as charged and assessed the punishment at a fine of $250 and confinement in the county jail for 90 days. To reverse the judgment appellant assigns as error the insufficiency of the affidavit upon which the search warrant issued and the invalidity of the search warrant under which all the evidence offered by the state was obtained. The state relied for this conviction on the testimony of George Luttes and William Boots, deputy sheriffs, admitted over defendant’s objection that it was obtained :by an unlawful search.

To understand defendant’s contention it is necessary to refer to the evidence.

Officer Luttes testified:

“I went into the house. The children were in the kitchen. I asked them where their mother' was, and they said in the other room. I went into the room where Mrs. Vice was, and I told her I wanted to look the place over, she said, ‘Go ahead.’ I had a search warrant but she didn’t require it. I found a pint bottle about half full of whisky in the buffet drawer and a four-gallon stone churn full of Choctaw beer in the kitchen. I judge from the smell that •it was intoxicating. I don’t think the search warrant was mentioned.”

William Boots testified:

“I didn’t go at the same time that Mr. Luttes did; he went there ahead of me. I made the affidavit for the search warrant. Mr. Luttes had the search warrant; I didn’t know whether we used it or not.”

Witness identified the affidavit made and verified by him on which the search warrant was issued, which, omitting formal parts, reads as follows:

“Before me, a justice of the peace in and for said county, personally appeared C. W. Boots, who, being duly sworn, states: That he has probable cause for believing and does believe that certain quantities of intoxicating liquors are being kept for the purpose of sale, barter, giving away, and otherwise furnishing, and are being sold, bartered, given away, and otherwise furnished unlawfully by May Vice in the residence used and occupied by her as a residence located on South Fourth street, in the city of Henryetta, said intoxicating liquors consisting of whisky in bottles and barrels, wine in bottles and barrels, beer in jugs, bottles and barrels, alcohol in casks, jugs, bottles, and barrels and other vessels, containing intoxicating liquors. Wherefore your affiant prays that a warrant issue for the search of said premises and for the seizure of said intoxicating liquors. [Signed] C. W. Boots.”

At the close of the evidence for the state defendant asked the court to direct the jury to return a verdict of acquittal, which the court refused to do.

Section 39, art. 2, Constitution, providing that no warrant shall issue but upon probable cause, supported by oath or affirmation, requires the affidavit to state facts sufficient to satisfy the magistrate that probable cause exists for issuing the warrant.

In Whitehead v. State, 28 Okla. Cr. 193, 230 P. 291, we held that a search warrant predicated on mere information and belief is insufficient. There must be a showing under oath setting out facts showing probable cause.

Under the statute (section 7013, C. S. 1921), no officer is authorized to search a private residence, occupied as such, unless it or some part of it is used as a store, shop, hotel, boarding house, or place of storage, unless such residence is a place of public resort; and no magistrate in this state has the power to issue a search warrant to search a private residence unless it is made to appear that such private residence comes within the exceptions stated in said section. Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Williams v. State, 30 Okla. Cr. 39, 234 P. 781; Peard v. State, 32 Okla. Cr. 95, 240 P. 158.

There are other errors discussed in the brief, but they may be covered by the general observation that an officer seeking the enforcement of one law should not violate another to accomplish his purpose. The constitutional rights of the defendant and the established law for enforcing those rights must be respected.

It follows from what has been said that the search and seizure shown in this case was an invasion of the constitutional and statutory rights of the defendant As evidence obtained by an illegal search is not admissible, the trial court should have excluded such evidence from the jury, and should have sustained the defendant’s motion for a directed verdict on the further ground that if the testimony was admissible it was insufficient to sustain the offense charged.

Judgment reversed, with directions to dismiss.

BESSEY, P. J., and EDWARDS, J., concur.