text:
    REE STANSELL et al. v. STATE.
    No. A-4642.
    Opinion Filed May 6, 1925.
    (235 Pac. 937.)
    (Syllabus.)
    1. Trial — Verdict Finding One or More of Joint Defendants! Guilty, and Omitting Names of Others, not Void. When two or more defendants are jointly charged and tried, a verdict finding one or more of them guilty and omitting the name or names of the other defendants is not void.
    2. Same — Verdict Supported by Record as Intent of Jury. Where, from an examination of the verdict and the entire record, the intent and purpose of the jury as expressed in their verdict may be clearly ascertained, it will be upheld.
    3. Intoxicating Liquors — Unlawful Possession — ‘Sufficiency of Evidence. Evidence examined, and held to-be sufficient as to defendant J. J. Morrison and insufficient as to defendant Ree Stan-sell.
    Appeal from County Court, Tulsa County; John P. Boyd, Judge.
    Ree Stansell and J. J. Morrison were convicted of possession of intoxicating liquor, and appeal.
    Reversed and remanded, with directions, as to Ree Stansell, and affirmed as to J. J. Morrison.
    A. E. Montgomery, for plaintiffs in error.
    'George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   EDWARDS, J.

An information charging the possession of whisky with intent to sell was filed against Ree Stan-sell and F. W. Stansell, his son, and J. J. Morrison and J. C. Morrison, Jr., his son. Upon a trial, F. W. Stansell and J. C. Morrison, Jr., were acquitted. Ree Stansell and J. J. Morrison were convicted and each sentenced to pay a fine of $'50, and to serve a term in the county jail of 30 days, and jointly appeal. The record shows that, on the 29th day of August, 1922, certain officers went to a place on the outskirts of the city of Tulsa where the Morrisons resided. There was near the house a garage and a barn, some 20 or 30 feet apart. Between the barn and the garage a car belonging to J. J. Morrison was standing, the front fender very close to the barn. J. C. Morrison, Jr., was under the car working. J. J. Morrison was near. The doors of the barn were open. The officers went in and found a 5-gallon water bottle containing about 3' gallons of whisky with a rubber siphon, and a pan with 36 half-pint bottles and a gallon jar; 31 of the bottles were full. The rubber siphon was running, and the pan was overflowing. A sack of corks was near the bottles. A car belonging to Ree Stan-sell was also sitting near the barn, and about the time the officers approached the two Stansells came around the barn. They did not live on the premises and had no interest in them. All parties disclaimed any interest or knowledge of the whisky. No one else was about the barn or garage. There was an orchard, in the control of other parties, on another part of the place near the barn, and both the Stansells and the Morrisons and the wife of J. C. Morrison, Jr., who was at the Morrison house, testified that the Stansells had only been there some five minutes. The Stansells testified that he had driven up for the purpose of buying some fruit from the parties having control of the orchard, but had not found them there and was returning. The Morrisons testified that they had control of the house and garage, but that some one else had control of the barn.

The plaintiffs in error argue three assignments: First, that the evidence is insufficient to sustain the verdict and judgment; second, that there is no sufficient proof that the searching officers had a search warrant, and the evidence obtained by the search was improperly admitted; third, that the verdict is void.

Upon the question of the sufficiency of the evidence, the rule is that, where there is any competent evidence in support of the necessary allegations of the information, its weight and credibility is for the jury, and the verdict under such circumstances will not be disturbed.

As to the plaintiff in error Stansell, the evidence is not sufficient. He was at the premises, it is true. But the evidence indicates that he had been there but a few minutes upon a legitimate errand, and we think, in the light of the explanation made by him, the inference may not be indulged in that the whisky in question was in his possession. There is a probability of his guilt. The circumstances were suspicious, but it is not sufficient that he may have had some connection with the possession of this whisky; it must be shown that he did have possession. Ward v. State, 15 Okla. Cr. 61, 175 P. 60; Ridley v. State, 5 Okla. Cr. 522, 115 P. 628.

As to the plaintiff in error Morrison, a different inference arises from the evidence. It would not be particularly important whether he had possession and control of the barn in question or not. He was in possession of premises within a few feet of it. No one else except his son and wife and the Stansells were in the vicinity, and according to his own testimony, the 'Stansells had come on an innocent mission but a few minutes before. Here was a 5-gallon bottle of whisky from which was being filled half-pint bottles, as the jury must have believed, for trade purposes. The siphon from the large bottle to the smaller was running, and less than half of the contents of the large bottle had been siphoned out. Common sense demonstrates that the siphon could have been running but a very few minutes, and that it was not set in operation of its own volition. For the plaintiff in error Morrison to say that he had no knowledge or connection with it, with no one else about the premises, strains our credulity, particularly since one of the officers testified that the.vicinity was redolent with the fumes of whisky. As to him the evidence is sufficient.

The objection that the evidence was obtained by means of an unlawful search is not tenable. The officers testified that they had a search warrant, and first went to another place about a quarter of a mile distant, and a discussion in reference to the location fixed in the search warrant arose, and they decided that they were at the wrong place, and then went to the Morrison place as called for by the search warrant. The search warrant was not offered in evidence, but a copy is attached to plaintiffs in error’s motion for a new trial, and is regular except that it described the person having possession of the intoxicants on the premises to be searched as J. H. Morrison. This was not material, for if the true name were not known, description, with proper allegation, might have been in the name of John Doe. The evidence was properly admitted.

The final contention that the verdict is void is predicated upon an error in the initial of the defendant J. J. Morrison, which is as follows:

“State of Oklahoma, Plaintiff, v. Ree Stansell, J. J. Morrison and J. C. Morrison, Jr., Defendants. We, the jury duly impaneled and sworn in the above-entitled case, do find the defendants Ree Stansell and J. C. Morrison, Sr., guilty as charged in the information and complaint. * * *”

The plaintiffs in error did not object to the verdict when returned, and in their motion for a new trial did not specifically mention the verdict unless it be included under the assignment “error of law occurring at the trial.”

This court, in Coleman v. State, 16 Okla. Cr. 579, 194 P. 282, held that a verdict defective in form, but which expressed the intention and purpose of the jury, should have been objected to when returned, and thereby the attention of the court called to its defective form, and an opportunity thus given for its correction. Section 2743, Comp. St. 1921. The whole record may be scanned to determine the meaning of a verdict. Bowlegs v. State, 9 Okla. Cr. 69, 130 P. 824; Walker v. State, 11 Okla. Cr. 339, 127 P. 896. See, also, Dearisaw v. State, 29 Okla. Cr. 230, 234 P. 230.

In this verdict the names of F. W, Stansell and J. C. Morrison, Jr., are omitted entirely. This, however, is immaterial so far as the plaintiffs in error are concerned. It does not affect the verdict as to them. Tittle v. State, 7 Okla. Cr. 462, 123 P. 1036. An informality or inaccuracy in a verdict in the name of a defendant is not prejudicial, if the intention of the jury is clear, or if such inaccuracy appears to be a clerical error. 16 C. J. 1103, § 2588; McDonald v. State, 55 Fla. 134, 46 So. 176; Johnson v. State, 51 Fla. 44, 40 So. 678; Ewert v. State, 48 Fla. 36, 37 So. 334; Albert v. State (Tex. Cr. App.) 72 S. W. 846; Plumley v. State, 8 Tex. App. 529.

The evidence was that F. W. Stansell, charged in the information, was the son of the plaintiff in error, Ree Stan-sell, and that J. C. Morrison, Jr., charged in the information, was the son of the plaintiff in error, J. J. Morrison.

The verdict finds Ree Stansell guilty and finds the senior Morrison guilty. The initials of the senior Morrison were J. J., which the verdict through a misapprehension or by clerical error described as J. C. Morrison, Sr. Under the entire record there can be no question that the jury in returning the verdict as they did found guilty the senior Stansell and the senior Morrison.

The judgment and sentence as against the plaintiff in error Ree Stansell is reversed and remanded, with instructions to the lower court to dismiss, and as to the plaintiff in error J. J. Morrison is affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    J. H. COATNEY v. STATE.
    No. A-4756.
    Opinion Filed May 6, 1925.
    (235 Pac. 942.)
    (Syllabus.)
    1. Intoxicating Liquors — Searches and Seizures — Warrant to Search Private Residence — Insufficiency of Affidavit — Search Warrant, Once Served, not Usable for Additional Searches. A search warrant to search' a private residence for the discovery of intoxicating liquors, issued on an affidavit, wherein affiant fails to state that such residence is a place of public resort, held, improvidently issued. Held, further, a search warrant once served cannot be further resorted to for the purpose of additional searches.
    2. Intoxicating Liquors — Evidence of General Reputation of Accused's Home as Place for Sale of Liquors Admissible Only on Evidence that it Was Place of Public Resort. In a prosecution for possession of intoxicating liquor, with the intent to violate the Prohibitory Liquor Law, evidence of the general reputation of defendant’s home as being a place where intoxicating liquors were sold is admissible only upon the laying of a proper predicate showing that his home was a place of public resort.
    Appeal from County Court, Comanche County; John Manning, Judge.
    J. H. Coatney was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed.
    C. R. Reeves, for plaintiff in error.
    George F. ¡Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The plaintiff in error was tried upon an information charging that in Comanche county on the 12th day of February, 1923, he did have in his possession one gallon of whisky with the unlawful intent to violate the Prohibitory Liquor Laws, and in accordance with the verdict of the jury he was sentenced to be confined for 30 days in jail and pay a fine of $50. To reverse the judgment he appeals.

