text:
    C. W. CHRONISTER v. STATE.
    No. A-9894.
    Jan. 21, 1942.
    (121 P. 2d 616.)
    Ted Poster, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant ivas charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit, six pints of tax-paid whisky, was tried before the court without the intervention of a jury, was convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail, and has appealed.

This charge arises from a search by police officers of defendant’s premises and the finding' thereon of six pints of tax-paid liquor on the 11th day of October, 1938. Defendant filed a motion to suppress the evidence on the 20th day of November, 1939, and a hearing was had on the 8th day of December, 1939, at which time it was overruled by the court. The only contention urged for reversal is that the court erred in refusing to sustain defendant’s motion to suppress the evidence for the reason that the same was obtained by reason of an illegal search warrant.

Defendant contends :

“Where two families occupy separate apartments in one house and where this house is described in the affidavit and search warrant by its single street number and neither of the occupants is named in the affidavit or search warrant, the search warrant describes more than one place and is void.”

The affidavit does not name the owner or person in possession_and describes the premises as follows:

“* * John Doe whose more full and correct name is to' your affiant unknown, in certain building, and premises described as follows, to wit: a one story brick building and all out-buildings located at 1536 Southwest 30th1 Street in Oklahoma City, Oklahoma County, Oklahoma, did then and there unlawfully and wilfully have in his possession and under his control * *

The evidence in this case reveals that the defendant, C. W. Chronister, was the owner of a building located at 1536 Southwest 30th street, in Oklahoma City, Oklahoma county. Some time after the house was built he added another room thereto. He lived in the house himself with his family. He rented the other room to a family by the name of Miles, who was occupying it at the time of the search. The evidence reveals that there was only one number, 1536, on the premises, and this number was over the entrance into .that part of the building occupied by defendant. This entrance was from the south. The only entrance to the part occupied by Miles was from the west. There was a common bathroom, but this was kept closed from each side. The officers who made the search entered only that part of the building occupied by the defendant and made no attempt to search the part occupied by Mr. Miles1. The liquor was found outside of the premises.

Officer Scott, who made the search, testified:

“Q. And where did yon find it? A. Found it in the ground plant of a little chicken house building, on the south side of the garage. Q. And that was in the rear of this property? A. Yes, sir. Q. And did you have a conversation with Mr. Chronister about it? A. Yes, he came out there when I was taking it out of that plant, and said ‘You ought to leave me one of them, I am sure burning low tonight’ or something like that. Q. (The Court) I didn’t hear1 that. A. He said, ‘You should leave me one of those pints of whisky to kind of steady my nerves when I get up there’.”

The officer further testified that this place was. a place of public resort. That people congregated there for the purpose of buying and obtaining and drinking intoxicating, liquor, and that the premises had a bad reputation. The evidence with reference to the reputation of the premises was corroborated by Officer Anderson, who assisted in the search of the premises.

Under the evidence we do not think the court erred in overruling the motion to suppress the evidence obtained under the search warrant. The search warrant was issued in the name of John Doe. As’ we have often said, we disapprove of the issuance of search warrants in a fictitious name where the name of the real party is known to the officers, and the 'best practice is for the name of the party whose premises are to be searched to-be stated in the search warrant. Denmark v. State, 71 Okla. Cr. 95, 108 P. 2d 550. However, the evidence in this case is such that there can be no question as to- the guilt of this defendant. His own admissions- to the officers confirms this. The liquor was not found on the premises, but on the o-utside in a plant over which he had supervision, and was in close proximity to a barbecue pit at which he sold barbecued meat.

We have noted the cases cited by defendant, but they do not have application to- the facts as they exist in this case. For the reasons above stated, the judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

JONES and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    BEN JOHNSON v. STATE.
    No. A-9984.
    Jan. 21, 1942.
    (121 P. 2d 625.)

      John B. Ogden, Wilson Wallace, and R: Rhys Evans, all of Ardmore, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, Ben Johnson, was charged 'by information in the district court of Carter county with the crime of rape in the first- degree, was tried, convicted, and sentenced to serve 25 years- in the State Penitentiary, and has appealed.

The first assignment of error is the contention that the trial court erred in refusing to grant to the defendant a sanity hearing as requested and set out by the laws of the State of Oklahoma.

The defendant was charged with rape of a twelve year old girl. Upon his arraignment, the following proceedings occurred:

