text:
    BILL BROWN v. STATE.
    No. A-5971.
    Opinion Filed Feb. 2, 1929.
    (273 Pac. 1018.)

      Sandlin & Winans, for plaintiff in error.
    George Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, for convenience referred to as the defendant was convicted in the district court of Jefferson county, on a change of venue from Stephens county, of the crime of rape in the first degree, and his punishment assessed at imprisonment in the state penitentiary for a term of 20 years. Upon this appeal from the judgment rendered in pursuance of the verdict, various errors are assigned, among which is the overruling of appellant’s motion to have the case set for trial September, 1925, term of court. This question was thoroughly considered by this court in the case of Sledge v. State, 40 Okla. Cr. 421, 269 P. 385, a companion case, and decided adversely to the defendant’s contention. Following the opinion in the Sledge Case, we hold that the contention is without merit. It is not contended by the state that this defendant, Bill Brown, actually committed rape on the person of the prosecuting witness, Ethel Srey-was, but that he aided, abetted, encouraged, and knowingly permitted Harry Sledge to commit rape upon the said prosecuting witness.

The following brief statement of the facts, which are gathered from the evidence, will answer our consideration of the remaining assignments: Lillie Sreywas, a witness for the state, testified in substance:

That she was 20 years of age, and had lived in the city of Duncan, Okla. for about 4 years, was working for Dr. McGregor, and had worked for him about 3 years. That on the 21st day of February, 1925, she lived with her two sisters, Ethel and Odie. That Ethel and Odie were 18 and 15 years of age, respectively. That on the 21st day of February, 1925, she saw the defendant, with Harry Sledge and Ted Elliott, driving west in a Ford coupe on Main street of Duncan. That Elliott waved at her and her sisters. That defendant and the boys with him parked the car on Main street near the Ruth Hospital. That she and her sisters went up to the car. She did not know any of the boys, except Elliott. That she and her sisters were asked by the boys to go riding. That Harry Sledge was introduced to her and her sister. That defendant was introduced as Bill Smith. That she and her sisters did not go riding with the boys at the time, as they had to do some shopping.

That it was about sundown. That, after shopping in town, she and her sisters went home, and in about 30 minutes defendant and the other boys came to her home. The boys did not come in the house, as the girls had only one room, and the old lady with whom they roomed did not let them have company. She did not go riding with the boys, because they were strangers to her, but that her sister Ethel went. That Elliott and Sledge came to the porch and talked, but defendant remained in the coupe about five feet distant from the porch. She remained at home, and the others went to Harry Sledge’s house. She did not see any of the parties after they left in the coupe until Elliott came back alone, and asked her to go with him. She did not go with him, and he left, going toward town. After Elliott left she dressed and went to the Sledge farm north of Duncan to look for her sister. That Charles Beck-indorf and Odie went with her. When she arrived at the Sledge farm, she saw Harry Sledge and defendant and the car in which Ethel had left home. Sledge and defendant came to the car in which witness was seated. She asked where her sister Ethel was, and that Sledge replied, “You have no sister here.” That Ethel had left with Elliott. In about one hour after she left the Sledge farm her sister was brought home in the car in which she had left. Bill Brown, Ted Elliott, and Bill Morrison and Ethel were in the car when it arrived at her home. Ethel could not walk, and her throat had finger marks and scratches, and there were bruises on the back of her head, and one of her teeth was broken. Witness called Drs. Long, Bartley, and McGregor to see her sister.

Ethel Sreywas, as a witness for the state, testified in substance; She was 18 years of age last November. She met defendant February 21st on Main street of Duncan in company with Harry Sledge and Ted Elliott. She had never met any of the boys prior to that time, except Elliott. She was living with her two sisters on North Seventh street in Duncan. She had been doing housework for a living for 2 years. She and her sisters met the boys about 7:30 Saturday afternoon. That Ted Elliott raised his hand and spoke to them. The boys parked the car in which they were riding. The girls and boys talked for a while, when Harry Sledge was introduced, and the defendant was introduced as Bill Smith. The boys asked the girls to go riding, but the girls could not go, as they had some shopping to do. The boys came to the house on North Seventh street. That it was raining that evening. Defendant took no part in the conversation at the house, but remained in the car. Witness went with the boys in the car to get Bill Morrison, another young lady who was staying about six blocks away with a Mrs. Ford. They were in a Ford coupe and witness sat in Elliott’s lap. When the Morrison girl joined the party, defendant was introduced as Bill Smith. Miss Morrison got in the coupe and went with the party to get another girl whose name was Fern. Harry Sledge got out at Fern’s house, but came back and got in the car. Defendant drove the car to Fern’s house, and the Morrison girl sat in Harry Sledge’s lap. When Sledge got back in the car, he took the wheel and drove the car down Ninth street to Spruce in the north part of town.

Sledge got out at Spruce for about 15 minutes to get whisky, but that he did not get any. Sledge got back in the car, and drove to Eighth street, and stopped again, and got out, and was gone several minutes, when he came back and got in the car, and promised to take the girls home. Sledge drove the car north on Eighth street instead of taking them home. Sledge drove the car out to the Sledge farm, which is about a half mile northeast of the city limits. When they arrived at the Sledge farm, Harry Sledge and Ted Elliott got out and went in the house, and were gone about five minutes, when Elliott called Bill Brown and told him to get out and come in and bring his girl. That all the parties went in the house. The house has a front porch, and faces west. Witness was in a room with Ted Elliott and defendant for a few minutes when she heard Bill Morrison scream, and witness asked Elliott to go in and help the Morrison girl, and asked defendant to take witness home. Defendant was not in the room where the screaming was, and had nothing to do with it. Defendant told witness that if she went in there she would get her head knocked off. The screaming was in the front room. Defendant then got up and started out and said he would take witness home. At that time witness and defendant were in the middle room, and the other parties were in the front room. There was a gas light in the middle room, but no light in the front part of the house. There were three cots in the middle room. Witness attempted to follow him, but Harry Sledge shoved her back. Defendant went into the front room. Harry Sledge shoved witness back on the floor. Sledge knocked her down and said, “People think I am so> mean and bad, I will just carry out what they think.” Witness told Sledge that she had done nothing to him, and asked him to take her home. About that time she heard a car drive away, and Sledge turned off the light, and said that he did not want any one from the rig to see witness and Sledge together, and further told witness that all the parties had gone, and that witness was at his mercy. “He just grabbed me around the waist and threw me on the cot; said, ‘Come over here and love me,’ and I said I would not do it, and he said he would show me. I cried and bit him on the hand and cheek, and commenced screaming; just as soon as he threw me on the cot. I think I struggled with him about 30 minutes. I screamed every time he turned my throat loose; I screamed about six times. He was choking and biting me in the face. He hit me with his fist and cussed' something awful. I became exhausted. When I could not do anything else I reached up and bit him on the face. He beat my face up until it was black and blue all over. This place here (pointing) was bleeding, and my face was a bloody mass. He accomplished his purpose and had intercourse with me; I resisted with all my strength. After he had accomplished his purpose Bill Brown was standing looking in the window, and Harry said, ‘Come on in, Bill’; I don’t know what Bill said. I was sitting on the side of the cot by this time; had just raised up; just after that I was crying. Harry said ‘Come on and get the blood off of you, we won’t go home until morning.’ We went into the kitchen and lighted a light, and I went in and got an old dirty towel and started washing the blood up.” The first person that came in was Ted Elliott; after Bill Brown and the Morrison girl came in.

Witness further stated that the other parties talked to her about the affair and asked her to explain to her relatives and friends they had a car wreck; that the car drove up during the conversation, and Harry Sledge and defendant went out immediately and left witness and Miss Morrison in the room together. The defendant did not take any further part in the conversation. 'After that witness was taken home. On the way home witness said Miss Morrison, Elliott, and defendant urged her to explain the affair as a result of a car wreck.