The errors assigned are, in substance, that the court erred in admitting incompetent, irrelevant, and hearsay-evidence on the part of the state, and in refusing to direct a verdict of acquittal, and misconduct of the court by questions and statements to the defendant’s wife, which tended to deprive him of a fair and impartial trial.

The sheriff testified that under authority of a search warrant he, with three deputies, visited the farm of the defendant three or four miles south of the city of Lawton and searched the premises for whisky and found a bottle of whisky near the house and a broken jar near by. The defendant was absent from his home at the time. Over objection and exception by the defendant, the trial court permitted the bottle of whisky and the broken jar to be offered, in evidence.

The affidavit for the search warrant recited “that intoxicating liquors are being kept by Homer Coatney, in a certain building,” etc., and does not state that the same is a place of public resort. The defendant moved that all the evidence be stricken, because the same was secured upon an illegal search and seizure. The return on the search warrant states that it was executed by searching the premises of Hlomer Coatney and also the premises of the defendant, J. H. Coatney, with further return of finding of broken jar containing about one pint of whisky.

The testimony of Deputy Sheriffs Moncrief and Bowman was substantially the same as that of Sheriff Livingston.

Over objections and exceptions of the defendant, the trial court permitted the witnesses for the state to testify that they knew the reputation of the defendant’s place as to being a place where whisky was kept and sold, and that it. was bad.

On the part of the defense, several witnesses qualified as character witnesses and testified that his reputation as to being a law-abiding citizen was good.

Mrs. Coatney testified that when the officers made the search of her home she had about one pint of whisky that she had been taking for the flu, at the direction and on a prescription of Dr. Gibson; that she got the prescription filled at the Park Drug Store. On her cross-examination she refused to answer two or three questions concerning the prescription, saying: “I have told you all I know about this case.” Whereupon the court said:

“You will have to answer the questions. If you had been a man, I would have had you in jail before now.”

The defendant testified that Dr. Gibson prescribed whisky for defendant’s wife, and he went and bought the whisky, and what was left of it was found by the officers; that he never at any time sold any whisky and never was drunk.

The foregoing statement is sufficient to indicate a few of the manifold errors committed on the trial. The affidavit under which the search warrant issued was insufficient to give the justice of the peace jurisdiction to issue it, and the testimony of the witnesses for the state was incompetent and inadmissible, as having been obtained on search of the defendant’s home under authority of an illegal search warrant. Duncan v. State, 11 Okla. Cr. 217, 144 P. 629; section 7013, C. S. 1921.

It is well settled that evidence of the general reputation of a defendant’s home as being a place where intoxicating liquors were sold is admissible only upon the laying of a proper predicate showing that his home was a place of general resort.

In the case of Wilkerson v. State, 9 Okla. Cr. 662, 132 P. 1120, Judge Furman used the following language:

“In this instance the whisky in question was found in the home of appellant. In the absence of any testimony to the contrary the presumption of law was that he had it there for his own use. If the whisky, however, had been found at a place to which the public generally resorted, and the circumstances of the case indicated that such place was used for the purpose of selling whisky, then the reputation of such place might be proven as a circumstance to be considered by the jury in determining as to whether the whisky was kept there for sale.”

.See Thompson v. State, 9 Okla. Cr. 525, 132 P. 695.

Other errors are assigned and argued, but it does not seem necessary that we should extend this opinion by reference thereto. As shown by the record, and for the reasons stated, we think the defendant did not have that fair and impartial trial to which he was entitled by the laws of our state.

The judgment is, accordingly, reversed.

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


author: EDWARDS, J.

text:
    O. L. LACY v. STATE.
    No. A-4315.
    Opinion Filed May 7, 1925.
    (236 Pac. 53.)
    (Syllabus.)
    1. Trial — Requested Instruction not Applicable to Evidence. An instruction requested by a defendant which is not applicable to the evidence is properly refused. '

      2. Trial — Requested Instruction Covered in General Charge. It is not error for the trial court to refuse to give a requested instruction, although it may be a correct statement of the law, if the principle stated in such requested instruction is given in the general charge of the court.
    Trial — Sufficiency of Instructions as a Whole. Where the instructions as a whole taken and considered together embrace the law of the case, though one or more of them may be technically erroneous, such error will not be ground for a reversal unless 3. it appear from the entire record that some prejudice to the substantial rights of the defendant resulted.
    4. Same. For instructions held to be technically erroneous, yet not 'sufficient to cause a reversal under the record, see opinion.
    Appeal from District Court, Seminole County; John L. Coffman, Judge.
    O. L. Lacy was convicted of manslaughter in the first degree, and appeals.
    Affirmed.
    See, also, 20 Okla. Cr. 440, 203 P. 1050.
    Pryor & Stokes and T. O. Criswell, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

An information was filed against the defendant in the district court of Seminole county charging him with the crime of murder. He was convicted of manslaughter in the first degree and sentenced to a term of 30 years in the penitentiary. From the record the following facts appear: On the 22d day of December, 1922, plaintiff in error shot and killed Richard Romine. The shooting took place on the farm of Lacy, in the field where he was at work. There were no eye-witnesses other than the parties and the wife of plaintiff in error, who claims to have seen it from a long distance. Six shots were fired by plaintiff in error; five entered the body and one the arm of the deceased. The physician who testified as to the cause of death testified that none of them entered from the front part of the deceased’s body. One of the wounds was near the center of the back. After the shooting, plaintiff in error telephoned for a doctor and for the officers. The deceased died before any one reached the premises, and there was no dying declaration. The plaintiff in error claims that he acted in self-defense, and that at the time of the shooting the deceased was attacking him with an open knife. A closed pocket knife was found in the. pocket of the deceased. There was a considerable conflict in the testimony of the plaintiff in error and his wife and some proof of contradictory statements of the circumstances made by the plaintiff in error to the officers.

The contentions are as follows: First. Error of the court in overruling plaintiff in error’s application for a continuance. Second. That the verdict is not supported by the evidence. Third. Error of the court in refusing to give requested instructions. Fourth. Error of the court in his instructions to the jury. These assignments will be considered in the order presented. The application for a continuance was based on the absence of the witness Fred Davis, who was an attorney, and for whom a subpoena was issued. He was absent at the time at Ardmore on business. The subpoena is not attached to the motion for a continuance, and we are not able to tell when it was issued or whether served or not, or what diligence was. used to procure his attendance. Bryan v. State, 5 Okla. Cr. 542, 115 P. 619. The oral evidence on the application shows that a few days prior to the beginning of the trial the witness Davis from Ardmore, called one of the attorneys for plaintiff in error and informed him that he was busy and could not be at the trial. This was in ample time to have procured his presence by attachment, and some conversation took place between the trial judge and counsel for plaintiff in error in reference to an attachment in which the judge stated:

“What I really said to counsel, we were discussing the question of an attachment for Mr. Davis, and there was some hesitancy about asking for an attachment on the ground that he was an attorney, and they hated to ask that. The court stated to counsel that, if it was necessary to issue an attachment for Mr. Davis, the court would call him, and the court thought that on account of the personal acquaintance with Mr. Davis that he would come at the request of the court instead of waiting for the attachment.”

The case was set for the 9th of February, but did not go to trial until the 11th. The attendance of Davis could have been had by plaintiff in error if they had seen fit to invoke the processes of the court. It appears, too, that, had Davis been present, what was sought to be shown by him was a privileged communication between attorney and client. There was no abuse of discretion in overruling the application for a continuance.

The second assignment, that the verdict is unsupported by the evidence, is not tenable. The fact of the killing, the location of the wounds on the body of the deceased, the deceased being unarmed at the time of his death, and various other matters in evidence abundantly support the verdict.

The third assignment argued is error of the court in refusing to give requested instructions. Request No. 1 is on the right of self-defense and the right of a person to repel a trespasser from his premises. While the request apparently states a correct proposition of law, its substance so far as applicable is covered by the general charge of the court. Request No. 2 is to the effect that the circumstances attending the killing shall be viewed from the standpoint of the defendant. This is directly covered by the court’s instruction.

Request No. 3 is in substance that a defendant is not required to gauge the danger with nicety in order that he may use no more force than is necessary in repelling an attack. This is covered in substance by the court’s charge on self-defense.

Request No. 4 is to the effect that danger in order to entitle a person attacked to the right of self-defense need not be real but only apparent. In instruction No. 7 the jury are expressly told:

“It is your duty to view the circumstances surrounding the killing from the defendant’s own standpoint, and it is not necessary that the danger was real, but, if the circumstances were of such nature as to give him reason to believe that he was in such danger * * * then it would be your duty to give him the benefit of such doubt and acquit him.”

Bequest No. 5 is a charge on the right of the owner of premises to expel a trespasser by use of all force necessary. If this instruction were proper .under the evidence and the theory of the defendant, it is not complete, as the law does not warrant an owner of premises to kill a trespasser who is not attempting to commit any felony. Dickinson v. State, 3 Okla. Cr. 151, 104 P. 923; Collegenia v. State, 9 Okla. Cr. 425, 132 P. 375; Marshall v. State, 11 Okla. Cr. 52, 142 P. 1046.

But there is no contention that the plaintiff in error was attempting to expel the deceased from his premises at the time of the killing, and the requested instruction, even if correct, was inapplicable.

The last assignment is predicated on the language of the court in three of the instructions given wherein the trial judge said:

“But, if you have a reasonable doubt existing in your minds engendered by the evidence in this case, * * * then you will return a verdict of not guilty.”

In several other instructions, where the term “reasonable doubt” appears, the phrase “engendered by the evidence” is not used. It is argued that the words “engendered by the evidence” place the burden on the plaintiff in error to raise a reasonable doubt from the evidence, and does not leave the jury free to entertain a reasonable doubt from a want of evidence. All that is necessary to warrant an acquittal in a criminal case is that the evidence or the want of evidence as a whole shall leave in the minds of the jury a reasonable doubt of the guilt of the accused. Carter v. State, 12 Okla. Cr. 164, 152 P. 1132; Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846.

