author: JONES, J.

text:
    J. HALL v. STATE.
    No. A-9594.
    Feb. 1, 1940.
    (99 P. 2d 163.)

      Page & Spencer, of Oklahoma City, for plaintiff in error.
    Mac. Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant was charged with one ■Roy O’Brien in the common pleas court of Oklahoma county with the offense of operating a motor vehicle upon the public highway for transporation of passengers for compensation without first having .obtained from the Corporation Commission a permit; was tried, convicted and adjudged to pay a fine of $300, and has appealed to this court.

The defendant urges two grounds for reversal of this case:

(1) Because of the insufficiency of the evidence to sustain a conviction.

(2) Misconduct of the county attorney in the trial of said case.

Helen Pollard testified for tbe state that on June 30, 1938, she saw the defendant in the lobby of the Rasbach Hotel in Oklahoma City, at which time she asked the defendant if he had a car going to Tulsa; that the defendant-told her he would send one to her address after her, and she paid him 50 cents for his fee at the time, and obtained a receipt therefor which was introduced in evidence. That a few minutes later a man came to her address at the Osage Hotel, and she paid him $1, and got in his car, in which there were four other passengers, and started to Tulsa; that the car was stopped at Sapulpa by the Highway Patrol, and all the occupants brought back to Oklahoma City; that Roy O’Brien, the co-defendant, was the driver of this automobile.

Cliff Goldsmith testified that he was employed by the state of Oklahoma, and had access to all the records of the Corporation Commission; that Roy O’Brien did not have a permit to carry passengers for hire over the state highways as a motor carrier, and that the defendant J. Hall did not have a permit to carry passengers for hire; that the automobile of O’Brien did not have the initials on the windshield C. C. No. which were required by the Corporation Commission. Neither the arresting officer nor any other witness was used by the state.

There was no testimony offered on behalf of the defendant.

This court in two. eases, Herring v. State, 60 Okla. Cr. 449, 64 P. 2d 921, and Herring v. State, 68 Okla. Cr. 32, 95 P. 2d 128, has upheld the constitutionality of the act involved herein, and has approved the instructions in the above cases, which were tried before the same common pleas judge as tried the instant case, and which instructions are substantially the same in those two cases and in this case.

On the authority of the above cases, the contention that the evidence is insufficient to support the conviction of the defendant is without merit.

Objection has been made by the defendant to the conduct of the county attorney upon his voir dire examination of the jurors, in his opening statement to the jury, in the examination of the witnesses, and in his closing argument. In his voir dire examination of the jurors the following statements were made by the county attorney over the objections and exceptions of the defendant:

“J. Hall is this man here. * * *”
“Any of you know him? * * *”
“Now, Gentlemen, the charge is operating a travel bureau. * * *”
“Now, have any of you had occasion to ride from one city to another; or from one state to another; in any of these privately owned automobiles put out by these so-called travel bureaus, or, have any of your relatives? * * *”
“Does anybody know Jack Herring? * * *”
“Do any of you say you know the party whose name I just called, Jack Herring? *' * *”
“Q. Have you had occasion to come in contact with any of these so-called travel bureaus? * * *”
“Q. Do you know anything about any of these that have been operating here in town? * * *”

In his opening statement to the jury the county attorney states as follows:

“We expect to show that this man, J. Hall, operated a place behind a desk in the lobby of the Rasbach Hotel in Oklahoma City, where he called himself a travel bureau. We will prove that he advertised in the newspapers ‘transportation on a share expenses basis.’ ”

In bis closing argument to the jury, the county attorney used the following language: “Now, here is a man that sits down here every day and violates the law.”

The court permitted all of the above statements and questions to be made over the objection and exception of the defendant. At no time in the trial of this case did the county attorney ask any questions pertaining to a travel bureau, and the proof is wholly silent as to a travel bureau or as to whether defendant had committed other similar acts at about the same time as that charged here or anything concerning a man by the name of Jack Herring, or that the defendant solicited customers through advertising in the newspapers or that the defendant had an office in the Easbach Hotel from which he operated. If the county attorney had such evidence, it was competent and should have been introduced for the jury’s consideration. Surely, if such were a fact, evidence to prove the same could have been easily obtained. The county attorney must have known just what he could prove by his witnesses at the time he made his opening statement to the jury.

When the county attorney asked these questions of the jurors, and made the statements in his opening statement that he would prove the defendant conducted a travel bureau and solicited customers through advertising in the newspapers without following up his statements and making an attempt to prove the same, we hold that such conduct is improper and highly prejudicial to the defendant’s rights. The statement made by the county attorney in his closing argument, that the “defendant sits down here every day and violates the law,” is not supported by any evidence, and does not come within the bounds of legitimate argument. We have always condemned the practices of county attorneys in asking insinuating questions before a jury, which he does not intend to follow up. Counsel should not go outside of the record for the purpose of exciting sympathy or arousing prejudice. Every defendant in a criminal case is entitled to fair treatment on his trial, and a prosecuting attorney should not be permitted to ask questions which he knows to be illegal for the purpose of prejudicing the defendant or to make remarks in the examination of jurors which are wholly immaterial to the cause and which cast reflections against the defendant. It is the duty of the trial court to rigidly enforce this rule. The county attorney should act impartially; he should present the state’s case fairly and vigorously, but should not present before the jury any deductions not sustained by the evidence, or make side remarks that tend to prejudice the defendant.

County attorneys have to deal with all that is selfish and malicious, knavish and criminal, coarse and brutal, in human life. But the safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope for. Their devotion to duty is not measured, like the prowess of the savages, by the number of their victims.

We commend the county attorney for his energy in presenting the side of the prosecution in these criminal cases. The writer of this opinion was formerly a county attorney and realizes the obstacles that confront him in the trial of these cases. But in the instant case his' conduct went beyond the- bounds of propriety.

Upon an examination of the testimony in this case, we are satisfied that the defendant is guilty of the offense charged. There is no reason to believe that the jury could have arrived at any other verdict, but in view of the misconduct of the county attorney in the presence of the jury, as above set forth, it may have caused the jury to inflict upon the defendant a higher penalty than they might otherwise have done.

We are not willing to reverse this case, but believe the judgment should be modified and the fine reduced from $300 to $150. This gives the defendant all that he could hope to gain by a reversal and saves the state and the defendant the cost of another trial.

It is therefore ordered that the judgment be modified, and the fine imposed upon the defendant be reduced from $300 to $150, and the judgment as modified be affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN COMBA v. STATE.
    No. A-9606.
    Feb. 1, 1940.
    (99 P. 2d 170.)

      Frank Nesbitt and Nelle Nesbitt, both of Miami, for plaintiff in error.
    Mae Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Defendant was charged in Ottawa county with the crime of receiving stolen property; was tried, convicted and sentenced to serve a term of imprisonment in the state penitentiary for a period of two years and six months and to- pay a fine of $250, and has appealed to this court.

The testimony of the state showed that eleven bars of steel were stolen from the Commerce Royalty & Mining Company by Oleo and Uris Mashburn and sold to the defendant for $55 pursuant to a previous arrangement made with the defendant by Cleo Mashburn; that Oleo Mash-burn talked to the defendant before the theft was committed and proposed to sell to the defendant some steel which Mashburn said he would steal from the Commerce Royalty & Mining Company; that the defendant in that conversation agreed to buy the steel and loaned Mashburn a trailer with which to haul the steel; that six bars of steel were hauled by the Mashburns in the defendant’s trailer to the lumber yard of the defendant the night after the conversation occurred, and five bars of steel were brought to the same place in the nighttime two or three weeks later; that the defendant was engaged in the second-hand lumber business in the town of Picher.

The night watchman of the Romo Mine near Picher testified that the defendant sometime during the month of April brought six bars of steel and later five bars of steel to the mine, and placed them in the compressor room at the mine, and told the night watchman that the steel had been ordered by Mr. Robinson, owner of the mine. That the defendant upon his arrest first denied buying any steel from the Mashburns at any time; but after being confronted with affidavits of the Mashburns, defendant admitted buying the steel and took the officers to the boiler room of the mine and showed them the eleven bars of steel that had been stolen. The steel was identified by the trademark AMCO stamped on the end of each bar of steel; and the testimony showed that the steel was new, and not rusty.

A letter was introduced in evidence showing that the defendant presented Mr. Robinson, owner of the mine, a •bill for $120 for the sale of the steel to Robinson. The Mashburns pleaded guilty to a charge of grand larceny, and testified for the state in the prosecution of the defendant.

The defendant in his own behalf; denied ever having any talk with Cleo Mashburn or purchasing any steel from Cleo Mashburn, but claimed that he had a conversation with Uris Mashburn relative to a purchase from Uris Mashburn of the steel in controversy; but that Uris Mash-burn represented in the conversation that he had found the steel in a mill pond while swimming, and that he bought the steel under those circumstances and loaned Uris Mash-burn a trailer to haul the steel from Joplin.

The defendant, as well as tbe Mashbums, bad lived in the town of Picher for several years. The Mashburns had been convicted of felony charges on at least three occasions, while the defendant Comba admitted on cross-examination as follows:

“Q. Jnst don’t know how many times you have been convicted? A. Well, every time you catch me, and you wasn’t doing nothing else, watching for me all the time.”

Counsel for the defendant cites several cases in his brief which set out the general rules of law concerning the question of accomplice. We agree with the rules set forth by the court in those opinions, but they do not sustain the contention the defendant makes here. The chief case relied upon by the defendant is Carter v. State, 55 Okla. Cr. 234, 28 P. 2d 581. In that case, however, the conviction was affirmed and the court denied the very contention of the defendant which is made herein.

The defendant bases his argument for a reversal of this case upon his contention that the court erred in giving its instruction No. 6, in which instruction the jury were told as a matter of law that the witnesses Cleo and IJris Mashburn were accomplices of the defendant instead of submitting that question to the jury as a question of fact for the determination of the jury.