On cross-examination the witness stated she had known Ted Elliott before that night, and knew Harry Sledge when she saw him, but did not know Bill Brown, and did not know whether he was trying to conceal his name or not. When they were sitting in the laps of the boys going down the street, they did not get alarmed, but, when Elliott told them the boys were looking for whisky, she wanted to be taken home, and Elliott promised' to take her home. She was in three or four blocks of home when driving on Eighth street. Her sister came out to the Sledge farm and she did not make her presence known because some one closed the door in front of witness when witness started out. She did not call to her sister because she did not have strength. Her sister was talking in a loud voice. There was no one in the room except Ted Elliott and Miss Morrison. The defendant was not present during the assault and mistreatment of witness, and defendant did not lay his hand on witness that night. Witness did not hear defendant say any word of encouragement to Sledge during the affair. Witness stated she got out of the car and went into the house voluntarily. She did not know the house was vacant before she went in. She thought they were going to the Sledge home in the city of Duncan. She was only in the room a few minutes with Sledge when she heard the car leaving, and Ted went to town. Sledge talked to her a few minutes before he turned the light out. Sledge shoved her against the wall before Elliott went to town, while Elliott was still on the porch. Witness did not scream, because Sledge talked nice to her. Bill Morrison in substance testified as to where she got with the defendant and the other parties that night; that she got in with them and drove to the Sledge farm; that she went into the house, and Sledge came in behind and closed the door; that she asked him to take her home, and he got sore and began choking her, but released her when Elliott came in; that a car drove up about that time, and Sledge went out of the room. “That defendant and I were sitting there and talking about going home when I heard something fall, and then just a minute, why I heard Ethel scream; I asked Bill Brown to go in and help Ethel; he did not want to go. I wanted to go, but the defendant kept me from going. He held me and kept me from going into the room, or going to the rig or calling them; he wouldn’t go himself. Bill refused to let me stop the cars that were passing, and shortly thereafter Ted came up. Ted had taken the car and gone to town. Shortly after Ted left I heard something fall in the room and Ethel scream; Ethel was in the house at the time and the door was closed. I was sitting on the porch in the swing with Bill Brown. Ethel screamed continuously for about 20 minutes. I begged defendant to go in there, but he said he was afraid of Harry Sledge. The defendant would not let me do anything. Before defendant went around to the window he made me promise I would sit in the swing until he could see if he could do anything. I got up and started to the rig, and he got hold of me and made me go back to the porch.” The testimony further discloses that, after Ted Elliott returned from the city of Duncan, it was discussed by the parties in the room that it should be reported that the prosecuting witness, Ethel Sreywas, received her injuries in a car wreck. Two or three doctors called as witnesses testified as to the condition of the prosecuting witness.

The defendant called as a witness Ted Elliott. He detailed in substance, the same as the state witnesses, the meeting of the girls in town, and what occurred up to the time they reached the farm; except Elliott denied that the girls asked to be taken home prior to the time they reached the Sledge farmhouse. Witness testified that, when they reached the farmhouse, there were lights in the house; that Sledge invited them to get out and come into the house, .and they went into the middle room; that a car came up and defendant went out to the car. Sledge and Miss Morrison went into the front room. Defendant returned to the house, and witness Elliott borrowed the car to go back to town after Lillian Sreywas and some cigarettes. Defendant came out and gave him the keys to the car. When Elliott left, defendant and Miss Morrison sat down in the swing. Witness stayed possibly five minutes at Lillian Sreywas’ home, returning to the Sledge farm within a short while. When he returned, he found the defendant and Miss Morrison still in the swing. Witness went through the front room into the middle room, and on back to the kitchen, where Ethel and Harry were. Later they all assembled in the middle room. Ethel began crying. Miss Morrison was talking to her. Witness asked how it all happened, and Sledge replied that “she tried to eat me up and I knocked her loose.” A car came up at the time, and Harry left the room. “We all stayed there about an hour discussing the affair,” when the defendant and witness Elliott took the girls home, Sledge staying at the farm. On the road it was discussed as to reporting the affair as a car wreck.

Harry Sledge, called as a witness for the defendant, after detailing the meeting of the girls in town, and driving to the farmhouse, stated in substance that he and Bill Morrison went into the front room, and that he loved and hugged her, but she did not scream. Elliott came in the front room, and later defendant came in. Elliott stated he was going to town to get Lillian Sreywas and some cigarettes. Sledge said he did not shove the Sreywas girl down; she was sitting on a cot on the north side of the room. He did not have a conversation with any of the parties there until after the incident had occurred. “I walked in the room'and she was sitting on a cot on the north side of the room. I sat down on the south side of the room on a cot. She walked over and put her arms around me, and I put my arm around her and started hugging and kissing her, and’ got up and turned off the light, and I had intercourse with her, and she bit me and I knocked her loose; she said I was hurting her, and I said I was going to turn out the light, some one might see us. She stayed on the cot until I came back and sat down there. After it was over I saw Bill Brown come to the window, and I said, ‘Come on in, Bill’; he was at the window; he turned and walked off. There was no understanding among any of us that we would go to the Sledge farm. Neither Ted Elliott or the defendant knew I was going to drive out to the farm. I first spoke to Bill Morrison about it and she did not object.”

The defendant, as a witness in his own behalf, detailed about their getting together on the evening of the trouble; that Elliott wanted the car to go to town to get Lillian Sreywas and some cigarettes, and witness let him take the car. After Elliott had gone, Miss Morrison came and sat on the porch with him. Elliott was gone about 10 or 15 minutes. During that time defendant’s attention was attracted by the scream or yell back in the house. They had been sitting in the swing about five minutes before they heard the scream. “I only heard the scream once; I got up and walked around to the window. Miss Morrison stated that Sledge was beating the girl up, and I went around to see what she was doing; there was no light in the room; the gas fire was turned off; I could hear them talking, but could not tell what they were saying, it sounded like an argument. Harry hollowed out and said ,‘Come on in, Bill.’ Ethel was sitting on the side of the cot, and, when Harry asked me to come in — why I did not think — I did not know — didn’t think I had any business in there — didn’t think there was anything wrong, and went back and sat down in the swing; Bill Morrison went around to the window as I did; she did not say anything to me at the window, nor did she tell me to go anywhere. I did not put my hands on her or keep her from going anywhere. She did not say anything about me going to the oil rig. Miss Morrison did not try to stop the passing cars or to go out to them. There wasn’t anything mentioned that evening, there was no understanding between Harry Sledge and myself that we would take the girls to the farmhouse or any other place. I did not know at the time. Ted came back and went into the house that Harry had mistreated this girl in any way; I did not have any understanding at any time to mistreat this girl, or let any one mistreat her.”

The foregoing is all of the testimony that we deem necessary to set out for the purpose of reaching an opinion in this case. The record in this case is voluminous, and defendant has filed a brief of more than 200 pages, fully discussing each of the assignments which he deems sufficient to secure a reversal of the case, and urges with great force that the trial court committed error sufficient to entitle him to a reversal. The Attorney General earnestly insists that an examination of the record will clearly show that no error was committed; that the court properly instructed the jury as to the law; and that the testimony is sufficient to sustain the verdict. The record in this case discloses a peculiar condition, of facts. We find two ladies upon invitation getting into a car with the defendant and two other young men, going to the house of another young lady in order to get her to join them in a drive. When she does not go with them the two young ladies and the three young men, all riding in a Ford coupe, the two girls sitting on the laps of the men, driving out to what is spoken of as the Sledge country home; Harry Sledge gets out and goes into the house; Ted Elliott gets out of the car, and, upon invitation of Harry Sledge, the entire party get out and go in the house. After they had been in the house a few minutes, Elliott borrows the car from defendant arid stated he was going back to town to get Lillian Sreywas, a sister of Ethel, and some cigarettes. Elliott left Bill Morrison and Bill Brown, the defendant in this case, sitting in a swing on the front porch, and Harry Sledge and Ethel Sreywas in the house. Shortly after Elliott left the house Bill Morrison claims she heard something fall, and then she heard a scream, and implored Bill Brown to go to Ethel’s rescue; that Ethel kept screaming several minutes; that, after the screaming ceased, Bill Brown went around to the window to see what was going on, but required Bill Morrison to promise him she would not leave the swing to, go in the house, or to the drill rig that was in operation near by. Defendant denies the statement of Bill Morrison, but admits he went to the window, and that Harry Sledge called to him to come on in. Ethel Sreywas says Harry called to him. This was after the alleged offense of rape had taken place. Defendant did not go into the house when called by .Sledge.

The record shows that Elliott soon returned to the house, and went in and demanded to know what had taken place, and then it was that Harry Sledge told him what had taken place while he was making the trip to town. All agree that it was discussed that this incident should be reported as a car wreck in order to not injure the reputation of the outraged witness, Ethel Sreywas. The girls insist that from the time they started out from town they asked the boys to drive them back home, and they would hot do it. They were all young people, and it is clear from the record that Harry Sledge intended to carry out what he carried out when he drove the parties out to the place where the alleged offense occurred. Defendant denies any knowledge of the intention of Harry Sledge, and, in considering the question of his guilt or innocence, it is necessary to consider his actions at the time the screams were heard in the room and his effort to rescue the girl, or to find out what was going on. His action, as disclosed by the record, clearly indicated, whatever the trouble may be, he had no desire to interfere, or to prevent Sledge carrying out whatever purpose he had in mind. The testimony is sufficient to warrant the jury in finding that Harry Sledge, forcibly and against the will of Ethel Sreywas, raped her. The question then to be determined in this case is: Is the testimony sufficient to show that this defendant, by his actions or words, aided, abetted, or assisted Harry Sledge in carrying out his purpose in raping Ethel Sreywas? The defendant insists that the facts and circumstances are consistent with his innocence, and that the trial court should have instructed the jury to return a verdict in favor of the accused, and that the verdict is not supported by sufficient evidence — citing Crabtree v. State, 18 Okla. Cr. 125, 193 P. 1005, and many other cases.