The word “engender” means to cause, to bring about, to excite, to occasion, to call forth. A reasonable doubt, then, may be called into being, brought about, occasioned, or excited by the evidence; by a mere paucity of the evidence ; or by a want of evidence. Upon a consideration of the evidence in the case a jury might entertain a reasonable doubt from the affirmative nature of the evidence itself. It might entertain a reasonable doubt from the insufficiency of the evidence to establish a necessary fact. It might entertain a reasonable doubt from a want of evidence to establish an essential fact. In any of such cases may not the reasonable doubt be said to be engendered by the evidence? Somewhat analogous is the reasoning of Richardson, Judge, in the case of Moore et al. v. State, 4 Okla. Cr. 212, 111 P. 822, wherein this language was used:

“Plaintiffs in error complain of that portion of the above instruction wherein the court said: ‘A doubt to justify an acquittal must be reasonable and arise from a candid and impartial consideration of all the evidence in the case.’ The contention is that a doubt might arise from a lack of evidence, and that this portion of the instruction precludes that. iWe think the objection not well taken. A reasonable doubt might well arise from a candid and impartial consideration of all the evidence in the case, because the jury thought that all the evidence thus candidly and impartially considered was not sufficient to establish the defendant’s guilt beyond a reasonable doubt; that it was wanting in quality or in quantity; in other words, that there was a lack of convincing evidence. And if in fact such a lack of evidence existed, that fact could be ascertained only by a candid and impartial consideration of all the evidence that had been given.”

The converse was discussed in the case of Cohn v. State, 4 Okla. Cr. 494, 113 P. 217, where an instruction was given using these words:

“Or, if the circumstances are sufficiently strong as to lead you to believe beyond a reasonable doubt that the defendant did commit the crime, * * * then it is your duty to convict.”

It was there argued that the jury were not limited to the evidence, but were permitted to take into consideration circumstances not in evidence. This court in that case disapproved the language quoted, but concluded that only such circumstances as were proved were by that instruction submitted to the jury.

Fine points of distinction in the use of language is not to be drawn in construing an instruction. It should be read and considered in the light of experience and common sense, and, where it is evident that a technical inaccuracy did hot mislead the jury, or where a choice of words may not as a matter of rhetoric be free from criticism, yet when on the whole the language of the instructions could not have misled the jury, such inaccuracy will not be ground for reversal. Ostendorf v. State, 8 Okla. Cr. 363, 128 P. 143; Thompson v. State, 6 Okla. Cr. 51, 117 P. 216; Killough v. State, 6 Okla. Cr. 312, 118 P. 620; Boswell v. State, 8 Okla. Cr. 152, 126 P. 826.

Considering the instructions as a whole, in the light of the testimony in the case there is no error shown which deprived the plaintiff in error of any substantial right.

Finding no reversible error, the case is affirmed.

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


author: PER CURIAM.

text:
    Ex parte PAT WHITFIELD.
    No. A-5559.
    Opinion Filed May 7, 1925.
    (235 Pac. 929.)
    Application of Pat Whitfield for habeas corpus to be let to bail.
    Writ allowed.

      Sigler & Jackson, Matson & Mathers, and James L. Osborn, for petitioner.
    The Attorney General and F. M. Dudley, Co. Atty., of Ardmore, for the State.
   PER CURIAM.

At an examining trial in Carter county, the petitioner, Pat Whitfield, was held for trial in the district court without bond, on a charge of murder. The petitioner applied to the district court to be admitted to bail, but bail was denied. This application here follows, supported by a transcript of the testimony taken at the preliminary trial.

The petitioner claims that this evidence shows that the proof of his guilt is not evident nor the presumption great that he is guilty of murder. The evidence submitted raises the issue of justifiable homicide in self-defense, and possibly the issue of manslaughter.

Under such a state of facts, considered with the provisions of section 8 of the Bill of Rights and sections 2920 and 2921, Comp. Stat. 1921, the petitioner is entitled to bail. Where the punishment may be death, bail shall be granted, unless the proof be evident or the presumption great that the offense is a capital offense and no other.

The writ is allowed and the petitioner ordered admitted to bail in the sum of $25,000, conditioned as required by law, to be approved by the court clerk of Carter county.


text:
    W. J. SNELLING v. STATE.
    No. A-4482.
    Opinion Filed May 7, 1925.
    (235 Pac. 943.)
    (Syllabus.)
    1. Witnesses — Showing Witness Convicted of Violation of Prohibítion Law Permissible to Affect Credibility. For the purpose of impeachment, it is permissible to show that a witness has been convicted of a violation of the prohibition lawsi of the state for the purpose of affecting- his credibility.
    2. Intoxicating Iiquorsh-Instruction on All Offenses Against Liquor Laws Held Erroneous. Where an accused is charged with violation of the prohibitory law by having possession of intoxicating liquor with intent to sell, barter, and give away, it is improper to inform the jury of all the different offenses against the prohibitory law, and then instruct them that if they find and believe that the accused -committed the offense of violation of th'e prohibitory laws of the state, as defined to them, they should find the defendant guilty, is error, as under such instruction the jury might convict the accused of some other violation of the. prohibitory law than that charged in the information.
    Appeal from County Court, Tillman County; W. H. Hussey, Judge.
    W. J. Snelling was convicted of possession of intoxicating liquors, and appeals.
    Reversed and remanded.'
    P. Mounts, for plaintiff in error.
    George F. Short, Atty. Gen., and J. Roy Orr, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court of Tillman county on a charge of having possession of whisky with the intent to sell, and appeals. He assigns as error the following: First, error in excluding certain evidence offered by the plaintiff in error; second, error in the court’s instructions to the jury; third, the insufficiency of the evidence.

It appears from the record that the plaintiff in error and a negro were in a car transporting two 5-gallon jugs of whisky when arrested. The negro was one of the principal witnesses against the plaintiff in error.

In the trial of the case, after the evidence of the state had been concluded, the plaintiff in error called T. C. Greer, court clerk, and inquired if he had an information against the negro charging violation of the liquor laws, to which an objection was sustained. This was evidently intended as a preliminary question, and thereupon the plaintiff in error made an offer to prove that, prior to the time in question, the negro witness had been charged with the violation of the liquor law, had pleaded guilty, and had served a term in jail. The offer was excluded by the court. This was error, as under the provisions of section 585, Comp. Stats. 1921, the conviction for a crime may be shown for the purpose of affecting the credibility of a witness. While the statute in question applies in civil actions, under section 2699, Comp. St. 1921, it is provided that the rules of evidence in civil cases are applicable also in criminal cases. But without this statutory provision, since violations of the prohibitory laws indicate moral turpitude, convictions for such would be admissible for the purpose of impeachment; yet standing alone it would not be a sufficient reason for reversing the conviction.

At the conclusion of the trial the court instructed the jury as follows:

“That part of the statute under which this conviction is drawn and under which the defendant is prosecuted is in substance as follows:”

Then the court sets out the entire statute enumerating in full all the offenses under the prohibitory law and concludes the instruction:

“Any person violating any provision of this section of the statute shall be guilty of a misdemeanor, and upon conviction shall be fined not less than $50 nor more than $500, and be imprisoned in a county jail not less than 30 days nor more than 6 months.”

Immediately following the foregoing instruction is the following:

“No. 2. If you find and believe from the evidence beyond a reasonable doubt that the defendant, W. J. Snel-ling, in Tillman county, state of Oklahoma, on or about the 11th day of April, 1922, did commit the offense of violation of the prohibitory liquor law of this state, as above set out in paragraph No. 1 of these instructions, then and in that event you will find the defendant guilty as charged, but should you fail to so find, or if you have a reasonable doubt as to his guilt, it will be your duty to acquit the defendant.
“No. 3. In this case, gentlemen of the jury, as in all criminal cases, the burden of proof is upon the state to prove to your satisfaction beyond a reasonable doubt each and every material allegation in the information necessary to establish the offense as charged therein and to your satisfaction beyond a reasonable doubt, but should the state fail to do this, then it will be your duty to acquit the defendant.”

The foregoing are the only instructions upon the substantive acts constituting the offense charged in the information. The jury are not told what constitutes the offense charged, nor what things they must find in order to return a verdict against the plaintiff in error. Under the foregoing instructions the jury might well have found the plaintiff in error guilty of manufacturing whisky or of transporting whisky, and not for having possession with intent to sell, for which latter offense alone he was on trial. An accused can be tried in a single information for but one offense. He cannot be charged in a single information with transporting liquor and for having liquor in possession with intent to violate the law, as these are separate and distinct offenses. Tunnard v. State, 5 Okla. Cr. 529, 115 P. 603, Grant v. State, 6 Okla. Cr. 172, 117 P. 1100. See, also, Kimbrell v. State, 7 Okla. Cr. 354, 123 P. 1027; Clark v. State, 5 Okla. Cr. 704, 115 P. 377; Milton v. State, 4 Okla. Cr. 372, 111 P. 654.

It follows, of course, that since under our code two separate violations of the liquor law cannot be charged in the same information, that a conviction cannot be upheld where under the instructions the conviction may have been for separate offenses.

