text:
    BERT BEST v. STATE.
    No. A-5316.
    Opinion Filed Feb. 9, 1926.
    (242 Pac. 1063.)

      H. B. Reubelt and Clark Nichols, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

The information in this case was filed in the district court of McIntosh county on the 30th day of September, 1923, charging appellant, Bert Best, with the murder of William N. Scholl, alleged to have been committed September 8, 1922, by shooting him with an automatic pistol. The case came to trial on November 13th, and resulted in a conviction of manslaughter in the first degree, and assessing appellant’s punishment at confinement in the penitentiary for a term of 4 years.

He has appealed from the judgment rendered on the verdict, and assigns as error that the verdict is not supported by sufficient evidence; that for this reason the court erred in overruling his motion for a new trial. No brief has been filed, and, when the case was called for final submission, it was submitted on the record and the oral argument of counsel for appellant.

It appears that defendant and deceased were both farmers, occupying adjoining farms, and had for a few !days prior to the shooting been having trouble over a fence near defendant’s place. The defendant went to the field where deceased was husking corn, and warned him to keep his cattle away from a water hole which defendant claimed was on his premises. The next day deceased rode up to where the defendant was building a fence between deceased’s pasture and the water hole. He got off and tied his horse, and walked towards defendant, and defendant shot him with a pistol. The bullet entered the breast on the left side between the first and second ribs. Deceased never spoke after the shot was fired. The deceased was unarmed.

Paul Haun testified that he was looking for some of his cows, and saw Mr. Scholl driving a bunch of cattle about a quarter of a mile beyond him and rode towards him. That deceased went over a hill out of his sight, and, when he reached where the cattle were, he heard a shot, and rode on, and saw Mr. Scholl’s horse with the reins over the fence. Defendant was standing nearby with a pistol in his hand. Mr. Scholl was lying there on the ground. That defendant motioned him to come down, •and said, “Bill Scholl came down here to run me out, he went to his hip, and I shot him.” That defendant’s 15 year old son was there with him. That he went after a doctor, and when he returned Hogue Best, defendant’s brother, was standing there with him.

Arthur Brannon testified that he and the defendant were to pasture their stock together on the north side of the water hole. That he rode up there that morning, and defendant was starting this fence. Defendant said, “I went over to see Bill Scholl about those cattle bothering me, and he reared up, and I told him I intended to fence this water hole.” That witness said, “It will take a pretty good fence to hold them,” and rode on. That the ■fence defendant was putting up was simply to fence up the water hole which was near a lane that Mr. Scholl had between his pasture fence and his field fence.

Frank Kirby testified that he went with Deputy Sheriff Kirkpatrick to the scene of the shooting, and found several persons there. That they examined the body, which was dressed in a union suit, duck pants, and jumper, and found a little knife, a wooden husking peg, and some tobacco in the pockets of the jumper.

As a witness in his own behalf the defendant testified that he had lived in the same neighborhood with Mr. Scholl about 12 years, and that Mr. Scholl’s reputation in that community as to being a quarrelsome, overbearing, and dangerous man was bad. That to his knowledge Mr. Scholl “carried a pistol a good deal.” That Mr. Scholl’s cattle would get in the lane there and over to this water hole on defendant’s place. That he went down to ask him to help fix the fence so they would not break in. Mr. Scholl was gathering corn. He told him he wanted him to fix the partition fence. Mr. iScholl said, “To hell with you, it is mighty little of you to ask me to do such a thing. Grass and water and a free range is all outside.” And he said, “I have been thinking about taking that fence out anyhow, and now I will damn sure take it out.” That he told Mr. Scholl that it would force him to fence it, and rode away. That the next morning he was fixing the fence, and saw Mr. Scholl riding towards some cattle. That his dogs ran up there, and they bothered the cattle, and he hollered at his dogs. That Mr. Scholl came on as fast as he could, got off, and tied his horse, and said, “You are doing something I am not going to stand for,” and came through the wire. That witness said, “Don’t come down here to run me,” and he came right on in a long walk, and says, “You are doing something I ain’t going to stand for, me or you will have to leave here.” Witness said, “You don’t mean to run me off my premises,” and Mr. Scholl said, “One of us will damn sure; we both can’t stay here; one of us will have to die,” and “he threw his hand back to his hip pocket, and I shot him.”

Several witnesses testified that the deceased had the reputation of being a quarrelsome and dangerous man.

In rebuttal several witnesses testified that the reputation of the deceased in that community as to being a peaceable and law-abiding citizen was good.

Our Penal Code provides that homicide is justifiable when committed by any person in resisting any attempt to murder such person or to commit any felony upon him, or when committed in the lawful defense of such person, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished. Section 1754, C. S. 1921.

In order to justify the assault and to slay an assailant, within the meaning of this section, there must be an apparent design on the part of such assailant to either take the life of the person assaulted or the infliction of some great personal injury, and, in addition thereto, ■there must be reasonable ground for believing that there is imminent danger of such design being accomplished. The use of a deadly weapon is justifiable for the purpose only of preventing an unlawful and violent attack on one’s person of such a nature as to produce a reasonable expectation or Tear of death or great bodily injury about to be inflicted.

There maybe circumstances under which one violently attacked by another who is unarmed will be justified in using a deadly weapon in his defense, such as great disparity in years, or one greatly his superior physically. Ordinarily, the mere fact that one is approached in a threatening manner by another who is unarmed and who is not his superior physically will not justify him in using such a weapon, Roddie v. State, 19 Okla. Cr. 63, 198 P. 342.

The right to take another’s life in self-defense is not to be tested by the honesty or good faith of defendant’s belief in the necessity of the killing, but by the fact whether he had reasonable grounds for such belief. If he kills his assailant, he does so at his peril, and, where defendant shoots and kills an unarmed and defenseless man, it is for the jury to say whether under the circumstances of the case he could justifiably resist the assault with a deadly weapon.

From all the evidence in the case, carefully considered, it would seem quite plain that this case was one for the consideration of the jury. The trial was in all respects fair, and we think defendant ought to be thankful that the jury dealt so leniently with him.

The judgment appealed from is accordingly affirmed.

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


source: Caselaw Access Project

author: DOYLE, J.

license: Public Domain

text:
    FRANK McPHETRIDGE v. STATE.
    Nos. A-5399 to A-5401.
    Opinion Filed Feb. 12, 1926.
    (243 Pac. 979.)
    James H. Mathers and Thomas Norman, for plaintiff in error.
   DOYLE, J.

The information in the first ease was filed in the county court of Carter county on the 19th day of November, 1923, charging appellant did have in his possession iy2 gallons of whisky with the unlawful intent to sell the same. The case came for trial on the 7th day of October, 1924, and resulted in a conviction, punishment fixed at a fine of $250, and confinement in the county jail for 90 days. October 7, 1924, judgment was rendered in accordance with the verdict.

The information in the second case was filed in said court on the 29th day of March, 1924, charging that appellant did have possession of a still and worm, capable of being used for the manufacture of com whisky. The case came to trial October 10, 1924, and resulted in a conviction, punishment fixed at a fine of $50, and confinement in the county jail for 30 days. October 10, 1924, judgment was entered in accordance with the verdict.

The information in the third case, filed in said court January 23, 1924, charged the defendant with transporting one-half gallon of whisky. The case came to trial on the 8th day of October, 1924, and resulted in a conviction, punishment fixed at a fine of $75 and confinement in the county jail for 60 days.

Appeals were taken from the judgments rendered by filing petitions in error with case-made in this court January 20, 1925, but there has been no appearance on appellant’s behalf on his appeals. When the cases were called for final submission, they were submitted on the records.

Without the aid of oral argument or briefs on the -part of appellant, we have examined the records and are satisfied that the trials were in all respects fair.

Finding the evidence in each case sufficient and no prejudicial errors of law occurring at the trials, the judgments appealed from are affirmed.

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


text:
    BURLEY BENNETT et al. v. STATE.
    No. A-5378.
    Opinion Filed Feb. 13, 1926.
    (243 Pac. 531.)
    Clayton Carder, for plaintiffs in error.

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

The plaintiffs in error were jointly charged, tried, and convicted of a breach of the peace, and, in accordance with the verdicts of the jury, Burley Burnett was sentenced to pay a fine of $100 and to be confined in the county jail for 30 days, and Elmo Davis was sentenced to pay a fine of $100.

Of tbfé various errors assigned and relied upon for a reversal of the judgment, we deem it only necessary to consider the one that the court erred in overruling the motion to set aside and quash the complaint, because the same was not verified, indorsed, presented, and filed in said court of record as an information.

In support of the motion there was filed the affidavit of W. L. Hunter, which, omitting formal parts, reads as follows:

“W. L. Hunter, of lawful age, being first duly sworn upon his oath, states that he has examined the complaint or information filed in the above-entitled cause; that he is the legally elected, qualified, and acting justice of the peace of Hobart City, township, justice district No. 4, Kiowa county, OMa.; that the identical complaint filed in the above-entitled cause was originally filed as the complaint in case No. 1482 of the justice'court before the said W. L. Hunter, justice of the peace as aforesaid; that-the file mark of such justice was placed thereon, a warrant thereunder duly issued, and the defendants and each of them brought before the court to plead guilty or not guilty to such charges; that the defendants upon appearance asked further time to plead and to consult an attorney; that thereafter the defendants appeared and verbally stated to the court that they would make application for change of venue; that thereupon the county attorney of Kiowa county, Okla., made a motion that such pase be dismissed, and the case was by the court, upon the motion aforesaid, dismissed; that thereupon the county attorney requested leave of court to withdraw the complaint filed and of record in cause No. 1482 in said justice court, which application and request was by the court granted; that without further signing or verification, and by merely scratching out with a pen the title of the justice court, and inserting instead the title of the county court, the identical complaint now appears as the complaint or information in the above-entitled cause.
“Affiant further states that the county attorney left and filed copy of said complaint and information in lieu of the original.”