Instruction No. 6 complained of is as follows:

“The court tells you as a matter of law that the witnesses, Cleo Mashburn and Uris Mashburn, are accomplices of the defendant in this case, and the defendant cannot be convicted upon the testimony of these witnesses, unless their testimony be corroborated by such other evidence as tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of an offense, or the circumstances thereof. It is not necessary that the corroborating evidence go so far as to establish by itself, and without the aid of the testimony of an accomplice, that the defendant committed the crime charged. And, if there be sufficient corroborating evidence, outside of that given by the accomplices, which Avhen considered, together with that of •the testimony of such accomplices, satisfies the minds of the jury, beyond a reasonable doubt of the guilt of the defendant, then his guilt is sufficiently established.
“In law one accomplice cannot corroborate another accomplice, in so* far as meeting the legal requirement is concerned. In others words it would not matter how many accomplices there are in a case, the testimony of each is that of an accomplice, and is not to be considered as corroborating testimony.”

The statutes of this state provide that a conviction cannot be had upon the uncorroborated testimony of accomplices. Section 8071, O. S. 1931, 22 Okla. St. Ann. § 742.

The term “accomplice,” as used in section 3071, O. S. 1931, 22 Okla. St. Ann. § 742, providing that no person shall be convicted of a crime on the testimony of an “accomplice,” without corroboration, is construed as meaning one culpably implicated in the commission of the crime of which the defendant is accused; in other words, an associate, one who knowingly and voluntarily cooperates, or aids or assists in the commission of the crime. Sipes v. State, 36 Okla. Cr. 1, 251 P. 511; Hendrix v. State, 8 Okla. Cr. 530, 129 P. 78, 43 L. R. A., N. S., 546; McKinney v. State, 20 Okla. Cr. 134, 201 P. 673; Blake v. State, 55 Okla. Cr. 34, 24 P. 2d 362.

“The general rule of law is that a person who steals property is not an accomplice of the one who receives the property, knowing it to be stolen. They are independent crimes.” Finkelstein v. State, 68 Okla. Cr. 341, 99 P. 2d 167; Key v. State, 38 Okla. Cr. 169, 259 P. 659; Pringle v. State, 32 Okla. Cr. 166, 239 P. 948; Logan v. State, 23 Okla. Cr. 316, 214 P. 944; White v. State, 23 Okla. Cr. 198, 214 P. 202; Buttry v. State, 18 Okla. Cr. 330, 194 P. 286.
“The well-recognized exception to this general rule is that if the one who steals and the one who receives the property conspire together, or enter into a prearranged plan for one to steal the property and deliver the same to the other, the one who receives it is the accomplice of the one who commits the theft, and vice versa.” Finkelstein v. State, supra. Brownell v. State, 33 Okla. Cr. 323, 244 P. 65; Buttry v. State, 18 Okla. Cr. 330, 194 P. 286; State v. Keithley, 83 Mont. 177, 271 P. 449; State v. Coroles, 74 Utah, 94, 277 P. 203.

Most of the states provide for the corroboration of the testimony of an accomplice by independent evidence before a defendant may be convicted of the offense charged. The statute was adopted for the purpose of protecting the accused. Its purpose being to prevent one guilty of a crime from implicating another falsely, for hope of clemency, motives of revenge, or for any other reason. Questions under this statute are generally raised by the defendant insisting that the court erred in not instructing that a witness testifying against the accused was in fact an accomplice.

There has been some language used in the dicta of the court in certain opinions, notably Carter v. State, supra, which is cited in defendant’s brief that hurried reading might convince a person that they support defendant’s theory. In that case, however, the conviction was affirmed, and the court denied the very contention of the defendant made herein. But after disposing of the question in that case, the court by way of dictum states [55 Okla. Cr. 234, 28 P. 2d 583]:

“Counsel here argue that where defendant denies generally any connection or accomplicity with the witness who is designated as an accomplice, the court, regardless of tbe testimony of the witness, in no event may instruct the jury that the witness is an accomplice. Surely this cannot be what is meant, for if defendant enters a plea of not guilty and contests the truth of the state’s testimony of a claimed accomplice to prove his guilt, he does not admit the testimony of such witness, for to do so would be tantamount to a plea of guilty. Nor does the fact that he denies the testimony of the witness designated as accomplice make the testimony disputed within the meaning of the term as used in the cases generally. That is to say a denial of guilt and general testimony by accused that he had no connection Avith the Avitness testifying as an accomplice is not the dispute meant in the various decisions. But on the other hand where he testifies to the state of facts detailed by the witness, or admits a connection with the Avitness tending to show an accomplicity, but explains his connection and disputes and denies the significance and tendency of the evidence to prove accomplicity. Then an instruction on such contested evidence that the Avitness is an accomplice, may amount to a charge on the weight of the evidence or may be an assumption that the testimony of the witness was true and that of defendant necessarily untrue. But not so when he does not testify to the state of facts detailed by the witness, but merely denies generally any connection with the witness.”

Cleo Mashburn is the only one of the Mashburns Avho testified in the state’s case in chief. The defendant does not admit a connection with this witness, but wholly denied talking to- Cleo Mashburn or having any connection with Cleo Mashburn.

The defendant contends that since he admits talking to Uris Mashburn and agreed to buy the steel from him and loaned him a trailer to haul the steel, but explains his connection Avith the witness by stating that he did not know the steel was to be stolen, that he comes within the reasoning of the Carter Case, supra; and that the court erred in not instructing the jury as to Avhat in laAv it takes to- constitute an accomplice and then leaving, it as a question of fact for the jury to- determine as to whether the Mashburns were accomplices.

We think this contention is without merit. If Cleo Mashburn is not an. accomplice of the defendant, then his testimony does not have to be corroborated. The instruction given does not aid the state, but is for the protection of the accused, and is probably more favorable to the defendant than he is entitled to- under the evidence. By instructing the jury as a matter of law that the Mash-burns were accomplices of the defendant, a greater burden was thereby placed on the state.

We have carefully examined the instructions given in this ease. All of the instructions must be construed together as a single charge. In this case we find that together with the instruction relative to accomplices, and the elements that must be proved to sustain a charge of receiving stolen property that the jury is also told that the defendant is presumed to be innocent and that the presumption of innocence remains with the defendant throughout the trial and that the burden is upon the state to overcome this presumption of innocence and to prove his guilt beyond a reasonable doubt, and are told the facts necessary to be proved before a verdict of guilty can be returned. The accomplice instruction complained of, when considered together with these other instructions, amounts in substance to the court saying to the jury:

“The witness Cleo Mashburn has testified to a state of facts tending to connect himself and the defendant with the commission of the offense charged. Cleo Mashburn’s testimony makes him what is known in law as an accomplice. The law looks upon the testimony of an accomplice with suspicion, and will not permit a conviction to be had on his testimony alone; but before you can convict the defendant, you must believe beyond a reasonable doubt that Ms testimony is true, and must further find that Mashburn is corroborated by other independent evidence tending to connect defendant with the commission of the crime, and you must find and believe beyond a reasonable doubt from all of the evidence construed together that the defendant is guilty of the crime charged.”

The court resolved the question in the defendant’s favor by the giving of the instruction complained of. The instruction given is more favorable to an accused than one which leaves to the jury the question of whether or not the witness is an accomplice. Submitting the question of accomplicity to the jury may in some cases confuse them. It is conceivable that they might erroneously conclude that an accomplice in fact is not an accomplice, and return a verdict of guilty without sufficient corroboration, which they might not have done if they had understood clearly that the witness was as a matter of law an accomplice and that corroboration was necessary.

Upon a consideration of all of the evidence and the instructions as a whole, we are satisfied that the defendant has had a fair and impartial trial.

This ease is accordingly affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


author: DOYLE, P. J.

text:
    R. A. GOODWIN v. STATE.
    No. A-9593.
    Feb. 1, 1940.
    (99 P. 2d 181.)

      H. S. McArthur and B. C. Franklin, both of Tulsa, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   DOYLE, P. J.

Plaintiff in error, R. A. Goodwin, herein referred to as defendant, was tried and convicted of the crime of receiving stolen property, upon an information charging that in Tulsa county, on the 21st day of March, 1938, he did wilfully, knowingly and feloniously receive from Leo Davis, one 9x12 Oriental rug, of the value of $50, said property having been stolen from Mrs. B. H. Berkley, then and there knowing the same was stolen property, with the felonious intent to convert the same to his own use and benefit.

The jury fixed his punishment at two years’ imprisonment in the state penitentiary and a fine of $250. Motion for new trial was duly filed and overruled July 15, 1938.

To reverse the judgment rendered on the verdict, he appeals.

The alleged errors argued in the brief and relied upon for a reversal of the judgment are: Error of the court in permitting the county attorney to endorse the name of an additional witness on the information when the case was called for trial; that the court erred in admitting incompetent and prejudicial testimony; that the court erred in admitting the testimony of the arresting officers, for the reason the same was based upon an illegal search and seizure, and that the evidence is insufficient to sustain the verdict.

The evidence shows that on the night of the date alleged, the home of Mr. and Mrs. Berkley, at 1113 South Owasso street, Tulsa, was burglarized by Leo Davis and Dan Stepper Davis; that they took from this burglarized home the rug described in the information. Mr. and Mrs. Berkley were away from home that night; that defendant, R. A. Goodwin, purchased this rug from Leo Davis the same night; that a few days later police officers of the city called at defendant Goodwin’s home. His wife came to the door and they asked for Dr. Goodwin. He came to the door; the officers asked him if he had any property there left by Leo Davis and Dan Stepper. He said “Yes, he did.” The officers asked him. if it would be necessary to get a search warrant, he said no-, and told them to come in and get it. The officers on his invitation went in and found the rug in question rolled up under a bed. Dr. Goodwin told the officers he bought the rug and that he had been buying property from Leo Davis and Dan Stepper Davis from about the first of the year.