In this case the jury should have been told that the accused was on trial upon a charge of having liquor with intent to sell. Other offenses against the liquor law were improperly given to the jury. The jury should have been told what constituted the offense and what were the essentials to be found by them in order to return a verdict of guilty. The language of instruction No.2, quoted above: “If you find and believe * * * that W. J. Snelling * * * did commit the offense of violation of the prohibitory liquor law of this state as above stated * * *” permitted the jury to take into consideration any violation of the liquor law, such as the distilling of whisky, the transporting from one place in this state to another, offenses for which he was not charged and not on trial. This was clearly erroneous.

The Attorney General in his brief admits that the foregoing instructions are misleading and not as clear as they should have been.

The last assignment, that the evidence is insufficient, is wholly untenable. It appears to us from an examination of the record that there was an abundance of evidence to sustain the verdict, and it is with extreme reluctance that we hold that the instructions are such that the plaintiff in error was deprived of a substantial right and a new trial must be awarded.

The case is reversed and remanded.

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


text:
    JOE CLARK et al. v. STATE.
    No. A-5033.
    Opinion Filed May 7, 1925.
    (235 Pac. 1114.)
    (Syllabus.)
    Appeal and Error — Dismissal—Acceptance of Parole by Accused Pending Appeal. Where a plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the. right to have his appeal determined, and the appeal will be dismissed, either on motion of plaintiff in error or of the Attorney General, when the attention of this court is directed to the fact that a parole has been granted and accepted.
    Appeal from County Court, Kiowa County; J. S. Carpenter, Judge.
    Joe Clark and Jack Brown were convicted of transporting intoxicating liquor, and they appeal.
    Appeal dismissed.
    Rummons & Hughes, for plaintiffs in error.
    George F. Short, Atty. Gen., and Charles Hill Johns, Asst. Atty. Gen., for the State.
   PER CURIAM.

The plaintiffs in error, Joe Clark and Jack Brown, were convicted on a charge of transporting intoxicating liquor, and in accordance with the verdict of the jury they were on October 20, 1923, each sentenced to pay a fine of $100 and to be confined in jail for 30 days. From the judgment they appealed by filing in this court on February 18, 1924, a petition in error, with case-made. The Attorney General has filed a motion to dismiss the appeal on the ground that on or about April 13, 1925, said plaintiffs in error were granted paroles by Governor M. E. Trapp, and that each of said plaintiffs in error have accepted said paroles; a copy of said paroles and the acceptance thereof being attached to the motion.

Where plaintiff in error accepts a parole pending the determination of his appeal, he thereby waives the right to have his appeal determined, and the appeal will be dismissed either on motion of the plaintiff in error or of the Attorney General, when the attention of this court is directed to the fact that a parole has been granted and accepted. Hargrove v. State, 18 Okla. Cr. 57, 192 P. 590; Talkington v. State, 15 Okla. Cr. 83, 175 P. 132.

Each of the plaintiffs in error having been granted and having accepted the parole, the Attorney General’s motion to dismiss their appeal is granted, and the appeal herein is dismissed.


author: BESSEY, P. J.

text:
    O. P. STEPHENSON v. STATE.
    No. A-4735.
    Opinion Filed May 7, 1925.
    (235 Pac. 1114.)
    (Syllabus.)
    Trial — Instruction Erroneous as Shifting Burden of Proof — Unlawful Transportation of Liquor. Instruction No. 8 relating to the purchase of intoxicating liquor in relation to its illegal transportation held erroneous as shifting the burden of proof to the defendant.
    Appeal from County Court, Kiowa County; J. S. Carpenter, Judge.
    O. P. Stephenson was convicted of the transportation of intoxicating liquor, and he appeals.
    Reversed and remanded.
    P. K. Morrill and Bass & Carder, for plaintiff in error.
    The Attorney General, and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

O. P. Stephenson, plaintiff in error, for brevity here referred to as the defendant, was by verdict of a jury found guilty of the transportation of intoxicating liquor, to wit, choc beer, with his punishment fixed at confinement in the county jail for a period of 30 days and a fine of $50.

A certain peace officer and a companion found the defendant by the roadside in a Dodge automobile, which on account of a defective carburetor could not be moved under its own power except in low gear. The defendant was in an intoxicated condition and had with him a quantity of choc beer. H;e told the officers where he had procured the beer, from which it was inferred that he had transported it to the point where he then was.

At the trial the defendant said his car had stalled at the place where it was found and that he had purchased the choc beer at that point from a passing stranger. There was independent evidence tending to show that the defendant, with others, in a Dodge automobile had been seen in the vicinity of or coming from the place where the defendant told the officer he had procured the beer.

Defendant in this appeal says that since the act of transportation was not shown by specific proof, independent of the declaration that he had purchased it elsewhere, at a place about eight miles distant, the proof on that issue is insufficient. Direct proof of the corpus delicti is not always essential. It may be shown by circumstances. Shires v. State, 2 Okla. Cr. 89, 99 P. 1100; Brown v. State, 9 Okla. Cr. 382, 132 P. 359.

Complaint is made of the instructions to the jury. Without going into detail, we quote instruction No. 8, which defendant claims shifted the burden of proof:

“Gentlemen of the jury, you are further instructed that, if you believe from the evidence that the defendant purchased said intoxicating liquor in controversy in this action at the point where the automobile was stopped in the road, as testified to by the witness, then you will find the defendant not guilty.”

In lieu of the foregoing instruction, the defendant offered an instruction which was, in part, as follows:

“The jury are instructed that the defendant claims that the certain liquor in question in this case was purchased by the defendant at a point and place within Kiowa county, Okla., upon the public highway, at which point and place the said automobile of the defendant was incapable of being driven or moved under its own power, and that the liquor in question having been purchased by the defendant at that point and place, * * * and if you have reasonable doubt as to whether or not the said defendant moved or conveyed said liquor from the point of purchase to another point, as charged in the information, you should return a verdict herein finding the defendant not guilty.”

That part of the proffered instruction quoted above, or its equivalent, should have been given. The gist of this action was the illegal transportation of the liquor. Instruction No. 8 was erroneous, as shifting to the defendant the burden of proving affirmatively that he did not transport this particular liquor.

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    WALTER A. BRISTOW v. STATE.
    No. A-5053.
    Opinion Filed May 8, 1925.
    (235 Pac. 1113.)
    (Syllabus.)
    Appeal and Error — Case Abatedi on Death of Accused Pending Appeal. In a criminal action, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that plaintiff in error has died pending the determination of his appeal, the cause will be abated.,
    Appeal from District Court, Blaine County; A. S. Wells, Assigned Judge.

      Walter A. Bristow was convicted of giving intoxicating liquor to a minor, and he appeals.
    Proceedings ordered abated.
    Seymour Foose and R. C. Brown, for plaintiff in error.
    George F. Short, Atty. Gen., G. B. Fulton, Asst. Atty. Gen., and Allan Falkenstine, Co. Atty., for the State.
   DOYLE, J.

Plaintiff in error, Walter Bristow, was convicted on an information charging that on November 5, 1922, he unlawfully and feloniously gave to one James Long, a male minor of the age of 15 years, a pint of whisky. On the trial the jury returned a verdict, finding the defendant guilty as charged in the information, and fixing his punishment at a fine of $50 and confinement in jail for 30 days. To reverse the judgment, he appealed by filing in this court on March 6, 1924, a petition in error with case-made.

Since the appeal was taken and before the final submission of the cause, the Attorney General has filed a motion to abate the proceedings. This motion is substantiated by a letter from the county attorney of Blaine county, directed to the Attorney General on April 29, 1925, which states that plaintiff in error, Walter A. Bristow, died in Watonga, Okla., some little time before the letter was written.

In a criminal action, the purpose of the proceedings being to punish the defendant in person, the action must necessarily abate upon his death.

It is therefore adjudged and ordered that the proceedings in the above-entitled cause, and especially under the judgment rendered, have abated, and that the district court of Blaine county enter its appropriate order to that effect.

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


text:
    EDWARD KINCAID v. STATE.
    No. A-4825.
    Opinion Filed April 11, 1925.
    Rehearing Denied May 9, 1925.
    (237 Pac. 131.)
    (Syllabus.)
    1. Bail — Accused, Appealing, not Entitled to Leave Jurisdiction Without Leave of Court. Where a person is convicted of a crime and perfects an appeal to this court, he is not entitled to give a supersedeas bond and leave the jurisdiction without leave of court.
    2. Appeal and’ Error — Dismissal of Appeal Where Accused Leaves Jurisdiction Without Leave Pending Appeal. Wh’ere a defendant has been convicted and appeals from the judgment and gives bond to stay the execution of the sentence during the p'endency of the appeal, and violates the condition of his bond by leaving the state without leave of court, it is within the discretion of th'e court whether it will proceed to the decision of the case or dismiss the appeal.
    3. Same. In this case it appears that appellant, upon the approval of his supersedeas bond, left the state and has not returned. The appeal is therefore dismissed.
    Appeal from District Court, Pittsburg County; A. C. Brewster, Judge.
    Edward Kincaid was convicted of forgery, and appeals.
    Appeal dismissed.
    J. S. Arnote, for plaintiff in error.
    George F. Short, Atty. Gen., and W. E. Gotcher, Co. Atty., for the State.
   DOYLE, J.

The plaintiff in error, Edward Kincaid, was convicted on an information, in substance charging that on March 3, 1919, while he was in the employ of the Burroughs Adding Machine Company, he received from the Albert W. Jones Company a certain check for the sum of $95, payable to the Burroughs Adding Machine Company; that on May 5, 1919, and after employment of said defendant with the said Burroughs Adding Machine Company had terminated, he feloniously forged the name of the Burroughs Adding Machine Company to said check and received $95 for said check. On the trial the jury returned a verdict finding Edward Kincaid guilty of forgery in the second degree, as charged in the information, and fixing his punishment at imprisonment in the penitentiary for the term of four years. From the judgment rendered on the verdict, on March 2, 1923, the defendant appealed by filing in this court on August 30, 1923, a petition in in error, with case-made. Counsel for the state has filed a motion to dismiss the appeal for the reason that plaintiff in error is a fugitive from justice; that he has left and is now absent from the state without leave of court, and has thus violated the conditions of his appeal bond.