Thus it appears that this prosecution was commenced by filing before W. L. Hunter, justice of the peace, an accusation entitled “Complaint,” which complaint is signed “John T. Hays, County Atty.,” and verified as follows:

“State of Oklahoma, County of Kiowa, ss.:
“I, Mrs. Sam Hassell, being first duly sworn, on oath says that the statements herein contained in the foregoing complaint are true.
“Mrs. Sam Hassell.
“Subscribed and sworn to before mg. this the 3d day of September, 1924.
“W. L. Hunter, Justice of the Peace.”
“It is contended that an information charging a misdemeanor must be verified “to vest the court of jurisdiction over an accused person upon proper and timely objection thereto, and that in the instant case there was no such verification as required by law for such purpose.”

Article 2 of section 17 of the Constitution provides:

“No person shall be prosecuted criminally in courts of record for felony or misdemeanor otherwise than by presentment or indictment or by information. * * * Prosecutions may be instituted in courts not of record upon a duly verified complaint.”

Our Code of Criminal Procedure provides:

“The county attorney shall subscribe his name to informations filed in the county, superior or district court and indorse thereon the names of the witnesses known to him at the time of filing the same. * * * All informa-tions shall be verified by the oath of the prosecuting attorney, complainant or some other person.” Section 2511, C. S. 1921.

In England, at common law, an information was an accusation of a criminal character', exhibited against a person charging him with a criminal offense by the Attorney General, or the solicitor general, and under his oath of office, but in this country, in the absence of statutes changing its character, it is filed by the officer, whatever his title, who exercises the function of prosecuting attorney for the county. In re McNaught, 1 Okla. Cr. 528, 99 P. 241; Slater v. State, 2 Okla. Cr. 464, 102 P. 719, 25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935; Ex parte Long, 26 Okla. Cr. 259, 223 P. 710.

In Gibson v. State, 26 Okla. Cr. 246, 223 P. 406, it is held:

“The county court has no jurisdiction as a court of record to place a defendant upon trial upon a verified complaint only.”

And see Whittemore v. State, 26 Okla. Cr. 338, 223 P. 890.

Our Code of Criminal Procedure provides:

“The indictment or information must be set aside by the court, in which the defendant is arraigned and upon his motion in any of the following cases:
“First. When it is not found, indorsed, presented or filed, as prescribed by the statutes.” Section 2597, C. S. 1921.

It is undisputed in the instant case that the complaint or accusation was not again verified after the cause was dismissed in said justice of the peace court.

Under the statute it is essential to the validity of an information charging a misdemeanor, filed in a court of record, that the same be verified by the oath of the prosecuting attorney, the complainant, or some other person, and the failure to have the accusation in this case again verified before the same was filed in the county court ■ was, in our opinion, fatal to the sufficiency of the same as an information, and for this reason the trial court erred in overruling the defendant’s motion to 3et aside and quash the same.

The judgments appealed from herein are accordingly reversed, with direction to the trial court to sustain the motions to strike and quash.

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


author: EDWARDS, J.

text:
    DAVE FULSOM v. STATE.
    No. A-5201.
    Opinion Filed Feb. 13, 1926.
    (243 Pac. 532.)
    Kelly Brown, for plaintiff in error.
    Geo, F, Short, Atty. Gen., for the State.
   EDWARDS, J.

' The plaintiff in error, hereinafter called defendant, was convicted in the county court of Muskogee county of having unlawful possession of intoxicating liquor, sentenced to pay a fine of $100 and to be confined in the county jail for a period of 30 days. The only assignment of error argued is that the evidence is insufficient to sustain the verdict. It is not often this court reverses a case on the insufficiency of the evidence, for the rule is well established that, where there is any evidence reasonably tending to support the judgment, its weight is for the jury, and this court will not disturb its verdict on account of insufficiency. We have examined the record before us, and have concluded that the evidence does not reasonably sustain the verdict and judgment.

Briefly stated, the evidence is that the daughter of the defendant owned a house in the town of Muskogee in which the defendant and family had resided. On the 26th of December, this house was searched and a considerable quantity of mash found which was in a state of fermentation, and there was some evidence that it was capable of being used as a beverage. The defendant was not at the premises when they were searched, and his evidence, in the main part undisputed, is that, on the 17th day of November preceding, he with his family moved from the place in question to another place about 2l/2 miles away, and that the house where the search was made had been rented to one Jones, who was in full charge, that on the day of the search defendant went to the house, suspected that some violation of the law was taking place and had his wife call the sheriff’s office and inform them of the matter, and that it was in fact on his information that the search was made. The evidence tending to connect the defendant with the transaction was that of R. A. Payne, deputy sheriff, as follows:

“Q. Had you ever seen Dave Fulsom there at that place before this occasion? A. Yes; I have. Q. About how long before that had you seen him there? A. I had seen him driving out of there one morning about 9 or 1Ó o’clock. Q. You don’t know how long it was before that? A. It seems something like a week but I don’t know.” 5

The evidence discloses a strong suspicion that the defendant may have had some connection with the possession of the mash and the preparation to manufacture whisky, but lacks proof of the possession of that conclusive character sufficient to sustain the verdict and judgment, which is essential in a criminal case.

The case is reversed and remanded.

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


text:
    In re OPINION OF THE JUDGES. In re FARMON SUTTON.
    No. A-6050.
    Opinion Filed Feb. 13, 1926.
    (242 Pac. 539.)
   To His Excellency, Governor of the State of Oklahoma—

Sir:

In response to your official communication of February 5, 1926, asking for an opinion as provided in section 2786, Comp. Stat. 1921, in the matter of the conviction of Farmon Sutton upon a charge of the crime of murder in the district court of Hughes county on the 4th day of February, 1926, and who was by the judgment of said court on said date sentenced to be put to death by electrocution on the 9th day of April, 1926. We hereby submit the following opinion of the judges:

EDWARDS, J.

The record submitted and to which is attached your request above mentioned discloses that the said Farmon Sutton was charged with murder by information in the district court of Hughes county and that said information was filed in said court on the 4th day of February, 1926. Under the Constitution and laws of this state, any person convicted of a felony may appeal within six months from the time judgment is rendered. Section 2808, Comp. Stat. 1921. By the provisions of this section of the statute, the defendant, if he takes proper steps, may perfect an appeal to this court. It has been the uniform holding of this court that the provision of section 2786 of the statute of this state contemplates an advisory opinion, where an appeal has not been taken from the judgment and sentence of death. To render an advisory opinion, where an appeal has been taken, or where the time given for appeal has not expired and appeal might be perfected would be to prejudge a case upon an ex parte proceeding, which might later be brought before the court upon an appeal. We cannot assume that the defendant will not appeal until the time for such appeal shall have expired or the right to appeal shall have been expressly waived.

In order that the defendant shall not be deprived of his right to appeal within six months, the execution of the sentence of death should be postponed to some date after August 4, 1926. If, in the meantime, the appeal is perfected and filed in this court, such appeal will automatically give the accused the right to a further suspension of the execution of sentence until the appeal shall be determined upon its merits.

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


author: PER CURIAM.

text:
    EDGAR EDDINGTON v. STATE.
    No. A-5500.
    Opinion Filed Feb. 13, 1926.
    (243 Pac. 535.)
    R. C. Roland, for plaintiff in error.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On motion of the Attorney General supported by affidavit, it is made to appear that the plaintiff in error, Edgar (Ed) Eddington, is now a fugitive from justice, and cannot therefore be made to respond to the orders of this court.

The appeal herein is therefore dismissed.


text:
    Ex parte ED EDDINGTON.
    No. A-5943.
    Opinion Filed Feb. 13, 1926.
    (243 Pac. 535.)
    John B. Ogden, for petitioner.
    The Attorney General and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

On motion of the Attorney General, supported by affidavit, it is made to appear that the petitioner is now a fugitive from justice, and cannot therefore be made to respond to the orders of this court.

The application for writ of habeas corpus is therefore dismissed.


author: BESSEY, P. J.

text:
    J. W. ASH v. STATE.
    No. A-5317.
    Opinion Filed Feb. 13, 1926.
    (243 Pac. 765.)
    John L. Gilson, for plaintiff in error.
    The Attorney General and G. B. Fulton, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

In this case Van C. Whittet, 42 years of age, by occupation an auctioneer, residing at Guymon, was the prosecuting witness. The defendant, J. W. Ash, was a deputy sheriff at Guymon. Some weeks prior to the shooting affray Mr. Ash went to California on business, and during his absence Mr. Whittet and defendant’s 17 year old daughter eloped and were married, contrary to the wishes of the girl’s parents. The defendant claims that Whittet practically abducted his daughter, and that the marriage was accomplished by undue influence by means of force or fear.

As soon as Whittet and his wife, defendant’s daughter, returned to Guymon, the defendant went to their home, as he claims, to see his daughter for the purpose of ascertaining from her the details of the incidents connected with her elopement and marriage. Whittet claims that after the marriage the defendant had made threats of violence against him, and that when the defendant came to his home he feared that he was there for the purpose of putting his threats into execution. After some hostile conversation between the two men Mrs. Whittet went outside to talk with her father. As they stood at the corner of the house engaged in conversation, Whittet stepped out of the door and off the porch, with his right hand behind him, facing the defendant and his daughter, three or four paces distant. As soon as the defendant saw Whittet in this position the defendant pointed his pistol downward, in the general direction of Whittet. Whittet then drew his pistol from his hip pocket, and the two men fired at each other at practically the same moment. Some of the witnesses indicated that the firing of Whittet’s gun was slightly in advance of the shot fired by defendant Ash.