“By Mr. Ogden, of counsel for defendant: Mr. Evans, Mr. Wallace and myself appear as counsel for the defendant. As your Honor knows, there are two methods of raising this question of insanity. I don’t think this defendant is sane now. We want to now ask that he be tried by a jury for his sanity. The statute states that, if there is any question about his sanity, that you can’t try an insane man for his crime. We now make the request that he be tried by a jury for his sanity at this time. By the Court: He has to be arraigned before you can find out what his plea is. By Mr. Ogden: If he is insane you can’t arraign an insane man. Of course, the burden is upon us to show it. By the Court: Let, me see the statute on that. By Mr. Ogden: I didn’t bring the statute on that, but we will get it. * * By the Court: The only question now before the court is as to whether or not he should be arraigned. This act you have been reading there Avas amended in 1935, Where in any criminal action * * * the defense of insanity is interposed’, we will arraign him at this time. Let him be arraigned. By Mr. Ogden: We Avant to except to him being arraigned on the ground that he is incapable of being arraigned, or of knOAving what to do. By the Court: Stand up, Ben Johnson, and listen to what they read to you. (At this point Mr. Bruce, county attorney, proceeded to read the Information in open court to the defendant.) By the Court: Now, then, Judge, I will hear you at this time. By Mr. Ogden: It is merely my contention from these authorities that AAdien a man is charged with a crime, AAdien it is called to the attention of the court, which may even be by a bystander, that the man is insane, we think under those circumstances that an insane person is incapable of being arraigned; therefore, Ave think that the proper procedure is to impanel a jury and try him for his sanity now, to determine as to Avhether or not he is insane, in this case that is the way Ave view it, that is what these authorities hold. By Mr. Bruce: It is our contention that by the verdict of the jury, they can so state by their verdict whether or not he is insane, according to 1935. By the Court: I will let him interpose at this: time a plea of not guilty. By Mr. Ogden: We Avould rather the record shoAV that under our contention he is incapable of pleading,. By the Court: Let the record show that the attorney for the defendant announces the defendant is incapable of pleading, and then the court interposes for and on his behalf a plea of not guilty. Then if he is entitled to an insanity hearing, he can get it then.”

On September 24, 1940, when the cause came on regularly for trial, counsel for defendant filed a written request for a sanity hearing, which reads as follows:

“Comes now the above-named defendant, by and through his attorneys, and shows to this Honorable Court that the said defendant herein is mentally incompetent to make a rational defense in this cause and hereby requests this Honorable Court to grant to him a sanity hearing, before a jury, as required by law; and in support of said motion and request this defendant would show to this Honorable Court that the said defendant herein hasi been afflicted with pellagra and other diseases for a great number of years and with paralysis of the throat; and that the said paralysis has affected his. mind and mental ability and that in addition thereto he has heredity insanity and has never been a normal human being and that his brother is now confined in the insane asylum in the State of Texas in the Rusk State Hospital at Rusk, Texas; and defendant now says through his attorneys that he is wholly incompetent and unable to make a, rational defense .in this cause; and that he now demands and requests that he be given a sanity hearing before a jury as by law provided.”

In support of said request there is attached an affidavit of the wife of the defendant, as follows:

“Mrs. Jennie Johnson, of lawful age, after having first been duly sworn upon oath, says that she is the wife of the defendant herein and that she and the said defendant have been married for a period of almost nineteen (19) years; and that during February, 1940, the said defendant was complaining of serious trouble to his head and complaining of having dizzy spells and of being highly nervous; and that he went to the county health doctor as she is informed and verily believes; and that the county health doctor examined him and that the county health doctor, at that time, was Dr. William A. Loy and that the said Dr. Loy recommended that he go to the University Hospital at Oklahoma City, Oklahoma, for examination and for treatment; and that the said defendant went to said hospital for examination and treatment and that upon his return, this affiant is informed and believes the said defendant was hit over the head by officers in Oklahoma City; and that since said time the said defendant herein was highly nervous and would get up in the nighttime and run out into the dark and also would run from the house in the daytime and acted queer; and that this affiant believes and therefore states to the best of her knowledge and belief that the said defendant herein is mentally incompetent to make a rational defense in this cause; affiant further states that the said Ben Johnson has suffered in her opinion from mental disease and mental trouble for a great number of years; and that his brother, Ozie Johnson, is now confined in the state insane hospital of the State of Texas in the Rusk Hospital and has been there for a period of approximately 15 years.”

When this request was presented to the court, counsel for defendant dictated a long statement into the record, reciting a personal belief that the defendant had hereditary insanity, directing'; the court’s attention to the fact that the defendant’s brother had been in the state insane asylum in Texas for years, and that by reason of various actions and statements in the presence of counsel that counsel Avas firmly of the opinion that' the defendant is insane, and asked the court to> send the defendant to the state hospital at Norman, where he could be under observation of mental specialists.

The request of counsel that the defendant be sent to the state hospital for observation was denied, and the request for a sanity hearing was denied; and the defendant, over objection and exception of Ms counsel, was forced to trial.

During’ the trial the state produced evidence showing without dispute that the defendant had committed the crime with which he stood charged. The only proof offered by the defendant was testimony from various persons, including two' persons who purported to testify as expert alienists, that the defendant was of unsound mind.

To refute this evidence the state introduced a large number of witnesses who testified that the defendant in their opinion was sane and knew right from wrong at the time he committed the act.

Without any request from the defendant, the court on its own motion submitted instructions to the jury covering the theory of insanity as a defense, which instructions are in conformity with the decisions of this court in cases where a plea of not guilty by reason of insanity at the time of the commission of a crime is interposed.