In support of said motion is the affidavit of W. E. Gotcher, county attorney of Pittsburg county, in part as follows:

That as such county attorney he has made due search and inquiry in regard to the whereabouts of plaintiff in error, who he is informed is at this time absent from the state of Oklahoma; that affiant at the time of his conviction was the assistant county attorney of Pittsburg county, and is informed that the said Kincaid immediately after his conviction left the state of Oklahoma and has ever since been absent.

To the same effect is the affidavit of Will Anderson, sheriff of Pittsburg county.

Also the affidavit of O. H. Whitt, county attorney at the time of the trial of said Kincaid: That the said Kincaid upon his release upon bond pending his said appeal departed from Pittsburg county and from the state; that affiant is informed that he has been absent from the state since said time and is now absent therefrom.

Also the affidavit of Jackman A. Gill, in part as follows: That he is attorney at law, actually engaged in the active practice at McAlester; that he represented the Hartford Accident & Indemnity Company in the trial of said Kincaid in the district court of Pittsburg county on the charge of forgery, the said company having executed a surety bond for the said Edward Kincaid; that this affiant is informed that upon the release of said Edward Kincaid upon bond pending the appeal he departed from the state of Oklahoma and has since been absent and is now absent therefrom.

The uniform holding of this court is that, where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered and entered in the case, and that he is not entitled to give a supersedeas bond and leave the jurisdiction without proper order to do so. Ravenscraft v. State, 12 Okla. Cr. 283, 155 P. 198; Morgan v. State, 14 Okla. Cr. 466, 172 P. 974; Daley v. State, 23 Okla. Cr. 355, 214 P. 941; Burden v. State, 24 Okla. Cr. 60, 215 P. 1076.

Our Code prescribes the condition of an appeal bond as follows:

“If an appeal is taken and the appeal bond given as provided in the preceding section, said bond shall be conditioned that the defendant will appear, submit to and perform any judgment rendered by the Criminal Court of Appeals or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of the court.” Comp. Stats. 1921, par. 2812.

Under this section, where a supersedeas bond is given, it is strictly upon the condition that the appellant shall fully observe the conditions named in said bond, and where it is shown, as in this case, that appellant after perfecting his appeal, without permission or proper order of the court first obtained, left the jurisdiction of the court, thus voluntarily violating one of the conditions of his supersedeas bond, he thereby waives the right that was given him to have the judgment of conviction superseded, and then it became discretionary with this court to proceed with a determination of the case on its merits or dismiss said appeal for that reason.

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, it is said :

“If persons who are convicted of crime.,within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short period of time, they may, with equal right and propriety, leave the court’s jurisdiction during the entire pendency of the appeal, and the court, under such circumstances, would he practically helpless to enforce its judgment against them. Persons convicted of crime in courts of record within this state have a right to appeal to this court, but such appeal must be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at large pending such appeal, continually violating the criminal statutes of this state.”

Where on motion to dismiss the appeal a showing is made by the state, such as in this case, this court in the exercise of its discretion may dismiss the same.

We are of opinion that, under the rule stated appellant has waived the right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

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


text:
    WES COSBY v. STATE.
    No. A-4771.
    Opinion Filed May 9, 1925.
    (236 Pac. 51.)
    (Syllabus.)
    1. Appeal and Error — Intoxicating Liquors — Proof of Possession of Prohibited Quantity of Liquor Sufficient to Skibmit to Jury— Sufficiency of Evidence to Rebut Evidence of Possession of Liquor or Intent a Matter of Fact for Jury, and, Ordinarily, Verdict not Disturbed Because of Insufficiency. Where an accused is charged with having possession of the prohibited quantity of intoxicating liquors with intent to sell, proof of the possession of such prohibited quantity is sufficient to submit to the jury under the prima facie evidence rule, and where the possession or the intent, coupled with possession, is sought to be rebutted or disproved, the question of the sufficiency of the evidence is a matter of fact for the jury, and, in the absence of unusual circumstances, will not be disturbed because of insufficiency.
    2. Evidencie — Refusal to Permit One Accused of Possession of Liquor with Intent to Sell to Testify as to Intent Held Error. Where a defendant is charged with having possession of a prohibited quantity of intoxicating liquors with intent to sell, such defendant is a competent witness to testify what his intent was, and it is error ,to refuse to permit him to do so.
    3. 'Trial — Ordering Accused’s Witness Arrested in Presence of Jury Held Error. A trial judge should refrain from any act of expression indicating his opinion upon any matter of fact occurring upon the trial, or his opinion of the credibility or probity of any witness testifying in the case.
    Appeal from County Court, Ottawa County; Wm. M. Thomas, Judge.
    Wes Cosby was convicted of possession of intoxicating liquors, and appeals.
    Reversed and remanded.
    A. W. Turner, for plaintiff in error.
    George F: Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error was convicted in the county court of Ottawa county on a charge of having possession of intoxicating liquors with intent to sell, and appeals.

He assigns as error the following: First, insufficiency of the evidence to support the verdict; second, errors of law occurring at the trial; third, error of the court in refusing requested instructions of plaintiff in error. These will be considered in their order.

The evidence on the part of the state is very brief. It shows that the sheriff and a deputy with a search warrant went to the place of residence of the plaintiff in error and found two one-gallon jugs of whisky. The plaintiff in error stated that he had bought the whisky.

The plaintiff in error testified that he bought one gallon of whisky for his personal use; that he had never sold whisky; that a day or two prior to the trial Ed Wheeler came by his place with a truck going to Seneca, Mo., and he went with him, and at Seneca some person gave plaintiff in error and Wheeler a drink of whisky, and they then each engaged to buy a gallon from him to be delivered at the plaintiff in error’s home; that the next day it was delivered, and plaintiff in error paid $6 for one gallon; the other belonged to Ed Wheeler and was left for him there. Ed Wheeler was called as a witness and corroborated the testimony of the plaintiff in error, and one Luther Sullivan was also called as a witness and corroborated him in part.

The statute in force at the time of the offense charged, section 6909, Comp. St. 1921, provides:

“* * * Or the keeping in excess of one gallon of spirituous, or one gallon of vinous * * liquors * * shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors. * * *”

This section was amended by the Session, Laws of 1923-24, chapter 123, changing the amount permitted to be had from one gallon to one quart, and making other changes in the act.

The plaintiff in error argues that the proof of possession of the prohibited quantity of intoxicating liquors with the prima facie presumption is not sufficient to warrant a conviction, where an explanation of such possession is made by an accused; that this statutory presumption conflicts with the presumption of innocence, and the presumption of innocence should prevail. Under the provisions of section 6999, supra, declaring that the keeping in excess of a certain amount of intoxicating liquors shall be prima facie evidence of an intention to convey, sell, or otherwise dispose of such liquors, evidence of possession of the prohibited quantity is sufficient to carry the case to the jury as a question of fact, unless' such intent be rebutted or the contrary proven. Where possession of the prohibited quantity is proven, then ipso facto prima facie evidence of an intent to violate the prohibitory law is proven. A jury, however, is not required to convict upon such evidence of possession aided by the presumption, whether rebutted or not. It may, notwithstanding proof of possession of the prohibited quantity of intoxicating liquors, aided by the presumption, still not be satisfied beyond a reasonable doubt of the intent of the accused to violate the law. It has liberty of action, and if from such evidence and presumption the jury is satisfied beyond a reasonable doubt of the defendant’s guilt of the charge, it may so say, and in the absence of unusual circumstances the evidence will be sufficient. When such proof of possession or the prima facie intent created thereby is rebutted or attempted to be rebutted or explained by an accused, the evidence, of possession and the prima facie presumption of intent, with the evidence offered by the accused in explanation or rebutting the possession or intent, all.goes to the jury as a question of fact for their determination, and when a verdict of guilt in such case is returned, the verdict of the jury will not be set aside on the ground-of insufficient evidence, unless some unusual circumstances warrant it.

The presumption defined by the Legislature in section 6999, supra, and its application and weight have been considered by this court in a number of opinions. See Havill v. State, 11 Okla. Cr. 483, 148 P. 683; Caffee v. State, 11 Okla. Cr. 485, 148 P. 680; Wilson v. State, 11 Okla. Cr. 510, 148 P. 823; Sellers v. State, 11 Okla. Cr. 588, 149 P. 1071.

In this case the jury heard the evidence, observed the witnesses, and were in a position to determine the weight and credibility which should be given their testimony. The verdict will not be disturbed for insufficiency of the evidence.

Upon the second assignment, the record discloses that during the course of the trial the plaintiff in error testified in his own behalf as follows:

“Q. I will ask you for what purpose you bought that liquor? A. Why, I bought it to drink.
“Q. State to this jury whether or not you have ever engaged in selling any liquor? A. No, sir.
“Q. State to this jury whether or not you intended to sell any part or portion of this liquor.”

To which latter question an objection was interposed and sustained and exceptions taken.

To constitute the offense charged, two things were essential: The possession of the prohibited quantity of intoxicating liquor, and an intent to sell, barter, or give away. The defendant had the right to rebut the intent as well as the possession. 8 R. C. L. § 174, p. 181, states the general rule thus:

“When the motive or intent of one accused of a crime, in performing a particular act, becomes a material issue in a cause, or reflects important light upon such issue, he may himself be sworn in regard to it.”