A careful examination of the authorities cited by the defendant show that the facts in the cases cited are not similar to this case. As disclosed by the record, Sledge, who is alleged to have committed rape upon the person of Ethel Sreywas, was in the house with her when Elliott returned to town and defendant had Bill Morrison out on the porch, and they sat down in the swing, it being in February, and the proof discloses there had been some rain that evening. All facts and circumstances indicate that the defendant was keeping Bill Morrison out on the porch in order to give Harry Sledge an opportunity to commit the crime he was alleged to have committed, and the fact that he did not go into the house when he heard the girl scream, and did not want Bill Morrison to go in or to go to the drill rig, are circumstances strongly indicating that the defendant knew what was going to happen, and his failure to go in the house was not such conduct as is expected of a law-abiding citizen, when he heard the screams of a young girl who was in the room with a man and the lights were turned out. In Blanck v. State, 14 Okla. Cr. 339, 169 P. 1130, the court said:

“This court has repeatedly held that the least degree of concert of action or collusion makes the act of one conspirator the act of all, and each conspirator is liable for the act of each other conspirator done in pursuance of such conspiracy.” Holmes v. State, 6 Okla. Cr. 542, 119 P. 430, 120 P. 300; Ex parte Hayes, 6 Okla. Cr. 321, 118 P. 609; Wishard v. State, 5 Okla. Cr. 611, 115 P. 796.

We hold that the evidence was sufficient to warrant the court in overruling defendant’s motion for a directed verdict of not guilty. This court has repeatedly held that, where there is competent evidence, though conflicting, it was the province of the jury to pass upon the same under proper instructions from the court.

The defendant further urges that the court committed an error of law in his instructions to the jury, and erred in refusing to give certain requested instructions by the defendant. After a careful examination of the instructions given in their entirety, we find they correctly state the law applicable to the facts contained in the record, and for this reason the court did not err ip refusing to give instructions requested by the defendant. The instructions requested by the defendant are substantially covered by the instructions given by the court, and the refusal of the court to give the requested instructions did not prejudice defendant.

It is next urged by the defendant that the county attorney, in his closing argument, made statements preju-di'cial to the rights of the defendant, and that the statements made by the county attorney in his closing argument deprived the defendant of a fair and impartial trial. A careful reading of the record discloses that most of the argument complained of was not objected to by the defendant, and no motion was made by the defendant to. exclude the argument objected to. Considering all of the testimony in the case, w'e hold that the argument presented by the county attorney did not prejudice the rights of the defendant. It is urged that the punishment assessed is excessive, unreasonable, and appears to have been given under the influence of passion and prejudice, which has been brought about by the conduct of the county attorney representing the state. We hold that the testimony is sufficient to warrant the jury in finding the defendant guilty. However, it is both the spirit and the intention of the law that the punishment shall be imposed in criminal cases for the protection of society and the reformation of the criminal, and sentences should be imposed in keeping with the spirit of the law. Spears v. State, 10 Okla. Cr. 563, 139 P. 841; Williams v. State, 19 Okla. Cr. 307, 199 P. 400.

The evidence is sufficient to sustain the verdict, the instructions were fair to the defendant, and substantially stated the law. In view of the facts and circumstances shown by the record, we are inclined to think that the ends of justice will be properly met by a modification of the term of imprisonment from 20 years to 15. The judgment and sentence herein will therefore be modified to 15 years in the penitentiary, and, as thus modified, the judgment is affirmed.

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


source: Caselaw Access Project

author: EDWARDS, P. J.

license: Public Domain

text:
    W. M. TAYLOR v. STATE.
    No. A-6317.
    Opinion Filed Feb. 2, 1929.
    (273 Pac. 1014.)
    J. Q. A. Harrod, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the county court of Canadian county on a charge of having the unlawful possession of intoxicating liquor, and was sentenced to pay a fine of $500 and to serve 90 days in the county jail.

Judgment was rendered in May, 1926. The appeal was lodged in this court in July, 1926. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted. We have examined the record and find no jurL~-dietional nor fundamental error. The evidence reasonably sustains the judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    Ex parte JOHN Q. ADAMS.
    No. A-6993.
    Opinion Filed Feb. 9, 1929.
    (274 Pac. 485.)
    See, also, 39 Okla. Cr. 384, 265 P. 147.
    John Q. Adams, in pro. per.
    Edwin Dabney, Atty. Gen., for respondent.
   DAVENPORT, J.

This is an original proceeding in

habeas corpus brought by the petitioner, John Q. Adams, in his own person. The petitioner alleges that he is unlawfully restrained of his liberty by the warden of the state penitentiary; and that the said warden holds the petitioner by reason of a judgment from Stephens county, Oklahoma, which petitioner alleges is void for want of jurisdiction of the court to render the same. The return of the warden of the penitentiary shows that he is holding the petitioner under and by virtue of a commitment issued on the 18th day of December, 1922, from the district court of Stephens county, Oklahoma.

Petitioner in support of his allegations refers to the testimony filed in a former case, No. A. 5069 (see 27 Okla. Cr. 322, 227 P. 844), to show that the district court of Stephens county was without jurisdiction to enter the judgment it did against him, and asserts that the judgment is void/ and that he is entitled to his discharge.

By referring to the testimony filed in No. A-5069, we find a certified copy of the indictment which is regular upon its face; the commitment attached to the return of the warden herein is regular in form. The record of the court clerk of Stephens county fails to show that the testimony in the trial of the defendant upon which the sentence complained of and alleged to be void is based was reported and transcribed. This court, where the record is regular, must hold that the presumption is the court did its duty, and that the testimony received in the trial of the case was sufficient to show jurisdiction in the trial court, and to sustain the judgment and sentence.

The record of the trial of the defendant in Stephens county as presented being regular, it cannot be impeached or contradicted in a habeas corpus proceeding. In re Coyle, 4 Okla. Cr. 133, 111 P. 666.

The writ of habeas corpus cannot take the place of a writ of error or of an appeal. Ex parte Cranford, 3 Okla. Cr. 190, 105 P. 367; Ex parte Wood, 21 Okla. Cr. 252, 206 P. 541.

The writ is therefore denied.

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


text:
    Ex parte A. H. BALES.
    No. A-7276.
    Opinion Filed Feb. 9, 1929.
    (274 Pac. 485.)

    Mathers & Mathers, for petitioner.

      Edwin Dabney, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges that he is unlawfully restrained of his liberty in the county jail by the sheriff of Oklahoma county; that the cause of said restraint is that a prosecution for murder upon a preliminary information was instituted before a justice of the peace of Oklahoma City and petitioner was held thereunder without bail; that the prosecution attempted to be carried on against him is under the provisions of chapter 2, Session Laws 1923, and that the same is unconstitutional, and the restraint of petitioner therefore illegal.

Chapter 2, Session Laws 1923, is as follows: “Section 1. Any person who sells, gives away, or otherwise furnishes any liquor, preparation or compound, for beverage purposes, and which results in death, shall be guilty of murder.”

The preliminary complaint alleges that petitioner, on a named date, did sell and furnish to one E. J. Vernier certain intoxicating liquor, to wit, whisky, for beverage purposes, and which whisky so furnished resulted in the death of said Vernier.

Twenty-two reasons are assigned why this act is unconstitutional and void. Various of these reasons require no discussion. Several of them, however, are directed to the contention that this act is vague and uncertain and is an attempt to make, what might be an entirely innocent act, criminal. The constitutionality of this statute was presented to this court in case of Ex parte Lucas, 33 Okla. Cr. 407, 243 P. 990, but that case was disposed of on a question of jurisdiction and the constitutionality of the act was not expressly determined. The court did say, however, that it would require a construction in the nature of judicial legislation to make the act effective, and that:

“As the statute now reads, if it were strictly construed, one who sold to another sweet cider might be guilty of murder. One might suffer death from drinking too much coffee, Coca-Cola, or buttermilk. It would be a cruel incongruity and injustice to adjudge one guilty of murder who, without any wrongful motive or intent, sold or gave to another an innocent beverage, the imbibing of which caused the death of such other. The court, then, must either read into the law what the Legislature intended, or declare it unconstitutional and void. A decision upon that point is unnecessary in this case, because of another point decisive of the petitioner’s right to be freed on habeas corpus. But, in order to obviate diverse interpretations, this act should be clarified and made more specific by legislative amendment.”

