author: BES-SEY, P. J.

text:
    H. K. REUTLINGER v. STATE.
    No. A-4411.
    Opinion Filed Feb. 28, 1925.
    Rehearing Denied May 2, 1925.
    (234 Pac. 224.)
    (Syllabus.)
    1. Searches ami Seizures — Affidavit for Search Warrant Should State Facts, not Conclusions. An affidavit for a search warrant which merely states the conclusions of the affiant, indicative of a positive violation of law, is insufficient. The affidavit should state the facts upon which the conclusion is based.
    2. Sam©. The finding of probable cause, as well as the issuing of the search warrant, is a judicial function to be exercised by the magistrate alone, upon the sufficiency of the facts stated in the affidavit, which should have the force and effect of evidence, as distinguished,from the mere conclusions of the affiant.

      S. Same — Legal Arrest Without Warrant — -Seizure Without Search Warrant of Tools and Implements Used. Where one is legally apprehended by a peace officer in the act of violating the law,he may be arrested without a warrant and, as an incident to the arrest, the officer may without a search warrant seize the tools and implements manifestly used in violation of the law.
    4. Same- — Search and Seizure Without Warrant not “Unreasonable” Where Made in Waste Places^ A search and seizure without a warrant is not “unreasonable,” within the meaning of the Constitution, where) it is made in canyons, pastures, or waste places remote from human habitation.
    5. Same — “Place to be Searched” Should be Particularly Described. “The place to be searched,” within the meaning of the Constitution, should be particularly described, but may include all of the contiguous real property in the exclusive possession of the offender, however large or extensive. For example, a ranch containing several hundreds of acres.
    6. Embezzlement — Carrier Charged with Embezzlement Cannot Question Consignor’s Title. Under the circumstance's in this case, where a private carrier is charged with the embezzlement of goods consigned to him for carriage, the accused cannot defend upon the ground that the goods did not belong to the consignor, or question the right of the consignor to contract for the transportation of the goods.
    Appeal from District Court, Woods County; Arthur G. Sutton, Judge.
    H. K. Reutlinger was convicted of embezzlement, and he appeals.
    Affirmed.
    A. J. Stevens, for plaintiff in error.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   BES-SEY, P. J.

H. K. Reutlinger, plaintiff in error, defendant in the trjal court, was convicted of the embezzlement of certain contraband goods taken and delivered to him for transportation by the sheriff of Woods county. His punishment was fixed by the jury at confinement in the penitentiary for a term of three years and one month.

In order to make clear the issues of law and fact involved in this appeal, a somewhat extended statement of the outstanding features of the evidence becomes necessary.

This prosecution arose as a sequel to a search and seizure of a large quantity of whisky, with vessels, tools, and appliances, in the rough hills and brakes of a pastoral region about 40 or 45 miles from Alva, the county seat of Woods county — a country occupied chiefly by the owners of vast cattle ranches. Some one had informed the sheriff that whisky was being manufactured on a large ranch, a portion of which was in charge of a man named Odgen. The defendant Reutlinger was a neighbor of Odgen, whose domain comprised 2,160 acres. The two men resided seven miles apart.

Early one May morning, while it was still twilight, the sheriff and three of his deputies appeared where Odgen was operating two whisky stills, apparently finishing up the previous night’s run. By authority of a search warrant they seized about 100 gallons of whisky, together with a lot of barrels, implements, and other property, including two stills, copper worms, condensers, a wagon, a Ford car, and army tent, some harness, several galvanized iron water tanks, some sacks of sugar, corn chop and other grain, and several drums of gasoline.

The officers came to this place in two small automobiles, and were therefore unable to convey more than a small portion of the property seized to the county seat. They went to the ranch home of the defendant, 7 miles distant, and telephoned to Alva for an automobile truck to assist in transporting the things seized, and at the same time employed the defendant to furnish and drive a wagon, equipped with a hayrack, drawn by four horses, to carry into Alva the remainder of the things, after loading the automobiles and the truck. The loading of the conveyances was not completed until some time in the afternoon.

In the meantime, neighbors and others who had heard about the raid asembled at the place. Several kegs of whisky were loaded into the automobiles and the truck, but all this time there was an open barrel of whisky standing near the house, with an empty baking powder can, which was used as a drinking cup. Before and while these conveyances were being loaded, the defendant repaired to this barrel and took some five or six drinks. The evidence does not disclose how often or how much the others imbibed but, from the fact that several of those present at the time, af-terwards called as witnesses in the case, could not remember very definitely or state very accurately just what articles were placed in defendant’s wagon and hayrack, it is probably fair to assume that others besides the defendant used this baking powder can cup pretty freely. Finally, after all the conveyances were loaded, they all moved off towards Alva. Before starting the defendant thoughtfully made provision for liquid refreshment en route.

The automobiles and truck soon left defendant’s slower conveyance in the rear, and the defendant did not arrive in Alva until about 3 o’clock the next morning. The defendant at this time was in an advanced stage of intoxication, and with assistance he was put to bed, where he slept until late that evening. It was claimed that when the defendant arrived at Alva a tent, a galvanized stock water tank, a set of harness, some sugar, and a gasoline lantern, which had been placed upon the defendant’s wagon, were missing. The defendant and some other witnesses were not very certain as to just what articles were put on defendant’s wagon, or just what was on the wagon when it arrived at its destination. The defendant claimed that the sugar, and possibly some other things, were taken from him by force after midnight, while in transit, by some persons in two automobiles, one of whom was from the Odgen ranch.

The officers suspected that the defendant had unloaded the sugar, the tent, the harness, the lantern, and possibly one of the galvanized water tanks at his home or ranch, which he had passed in coming from the Odgen ranch to Alva, and that he, in violation of his duty as a bailee, or carrier, had thus embezzled these articles. Acting upon such suspicion, three days later they obtained a search warrant authorizing them to search the defendant’s premises for these articles.

Under authority of this second search warrant the officers went to the home of the defendant, in his absence, and took from defendant’s stable a set of harness; they took from one of his pastures a galvanized stock water tank; and in an abandoned house about one mile from defendant’s home they found and seized a tent which they said was the one taken by virtue of the first search warrant. In defendant’s house they also found and seized a gasoline lantern and a sack of sugar.

The vital part of the affidavit for the search warrant under which the first and original search and seizure was made upon the Odgen place is as follows:

“Comes now Hugh Martin, of lawful age, who, being first duly sworn, upon his oath deposes and says: That intoxicating liquors are being manufactured, sold, bartered, given away, and otherwise furnished, and are kept for the purpose of selling, bartering, giving, and otherwise furnishing in violation of the laws of the state of 'Oklahoma, by certain persons to affiant unknown, in certain buildings, to wit, a frame shanty located on the south of section 17, township 28 north, range 18 W. I. M. in Woods county, Okla.”

The affidavit for the second search warrant, authorizing the search of the defendant’s premises, is as follows:

“Comes now Harry Hodgson, of lawful age, who being first duly sworn, upon his oath deposes and says: That Henry Reutlinger was employed by him to haul a load of goods from some 40 miles west of Alva to the city of Alva; that the Henry Reutlinger started with said load of goods, wares, and merchandise, but failed to deliver said load to him. Harry Hodgson, in the city of Alva. That he, Harry Hodgson, verily believes that the said goods, wares, and merchandise, to wit, ten sacks of sugar, one tent, one set of harness, one pressure tank, four sacks of corn, one water tank, were embezzled by the said Henry Reutlinger while he, the said Henry Reutlinger, was bringing the same to the city of Alva, and that the said goods, wares, merchandise above named can be found on the premises of the said Henry Reutlinger, located as follows: The E.yz, and the E. i/2 of W. y2 of section 21, S. yz of section 22, W. y2 of section 23, N. yz of section 27, N. W. % of section 26, all of section 28 — all in 29 — 18 (2,160 acres).”

The affidavit for the search warrant for the Odgen premises was defective, because it stated no facts upon which a finding of probable cause could be based. The averments in the affidavit amount to a conclusion merely —a conclusion of the affiant. Facts should have been stated, having the force and effect of evidence such as would be competent for the consideration of a jury in a trial for the offense, as distinguished from the ultimate conclusions of the affiant himself. For the reasons and authorities supporting this rule see Hannan v. State, 29 Okla. Cr. 203, 233 P. 249.

But under the circumstances the validity of the first search warrant is immaterial. When Odgen was found where he was in the act of making whisky, the officers had a right to arrest him without any warrant and, as an incident to such arrest, without , a search warrant they had a right to seize all implements and vessels used in the violation of law for which he was arrested. Apparently the tent, the harness, the wagon, the several water tanks, and the other things seized were all part of the equipment used in violating the prohibitory law, and therefore legally subject to seizure.

The validity of the second search warrant is also attacked. It is urged that, even if the defendant did fail to deliver some of the goods intrusted to him for transportation, that fact alone would not constitute embezzlement. The affidavit recites his failure to deliver certain of the goods delivered to him for transportation, and states that the affiant believes that they were deposited on the premises of the defendant .in transit, and asks for a search warrant to search said premises. The affidavit might have been couched in better terms, but we hold that the affidavit as made contained a sufficient statement of fact to authorize the magistrate to issue the search warrant.

It is claimed further that the affidavit and warrant cover too much territory — 2,160 acres. It has been held that, when there is probable cause to believe that a person owning and in possession of several different premises, covering which a search warrant is sought, is in possession of contraband goods, the several premises in his possession may all be included in one search warrant. That being true, it would seem that the “place to the searched,” within the meaning of the Constitution and the statutes, might include all of a ranch, however large. Rose v. State, 171 Ind. 662, 87 N. E. 103, 17 Ann. Cas. 228, note 232.