In the case of Snow v. State, 3 Okla. Cr. 291, 105 P. 575, being a case wherein accused was charged with having possession of quail with the intent to transport, he was asked:

“Q. You may state whether or not you had these quail for the purpose of transporting them from one place to another with the view of marketing them in violation of the game law.”

An objection was sustained by the court, which was held reversible error. The court, in syllabus 1, held:

“* * * The intent or purpose of the defendant in having possession of quail was material, and it was error for the court to refuse to permit the defendant, testifying in his own behalf, to state his intention and purpose with regard; to the possession.”

Such, indeed, is the general rule, and the sustaining of the objection to the question as to the intent with which plaintiff in error had possession of the intoxicating liquor was prejudicial error.

During the course of the trial, the plaintiff in error called Ed Wheeler as a witness in his behalf, who testified that one of the jugs of whisky belonged to him, whereupon the court, in the presence of the jury, ordered the sheriff to take charge of the witness and the county attorney to file a complaint against him. Defendant excepted, and the court thereupon admonished the jury not to consider anything he had said with reference to having the witness arrested. This proceeding could not have resulted otherwise than to convey to the jury the opinion that the court strongly disapproved of the conduct of the witness, and may have influenced the jury in its verdict. The jury generally regard a presiding judge under whom they serve with great respect and give much weight to his opinions or views if by chance they should come to their knowledge. A judge should, therefore, be particularly circumspect in his conduct and in the proceedings before him that no intimation of his opinion of the facts presented or the credibility or character of a witness should be made in their presence. There would seem to be no need for an order to arrest the witness in question in the presence of the jury, and to do so was prejudicial to the rights of plaintiff in error. Reed v. State, 5 Okla. Cr. 365, 114 P. 1114.

We have examined the other assignments of error presented and find nothing in them calling for comment.

For the errors pointed out, the case is reversed and remanded.

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


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    AARON W. REGIER v. STATE.
    No. A-4367.
    Opinion Filed May 9, 1925.
    (235 Pac. 936.)
    (Syllabus.)
    Trial — Failure to Instruct on Presumption of Innocence, in Absence of Request, Held not Reversible Error. Where the court failed to instruct the jury upon the presumption of innocence, and where no exception was reserved to such failure, and no special instruction was requested on this subject, and where the court did instruct the jury that the burden was upon the state to establish the guilt of the defendant by competent evidence beyond a reasonable doubt, the failure of the court to instruct on the presumption of innocence will not constitute reversible error.
    Appeal from County Court, Texas County; George M.
    Aaron W. Regier was convicted of transporting liquor, and appeals.
    Affirmed.
    Ross Rizley and H. E. G. Putman, for plaintiff in error. Frittz, Judge.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   EDWARDS, J.

Two assignments of error are argued in the brief of the plaintiff in error: First,.the insufficiency of the evidence. Second, failure of the court to instruct on the presumption of innocence. We have examined the record as to the insufficiency of the evidence. It is to this effect: That the plaintiff in error drove a car to the place charged; was seen to hand two apparently heavy kegs over the fence to another, who placed them in a barn nearby. Shortly thereafter a search was made, and three kegs of whisky of the same appearance as those handed over the fence were found in the barn, and no empty kegs. The plaintiff in error did not take the stand. The contention of insufficiency of the evidence is not tenable. There is ample evidence. The presumption of innocence and burden of proof were not covered by any instruction. No exceptions were taken to any instructions given, and no request for additional instructions made. The court did state to the jury fully and clearly the things necessary to be proven by the state in order to warrant a conviction, and told them that all must be proven beyond a reasonable doubt. These instructions placed the burden fully on the state, and were favorable to the plaintiff in error. When this was done and no exceptions or requests made, the error in failing to give a specific instruction on the burden of proof and presumption of innocence is not reversible. Beatty v. State, 5 Okla. Cr. 105, 113 P. 237; Cochran v. State, 4 Okla. Cr. 393, 111 P. 978. See, also, the early case of Huff v. Ter., 15 Okla. 377, 85 P. 241.

Finding no error that would warrant a reversal the case is affirmed.

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


text:
    JOHN CARROLL et al. v. STATE.
    No. A-5105.
    Opinion Filed May 9, 1925.
    (235 Pac. 935.)
    (Syllabus.)
    Evidence — Evidence Procured by Illegal Search Inadmissible. A search and seizure without a search warrant, coupled with an arrest on suspicion merely, under the circumstances recited in the opinion, are unauthorized, and evidence procured thereby is inadmissible,
    Appeal from 'County Court, Muskogee County; W. W. Cotton, Judge.
    John Carroll and George Hughley were convicted of the illegal possession of intoxicating liquor, and they appeal.
    Reversed and remanded.
    M. D. Hartsell, for plaintiffs in error.
    'George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Plaintiffs in error John Carroll and George Hughley, herein referred to as the defendants, were jointly convicted in the county court of Muskogee county of having illegal possession of two gallons of whisky, with the punishment of each assessed at a fine of $300 and 4 months’ imprisonment in the county jail.

The evidence discloses that the defendants were riding in an automobile, and, as they were approaching the front of defendant Carroll’s residence, certain peace officers apprehended the defendants, searched the car, and seized a quantity of whisky there in defendants’ possession. The defendants were placed under arrest and taken to jail. This was done without a search warrant or warrant for the arrest of the defendants.

The defendants complain that this conviction rests upon evidence, introduced over their objections, obtained by an unauthorized search and seizure. The Attorney General has filed a confession of error, which is in part as fol-ows:

“It cannot be fairly said that this crime was committed in the presence of the officers, for the reason that the officers first saw the defendants drive around the corner and come down the street and stop in front of their own house, and the officers could not have known of their own knowledge whether or not the car contained any liquor. It is observed that Mr. Morgan, the deputy sheriff, testified that he never saw any whisky in the car and never saw any at all until it was in the hands of Mr. Jackson, another officer. And Mr. Watts, a deputy sheriff, testified that the first he saw of the liquor was when it was pushed out of the side of the car. We admit that if these officers had been standing nearby and had seen defendants expose to view the two jugs of whisky there might have been probable cause for searching the car. But in this case these officers testified that they deliberately went to this place for the purpose of searching defendant’s car, and they were acting even then only on suspicion. We base this confession of error upon the ground that this search and seizure was illegal, for the reason that these officers acted without authority of law, because they did not procure a search warrant before making this arrest and seizure.”

The confession of error is well taken.

The judgment of the trial court is therefore reversed, and the cause remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    HARRY MILES v. STATE.
    No. A-4914.
    Opinion Filed May 11, 1925.
    (236 Pac. 57.)
    (Syllabus.)
    1. Arrest — Search and Seizure After Lawful Arrest. A person lawfully arrested may, as an incident thereto, be searched, and incriminating articles found in his possession may be seized.

      %. Arrest — Arrest Without Warrant for Misdemeanor, When Legal. Where the offense id not a felony, the officer .cannot arrest without a warrant, unless the offense was committed or attempted in his presence.
    3. Arrest — Intoxicating liquors — Search of Person or Seizure of Articles Found Thereon Illegal Where Made on Mere Suspicion of Violation of Prohibitory Laws. No search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under a warrant of arrest or shall be lawfully arrested without a warrant as authorized by law.
    4. Criminal Law— Sufficiency of Definition of Offense in Statute. The Legislature, in creating an offense, may define it by a particular description of the act or acts constituting it. or it may define it as any act which produces or is reasonably calculated to produce a certain defined or described result.
    5. Breach of the Peace — Definition of “Peake.” The word “pease,” in the phrase “breach of the peace,” means the tranquility enjoyed by the citizens of a municipality or community where good order reigns among its members; that invisible sense of security which every man feels necessary to his comfort, and for which all governments are instituted.
    6. Arrest — “Breach of Peace?’ Defined. “Breach of the peace,” in view of the generally accepted definition and of constitutional provision (article 7, §19) that, “All indictments, informations, and complaints, shall conclude, ‘Against the peace and dignity of the State,’ ” includes any violation of any law enacted to preserve peace and good order.
    7. Breach of the Peace — Element of Violence not Necessary. It is not necessary that an act have in itself any element of violence in order to constitute a breach of the peace.
    Appeal from County Court, Tulsa County; John P. Boyd, Judge.
    Harry Miles was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Affirmed.
    R. M. Dick, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Harry Miles, was convicted of having in his possession 4 pints of corn whisky with intent to sell the same, and in accordance with the verdict of the jury he was sentenced to be confined in jail for 6 months, and to pay a fine of $500. To reverse the judgment he appeals.

The evidence shows that one Wiggins had been a guest at the Ketchum Hotel in the city of Tulsa for two or three weeks, and had for several days occupied his room in an intoxicated condition. During this time Mr. Gibson, manager of the hotel, observed the defendant leaving the hotel two or three times, and on the morning of the day of his arrest saw the defendant coming out of the room occupied by Wiggins. H,e did not know the defendant’s name, so he went to the sheriff’s office and requested a deputy sheriff to come with him to the hotel. A few minutes after they arrived at the hotel the defendant came in and approached the elevator. Mr. Gibson pointed to the defendant and told the officer that he was the man he saw going in and out. The deputy sheriff arrested the defendant and searched him, finding 4 bottles of whisky on his person.

J. H. Quast, deputy sheriff, testified that on request of Mr. Gibson, manager, he went to the Ketchum Hotel with him, and a few minutes afterwards the defendant came in and approached the elevator; Mr. Gibson said, “There is the man”; and he arrested the defendant and searched him, finding 4 pints of whisky on his person; two in his hip pockets, and two in his coat pockets; that as he approached the defendant he saw a bottle in Eis left-hand coat pocket. The prosecution admitted (that the search was made without a search warrant, and without a warrant for the arrest of the defendant.