No other state, so far as we can learn, has a similar statute. Ohio has a law, section 4, Senate Bill No. 28 (Laws 1923, p. 49), as follows: “The term ‘alcohol’ shall mean ethyl alcohol. Whoever knowingly sells, furnishes or gives away wood alcohol or any preparation or compound containing wood alcohol or any intoxicating liquor to be used for beverage purposes and death results therefrom shall be guilty of murder in the second degree and shall be imprisoned in the penitentiary during life.”

An act of the Illinois Legislature of 1923' (Laws 1923, p. 317), reads: “Section 1. Whoever knowingly and wil-fully sells, barters or furnishes any wood alcohol, or any compound or preparation containing wood alcohol, or any poisonous liquor, to be used for beverage purposes, and death results from such use, shall be guilty of murder and punished accordingly.”

It will be observed, however, that the acts of Ohio and Illinois specify the particular liquids or liquors which it is made unlawful to sell for beverage purposes, and in order to constitute the crime requires that the offender knowingly sell the poisonous liquor. Chapter 2, Session Laws of Oklahoma 1923, supra, does not specify the particular liquor which may cause death, not even as the liquors, the sale of which is prohibited by the prohibitory laws of the state, or that they be poisonous. The word “liquor” in the general sense is a synonym of the word “liquid.” Webster’s New International Dictionary, among other definitions, defines it as: “Anv liquid substance, as water, milk, blood, sap, juice, or the like; sometimes specif: Any beverage; as temperance liquors, or those not intoxicating.— * * * Specif, an alcoholic beverage, as brandy, wine, whisky, beer, etc. — often limited to such as are strong or distilled; as beer, wines and liquors.”

It is, of course, the province of the Legislature to declare what shall constitute a crime, and the provisions of an act defining a crime are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice. Every reasonable presumption should be indulged consistent with the terms of an act of the Legislature to uphold its constitutionality, but to make an act innocent in itself criminal is inconsistent with the law. In re Ah Jow (C. C.) 29 F. 181; Proctor v. State, 15 Okla. Cr. 388, 176 P. 771; Park v. State, 42 Nev. 386, 178 P. 389; Ex parte Dees, 46 Cal. App. 656, 189 P. 1050.

The act under consideration does not designate any particular liquor, but is all-embracing and determines the crime solely from the result which follows the drinking of the beverage sold, regardless of the nature of the beverage or the intent with which it is sold or the knowledge-of the sellers, actual or constructive, of any deleterious substance contained therein. The selling of beverages not within the inhibition of the prohibitory liquor law is a legal business. The state may not legislate against it except for protection of life, health, and the welfare of the citizens. In attempting to make criminal the sale of beverages, particularly to the extent of the highest crime under our law, it would seem to be necessary that the beverage should be named or classified in some specific manner, or that the seller should have knowledge, actual or constructive, that the beverage sold contained some deleterious or poisonous substance. In both the Ohio and Illinois statutes, as just stated, it is required that the liquor be poisonous and that the offender shall sell knowingly. If such provision were in our law, a different question would be presented.

This act is unconstitutional. The writ is granted, and, unless the state desires to prosecute petitioner under some other statute, he will be discharged. In case the state desires to further prosecute under some other statute, he is remanded to custody of the sheriff for further proceedings as provided by law.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JOE JAY et al. v. STATE.
    No. A-6396.
    Opinion Filed Feb. 9, 1929.
    (274 Pac. 487.)

      Morris & Wilhite, for plaintiffs in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Caddo county on a charge of having the possession of whisky with intent to sell. Defendant Joe Jay was sentenced to pay a fine of $50 and to serve 30 days in the county jail, and each of the other defendants were sentenced to pay a fine of $100 and to serve 60 days in the county jail. i|

The record discloses that at the time charged certain deputy sheriffs and others with a search warrant went to the residence and premises of defendants, made a search, and in a field near the barn discovered a barrel of whisky and a portion of another barrel buried in the ground near the house. They also found a hose and a whisky pump and numerous fruit jars, in some of which there was a small quantity of whisky. Each of the defendants took the stand and denied any knowledge or connection with the whisky found.

The first contention made is that the search warrant is invalid as having been made on an insufficient affidavit. In support of this, defendants rely mainly on Hannan v. State, 29 Okla. Cr. 203, 233 P. 249; it being argued that the affidavit states conclusions and not facts. The Han-nan Case is no longer authority on this point. Later decisions of this court have modified the rule there announced. Smith v. State, 30 Okla. Cr. 144, 235 P. 273; Shanafelt v. State, 38 Okla. Cr. 345, 261 P. 380.

The affidavit is poorly drawn, but, reasonably construed, it does state that intoxicating liquors are being manufactured, stored, and kept on the lands described, the buildings, basements, cellar, appurtenances, and premises; that said premises is farming land and is used as a store, shop, and place to make whisky; that the premises are not a private residence except the dwelling houses; and that they are being used as a warehouse for concealing whisky and to dispense whisky. Also it states that affiant has seen a number of automobiles going to and coming from said dwelling and premises at all hours of the night and day, and that numbers of persons who drink whisky and are accustomed to getting drunk frequent said place, and that the general reputation of the place is that whisky can be bought there. The purport of the affidavit is that the land described is not a private residence except the buildings, and it is a place of public resort.

The search warrant directs the search of the buildings, basements, cellars, appurtenances on said premises. Defendant argues: “We contend that the officers had no authority whatever to search anywhere but in the places enumerated in the search warrant itself. Since the search warrant did not authorize the officers to search anything but the buildings, basements, cellars and appurtenances on said quarter section they had no right to search in the fields. The whisky found by reason of said search was out in the field, it was not in any of the places that the search warrant directed to be searched, it was in no sense a part of the curtilage and therefore, said evidence so obtained was illegally obtained and was not competent evidence.”

It is a sufficient answer to this argument to say that, if the whisky was found in a field in no sense a part of the curtilage, no search warrant was necessary. Penney v. State, 35 Okla. Cr. 151, 249 P. 167; Merck v. State, 35 Okla. Cr. 160, 249 P. 163; Middleton v. State, 40 Okla. Cr. 197, 267 P. 682. Construing the affidavit and search warrant with this admission, the search warrant is not illegal.

Complaint is next made that the court erred in admitting evidence of the general reputation of the premises. In a prosecution for unlawful possession, where a proper predicate is laid, the general reputation of the place in which such liquor is found, as a place where intoxicating liquors are kept, is competent and admissible as proving intent. Bland v. State, 18 Okla. Cr. 514, 196 P. 732. The admissibility of such evidence is discussed in Williams v. State, 25 Okla. Cr. 284, 220 P. 667. The general rule is that, before evidence of general reputation is admissible, there must be some evidence other than general reputation that the place is in fact a public resort. It is doubtful if there is sufficient evidence in the record here to permit evidence of general reputation. The quantity found, however, raises a prima facie presumption that the possession . was with the intent to violate the liquor law.

The next assignment argued is that the court’s instruction No. 6 shifts the burden of proof to defendants. This instruction is: “You are further instructed, gentlemen, that if you find and believe from the evidence that the defendant, Harvey Jay, Joe Jay, Ervin Jay and Clyde Jay or either of them had possession of one barrel and four gallons of whisky and that they or either of them had' the same with the unlawful intent to barter, sell, give away or otherwise furnish or to use the same in violation of law, then and in that view of the case, it would be your duty to find the defendants or either of them guilty. While on the other hand, if you find and believe from the evidence, that the one barrél and four gallons of whisky did not belong to Harvey Jay, Joe Jay, Ervin Jay or Clyde Jay or either of them, or they or either of them had no interest in said whisky, then and with that view of the case you should find the defendants not guilty.”

This instruction requires the jury to find and believe from the evidence that defendant did not own and had no interest in the whisky before they should return a verdict of not guilty. Section 2692, Comp. Stat. 1921, provides: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to be acquitted.”

This instruction violates the most fundamental rule that the burden is on the state and not on the defendant. It requires defendants to prove that they did not own or had no interest in the whisky alleged in the information. The only burden resting on defendants was to raise a reasonable doubt of their guilt. Weber v. State, 2 Okla. Cr. 329, 101 P. 355; Brennon v. State, 27 Okla. Cr. 286, 226 P. 1062.

By another instruction the burden is put on the state, but the court’s instructions should be free from contradictions and ambiguities which might mislead the jury. A correct instruction does not cure an incorrect one upon a material point, but really presents an irreconcilable conflict. Davis v. State, 4 Okla. Cr. 508, 113 P. 221; Hooper et al. v. State, 26 Okla. Cr. 227, 223 P. 209. This instruction is upon a material issue in the case. It is contradictory of the general charge, and cannot be harmonized with, it, and we cannot say that it is harmless error.