Counsel for defendant contend that the court was confused between those cases where it is contended that the defendant cannot present a rational defense because of his present insanity, and those cases where a plea of not guilty is entered by reason of the insanity of the defendant at the time he committed the alleged offense; that in one instance, where it is contended that the defendant is presently insane, the defendant is entitled to a sanity hearing before his trial in the manner provided by law; and that in the other instance, the jury may determine, under proper instructions of the court, whether the defendant knew right from wrong as applied to the particular act, and knew and understood the nature and consequence of such act.

It is provided by sections 3211, 3212, and 3213, O. S. 1931, 22 Okla. St. Ann. §§ 1161, 1162, and 1163, as follows :

“An act done by a person in a state of insanity cannot be punished as a public offense, nor can a person be tried, adjudged to punishment, or punished for a public offense, while he or she, as the case may be, is insane * * ??
“When an indictment or information is called for trial, or upon conviction the defendant is brought up for judgment, if a doubt arise as to the sanity of the defendant, the court must order a jury to be impaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to inquire into the fact.”
“The trial of the cause or the pronouncing the judgment, as the case may be, must be suspended until the question of insanity is determined by the verdict of the jury.”

Section 3211, supra., was amended in 1935, Laws 1935, p. 19, Senate Bill 55, § 1, to provide that where the defendant is acquitted on the ground that he was insane at the time of the commission of the crime charged, such person shall, if the jury returning such verdict state therein that they deem the discharge of said person dangerous to the public peace or safety, be by the trial court committed to one of the state’s hospitals for insane, there to 'be held and kept as a patient until legally discharged therefrom.

This amendment, however, did not affect sections 3212 and' 3213, supra, and they remain in force and effect the same as. they were prior to the 1935 amendment.

These statutes have been before the court many times for construction, the most recent of these cases being Tuggle v. State, 73 Okla. Cr. 208, 119 P. 2d 857, 858. In that case it is stated:

“If a doubt arises in the mind of the court as to the sanity of the defendant, he must order a jury to be empaneled from the jurors summoned and returned for the term, or who may be summoned by direction of the court, to- inquire into- the sanity of the defendant, either before the trial or before judgment and sentence is pronounced
“This doubt may arise in the mind of the court upon application for a continuance, motion for a new trial, motion in arrest of judgment, by 'ex parte affidavit or declaration of a bystander, or the court of its own motion; and while the court cannot act arbitrarily in the matter, it has the right to look to- the source of the information, and come to- a proper conclusion, from all the facts and circumstances, whether there is a doubt in his mind as to the sanity of the defendant. He may also consider the fact that the question of insanity was never raised.”

In the case of Denton v. State, 58 Okla. Cr. 275, 53 P. 2d 1136, 1139, it is stated:

“The question of present sanity of an accused is directed first to the attention of the trial court. The applicable statutes are section 3212 et seq. and section 3106, Okla. Stat. 1931, 22 Okla. St. Ann. § 1162 et seq., and § 925. Under the procedure prescribed when • an indictment or information is called for trial, or when, after conviction, the defendant is brought up for judgment, if a doubt arises in the mind of the court as to the present sanity of a defendant, the court must then order a trial of this question by a jury as- a question of fact, as in a civil case or special proceeding. The proceeding is- outlined in the sections of the statute referred to. If a claim coming from a reputable source, is made, either at the beginning- of the trial or at the time for judgment andl sentence, that a defendant is insane at the time, with a reasonable showing or tender of proof in support thereof, it is the duty of the court to submit the question to a jury. * -:i
“When the motion is made and supported by such a showing, then a legal doubt of defendant’s sanity arises, and it is the duty of the trial court to impanel a jury and to try the issue. While a trial judge may personally have no doubt of defendant’s sanity, yet if the motion and showing in support thereof is substantially as outlined, it is sufficient legally to raise a doubt. In such a case, a refusal to' submit the issue to the jury is an abuse of discretion.”

In the early case of Marshall v. Territory, 2 Okla. Cr. 136, 101 P. 139, the defendant filed a motion to arrest the judgment on the ground that the defendant was an insane person at the time of the trial and prior to the time of the trial, and supported this motion by an affidavit of one of the attorneys representing the defendant, which affidavit set out in detail several matters of fact on which the affiant based his opinion or belief that the defendant was then insane. The syllabus of this case reads:

“After a person is indicted, present sanity of such defendant isi presumed to exist until it is called in question from a reputable source, on a sufficient and specific declaration to the contrary, or from observation by the court the defendant’s present condition is such as to' call in question his -sanity, whereupon it becomes the duty of the court to impanel a, jury to pass on the sanity of the defendant; and the jury, and not the court, should determine this question.
“The inquiry to be submitted to a jury, in a proceeding under section 5661, Wilson’s Rev. & Ann. St. Okla. 1903, 22 Okla. St. Ann. § 1162, is: Whether the accused is mentally competent to' make a rational defense, and it is not whether he is able to distinguish between right and wrong.
“It is immaterial how or in what manner the question of present sanity is presented to the court pending trial of a defendant under indictment. Whether it is by application for a continuance, motion for new trial, motion in arrest of judgment, by ex parte affidavit, or declaration of bystanders, or the court of its own motion. All that is required is that the court shall make a record that a doubt arises as to the sanity of the defendant, whereupon an order for impaneling a jury to determine the issue is imperative.
“If there exists in the mind of the court a doubt as to the sanity of the defendant, as expressed in the statute, means if the court has been advised from a reputable source — that is, if a statement is made to' the court by credible person, or persons, under oath that the defendant is insane — a doubt is raised. While there is a judicial discretion left to the court to determine whether there exists in the mind of the court a doubt, nevertheless such discretion should not be arbitrarily exercised, and its positive declara,tion and statement, as above indicated, that the defendant is insane, necessarily presents a condition calling for investigation. The court may look to the source of information, the motive, opportunity, etc., of the party making it, but if the court denies the inquiry by a jury, it must do- so under circumstances excluding all doubt of the truthfulness of the declaration that the defendant is insane. * * *”