Mr. and Mrs. Berkley testified as to the time their home was burglarized, and as to the cost and value of the rug, and described the other property taken from their home, including á shotgun, a pistol, a radio and some linens.

' The next witness for the state, Dan Stepper Davis, alias Dan Stepper, testified in substance as follows:

“I have lived around Tulsa for about 25 years. I am in jail now. I broke and entered a house at 1113 South Owasso, about March 21, this year. Leo Davis was with me; about 9 o’clock that night we pried the rear door open and entered; we took from the house a rug, a radio, a shotgun, a 45 pistol and some linens. It took us about 20 minutes to do this job. We loaded it in Leo’s car, and drove to Dr. Goodwin’s, on Greenwood, reaching there between 10 and 10:30. We told him we had this stuff. He said he could not use the gun but would take the other stuff, and we sold it to him for $20. He asked me if we got it here in town, I told him, Wes.’ He had been buying stuff from us for some time. I started dealing with him in January.” Asked: “Was it all stolen stuff he has been buying of you?” Defendant’s objection overruled., witness answered: “Yes, since about the first of the year.”

On cross-examination he stated:

“I have served time for liquor. I have been promised no immunity; I now have two burglary charges pending in this court against me, Leo> Davis is dead, he was killed while burglarizing a house.”

That be bad burglarized not over three bouses since tbe first of tbe year.

George Reif testified that be was a police officer and bad occasion to aid in tbe search of tbe premises of Dr. Goodwin: Asked: “Did you have a search warrant?” Answered : “I did not.”

Counsel for defendant asked to have tbe jury withdrawn so that tbe testimony of this witness could be tested in tbe absence of the jury.

Thereupon the court directed the jury to retire and remain together in tbe charge of tbe bailiff. Witness then testified that be went to defendant’s bouse and knocked at tbe front door. Mrs. Goodwin opened tbe door and be asked if Dr. Goodwin was in the bouse, she answered “Yes” and Dr. Goodwin came to tbe door. Grady Porter of the police department was with him. He said “We are officers”, and told tbe Doctor, “You are under arrest for knowingly receiving stolen property”, then asked him if be had tbe stolen property that Leo Davis and Dan Stepper Davis bad brought there, and be said “Yes”, and he asked him if be wanted them to obtain a search warrant to get the articles, and Doctor Goodwin said, “No, I will turn them over to you.” He opened the door and walked ahead down tbe ball to a bed room and pulled a large folded rug from under tbe bed. That Dan Stepper was under arrest at the time and was taken to- tbe bouse with them, but was left in the car parked in front of tbe bouse with Chief Hyatt.

“Mr. Franklin: Comes now defendant, R. A. Goodwin, and moves the court to suppress the evidence in support of tbe search and seizure for the reason that said search and seizure was not bad according to law, and tbe due process of law in violation of both tbe State and Federal Constitutions.
“The Court: Overruled. Exceptions.”
The jury was returned into court.
Mr. Reif further testified :
“Dr. Goodwin came to' the door, we told him that we were officers, and that he was under arrest for knowingly receiving stolen property. He asked him if he had any of the stolen property, rugs or other articles that Dan Stepper and Leo Davis had brought to him. He said he had. Asked if he had them on the premises, he said he did. We asked him if he was willing to turn the articles over to the officers, or if he wanted us to obtain a search warrant, and he said, ‘Come right on in’. He unlatched the screen door, we went in. He walked down the hall into a rear room and pulled a folded rug from under the bed and took a radio1 from a closet in the same room, also-some other things. The rug and other articles were taken to the police station.”

I. C. Fisher testified that he was a police officer; that on the morning of the 22nd of March, this year, in a conversation with defendant at the police station, defendant said he had bought some merchandise from Leo Davis and Dan Stepper, to' the amount of $60. We asked him why he bought this stuff, if he knew it was hot, and he said, yes, that was why he had it stored in the rear of his place of business until it cooled off. He said the last he had bought from Stepper and Davis was a radio' and a rug, for which he paid Davis $20.

When the state rested, defendant interposed a demurrer to the evidence, which was overruled, exception reserved.

As a witness in his own behalf defendant testified:

“I have lived in Tulsa about nine years, I am a Chiropractor by profession, I am an ex-service man, I do not know Dan Stepper, I never had any dealings with him, I know Leo' Davis, I first met him along the last of January, he came to my house and said he was selling secondhand goods for some concern, I bought some linens from him the first time, and paid him a fair price. He came to my house in the afternoon, I think it was on March 22, and sold me a rug for which I gave him $15. When the officers came, my wife went to the door, they asked for me, I was in bed, I went to the door. They said Leo Davis said he sold me some things that were stolen, I said, ‘yes’, he did, but I didn’t know it was stolen property, I gave them the things. A day or two before I was arrested I noticed in a paper about a rug and some things having been stolen from the Berkley home. I thought possibly it might be one of the rugs. I got scared and put the rug under the bed. I made no statements to any officer. When I bought this stuff I had no idea at that time that it was stolen merchandise.”

On cross-examination he stated: That about the last of January, he bought from Leo Davis some sheets, pillow cases, and some blankets and paid him $20; that about March 3rd, he bought from Leo Davis an electric roaster, a silver coffee urn, cream pitcher and sugar bowl, and paid him $12; that on the 22nd of March he bought the rug and radio from Leo Davis, and gave him $15 for the rug and $5 for the radio; that he did not see Dan Stepper Davis and did not tell the officers that he bought these things from Leo Davis and Dan Stepper Davis, that he told the officers that he never had any dealings with Dan Stepper Davis, that about 20 years ago, in the State of Kansas, he pleaded guilty to a statutory charge.

A number of witnesses qualified as character witnesses, and each testified that defendant’s reputation in the community in which he lives for truth and veracity was good, and as to being a law-abiding citizen it was good.

Counsel for defendant in their brief state:

“The court erred in permitting the county attorney to indorse the name of Dan Stepper Davis, alias, Dan Stepper, on tbe information. That counsel requested a continuance for twenty four hours in order to try and get ready, which request was by the court denied, and in view of the fact that the information charged that defendant had knowingly received stolen property from one Leo Davis, we think that the trial court under the circumstances, not only abused its discretion, but denied the defendant his constitutional and statutory rights.”

There appears nothing in the record to support this contention, and there is no assignment of error based on this action of the court. The record shows that the name “Dan Stepper” was indorsed on the preliminary complaint, also on the information when filed in the district court. Before the case was called for trial the name was merely corrected by adding “Davis.”

The Code of Criminal Procedure provides that the county attorney shall indorse on the information the names of the witnesses known to him at the time of filing the same. He shall also indorse thereon the names of such other witnesses that may afterwards become known to him at such time as the court may by rule prescribe. Sec. 2829, 22 Okla. St. Ann. § 303.

Under the statute permission to indorse the names of additional witnesses on the information is a matter resting entirely within the sound discretion of the trial court, and unless it clearly appears that it was an abuse of discretion and that it was prejudicial to the substantial rights of the defendant, it will not be held to' be reversible error. Grayson v. State, 12 Okla. Cr. 226, 154 P. 334; Whitworth v. State, 32 Okla. Cr. 200, 239 P. 930.

The next contention made is that the court erred in admitting testimony of other thefts and the receiving of the property stolen.

As a general rule, evidence of other offenses, though of the same nature, is not admissible for the purpose of showing that the defendant is guilty of the particular offense charged. To this rule, however, there are well settled exceptions, and one of them is that where the offense or offenses tend to identify the defendant with the offense charged, or where such evidence is for the purpose of showing that the offense charged was a part of a system, plan or scheme, including other like offenses, such evidence is admissible. State v. Rule, 11 Okla. Cr. 237, 144. P. 807.

Upon the undisputed facts in the instant case, the contention made is wholly without merit.

It is also contended that the court erred in admitting certain testimony offered by the arresting officers, for the reason that the same was based upon an illegal search and seizure.

Upon the record before us, we deem it sufficient to say that only unreasonable searches and seizures are prohibited. The right, without a search warrant, contemporaneously to search the place where the arrest is made, in order to find and seize things connected with the crime as its fruits, or as a means by which if was committed, or which may be used as evidence on the trial, is not to be doubted. Griffin v. State, 57 Okla. Cr. 176, 46 P. 2d 382; Newton v. State, 61 Okla. Cr. 237, 71 P. 2d 122.

Whether an explanation respecting possession of property recently stolen is reasonable or not, is ordinarily a question for the jury the same as any other question of fact, and a reasonable explanation will not necessarily lead to' an acquittal, and a verdict sustained by substantial evidence will not be disturbed by this court, unless it appears that the same was given under the influence of passion or prejudice.

Carefully considering the whole testimony in this case, we have no doubt of its sufficiency to justify the verdict, and finding no error in the record that will warrant this court in disturbing, the verdict the judgment appealed from is affirmed.

BAREFOOT and JONES, JJ., concur.


text:
    ZORA CRIM v. STATE.
    No. A-9604.
    Feb. 1, 1940.
    (99 P. 2d 185.)

      Embry & Embry, of Chandler, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., for defendant in error.
   JONES, J.

The defendant Zora Crim was charged in the county court of Lincoln county with the crime of possession of intoxicating liquor; a jury was waived; defendant was tried, convicted and sentenced by the court to serve thirty days in the county jail and to pay a fine of $50, from which judgment and sentence this appeal was taken.