The case is reversed and remanded.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    JIM CHILDS v. STATE.
    No. A-6374.
    Opinion Filed Jan. 26, 1929.
    (273 Pac. 1016.)

      Chas. E. Wells, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Pottawatomie on a charge of burglary in the second degree, and his punishment fixed at imprisonment in the state penitentiary for a term of two years.

The information is drawn under the second subdivision of section 2063, Comp. St. 1921. A demurrer was interposed on the theory that the information is drawn under the first subdivision of said section, and that the information is insufficient for failure to allege that the smokehouse charged to have been broken and entered did not form a part of the dwelling house. The case was tried on the-theory that the charge in the information is under the second subdivision of section 2063, and that the allegation that the smokehouse was within the “curtilage of a' dwelling house” is mere surplusage. So considered, the information is sufficient, and there was no error in overruling the demurrer.

It is next argued that the court erred in overruling defendant’s application for a continuance. The application was based on the absence on business of one of defendant’s attorneys. Defendant was represented by his other counsel. The showing made was insufficient. Anderson v. State, 21 Okla. Cr. 193, 207 P. 977; Brooks v. State, 32 Okla. Cr. 72, 240 P. 136; Coffey v. State, 38 Okla. Cr. 91, 258 P. 923.

Complaint is also made that the court erred in his instruction on circumstantial evidence, being No. 8 of the court’s charge. This instruction, verbatim, was approved by this court in Carter v. State, 6 Okla. Cr. 232, 118 P. 264, and has been before this court many times since. It is not erroneous.

It is not contended that the evidence is insufficient to sustain the verdict and judgment. We see no substantial merit in the assignments of error argued.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


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    JOE HAZELWOOD v. STATE.
    No. A-6168.
    Opinion Filed Jan. 26, 1929.
    (273 Pac. 1017.)

      Wright, Gill & Ramsdale, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Oklahoma county on a charge of maintaining a place where whisky, wine, and beer was kept, bartered, sold, given away, and otherwise furnished, and was sentenced to pay a fine of $50 and to serve 30 days in the county jail.

To this information defendant entered a plea of not guilty and further pleaded that he had been charged and acquitted in the United States District Court for the Western District of Oklahoma by information in two counts, on a charge, first, of having the possession and control of intoxicating liquor, to wit, apricot brandy; second, with having sold intoxicating liquor, to wit, apricot brandy. The court examined and excluded the plea of former jeopardy, holding that, upon the face of the record, the information in the federal court did not charge the same offense as the information in this case. This action of the trial court is assigned as error. It is insisted that the plea of former jeopardy should have been submitted to the jury. Sections 2617, 2639, 2738, 2744, Comp. St. 1921, are statutory provisions in reference to a plea of former jeopardy. Under these sections of the statute a plea of former jeopardy raises an issue of fact, and a verdict upon the plea should be returned by the jury. Where the plea is interposed together with a plea of not guilty, a verdict must be returned on both pleas, but, where a plea of former jeopardy does not state facts which constitute a defense, or where it does not present a disputed question of fact but merely a question of law, the trial court may refuse to direct the jury to return a special verdict, but may sustain a demurrer to the plea or strike or overrule it and place defendant on trial on the merits of the case. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059, 18 Ann. Cas. 300; Loyd v. State, 6 Okla. Cr. 76, 116 P. 959; Hamlin v. State, 8 Okla. Cr. 187, 126 P. 704; West v. State, 24 Okla. Cr. 225, 217 P. 1067; Newton v. State, 14 Okla. Cr. 226, 170 P. 270; State v. Brooks, 38 Okla. Cr. 302, 260 P. 785.

An examination and comparison of the plea of former jeopardy interposed with the information shows conclusively that the charge in the federal court was not for the same offense, act, or transaction charged in the information here. Clearly the same evidence would not support the charge in the federal court and the charge here. The court properly so ruled and excluded it from the jury. Hourigan v. State, 38 Okla. Cr. 10, 258 P. 1057; Rambo v. State, 38 Okla. Cr. 192, 259 P. 602, and authorities cited.

The only other matter presented in the brief is that the court admitted incompetent evidence. This is directed at testimony of the purchase of intoxicating liquor from the wife of defendant in his absence. No authorities in support of the contention are cited. The evidence is that defendant operated a filling station with a hamburger and lunch stand with a dancing platform in the rear. Defendant denied that he had any connection with the sale of liquor there, saying he knew nothing about it. This evidence of sale we think was a circumstance competent to go to the jury on the charge for which defendant was on trial, The weight and credibility of the evidence was for the jury.

No error requiring a, reversal is made to appear.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    DAN WILSON v. STATE.
    No. A-6402.
    Opinion Filed Jan. 26, 1929.
    (273 Pac. 1018.)
    W. F.. Brumfield, for plaintiff in error.
    Edwin Dabney, Atty. Gen., for the State.
   EDWARDS, P. J.

The plaintiff in error was convicted in the district court of Noble county on a charge of robbery with firearms, and was sentenced to serve a term of 25 years in the state penitentiary.

The judgment of conviction was rendered in June, 1926, and the appeal was¡ lodged in this court in Ojctober, 1926. No briefs in support of the appeal have been filed, and no appearance for oral argument was made at the time the case was submitted.

Where an appeal from a conviction for a felony is prosecuted to this court and no briefs in support of it are filed nor oral argument made, this court will not search the record to discover some error upon which to predicate a reversal, but will examine the record for jurisdictional or fundamental errors and to ascertain if the evidence reasonably supports the verdict and judgment. In this case, we have examined the record with care and have read closely the testimony. We find no jurisdictional or fundamental errors and find abundant evidence to sustain the verdict and judgment.

The case is affirmed.

DAVENPORT and CHAPPELL, JJ., concur.


author: CHAPPELL, J.

text:
    RAY VARNER v. STATE.
    No. A-6781.
    Opinion Filed Jan. 26, 1929.
    (274 Pac. 43.)

      S. H. King and J. E. Curran, for plaintiff in error.
    Edwin Dabney, Atty. Gen., and Smith Matson, Asst. Atty. Gen., for the State.
   CHAPPELL, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Kay county on a charge of stealing an automobile, and was sentenced to imprisonment for a term of five years.

The information properly charged that Leonard Var-ner and Ray Varner did, in' Kay county and state of Oklahoma, commit the crime of stealing an automobile. Before the beginning of the trial the defendants duly demanded a severance, which was granted. The state thereupon elected to try defendant Ray Varner.

The defendant, in his motion for a new trial, alleges and sets out 15 separate errors alleged to have been committed by the trial court; but for the purpose of determining the issues of the case it will only be necessary to pass upon 4 assignments of error.

The first error relied on is that the evidence is insufficient to sustain a conviction. This contention is based upon the alleged failure of the state to corroborate the testimony of Leonard Varner, who was a confessed accomplice in the commission of this crime.

This court has frequently passed upon this question. In the case of Moody v. State, 13 Okla. Cr. 327, 164 P. 676, the court held: “It is not essential that the corroborating evidence shall cover every material point testified to by the accomplice, or be sufficient alone to warrant a verdict of guilty. If the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all. Such corroborating evidence, however, must show more than the mere commission of the -offense or the circumstances thereof.”

The court in this case further says: “Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime; it is sufficient if it tends to connect him with its commission.”

This court has 'also held, in Blair v. Territory, 15 Okla. 549, 82 P. 653, that “the possession of recently stolen property, unexplained, does not constitute presumption of guilt, but creates an inference of guilt which may be sufficient, with other criminating circumstances tending to connect the prisoner with the larceny, to warrant a conviction.” The court in Chrisman v. State, 22 Okla. Cr. 54, 209 P. 656, approved this principle.

The trial court, with the evidence fresh in his mind and familiar with the circumstances surrounding the case, as shown by the evidence, held the corroborating evidence sufficient to submit the case to the jury, and the jury on the evidence found the defendant guilty. Under the case above cited, and from a careful examination of the record, the court is of the opinion that there was sufficient corroborating evidence to justify the conviction of the defendant.

It is contended that it was error for the trial court to permit Leonard Varner, co-defendant, to testify, because his name had not been indorsed upon the information with the permission of the court. There is a dispute as to when and under what circumstances the name of Leonard Varner was indorsed on the information. The county attorney claims that the indorsement had been made three weeks previously, and defendant’s counsel claims that the indorsement had been made without the consent of the court, and not more than a week previous to the trial.

It is immaterial when this was done, or whether it was done at all, since this court has held in the case of Cudjoe v. State, 12 Okla. Cr. 246, 154 P. 500, L. R. A. 1916F, 1251: “Every defendant jointly indicted or informed against is charged, under the Statute, with notice that the state may, if it so desires, use a codefendant as a witness against him. The appearance of the name of a witness, on the face of the information” or indictment “as a codefendant, answers every requirement of the Statute, that the name of the witness be indorsed on” the back of “the information” or indictment “before trial.” In the case of Cloud v. State, 41 Okla. Cr. 395, 273 P. 1012, this court reaffirmed that decision.