In the body of the opinion it is stated:

“The court in its examination was seeking to1 ascertain the defendant’s condition of mind relative to his ability to distinguish between right and wrong, and his ability to> comprehend the nature and consequence of his act. This is not the question that is presented under a proceeding of this character. The proper question is whether the accused is mentally competent to make a rational defense, and it is not whether he is able to distinguish between right and wrong. This rule has been enunciated in the following cases:
“ ‘When an affidavit is made by a respectable person that a defendant charged with crime has become insane, a jury should be impaneled to try the issue of insanity before proceeding with the case, and this, though the party making the affidavit is unknown to those in attendance on court. * * The question to be determined on the plea of present insanity is, Is the accused mentally competent to make a rational defense?’ Guagando v. State, 41 Tex. 626.
“Under the California Code, practically the same as our own, the Supreme Court of the state has held:
“ ‘No plea of present insanity is required. If at any time during the proceedings in a criminal trial a doubt arises as to the sanity of the defendant, it is the duty of the court of its own motion to suspend further proceedings in the case until the question of sanity has been determined. * * * Counsel for defendant cannot waive an inquiry as to the question of the sanity of a defendant.’ People v. Ah Ying, 42 Cal. 18. * * *
“ ‘If there exists in the mind of the court a doubt as to the sanity of the defendant, and this doubt arises at any time during the trial, it is the duty of the court to stop the trial, and have determined the sanity of the defendant before further proceeding.’ People v. Lee Fook, 85 Cal. [300], 301, 24 P. 654.
. “In this case, in determining the question to be inquired into, the court says:
“ ‘The question, however, is not whether he has become sane in every sense of the word, but whether he has become sane in the sense of the statute which requires the suspending of the proceedings in a criminal case whenever it is found that the defendant is presently insane.’
“In other words, if there is a difference between the medical view of insanity and the view upon which the statute is founded, the question of sanity or insanity is to be determined with reference to the latter as contra-distinguished to the former view. The case further holds:
“ ‘That all books, treaties, and decisions on the subject show that the true and only reason why an insane person should not be tried is that he is disabled by the act of God to make a just defense if he has one. * * * If, therefore, a person arraigned for a crime is capable of understanding the nature and object of the proceeding against him, if he rightfully comprehends his own conduct in reference to such proceeding, and can conduct his defense in a rational manner, he is, for all purposes of being tried, to be deemed sane, although on some other subjects his mind may be deranged or unsound.’
“On the same subject, and to the same effect, is the case of Freeman v. People, 4 Denio, N. Y., 9, 47 Am. Dec. 216. And also the case of Youtsey v. United States, [6 Cir.], 97 F. 937, 38 C. C. A. 562, holds as follows:
“ ‘The question whether a defendant charged with a criminal offense is in a fit condition mentally to be placed on trial may be raised at any time and in any appropriate manner, and the fact that the objection was taken in an application for continuance, which is also based on other grounds, does not relieve the court of the duty to give the question of his. mental soundness, due consideration and try it in some appropriate form or proceeding; * * * that if it appear after arraignment, and before trial, that the prisoner is probably not capable of making a rational defense, the proceedings should stop until the sanity of the prisoner is determined or restored.’
“Again, in the same case, the court holds:
“ ‘Assuming, as we shall, that no duty rested upon the court to impanel a jury (court must impanel a jury in this state) to inquire whether the accused was in truth incapable of understanding the proceedings, and) intelligently advising with his counsel as to- his defense, and that it was optional with the court to call a jury, or resort to any other special mode of aiding his judgment, it was nevertheless his duty to consider and determine the matter judicially.’
“Under our law, if a doubt arises as to the sanity of the defendant, the court must order a. jury, and if the facts presented to the court are such as to raise a doubt as to the sanity — that is, if there are statements under oath of a credible person, or persons, that the defendant is insane- — a doubt is raised, because if the statements are true, the man is insane, and a jury must inquire into the facts as to- the truthfulness of the alleged fact of insanity. It is to be observed that it is not a discretion on the part of the court, under our statute, to- direct the calling- of a jury. The only contingency is, Does a doubt arise? This means, has information come to the court through a proper channel, from a proper source or party — that is, during trial — and from a credible and trustworthy source information is brought to- the- court that the defendant is insane, or if fro-m personal inspection o-r observation of the court such probable condition of the defendant is made known to- the court, then the law requires that a jury should be impaneled, who shall inquire into- the mental condition of the defendant.”