From the record it is difficult to determine which of the two men was the aggressor, or which one was the more at fault. The marksmanship of both was bad, or possibly it was a kind of sham battle, without the intent on the part of either to kill. At any rate, no blood was spilled.

The defendant complains that he was not permitted to show the circumstances surrounding the elopement or abduction of his daughter, the prime cause of the affray. Under the circumstances, we think he should have been permitted to do this, as tending to shed light on the purpose of his visit at the scene of the difficulty, and as tending to explain which of the two was the real aggressor. Under the evidence the law relating to an assault with intent to injure, but without an attempt to kill (an included offense), should have been submitted to the jury. Sections 2740, 1756, and 1764, Comp. Stat. 1921; Campbell v. State, 14 Okla. Cr. 319, 170 P. 915.

The defendant was given the minimum punishment prescribed by section 1756, supra, being the statute on assault with intent to kill, and, since the jury might under proper instructions have found him guilty only of an assault to do bodily harm (an included offense) under section 1764, and might under the latter statute have assessed the penalty at a mere nominal jail sentence, the failure to instruct on the lesser and included offense was prejudicial error.

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    HARRISON YOUNG v. STATE.
    No. A-4886.
    Opinion Filed Feb. 15, 1926.
    (243 Pac. 763.)

      L. F. Koberts and L. P. Mosier, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and -Baxter Taylor, Asst. Atty. Gen., for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiff in error will be referred to as defendant. The defendant was informed against for murder of Ad Black, alleged to have been committed in Osage county on the 10th day of December, 1921. He was convicted of manslaughter in the first degree, and his punishment fixed by the jury at 18 years in the state penitentiary. An application for an order that the case-made for appeal be furnished the defendant as a poor person was overruled. The case was brought to this court by a transcript of the record and the failure of the trial judge to order a transcript of the evidence assigned as error. Jeffries v. State, 9 Okla. Cr. 573, 132 P. 823; Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338; Harris v. State, 10 Okla. Cr. 417, 137 P. 365, 139 P. 846.

Upon an examination of the transcript of the record, this court was of the opinion that the defendant was entitled to have transcript of the evidence taken furnished him without cost as a poor person, and, under the provisions of section 786, Comp. St. 1921, directed the trial court to have same furnished. This was done, and the entire record, including a transcript of the testimony, is at this time before the court.

The evidence discloses that the homicide took place at the home of the deceased, where a dance was being held. Both the defendant and the deceased had been drinking. At one time during the evening defendant brought his brother to deceased, and told him that his brother wanted a drink of whisky, and deceased then referred to the brother by an opprobrious epithet, upon which defendant became angry, and started to leave the premises. Deceased then apologized, and informed defendant he was only joking. Later they again went out of the house and had gone but a short distance when defendant with a pistol fired one shot into the ground, and fired a second shot which passed through the heart of deceased, who died without speaking. The deceased was unarmed. There was some evidence that before the shots were fired deceased caught defendant by the collar. The defendant testified that he had been out with the deceased that day; that when they returned they had some whisky, which, at the direction of deceased, he put in the corner of the crib; that just preceding the difficulty he went out of the house and deceased followed him, took hold of his shoulder, and turned him around, and got him by the collar, and that he backed away, told the deceased to turn him loose, that he did not want any trouble, pulled out his pistol, and fired it into the ground, and again told the deceased to turn him loose; that he did not intentionally fire the second shot which killed deceased. After the deceased had fallen, the defendant walked away, and later returned to the house; was accused by the wife of the deceased with having killed her husband, which he denied, and said he had no gun, and asked that he be searched. There was some evidence, although contradicted, that the deceased when drinking was of a turbulent character.

The court instructed the jury fully as to the law of murder, and submitted to them the further issue of manslaughter in the first degree, and instructed them upon the law of self-defense and excusable homicide when committed by accident and misfortune, or upon a sudden combat.

The first assignment is based upon the exclusion by the court of affidavits of the witnesses Charlie Marlar, Robert Marlar, and Jim Hendricks, who testified for the state. It appears that these witnesses, at some time prior to the trial, each had made an affidavit for the defendant to be used in an application for bail. Such affidavits in part are different from the testimony given. The witnesses admitted making the affidavits, and it was then sought to offer the affidavits in evidence. The court sustained an objection, and stated that the witness might be asked if he had made an affidavit in which he testified differently from what he did on the stand. Upon this point the following is shown by the record as to the witness Charlie Marlar, which will illustrate the contentions made:

“Q. Now, Charlie, you made an affidavit in this case, did you not? A. Yes, sir.
“Q. I will ask you, Charlie, if that is your signature [indicating] ? A. Yes, sir.
“Q. And this is your affidavit? A. Yes, sir.
“Mr. Roberts: Now we want to offer the affidavit in evidence and have it marked Exhibit 5, I believe.
“Mr. Wheeler: We object.
“The Court: Objection sustained. (Thereupon counsel produces instrument which is handed to the reporter and by the reporter marked for identification as Exhibit 5).
“Mr. Roberts: I would like to ask the court upon what theory?
“The Court: Upon the theory that you may ask hfm if he testified or if he made an affidavit in which he testified different from what he has on the stand. ■
“By Mr. Roberts: I will ask you, Charlie, if you didn’t say in this affidavit: ‘State of Oklahoma, Osage County, Affidavit, Charlie Marlar being duly sworn says that he was at the home of Ad Black in December at a dance, and that while there he saw Harrison Young leave the house, and said to Ad Black, “Come out, Black,” and Ad Black replied, “I am coming,” and Ad Black followed him, and that he followed them outside the door, and that when they had gone about 15 feet from the door he saw Harrison Young shoot into the ground, and that after the shot was fired Black grabbed Young, and Young backed away about 5 feet, with Black following him, having hold of him and clutching him when shot was fired, and Black was hit, and that he himself then turned at once and went into the house to phone a doctor.’ Did you make that affidavit? A. Yes, sir. * * *”

Evidence, tending to show the interest or bias of a witness, may be properly elicited on cross-examination, and a witness may be impeached by showing that he has made statements different from the testimony given by him. In this case it was proper to inquire as to the fact of making the affidavit and of the contradictory statements therein made. The statement, however, was not competent as substantive evidence. The ruling of the trial court permitting counsel for defendant to read to the witness from his affidavit the statements made by him, claimed to be contradictory, was sufficiently liberal to bring squarely before the jury the statements claimed to be contradictory and sufficient to impeach the witness if the statements in the affidavit were contradictory. The entire affidavit is not necessarily admissible; for instance, it might be sought to contradict a witness by showing that the giving of testimony in some former trial was different from that in the trial then in progress — in such case the entire testimony of the witness would not be admissible, but only those parts claimed to be contradictory. There was no error in the ruling of the trial court on this point.

The second assignment of error is based on the court’s instruction No. 15, submitting to the jury the issue of manslaughter in the first degree, in killing deceased in a heat of passion, without a premeditated design. It is contended that there is no evidence of anger or heat of passion, and the instruction is not applicable to the facts proven. The correctness of the instruction as an abstract proposition of law is not questioned. There is no direct testimony that the defendant was in a state of anger or in a heat of passion at the time of the homicide, but the defendant did testify that there was a scuffle between him and the deceased; that the deceased was choking, him; that he had fired one shot into the ground as a warning. He further testified that a short time prior to the fatal difficulty the deceased had referred to the brother of defendant with an opprobrious term, upon which the defendant started to leave the premises. This might reasonably be construed as some evidence of anger on the part of the defendant at the time of the fatal difficulty.

It is next contended that the court erred in refusing defendant’s request for an instruction upon manslaughter in the second degree. It is argued that, under the evidence, both the defendant and deceased were intoxicated, and at most the defendant was guilty of nothing more than culpable negligence in handling his revolver. Upon that issue the court instructed the jury that, if they believed the defendant drew his pistol to resist some threatened offensive made by deceased and for the purpose of deterring deceased, and in a struggle over the pistol it was accidentally discharged, their verdict should be not guilty. The offense of manslaughter in the second degree did not arise under the evidence in the case. There was no error in the court's refusal to submit that issue to the jury.

It is also contended that the court erred in instruction No. 5, wherein the court stated to the jury the theory of the defendant, and, in doing so, said: “The defendant neither admits nor denies that he fired the shot that killed deceased.” This, it is urged, did not state the facts correctly, and would lead the jury to believe that the defendant was dissembling. The language, we think, cannot reasonably be taken as a comment or criticism by the court of the testimony of the defendant. The testimony of the defendant upon the firing of the second shot is rather ambiguous; upon that point the following appears in the record:

“Q. About how long did Ad Black have hold of you before you shot him? A. I didn’t shoot him. * * *
“Q. What was your purpose in firing that gun the first time? A. Was to have him turn loose of me. * * *
“Q. You fired that first shot intentionally? A. Yes; straight into the ground, just like that; right like that [indicating], straight into the ground. * * *
“Q. How long a time was it between the first shot and the second? A. I could not possibly say. We had backed some few feet. I don’t know just how far from the time of the first shot until the second one was fired.
“Q. Would you indicate to the jury by clapping your hands about the interval between these two shots? A. Well, I would not know, because I did not know until the hold broke loose when this last shot was fired. * * *
“Q. You still had this pistol? A. Yes, sir.
“Q. What did you do with it? A. I put it back in the scabbard. * * *”

Finally, it is contended that the evidence is insufficient to sustain the verdict. This contention is not tenable. Where there is evidence from which the jury may reasonably and logically find a defendant guilty, its weight and value is peculiarly within the province of the jury. Although the evidence may be ■ conflicting, this court will not substitute its judgment for that of the jury and set aside the verdict for insufficiency of the evidence.