At the close of the state’s evidence, the defendant made a motion to strike all the testimony on the ground and for the reason that the arrest was made without a warrant, and that the testimony shows that no crime was committed in the presence of the officer at the time he made the arrest. The motion was denied. He then moved for a directed verdict in the form of a demurrer to the evidence, on the ground and for the reason that the evidence was insufficient to warrant a conviction. This was also denied.

The defendant contends that the search of and the seizure of the liquor found on his person was in violation of rights secured to him by the 'Constitution, and that the evidence obtained by such unlawful search was not admissible against him.

In the case of Keith v. State, 30 Okla. Cr. 168, 235 P. 631, we held that no search of the person or seizure of any article found thereon can be made on mere suspicion that the person is violating the prohibitory liquor laws in having intoxicating liquor in his possession, or without a search warrant, unless and until the alleged offender is in custody under warrant of arrest, or shall be lawfully arrested without a warrant as authorized by law.

■Consequently, in this case, the principal question presented is: Was the arrest of the defendant without a warrant illegal? The statute provides a peace officer may without a warrant arrest a person for a public offense committed or attempted in his presence. Section 2471, C. S. 1921. An offense is committed in the presence of an officer, within the meaning of the statute authorizing an arrest without a warrant, only when he sees it with his own eyes or sees one or more of a series of acts constituting the offense, and is aided by his other senses. An offense is likewise deemed committed in the presence of the officer where the offense is continuing, or has not been fully consummated at the time the arrest is made.

The present case is very different in its facts from the case of Keith v. State, supra. Here complaint had been made by the manager of the defendant’s conduct in the hotel, and the officer called to prevent the defendant from furnishing intoxicating liquor to a guest of the hotel. Upon the undisputed facts the defendant was a trespasser, and was committing a breach of the peace at the time of his arrest. If has been held that the constitutional guaranty of security of person from unreasonable search makes unlawful an arrest on mere verbal complaint to an officer by a citizen of trespass upon his property. See cases in annotation to Ex parte Rhodes, 1 A. L. R. 585.

In the present case the officer witnessed the trespass and the disorderly conduct of the defendant. He saw one of the bottles in defendant’s pocket, and it in fact contained whisky. Our Penal Code provides:

<!Any person who willfully and wrongfully commits any act which grossly injures the person or property of another, or which • grossly disturbs the public peace or health, or which openly outrages public decency and is injurious to public morals, although no punishment is expressly prescribed therefor by this chapter, is guilty of a misdemeanor.” (Section 2287, C. S. 1921.)

In the case of Stewart v. State, 4 Okla. Cr. 564, 109 P. 243, 32 L. R. A. (N. S.) 505, this court, having under consideration the question of the validity of this provision of the Penal Code, held that the Legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result, and that this statute •is not void for uncertainty as to what acts the Legislature thereby intended to penalize.

In Fessler v. State, 12 Okla. Cr. 579, 160 P. 1129, it is said:

“We think the common sense of the community as well as the sense of decency, propriety, and morality which most people entertain is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.”

The statute provides that it shall be the duty of the sheriff, undersheriffs, and deputies to keep and preserve the peace of their respective counties. Section 5900, C. S. 1921. “The term ‘breach of the peace’ is generic, and includes all violations of public peace or order, or acts tending to the disturbance thereof.” 5 Cyc. p. 1024, and authorities cited. Bishop says:

“A term of indefinite yet large meaning, sometimes greatly expanded. Commonly and more narrowly it signifies any criminal act of a sort to disturb the public repose.” 1 Bish. New Cr. Law, § 536.

And this court has said, “A breach of the peace is a violation of public order; an offense of disturbing the public peace.” Stewart v. State, supra.

In State v. Reichman, 135 Tenn. 653, 188 S. W. 225, Ann. Cas. 1918B, 889, it was held:

“ ‘Breach of the peace,’ in view of the generally accepted definition, and of constitutional provision that all indictments shall conclude, ‘against the peace and dignity of the state,’ includes any violation of any law enacted to preserve peace and good order.”

And further that:

“It is not necessary that an act have in itself any element of violence in order to constitute a breach of the peace.”

And see Delk v. Commonwealth, 166 Ky. 39, 178 S. W. 1129, L. R. A. 1916B, 1117, Ann. Cas. 1917C, 884, annotation 889.

The definition of what constitutes a breach of the peace is stated as follows in 8 R. C. L. section 305:

“In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence or tending to provoke or excite others to break the peace. By ‘peace/ as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society. It is, so to speak, that invisible sense of security which every man feels so necessary to his comfort, and for which all governments are instituted. It is not necessary that the peace be actually broken to lay the foundation for a prosecution for this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense. If it were, communities might be kept in a constant state of turmoil, fear and anticipated danger from the wicked language and conduct of a guilty party, not only destructive of the peace of the citizens but of public morals without the commission of the offense. The good sense and morality of the law forbids such a construction.” See note in 13 L. R. A. 163.

The sale of intoxicating liquors has always been recognized as tending to provoke disturbances of good order and breaches of the peace. When such sales were lawful it was found necessary to impose upon them strict regulations to prevent breaches of the peace. “It is well known that an act which if committed at a certain place or time would not amount to a breach of the peace might well be considered as a crime if committed at another time or place and under different circumstances.” People v. Johnson, 86 Mich. 175, 48 N. W. 870, 13 L. R. A. 163, 24 Am. St. Rep. 116. Possession of intoxicating liquor in a public place, with intent to violate provisions of the prohibitory liquor law, undoubtedly violates good order and tends to the disturbance of public peace and order, and, by well-settled rules of construction and logic, is a breach of the peace.

We are clearly of the opinion that, upon the undisputed facts in this case, the officer was authorized to arrest the defendant, because his conduct in the presence of the officer constituted a breach of the peace.

It is well settled that it is not only the right but the duty of an officer making a lawful arrest to search and take from the arrested person any article connecting him with the commission of a crime, which may be used in evidence against him.

For the reasons stated, we are of opinion that the objection to the evidence, when offered in behalf of the state on the ground that it was obtained by unlawful search, was not well taken.

It follows that the court did not err in overruling the demurrer to the evidence and in refusing to direct a verdict of acquittal.

The judgment of the lower court is accordingly affirmed.

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


text:
    EMMA WEAVER v. STATE.
    No. A-4455.
    Opinion Filed May 11, 1925.
    (235 Pac. 635.)
    (Syllabus.)
    1. Receiving Stolen Goods — Proof of Guilty Knowledge by Accused —Circumstantial Evidence. In order to establish the crime! of receiving stolen property, it is essential that the state, either by direct or circumstantial evidence, prove guilty knowledge on the part of defendant at the time he received such property. Actual knowledge that the property was stolen is not essential, but inferential knowledge, derived from the facts and circumstances, will take the place of actual knowledge if sufficient to convince the jury beyond a reasonable, doubt that the defendant at the time the property was received knew it was stolen.
    2. Same — Belief at Time of Receiving Goods That They Were Stolen Sufficient Knowledge. In a prosecution for receiving-stolen property, knowing same to be stolen, it is not necessary that defendant have actual knowledge that the property was stolen, but it is sufficient if the receiver at the time believed it to be stolenf property; belief in such case being the equivalent of inferential knowledge.
    3. Trial — Province of Jury Invaded by Instruction Advising Jury as Ito Whether Evidence Sufficient to Satisfy Law. The jury must be left free to determine for themselves whether the evidence iS sufficient to satisfy the law, and an instruction which advises them on that subject invades the province of the jury to determine the weight and the sufficiency of the evidence.
    4. Evidence — Rejecting Evidence Offered to Rebut State’s Evidence Held Error. When the state has offered evidence on a material issue, and a defendant offers competent evidence in rebuttal, it is prejudicial error for the court to exclude such offered testimony. ’
    5. Receiving Stolen Goods — Instruction as to Necessary Knowledge of Accused Held Erroneous. For instruction held to be erroneous see opinion.
    Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
    Emma Weaver was convicted of receiving stolen property, and appeals.
    Reversed and remanded.
    J. M. Springer, for plaintiff in error.
    George F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty Gen., for the State.
   EDWARDS, J.

For brevity the plaintiff in error will be referred to as defendant.

The defendant was convicted in the district court of Tulsa county upon an information charging her with the crime of receiving stolen property, and was by the verdict of the jury convicted and sentenced to a term of 5 years in the state penitentiary, and from such verdict and sentence appeals to this court. Defendant assigns various errors, several of which will be considered. The testimony discloses that the defendant was found in possession of a stolen automobile, and the fact of the theft was clearly proven. The defense was that the accused bought the automobile, giving in exchange another car and $500.

The contention is made that during the trial the court permitted the county attorney in his opening statement to the jury to state incompetent and immaterial matters prejudicial to the defendant, and in his cross-examination of the defendant, to inquire about other offenses, and concerning the defendant having been arrested at other times. We have examined the record on this point, and find that too much latitude was allowed the county attorney by the trial court, and that his action probably resulted in prejudice to the defendant.