In the case of Signs v. State, 35 Okla. Cr. 340, 250 P. 938, 941, counsel for defendant filed an affidavit setting out he believed the defendant insane and not in a mental condition to- make a defense. The court thereupon called a jury for the trial of the sanity of the defendant. This jury was unable to- reach a verdict and was discharged. By agreement of counsel, case was continued for about three months, when the case was again called for trial; no further suggestion of insanity was made; without objection on the part of counsel, the -trial proceeded, resulting in a verdict of guilty. In the opinion it is stated:

“The court properly impaneled a jury, which failed to agree and was discharged. Then, without determining the question, the court put the defendant on trial, which proceeding, we think, was contrary to the express terms of section 2868, supra [sec. 3213, 22 Okla. St. Ann. § 1163, supra]. It is true that counsel for defendant announced ready for trial and did not further request that the question of the present sanity be submitted to the jury. Counsel for defendant could not waive this question.”

In the same opinion it is further stated:

“Doubt once having arisen in the mind of the court, it was necessary that the question of sanity be determined. The failure to so determine this question before proceeding with the trial is reversible error.”

See, also, Ex parte Gilbert, 71 Okla. Cr. 268, 111 P. 2d 205; Weiland v. State, 58 Okla. Cr. 108, 50 P. 2d 741; Adams v. State, 49 Okla. Cr. 94, 292 P. 385; Adair v. State, 6 Okla. Cr. 284, 118 P. 416, 44 L. R. A., N. S., 119.

In the instant case, after the verdict had been reached, a motion for a new trial was filed; and in the hearing on the motion for a new trial, counsel for defendant again asked the court for a sanity hearing, at which time the record disclosed the following occurred:

“By the Court: All right, I believe I will give you one before I pronounce sentence on him, I will have a jury in here, let’s see, what date will you be ready? By the Court: How about Friday the 4th. By Mr. Ogden: I think there is something, if the court please, I wouldn’t be able right now to state. I would suggest you set the motion for new trial on the 4th also, but if the court please, I would suggest that if it would be agreeable to Your Honor, since you are going to have a civil docket — ■ (Interrupted) By the Court: No-, I am going to give him a hearing, you wanted one, I am going, to set this for hearing Monday, October 7th, at 9 o’clock. By Mr. Ogden: Would you let the record show that we except to' the setting of this on one particular docket, it would lend to- the seriousness of the case. By the Court: You wanted an insanity hearing, do you except to the court setting it? By Mr. Ogden: No, sir, but I thought it would come up on the regular docket. By the Court: I will set it for Monday the 7th. By Mr. Ogden: All right, sir, thank you.”

Later the court overruled the motion for a new trial and denied the further request for a sanity hearing, at which time he dictated the following statement into the record:

“By tlie Court: As to' his plea of insanity, there wasn’t a line of testimony even to raise a suspicion or reasonable doubt as. to' his sanity, his wife filed an affidavit on the date of the trial, the law says the court has a right to look at the source of the information. The jury found no merit in it, the truth of the matter is the evidence didn’t warrant the giving- of an insanity instruction, but I gave it anyway, every witness who knew him for 15 or 20 years testified he knew right from wrong, counsel was so insistent that I thought ,1 might give him a hearing on that even now, but after reflection on the testimony, the court has concluded there wasn’t any testimony to raise a. suspicion of his sanity. I have known him for something like 20 years. The officers observed him in the jail ever since he has been in there. . I look for the source of these matters, nobody but his wife thought him insane, counsel of course argued he was insane because he got out within a half a mile of the sheriff’s home and committed this act, the evidence showed this was in a secluded spot where he had preparations made for such act. I never knew that evidence of this nature would give a suspicion that this man was insane, I think the hearing would be a Avaste of time.”

The question now presented to this court is whether there Avas a sufficient shoAving to raise a legal doubt of defendant’s sanity so as to require the court to' impanel a jury to determine this, question. It should be borne in mind that counsel for defendant raised this issue at their very earliest opportunity at the arraignment of the defendant, some six weeks before the date of the commencement of his trial, and again raised the question by proper motion, supported by an affidavit of the defendant’s wife and statement of his counsel as to certain acts of the defendant, together with counsel’s expressed personal opinion that defendant was insane and with the fact that he had a brother in the asylum.

We are satisfied that the trial judge, personally, had no doubt of defendant’s sanity; yet the motion and affidavit, together with the statement of counsel, are sufficient to legally raise a doubt.

Defendant’s counsel is a man of high standing among the members of the Bar of this state; he is a former district judge; his personal opinion that defendant was insane, based upon the contact he had with him in attempting preparation for trial, would certainly be considered an opinion from a, credible source and, under the authorities above cited, was of such a character as to raise a legal doubt of defendant’s sanity. In the statement of counsel it is pointed out that Dr. Loy, the physician who had been treating defendant for hi® ailment, was absent from the city and unable to give his testimony to support the statement of counsel and defendant’s wife.