Upon the consideration of the entire case, it appears that the defendant was fairly tried, the issues fairly submitted, and there is no error that would warrant this court in disturbing the verdict.

The case is affirmed.

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


text:
    JOE RANDALL v. STATE.
    No. A-5236.
    Opinion Filed Feb. 20, 1926.
    (243 Pac. 983.)

      Deupree & Deupree and A. J. Taft, for plaintiff in error.
    George F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   DOYLE, J.

Plaintiff in error, Joe Randall, was tried on a plea of not guilty to an indictment of which the charging part is as follows:

“That is to say, that the said defendant, in the county aforesaid then and there being, did then and there willfully, unlawfully, wrongfully and feloniously, assault and strike one Joe Pack upon the head with a certain piece of steel approximately ten inches long and weighing approximately one pound, which said steel was then and there had and held in the hands of him, the said defendant, with such force as to overcome all resistance on the part of the said Joe Pack, and by means and use of such force, as aforesaid, and while the said Joe Pack was overcome by means of such force, he, the said defendant, did willfully, unlawfully, wrongfully and feloniously take, steal and carry away from the person of the said Joe Pack approximately $40 good and lawful money of the United States of America, the personal property of the said Joe Pack, with the unlawful, wrongful and felonious intent then and there on the part of said defendant to appropriate said property to his own use and benefit, and to deprive permanently said rightful owner thereof, contrary to,” etc.

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

“7. Under the law any person who with the use of any firearm or other dangerous weapon attempts to rob or robs any person, or who robs or attempts to rob any place of business attended by any person, either in the day or nighttime, shall be deemed guilty of a felony, and upon conviction thereof shall suffer death or imprisonment at hard labor in the state penitentiary for a time of not less than 25 years, at the discretion of the jury.” Exception allowed. William H. Zwick, Judge.

The jury returned their verdict finding “the defendant guilty as charged in the indictment and fixing his punishment at 25 years in the state penitentiary.” Motions for a new trial and in arrest of judgment were overruled, and on March 6, 1924, the court pronounced judgment and sentence in accordance with the verdict.

In support of the contention for defendant that the judgment should be reversed and a new trial ordered, numerous errors are assigned which will be taken up in the order presented in his brief.

It is first contended that the court erred in overruling defendant’s motion in arrest of judgment, which was based on the ground that the indictment did not state facts sufficient to constitute a public offense, and that the indictment did not sufficiently inform him of the crime of which he is accused, for the reason that the charge was made under chapter 85, Session Laws of 1923, and not under section 1784, C. S. 1921, which defines “robbery” as follows:

“Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear.”

Chapter 85, Session Laws 1923, § 1, reads:

“That any person or persons, who, with the use of any firearms, or any other dangerous weapons, attempts to rob or robs any person or persons, or who robs or attempts to rob any place of business, residence, bank, or other place, inhabited or attended by any person or persons at any time, either day or night, shall be deemed guilty of a felony, and upon conviction therefor shall suffer death, or imprisonment at hard labor in the state penitentiary for a time of not less than twenty-five (25) years, at the discretion of the jury.”

This statute does not define the crime of robbery, but merely increases the punishment for the crime as defined by section 1784, supra, when accomplished with the use of any firearm or other dangerous weapon, and is in effect a statute of classification. Generally speaking, robbery is a larceny, with aggravated features added, and the larcenous taking of money or goods of any value from the person of another, or in his presence, against his will, by force or by putting in fear, is robbery. The indictment follows the language of the statute and alleges all the essential elements of the crime of robbery. It follows that the motion in arrest of judgment was properly overruled.

The second assignment is that the evidence is insufficient to sustain the verdict.

Joe Pack, proprietor of a pawnshop and clothing •store, located at Broadway and California streets, in Oklahoma City, testified that defendant came into his place of business about 5:30 in the evening of December 13, 1923, and first inquired about a trunk, then stated that he wanted to buy some clothes; that he tried on a suit, an overcoat, cap, shoes, and overshoes; that the clothes were altered, he then put them on again, and then told Pack that his money was in his other clothes, .and he went back of the partition into a part of the store used for a dressing room. He remained there for some time, and finally Pack went back to see what was the matter. Defendant said that his belt buckle was broken and Pack leaned over to examine it, and defendant struck him over the head with a steel bar about ten inches long and took $40 from his pocket and then fled. He was apprehended a short time afterwards by two police officers, one of whom testified after they had taken defendant to jail they asked him where the steel bar was, and defendant told them; then they took defendant to the described place and found the steel bar where he said it was.

The defendant, a negro, as a witness in his own behalf, testified that he was 19 years old, that as he passed Pack’s store he saw a trunk which attracted his attention, and after inquiring about its price was solicited to look at some clothes and other articles, and after trying them on made an agreement to purchase the articles for the sum of $25; that while he was trying on the clothes in the back part of the store, Joe Pack came back to him and proposed that he make settlement back there; that a disagreement arose as to the price; he paid him $25, and Pack demanded $15 more, which he refused to pay. Pack caught him by the shoulder and raised his hand to strike him, and that he got hold of a piece of iron and tapped him on the head with it, but did not take any money from him.

It is the province of the jury to determine disputed matters of fact, and the foregoing statement is sufficient to show that the case was one for the consideration of the jury.

It is contended that instructions Nos. 7 and 8, taken together, advised the jury that the iron bar was a dangerous weapon; that if they found that defendant used it in the manner set out in the indictment, he would be guilty of a felony, and subject to punishment of either death or imprisonment for not less than 25 years; that where one is charged with a crime, which has one of the elements of that crime, the use of a dangerous or deadly weapon, and the prosecution relies on the use of the instrument which is not necessarily deadly or dangerous, the court from the evidence must submit to the jury the question whether or not that particular instrument as used was a deadly or dangerous weapon. Citing Clemons v. State, 8 Okla. Cr. 452, 128 Pac. 739.

In Winfield v. State, 18 Okla. Cr. 257, 191 Pac. 609, the defendant was charged with robbery by the use of firearms and his punishment assessed at imprisonment for five years in the penitentiary. In that case we held that:

“Where the evidence on the part of the state clearly establishes all the essential elements of robbery in the first degree against the defendant on trial, he may be prosecuted and convicted of that included offense.”

It will be observed that this indictment does not allege that the iron bar was a dangerous weapon, and it does not appear from the testimony that the alleged use of it caused any bruise or abrasion, and for this reason we are inclined to think that the court should Have submitted the issue of robbery committed without the use of a firearm or other dangerous weapon; however, the instructions requested by counsel for the defendant did not include a request to submit this issue to the jury.

Under Code of Criminal Procedure (sec. 2820, C. S. 1921), this court is authorized to modify the judgment and séntence of trial courts in criminal cases, when such a course would be in furtherance of justice, and conduce to the humane administration of the law, and the remedy in cases like this is found, not in a new trial, but by reducing the punishment.

Upon an examination of the whole record, we are convinced that the punishment imposed is excessive, and that the judgment should be modified by reducing the sentence to imprisonment in the penitentiary for a term of five years, the minimum punishment prescribed for the crime of robbery.

The judgment and sentence appealed from as thus modified will be affirmed.

BESSEY, P. J., and EDWAKDS, J., concur.


text:
    SAM GREEN et al. v. STATE.
    No. A-5035.
    Opinion Filed Feb. 20, 1926.
    (243 Pac. 533.)

      Morgan & Osmond, for plaintiffs in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The defendants were informed against in the county court of Caddo county on a charge of maintaining a nuisance by operating a place where intoxicating liquors were kept for sale, and where persons congregate and resort for the purpose of drinking intoxicating liquors.

Defendants moved to quash the information, setting out that prior thereto they had been indicted by a grand jury of that county on a charge of violating the prohibitory liquor law in selling intoxicating liquors, and that the indictment upon motion had been quashed, and the defendants discharged, and no order to resubmit the same to another grand jury or for the'filing of an information had been made. A copy of the indictment is attached to the motion with a copy of the order to quash. The motion to quash was overruled. A demurrer was then filed to the information, in which it was urged that the act under which the prosecution was instituted (section 13, c. 70', of the Session Laws 1910-11) is unconstitutional, as not being embraced in the title of the act. This demurrer also-was overruled, and upon the trial defendants were convicted and sentenced to pay a fine of $250, and to confinement in the county jail for a period of 90 days.

It is first argued that the filing of the information upon which the prosecution was had after the indictment had been quashed, and without an order of the court directing the filing of an information, is in violation of the provisions of section 2604, Comp. St. 1921. This court has held that said section has no application to indictments for misdemeanors. In the case of Ex parte Dodson, 3 Okla. Cr. R. 514, 107 P. 450, it was said:

“The sustaining of a demurrer to an indictment, charging a misdemeanor, is no bar to a subsequent prosecution by information for the same offense.”

In this case, however, the information upon which the defendants were tried charged an entirely separate and distinct offense from the offense charged in the indictment. So in no event could section 2604, supra, have any application.

It is next contended that the section under which the prosecution is had (i. e., section 7022, Comp. St. 1921) is unconstitutional, for the reason that in the original enactment of said section as a part of chapter 69 of the Session Laws 1907-08, the. title did not embrace the subject-matter as required by section 57, art. 5, of the Constitution. We deem it unnecessary to determine whether or not the title of the act in question included the offense charged, for the reason that the section here challenged was embodied in the Laws of 1910, as revised and compiled by the Code commission, and was adopted along with the entire Code by the Act of March 3, 1911 (Laws 1910-11, c. 39) which took effect May 16, 1913.