The evidence concerning the identity and actual conversion of these articles was more or less conflicting. The testimony of the defendant indicates that he may not have been as drunk as he pretended he was, from the fact that he seems to have had a fairly clear recollection of things that transpired which were in his favor, but a poor recollection of things that might be construed against him. This court will not weigh conflicting evidence; that is for the jury.

The allegations of the information are sufficient, and the instructions of the court fairly covered the issues joined. The objections to the introduction of alleged incompetent evidence, and to the rejection of certain evidence offered, have all been examined. Some of these were waived or cured, subsequently, and none are of sufficient importance to disturb the verdict.

The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    Ex parte BEN H. MASON.
    No. A-5179.
    Opinion Filed March 2, 1925.
    (233 Pac. 785.)
    (Syllabus.)
    1. Pardon. — Governor’s Power to Grant Executive Clemency Includes Power to Suspend Sentence upon Conditions Deemed Proper. The power to grant, after conviction, reprieves, commutations, paroles, and pardons, upon such conditions and with such restrictions and limitations as he may deem proper, conferred upon the Governor by Const, art. 6, § 10, includes the power to suspend sentence upon such conditions as he may deem proper to impose, so long as they are not immoral, illegal, or impossible of performance; provided they are to be kept and performed or complied with during the term for which the prisoner was sentenced by the judgment of the court.
    2. Pardon — “Parole” Defined. A “parole,” as the term is used in criminal law, may- be defined as the release of a convict from imprisonment upon certain conditions to be observed by him, and • a suspension of his sentence during his liberty thus granted.
    3. Same — Effect of Parole by Governor. A parole granted by the Governor under power conferred by Const, art. 6. § 10, is not a vacation of the sentence imposed, nor is it a commutation of the punishment; it suspends the execution of the sentence, and temporarily releases the convict from imprisonment upon conditions which he may accept or reject.
    Application of Ben H. Mason for writ of habeas corpus.
    Writ denied.
    See, also, 23 Okla. Cr. 111, 212 P. 1028.
    H. H. Edwards, for petitioner.

      George F. Short, Atty. Gen., and John Barry, Asst. Atty. Gen., for respondent.
   DOYLE, J.

This is a petition for writ of habeas corpus, filed in this court May 20, 1924, whereby Ben H. Mason, a convict in the penitentiary, seeks to obtain his discharge from the penitentiary on the ground that he has served his sentence and is now imprisoned and confined by W. S. Key, warden, without authority of law. It is averred: That said Ben H. Mason by the judgment of the district court of Carter county, rendered on the verdict of a jury finding said Ben H. Mason guilty of passing a bogus instrument, was sentenced to serve a term of one year and one day in the state penitentiary at Me-Alester. That on May 16, 1928, he was received at the penitentiary. That on the same day, May 16, 1923, he was by Governor Walton granted a 60-day leave of absence. That prior to the expiration of said leave of absence said Governor granted an extension of the same for a period of 90 days. That prior to the expiration of said extended leave of absence said Governor again extended said leave of absence until January 1, 1924. Copies of which are attached and made a part of the petition filed herein. That prior to the expiration of said extensions, Governor Trapp further extended said leave of absence to April 1, 1924, a copy of which is attached hereto. It appears that each leave of absence contained the following recital:

“The said judgment is to be thereafter proceeded with to all intent and purposes as though this leave had not been granted.”

That on March 31, 1924, petitioner returned to the penitentiary and has since said date been confined therein; that petitioner under the laws of the state is entitled to have credit for two months “good time” for the term which sentence runs; that he is entitled to have credit for his working time, two days per week, for nine weeks from April 1, 1924, a total of eighteen days. That petitioner has served the full term of his sentence as follows, to wit:

“As a trusty under Governor Walton’s leaves of absence, seven months and fifteen days; as a trusty under Governor Trapp’s leave of absence three months; served inside the prison, two months and seven days; work time' allowed by rules of the prison eighteen days, a grand total of fifteen months and six days, yet notwithstanding, said expiration of sentence for one year and one day hé is still restrained of his liberty and unlawfully imprisoned in the penitentiary by the warden.”

The application was heard before the court June 7, 1924, on a rule to. show cause why petitioner should not be released, issued to the warden, and returnable on said date.

The Attorney General, representing respondent, demurred to the petition on the ground that the same does not state facts sufficient to authorize respondent to discharge said petitioner.

The power to grant, after conviction, reprieves, commutations, paroles, and pardons, for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, conferred upon the Governor by Const, art. 6, § 10, includes the power to suspend sentence, upon such conditions as he may deem proper to impose, so long as they are not immoral, illegal, or impossible of performance, provided they are to be kept and performed or complied with during the term for which the prisoner was sentenced by the judgment of the court. Ex parte Ridley, 3 Okla. Cr. 350, 106 P. 549, 26 L. R. A. (N. S.) 110; Ex parte Horine, 11 Okla. Cr. 522, 148 P. 825, L. R. A. 1915F, 548.

The so-called leave of absence granted in this case, and the executive orders extending the same, were in ef-feet orders of suspension of sentence that were, technically speaking, paroles.

In the case just cited, Ex parte Ridley, it was held that

“A ‘parole,’ as the term is used in criminal law, may be defined as the release of a convict from imprisonment upon certain conditions to he observed by him, and a suspension of his sentence during his liberty thus granted.”

A parole granted under the constitutional provision is not the vacation of the sentence imposed, nor is it a commutation of the punishment. It suspends the execution of the sentence, and temporarily releases the convict from imprisonment upon conditions which hé may accept or reject. Accepting the conditions and benefits, upon his return to custody he is required to serve out the unexpired part of the sentence of the court as though no parole had been granted. Expiration of time Without imprisonment is in no sense an execution of the judgment and sentence.

Here it appears that as a condition of the suspension of his sentence petitioner was required to abstain from the use of intoxicating liquors; faithfully follow some useful occupation and avoid all evil associations. The fact that there was no breach of the conditions imposed in no way affected his status as a convict, neither was he entitled to good time during the period of his release, because the statutory diminution of sentence is on account of good conduct while in prison.

' It was argued by counsel for petitioner that under the holding of this court in the case of Ex parte Jones, 25 Okla. Cr. 347, 220 P. 978, that it is essential to the validity of an instrument purporting to be a pardon that it be authenticated under the great seal of the state as the official act of the Governor, and that the orders granting the leaves of absence, not having been so authenticated, as the official acts of the Governor, the warden was not thereby legally authorized to release petitioner, and for this reason his sentence continued to run during his absence from the penitentiary. We deem it sufficient to say that where a prisoner accepts the benefit of an executive order, suspending his sentence, he is estopped from questioning the validity of such order.

It appearing that petitioner at the time of the hearing had served only nine weeks and seven days in prison, and was entitled to credit of eighteen days “work time,” and that under the statute would be entitled to only two months “good time” for good conduct during first year of sentence, which he might have availed himself of, had he not accepted the benefits of the orders suspending sentence.

The demurrer to the petition was sustained, the rule to show cause discharged, and the writ denied.

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


text:
    Ex parte CHARLIE MILLER et al.
    No. A-5449.
    Opinion Filed March 4, 1925.
    (233 Pac. 775.)

    (Syllabus.)
    1. Preliminary Examination — Requirement of Evidence! to Hold Accused for Trial. In a preliminary examination it is not necessary that the evidence upon which the defendant is held to answer for trial be sufficient to support a conviction. It is sufficient if it is shown that an offense was committed and that there Is probable cause to believe the defendant guilty thereof.
    2. Same — Evidence Held Sufficient. In a preliminary examination before an examining magistrate, petitioners were held for trial on a charge of grand larceny, and in a habeas corpus proceeding in this court they asked for a discharge upon the ground that the evidence did not warrant their icommitment. Held, evidence sufficient to show that the crime charged had been committed,, and probable cause to believe the petitioners were guilty thereof. Writ aeniea.
    Application for writ of habeas corpus by Charlie Miller and R. L. Helton.
    Writ denied.
    C. B. Leedy and B. F. Barnett, for petitioner.
    George F. Short, Atty. Gen., John Barry, Asst. Atty. Gen., and T. R. Blaine, Co. Atty., for respondent.
   DOYLE, J.

This is a petition for writ of habeas corpus filed in this court February 19, 1926, whereby Charlie Miller and R. L. Helton seek to obtain their discharge from the Ellis county jail, on the ground that they are unlawfully restrained of their liberty by J. D. Thomas, sheriff of Ellis county. It is averred that they are held in custody by virtue of a commitment issued by L. H. Clark, ex officio committing magistrate and county judge of said county, upon a charge of larceny of about 40 bushels of wheat, the property of Harry C. Brownlee, of the value of $1.60 a bushel. It is further averred that the evidence introduced on the preliminary examination before said committing magistrate was insufficient to show probable cause to believe that a crime was committed of which they were guilty, and that there was no legal or competent evidence to show probable cause, to believe petitioners guilty of the crime of grand larceny as charged, and said commitment so issued by said committing magistrate was without authority of law, and the same is therefore null and void.

It is well settled that the courts exercise a supervising jurisdiction over the proceedings of a committing magistrate by means of habeas corpus, and inquire into the legality of the commitment and the question of probable cause before an information is filed in the trial court. Ex parte Turner, 3 Okla. Cr. 168, 104 P. 1071; Ex parte Beville, 6 Okla. Cr. 145, 117 P. 725; Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142.

The evidence shows that the wheat was stored in a house on Mr. Brownlee’s farm, 11 miles southwest of Ar-nett, and was hauled from there on a Ford truck to Glazier, Tex., and there sold by two men. The defendants were arrested near Glazier, Tex. The car in which the wheat was hauled was identified as the property of the defendants. There was some testimony tending to show that they were the parties who sold the wheat.

The general rule is that the same measure of proof is not necessary in a preliminary examination as in the trial.