It is next contended that the trial court erred in refusing to allow defendant’s counsel to read certain excerpts of testimony of the witness Lewis Evans, as given on the preliminary examination and also on a former trial of the defendant. We have carefully read all of the evidence offered in the casé and all of the excerpts offered by the defendant and rejected by the court, and are unable to see wherein the cause of the defendant was prejudiced by the refusal of the court to permit the reading of this testimony, since the witness Evans did not deny making the statement, but merely said he did not remember, and that he was not asked some of the questions in the former trial.

It is next contended that the trial court erred in giving instruction No. 7. Instruction No. 7 is copied verbatim from the instruction. approved by this court in the case of Cox v. State, 15 Okla. Cr. 133, 175 P. 264.

We have carefully considered all of the errors complained of by the defendant, and find no error prejudicial to the rights of the defendant. The record discloses that the trial judge was diligent in safeguarding the substantial rights of this defendant. The evidence introduced on the part of the state conclusively establishes the guilt of the defendant, and a careful reading of the record reveals that he received a fair trial, and that no error was committed prejudicial to his rights.

The judgment appealed from is therefore affirmed.

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


text:
    Ex parte J. C. KING.

      No. A-6907.
    Opinion Filed Feb. 9, 1929.
    (274 Pac. 682.)
    John Remy and C. E. Castle, for petitioner.

      Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen.,' for the State.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. Petitioner alleges he is unlawfully restrained of his liberty by the warden of the state penitentiary at McAlester, Okla.; that heretofore he was charged in the district court of Payne county with the larceny of an automobile; he appeared in court with his counsel and entered a plea, of not guilty; that he “asked the court that he be permitted to waive a jury and be tried by the court, without a jury;” his request was granted, and the case was tried to i the court without a jury, who found the facts against the petitioner and sentenced him to serve a term of five years in the state penitentiary.

Petitioner contends that under section 20, art. 2, of the Constitution, the right to a jury trial cannot be waived by a defendant charged with a felony, citing section 2352, Comp. Stat. 1921, and numerous authorities, including Queenan v. Territory, 11 Okla. 261, 71 P. 218, 61 L. R. A. 324; In re C. W. McQuown, 19 Okla. 347, 91 P. 689, 11 L. R. A. (N. S.) 1136; 16 R. C. L. pp. 219, 220, § 36. Other authorities sustaining the contention are collated in 35 C. J. p. 198, notes. Authorities announcing a different rule are collated in 35 C. J. p. 199, note 68. The grounds upon which the rule is based differs widely in the opinions; some are based on the ground of public policy, but most of the cases are decided upon constitutional provisions, mandatory in terms, or predicated upon a want of statutory authority. Thus the Federal Constitution, § 2, art. 3, provides that the trial of all crimes except in cases of impeachment shall be by jury. Callan v. Wilson, 127 U. S. 540, 8 S. Ct. 1301, 32 L. Ed. 223; Freeman v. U. S. (C. C. A.) 227 F. 732; Low v. U. S. (C. C. A.) 169 F. 86.

In Kansas the waiver of a jury in felony cases is prohibited. State v. Simons, 61 Kan. 752, 60 P. 1052. By statute in Texas a defendant cannot waive a jury in a felony case. Duncan v. State, 79 Tex. Cr. R. 206, 184 S. W. 195; Jones v. State, 52 Tex. Cr. R. 303, 106 S. W. 345, 124 Am. St. Rep. 1097. In other cases the state statute provides that the trial shall be conducted according to the course of the common law (Harris v. People, 128 Ill. 585, 21 N. E. 563, 15 Am. St. Rep. 153), and thereunder it is held that, in the trial of a criminal case at common law, a jury is indispensable. A like holding is made in several other states where the statute provides that the issues of fact must be submitted to the jury. In re Dawson, 20 Idaho, 178, 117 P. 696, 35 L. R. A. (N. S.) 1146; State v. Douglass, 96 Iowa, 308, 65 N. W. 151; People v. Smith, 9 Mich. 193; Arnold v. State, 38 Neb. 752, 57 N. W. 378.

This contention seems not to have been directly passed on in this state in a felony case. In misdemeanor cases it has been held that a jury may be waived and the case tried to the court. Cowden v. State, 5 Okla. Cr. 71, 113 P. 202. In Ex parte Wilkins, 7 Okla. Cr. 422, 115 P. 1118, the Cowden Case was reaffirmed, and in addition it was held that, in a superior court, where a legal jury must be composed of twelve men, a trial before a jury of six was an irregularity which the defendant could waive.

Section 20, art. 2, of the Constitution of this state, provides that in all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed. If this were the only constitutional provision upon the subject, there would be much force in the contention of petitioner, but our Constitution contains the further provision in section 20, art. 7, that: “In all issues of fact joined in any court, all parties may waive the right to have the same determined by a jury; in which case the finding of the judge, upon the facts, shall have the force and effect of a verdict by jury.”

This section of the Constitution does not take away the right guaranteed by section 20, art. 2, but permits one charged with crime to waive the right if he so elects. This court, in Opinion of the Judges, 6 Okla. Cr. 18, 115 P. 1028, a capital case, refers to this section of the Constitution as follows:

‘‘Sec. 2275, Snyder’s Stat. provides: ‘Every person convicted of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment [or information] for murder the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the' same.’
“The sole question presented for our consideration is whether, according to a proper judicial construction, the concluding clause of the above section authorized the district court to pronounce and enter a judgment of death upon the defendant’s plea of guilty, or whether, on the contrary, it is necessary under the statute to submit the question whether he shall be punished by death or imprisonment for life at hard labor to the discretion of a jury.
“There is no reason why this provision of the statute ■is not constitutional and valid. A conviction of crime may be had in three ways; either by the verdict of a jury, or by findings of fact by the judge where a jury is waived (sec. 20, art. 7, Const.), or by a plea of guilty. Where a defendant who is indicted or informed against for a capital crime in a court of competent jurisdction pleads guilty, the court is authorized to pronounce judgment and sentence against such defendant according to law. * * *”

Under section 20, art. 7, of the Constitution, supra, we are clearly of the opinion that an accused in a felony case may waive a jury to determine the facts and may have the same determined by the judge. When so determined by the judge, the finding of the judge upon the facts has. the force and effect of a, verdict by a jury. It follows that the judgment rendered against petitioner is a valid judgment.

The writ is denied.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    E. T. WHITE v. STATE.
    No. A-6251.
    Opinion Filed Feb. 9, 1929.
    Rehearing Denied April 13, 1929.
    (275 Pac. 1067.)

      B. F. Williams, H. W. Fielding, and Ralph Rawlings, for plaintiff in error.
    George F. Short, Atty. Gen., M. B. Cope, and Irman S. Price, for the State.
   CHAPPELL, J.

The indictment cha'rges E. T. White and I. E. Pacey jointly with the offense of receiving a deposit in the Bank of Commerce, an insolvent bank at Sulphur, Okl>a., knowing at the time said bank was insolvent. Severance was ordered, and plaintiff in error, E. T. White, hereinafter called defendant, was put upon trial, and by a verdict of the jury he was found guilty as charged; the jury fixing his punishment at 2 years in the penitentiary and a fine of $500. The court, in rendering judgment on the verdict, fixed his punishment at confinement in the penitentiary for a period of 18 months. From this judgment he appeals.

On February 23, 1922, defendant White, who was then in charge of the bank, caused the bank to close its doors to the public and transferred its affairs into the custody of the bank commissioner. After an exhaustive examination of the books, records, notes, accounts, and cash of the bank, the bank commissioner found that its assets at the time of the closing were exceeded by its liabilities by more than $51,000. The particular deposit in question was received on the 20th day of February, 1922, three days before its affairs were turned over to the bank commissioner. Charles A. Bryan was the acting vice president and cashier of the bank. Defendant White was a cashier and director, 'and for a time had been its vice president. I. E. Pacey was president, director, and teller. All of these parties on occasions acted in other capacities. White may not have known the full extent of the frauds and irregularities disclosed by the evidence, but the fact that the defendant was a banker of many years’ experience, and the further fact that he himself had made some of the fraudulent entries in the books of the bank, and had participated in the making of other fraudulent entries and transactions, all tended to show that he knew that this bank was insolvent, covering a period of several months before it closed.

This prosecution is based on section 4128, C. O. S. 1921, as follows: “No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold of silver certificates or currency, or other notes, bills, checks or drafts, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to or permit or connive at the receiving or accepting of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment in the penitentiary not exceeding five years or by both such fine and imprisonment.”