It is next argued, as we understand defendants’ contention, that the evidence is insufficient, for the reason that there is no proof that the place alleged to be a public nuisance had ever been so declared by a court of record, and that, as the section under which the prosecution was conducted, among other things, provides for the abatement of such place by the judgment of a court of record, a conviction could not be had for maintaining a public nuisance until such place had been adjudged a public nuisance as in said section provided. The section of the statute is as follows:

“7022. All places where any spirituous, vinous, fermented or malt liquors, or any imitation thereof, or substitute therefor; or any malt liquors or compounds of any kind or description whatsoever, whether medicated or not, which contain as much as one-half of one per centum of alcohol, measured by volume, and which is capable of being used as a beverage, except preparations compounded by any licensed pharmacist, the sale of which would not subject him to the payment of the special tax required by the laws of the United States; is manufactured, sold, bartered, given away or otherwise ■ furnished in violation of any provision of this act; and all places where any such liquor is kept or possessed by any person in violation of any provision of this act; and all places where persons congregate or resort for the purpose of drinking any such liquor, are hereby declared to be public nuisances, and upon the judgment of any court of reeord finding such place to be a nuisance under this section, the sheriff, his deputy, or undersheriff, or any constable of the proper county, or marshal or police of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and destroying all liquors found therein, the keeping or sale of which is prohibited by this act, together with all signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining said nuisance; and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a public nuisance, and shall be punished by a fine of not less than fifty dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months. The Attorney General, county attorney, or any officer charged with the enforcement of any of the provisions of this act, of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required. Any person violating the terms of any injunction granted in such proceeding, shall be punished, as for contempt, by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment.”

The statute is dual in its nature, a part defining a crime and providing a punishment, and a part providing a method by civil procedure for declaring the maintaining of the premises prohibited a nuisance, and providing the method for closing and abating the same and for destroying the liquors and things used in conducting the business prohibited. The statute declares the maintaining of such prohibited place a public nuisance, and provides that the owner or keeper shall, upon conviction be punished as therein provided. The Legislature evidently had in mind that the prosecution of an offender under this statute would not remove the nuisance, and further enacted, as a part of the section, a method of proceeding against the place itself. Key et al. v. State, 101 Okla. 211, 224 P. 549.

It is not essential to the prosecution for a violation of the criminal portion of said section that there should have been a proceeding under the civil portion, since the criminal portion of the statute has made the maintaining of a place where liquors are kept with intent to violate the law a public nuisance. In a criminal prosecution it is neither necessary to allege nor prove that there has been a determination by a court of record finding such place to be a nuisance.

Finally it is argued that the evidence is insufficient to sustain the conviction. This argument is directed in large part to the credibility of the witnesses who have testified, but, since the jury saw and heard the witnesses, their credibility and the weight and value to be given their testimony is peculiarly within the province of the jury. This court is not at liberty to disturb their verdict, where the evidence, if believed, as it is in this case, is sufficient.

The case is affirmed.

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


text:
    DICK PEARCE v. STATE.
    No. A-5222.
    Opinion Filed Feb. 20, 1926.
    (243 Pac. 761.)
    Clyde H. Wyand and Harris, Speilman, Thomas & Harris, for plaintiff in error.
    The Attorney General and Chas. Hill Johns, Asst. Atty. Gen., for the State.
   BESSEY, P. J.

Dick Pearce, defendant in the trial court, was by verdict of a jury found guilty of the larceny of live stock, with his punishment fixed at imprisonment in the penitentiary for a term of two years. From the judgment on the verdict he appeals, assigning as error that the instructions of the court were insufficient and that the evidence is not sufficient to support the verdict.

The proof is conclusive that soon after the taking the defendant was in possession of the live stock in question; that he had driven the cattle some distance in the nighttime; that he disposed of the cattle to another; and there was evidence tending to show that he made conflicting statements as to how he had come into possession of the cattle and their transfer to the other party. At the trial the defendant claimed that he in good faith bought the cattle in dispute from one Vern Wilson, who had subsequently left the country and whose whereabouts at the time of the trial could not be ascertained.

The evidence supporting the conviction was in part circumstantial, but there was also direct evidence of a positive nature. Under such circumstances, it was not necessary to submit an instruction on the law of circumstantial evidence. The possession of recently stolen property by an accused is merely an evidentiary fact, tending to establish guilt, which should be submitted to the jury to be considered by them in connection with all the other facts and circumstances disclosed by the evidence. This is a rule of evidence, the weight of which may be weak or strong, according to the circumstances. Where the deductions to be drawn from the facts or circumstances shown are obvious, requiring no special explanation to a fairminded jury of average intelligence, a failure to instruct on the inference to be drawn from the possession of recently stolen property, in the absence of any request to so instruct, will not work a reversal of a conviction, unless it appear that the jury were probably misled by such omission. Gray v. State, 4 Okla. Cr. 292, 111 P. 825, 32 L. R. A. (N. S.) 142; 16 Corpus Juris, 963; 14 R. C. L. 789; section 2822, Comp. Stat. 1921. But where the sole and only issue is whether or not the accused acquired the recently stolen property in good faith, that issue should be submitted to the jury under appropriate instructions. Crittenden v. State, 13 Okla. Cr. 351, 164 P. 675.

The elements of the crime of stealing domestic animals are easily comprehended. To “steal” anything ordinarily needs no explanation. The term itself imports a wrongful taking and appropriation of the property of another to the taker’s own use and benefit. The giving of such definition is unnecessary where it is not requested. The instruction given sufficiently apprised the jury of the nature of the crime charged and of the proof required to support the charge. Sullivan v. State, 7 Okla. 307, 123 P. 569; Tracy v. State, 24 Okla. Cr. 144, 216 P. 941; Goertz v. State, 29 Okla. Cr. 261, 233 P. 768.

The defendant claimed that he bought the cow and calf in dispute from one Vern Wilson, whom he first met in the army; that he afterwards knew him in Utah, and later employed him as a laborer on his ranch in Woodward county. After obtaining employment elsewhere, in an adjoining neighborhood, Wilson borrowed $25 from the defendant, which he failed to repay. Some months thereafter the defendant and his brother saw Wilson in Woodward, where defendant again sought to collect the money he had loaned Wilson. Wilson offered to sell the defendant some cattle, and the defendant finally agreed to take the cow and calf in controversy for the $25 debt and $25 additional in cash.

Defendant’s brother, Edward Pearce, was interrogated thus in regard to this transaction:

“Q. Do you know of any transaction or deal that took place between your brother Dick and Vern Wilson there at Littrell’s store, on this Saturday, April 28th?
“A. Yes.
“Q. Just tell the court and jury what it was.
“Mr. Foster: That is objected to, for the reason that it is incompetent, irrelevant, and immaterial.
“The Court: Objections sustained. (Exceptions.)
“Q. At any rate, they had a deal or transaction there at that time and place?
“Mr. Foster: To which the state objects, for the reason it is incompetent, irrelevant, and immaterial.
“The Court: Sustained. He couldn’t testify to anything except what he saw, unless he was a party to the transaction. (To which the defendant excepts.)”

The refusal of the court to permit the defendant to corroborate his claim that he had in good faith made a “deal” with Wilson for the animals in dispute was error. This in effect foreclosed the right of the defendant to develop further proof tending to sustain his only defense, viz., a purchase in good faith. This was not an attempt by the defendant to make proof of declarations or admissions made, explaining his possession of recently stolen property as a part of the res gestae, as was the ease in Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066; but it was an attempt to prove.facts and circumstances and statements concerning a deal with Wilson, showing in what manner the disputed property was acquired by the defendant. This the defendant had a right to show, including the statements and conversations incident to the deal. Crittenden v. State, supra.

The weight of the testimony relating to the alleged Wilson deal was for the jury, under appropriate instructions. But the court submitted no instruction on this feature of the case. Crittenden v. State, and cases cited.

The judgment is reversed, and the cause remanded for a new trial.

DOYLE and EDWARDS, JJ., concur.


text:
    ZACK MORGAN v. STATE.
    No. A-5042.
    Opinion Filed Feb. 27, 1926.
    (243 Pac. 993.)

      L. A. Wallace, for plaintiff in error.
    George F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DOYLE, J.

This appeal is from a judgment of conviction and sentence of imprisonment for a term of 6 months in the state penitentiary at McAlester, and to pay a fine of $1,000, rendered upon a plea of guilty entered by appellant, Zack Morgan, to an information charging him with the crime of driving a motor vehicle while in an intoxicated condition on the public highways of Okmulgee county.

The assignments of error relied upon for a reversal of the judgment are: That the court erred in denying appellant’s motion for leave to withdraw his plea of guilty and substitute therefor a plea of not guilty, and that the court erred in overruling the motion for a new trial.

The transcript shows that, upon arraignment, appellant waived the reading of the information and entered a plea of not guilty, and the case was set for February 6, 1924; that on that day appellant withdrew his plea of not guilty and entered a plea of guilty. The court fixed February 20th as the time for judgment, at which time the judgment appealed from was rendered.

The minutes show that later, the court being advised that defendant is a minor, the place of imprisonment will be changed to the state reformatory at Granite. However the journal entry of the judgment filed February 27, 1924, recites:

“That said Zack Morgan be confined to the state penitentiary at McAlester for the term of six months at hard labor, for said crime by him committed.”

Counsel for defendant objected and excepted to the judgment, and immediately moved the court for leave to withdraw the plea of guilty and enter a plea of not guilty, and asked permission to offer evidence in reference to an agreement or undertsanding with the prosecuting attorney, to the effect that he would recommend a fine if defendant would plead guilty. The court told counsel to proceed.