It is our opinion that the court abused its discretion in refusing to impanel a jury and submit the issue of present insanity for determination prior to the time of the trial of the defendant, in accordance with the request of his counsel.

There are many other assignments presented on behalf of the defendant, only two of which are of sufficient merit to require discussion. Both of these assignments concern the admissibility of certain evidence.

The court admitted evidence by officers that they had gone to the defendant’s house and found a. still and alcoholic beverages in the basement of the house. The court erred in admitting this evidence, as it is fundamental that the state cannot show that the accused has committed other crimes so1 as to force a man to stand trial for two crimes which are wholly unconnected.

In Hall v. State, 67 Okla. Cr. 330, 93 P. 2d 1107, 1108, it is stated:

“In criminal prosecutions, involving sexual crimes, it is not competent or permissible to1 show an evil disposition inclining defendant toward that particular crime, by acts totally disassociated with, and far remote in time from, the act of which he is accused, and against an entirely different female. It is utterly repugnant to fairness and justice to accuse a person with the perpetration! of a specific and definite crime, and then make that a pretext for trying him, without notice, for another alleged offense against which he is unprepared to defend, thereby producing a prejudice and bias against him in the minds of the jury.”

This evidence was admitted by the court, over the strenuous objection of the counsel for defendant, on the theory that if it could be shown that the defendant was operating a still in violation of law the evidence would tend to show that the defendant knew right from wrong. Even under this theory the state did not show that the defendant put up the still or had any knowledge that it existed at the time testimony of officers showed that they found the still and whisky in the basement of defendant’s house, which was at a time when defendant was in jail upon the charge of rape, for Avhich he stood trial. No charge of possession of these implements was ever filed against the defendant. Regardless of this, however, we are firmly convinced that upon a retrial of this case, this eAddence should be eliminated.

The defendant further contends that the court erred in refusing to permit the introduction of the original petition in the lawsuit filed by the defendant against the Santa Fe Railway Company for personal injuries, wherein tbe petition sets out that the defendant was struck over the head and knocked unconscious, by a blackjack held by a railroad policeman.

We think the court ruled correctly in refusing to admit this petition in evidence. It could be nothing more than a self-serving declaration, and is wholly inadmissible.

The defendant had evidence of witnesses who personally knew of the injury sustained by the defendant, which the court properly admitted on the theory that the blow received by defendant had affected his mentality. The court ruled properly, however, in excluding this self-serving petition filed by the defendant.

For the reasons hereinabove stated, the judgment of the district court of Carter county is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

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


author: DOYLE, J.

text:
    CHARLEY SCROGGINS v. STATE.
    No. A-10204.
    Jan. 21, 1942.
    (121 P. 2d 621.)

      A. C. Brewster, of Pryor, for plaintiff in error.
    Biley Q. Hunt, of Jay, for defendant in error.
   DOYLE, J.

The plaintiff in error filed in this court on December 20, 1941, his petition in error, and a transcript of the proceedings had upon his application to the trial court for a transcript of the record in the case and the reporter’s notes to be furnished at the expense of the county.

“Said plaintiff in error alleges that the court erred in overruling his motion to have case-made at the expense of Delaware county.
“Wherefore plaintiff in error prays that the order overruling said motion be set aside and that he be granted an order by this court to have case-made at the expense of Delaware county, and have such other relief it may be found that he is entitled to receive.”

The application was assigned for hearing before this court for January 6, 1942, at which time the case was submitted on the transcript of the record.

Section 3823, O. S. 1931, 20 Okla. St. Ann. § 111, in part is as follows:

“Provided, however, that if, before a transcript of the notes is ordered on application of the defendant or his ' attorney, the defendant shall present to the judge his affidavit that he intends in good faith to- take an appeal in the case and that such transcript is necessary to enable him to. prosecute the appeal, and that the defendant has not the means to pay for the same, the court may, at its discretion, order the transcript made a.t the expense of the county.”

A review of the cases, under this section, show several in which the court has used language to the effect that the granting or refusal of a case-made at the costs of the county rests in the sound judgment and discretion of the trial court. Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338; Hardin v. State, 28 Okla. Cr. 123, 229 P. 654; Young v. State, 33 Okla. Cr. 255, 243 P. 763; Moore v. State, 33 Okla. Cr. 304, 243 P. 995; Brogdon v. State, 38 Okla. Cr. 269, 260 P. 784; Hembree v. State, 53 Okla. Cr. 79, 7 P. 2d 491; Palmore v. State, 61 Okla. Cr. 312, 67 P. 2d 974; Wooten v. State, 66 Okla. Cr. 331, 92 P. 2d 594.

In the case of Compton v. State, 70 Okla. Cr. 258, 105 P. 2d 793, this court held:

“When a defendant has been convicted and intends in good faith to take an appeal, upon a proper showing made to the trial court that he is unable to pay court reporter for a transcript of the testimony, or court clerk for a transcript of the record, it is the duty of the trial court to' direct that this be done without expense to defendant. Where such showing is made, and a transcript of the evidence is not ordered by the trial court, the defendant may file a transcript of the record in this court, and this court will, under authority of Sec. 535, Sts. 1931, 12 Okla. St. Ann. § 959, order a transcript of the record and testimony.”