The contention is also made that the court excluded competent and material testimony offered by the defendant. This contention is sustained by the record. On the part of the state, evidence was offered tending to show that the numbers of the automobile in question had been changed or tampered with. In her defense, defendant called as a witness one Hancock, who testified that he was an automobile mechanic, operating a garage in the city of Tulsa, of 15 years’ experience in such business, and wide experience in examining numbers on cars, made necessary in his business in ordering parts, and in that manner he had examined thousands of numbers on cars. He knew where numbers were located on Buick cars, and was able to tell if they had been changed; that he had examined the particular car in question and the numbers on it. Then he was asked: “Q. You can state whether or not in your opinion the number on the engine has ever been changed.” To which the state objected, for the reason that it was an attempt to bolster up the testimony that had already been proven as evidence in the case, and for the further reason that the court had permitted the jury to examine the automobile in controversy, and ascertain for themselves the condition of the numbers and the condition of the car with reference to identification. Which objection was sustained. An offer of proof was then made by the defendant to show by this witness that the number on said car had not been changed, which offer was excluded.

The state had been permitted to offer testimony that the number had been changed, and we cannot conceive why the defendant was not permitted to controvert this testimony. The sustaining of the objection to the offer of proof was prejudicial error.

The further contention is made that No. 10 of the court’s instructions was erroneous and prejudicial. The statute under which the defendant was prosecuted is section 2113, Comp. St. 1921, in part as follows:

“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,” etc.

The elements making up this offense are: First, the receiving of any personal property of some value upon any consideration; second, that said property had been stolen; third, knowledge on the part of the one receiving that it had been stolen. These elements must be proven in order to warrant a conviction in any case, and where the sufficiency of the evidence to establish any one of these essentials is lacking, a conviction cannot be sustained. Proof of these different elements may be made as in any other criminal case. They may be made by direct and positive evidence, or they may be proven by circumstances. As any essential fact in a criminal case, they must be proven, of course, beyond a reasonable doubt. Guilty knowledge on ■the part of one accused of receiving stolen property is generally not capable of being proven by direct and positive ■evidence, but must depend on circumstances. What circumstances will be sufficient cannot be stated by any fixed •rule, but there should be such circumstances as point conclusively to the guilt of an accused.

•In instructing upon the elements constituting the offense and the quantum of proof sufficient to establish them, it is erroneous for the trial court to inform the jury that anything less than proof of guilty knowledge will be sufficient. The instruction complained of is as follows:

“As to the defendant’s knowing that the property was stolen, it is not necessary that somebody should have told her that it was stolen, but it is necessary that she must have actually known it was stolen or that she knew such fact as would lead her to believe that it was stolen. In ascertaining whether or not she had such knowledge, you will take into consideration all the facts and circumstances which have been introduced in evidence, and you will consider the time and the manner of receiving the property, the person or persons from whom she received it, her conduct with it afterwards, and all other facts and circumstances, and if after such consideration you find beyond a reasonable doubt that she knew the property in question was stolen at the time she received the same, or that she .knew such facts as made her believe that in all probability it was stolen, and she received it under those circumstances, that is sufficient as to her knowledge of it being stolen.
“If you find these facts beyond a reasonable doubt, and also find the other facts necessary to constitute the crime charged, then it will be your duty to convict the defendant.”

The words “or that she knew such facts as would lead her to believe it was stolen” in the first paragraph, and the words “in all probability, * * * that is sufficient as to her knowledge of it being stolen,” just preceding the last paragraph, are erroneous. Pickering v. U. S., 2 Okla. Cr. 197, 101 P. 123; State v. Roundtree, 80 S. C. 387, 61 S. E. 1072, 22 L. R. A. (N. S.) 833. See, also, Davis v. State, 18 Okla. Cr. 112, 193 P. 745; McGill v. State, 6 Okla. Cr. 512, 120 P. 297; Price v. State, 9 Okla. Cr. 359, 131 P. 1102.

Under the foregoing instruction the jury is permitted to return a verdict against the accused on less proof than is warranted by the law. Analyzing the foregoing instruction, the jury are told, in substance, that if the defendant knew such facts as would lead her to believe that it was stolen, or if she knew such facts as made her believe that in all probability it was stolen, that is sufficient as to her knowledge of its being stolen. This is not the quantum of proof the law requires to establish guilty knowledge. It is essential that guilty knowledge be proven, either by direct evidence or by proof of facts and circumstances connected with the transaction. It is also laid down as a general proposition of law that belief by the receiver that the property is stolen is equivalent to knowledge and proof of such belief is proof of knowledge.

Clark & Marshall in the Law of Crimes (2d Ed.) § 383, says:

“At common law, and by the express terms of the various statutes, it is necessary that the receiver shall know that the property has been stolen; and he must know this at the time he receives it. * * * If a person receives property, believing it to have been stolen, he is guilty, though he does not know the facts and circumstances of the taking. And if it appears from the evidence that the accused received the property under such circumstances that any reasonable man of ordinary observation would have known that it was stolen, the jury are authorized to find that he knew it was stolen. The question, however, is one of fact, and 4he jury are not bound to infer knowledge from such circumstances.”

The latter part of this section is but another way of saying that guilty knowledge may be proven by circumstances. Wharton’s Criminal Law (10th Ed.) vol. 1, §§ 983, 984, states the law thus:

“Guilty knowledge, involving guilty intent, on the part of the defendant, is essential to the constitution of the offense. * * * Whether the defendant knew that the goods were stolen is to be determined by all the facts of the case. The proof in any case is to be inferential. * * *”

Bishop’s New Criminal Law, vol. 2, § 1138, is as follows:

“As foundation for the criminal intent, without which there can be no crime, and by the statutory terms, the receiver must know the goods to have been stolen. And this knowledge must exist at the very instant of the receiving. It need not be such direct knowledge as comes from witnessing the theft; but in the words of Bramwell, B., ‘It is sufficient if the circumstances were such, accompanying the transaction, as to make the prisoner believe,’ the goods had been stolen.”

After all, the substance of the law on this point is that knowledge is essential. Not actual knowledge obtained from the senses, but knowledge derived from the surrounding facts and circumstances. A belief on the part of the receiver that the property was stolen, when the proof shows that it was in fact stolen, is equivalent to the knowledge conveyed by circumstances and the inferences drawn from them. And when the jury, from proper circumstances, finds that an accused believed that the property received was stolen, that is a finding of guilty knowledge and is sufficient.

There is a further vice in the instruction above set out, in that the jury are told, not that belief that the property was stolen would be sufficient proof of knowledge, but that the existence of facts which would “lead her to believe,” or knowledge of facts as made her believe “in all probability,” would suffice. This is less than the law requires, and is erroneous. It is also objectionable as a comment on the weight of the evidence. The weight of circumstances is not a matter for the consideration of the court in its charge to the jury, and the statement in the instruction, that the enumerated circumstances are sufficient as to her knowledge of it being stolen, is an invasion of the right of the jury. The jury must be left free to determine for themselves whether the facts and circumstances in evidence are sufficient to satisfy the law. Smith v. State, 10 Okla. Cr. 45, 133 P. 1136.

This court in the case of Webb v. State, 19 Okla. Cr. 450, 200 P. 719, upheld an instruction substantially in the form of the one complained of here. That case presented an unusually aggravated state of facts clearly establishing the guilt of the accused, but on further consideration and analysis of the instruction, that part of that opinion sustaining the instruction is overruled. For the reasons assigned, the case is reversed and remanded.

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


text:
    HENRY BROWN v. STATE.
    No. A-4445.
    Opinion Filed May 8, 1924.
    Rehearing Denied May 12, 1925.
    (235 Pac. 624.)
    (Syllabus.)
    Intoxicating Liquors — Evidence Sustaining Conviction for Possession. In a prosecution for unlawful possession of intoxicating liquor, evidence held sufficient to support the conviction.
    Appeal from County Court, Stephens County; G. T. Burrows, Judge.
    Henry Brown was convicted of a violation of the prohibitory liquor law, and he appeals.
    Affirmed.
    Wilkinson & Saye, for plaintiff in error.
    George F. Short, Atty. Gen., and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Henry Brown, was convicted on an information charging that he did have in his possession four gallons of corn whisky with the unlawful intent to sell the same, and was sentenced to be confined in the county jail for 30 days, and to pay a fine of $50. He assigns as error that the verdict is not supported by sufficient evidence.

The evidence on the part of the state shows that the sheriff in company with two deputies went to defendant’s place one mile east of Duncan, and found four gallons of whisky in the defendant’s hog pasture, one gallon jug was buried near where the hogs were fed, and a three-gallon jug was found under a tree top 40 or 50 steps distant from there; they also found three empty jugs, some fruit jars and bottles that had contained whisky scattered around in the hog lot; as they went toward the house they observed three young fellows in a car in the yard, who, as the officers approached, emptied a half gallon jar of whisky, and threw the jar over the fence.

Against the defendant’s objection the officers were permitted to testify that about a week before they found a gallon jug about two-thirds full of whisky in the defendant’s barn, and a whisky glass and two quarts of whisky in his smokehouse.

As a witness in his own behalf Henry Brown testified:

“My hog pasture is a quarter of a mile from my residence; the whisky found in my barn and smokehouse I picked up by the roadside where a man in a car drove up and set it out; I did not know anything about this whisky being buried in my hog pasture until the officers found it.”

Six or seven witnesses qualified as character witnesses, and testified that the defendant had always borne a good reputation as a law-abiding citizen previous to this prosecution.

In our opinion the evidence was sufficient to warrant the court in submitting the case to the jury. It was for the jury to judge of the weight of the evidence and the credibility of the witnesses.

The only other assignment of error challenges the admission of the testimony on the part of the state showing that several days previous the officers had found whisky in the defendant’s barn and smokehouse.

We think the court did not err in admitting this testimony. Trial courts have a large discretion in receiving corroborative evidence, therefore rulings admitting such evidence will not be interfered with, except for a clear abuse of discretion. We discover no prejudicial error in the record. The judgment of the lower court is therefore affirmed.

MATSON, P. J., and BESSEY, J., concur.