In a preliminary examination it is not necessary that the evidence upon which the accused is bound over for trial be sufficiest to support a conviction. Under the statute (section 2497, Comp. Stat. 1921), it is enough if it is shown that an offense was committed and that there is sufficient cause to believe the defendant guilty thereof.

In an examination of a complaint against Aaron Burr before Chief Justice Marshall, sitting as a committing magistrate, he said:

“On an application of this kind I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused; but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it.” I Burr’s Trial, 12 Fed. Cas. No. 14,692a.

After a careful consideration of the evidence taken in the preliminary examination we conclude that it is sufficient to warrant the holding of the petitioners for trial.

Therefore the application for the discharge on the writ of habeas corpus is denied.

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


text:
    Ex parte JOHN A. KENDALL.
    No. A-5172.
    Opinion Filed March 7, 1925.
    (233 Pac. 774.)
    (Syllabus.)
    1. Bail — Right to Bail After Commitment for Capital Offense— Burden on Petitioner. On the hearing of application for admission to bail, after commitment, for a capital offense, to determine whether or not the proof of guilt is evident, or presumption thereof great, the burden is on the petitioner.

      A. Same — ¡Evidence Justifying Bail. Evidence considered; held, that the proof of guilt is not evident, nor the presumption thereof great. Bail is therefore allowed.
    Application of John A. Kendall for writ of habeas corpus to be let to bail.
    Writ allowed.
    Sigler & Jackson, ¡Champion, Champion & George and Hayson & Lukenbill, for petitioner.
    George F. Short, Atty. ¡Gen., and John L. Hodge, Co. Atty., of Carter Co. (R. Brett, of counsel), for respondent.
   DOYLE, J.

In this proceeding, John A. Kendall, petitioner, filed in this court on May 15, 1924, his duly verified petition alleging that he is unlawfully restrained of his liberty by E. C. London, sheriff of Carter county; that the cause of said restraint is that he is being held upon an indictment charging, him with the murder of one Maynard Kendall, which indictment was returned by the grand jury in the district court of Carter county on the 3rd day of May, 1924; that petitioner has been remanded to the custody of said sheriff by W. F. Freeman, judge of said district court, after a full and complete hearing, on a proceeding in habeas corpus to await trial upon said charge without bail; that said restraint and imprisonment are illegal, for the reason that there was no competent or legal evidence introduced on said proceeding showing the commission of the crime of murder, or probable cause to believe petitioner to be guilty of the crime of murder, and at most the proof of his guilt is not evident, nor the presumption thereof great, by reason whereof he is entitled to be admitted to bail upon said charge.

On May 16, 1924, by agreement of the parties the cause was heard upon the evidence taken upon the habeas corpus proceeding before Judge Freeman of the district court of Carter county. Upon a consideration of the testimony and the argument of counsel, it was the opinion of the court that under the evidence submitted, the proof of petitioner’s guilt is not evident nor the presumption thereof great, and that he is accordingly entitled as a matter of right to be admitted to bail. It was therefore on said day adjudged and ordered that petitioner, John A. Kendall, be admitted to bail upon the charge of murder now pending against him in the district court of Carter county, and that his bond be fixed at the sum of $25,000, bond to be conditioned as by law required; and that he be released from custody upon ha® executing and causing to be filed with and approved by the court clerk of Carter county a good and sufficient bond in said sum, conditioned as required by law.

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


author: BESSEY, J.

text:
    W. M. MOTSENBOCKER v. STATE.
    No. A-4302.
    Opinion Filed Oct. 18, 1924.
    Rehearing Denied March 7, 1925.
    (233 Pac. 487.)
    (Syllabus.)
    1. Evidence — Accomplice Testimony — Thief Conspiring with Be-oeiver to Steal Property and Aid i» its Concealment an Accomplice in Crime of Receiving Stolen Roods — Test to Determine Accomplice. Ordinarily a thief i's not an “accomplice” of one subsequently receiving the stolen property, knowing it to be stolen, within the rule requiring corroboration of the testimony of an accomplice; the thief and the receiver of the stolen property are each independent criminals, guilty of separate and distinct offenses.
    (a) But, where the thief and the receiver of the stolen property conspire together to steal the property, with a prearranged plan for the one who actually commits the theft to deliver it to the other at an agreed time and place, and the thief aids and abets the receiver in concealing the property, the thief is an accomplice of the other in the commission of the offense of receiving stolen property.
    (b) The test by which to determine whether one is an accomplice of the other is to ascertain whether or not he could be indicted for the offense for which the accused is on trial.

      %. Same — Evidence Sustaining Conviction. The facts in 'this, case indicate that the thief was an accomplice of the accused, the receiver of the property stolen; but there was sufficient independent corroboration of the testimony of the accomplice to sustain the conviction.
    3. Trial — Necessary for Requesting Instruction on Law of Accomr plices. Under the circumstances the failure of the court to instruct the jury upon the law of accomplices, no 'such instruction having been requested by the defendant, will not operate to reverse the conviction.
    Appeal from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.
    W. M. Motsenbocker was convicted of receiving stolen property, and he appeals.
    Affirmed.
    W. L. Chapman and Joe M. Adams, for plaintiff in error.
    The Attorney General and John Barry, Asst. Atty. Gen., for the State.
   BESSEY, J.

On October 12, 1921, W. Mi. Motsenbocker, plaintiff in error, was by a verdict of a jury in the superior court of ..Pottawatomie county found guilty ;of receiving stolen property, to wit, a Ford touring car, with his punishment fixed at confinement in the penitentiary for a term of five years.

On June 6, 1921, a Ford touring car was stolen from S. I. Lewis, taken from his private garage at Romulus. A few days later it was found in a public garage at Shawnee. The body and wheels of this car when stolen were clean; when the owner found the car in Shawnee other wheels, covered with mud and with a different kind of rim, had been substituted. The clean wheels originally belonging to this car were found on another car, a muddy car, in this public garage, and other changes had been made including the filing away of the original engine numbers and substituting numbers made by steel stencils. The defendant claimed this stolen car by virtue of a purchase from Edward Elkins, stating that Elkins sold it to him for $.459, under an assumed name, as evidenced by a bill of sale in defendant’s possession.

Edward Elkins, a young man 22 years of age, a resident of Geary, Okla., testified in substance that he had known the defendant for about six months prior to the time the car was stolen; that he met defendant in the streets of Shawnee, where he told defendant that he was planning to go to the harvest fields to work. Defendant discouraged him by saying that wages in the harvest fields were low and that the witness could make more in one night than he could by working all through the harvest season. Defendant offered to pay the witness $150 for each car he might steal and deliver at the Norton garage in Shawnee. Witness was directed to change the numbers on the engines with stencils furnished by the defendant.

Acting upon this agreement, the witness Elkins stole the Lewis car and placed it in the garage as directed, and delivered the garage ticket to the defendant. Defendant asked him if the numbers had been changed, and witness told him that he had had no opportunity to change the numbers. For that reason defendant refused to pay witness $150, but said he would, and did, pay him $110 privately on the street in Shawnee. At the request of the defendant witness gave him a bill of sale for the car, éxecuted under an assumed name. Before this trial witness had entered his plea of guilty to an information charging him with the larceny of the car, and was then serving his sentence ■ in the Granite reformatory. It was shown by the testimony of other witnesses that the consideration námed in the bill of sale was $450, and that the defendant paid the witness this sum, or some amount of money, at the office where the bill of sale was executed.

The chief reason urged by the defendant why this conviction should be set aside is that Elkins, who admitted he stole the car pursuant to a previous arrangement with the defendant, if his story be true, was an accomplice with the defendant in receiving the stolen car, and that his testimony is not sufficiently corroborated to sustain this conviction. In the majority of the states which have passed on the question the rule is that a thief is not an accomplice of one who subsequently receives the stolen property, within the rule requiring corroboration of the testimony of an accomplice. Notes and annotations to Leon v. State, 9 A. L. R. 1397.

The courts of some of the states have gone so far as to hold that this applies to cases where there was a previous arrangement between the thief and the person receiving the stolen property for the theft and delivery of the stolen property to the one charged with receiving it. Leon v. State, 21 Ariz. 418, 189 P. 433, 9 A. L. R. 1393; People v. Feinberg, 237 Ill. 348, 86 N. E. 584; Wharton, Criminal Law (2d Ed.) vol. 2, § 1232.

Our own court has held, in Mayes v. State, 11 Okla. Cr. 61, 142 P. 1049, that ordinarily the thief who steals the property is not an accomplice of the one who receives it from him, knowing it to be stolen; that the thief and the receiver are each independent criminals, guilty of separate and distinct offenses. In this case it is further held that the test by which to determine whether one is an accomplice is to ascertain whether or not he could be indicted for the offense for which the accused is on trial.

We think this test is a good one, resting upon sound reason, and applied to the facts in this case, or in any case where the thief and the receiver of the stolen goods conspire together to steal the property with a prearranged plan for the one who actually commits the theft and makes the asportation to deliver the property to the other at an agreed time and place, the receiver of the stolen goods is an accomplice in the theft, and the thief is likewise an accomplice of the other in the commission of the offense of receiving stolen property. In this particular case the thief aided, abetted, and assisted the receiver of the stolen property in receiving it. He placed the stolen car in the garage where he had been directed to take it; he took the garage receipt and delivered it to the receiver; and he executed a bill of sale to the receiver in order to aid him to conceal the car’s true ownership.

For this reason we say that each is an accomplice of the other, for each might be prosecuted as a principal for either the theft or for the receiving of stolen property. Although each was guilty of committing both crimes, the prosecuting attorney had a right to elect as to which of them should be prosecuted for theft and which for receiving stolen property.