The defendant assigns as error: (1) action of the court in refusing to suppress evidence obtained under an illegal search warrant based upon an insufficient affidavit; (2) action of the court in refusing to sustain defendant’s motion to suppress because the search warrant was never returned; (3) action of the court in permitting the prosecution to be conducted in the name of Zora Crim rather than in the name of the defendant, Zora Smith; (4) error of the court in finding defendant guilty because of the insufficiency of the evidence.

The affidavit recites sufficient evidentiary facts to authorize the issuance of the search warrant. There is no argument made by the defendant that the affidavit is insufficient with the exception that the contention is made that since the affidavit describes the premises to be as follows:

“The residence of one Lewis Crim, same being located upon the Northeast Quarter of the Southeast Quarter of Section 4, Township 14 N. Range 6. E. I. M. including all of the outbuildings and grounds within the curtilage thereof/’ that the same is insufficient to justify a search of the premises occupied by the defendant for the reason that the defendant and Lewis Crim, the man named in the affidavit, were divorced on the 25th day of May, 1938, before the search occurred on the 21st day of October, 1938.

In support of her motion to suppress the evidence, the defendant introduced a journal entry of judgment in a divorce suit which showed that the defendant was divorced in the district court of Lincoln county, Okla., on May 25, 1938, that in the decree she was awarded the lease covering the property described in the search warrant, and the said Lewis Crim was enjoined from molesting or interfering with the defendant in her possession of this property. The defendant was restored to her maiden name of Zora Smith.

It is conceded that the legal description of the premises to be searched is correct. For that reason no discretion was left to the officers making the search as to the place to be searched. This court has held in numerous cases that where the affidavit is an application for a search warrant to search a particular place which is particularly described, and not for the search of a person, the failure to name or describe the person does not render it fatally defective. State v. Skelton, 36 Okla. Cr. 377, 254 P. 754; Ross v. State, 38 Okla. Cr. 252, 260 P. 90.

In State v. Skelton, supra, we laid down the following rule:

“A motion to suppress evidence on the ground that the affidavit for search warrant is insufficient should he overruled, where the constitutional and statutory requirements and sufficient evidentiary facts are stated in the affidavit to warrant the magistrate in making a finding of probable cause.
“Where a search warrant is sought for the search of any person, such person must be particularly described in the affidavit for search warrant; if a search ^warrant be sought for the search of a place, the place must in like manner be particularly described in the affidavit, and the name of the owner or occupant should be set out, or he should be described as unknown, according to the facts. When, however, a place is otherwise particularly described, it is not absolutely essential that the affidavit set oat the name of the owner or occupant.”

The court has stated in Cahill v. State, 38 Okla. Cr. 236, 260 P. 91:

“Where an affidavit for a search warrant under the prohibitory liquor law particularly describes the place to be searched so that no discretion is left to the officer making the search, the description of the place will be sufficient, although the name of the owner or occupant of the place is not set out.”

See, also, Sherwood v. State, 48 Okla. Cr. 263, 290 P. 1112.

The decisions cited by the defendant in her brief are cases where there was a mistake in the owner’s name in the search warrant and the land described happened to ■be owned or occupied by several persons SO' that in fact there were several places within the legal description set forth in those search warrants. In the instant case there is no evidence that there are other residences on the land described in the search warrant so that there could be a matter left for discretion of the officer making the search. If there were other residences situated on the premises described in the search warrant, the burden was on the defendant to so show in support of her motion.

Under the foregoing authorities it is our opinion that the motion to suppress the evidence because of the insufficiency of the affidavit should have been overruled.

The defendant’s contention that the motion to- suppress the evidence should have been sustained because the search warrant was never returned is without merit. This court stated in Hensley v. State, 53 Okla. Cr. 22, 3 P. 2d 211, 212 :

“A search warrant, otherwise valid, which has been executed within ten days from the time it was issued, is not rendered invalid by failure of the officer to make return thereon.”

Also, see Rose v. United States, 6 Cir., 274 F. 245; Viadock v. State, 30 Okla. Cr. 374, 236 P. 56.

It was the duty of the county court to continue the prosecution of this case in the name of Zora Smith after his attention was called to the fact that her true name was Zora Smith. Section 2885, O. S. 1931, 22 Okla. St. Ann. § 403, provides as follows:

“When a defendant is indicted or prosecuted by a fictitious or erroneous name, and in any stage of the proceedings his true name is discovered, it must be inserted in the subsequent proceedings, referring to the fact of his being charged by the name mentioned in the indictment or information.”

Under this statute it is clear that the court should have ordered the prosecution to be continued in the true name of the defendant after it was called to his attention. The purpose of this statute is to furnish a proper and complete identification of the accused and to enable a correct record of the proceedings to be made. In this case, however, the identity of the defendant as being the person against whom the information is directed is unquestioned. This omission by the court does not affect the guilt or innocence of the defendant and cannot possibly in any manner be said to have deprived her of any of her substantial rights. A verdict supported by competent evidence should not be reversed for mere irregularities or technicalities where there is no showing that the defendant has been prejudiced thereby. Cooper v. State, 12 Okla. Cr. 142, 152 P. 608; Smith v. State, 34 Okla. Cr. 318, 246 P. 883; Brown v. State, 9 Okla. Cr. 382, 132 P. 359; Bethel v. State, 8 Okla. Cr. 61, 126 P. 698. We hold that this mistake by the court is insufficient to justify a reversal of this case.

The most serious question for the determination of this court is the question of the sufficiency of the evidence to sustain a conviction. Only one witness was called on each side in the trial of this case. Bichard Murphy, the officer, testified that he had known the defendant about 20 years; that he made a search of the defendant’s place about 4 o’clock in the afternoon; that the defendant was not at home, but that a housekeeper was there; that he found five pints of whisky concealed at different places in the house, one of which had the seal broken; that the defendant was arrested the next morning.

The defendant in her own behalf stated that she had moved to the place which was searched in February, 1938, and lived with Lewis Crim there until she obtained a divorce in May, 1938, and had been living there by herself since the date of her divorce; that she had been away from home two or three days, and had left a girl there to look after her place in her absence. The defendant disclaimed any knowledge of the whisky.

This court has long followed the rule that a conviction would not he reversed because of insufficiency of the evidence where there is any evidence, together with reasonable and logical .inferences and deductions to be drawn therefrom, sufficient to convince a jury beyond a reasonable doubt of the guilt of the defendant.

The defendant' voluntarily waived a trial by jury and agreed that the county judge could be the trier of the facts. The defendant thought the county judge would be fair, and impartial, and the fact that only the minimum sentence was given shows there was no prejudice on the part of the court.

The county court, based on his experience, observation and common knowledge in such matters, has made his finding of fact; he was able to observe the demeanor of the witnesses on the stand, and since the liquor was found in a building, the absolute control and possession of which was vested in the defendant, and was in quantities sufficient to make a prima facie case, we will not rule that the evidence is insufficient to support the judgment of the county court.

The case is accordingly affirmed.

DOYLE, P. J., and BABEPOOT, J., concur.


author: BAREFOOT, J.

text:
    SAM LYON v. STATE.
    No. A-9557.
    Feb. 1, 1940.
    (100 P. 2d 287.)

      McDonald & McDonald, of Durant, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty. of Oklahoma City, for the State.
   BAREFOOT, J.

The defendant was charged with the crime of embezzlement, in Oklahoma county; was tried, convicted and sentenced to pay a fine of $5 and serve a term of five years in the penitentiary, and has appealed.

The defendant, Sam Lyon, was employed by the State Highway Commission of the state of Oklahoma as cashier of the title division. He was charged by information with embezzling the sum of $1,974 during a period from September 10, 1935, to May 12, 1936. The method adopted by the Highway Commission and in force, as shown by the record, was that the cashier of the title division received all moneys sent in or paid in by the tag agents located in the various counties, and from the issuance of licenses to used car dealers. Upon receipt of this money receipts would be issued by the cashier, or his assistant in his absence. These receipts were made in triplicate; the original going to the tag agent; the duplicate being pinned to the agent’s report and made a part of that agent’s permanent record in the Highway Department, and the triplicate remaining in the defendant’s department. These checks, money orders, and cash, upon being received by the defendant or his assistant, were placed in a box, which was placed in a drawer of the table at which the defendant and his assistant worked. On the next day these checks, money orders and cash were taken, either by defendant himself, or his assistant, to the cashier of the accounting department of the Highway Commission. Before taking them these items were totaled by defendant, if he was there, if not, by his assistant, and the receipt book was checked against the cash, checks and money orders on hand to show that they balanced. A separate list of every check, either personal or cashier, or money order, was made up, together with the amount for which it was written, and the place from which it had been sent, all cash being lumped together in one sum on the itemization sheet, with no designation of the agent or the agent’s location This sheet was written on the typewriter. The assistant of defendant testified that these lists were made individually by defendant, after checking the box, and copied by her from his data, and by her written on the typewriter. Only a very few times did she prepare these statements herself. There was also prepared a “Daily Summary of Cashier’s Collections and Deposits with the State Treasurer.” This sheet showed the receipts from tag agents, also the total collections from used car licenses, and gave the grand total. The itemization of the checks and the daily summary sheet, together with the checks and. cash received, were taken to the office of the cashier of the chief of accounts of the Highway Department, which was located on the same floor of the Capitol Building.

The cashier of that department would run an adding machine slip on the itemization sheet and compare the same with the adding machine slip prepared and presented. If the comparison balanced, the cashier in the department of accounts would issue a receipt to defendant which bulked the checks, money orders, currency and silver and showed a grand total. This receipt was made in duplicate, the original being returned to the defendant’s possession, and the duplicate remaining with the cashier of the chief of accounts.

The record reveals that the above system has been eliminated and is not now in force in the department, and was not in force at the time of the trial of this case.