Under the provisions of this statute, knowledge of the insolvency of the bank is an essential element of the offense.

It appears from the evidence that the defendant White, with others, acted as teller; that he and others had charge of the cash, made remittances, book entries, received deposits, and had access to the notes and accounts; and that he was acquainted with the contents of the books and records of the bank and its assets and liabilities. The particular deposit here in issue is shown by Plaintiff’s Exhibit No. 28, being entry in the pass-book of the “Artesian Hotel in Account with the Bank of Commerce, Sulphur, Oklahoma, February 20, 1922, deposited $41.00.” This exhibit and other testimony shows that this deposit was received by the codefendant, Pacey, but the records also show that on this day and days prior thereto, and thereafter until the 23d day of February, 1922, both Pacey and the defendant systematically worked together in receiving deposits from various depositors, thus indicating that the act of one was the act of both.

The first error complained of by the defendant is in the refusal of the court to give defendant’s requested instruction No. 2, which instruction is as follows:

“You are further instructed that a bank shall be deemed to be insolvent, first, when the actual cash market value of its assets is insufficient to pay its liabilities; second, when it is unable to meet the demands of its creditors in the usual and customary manner; third, when it fails to make good its reserve as required by law. It is not necessary that the bank shall have on hand sufficient cash to pay all of its depositors, or any considerable number of them on the same day or in case of a run bn the bank of some extraordinary demand beyond the usual and customary manner. It is only necessary for it to have on hand cash, or available assets sufficient to meet the demands that are usually made on it from day to day in the ordinary course of business. In determining the value of the assets, you should take into consideration the actual cash market value of the assets on the 21st day of February, 1922.
“If, therefore, you find from the evidence, beyond a reasonable doubt that the actual cash market value of its assets was not sufficient to pay its liabilities on the 21st day of February, 1922, or if you find from the evidence ia, reasonable doubt that the Bank of Commerce was not able to meet the demands of its creditors in the usual and customary manner, or if you. find from the evidence beyond a .reasonable doubt that the Bank of Commerce failed to make good its reserve' as required by law, then in either event, if you so find, you are instructed that the Bank of Commerce was an insolvent banking corporation and you should so find. If, on the other hand, you fail to find the Bank of Commerce was an insolvent banking corporation as defined in these instructions, or if you have a reasonable doubt of the insolvency of the Bank of Commerce on February 21, 1922, you should give the defendant benefit of such doubt and acquit him.”

It will be observed this goes far beyond the instruction given in the case of Appelget v. State, 33 Okla. Cr. 125, 243 P. 251. In this case this court held: “It certainly was not the legislative intent to make criminal the accepting or receiving of deposits in a bank insolvent in that technical sense in which the word is used in section 4124, where a bank may be deemed insolvent when it shall fail for a period of 30 days after notice to restore its reserve.” It will be noted that, in the instruction requested, the defendant asked the court to instruct: “Third, when it fails to make good its reserve as required by law.” This court, in the case of White v. State, 36 Okla. Cr. 57, 252 P. 455, held: “That a bank might be insolvent for a failure to maintain its cash reserve as required by law has no application in a criminal prosecution.” The instruction also failed to state the truth as to the facts alleged. The instruction fixed the date of the insolvency as February 21, 1922, when the indictmént alleged the bank to be insolvent as of February 20, 1922. Even though the balance of the instruction might clearly state the law, it was not reversible error for the court to refuse to give the requested instruction, under the rule laid down in the Appelget and the White Cases heretofore cited. , ' j

This court, in Dennison v. State, 25 Okla. Cr. 236, 219 P. 957, has held: The criminal “court is not authorized to reverse a judgment of conviction because of erroneous instructions unless, after an examination of the entire record, it appears that the error complained of probably resulted in a miscarriage of justice, or else constitutes a substantial violation of the constitutional or statutory right of the defendant.” It is not error to refuse a requested instruction stating the law applicable to the issues, if the law is sufficiently stated in the charge. It was not reversible error for the trial court to refuse to give defendant’s requested instruction No. 2, because such instruction did not clearly state the law, and for the further reason that the general instruction of the court sufficiently covered the law.

The defendant did not testify in his own behalf, and offered no evidence to controvert the testimony of the state that the Bank of Commerce was insolvent on the 20th day of February, 1922, because the cash value of its assets lacked more than $50,000 of equaling its liabilities, and that the defendant knew the bank to be insolvent on the 20th day of February, 1922, as alleged in the information. The evidence clearly shows that the bank was insolvent, because the actual cash market value of its assets was not equal to its liabilities on that day, and proof of that fact, together with the guilty knowledge of the defendant, was all that was required to secure a conviction.

The defendant next" complains that the court erred in refusing to give defendant’s requested instruction No. 5, which is as follows: “You are instructed that in determining the value of the bank’s assets upon the question of its solvency, you should include the additional liability of each stockholder to the bank 'and to its creditors in an amount equal to the par value of the stock in the bank held by such stockholder in such sum as you may determine from the evidence is the value of such stockholder’s additional liability.”

Section 4122, C. O. S. 1921, with reference to stockholders’ liability is as follows: “The shareholders of every bank organized under this article shall be additionally liable for the amount of stock owned, and no more.” It will be noted that the words “shall be additionally liable” appear in this section of the statute. No stockholder is liable under this section of the statute until the bank is closed and taken over by the bank commissioner. The most that could be said is that this is a contingent liability, which could only arise at a time when the bank was insolvent as defined by this court.

An examination of the evidence offered in the case and the instruction given by the court shows no other instructions offered and refused by the court 'are complained of. Under the evidence in the case and the law as laid down in the syllabus, the instructions given by the court were sufficient to inform the jury of the issues of the case and to enable them to cofirectly arrive at a verdict.

The judgment entered did not conform with the verdict of the jury. The jury fixed the defendant’s punishment at 2 years in the penitentiary and a fine of $500. The court, in pronouncing judgment, sentenced the defendant to 18 months in the penitentiary. This court in Barrett v. State, 39 Okla. Cr. 50, 263 P. 166, cited with approval the case of Caudill v. State, 9 Okla. Cr. 66, 130 P. 812, where it was held “that the judgment of conviction and sentence must conform to the verdict where the verdict is in conformity with the law. Where there is a variance between the verdict of the jury and the sentence of the court, this court should remand the case with directions to the trial court to correct its judgment and to make it conform to the verdict.”

It is the order of this court that this case be remanded to the district court of Murray county, and the judge of such court is ordered to render such judgment and sentence as conforms with the verdict of the jury.

Case remanded to the district court, with directions to render judgment in conformity with the verdict.

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


text:
    Ex parte T. A. FREIE.
    No. A-6923.
    Opinion Filed Feb. 9, 1929.
    (274 Pac. 684.)

      Clarence Mills, for petitioner.
    Edwin Dabney, Atty. Gen., and Wm. L. Murphy, Asst. Atty. Gen., for respondent.
   EDWARDS, P. J.

This is an original proceeding in habeas corpus. The petitioner is charged in the county court of Oklahoma county with driving an autombile upon the public highways on March 2, 1928, without having a tag for the current year displayed thereon. For failure to give bail he was committed to the county jail, and has filed this proceeding, contending that the doing of the act charged, at the time charged, is not a violation of law. The case involves a determination of certain provisions of our law, which for convenience we shall term the motor vehicle law. The petitioner and the respondent, represented by the Attorney General, have orally argued the question involved, and have filed briefs, and urge that this court determine the questions presented.

The petitioner first contends that the act or acts charged do not constitute a crime, and that no prosecution will lie. .

in considering the motor vehicle laws, we are mindful of the fact that the statute provides for both criminal and civil penalties. Section 177, Comp. Stat. 1921, forbids a merger of civil and criminal remedies. Various provisions of this law define offenses, and it is with these we iare concérned here. State v. Shafer, 15 Okla. Cr. 610, 179 P. 782.

The parent act of the Motor Vehicle Law is chapter 290., Session Laws 1919. There had been a motor vehicle law prior to that time, but with the act of 1919 all prior acts were repealed. Section 1 of this act, now section 10129, Comp. Stat. 1921, among other things, provides: “* * * And * * * provided further, that the driver or operator of iany such motor vehicle shall, in the absence of having a legal tag attached to his motor vehicle, as provided herein, have in his possession such duplicate hereinbefore mentioned, and shall display and exhibit such duplicate upon demand by any person authorized to inquire for same; and, provided further, that no motor vehicle as defined herein shall be entitled to use the public highways of this state unless such motor vehicle has attached thereto such tag as provided herein, or unless the driver or operator shall have in his possession a duplicate of his application as provided herein. * * *”

By section 5 of the act, said section, now section 10133, Comp. Stat. 1921, the tag is. described and mentioned, and it is provided: “* * * Such identification plate bearing the date of the current year.”