The rule as to accomplices, above announced, would apply in cases where there had been no previous arrangement or conspiracy between the two for one to steal and deliver stolen property to the other, or where the thief did not aid and assist the receiver, as was done in this case. White v. State, 23 Okla. Cr. 198, 214 P. 202; Logan v. State, 23 Okla. Cr. 316, 214 P. 944; Buttry v. State, 18 Okla. Cr. 330, 194 P. 286; Price v. State, 9 Okla. Cr. 359, 131 P. 1102.

The testimony of Elkins, moreover, was corroborated in the following particulars: It was shown that the car in question was stolen from its owner a few days before the defendant received it; that the accomplice was known to the defendant, and that he took from him a bill of sale signed with an assumed name; that the car when stolen had clean wheels, with regulation rims on it, and when found at the garage it had muddy wheels with demountable rims, an extra tire and carrier and a motometer, and that standing in the garage near this stolen car was another Ford from which the muddy wheels had been taken and placed on the stolen car; and that the engine numbers on the stolen car' had been recently changed, and there were fresh filing marks and stencilled numbers apparent. The defendant did not take the stand to explain any of these incriminating circumstances. The corroboration of the story of the accomplice was sufficient.

Defendant complains that no instructions were given upon the subject of corroboration. The record shows that none were requested by the defendant. Perhaps the court should have given such an instruction on his own motion, but, in view of the fact that the story of the accomplice was so well corroborated, this omission, if error it was, was not prejudicial to the defendant.

The judgment of the trial court is affirmed.

DOYLE, J., concurs.

MATSON, P. J., concurs in the result.


author: EDWARDS, J.

text:
    WALTER W. DODD v. STATE.
    No. A-4691.
    Opinion Filed Jan. 24, 1925.
    Rehearing Denied March 7, 1925.
    (233 Pac. 503.)
    (Syllabus.)
    1. Evidence — '“Bes Gestae” Defined. It is not possible to define the term “res gestae” by any exact definition which will fit all cases. The term in a general way may be defined as the circumstances, facts, and declarations which grow out of the main fact and shed light upon it and tend to explain it, are voluntary and spontaneous, and made at a time so near, either prior or subsequent to the main act, as to exclude the idea of deliberation or fabrication.
    2. Same — Statement of Deceased During Intermission of Difficulty Admissible as Tending to Show Who Was Aggressor in Renewal of Difficulty. Where a difficulty took place between two persons which, after a brief intermission, was renewed and resulted in the ¡killing of one by the other, a' statement during such intermission by the person thereafter killed in reference to the difficulty, which tends to show the state of mind of the parties when the difficulty was renewed a few minutes later, and which tends to prove who was the aggressor, is admissible.
    3. Trial — Instruction on Self-Defense not Retversible Error as Asr suming Accused Was Aggressor. An instruction in these words: “Tou are further instructed that the right to defend one’s self against danger or attack, not of his own seeking, is an inherent right which the law not only concedes, but guarantees to all men, but the law does not permit a • man to voluntarily seek or invite a combat. The right of self-defense does not imply the right of attack, and will not avail in any case where the difficulty is sought for or induced by the defendant by any willful act of his own, and which the accused voluntarily and of his own free will entered into, no matter how imminent his peril may become during the progress of the difficulty, unless you should believe that after entering into the difficulty the defendant abandoned the difficulty and attempted to withdraw therefrom, in which event the defendant would be entitled to the right of self-defense after- abandoning or attempting to withdraw from the difficulty, although he may have provoked the original difficulty” — does not constitute reversible error as assuming the defendant the aggressor.
    Appeal from District Court, McIntosh County; Hjarve L. Melton, Judge.

      Walter W. Dodd was convicted of manslaughter, and he appeals.
    Affirmed.
    H. West, King & Crawford, and C. H. Tully, for plaintiff in error.
    George F. Short, Atty. Gen., and Kathryn Van Leuven, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, Walter W. Dodd, was tried and convicted for the slaying of John Sellers in McIntosh county, Okla., and was convicted of manslaughter and sentenced to a term of five years in the penitentiary. The facts surrounding the killing, as gathered from the record, are about as follows:

“The deceased, John Sellers, with his father, Alex Sellers, were engaged in running a hotel at Eufaula, and the defendant, Walter W. Dodd, and his brother, Charley Dodd, were guests at the hotel. Some unpleasantness between the deceased, John Sellers, and the plaintiff in error had arisen. A short time prior to the killing, the two brothers drove up at a filling station about a block distant from the hotel, where John Sellers was having some trouble with and was working upon his car. A quarrel took place there concerning which the evidence is conflicting. The defendant and his brother contend that the conversation was an attempt to get the amount of their garage bill from John Sellers for the purpose of checking out at the hotel, and one witness testified that he heard John Sellers say, in response to a call from the plaintiff in error: T ain’t got time to mess with you; I am busy working on my car.’ That they had a few words, and the defendant said: ‘Go get your gun; let’s shoot it out.’ And that he started to walk away and stopped and said: ‘I will see you all some time later.’ Upon cross-examination, however, the evidence of this witness was somewhat contradictory and shaken.
“Shortly thereafter the plaintiff in error and his brother, and Alex Sellers, father of the deceased, were in the lobby of the hotel, and the deceased came into the lobby and immediately struck at the defendant, Walter Dodd, but was caught and held by Charley, a brother of the plaintiff in error. The deceased then attempted to kick Walter Dodd and did touch him with his foot; that the two brothers were in the lobby to settle their hotel bill. The plaintiff in error, Walter Dodd, then either left the hotel or was taken away and went to his car across the street, and there determined to again go into the hotel, as he says, for the purpose of getting his belongings. Another witness testifies, however, that when he left the car to return to the hotel he said: T am going in the back way and get Charley’s gun and kill the damn son of a bitch.’ This witness further testifies that he told Charley Dodd and John Sellers that the plaintiff in error had gone after the gun, which was in an upstairs room; that the elder Sellers then started up the stairs and' was part way up when John Sellers, the deceased, started to follow him; and that Charley Dodd followed John Sellers.
“Alex Sellers, the father of the deceased, testified that hearing a noise upstairs he started up. Part of his testimony is as follows: ‘Q. Then what did you do? A. I headed towards the noise, and the defendant was coming down the steps with a gun in his hand, arid my boy happened to come up after me, passed me, and met the defendant one or two steps up on the third floor, and he ordered him back, which he did do. Q. What did Walter say? A. “John Sellers, go back, God damn you, or I will kill you.” * * * Q. Diid you say anything to Walter? A. I told him, asked him, “Walter, what are you trying to do?” and he says, “I am going to kill that God damn son of a bitch if he hurts my brother Charley.” I says: “Walter, put that gun up. He will not hurt your brother Charley. I will see that he will not do it. Put that gun up.” And he kept coming and saying something about killing the whole family, and about that time my boy darted by me, pushed me against the door of room 64.’
“The deceased made a dying declaration, part of which is as follows:
“ * * I started upstairs, and he was coming back down, and on the landing of the third floor I met him. He had his pistol in his hand, and said, “Go back there or I will kill you if you don’t.” I turned and walked to the landing of the second floor. Papa was coming down, and he passed me, and went up and grabbed at him. I went back to help Papa, and he, Dodd, shot me. I don’t know how many times. I was not armed at all, not even a pocketknife. * * *’
“Margaret Hobbs, an employee of the hotel, testified that she met the plaintiff in error at the top of the steps on the third floor, with a gun in his hand. ‘Q. What did he say? A. That is when he made the remark, “I am going to kill the son of a bitch.” Q. When he made that remark, what was the next thing you heard? A. I heard shots. Q. No, no, I mean while you were there at the head of the steps after he said he was going to kill the son of a bitch, did you hear him say anything besides that to anybody? A. I heard John say, “Is that you, Walter?” No, I heard Walter say, “Is that you John?” and John said, “Yes, for God’s sake don’t shoot me.” ’
“The plaintiff in error testified that after the first difficulty he went to his room, then thought he would go to Charley’s room and get his gun and stick it in his pocket; that he went down the steps and met Mr. Sellers, but didn’t see John Sellers until he reached up at him; then that he told him not to come at him or he would kill him; that both of them came on then; and that he pulled the trigger involuntarily. He did not know how many shots he fired.
“Charley Dodd, the brother of the plaintiff in error, testified about the difficulty occurring just prior to the homicide, and that he was told that Walter had gone upstairs to get the gun, but that he did not go upstairs until he heard a noise; was nearly to the top when he heard the first shot, and had gotten nearly to the top when he heard the rest of the shots, and that John Sellers had been shot five times; that the gun was in Walter’s hands and he was down, against the floor.”

This covers the substance of the evidence touching most nearly on the evidence of the homicide.

The plaintiff in error argues several assignments of error which will be noticed. First, it is contended that the court committed error in permitting the witness Walter Brandon to testify to a conversation he had with John Sellers, the deceased, as follows:

“Q. What was the ■ conversation that you had with John Sellers there at your place that you have described, when he went over there to the hotel; what did he say to you? A. * * * I told him I would take my car and start it for him, and he said, ‘All right.’ He said, T wish you would, as I don’t want to go back over to the filling station.’ He says, T had a little trouble with those Dodd boys over there, and I don’t want to go back over there.’ ”

This was subsequent to the controversy at the filling station which was the beginning of the difficulty which culminated in the shooting of the deceased, and under all the circumstances it was, we believe, a part of the res gestae and properly admitted as such.

The difficulty in which the deceased was killed was in fact a continuous transaction from the beginning of the quarrel at the filling station through the difficulty in the office of the hotel until the killing on the stairway or second floor of the hotel, and under the evidence the statement of the witness Brandon, above set out, was about eight or ten minutes before the shots which killed the deceased were fired.