Zack Morgan, defendant, testified that he entered his plea of guilty on the advice of his attorney, L. A. Wallace, that if he did so, the sentence would be a fine not to exceed $100; otherwise he would not have consented to withdraw his plea of not guilty.

L. A. Wallace testified as follows:

“I am the attorney representing Zack Morgan; when this case was set for trial the defendant was present with his witnesses. I advised him that I did not believe that he could be acquitted on a trial before a jury, and asked him to withdraw his plea of not guilty and enter a plea of guilty. At the same time I advised him that I had the matter up with Mr. Boatman, assistant county attorney, and had asked him if he would be willing to recommend a fine of $50 and costs; that Mr. Boatman said that he would not recommend a fine of $50, but would consider and recommend a fine of $100, and, having advised my client as to this agreement, he agreed to follow my advice as his attorney by withdrawing his plea of not guilty and entering his plea of guilty. I also took the matter up with Judge Swan, and told him the understanding or conversation had between Mr. Boatman and myself, and thereupon the court assured me whatever understanding I had with Mr. Boatman would be carried out by the court. As attorney for this defendant, in view of the facts stated, I believed in good faith, at the time I advised my client to withdraw his plea of not guilty and enter a plea of guilty, that the fine would not exceed $100. I had also advised Mr. Boatman that W. L. Patton, the complaining witness in this case, was willing to recommend leniency to the boy on account of his youth and inexperience.”

Opposing the motion, A. M. Boatman, assistant county attorney, testified: That Mr. Wallace, attorney for the defendant, said he was willing to plead the defendant guilty for a fine of $50. That he told him that he would not make any kind of agreement until the witnesses came in the day of the trial, and, if the case justified it, he would recommend it. That, after investigating the case, he told Mr. Wallace he would not agree. After that some one of the witnesses stated that the defendant or his father would be willing to pay a fine of $200. The case was ready for trial; Mr. Wallace again, offered to pay a fine of $50, and witness said: “You would pay a fine of $200, wouldn’t you?” Mr. Wallace said, “No.” Whereupon, in open court, witness announced the state was ready for trial, and thereupon the defendant, through Mr. Wallace, his attorney, withdrew his plea of not guilty and entered his plea of guilty. At the close of the hearing the court overruled defendant’s motion to withdraw his plea of guilty. Exception reserved.

Among other grounds, the motion for a new trial contained the following:

“That the court abused its discretion in refusing and overruling the motion of defendant for permission to withdraw his plea of guilty and enter his plea of not guilty,” and “that the punishment and .fine imposed by the court was excessive.”

On the same day the motion for new trial was overruled.

In a criminal action a defendant has the right to plead guilty, and the effect of such a plea is to authorize a judgment of conviction and imposition of punishment as prescribed by law. The plea should be freely and voluntarily made by one competent to know the consequences, and should not be induced by fear, persuasion, promises, or ignorance. In a certain sense pleas of guilty in criminal proceedings have been discouraged by the courts. Polk v. State, 26 Okla. Cr. 283, 224 P. 194.

The general power of a court to reconsider its judgments and sentence, and reverse, vacate, or modify it at any time during the term at which it was rendered, or to increase or diminish the sentence which it has imposed, where the original sentence has not been executed or put in operation, is undeniable. This power is inherent in all courts of record. Bean v. State, 27 Okla. Cr. 228, 226 P. 115. It follows that it is within the discretion of the court to vacate a judgment of conviction, rendered on a plea of guilty, and to permit the plea to be withdrawn. Heath v. State, 23 Okla. Cr. 382, 214 P. 1091.

Generally speaking, an agreement whereby the prosecuting attorney promises the performance of certain acts in consideration of entering a plea of guilty is of no effect as binding on the court in its disposition of the ease; however, in Griffin v. State, 77 S. E. 1080, 12 Ga. App. 615, wherein it appeared that the agreement with the state’s counsel had been made with the cognizance of the court, it was held that, while the court was not bound by the conditions, which were treated as mere surplusage, the defendant should have been permitted to withdraw his plea of guilty, which had been filed in reliance on the performance of the agreement.

In this case it appears that defendant relied upon the advice of his attorney that, if he would plead guilty, the only punishment imposed would be a fine, and the prosecuting attorney as much as admits that he did consent to recommend a fine of $200, and the court, it appears, stated, in passing on the motion, that he had a conversation with defendant’s attorney with reference to the punishment and stated to counsel:

“All right; you see Boatman, and whatever you and he agree to will be all right with me.”

Our Code of Criminal Procedure provides that:

“The jury may, and shall upon the request of the defendant, assess and declare the punishment in their verdict within the limitations fixed by law:” Section 2750, C. S. 1921.

It appearing that the defendant was induced to waive this right and enter a plea of guilty, believing that the prosecuting attorney would recommend a fine only, and that the court had stated that he would be guided by such recommendation, we think that, under these circumstances, the defendant should have been permitted to withdraw his plea of guilty and substitute therefor a plea of not guilty.

For the reasons stated, we are of opinion that the overruling o’f the motion to vacate and set aside the judgment of conviction and grant a new. trial was a manifest abuse of judicial discretion.

The judgment of the trial court is accordingly reversed and the cause remanded for proceedings consistent with this opinion.

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


text:
    A. J. HARGIS, Jr., v. STATE.
    No. A-4788.
    Opinion Filed Feb. 27, 1926.
    (243 Pac. 986.)
    W. G. Hughes, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Fred Hansen, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cimarron county on a charge of having possession of whisky with intent to violate the prohibitory law, sentenced to confinement in the county jail for a period of 30 days, and to pay a fine of $100.

The first error assigned as ground for reversal is that the court erred in overruling the application of defendant for a continuance in order that he might take the deposition of witnesses in the state of Kansas. The evidence of the witnesses whose deposition was sought to be taken is largely cumulative. When the application for continuance was presented, the state agreed that the affidavit be read and used as the deposition of the absent witnesses. Defendant contends that the state should have admitted the statement as true, citing Madison v. State, 6 Okla. Cr. 356, 188 P. 617, Ann. Cas. 1913C, 484. That case sustains the contention of the defendant, but the rule there announced was long since overruled by this court. Owen v. State, 13 Okla. Cr. 195, 163 P. 548; Ennis v. State, 13 Okla. Cr. 675, 167 P. 229, L. R. A. 1918A, 312.

In the latter case it was held:

“When an application for continuance to take depositions complies in all particulars with the statute and when the showing made clearly entitles the accused to take the depositions and no issue is made by the state that the testimony is not essentially materiál to the defense of the accused, a postponement or a continuance should be allowed, and proper orders made by the court for the taking of the depositions is provided unless counsel for the state offer to admit that the absent witness would testify to the facts set out in the application, and that such application could be read in evidence in lieu of the depositions sought.”

Next it is argued that there is error in the instructions of the court Nos. 6 and 7, in which the court instructed on the presumption arising from possession of intoxicating liquor. It is contended that these instructions are erroneous, citing Billingsley v. State, 4 Okla. Cr. 597, 113 P. 241; Quinn v. State, 8 Okla. Cr. 478, 128 P. 1104. Since the decisions referred to, the law in reference to the possession of intoxicating liquor has been amended. The statute now provides that the. possession in excess of one quart of any spirituous, vinous, fermented, or malt liquor, with certain exceptions, is prima facie evidence of an intention to violate the prohibitory law. Section 6999, Comp. St. 1921, and chapter 123, p. 144, Sess. Laws 1924. The instructions complained of merely state the rule applicable to this statute. Caffee v. State, 11 Okla. Cr. 485, 148 P. 680; Huff v. State, 12 Okla. Cr. 139, 152 P. 464.

It is next contended that the court erred in informing the jury that evidence of a prior conviction of defendant for a violation of the prohibitory law might be considered as affecting his credibility. It is argued that this is erroneous, and that such prior conviction should have been limited merely to proof of the intent with which the liquor in question was kept by him, citing Rice v. State, 5 Okla. Cr. 68, 113 P. 203; Hill v. State, 3 Okla. Cr. 686, 109 P. 291.

The authorities cited do not sustain the contention made. It is well established that a conviction for a violation of the prohibitory liquor law may be shown for the purpose of affecting the credibility of a witness. Section 585, Comp. Stat. 1921; Fowler v. State, 8 Okla. Cr. 130, 126 P. 831; Hendrix v. State, 4 Okla. Cr. 611, 113 P. 244; Slater v. U. S., 1 Okla. Cr. 275, 98 P. 110.

While the evidence upon which the defendant was convicted is largely circumstantial, there is ample evidence to sustain the verdict, and, where the evidence is sufficient, its weight and credibility is for the jury, and this court is not at liberty to disturb the verdict for insufficiency.

The case is affirmed.

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


text:
    WILL JACOBS v. STATE.
    No. A-5398.
    Opinion Filed Feb. 27, 1926.
    (243 Pac. 988.)
    W. W. Momyer, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charges that in Muskogee county, August 22, 1924, Will Jacobs did sell to J. E. Hefley, one-half pint of whisky. The jury returned a verdict finding him guilty, leaving the punishment to the court. November 22, 1924, he was sentenced to pay a fine of $200 and to be confined. in the county jail for 60 days. !H|e has appealed from the judgment.

The only errors assigned are that the evidence is insufficient to sustain the verdict, and that the court erred in overruling the demurrer to the information. The information is sufficient and the demurrer thereto was properly overruled.