Also by the terms of section 3 of the act, said section becoming section 10131, Comp. Stat. 1921, it is provided that the license plate shall be renewed annually. And by section 7 of the 'act (section 10135, C. O. S. 1921), it is provided: “Any person, firm, associátion or corporation failing to comply with the provisions of this act shall be deemed guilty of a misdemeanor and on conviction thereof, shall be subject to a fine of not less than twenty-five ($25.00) dollars, nor more than one hundred ($100.00) dollars:” etc.

Section 6 of the act of 1919, which became section 10134 of Comp. Stat. 1921, ias amended by section 2, c. 130, Session Laws 1925, in some of its provisions approaches somewhat closely the provisions of section 10129, above mentioned. It is our opinion that section 10134, as amended, is intended to prohibit the use of a car on the highways without displaying the number plate assigned to it by the department of highways; that is, it prohibits the operation of a motor vehicle which does not display a license plate when one has been assigned to it, or which displays a license plate other than the one assigned to it. It will be noticed also that this latter section provides a different penalty than that provided for other violations of the motor vehicle law; that is, by section 1, c. 290, of the Laws of 1919 (section 10129, C. O'. S. 1921), it is a violation of the law to operate a motor vehicle on the public highway without displaying thereon a current year’s license tag. By section 6, as amended, it is a violation of law to operate such a vehicle upon the public .highway without displaying the license plate assigned to it, or by displaying the wrong license plate.

It is necessary then to determine when a prosecution, under section 1, may be instituted. By section 3 of the act (section 10131, Comp. Stat. 1921), it is provided: “Such registration shall be renewed annually in the same manner as provided for in original registration, such renewal to take effect on the first day of January of each year and if an application for registration, accompanied by the necessary fee, is not filed with the department of highways on or before January 31st of each year the same shall be declared delinquent and the owner or operator of such vehicle held liable to prosecution under the provisions of this act on and after such date.”

Section 3, above quoted, it will be seen, allowed a period of grace, and, in effect, prohibited a prosecution for any offense defined therein until on and after February 1, of each year. This section, however, was amended by section 1, c. 167, Session Laws 1925. In this amendment the period of grace was omitted, and the registration was due on January 1 of each year, in so far as the criminal penalties were concerned. It was again amended by section 1, c. 116, Session Laws 1927, by this proviso: “And if an application for registration, accompanied by necessary fee, is not filed with the department of highways on or before March 1st, of each year, the same shall be declared delinquent and the owner or operator of such vehicle held liable to prosecution as provided for by law. * * *”

By this proviso the Legislature again provided a period of grace, during which prosecutions for acts, denominated crimes by the motor vehicle law, could not be prosecuted. The acts complained of in this case having been committed on March 2, after the expiration of the period of grace, they constitute a crime, and may be prosecuted as such. The penalty is fixed by section 7, c. 290, of the Laws of 1919, above quoted, at a. fine of not less than $25, nor more than $100. This section was amended by section 1, c. 102, Session Laws of Oklahoma 1921 (section 10135, C. O. S. 1921). This amendment, however, does not vary the criminal penalty, the primary change being the granting of authority to the state highway department to issue a tax warrant for the collection of the tax. It is true that in this amendment the term “taxes and fines” is used. This remedy to collect by tax warrant is cumulative, .-and, if the fine is not paid, the person fined may be required to discharge the same by confinement in jail.

In the course of the oral argument, and in the briefs, the attention of the court has been directed to chapter 76, Session Laws 1923-24, and the contention is made that the provisions of that chapter forbid a prosecution prior to April 1st of any year. In our judgment, this chapter provides a means for the collection of the tax or license fee, and provides a civil penalty in the event of delinquency. The substance of the act is that, if the tax or fee is not paid on or before March '31 of the current year, ¡a penalty of 10 cents per day shall be added, such civil penalty not to exceed the amount of the tax. In the event the tax and penalty is not paid before the first day of August each year, it is provided that the sheriff shall seize and sell the vehicle on which the tax is delinquent, and provides for the application of the proceeds. This civil penalty is separate and distinct from the offense and the criminal penalties above referred to.

The second proposition argued by the petitioner is: That portion of the act of 1927 making the tax delinquent on March 2, and declaring that an offender shall be prosecuted, is unconstitutional, illegal and void, being in contravention of article 5, § 57, of the state Constitution. Under this proposition, petitioner contends that the proviso creating the period of grace contained in section 1, c. 116, Session Laws of Oklahoma 1927, is unconstitutional and null and void, because, in the title to such chapter, reference is made to the amendment of a certain specific section of law, and that such proviso is in fact not an amendment to such stated section, but to chapter 76, Session Laws 1923-24. This contention we think is not tenable. By section 3, c. 290, Session Laws 1919, a period of grace from criminal prosecution was provided for. Such section became section 10131, Comp. Stat. 1921. Such section was amended by section 1, c. 167, Session Laws 1925, and, in effect, the period of grace or extension of time was dropped. The pertinent part of the title of chapter 116, Session Laws 1927, is as follows: “An act amending section 10131, of the Comp. Stat. 1921, as amended by section 1 of chapter 167, of the Session Laws of Oklahoma, 1925, * * * relating to the registration and licensing o'f motor vehicles. * * *” Here it can be seen that the amendment in the 1927 law amends no provision of law, except the original section 3, c. 290, Session Laws 1919, which, as stated, became section 10131, Comp. Stat. 1921, and section 1, c. 167, Session Laws 1925, and in such provision of law a proviso of a similar nature was contained. Such proviso, in regard to the extension or elimination of time, applied only to criminal prosecutions and criminal penalties.

Nowhere in the title of chapter 116, Session Laws 1927, nor in the body of the act, does it refer to chapter 76, Session Laws 1923-24, or to any civil penalties. The proviso itself refers, as the original proviso did, to “prosecutions.” The petitioner, in this regard, relies upon Pottawatomie County v. Alexander, 68 Okla. 126, 172 P. 436. In that case, in the title to the act under consideration, it was specifically stated that the act amended section 3 of a certain enactment, when in reality the act amended section 16; the Supreme Court very properly declared the amendment to be unconstitutional, because it did not come within the title. In Ex parte Masters, 126 Okla. 80, 258 P. 861, also cited, the law (Laws 1927, c. 76), authorizing speed on the public highways to be at a rate of 45 miles an hour, was declared unconstitutional, because the title to the act stated that same was an amendment to section 10164, Comp. Stat. 1921, when as a matter of fact the amendment was to chapter 16, Session Laws 1923. This condition does not exist here. The title in question mentions the specific provision of law which is being amended, and the amendments thereto. The proviso is a matter which from the time of its origin had been included in the particular section.

The third proposition urged by petitioner is as follows: “An act making it criminal and a subject of imprisonment for failure to pay tax or license is unconstitutional, illegal, and void, being inhibited by article 2 of section 13 of the Bill of Rights, which prohibits imprisonment for debt, except for nonpayment of fines and penalties imposed for the violation of law.”

Under this proposition, petitioner urges that the tax or fee in question is an ad valorem tax. The act in question (section 1, c. 116, Session Laws 1927) provides: “* * * The registration imposed by this article upon motor vehicles other than those of manufacturers and dealers shall be in lieu of all taxes general or local to which motor vehicles may be subject as personal property under the laws of this state.” Rather than being an ad valorem tax, it would appear that the Legislature has levied what is known as a license fee or license tax, and that, by the provision above quoted, such fee is in lieu of the usual ad valorem tax.

The Supreme Court of this state in Ex parte Shaw, 53 Okla. 654, 157 P. 900, in discussing the motor vehicles law, saidp: “The act in question is not an attempt by the Legislature to levy taxes for local purposes. Rather it is an exercise by the Legislature of the police power of the state in the exaction of a registration fee or privilege tax in the nature of compensation for damages done to the roads of the state by driving an automobile over them.”

The petitioner in this case is not charged with a failure to pay the license tax, but, on the contrary, is charged with a violation of the statute under which the act, alleged to have been committed by him, has been designated as criminal. The regulation of the operation of motor vehicles upon the public highway is a valid exer-eise of the police power. It is a matter of common knowledge that vast sums of money are being expended by the state and its subdivisions in improving the public highways, and it is extremely important under the condition of travel at this time that motor vehicles be so marked that identification can be readily made. The Legislature may provide the conditions upon which persons owning or operating motor vehicles may use the public highways, and may provide for fine and imprisonment for violating the regulations made, and that is all the particular sections of the statute in question do. With this view of the law, it is unnecessary that we determine whether or not the license tax provided is a debt within the meaning of our Constitution.

The writ is denied.

DAViENPORT and CHAPPELL, JJ., concur.