What constitutes res gestea is often a complex and difficult question. The term is not capable of a definition which will fit all cases, and of necessity must be left in some measure to the sound discretion of the trial court. In general terms, it means the circumstances, facts, and declarations which shed light upon and explain the principal fact, and which are voluntary and spontaneous in their nature, and so nearly contemporaneous as to preclude the idea of deliberation or fabrication. Price v. State, 1 Okla. Cr. 358, 98 P. 447 ; 34 Cyc. 1642; 22 Corpus Juris, p. 454, § 543.

It ¡is contended that the trial court erred in denying counsel for plaintiff in error full rights of cross-examination of the witness Alex Sellers, the father of the deceased, and in making a remark to counsel in reference to such examination: “Be fair with the witness.” An examination of the record discloses that in the course of the cross-examination the court evidently thought counsel did not give the witness time to answer a question propounded, and upon counsel saying to witness, “Answer that question,” the court said: “He is answering your question. Be fair with the witness. Let him answer the question you asked.” This statement of the court was not excepted to at the time, and the examination proceeded. The remark cannot reasonably be construed as having reflected on counsel for plaintiff in error, or as imputing to him any unfairness, but as exercising control over the proceedings. The court made no order limiting the scope of the cross-examination, merely sustained objection to certain questions as argumentative, in which we think there was no prejudicial error.

The plaintiff in error further complains of the giving of instruction No. 18 by the court, as assuming that the plaintiff in error sought or voluntarily entered into the difficulty in which the deceased was killed. This identical instruction was given in the case of Austin v. State, 28 Okla. Cr. 73, 228 P. 1113. The instruction is somewhat involved and not well worded, but is free from any prejudicial error.

Complaint is also made that in the giving of instructions 19, 20, and 21 the court emphasized the rule of law that, if the defendant was the aggressor or entered voluntarily into the difficulty and had not abandoned the same, he thereby lost the right of self-defense, and counsel cite the- case of Price v. State, 1 Okla. Cr. 359, 98 P. 447, to the effect that by constant repetition even a correct instruction may be given un-due prominence. In No. 19 the jury is told in effect that threats of violence by the deceased would not justify the killing, but that threats might be considered along with other circumstances for the purpose of ascertaining who was probably the aggressor in the conflict, and if communicated to the plaintiff jn error might be considered in determining whether the plaintiff in error in good faith believed that his life was in danger at the time he killed the deceased. The jury was then told that threats will not justify the killing if they believed beyond a reasonable doubt that the defendant was the aggressor in the difficulty. The instruction seems to state the law correctly, and no complaint -is made on that score; but it is contended that it is not' applicable under the evidence. In No. 20 the jury are instructed what weight tó give to the previous difficulty between the parties, and they are told that previous difficulties would not justify the homicide if they find beyond a reasonable doubt that the defendant was the aggressor. The instruction correctly states the law on that proposition. In instruction No. 21 the court tells the jury that evidence has been offered as to the reputation of the deceased as a quarrelsome, dangerous man, and for what purpose that is to be considered, and if such fact was known to the defendant, what effect it should have in determining the good faith of the defendant at the time of the killing and as throwing light on who was probably the aggressor in the difficulty. The question as to who was the aggressor -in the difficulty was one of the vital points, and in stating the different propositions of law covered by instructions 19, 20, and 21 it was proper for the court to limit their application to those cases in which a defendant was not the aggressor. It is obvious that where a jury finds beyond a reasonable doubt that the defendant is the aggressor, the application of the principles of law is modified by that fact.

Upon an examination of the whole record, we believe that the plaintiff in error had a fair trial; that the law was fairly submitted by the instructions of the court; that the verdict of the jury is abundantly sustained by the evidence; that the punishment given is not excessive.

The judgment is affirmed.

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


text:
    Ex parte W. J. RADNEY.
    No. A-5279.
    Opinion Filed March 7, 1925.
    (233 Pac. 770.)
    (Syllabus.)
    1. (Bail — On Evidence Insufficient to Create Reasonable Doubt of Guilt, Bail Refused After Commitment for Murder. Upon an application for bail after commitment, upon a charge of murder, on the ground that the proof of guilt is not evident, nor the presumption thereof great, and upon a consideration of all the evidence offered the court is of the opinion that it is insufficient to create a reasonable doubt of the petitioner’s guilt, bail will be refused.

      2. Same. Evidence considered, and held to justify the refusal of bail to a petitioner in custody upon a charge of murder.
    Petition of W. J. Radney for writ of habeas corpus to obtain his release on bail.
    Writ denied.
    Stewart & Williams and H. D. Henry, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen., for the State.
   DOYLE, J.

The petition filed on behalf of W. J. Rad-ney, August 30, 1924, for writ of habeas corpus to be let to bail, discloses that he was committed by Thomas Tur-vey, justice of the peace of Greer county, after a preliminary examination to answer to the district court of that county upon a charge of murder, alleged to have been committed on July 20,1924, in killing one Eugene E. Lynch by shooting him with a pistol. An application for bail was made to the judge of the district court of said county, and the same was denied.

On the application to this court a rule to show cause why the writ should not be awarded as prayed for was issued returnable September 2, 1924. It was averred that the proof of his guilt is not evident, nor the presumption thereof great. On the return day by agreement of counsel the cause was heard upon the evidence taken on the preliminary examination before the district court of Greer county.

Upon a consideration of the evidence upon which the application for bail wás submitted, and the argument of counsel, it was the opinion of the court that petitioner is not entitled to bail as a matter of legal right.

The rule generally approved by appellate courts is that, in denying an application for bail, neither the facts nor the law in such cases will ordinarily be discussed by the court, lest it prejudice the rights of the defendant on his final trial, and we shall adhere to it in this case.

The application was and is denied.

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


text:
    HARDEMAN KING CO. v. STATE.
    No. A-4719.
    Opinion Filed March 7, 1925.
    (233 Pac. 792.)
    (Syllabus.)
    Corporations — On Failure to Serve Summons on Corporation in Statutory Manlier, Court Without Power to Proceed with Trial on Information. Under section 2934, Comp. St. 1921, which provides process for service on a corporation against which an information has been filed, it is necessary that the mode of service provided be followed in order to give the court jurisdiction, and where service of the summons provided in said section is not made, nor waived by the corporation informed against, the court is without power to proceed with a trial on the information.
    Appeal from County Court, Latimer County; L. B. Kyle, Judge.
    The Hardeman Bang Company was convicted of a violation of the Agricultural Seed Act, and appeals.
    Reversed and remanded.
    Arnote, McCain & Emory, 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, Hardeman King Company, a corporation, was adjudged guilty of the crime of selling agricultural seeds without complying with the requirements of law and fined $100. It appears that a traveling salesman of the Hardeman King Company, a corporation of McAlester, Okla., sold in Latimer county some oats in sacks, marked as having a germination test of 88 per cent. The oats were resold and sown, and only a small per cent, germinated. Some of the remainder not sown were sent to a seed analyst, and it developed that they had a germination test of 171 per cent.

Section 3789, Comp. St. 1921, makes it unlawful for any person, firm, or corporation to sell any agricultural seed which are falsely marked or labeled. The following section provides the penalty, and it was upon this statute that the prosecution is based. The information was jointly against the plaintiff in error, a corporation, and C. T. Hardeman, an individual. C. T. Hardeman appeared before the court, with his attorney, was arraigned, filed demurrer, and entered his plea of not guilty. As shown by the record, he stated to the court that he had no authority to enter appearance for the Hardeman King Company, or to stand for any arraignment, or to enter a plea for said defendant corporation, and refused to enter a plea for the corporation. Thereupon the court ordered a plea of not guilty entered.

Several assignments of error are presented, among them that the county court of Latimer county had no jurisdiction over the person of the plaintiff in error, and as this will dispose of the case the other assignments will not be considered.

Sections 2934 and 2935, Comp. St. 1921, are as follows:

“2934. Upon an information against a corporation, the magistrate may issue a summons signed by him, with his name of office, requiring the corporation to appear before him at a specified time and place to answer the charge; the time to be not less than ten days after the issuing of the summons.
“2935. The summons must be in substantially the following form:
“County of-
“In the Name of the State of Oklahoma.
“To the ([naming the corporation) :
“You are hereby summoned to appear before me at (naming the place) on (specifying the day and hour), to answer to the charge made against you, upon the information of A. B., or the presentment of the grand jury of the county of-for (designating the offense generally).
“Dated at the city, or town, of-, the-day of--, 192 — .
“G-H-,
“Justice of the Peace (as the case may.be).”

In 14a, Corpus Juris, p. 880, § 3055, the law is stated as follows:

“Where a statute provides the mode of service on a corporation by which the court acquires jurisdiction, the method of service prescribed must be followed, unless waived by the corporation and in the absence of a compliance with the statutory requirements a trial cannot legally proceed.”

To the same effect, see Thompson on Corporations, Cum. Supp. 1922, § 5651.

The Supreme Court of Georgia in the case of Southern Railway Co. v. State, 125 Ga. 287, 54 S. E. 160, 114 Am. St. Rep. 203, 5 Ann. Cas. 411, said:

“The Penal Code, § 938, provides the process against a corporation which has been indicted. As this intangible person has no physical existence and cannot be taken under warrant, the Legislature has provided a certain mode of service by which the court acquires the power to hear and determine the charge against the corporation under indictment. The sole purpose of the service and notice provided in that section is to bring the artificial person before the bar of the court for trial. Until service is had in the prescribed way, or is waived by the corporation, the trial cannot legally proceed.”

In this case there was no attempt to make service of summons on the plaintiff in error in the prescribed way or any other way, and at the time the trial court ordered the plea of not guilty entered it had no jurisdiction whatsoever over the person of the plaintiff in error, and, having no jurisdiction, its order for entering a plea of not guilty was of no force. It is true that the corporation, plaintiff in error, cannot be physically present at the trial, but the statute has prescribed a method by which jurisdiction might be acquired, and it was incumbent upon the state to pursue that method in order to obtain jurisdiction. Failing in that, the proceeding is a nullity.