In Wooten v. State, supra, this court,, held:

“In a criminal prosecution where the defendant has been convicted and desires to appeal, upon a proper showing made to the trial court that he is unable to pay the court reporter for a transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the trial court to make an order directing that this be done without expense to the defendant.”

In the case of Cherry v. Brown, 79 Okla. 215, 192 P. 227, 13 A. L. R. 92, the Oklahoma Supreme Court in substance held that section 3821, O. S. 1931, 20 Okla. St. Ann. § 108, gives the parties or their counsel the absolute right to a transcript of the court reporter’s notes of the evidence and other proceedings, and thereunder it is mandatory on the trial court on request to require the court reporter to take down the evidence in shorthand and thereafter transcribe it, in view of this section and sections 107, 315-318 of this title.

In the case of Hutchins v. State, 13 Okla. Cr. 717, 167 P. 338, 339, we said:

“Under the Constitution and laws of this state an appeal may be taken by the defendant as a matter of right from a judgment of conviction in a criminal prosecution against him, and he is entitled to have this court review' the proceedings had upon his trial and conviction when such appeal is taken according to la,w. Every citizen should feel and know that under our Constitution and law's there is no one so rich and powerful as to be above the just penalties of the law, and no< one so poor and humble as to be beneath its completest protection.”

This court has adopted a liberal policy, in protecting the constitutional right as guaranteed in Bill of Bights, that the courts of justice of the state shall be open to every person, and right and justice shall be administered without sale, denial, delay, or prejudice. Const. art. 2, sec. 6, Okla. St. Ann. And the statutory enactments in aid of the constitutional guaranty.

This constitutional guaranty and the statute in aid of it are not to be construed as requiring the county where prosecution arises to furnish the record in all cases, but only in those cases in w'hich to' deny the record would in effect be imposing a penalty by denying the right to appeal to one who by reason of poverty isi unable to provide the record. Wainwright v. State, 11 Okla. Cr. 547, 149 P. 914.

This court under the provisions of section 535, O. S. 1931, 12 Okla. St. Ann. § 959, has been liberal in permitting records to be withdrawn and corrections to be made when any matters have been by inadvertence or mistake omitted therefrom.

Section 538, O. S. 1931, 12 Okla. St. Ann. § 962, provides that in case of accident or misfortune which could not reasonably have been avoided by the party appealing, the said court or judge, upon notice to the adverse party, may make such orders! after the expiration of the time fixed in the previous order, or time allowed by statute, but not beyond the maximum time allowed by statute for perfecting an appeal.

Section 539, 12 Okla. St. Ann. § 963, provides:

“If the court rendering final order or judgment in a cause, or the judge thereof, shall refuse to allow a reasonable time to make and serve a case, or to file the same in the appellate court, the party desiring to file the appeal or proceeding in error may, upon notice to- the adverse party, make application to the appellate court having jurisdiction of such an appeal or proceeding in error, or to one of the justices thereof, for such order, and said court and justices thereof shall have the same power and jurisdiction in relation to such matters as the court in which such final order and judgment was rendered; but their orders shall be filed in the trial court.”

It affirmatively appears from the record that counsel for defendant could not make a statement of the evidence from memory. In other words, we think it clearly appears that no adequate and correct “Bill of Exceptions,” necessary for a proper review of the trial court, could have been had without a transcript of the evidence adduced at the trial, together with the rulings of the trial court made during the progress thereof.

Upon an examination of the record before us, our conclusion is that there is here shown a clear and manifest abuse of judicial discretion on the part of the trial court in denying, the defendant’s application for a transcript of the proceedings and of the testimony taken upon the trial, and on the undisputed facts was, we think, in effect the denial of a constitutional right.

It follows that plaintiff in error is entitled to have a transcript of the testimony and case-made furnished without expense to him.

It appearing from the record that the trial court after denying the defendant’s application failed to make and enter an order granting an extension of time in which to make, serve, settle and sign a case-made, while his application for a transcript of the testimony taken in the trial of the case was pending and undetermined before this court.

It is therefore adjudged and ordered that the court clerk of Delaware county prepare a duly certified copy of the record proper as defined by section 3146 (22 Okla. St. Ann. § 977) of the Code of Criminal Procedure, and furnish the same to' counsel for the defendant to file with the clerk of this court in order that proper orders may be made and entered extending time in which to make, serve, settle and sign a case-made and to fix the time in which the same shall be filed in this court, and that the amount of the appeal bond be by this court determined.

It is further ordered that W. S. Jordan, official court reporter of the district court of Delaware county, Okla., prepare a case in the above-numbered and entitled case, including a transcript of the testimony taken at the trial, at the expense of Delaware county, and furnish the same free of charge to A. C. Brewster, counsel for defendant, Charley Scroggins, plaintiff in error, herein referred to'.