The information upon which defendant was charged was based upon Oklahoma Statutes, 1931, section 2495, Okla. Stats. Anno, title 21, section 34T, which is as follows:

“Every public officer of the state or any county, city, town, or member or officer of the Legislature, and every deputy or clerk of any such officer and every other person receiving any money or other thing of value on behalf of or for account of this state or any department of the government of this state or any bureau or fund created by law and in which this state or the people thereof, are directly or indirectly interested, who either:
“First: Appropriates to his own use, or to the use of any person not entitled thereto, without authority of law, any money or anything of value received by him as such officer, clerk, or deputy, or otherwise, on behalf of this state, or the people thereof, or in which they are interested: or.
“Second: Receives, directly or indirectly, any interest, profit or perquisites, arising from the use or loan of public funds in his hands or money to be raised through his agency for state, city, town, district, or county purposes; or,
“Third: Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to any moneys so received by him, on behalf of the state, city, town, district or county, or the people thereof, or in which they are interested; or,
“Fourth: Fraudulently alters, falsifies, cancels, destroys or obliterates any such account; or
“Fifth: Willfully omits or refuses to pay over to the state, city, town, district or county, or their officers or agents authorized by law to receive the same, any money or interest, profit or perquisites arising therefrom, received by him under any duty imposed by law so to' pay over the same, shall upon conviction thereof, be deemed guilty of a felony and shall be punished by a fine of not to exceed $500 and by imprisonment in the penitentiary for a term of not less than one nor more than 20 years and in addition thereto shall be disqualified to hold office in this state, and the court shall issue an order of such forfeiture, and should appeal be taken from the judgment of the court, the defendant may, in the discretion of the court, stand suspended from such office until such cause is finally determined.”

The defendant was charged, under the above section, with the embezzlement of $1,974, covering a period of September 10, 1935, to May 12, 1936. The state, to1 substantiate the allegations of the information, first introduced an audit made by an auditor working out of the office of the State Examiner and Inspector, which audit covered a period from July 1, 1935, to May 23, 1936. This audit was made up from the receipts as above indicated, and which were taken from the office of the defendant and the office of the cashier of the accounting department, and revealed the shortage during that period of $1,974. This report was from July 1,1935, but did not reveal a shortage prior to September 10, 1935, the date alleged in the information. There were introduced in evidence by the state 20 exhibits which were receipts showing the receipt of certain sums of money from different tag agents in different counties of the state. The total of the 20 receipts amounted to- the sum of $1,974, and the receipts were signed by the defendant, Sam Lyon, and were procured by the auditor from the office of the State Examiner and Inspector from the office of defendant. These receipts gave the name of the agent, the date received, the amount received, and generally the address of the one who sent in or delivered the money or check. In some instances money was paid in person by the tag agents or the used car dealers. There were next introduced in evidence by the state 20 receipts from the cashier of the chief of accounts department. These were receipts corresponding to the receipts issued by the department of the defendant. The total receipts, according to the auditor’s reports from the office of the defendant during the period above stated was $282,684.89, and the total receipts delivered by him to the cashier of the accounting department was $280,710.89.

The state further showed, and the exhibits revealed, that the amount of shortage each day was the exact amount paid by one of the agents to defendant on that day. All of the checks and money orders were traced by the auditor, and accounted for, and were deposited with the treasurer of the accounting department. The shortage was in cash items. All of the 20 receipts issued from the defendant’s •office were signed by the defendant in person. The evidence revealed that defendant was present on the dates these receipts were issued. The evidence showed that he made up the statements and gave them to his assistant, who copied them on the typewriter, and these facts fully justified the jury in finding that the defendant had not only failed to account for and turn over the money which was the property of the state, and which had been entrusted to his care and keeping, but that he had misappropriated the same by appropriating it to his own use and benefit.

Section 2037, Okla. Stats. 1931, Okla. Stats. Anno-title 21, section 1451, defines embezzlement as follows:

“Embezzlement is the fraudulent appropriation of property by a person to whom it has been entrusted.” This is the general statute defining embezzlement. In the case of State v. Duerksen, 8 Okla. Cr. 601, 129 P. 881, 882, 52 L. R. A., N. S., 1013, this court says:

“When one converts the money of another to his own use, without permission from the lawful owner thereof, the law infers a fraudulent intent, and punishes the act of embezzlement. The fact that a person never concealed the tailing or converting of the money received, as the money in this case was, and promises to return it, does not make the act lawful or any the less embezzlement under the statute. The trial court clearly misunderstood the law as applied to the facts in this record, and erroneously advised the jury to return a verdict of not guilty. A conviction and punishment should have followed rather than an acquittal from the facts before us. If every person in this state, who occupies a confidential relationship as agent (or otherwise) to other persons, should be permitted to use and convert the money of his principal, that might come into’ his hands, to his own use, and then escape punishment simply because he admitted using the money and promised to pay it back, the embezzlement statute had just as well be erased from the books, and the courts rallied to the support and condonement of such conduct. There will be some misappropriation of trust funds with a rigid enforcement of the law; and when such is the case, the sooner and swifter the punishment, the better for the public welfare. This court declines to' approve a rule which places a premium on crookedness. The indiscreet handling of money by those who, by reason of a. confidential relationship, come into’ possession of funds of another and appropriate the same to their own use is not to be tolerated, and the guilty permitted to escape punishment. A man who appropriates to his own use the funds of another, received in a trust capacity, is no less a thief under the law than one who in the nighttime purloins his money or other personal property and sells the same for his own benefit. Such conduct is to be condemned rather than condoned.”

Under the specific statute heretofore quoted, under which defendant was prosecuted, the law infers that the property had been appropriated to- the use and benefit of the defendant, under the facts in this ease. Casselman v. State, 58 Okla. Cr. 371, 54 P. 2d 678; State v. Allen, 21 S.D. 121, 110 N.W. 92; Blake v. State, 12 Okla. Cr. 549, 160 P. 30, L.R.A. 1917B, 1261; State v. Bunch, 23 Okla. Cr. 388, 214 P. 1093; Smith v. State, 42 Okla. Cr. 136, 275 P. 359; State v. West, 14 Okla. Cr. 405, 171 P. 1127; Harris v. State, 17 Okla. Cr. 69, 175 P. 627; Hays v. State, 22 Okla. Cr. 99, 210 P. 728.

The only defense offered by defendant was that other persons had access to the money and checks, and that for this reason it could not be found that he was the identical person who made the misappropriation. All of the facts and circumstances reveal that he was the one who had possession and control of the funds. He signed the receipts, was present on the dates the receipts were issued, and he made up the memorandum statements which were typewritten by his assistant. The audit was made from the records in his office, and fully showed under his signature the receipt of the money from the tag, agents and a failure to deposit it with the cashier of the accounting department as was his duty. Not a single one of the 20 receipts bore the initial of his assistant, but were in his own signature. The jury had the right to consider all the facts and circumstances, and after such consideration they found the defendant guilty. It is not for this court to say they came to the wrong • conclusion.

It is urged for reversal of this case, that the court erred in giving instructions Nos. 5, 6, 7, and 8, and in refusing to give certain instructions requested by defendant. The quoting of these instructions would unduly lengthen this opinion. Instruction No. 5 defined embezzlement in the terms of the statute, Oklahoma Statutes, 1931, sec. 2037, Okla. Stats. Annot., title 21, sec. 1451, and stated the terms of the statute under which defendant was charged by the information as heretofore quoted. Instruction No. 6 told the jury that if they believed from the evidence in this case beyond a reasonable doubt that defendant had embezzled the funds, and set forth the terms of the statute above quoted, he would be guilty. Certainly there could be no error in the giving of these two instructions. Instruction No. 7 was upon circumstantial evidence. The general terms of this instruction have often been approved by this court. Carter v. State, 6 Okla. Cr. 232, 118 P. 264; Howard v. State, 2 Okla. Cr. 200, 101 P. 131; Baldwin v. State, 11 Okla. Cr. 228, 144 P. 634; Jackson v. State, 22 Okla. Cr. 338, 211 P. 1066; Fluke v. State, 27 Okla. Cr. 234, 226 P. 188; Inklebarger v. State, 8 Okla. Cr. 316, 127 P. 707.

Instruction No. 8 was with reference to the effect of evidence of good character and reputation. The court did not give the identical instruction requested by defendant, but gave one which has been approved by this court many times. Morris v. Territory, 1 Okla. Cr. 617, 99 P. 760, 101 P. 111; Wilson v. State, 3 Okla. Cr. 714, 109 P. 289; Williams v. State, 19 Okla. Cr. 307, 199 P. 400; Jolliffee v. State, 21 Okla. Cr. 278, 207 P. 454.

The requested instructions offered by defendant in this case were covered in almost every instance by the general instructions given by the court.

The only defense made by defendant in this case was that he had not misappropriated any of the funds which came into his hands, and that other parties working in his office, or in close proximity thereto, had an opportunity or chance to misappropriate the funds instead of himself. Certain of the requested instructions were proper statements of the law. Others requested were not the law. Others were covered by the general instructions.

From a careful examination, we do not find that the court erred in refusing to give the requested instructions offered by the defendant in this case.

From a reading of this record, one can but come to the conclusion that a young man who was given a responsible position in this state, and was trusted with the receiving of money of the state has failed to live up to his official oath to account to the state for the money which he has received. A jury has found, under the facts and circumstances offered in evidence, that these funds in the sum of $1,974 had been misappropriated by this defendant, and finding no error in the conclusion thus reached, it is the opinion of this court that the judgment of the district court of Okahoma county should be affirmed.

DOYLE, P. J., and JONES, J., concur.


text:
    HARVEY WOODS v. STATE.
    No. A-9612.
    Feb. 3, 1940.
    (99 P. 2d 189.)

      C. F. Gowdy, of Tulsa, for plaintiff in error.
    Mac Q. Williamson, A tty. Gen., and Jess L. Pullen, Asst. Att-y. Gen., for defendant in error.
   JONES, J.