The case Is reversed and remanded.

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


author: PER CURIAM.

text:
    Ex parte W. E. ETHERIDGE.
    No. A-5228.
    Opinion Filed March 7, 1925.
    (233 Pac. 776.)

    Petition by W. E. Etheridge for writ of habeas corpus. Demurrer sustained.
    Writ denied.
    Ernest W. Thomas, for petitioner.
    The Attorney General and N. W. Gore, Asst. Atty. Gen,., for respondent.
   PER CURIAM.

Petitioner, E. W. Etheridge, on June 26, 1924, filed in this court a petition alleging that he is unlawfully held in custody and imprisoned in the county jajl of Pittsburg county by Will Anderson, sheriff. A demurrer to the petition was filed, and on July 21, 1924, by leave of court, a substituted petition was filed.

It is averred that petitioner was committed by R. A. Thompson, justice of the peace, McAlester township, Pitts-burg county, after a preliminary examination held June 13,1924, to answer to the district court of that county upon a charge based on section 1867, Conm Stats. 1921, defining the abominable and detestable crime against nature and alleged to have been committed per os upon one Howard G. Johnson, Jr.; that on July 12, 1924, petitioner filed in the district court of Pittsburg county a petition, asking' that a writ of mandamus issue to said R. A. Thompson, justice of the peace as aforesaid, requiring him to grant a change of venue as prayed for in petitioner’s affidavit and motion for a change of venue, and the same was denied, to which ruling petitioner reserved an exception; that for the reasons stated in said petition for writ of mandamus his restraint is illegal and unauthorized. To the substituted petition, the Attorney General filed a demurrer, on the ground that the petition did not state facts sufficient to entitle petitioner to his release.

On authority of Ex parte De Ford, 14 Okla. Cr. 133, 168 P. 58, the demurrer was sustained, and writ denied.


text:
    LEROY SCOTT v. STATE.
    No. A-5339.
    Opinion Filed March 7, 1925.
    (233 Pac. 776.)
    (Syllabus.)
    1. Continuance — Accused Entitled to Reasonable Time to Prepare for Trial. A defendant charged with crime is entitled to a reasonable time to prepare for trial, and( what is a reasonable time will depend upon the circumstances surrounding- a particular case.
    2. Jjury — Negroes not to be Excluded from Jury Service Solely on Account of Color — On Challenge to Panel, Whether Negroes Were Excluded Because of Color, Question of Fact — Duty of Court to Hear Evidence. Under section 1, article 14, of the Amendments to the federal Constitution providing for the equal protection of the law, negroes, otherwise qualified, may not be excluded from jury service solely on account of their race or color, and when a negro is charged with violating the criminal law's of the state, and in apt time challenges the panel of the jury on the ground that persons of African descent were excluded therefrom solely on account of race or color, and offers evidence in support of such challenge, it is the duty of the court to hear the evidence, and it is then a question of fact whether negroes were excluded because of tbeir race or color.
    3. Same — Officers Selecting Jurors May Exercise Discretion, but not Exclude Negroes Solely Because of Color. Officers charged with the duty of selecting and summoning jurors may exercise their discretion in selecting those persons who in their judgment are competent and qualified to serve as such jurors, provided that they do not exclude competent persons who are negroes solely on account of their race or color.
    4. Same — Evidence not Sufficient to Quash Panel of Jury Because Negroes Had Been Illegally Excluded. For evidence which did not sustain a motion to quash the panel of the jury upon the ground that negroes had been illegally excluded therefrom, see opinion.
    5. Appeal and Error — Venue—Ruling Denying Change of Venue not Reversed Except on Showing of Abuse of Discretion. The granting or refusing of a change of venue is discretionary with the trial court, and this court will not reverse a ruling of the trial court denying an application, unless there is an abuse of discretion shown.
    Appeal from District Court, Pittsburg County; Enloe V. Vernor, Judge.
    Leroy Scott was convicted of murder and punishment assessed at death, and he appeals.
    Affirmed.
    Don Emery and I. P. Keith, for plaintiff in error.
   EDWARDS, J.

For brevity the plaintiff in error will be referred to as the defendant; he assigns error as follows: First, that he was not allowed sufficient time for counsel to prepare his defense; second, that negroes were excluded from the jury panel for the sole reason that they were negroes; third, that the court erred in denying a change of venue.

The evidence on the part of the state shows the following state of facts: That Frank Daniels, the slain man, was a driver of a Buick service car at McAlester. On the night of July 23, 1924, after the trains on the Rock Island had passed, a colored man, who had arranged for a drive, got in the car driven by the deceased, and Daniels then drove north from McAlester. The following day, July 24th, a purse which had belonged to Daniels was found in a ditch by the side of the Jefferson Highway, near the town of Crowder, and about the 27th of July the body of Daniels was found in Gaines creek about a fourth or a half mile south of the bridge on the Jefferson Highway. Also blood was found on the south side of the bridge. There were wounds on the head and face of the body found. The skull was crushed and the face mutilated. A handkerchief was tied about one wrist, and a red mark on the other indicated where it had also been tied.

One witness positively identified the defendant as the negro who got in the car with Daniels at McAlester to make the drive. After the arrest of the defendant at Muskogee he made a confession to the officers, at first implicating two other negroes, which negroes were at once apprehended and questioned, and who were able to satisfy the officers that they were not connected with the crime. Defendant was further questioned and implicated a third negro, but a little later stated that he himself killed Daniels, giving in details the circumstances. He was then taken by automobile from Muskogee to McAlester, and on crossing the bridge on thé Canadian river one of the officials in the party asked the bridgeman if he recognized the prisoner, and upon his saying that he did not, or something in substance to that effect, the defendant said in substance that he had bought a half gallon of oil from him on the night of July 23d. The defendant was placed in the penitentiary for safe-keeping, and while there made another confession in the presence of the sheriff, county attorney, the warden, and some other persons, which statement was taken down in shorthand by the county court reporter and transcribed and introduced in evidence at the trial. Prior to that statement the county attorney advised him fully that he was not required to make any statement and that any statement made would be used against him.

The confession made at the penitentiary was full, and gave in detail all the circumstances, and is that the defendant engaged Daniels to drive him to Crowder City, and on reaching there he engaged Daniels to carry him 3 miles further. When they got to the Gaines creek bridge, where defendant was to leave the car, he got out and told Daniels another tire was down, and Daniels got out and looked at it, and he threw a gun on Daniels, tied his hands, went through his pockets, then hit him on the head with the crank of the car, and threw him in the water. He then got in the car, and a short distance from there threw away the pocketbook of the deceased. The evidence showed that on the 24th day of July he was in Muskogee in the Buick car of Daniels, and on his arrest on July 27th the car was found there in a garage, where he had placed it. The watch belonging to Daniels was found in a pawnshop in Muskogee, where it had been pawned by the defendant on the 24th of July.

The defendant testified in his own behalf, and, briefly summarized, his testimony is to this effect: That at the instigation of a friend, one Mike Wordlow, colored, he borrowed a Ford car from Will Smith near the town of Has-kell, and that he and Wordlow were going to McAlester to steal a car. That they drove down the Jefferson Highway, and near Eufaula, on account of a puncture, left the Ford and rode a freight train to Crowder, where defendant stopped, and Wordlow went to McAlester alone to steal the car. That on that night by agreement he was waiting at the crossing of the Jefferson Highway at Crowder when the deceased, Frank Daniels, and Wordlow came along driving north, and there he got into the back seat of the car. They drove north, had a puncture which was repaired, and drove to the Gaines creek bridge. The car stopped on the bridge, and Wordlow got out and said there was a puncture. Then Daniels got out and started to examine the tire, when Word-low covered him with a gun and made him put up his hands and ordered defendant to go through Daniels’ pockets, which he did, and then at the direction of Wordlow tied Daniels’ hands with a handkerchief. He admitted owning the handkerchief taken from the wrist of the dead man. After tying Daniels, defendant testified he walked across the bridge, heard some conversation between Daniels and Wordlow and then a big splash in the wafer, and then Wordlow came across the bridge driving the car. He got in with him, and they drove to Eufaula, where defendant took the Ford and Wordlow the Buick into Muskogee. It was then daylight, and Wordlow then took the Ford and left, and the defendant retained the Buick. That early next morning they drove to Haskell, taking a negro woman and some children with them, and spent most of the day. He further testified that when Wordlow turned the Buick car over to him there was a watch on the front seat which he pawned in his own name. His testimony was the confession at Muskogee was made only after the officers had assaulted and beaten him, and under duress and threat of death, and that the confession made in the penitentiary building at McAlester was under duress. That on the road to McAlester the officers had told him that he must make the same statement there as he made at Muskogee, and just before he made the statement at McAlester the sheriff-privately warned him to tell the same story. The officers denied this in toto, and explained that the confession at Muskogee was in response to questions, and that no threats, intimidation, or violence of any kind was used on the defendant, and that when he made the first statement implicating others they immediately checked up his statement and brought in the negroes implicated to confront him, and that thereupon he changed his story. That at the penitentiary at McAlester the confession was voluntarily made, after being fully cautioned and warned that it would be used against him. There are other incidents corroborating and explanatory details in evidence.

In response to the first contention of counsel that sufficient time for preparation for trial was not granted, the defendant was arrested on the 27th of July. He was arraigned on August 1st, and counsel appointed for him, and he was given 24 hours in which to plead. On August 2d he pleaded not guilty, and the case was set for trial, and on August 21st he withdrew his plea of not guilty and filed a motion to quash, and then demurred to the information, and his plea of not guilty was again entered. A motion for continuance was filed and for a change of venue, and a motion to quash the jury panel was filed; all of which being overruled on August 25th, the case went to trial. Other motions were filed and overruled, and the case was tried. On August 30th the jury returned a verdict finding him guilty and fixing the punishment at death.