The witnesses Hefley and Davis each testified to the sale and the payment by Hefley to the defendant the $1.25 for the half pint of whisky. The defendant testified and admitted that he was present at the time, hut denied the sale. Obviously the case was one for the determination of the jury. Finding no prejudicial •error of law, the judgment is affirmed.

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


text:
    WALTER GIBSON v. STATE.
    No. A-5384.
    Opinion Filed March 2, 1926.
    (243 Pac. 986.)
    McCollum & McCollum, for plaintiff in error.
    The Attorney General, for the State.
   DOYLE, J.

The information in this case charged -that in Pawnee county January 30, 1923, Walter Gibson did convey and transport about two gallons of whisky from the residence of one Robert Berg to a point on the public highway a quarter of a mile north of said residence. On the trial the jury returned a verdict finding him guilty and fixing ' his punishment at a fine of $100 and confinement in the county jail for 90 days. He has appealed from the judgment, but no brief has been filed and no appearance made on his behalf in this court.

A number of errors are assigned but an examination of the record discloses that they are without merit.

The evidence for the state shows that on the day the Bank of Ripley was robbed, Sheriff Scott, of Pawnee county, and one of his deputies were patrolling the roads to intercept the bank robbers, and saw the defendant drive his car to Robert Berg’s place, and shortly afterwards he drove back on the public highway, and seeing the officers said to the man in the car with him, “Break the jug.” The sheriff stepped upon the running board and found a broken jug containing about a half pint of whisky and the rest of the contents spilled on the floor of the car. The defendant did not testify.

It appearing that the appeal in this case is destitute of merit, the judgment of the lower court is affirmed.

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


text:
    HENRY WOFFORD v. STATE.
    No. A-5065.
    Opinion Filed Feb. 27, 1926.
    (243 Pac. 988.)

      T. H. Davidson, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and Chas. Hill Johns, Asst. Atty. Gen,, for the State.
   EDWARDS, J.

For convenience and brevity, the plaintiff in error will be hereinafter referred to as defendant.

On the 25th day of October, the defendant was on trial in the district court of Muskogee county on a charge of felony. While the jurors were being examined on their voir dire, one of them, W. 'H|. Wise, testified that just prior to the calling of the case for trial, and on that date, the defendant had approached him, stated that he was glad he was on the jury, and if called on his case and would stand by him or could do him any good, he would pay him, or take care of him, or words in substance to that effect. The judge thereupon dictated an order into the record reciting the facts and called upon the defendant to show cause why he should not be adjudged in contempt for attempting to bribe said juror. Objections were made to defendant being compelled to plead to the charge of contempt for the reason that the alleged facts did not constitute a contempt. This was overruled, and defendant entered his plea of not guilty, and by agreement the case was set down for trial on October 27th. On the 27th the defendant was given leave to withdraw his plea of not guilty and to file motion to quash, which was granted, and the motion was then dictated into the record challenging the proceedings as being insufficient and challenging the order of the court made on the 25th as an insufficient accusation of the offense of indirect contempt. This was overruled. Thereupon the defendant filed a demurrer to the order challenging its sufficiency to give the court jurisdiction, which was also overruled. The county attorney then filed an affidavit setting out and suggesting the proceedings upon which contempt was predicated. Defendant requested 24 hours to plead to said affidavit and time to prepare his defense. This request was denied, and the cáse ordered to trial. Trial was had to a jury, which returned its verdict finding the defendant guilty of contempt. The court fixed the punishment at imprisonment for six months, a fine of $250 and costs.

Since the facts contained in the charge did not occur in the immediate view and presence of the court, the proceeding attempted to charge defendant was an indirect criminal contempt. It is necessary that a proceeding to punish for indirect criminal contempt under section 25, art. 2, of the Constitution, and sections 1697 and 1699, Comp. Stat. 1921, be instituted by affidavit, complaint, or information setting forth the facts upon which the charge is based. Where contempt is predicated on affidavit filed with the court or judge or oral testimony under oath given before the court, a statement of the charge in writing by the court or judge will suffice. Upon the filing of such affidavit, complaint, information, or statement, the accused shall be notified in writing of the accusation and shall have a reasonable time for defense, and upon demand shall have a trial by jury. Emery v. State, 29 Okla. Cr. 27, 232 P. 128; Cress v. State, 14 Okla. Cr. 521, 173 P. 854; Ex parte Ballew, 20 Okla. Cr. 105, 201 P. 525; Ex parte Nichols, 16 Okla. Cr. 159, 181 P. 518; Blanton v. State, 31 Okla. Cr. 419, 239 P. 698.

It appears from the record before us that the order of the court charging a contempt dictated into the record was not reduced to writing and filed until the time of the trial on October 27th. The affidavit filed by the county attorney, upon which the defendant was finally tried, was filed the same day and after the sufficiency of the order of the court had been challenged. The court was without jurisdiction to try accused as for an indirect contempt until there had been filed an affidavit, complaint, information, or statement in writing charging a contempt. After the filing of such charge, the accused was entitled to be notified in writing of such accusation and to have a reasonable time to prepare for his defense. We do not deem it necessary to again review the authorities at length. The denial of this statutory right was prejudicial error which requires a reversal. In the event said charge should again be tried, the affidavit should be amended to properly charge venue.

The case is reversed and remanded.

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


author: BESSEY, P. 'J.

text:
    R. L. HAMPTON v. STATE.
    No. A-5439.
    Opinion Filed Feb. 27, 1926.
    (243 Pac. 1118.)

      Bicking & Wilson, for plaintiff in error.
    S. J. Clendenning, Asst. City Atty., for the State.
   BESSEY, P. 'J.

Plaintiff in error was found guilty of the illegal transportation of whisky, with his punishment assessed at confinement in jail for 90 days and to pay a fine of $50. Plaintiff in error is a common laborer, 60 years of age, and recently in ill health. Being unable to earn money by means of manual labor, he sought to replenish his depleted funds by the alluring profits he expected to obtain from the transportation of whisky. He was old enough to know better, but since this is a first offense, and hoping that this prosecution has convinced him that the whisky business is not really attractive, the judgment of the trial court will be modified to a fine of $50 and confinement in jail for a period of 30 days. The judgment, as so modified, is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    G. W. HOWELL v. STATE.
    No. A-5227.
    Opinion Filed Feb. 27, 1926.
    (243 Pac. 997.)

      Geo. W. Martin, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

The plaintiff in error, here designated the defendant, and his son were jointly charged with the illegal possession of whisky. The son was acquitted, and the plaintiff in error was by the verdict of the jury found guilty, with his punishment fixed at confinement in the county jail for 30 days and to pay a fine of $50.

The defendant was a farmer, owning or having under his control 400 acres of land in Kiowa county. Oh this land was the residence where he lived. Near the residence was a tenant house, or house occupied by a laborer employed by the defendant. Certain deputy sheriffs went to these premises, armed with a search warrant predicated upon the following affidavit:

“T. P. Shaddock, being first duly sworn, on his oath deposes and says that he has probable cause for believing and does believe that intoxicating liquor is being sold, bartered, given away or otherwise furnished, or is being kept for the purpose of selling, bartering, giving away or otherwise furnishing said intoxicating liquors, in violation of the act of the Legislature approved March 24, 1908, in the following described premises located in Kiowa county, state of Oklahoma, to wit: Southeast quarter of section 15, township 5, range 15, being the property of G. W. Howell.
“Wherefore affiant prays that a search warrant may be issued directly to the sheriff of said county, commanding him to search the above-described premises and seize all liquors found therein, as provided by law.
“T. P. Shaddock.”

Pursuant to a search warrant issued upon authority of this affidavit, these deputy-sheriffs searched the two houses and the adjacent premises and found in the garret or loft of the tenant house six gallons of whisky. While the officers were pursuing further investigations on other portions of the premises and in the adjoining fields, some person poured the whisky out of the containers seized. During the search the farm laborer who occupied a portion of this tenant house disappeared and was never apprehended. Other portions of this tenant house were used by the defendant as a dairy and feed house where he had a cream separator, some corn, and ground grain. To effect their entrance into the loft of this house, the officers pried off a board nailed over an opening- into the loft.

The defendant denied having any knowledge of the presence of whisky in this house. There was testimony by a number of neighbors that the defendant had resided there many years and they never knew of his being engaged in dispensing intoxicating liquor, and that his reputation in that regard was good.

Upon the subject of affidavits for seach warrants, our statutes, section 2879, Comp. Stat. 1921, provides:

“The magistrate must, before issuing the warrant, take, on oath, the complaint of the prosecuting witness in writing, which must set forth the facts tending to establish the grounds of the application, or probable cause for believing that they exist.”

The statutes, as well as sound reason, require that a showing of “probable cause” in an affidavit for a search warrant must be supported by some evidential fact or facts, and that an affidavit stating a mere con-elusion of belief is insufficient to give the court or magistrate jurisdiction to issue the warrant. And where timely objection is made, evidence obtained by an illegal search and seizure is inadmissible. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Russell v. State, 25 Okla. Cr. 423, 221 P. 113; Foster v. State, 27 Okla. Cr. 270, 226 P. 602; Hannan v. State, 29 Okla. Cr. 203, 223 P. 249; Reutlinger v. State, 29 Okla. Cr. 290, 234 P. 224. The affidavit for a search warrant should be such as would enable one who has been injured by a false affidavit to prosecute the maker for perjury, which could not be successfully done where the affiant stated a mere belief. The affidavit and search warrant were insufficient to authorize a search of the defendant’s home and other buildings within the curtilage as not being in compliance with section 7013, Comp. Stat. 1921, which reads as follows:

“No* warrant shall be issued to search a private residence, occupied as such, unless it, or some part of it, is used as a store, shop, hotel, boarding house, or place for storage, or unless such residence is a place of public resort.”