Tlie defendant was jointly charged in Tulsa county with Sarah Miller, Amanda Hatley, and one Brooks with the offense of robbery with a dangerous weapon. A severance was granted; the defendant was tried, convicted and sentenced to serve a term of 35 years’ imprisonment in the state penitentiary, and has appealed.

The evidence on the part of the state was that one Harve Hampton, a white man, went to a house in the negro section of Tulsa for the purpose of buying some whisky; that he saw the defendant, together with two women and one man charged with the defendant in this offense, at the house where he went to purchase the whisky; that he had been there before, but did not know the defendant. Hampton purchased a half pint of whisky from one of the women; the whisky was passed around the room, and the four negroes and the complaining witness drank it. Hampton then bought another half pint of whisky and stuck it in his pocket and started to go home. One of the women grabbed him, and the defendant pulled a knife with a long blade out of his pocket and grabbed the complainant by the throat and said, “Don’t move or I will cut your damned head off.” The defendant stuck his hand into Hampton’s pocket, removed his billfold, and took $38 in greenbacks out of the billfold, and then opened the back door, and kicked the complainant out the door. Hampton then went down on the street, got two negro policemen, and returned to the apartment house, and arrested the defendant and the two negro women. The complainant was 66 years of age.

Part of the complaining witness’ testimony was corroborated by Hiro Hughes and Frank Lockhart, two negroes who' were at the rear of the apartment house, who stated that they saw the defendant kick Hampton out the back door.

The policemen testified as to the complaint being made at the time by Hampton, and they then went to the apartment with Hampton, where they arrested the defendant and two negro women; that Harvey Woods and Sarah Miller, one of the negro women involved, were living at the apartment with two other negroes.

The defendant testified in his own behalf that he was 26 years old; that he was at the apartment when Hampton arrived on July 15, 1938; that he was lying on a bed asleep and was awakened by a fuss made by the negro girls and Hampton in the front room. He got up and went into the front room, and Amanda Hatley, Sarah Miller, and Hampton were there. Brooks had gone and did not come back; that Amanda Hatley stated that Hampton was trying to have her for a quarter. The defendant then ordered Hampton to leave, and Hampton stated that he would not leave until he had finished drinking his whisky. The defendant then asked Amanda to open the door, and he took the complaining witness to the door and kicked him out the door.

The defendant denied having a knife and denied taking any money from Hampton. On cross-examination, the defendant, stated that he had been convicted of grand larceny in Okmulgee county and of second degree burglary from Creek county, and had served terms in the penitentiary for said convictions.

A written statement that the defendant had given at police headquarters shortly after his arrest was introduced in evidence, in which the defendant stated that he did not see Hampton that day until he came to the apartment with the police officers.

Sarah Miller, one of the codefendants, was called as a witness and testified that the defendant did not take any money from Hampton, but upon being asked further questions refused to testify on the grounds that she had a case pending and that it might jeopardize her rights in that case.

The defendant assigns as error:

(1) That the information charges the offense of conjoint robbery, while the defendant was found guilty of robbery with a dangerous weapon; and there is a fatal variance between the verdict and the offense charged.

(2) Error of the court in giving instruction No. 6.

(3) That the court was without jurisdiction to-try the case in that it was not legally in session when the defendant was tried, convicted and sentenced; in that the general term of the district court of Tulsa county, Okla., for the July, 1938, term was not convened on the day fixed by law for the same; that the trial, verdict, judgment and all proceedings had in said case were at a purported adjourned day.

(4) That the sentence is extreme and cruel, and is so excessive as to fall into the provision of the Constitution prohibiting cruel and excessive punishment, Okla. St. Ann. .Const, art. 2, § 9.

We shall consider these various contentions of the defendant in the order named.

The information herein is styled “Information for Robbery with a Dangerous Weapon,” and alleges:

“That Dixie Gilmer, the duly qualified aud acting County Attorney for Tulsa County, Oklahoma, who prosecutes in the name and by the authority of The State of Oklahoma, comes now into the District Court for Tulsa County, State of Oklahoma, on this the 7 day of September, A. D., 1938, and gives the Court to understand and be informed that Harvey Woods, Sarah Miller, one Brooks whose first name is unknown and Amanda Hatley and each of them on the 15th day of July, A. D. 1938, in Tulsa County, State of Oklahoma, and within the jurisdiction of this Court, did unlawfully, willfully, forcibly, conjointly and feloniously and while acting in concert each with the other, take, steal and carry away, from the immediate presence and person of one Harve Hampton and without the consent and against the will of the said Harve Hampton, certain personal property, to-wit: |38.00 in good and lawful money of the United States of America, being the property of the said Harve Hampton, said taking, stealing and carrying away being then and there accomplished by said defendants and each of them, upon and against the said Harve Hampton by means of force and fear, said force and fear being then and there used by said defendants and each of them, in the manner as follows, to wit:
“That said defendants and each of them, while acting in concert each with the other, did then and there unlawfully, wrongfully, forcibly, conjointly and felon-iously, threaten to kill the said Harve Hampton, with a certain open, sharp, pocket knife, then and there had and held in the hands of said defendants and each of them, if he then and there resisted, and did then and there unlawfully, wrongfully, forcibly, conjointly and felon-iously, threaten to take the life of the said Harve Hampton, or do him great bodily harm, if he, the said Harve Hampton, then and there resisted, making threats of violence against the person of the said Harve Hampton, then and there and thereby producing in the mind of the said Harve Hampton fear of immediate and unlawful injury to his said person, and said fear so produced in the mind of the said Harve Hampton was sufficient to and did overcome all resistance on the part of him, the said Harve Hampton, and while he was under the influence of said fear of immediate and unlawful injury to his said person, said defendants and each of them, did then and there unlawfully, wrongfully, forcibly, conjointly and feloniously take, steal and carry away the property aforesaid, Avith the felonious intent then and there upon the part of said defendants and each of them, to deprive the owner thereof permanently and to convert the same to their own use and benefit, contrary to the form of the Statutes in such cases made and provided, and against the peace and dignity of the State.”

It is contended that since the robbery is charged to have been committed by two or more persons conjointly the prosecution should have been under the conjoint robbery statute, section 2552, O. S. 1931, 21 Okla. St. Ann. § 800. There is but one definition of robbery under the statutes of this state, that is robbery as defined by section 2542, O.S. 1931, 21 Okla. St. Ann. § 791.

Conjoint robbery is merely robbery as defined by section 2542, O.S. 1931, 21 Okla. St. Ann. § 791, Avhen committed by íavo or more persons. The punishment for conjoint robbery is not less than five years nor more than 50 years.

Section 2543, O. S. 1931, 21 Okla. St. Ann. § 801, was adopted in 1925, and provides:

“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 or banking institution or any other place inhabited or attended by any person or persons at any time, either day or night, shall be guilty of a felony, and, upon conviction therefor, shall suffer punishment by death, or imprisonment, at hard labor, in the state penitentiary, for a period of time of not less than five years, at the discretion of the court, or the jury trying the same.”

Both sections 2552, O. S. 1931, 21 Okla. St. Ann. § 800, and 2543, O. S.. 1931, 21 Okla. St. Ann. § 801, are statutes of classification and not of definition. Simpson v. State, 40 Okla. Cr. 58, 266 P. 783; Wissinger v. State, 39 Okla. Cr. 324, 264 P. 631.

Section 2543, O. S. 1931, 21 Okla. St. Ann. § 801, applies whether the robbery is by one person or by two or more conjointly. Although the information herein cannot be classed as a model, it includes all of the essential elements of robbery with a dangerous weapon and is sufficient -to. advise the defendant of the charge for which he is being tried, and it is the class of robbery shown by the evidence.

Instruction No. 6, complained of, is a definition of robbery with a dangerous weapon as given by the statute and is in the exact words of the statute. There is nothing about this instruction of which the defendant can complain. We have carefully considered this instruction and all of the other instructions in this case. They are well prepared and thoroughly cover all of the issues involved in the action, and there is no error appearing in any of them.

Counsel for the defendant had evidently overlooked section I of article 2 of chapter 21, Session Laws 1935, 20 Okla. St. Ann. § 95, when he raised the point that the conviction could not be sustained because the court was not regularly in session for the reason that it had not been convened according to law. This statute reads as follows:

“Two regular terms of the district court shall be held each year in each county of this state. The time of commencing or convening these two- regular terms in each county shall be on the first Monday in January, and the first Monday in July in each year. Each regular term shall commence and convene by operation of law at the time herein fixed without any act, order, or formal opening by the judge or other official thereof, and shall continue and. be open at all times until and including the day preceding the next regular term, on which day it shall expire and adjourn sine die by operation of law.”

By reason of this statute, assignment of error No. 3 of the defendant is wholly without merit.

We are inclined to agree with the contention of the defendant that the punishment is excessive. Here we have a white man going to a negro slum district, into a house solely occupied by negroes, buying a bottle of whisky from them, and passing it around the room to two negro harlots, to the defendant who is an ex-convict, and another negro Avho is a fugitive from justice. All of them imbibed from the same bottle. After that bottle Avas emptied, the prosecuting witness bought another bottle. Under the evidence the complainant Avas in the room with these prostitutes and ex-convicts for some 30 minutes, merrily enjoying their company.

This case is much different from the usual robbery cases where some innocent person is hi-jacked on the street or robbed in a place of business where he has a laAvful right to be. Here the prosecuting witness by his own action in going to this negro dive and choosing to consort and mix with the very worst element of the colored race, displaying his money to these people, then proceeding to see hoAV much whisky he could drink, thus placing himself in a position where he might be said to have encouraged the half-drunk defendant and his negro mistress to take his money. By his foolish misconduct, this white man brought troubles on his OAvn head. I would say, after reviewing this record, that he was fortunate that all he got from the negroes was a kick in the pants.