Did this constitute such haste as would deny the defendant any substantial right or prejudice him in his defense? The towns of Muskogee and McAleister are some 60 miles apart, connected by railroad, a main highway, and, of course, telegraph, telephone, and mail routes. All the evidence directly bearing on the transaction was either at McAlester or Muskogee, between these points or near them, and defendant and his counsel had more than 3 weeks between the time of the plea at the beginning of the trial to make the necessary arrangements and preparations. The events at that time were fresh, and there would seem to be no reason why the defendant and his counsel would not be as well prepared in that length of time under the record in this case to present the defense as they would have been with longer time. No authorities are cited in support of this contention, and the contention is not tenable.

Upon the assignment that negroes were excluded from the jury panel for the sole reason that they were negroes, the record shows that the three jury commissioners were examined, and the evidence on this point is as follows:

Mr. Stallings:

“Q. What is your name? A. J. F. Stallings.
“Q. Are you one of the jury commissioners? A. I am. ¡i! * *
“Q. Did you in selecting the names from the tax rolls —did you take them in order as they appeared on the tax rolls — -take each name as it appeared? A. No, I would go through the list of names, selecting those I thought would make good jurors. * * *
“Q. Are there any negro taxpayers who are qualified electors in your district? A. There are some. Yes, sir. * ❖
“Q. Did you put any of their names in the jury box? A. Well, it did not occur to me. I never saw one on the jury here. * * *
“Q. What was the reason negroes were-left off the jury? A. I had no reason. * * *
“Q. Did you excuse any citizen or taxpayer in this county from this panel simply because he was a negro? A. No, sir.
“Q. Did you in any instance omit to put the name of negroes on this panel that you came across on the tax roll? A. I do not think I did. I do not recall a negro’s name.”

Another jury commissioner was called and testified:

“Q. What is your name? A. Richard Henley.
“Q. Are you one of the jury commissioners of this county? A. Yes, sir. * * *
“Q. In selecting this jury panel did you take every name as you came to it on the list of the county treasurer’s books? A. I looked at every name I suppose as far as I know.
“Q. Did you take every name that you looked at, or did you omit some? A. Yes, sir. I omitted some.
“Q. For what reason? A. Didn’t know them, I suppose.
“Did you thke every name that you knew? A. Until I got enough.
“Q. In looking over the list did you see the names of any negroes? A. Yes, sir.
“Q. Did you put any of them in the jury box? A. No.
“Q. Why not? A. I supposed that they were not allowed to sit on the jury. * * *
“Q. Mr. Henley, you had no instructions to that effect from the court? A. No.
“Q. You did not omit any names simply because he was a negro? A. No, sir.
“Q. Was there any agreement between the members of the commission not to put any name in the box because of their being a negro? A. No. * * *”

W. W. Williamson, another commissioner, being called testified:

“Q. You are one of the jury commissioners in Pitts-burg county, Okla.? A. Yes, sir.
“Q. Did you exclude any person whatsoever from the list on the ground that he was a negro? A. No, sir.
“Q. Was there any agreement between the jury commissioners to exclude any person from serving on the jury upon the ground that he was a negro? A. No, sir. * * *
“Q. Did the commissioners, as a body, exclude any names that were negroes? A. No, sir.
“Q. As far as you know the members of the jury included any person of any race? A. Yes, sir.”

H. I. Aston, court clerk, testified as follows:

“Q. Mr. Aston, during your incumbency to the office of court clerk of this county do you know whether ne-groes have been drawn upon the jury panel by the jury commissioners? A. Yes, sir. On several occasions.
“Q. Do you know whether members of the precinct commissions have drawn negroes? A. Yes, sir. On several occasions.”

The record further shows that G. T. Hale, a colored man, was called on the jury and sworn as to his general qualifications and excused by the court. This juror, it appeared, was a scavenger working for the town of Krebs, and-testified that he would just about lose his job if he was required to serve on the jury. It would appear proper at that season of the year to exclude a person engaged in that work, regardless of color.

Section 1 of the Fourteenth Amendment to the federal Constitution prohibits any state from making or enforcing any law that denies any person within its jurisdiction the equal protection of the laws, and the exclusion of negroes otherwise qualified solely on account of thedr race and color is in violation of this provision of the Constitution. Smith v. State, 4 Okla. Cr. 328, 111 P. 960, 140 Am. St. Rep. 688, and authorities cited therein; McIntosh v. State, 8 Okla. Cr. 469, 128 P. 735, and authorities therein cited.

The question, however, of discrimination against ne-groes on account of race or color is a question of fact to be determined by the trial court. It is not determined by the mere fact that the jury for the trial of a negro' is composed solely of white men. The officers charged with the duty of selecting jurors may exercise their discretion in selecting those persons who in their judgment are competent and qualified. They are not required to select negroes, but they must not exclude them solely on account of their race and color. When it is claimed that they did so, and a negro charged with crime challenges the panel of the jury on that ground, the court should hear the evidence in support of the challenge, and, if it is of the opinion that as a matter of fact negroes were intentionally excluded from the panel solely on account of their race and color, the motion to quash should be sustained. In this case, on this point, the motion to quash is as follows: First. “Because no jurors of African descent or negroes were included among the jurors .of said panel, but were excluded therefrom for the sole reason that they are negroes.” It was not verified. The court made no specific finding of fact, but overruled the objection on the ground set out, which is a general finding against the contention of defendant.

The statute fixing the qualifications of jurors (section 3523, Compiled Stats. 1921), among other things, provides that jurors shall have the qualifications of electors, andi there is no evidence in the record showing the per cent, of negro population nor the per cent, of taxpayers among them nor the per cent, of qualified electors among the taxpayers. It is not shown that qualified persons were ex-eluded from the list of jurors solely on the ground of their race and color. The contention is not sustained by the showing made, and the court did not err in overruling the motion to quash.

It is then urged that the plaintiff in error should have been granted a change of venue from Pittsburg county.

An application verified by the affidavit of defendant was duly filed setting out the state of feeling in Pittsburg county; that there had been threats of mob violence; that large crowds were about the court at the time of the arraignment, and the feeling was tense; that the newspapers had given great publicity to the crime charged and to the alleged confession; and that it was unsafe to try the case in that county on account of the danger of mob violence. In response to this application the county attorney made an extensive counter-showing, in which was his own affidavit stating that he is largely acquainted with the people of that county, that the county contains an aggregate of 1,368 square miles, has a population of more than 50,000, and denying that there is considerable prejudice against the defendant in that county, and that, if any prejudice exists, it does not apply to persons subject to jury service, or, if so, to a very small per cent, of such.

In addition to the affidavits of the county attorney, 150 other affidavits from citizens scattered throughout Pitts-burg county were filed, in which it is set out that in the opinion of those making the affidavits there does not exist in the minds of the inhabitants of Pittsburg county any bias or prejudice against the defendant that would prevent him from having a fair and impartial trial in that county; that a fair, impartial, and unprejudiced jury can be obtained.

The granting of a change of venue is by statute made discretionary with the trial court, and this court will not reverse a ruling of the trial court denying an application for a change of venue, unless it appears that there was an abuse of discretion. The presumption is that a defendant can get a fair and impartial trial in the county in which the offense is charged to have been committed. The burden is upon a defendant to show his inability to obtain a fair and impartial trial. This has been so often stated by the court that it is not necessary to cite decisions announcing the rule, and under the record in this case there is no abuse of discretion shown.

The assignments above discussed cover the principal points raised in the brief. While some other objections are incidentally suggested, all have had the earnest attention of this court which the gravity of the case requires. The trial and procedure have been according to the law. No reason to disturb the verdict and judgment appears. A case in which.the death penalty is assessed calls for the closest scrutiny. The record must be free from substantial error, and the evidence must make a clear and aggravated case of murder, otherwise this court will reverse or reduce the penalty to life imprisonment. The testimony and explanation of the defendant is but little short of a plea of guilty. The evidence on the part of the state shows a brutal and sordid slaying in a cruel manner.

It is but fair to say that the able counsel who have appeared for defendant in the lower court and in this court were appointed by the judge, but they have evidently given a great deal of effort in behalf of the defendant, and have left nothing undone to safeguard his rights.

The case is affirmed, and, the original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by this court that the judgment and. sentence of the district court of Pitts-burg county be carried into execution on Friday, the 29th day of May, 1925. The warden of the penitentiary at Me-Alester is ordered and directed to cause the sentence to be executed according to law.

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


author: BESSEY, P. J.

text:
    BOB LAXSON v. STATE.
    No. A-4713.
    Opinion Filed March 7, 1925.
    Rehearing Denied April 11, 1925.
    (233 Pac. 791.)
    (Syllabus.)
    1. Appeal and Error — Admitting in Evidence Glass Jars Containing Whisky, Including Labels as Marks of Identification, not Prejudicial Error. There was no prejudicial error in permitting the introduction in evidence of certain glass jars containing whisky, including the labels thereon, there being no showing made of the words or figures or indentifying marks on such labels, but it appearing that the labels were not admitted as substantive evidence but as marks of identification merely.