“Where officers approach a home and state to the owner that they have come to search his premises and have a search warrant for that purpose, the failure of the owner to demand that' the search warrant be exhibited and read constitutes no waiver of an unauthorized or invalid search and seizure. Where there is no express or implied invitation to proceed with the search, none will be presumed. Under such circumstances, it is. not necessary for the person whose premises are being illegally searched to make any aggressive or express objections to avoid a waiver.

The evidence implicating the defendant was not conclusive, but in view of the insufficiency of the affidavit for the search warrant it is not necessary to pass upon the sufficiency of the evidence.

The cause is reversed and remanded.

DOYLE and EDWARDS, JJ., concur.


text:
    FRANCIS BROOKS v. STATE.
    No. A-5326.
    Opinion Filed Feb. 27. 1926.
    (243 Pac. 998.)
    Sargent & Ross, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kay county on a charge of transporting whisky and sentenced to confinement in the county jail for a period of 30 days and to pay a fine of $50.

Among the errors assigned is that during the course of the trial, and in the presence of the jury, the court in a comment on the evidence stated that the defendant was guilty of the crime charged. An examination of the record convinces us that this assignment is well taken. The following appears:

“By the County Attorney: Q. I am asking, was it Francis Brooks’ whisky By Mr. Wilson (counsel for defendant) : Object to that as immaterial. By the Court: It makes no difference whose whisky it was, the defendant transported it.”

To this statement of the court exceptions were taken. Whether or not the defendant transported the whisky was the issue in the case. It was for the determination of the jury. A defendant, whether guilty or not, is entitled to have the questions of fact determined by the jury, without any intimation or unfair comment by the trial judge. For the trial court to indicate, as in this case, the guilt of the defendant, deprives him of a fair trial as guaranteed by the Constitution and the laws of this state, and is prejudicial error requiring a reversal. This has so often been held by this court that we deem it unnecessary to again review the authorities.

The case is reversed and remanded.

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


text:
    TOM ASHBY v. STATE.
    No. A-5308.
    Opinion Filed March 6, 1926.
    (243 Pac. 1003.)
    Morris & Tant, for plaintiff in error.
    The Attorney General, for the State.
   BESSEY, P. J.

Plaintiff in error, Tom Ashby, and John Williams were jointly charged with the illegal possession of whisky. Williams was acquitted; Ashby was found guilty with his punishment assessed at confinement in jail for 30 days and a fine of $50.

Ashby claims that the evidence adduced was procured by an unauthorized search and seizure. If it was in fact so obtained, the objection to its use against him came too late, and the right to have the evidence excluded was waived. Gore v. State, 24 Okla. Cr. 394, 218 P. 545; Martin v. State, 29 Okla. Cr. 136, 232 P. 966.

Moreover, there was evidence tending to show that this offense, or a portion of it, was committed in the presence of the officers, before the search and seizure took place. If so, the arrest without a warrant of arrest, and the search and seizure incident thereto^ were legal.

The judgment of conviction is affirmed.

DOYLE and EDWARDS, JJ., concur.


text:
    J. B. STEINER v. STATE.
    No. A-5312.
    Opinion Filed March 6, 1926.
    (243 Pac. 1002.)

      Streeter Speakman, for plaintiff in error.
    Geo. F. Short, Atty. Gen., and G. B. Fulton, Asst. Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted of grand larceny in ■ the superior court of Creek county, sentenced to serve a term of three years in the state penitentiary. An examination of the record discloses that a preliminary complaint was filed before a justice of the peace and a preliminary hearing had; upon the conclusion of the hearing, the court, after reciting something of the proceedings, concluded as follows:

“* * * After due consideration of the testimony adduced, the court bound deft, over to the superior court, fixing bond in the sum of $2,500.”

The papers were then transmitted to the superior court and an information filed.

The defendant’s motion to quash the information for the reason that the preliminary complaint before the justice of the peace was not verified was overruled, which ruling is assigned as error. The law requires that a complaint be verified. Section 2959, Comp. Stat. 1921. This provision of the statute is intended to safeguard the personal security and liberty of the individual and to prevent the issuance of warrant and arrest upon baseless and unfounded prosecutions. An unverified complaint is sufficient for ■ all purposes except the issuance of a warrant. The failure to verify may be waived, and is waived by proceeding without objecting to the sufficiency of the complaint on that ground to give jurisdiction of the person. Here the defendant made no objection to the preliminary complaint, but demanded and was awarded a preliminary hearing upon it. He did not challenge it until an information was filed in the superior court. The objection came too late. In re Talley, 4 Okla. Cr. 398, 112 P. 36; In re Cummings, 11 Okla. 286, 66 P. 332; Bergdohl v. People (Colo.) 61 P. 228; State v. Brown (Mo.) 79 S. W. 1111.

It is further argued that the court erred in overruling the motion to quash for the reason that there was no finding by the justice of the peace that a crime had been committed and that there was sufficient cause to believe the defendant committed it. The only record purporting to be an order holding the defendant for the superior court is as above recited. The statute, section 2497, Comp. Stat. 1921, is as follows:

“If, however, it appear from the examination that any public offense has been committed, and that there is sufficient cause to believe the defendant guilty thereof, the magistrate must in like manner indorse on the complaint an order signed by him to the following effect: It appearing to me that the offense named in the within complaint mentioned (or any other offense, according to the fact, stating generally the nature thereof), has been committed, and that there is sufficient cause to believe the within named A. B. guilty thereof, I order that he be held to answer the same.” Williams v. State, 6 Okla. Cr. 373, 118 P. 1006; Bradshaw v. State, 16 Okla. Cr. 624, 185 Pac. 1102; Norwood v. State, 14 Okla. Cr. 637, 169 Pac. 656.

In order to give the county attorney authority to file an information charging a felony predicated on a preliminary examination, it. is necessary that the magistrate before whom such preliminary is held find that a public offense had been committed and that there is sufficient cause to believe the defendant guilty thereof. If such order is made and not indorsed on the complaint, the court to which the proceedings are sent has jurisdiction to order the proper indorsement made on the complaint, or if entered on thé docket of the justice and not on the complaint, to order a transcript made and filed in the trial court. When the proceedings are challenged and it is made to appear that no order was made by the magistrate, the court is without jurisdiction. As was said in the case of Williams v. State, supra:

“The determination of the examining magistrate would seem to be no less important and jurisdictional than is the finding of a grand jury upon an indictment.”

See, also, Payne v. State, 30 Okla. Cr. 219, 235 Pac. 558.

Probably the justice who held the preliminary made the proper order. If he did, when the jurisdiction of the superior court was challenged and the proper finding and order were not in the transcript, it was the duty of the superior court to ascertain if they had in fact been made, and if so, to have them certified to his court and there filed. If the finding and order had not been made, the motion to quash should have been sustained and the defendant discharged or a preliminary trial ordered. Since there was not a sufficient finding and order as required by section 2497, Comp. St. 1921, the superior court did not have jurisdiction.

The case is reversed and remanded.

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


text:
    HOMER TUCKER v. STATE.
    No. A-5314.
    Opinion Filed March 6, 1926.
    (243 Pac. 998.)
    E. H. Bond, for plaintiff in error.
    Geo. F. Short, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Stephens county on a charge of having the unlawful possession of intoxicating liquor and sentenced to confinement in the county jail for a period of 30 days, and to pay a fine of $100.

Two assignments of error are argued in defendant’s brief. First. The insufficiency of the evidence. Second. Improper comments of the county attorney in his closing argument. Considering the. first assignment, J. A, Jennings, a police officer, testified that he saw the defendant conceal some whisky in an alley at the rear of his house and after the defendant left he went to the place and found buried a gallon and a half of whisky. That he later talked to the defendant, who stated to him in substance that he was in this business because physically unable to work. The defendant denied placing the whisky in the alley, or that he had any connection with it, and denied the conversation testified to. 'H’e offered some evidence tending to prove an alibi. The evidence was squarely conflicting. It has been many times held by this court that the credibility of the witnesses and the weight to be given their evidence are matters within the province of the jury, and where the evidence is sufficient, although conflicting, this court cannot substitute its judgment for that of the jury and reverse the case for insufficiency. The reason for this rule is obvious; the jury sees the witness on the stand, observes his demeanor, candor, and frankness or the lack thereof, and is in a better position to determine the truth of his testimony than an appellate court could possibly be.

Upon the second assignment, complaint is made that in the closing argument Mr. Long, assistant county attorney, said:

“If I did not believe this man was guilty, do you think I would be here asking you to convict him? I would have come to the court and dismissed the case, that is what Mr. Sullivan and I would do.”

In the recital in the case-made immediately following this language, it is said that Mr. Long stated that this was simply his opinion in the case based on the evidence.

In argument, the prosecuting attorney should confine his remarks to a fair discussion of the issues and should not go out of the record. But he has the right to discuss to the jury his deductions from the evidence, and to urge the truth or falsity and the convincing character of the testimony. To warrant a reversal on account of the argument of the prosecuting attorney, it must be grossly improper upon some material point which might injuriously affect the defendant’s rights. Williams v. State, 4 Okla. Cr. 524, 114 P. 1115; Morgan v. State, 9 Okla. Cr. 22, 130 P. 552; Coker v. State, 18 Okla. Cr. 388, 223 P. 711; Beason v. State, 18 Okla. Cr. 388, 195 P. 792; Spann v. State, 19 Okla. Cr. 9, 197 P. 531.

The argument complained of is not of such prejudicial character as to have caused the jury to lose sight of the evidence and the law. The verdict does not reflect any passion or prejudice on the part of the jury.

Finding no error to warrant a reversal, the case is affirmed.

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