Without commenting further on the evidence, it is sufficient to say that the punishment imposed is excessive, and that after a consideration of all the record, it is our opinion that the judgment and sentence should •be modified to 20 years.

It is therefore ordered that the judgment herein be modified, and the sentence imposed upon the defendant be reduced from 35 years to 20 years’ imprisonment, at hard labor, in the state penitentiary, and the judgment as modified be affirmed.

DOYLE, P. J., and BAREFOOT, J., concur.


text:
    A. L. CASTLEBERRY v. JONES, Judge.
    No. A-9806.
    Feb. 3, 1940.
    (99 P. 2d 174.)

      ■Robert J. Bell, of McAlester, for petitioner.
    Paul Gotcher, Co. Atty., of McAlester, for respondent.
   DOYLE, P. J.

The petition filed in this court January 26, 1940, omitting formal parts, reads as follows:

“1. That he stands charged by information filed on the 14th day of December, 1939, of the crime of illegal possession of intoxicating liquors, being case number 4948 in the County Court of Pittsburg County, Oklahoma, the court presided over by respondent. A true and correct copy of said information SO' filed and so pending against this petitioner is hereto attached as Exhibit ‘A’ and made a part hereof.
“2. That on January 23, 1940, after due notice having first been served upon the County Attorney of Pitts-burg County, Oklahoma, and service having been acknowledged thereof by said County Attorney, this petitioner filed his verified application under the laws of the State of Oklahoma for the disqualification of the presiding judge, and for a change of judge, alleging that the trial judge, Hon. Wm. Jones, was biased and prejudiced against him, he could not have a fair and impartial trial before said judge as provided by the Constitution and Statutes of the State of Oklahoma. A true and correct and duly certified copy of said application for disqualification so filed as aforesaid is hereto attached as Exhibit ‘B’ and made a part hereof; said petitioner being compelled to file a certified copy instead of the original because the Court Clerk of Pittsburg County, Oklahoma, refused to surrender the original for the purpose of this petition.
“3. That there was filed on behalf of the respondent by the County Attorney of Pittsburg County, Oklahoma, with the Court Clerk, a general denial of the matters and things set forth in said application for disqualification, a true and correct copy of same being hereto attached as Exhibit *C’ and made a part hereof.
“4. That said application for disqualification so filed as aforesaid came on for hearing before the respondent, Hon. Wm. Jones, by agreement of counsel on January 24, 1940, at which time the respondent, Hon. Wm. Jones, refused to certify his disqualification as requested by petitioner and refused to grant a change of judge. A full, true, correct and complete transcript of the proceedings had at said time, certified by Helen Gernert, County Court Reporter, and bearing the seal of the County Court of Pittsburg County, Oklahoma, is hereto attached as Exhibit ‘D’ and made a part hereof.
“5. That in the cause now pending against petitioner, there is filed a motion by said petitioner to suppress the testimony of the State alleging that the evidence against this petitioner was obtained by means of an illegal search and seizure of his home and residence and the respondent herein has prejudged the law involved in said hearing and is disqualified to act thereon as well as to try the issues of fact in a jury trial; that unless a temporary restraining order is issued by this Court against Ms Honor, Wm. Jones, County Judge, petitioner verily believes that respondent will set his case for trial and will pass upon the motion to suppress the evidence.
“6. Petitioner further states that for a long period of time the Honorable Wm. Jones, County Judge, has entertained a violent personal dislike and prejudice towards this petitioner which has been expressed on many occasions; that in the month of July, 1938, while the said Honorable Wm. Jones was a candidate for re-election as County Judge, he, the County Judge, communicated with W. O. Merrill, the then qualified and acting under-sheriff of Pittsburg County, Oklahoma, and demanded that the said Merrill go> to the home of this petitioner and raid the same; whereupon the said Merrill requested that a search warrant therefor be issued as his authority for entering said premises; whereupon the County Judge, Wm. Jones, stated that no search warrant was necessary as everybody knew the petitioner, A. L. Castle-berry, toi be a bootlegger and on which occasion violent language was used by the County Judge towards this petitioner; that on at least one other occasion, said County Judge in conversation with said Merrill expressed strong dislike and prejudice towards this petitioner and his dislike of this petitioner because this petitioner was not supportng him for re-election.
“7. That shortly after the primary election, being-on the day that the Industrial Commission was meeting-in the County Court Room, the Honorable Wm. Jones,, County Judge, flew into a rage concerning this petitioner, stating that he was a bootlegger and using other vile language towards this petitioner and that he, the said County Judge, was going to see that- the petitioner was driven out of the County and see that he was caught for selling, liquor and threatening to call public gatherings wherein he, the County Judge, would enlist the aid of certain Ministers of the Gospel and openly condemn this petitioner; that said conversation took place in the presence of the attorney for this petitioner, Walter Haggard, the sheriff-elect, of Celest O’Bannon, court reporter of the County Court, of Pat Jones and Denver Jones, both brothers of Honorable Wm. Jones, County Judge, and other parties to this affiant unknown at this time; that on said occasion the Honorable Wm. Jones addressed the attorney for this affiant and instructed said attorney to inform this affiant of his attitude, which was done by said attorney.
“8. Affiant further states that the affidavit for search warrant and search warrant in this case were drawn by the court reporter of the County Court without consultation with the County Attorney’s office and states upon information and belief that the County Judge Wm. Jones helped in the preparation of said papers and the passing upon the validity of said search Avarrant and affidavit for search warrant, said County Judge Avould be in effect construing the legality of his OAvn acts.
“9. Affiant further states that on numerous occasions the Honorable Wm. Jones, County Judge, in passing upon motion to- suppress search warrants in similar cases, has admitted the invalidity of the search Avar-rants, and he has admitted the validity of the motions to quash the same on the basis of present holding of the Criminal Court of Appeals of the State of Oklahoma; but has stated in said instances that he refused to follow the rulings of the Criminal Court of Appeals and Avould force the defendants to trial and put the issues squarely before the public by forcing the Criminal Court of Appeals, if they wished, to reverse said cases, assigning various reasons as to why he would not follow the decisions of the Court.
“10. That one of said occasions was at the last term of County Court in the case of State of Oklahoma against Tom Lenora, being cause No. 4903, wherein attorney for said defendant was the Honorable F. D. Mc-Sherry of McAlester, Oklahoma; that in this case said County Judge stated that the search warrant was bad under the rulings of the Criminal Court of Appeals but nevertheless he was overruling the same; that he, the said County Judge had rather stay with the officers than the bootleggers; that the Criminal Court of Appeals might reverse their rulings as the Supreme Court had done; that he, the said County Judge, would not be bound by the rulings of the Criminal Court of Appeals on questions of search and seizure and that in cases where a search warrant was obtained, the defendants would just have to face a jury.
“11. Petitioner further shows the Court that he has interviewed witnesses Walter Haggard, now the sheriff of Pittsburg County, Oklahoma, and Oeiest O’Bannon, formerly Court Reporter of the County Court but now City Clerk of McAlester, Oklahoma, and they have all stated that they recall the incidents referred to in this petition but prefer not to give affidavits and not to testify unless and until they are duly served with a subpoena therefor; that this. Court should appoint some suitable person to hear said testimony and transmit the same to this Court.
“Wherefore, your petitioner prays that an alternative writ of mandamus be issued out of this Court commanding the respondent to show cause why he should not disqualify himself; and upon failure to show cause, that a temporary writ of mandamus issue, and if answer is filed by said respondent, that upon the hearing of the same that a peremptory writ of mandamus issue, commanding said respondent to disqualify himself to try said cause; that some suitable person be named to hear the testimony herein; and that pending, the disposition of this issue, that said respondent be restrained and prohibited from further proceeding with this cause.”

On the day the petition was filed, respondent, "Win. Jones, judge, filed his response thereto, the material part of which reads as follows:

“1. That the Petitioner is now charged in the County Court of Pittsburg County with the crime of possession of intoxicating liquor and that there is a Motion filed by said Petitioner to Suppress the Evidence obtained by the Sheriff of Pittsburg County and to' Quash the Search Warrant which was issued in said cause.
“2. Your Respondent would further respectfully show this Court that he is not disqualified to act as trial judge in said cause and that he is not biased or prejudiced against the Petitioner herein. Your Respondent would further show that he has never entertained a violent personal dislike against the Petitioner herein and that in July 1938 your Respondent denies that he demanded that W. O. Merrill, the then Undersheriff of Pittsburg County, to gO' to the home of this Petitioner and raid same; and he further denies that Merrill ever requested that a search warrant be issued and he further denies that he intimated or accused the petitioner herein of being a bootlegger or that he ever used violent language at that time toward said Petitioner.
“3. Your Respondent would further show to the Court that shortly after the Primary Election 1938 in the County Court room in the presence of Bob Bell, attorney of record for the Petitioner herein, and others who were near and about there, that your Respondent did malte a statement concerning said Petitioner and that in substance he said the following,: ‘That he (the defendant) was a damn fool to* have spent money in an attempt to have defeated me because as a private citizen I could get the ministers back of me and perhaps call a mass meeting and stir up public sentiment to such an extent that he (the Petitioner) would have to leave the county or quit his illicit business but as a Judge I cannot do things which would reflect on the Court.’ Your Respondent denies that he flew into a rage or that he used any untoward language concerning this Petitioner; your Respondent would show to the Court that this happened immediately after a Democratic Election and the high blood pressure of the campaign had not been relieved and but for the questionable practices during the election on the part of the Petitioner your Respondent would probably have never even noticed him.
“4. Your Respondent would further show to the Court that he as County Judge did not aid in the preparation of the Affidavit for the search warrant used in case No. 4948 Pittsburg County, criminal, but did issue the warrant after the Affidavit for same was presented to him in his judicial capacity.
“5. Your Respondent would further show to the Court that he has never willfully nor deliberately refused to follow the decisions of the Criminal Court of Appeals but that in some instances in causes pending before him on Motion to Suppress the Evidence and Quash the Search Warrant that your Respondent did not place the same interpretation that the lawyers for the various defendants placed on the decisions so read to the Court, and thereby your Respondent overruled said Motions, thereby permitting a jury of Pittsburg County to pass upon the guilt or innocence of the various defendants and especially would your Respondent deny that in cause No. 4903 County Court of Pittsburg County, criminal, that your Respondent said either in words or substance that he would not be bound by the rulings of the Criminal Court of Appeals on the question of searches and seizures. Your Respondent would respectfully show to the Court that during the hearing in said cause No. 4903 he made some remarks concerning decisions of the Criminal Court of Appeals not in a derogatory or contemptuous manner but merely pointing out the trend of decisions from statehood up until the present day and remarking further the possibility of there being in the future a more liberal construction placed upon the search and seizure law by this Honorable Court.
“6. Your Respondent would further show to the Court that he has never expressed his opinion as to the merits of the Motion to .Suppress the Evidence and Quash the Search Warrant which has been filed by Petitioner in canse No. 4948, County Court of Pittsburg County, criminal, and neither has he ever expressed or formed an opinion as to the innocence or guilt of the defendant in said cause and for the reasons hereinbefore stated your Respondent respectfully shows the Court that he has not prejudged the case in any manner and is not disqualified to hear said cause in the County Court of Pittsburg County, Oklahoma.
“7. Your Respondent would further show to this Honorable Court that heretofore on the 7 day of February, 1938, the Petitioner herein was charged with the possession of intoxicating liquor with the intent to violate the Law, Case No. 4792, County Court, Pittsburg County, criminal, and at that time your Respondent was Trial Judge in said cause. The evidence was fairly submitted and your Respondent instructed the jury as to the Law and thereafter the jury returned a verdict of not guilty in said cause, thereby discharging the Petitioner herein, and that as a result of said trial the Petitioner herein entertained and has had a violent personal dislike for your Respondent and began what was and is known as ‘a bitter personal political enemy’ and the Petitioner herein attempted to defeat your Respondent in the Democratic Primary Election of 1938 by the use of every device known to political chicanery. And your Respondent believes and he verily avers that he is not prejudiced toward this Petitioner herein but believes that the Petitioner is prejudiced against Respondent because of the acts and things done by said Petitioner toAvard and against your Respondent.”

It appears from the record that respondent in answer to the original application in the court beloAV filed a general denial and entered the following order:

“I have read the ‘Application for Disqualification’. Part of the facts in the application are entirely untrue and part of the statements contained therein do not contain full and complete statements made at the time, the entire statements would shOAV no prejudice toAvard the defendant. It is my opinion that I can fairly present the law to a jury and fairly pass upon any legal question.
“Therefore, I deny the ‘Application for Disqualification.’ ”

The procedure prescribed by the statute where a judge refuses to admit and to so certify his disqualification in a criminal case was in conformity with the statute. Code of Criminal Procedure, sec. 2915, 22 Okla. St. Ann. § 575; Brown v. State, 6 Okla. Cr. 442, 119 P. 447.

The petitioner bases his right to the relief prayed for upon the provision of the Bill of Bights, which declares that right and justice shall he administered without sale, denial, delay or prejudice. Const, art. 2, § 6, Okla. St. Ann.

By this constitutional provision the people have prohibited a judge from trying a cause in which he has prejudice in favor of one of the parties or against the other, and a defendant in a criminal action has the right to a change of judge when the presiding judge is in fact prejudiced against him, and under the constitutional provision this right cannot be abrogated.

The question presented in this proceeding for oar determination is: Do the allegations of the petition and the admissions in the response thereto disclose that respondent herein entertains bias or prejudice which would disqualify him as presiding judge in the trial of petitioner?

Questions of this nature are always unpleasant; they must first be addressed to the judge whom they affect. The anomaly is there presented of one sitting in judgment upon the trial of questions involving, if not his official integrity, certainly his official impartiality, and he is required to pass upon them.

The first adjudicated case construing the foregoing provision of the Bill of Rights is the case of Ex parte Ellis, 3 Okla. Cr. 220, 225, 105 P. 184, 186, 25 L.R.A.,N.S., 653, Ann. Cas. 1912A, 863. The court said:

“The framers of our Constitution guarded with special care our judiciary and tried to place it above suspicion of unfairness, passion, or prejudice, so that public confidence in our courts would not be shaken, and provided that right and justice should be administered without prejudice. By virtue of this constitutional provision, who can doubt or question the absolute and unqualified right of the citizen when called to answer in a court of justice to demand that his trial shall be before an impartial judge and by impartial jurors? Any other doctrine would place the rights of the citizen which were intended to- be protected by this constitutional provision at the mercy or control of the court or judge thereof.”

As was said in Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758, 803:

“Under the declaration of article 2, § 6, Bill of Rights, that Night and justice shall be administered without sale, denial, delay, or prejudice,’ as well as by the unwritten dictates of natural justice, the courts of this state are commanded to- administer justice without prejudice.”

In order to maintain and foster proper respect and confidence of the people in the courts, the courts must be presided over by unprejudiced, unbiased, impartial, and disinterested judges and all doubt and suspicion to the contrary must be jealously guarded against. McCullough v. Davis, Judge, 11 Okla. Cr. 431, 147 P. 779; Dennison v. Christopher, Judge, 19 Okla. Cr. 467, 200 P. 783; Whitfield v. Walden, Judge, 31 Okla. Cr. 332, 239 P. 266; State ex rel. Conley v. Parks, Judge, 32 Okla. Cr. 61, 239 P. 941; Ex parte Owens, 37 Okla. Cr. 118, 258 P. 758; Fisk v. Venable, Judge, 61 Okla. Cr. 360, 68 P. 2d 425, 430. In the latter case it was said:

“The constitutional provision which guarantees to every person charged with crime a trial without ‘prejudice’ in so far as it relates to the presiding- judge does not include the opinion of the judge as to the guilt or innocence of the defendant; the prejudice contemplated means the presence of such a state of mind or feeling as might prevent him from giving the defendant a fair trial. * * *
“Of course, it is important that the laws should be enforced and violations thereof punished, but it is still more important that, as far as possible, every person accused of an offense should have a fair trial before an impartial court or judge.”

In the case of State ex rel. Conley v. Parks, supra, it was said [32 Okla. Cr. 61, 239 P. 942] :

“Prejudice is a state of mind which is ordinarily not capable of being proven by direct and positive evidence. It can generally be proven only by the circumstances, environment, association, relationship, and conduct of the person who entertains it. It is often not known to be held by the person entertaining such prejudice; that is to say, one may have a prejudiced state of mind upon a subject, against an idea, cause or person, and be wholly unconscious that he had any prejudice. In fact, upon casual thought, we are aware that many persons are prejudiced upon public questions, in matters of politics or religion, or on many other subjects, and1 by reason of such prejudice incapable of giving a dispassionate consideration to such question, and at the same time be totally unconscious that he is prejudiced, and would be quick to repudiate a suggestion that his state of mind is other than fair and open.”

In Dennison v. Christopher, supra, it was said [19 Okla. Cr. 467, 200 P. 784] :

“Moreover, the state has an interest in the standing, integrity, and reputation of its courts, and, when constitutional or statutory provisions forbid a judge from acting officially, his action is regarded as transgressing the public policy of the state. .Such prohibitions are plainly intended, not only for the benefit of the parties to a suit, but for the general interests of society, by preserving the purity and impartiality of the courts and fostering the respect and confidence of the people for their decisions. 15 R.C.L: 530.
“We are not unmindful of the fact that the practice of disqualifying trial judges on the grounds of bias or prejudice may be subject to much abuse. Captious and unwarranted accusations of bias should be discouraged. On the other hand, much of the adverse criticism against the courts of this state may be traced to the interest, real or apparent, shown by trial judges either' in the subject-matter of the suit or the ultimate judgment to be rendered in particular cases. And in order to foster confidence in the integrity and impartiality of courts, a presiding judge should be compelled to certify his disqualification where it appears probable that such judge would not afford the defendant a fair trial.”

Under the Constitution and laws of this state, a judge who cannot administer justice in a case without prejudice must not try the case. Under the statute the procedure for ascertaining the prejudice of a judge does not leave the fact of existence or nonexistence of prejudice entirely to his own conscience.

In his answer respondent admits:

“That shortly after the primary election 1938 in the county courtroom in the presence of Bob Bell, attorney of record for the petitioner herein, and others who were near and about there, that your respondent did make a statement concerning said petitioner and that in substance he said the following:
“ ‘That he (the defendant) was a damn fool to have spent money in an attempt to have defeated me because as a private citizen I could get the ministers back of me and perhaps call a mass meeting and stir up public sentiment to such an extent that he (the petitioner )would have to leave the county or quit his illicit business, but as a judge I cannot do things which would reflect on the court.”

Respondent further states:

“The petitioner herein entertained and has had a violent personal dislike for your respondent and began what was and is known as ‘a bitter personal political enemy/ and the petitioner herein attempted to defeat your respondent in the Democratic primary election of 1938 by the use of every device known to political chicanery.”

We conclude that the foregoing admitted facts alone clearly show that respondent, county judge, had conceived and entertained a feeling of bias and prejudice against petitioner that would prevent his affording him a fair and impartial trial.

We are therefore of the opinion that the undisputed facts are sufficient to have required the judge to certify his disqualification.

Respondent, county judge, having refused to disqualify, the writ of mandamus as prayed for is awarded.

BAREFOOT and JONES, JJ., concur.