      2. Same — Instruction on Link andi Chain Theory of Circumstantial Evidence Held Not Prejudicial. As applied to the facts proven, an instruction on the “link and chain” theory of circumstantial evidence was not prejudicial.
    Appeal from County Court, Marshall County; Isaac 0. Lewis, Judge.
    Box Laxson was convicted of the illegal manufacture of whisky, and he appeals.
    Affirmed.
    Don Welch, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

This is an appeal from a judgment and sentence imposing a penalty of 30 days’ imprisonment and a fine of $100 against plaintiff in error, Bob Laxson, defendant in the trial court. From the evidence contained in the record it appears that certain peace officers found at or near the home of Bob Laxson a considerable quantity of corn whisky in several glass containers; that a large number of other glass containers were found in which there was a small residue of corn whisky; the officers also found 25 or 30 barrels, some of which contained mash in the process of fermentation and others of which were empty, but in a condition indicating that they had been recently used for the fermentation of mash. At a spring nearby were found a condenser and other appliances such as are used for making whisky, with other evidence indicating that the cooking process had recently been carried on there. Some of the barrels and other appliances were destroyed on the premises; a quantity of the whisky found was put in certain glass jars and labeled for purposes of identification, to be preserved for evidence.

The defendant made no objections to the seizure of the whisky, but did protest that he did not think the officers had a right to break up a man’s property that way. The testimony was clear that the officers placed the labels on the vessels containing the whisky obtained in the seizure merely for the purpose of identifying it later; the record does not show what marks, figures, or words were used as marks of identification, but from specific evidence and attendant circumstances, it seems manifest that the jury could not have regarded these labels as substantive evidence, but understood that these were merely marks of identification, therefore not within the rule announced in Hybarger v. State, 7 Okla. Cr. 704, 124 P. 1133.

Even if the labels on these glass jars had been improperly admitted, there was so much other evidence establishing the fact that the liquor contained in the jars was the. liquor found and seized on the defendant’s premises that the admission of the labels themselves would have been harmless.

The defendant complains that instruction No. 4 was erroneous and prejudicial, for the reason that the court said:

“The law does not require you to be satisfied beyond a reasonable doubt of every link in the chain of circumstances.”

The court, after giving a model, instruction on circumstantial evidence, concluded the instruction in the following language:

“However, the law does not require that you should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the guilt of the defendant. It is sufficient if, taking all the facts and circumstances together, you are satisfied beyond a reasonable doubt that the defendant is guilty as charged in the information, in which event it would be your duty to find the defendant guilty and to fix his punishment therefor.”

The expression, “each link in the chain of circumstances,” was an unfortunate figure of speech and, under the evidence in this case, inaccurate. The circumstances developed bore no resemblance to a “chain of circumstances,” nor could they be likened to a cable, as has been, suggested /in some cases. Instead of there being a chain of circumstances, the verdict was supported by a multitude of cumulative circumstances, and it was not necessary that every circumstance shown should be established beyond a reasonable doubt. f

The circumstances in this case consisted of a showing that corn whisky was hidden on defendant’s place; that a large number of glass jars contained a small residue of whisky in each; that there were a number of vessels and appliances commonly used for making whisky found there; that the physical conditions shown indicated that whisky had recently been made there. The jury might have had some doubt as to some one or more of these circumstances, but yet been convinced beyond a reasonable doubt of the existence of the others, so as .to arrive at the conclusion that the circumstances proved established the guilt of the accused beyond a reasonable doubt, that they were consistent with each other and inconsistent with any other reasonable hypothesis than that of defendant’s guilt. While the “link and chain” theory of circumstantial evidence was condemned in Ex parte Harkins, 7 Okla. Cr. 464, 124 P. 931, and Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846, and this court still adheres to the rule there announced, yet in a case where the evidence bears no similarity to the links of a chain, but instead consists of cumulative circumstances, independent of each other, an instruction on the link and chain theory may be harmless, and under the circumstances in this case, was harmless.

Without going into details, the court has carefully examined the alleged improper remarks of the trial court complained of, and holds that they were not of a serious character amounting to prejudice.

The evidence shows, beyond all reasonable doubt, that the defendant, either as principal or as an aider and abettor, was guilty as charged. The judgment of the trial court is affirmed.

DOYLE and EDWARDS, JJ., concur.


author: EDWAKDS, J.

text:
    LEO KINNEY v. STATE.
    No. A-4542.
    Opinion Filed Feb. 14, 1925.
    Rehearing Denied March 7, 1925.
    (233 Pac. 246.)
    (Syllabus.)
    Intoxicating liquors — Evidence Sustaining Conviction for Transporting. Evidence examined and found to be sufficient to sustain the judgment.
    Appeal from 'County Court, Oklahoma County; C. C. Christison, Judge.

      Leo Kinney was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    Morris & Tant, for plaintiff in error.
    George F. Short, Atty. Gen., and Leon S. Hirsh, Asst. Atty. Gen., for the State.
   EDWAKDS, J.

The record in this case shows that K. A. Davis, Leo Kinney, and Sol Stevens were at Luther, Okla., on the 19th day of May, 1922. Davis was a white man, and the defendant Kinney and Stevens colored. There was a colored picnic held at Luther at that time. A car belonging to Stevens drove up to a garage at Luther to have a punctured tire repaired. The plaintiff in error Kinney, Davis, and Stevens, were with the car. The plaintiff in error instructed the garage to fix it at his expense, and Davis drove on down farther to the outskirts of town and stopped. Officers who were following examined the car and found 20 gallons of corn whisky in it. They went up to the garage, and the plaintiff in error and the other negro ran and escaped. When Davis was apprehended at the car, according to the evidence of one witness he stated that the car belonged to the negroes.

This in substance is the evidence in the case. The plaintiff in error contends that it is insufficient to sustain a conviction. He testified that he overtook the car on the road where they had a tire down and merely volunteered to help them, as he knew the proprietor of the garage : His codefendant, Harris, testifies that the other negro owned the car and employed him to drive it; that he had no knowledge of its contents and corroborates the plaintiff in error Kinney that he joined them on the road.

If the evidence offered by the plaintiff in error is to be believed he is not guilty. If the evidence of the state and the inferences to be drawn from it are given weight, we think the circumstances are sufficient to sustain the conviction. The weight of the evidence is for the jury, who saw and heard the witnesses, and where the evidence is sufficient this court will not disturb the judgment.

The case is affirmed.

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


text:
    Ex parte MICHAEL NOLAN.
    No. A-5262.
    Opinion Filed March 7, 1925.
    (233 Pac. 787.)
    Application of Michael Nolan for writ of habeas corpus.
    Writ denied, and cause dismissed.
    John J. Carney, for petitioner.
    The Attorney General, for the State.
   PER CURIAM.

This case is a petition for writ of habeas corpus whereby Michael Nolan seeks to obtain his discharge from the county jail of Grant county on the ground that he is unlawfully and without authority of law restrained of his liberty by Frank Hamilton, sheriff, that the cause of his restraint and confinement to the best information and knowledge of petitioner is said sheriff detains and holds him therein without any process or authority whatsoever for so doing.

The petition is not verified, and it is not alleged that an application for habeas corpus has heretofore been filed in the district court of Grant county as required by the rules of this court in cases of this kind.

For the above-stated reasons, the Attorney General moved to dismiss the cause, which motion was and is sustained.


text:
    Ex parte CLARENCE ADAMS et al.
    No. A-5259.
    Opinion Filed March 7, 1925.
    (233 Pac. 788.)
    (-Syllabus.)
    1. Bail — Burden on Petitioner for Bail After Commitment for Capital Offense. Under Const, art. 2, § 8, providing that “all persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great,” upon an application for bail by writ of habeas corpus, after commitment for a capital offense, by a committing magistrate, the burden is upon the petitioner to show that he is illegally deprived of his liberty.
    2. Same — Persons Accused of Bobbery by Use of Firearms Held Entitled to Bail. Petitioners charged with robbery by the use of firearms, as defined by chapter 85, Laws 1923, were held and committed without bail on the preliminary examination. Evidence examined, and held sufficient to Show that petitioners are entitled to be admitted to bail as a matter of legal right.
    Application of Clarence Adams and Alpha Stanton for writ of habeas corpus to be admitted to bail.
    Bail allowed.
    Tillman & Tillman and W. D. Pierson, for petitioners.
    The Attorney General, C. W. King, Asst. Atty. Gen., and C. E. Dailey, Co. Atty., of Bartlesville, for respondent.
   DOYLE, J.

In this proceeding, Clarence Adams and Alpha Stanton have filed a petition for writ of habeas corpus to obtain their release on bail, having been committed by an examining magistrate of Washington county, after a preliminary examination, and without bail, to answer to the district court of that county upon a charge of having robbed the Security National Bank of Dewey; that on the 26th day of July, 1924, an application for 'bail was inade to the judge of the district court of said county, and the same was denied.

On the application of this court, the county attorney and counsel for petitioners having filed a stipulation that the writ need not issue in the first instance, and that the merits may be disposed of upon the transcript of the testimony taken at the preliminary examination before W. P. Tyndall, justice of the peace, upon a hearing August 21, 1924.

It was the contention on the part of the petitioners that they were entitled to bail as a matter of right, upon the testimony taken upon said preliminary examination, for the reason that the proof of their guilt is not evident, nor the presumption thereof great.

Under Const, art 2, § 8, providing:

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof of guilt is evident, or the presumption thereof is great,”

this court has held that, under the constitutional provision, one charged with a capital offense is entitled to bail as an absolute right, “unless the proof of guilt is evident, or the presumption thereof is great,” and in case the proof of guilt is evident or the presumption thereof great, the granting or refusal of bail is a matter of judicial discretion. Ex parte Watson, 1 Okla. Cr. 595, 99 P. 161; In re Fraley, 4 Okla. Cr. 91, 111 P. 662; Ex parte Holden, 171 P. 925.

Upon a consideration of the evidence and the argument of counsel, it was adjudged and ordered that petitioners he admitted to bail in the sum of $20,000 each, bond to be conditioned as by law provided; the same to be approved by the court clerk of Washington county, and, upon approval of the same, said court clerk shall notify the sheriff, of said county, who shall discharge said petitioners from custody.

On September 12th an application to reduce the amount of bail so fixed was made, and for the reason stated, counsel for the state not objecting, bail heretofore granted was reduced to $15,000 each.

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