BAREFOOT, P. J., concurs. JONES, J., dissents.


author: PER OURIAM.

text:
    Ex parte JACK PHILLIP BANNING.
    No. A-10150.
    Jan. 21, 1942.
    (121 P. 2d 619.)
    Ellmore Pinnick, of Oklahoma City, for petitioner.
    Mac Q. Williamson, Atty. Gen., and Sam H. Latti-more, Asst. Atty. Gen., for the State.
   PER OURIAM.

Petitioner filed in this court on the ll'th day of October, 1941, his petition for writ of habeas corpus, alleging that he was unlawfully imprisoned and illegally deprived of his1 liberty in the State Penitentiary at McAlester. He alleged that he was sentenced to the penitentiary from Oklahoma county in January, 1931, for a period of 10 years for the “larceny of an automobile.” That he entered a plea of guilty with an agreement with the county attorney that he would recommend a sentence of five years, and that such sentence would be suspended. That the court refused to follow the recommendation of the county attorney and assessed the penalty of 10 years in the penitentiary, but suspended the 10-year sentence. That the maximum penalty under the law for the crime charged was 20 years. It is further alleged that on February 17, 1938, this, sentence was revoked by the district court of Oklahoma county, and that petitioner was sentenced to serve one year in the penitentiary at McAlester for another crime, the nature of which is not revealed by the record, said sentence to commence upon the completion of the 10-year sentence above mentioned. No proof of any kind has been offered by petitioner to sustain the allegations of his petition, nor has any brief been filed, in support thereof. It is alleged that copies of the judgment and sentence and suspended sentence cannot be attached for the reason that said papers cannot be found in the files of the court clerk’s1 office of Oklahoma county. It is contended that, under the circumstances above stated, the assessment of the penalty of 10 years in the penitentiary is cruel and unusual punishment and in violation of article 2, sec. 9, of the Constitution of the State of Oklahoma, Okla. St. Ann. which says:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.”

It is further alleged that petitioner has been imprisoned more than sufficient time to serve out the full time of the two sentences. There is no proof before us that this is true. There is not attached to the petition any statement from the warden which shows when petitioner was confined, the length of time for which he was to' serve or when he would be released.

The Attorney General, on behalf of the warden of the penitentiary, has filed a demurrer to the petition. In support of the demurrer there are cited the cases of Ex parte Tollison, 73 Okla. 38, 117 P. 2d 549, and In re McNaught, 1 Okla. Cr. 528, 99 P. 241. In the Tollison Case it is said [117 P. 2d 550]:

“We again call attention to the: fact that this court on habeas corpus will not look beyond the judgment and! sentence of any court of competent -jurisdiction as to' mere irregularities of procedure or errors of la.w on questions over Avhich the court has jurisdiction. The writ of habeas corpus cannot be used to perform the office of a writ of error on appeal, but will be limited to cases in which the judgment and sentence of the court attacked is clearly void. See Ex parte Dunn, 33 Okla. Cr. 190, 242 P. 574; Ex parte Grant, 32 Okla. Cr. 217, 240 P. 759; Ex parte Hollingshead, 24 Okla. Cr. 131, 216 P. 486.”

In the McNaught Case it is said [1 Okla. Cr. 528, 99 P. 254]:

“Under section 2411, Gen. St. 1908, 12 Okla. St. Ann. § 1342, above quoted, a judgment by a district court, valid on its face, is an unanswerable return to a writ of habeas corpus, instituted for the release of a prisoner by virtue of such judgment. The court having fixed the maximum punishment permissible under the law, it is not for this court to review on a proceeding in habeas corpus the question as to- whether or not the sentence imposed is cruel, excessive, and unjust, this being a question that could only be reviewed upon appeal. If the vice of the judgment and sentence relied on is that it is cruel, unjust, and excessive in character as in this case, and not that it is of an entirely different character from that authorized by law, the writ will be denied and the prisoner remanded. Where an appeal or other direct method for the correction of errors in a judgment is provided for, as in our laws, that procedure must be followed.”

These cases fully sustain the position taken by the Attorney General, and for the reasons therein stated the demurrer to the petition should be sustained and the petition for writ of habeas corpus denied.


author: BAREFOOT, P. J.

text:
    MACE CENTERS v. STATE.
    No. A-10072.
    Jan. 21, 1942.
    (121 P. 2d 618.)
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for the State.
   BAREFOOT, P. J.

Defendant, Mace Centers, was charged in the district court of Adair county with the crime of larceny of domestic animals, was tried, convicted and sentenced to. serve a term of ten years in the penitentiary, and has appealed.

The Attorney General filed a motion to dismiss the appeal in this case for the reason that defendant has failed to comply with Rule 9 of this court, which is as follows:

“When no Counsel appears and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no* prejudicial error appears will affirm the judgment.”

An examination of the record reveals that judgment and sentence was pronounced against the defendant on the 18th day of November, 1940, and that the appeal was not filed in this court until May 14, 1941, just four days prior to the expiration of the six months’ period within which an appeal may he taken in felony cases. Defendant has filed no brief in support of his assignment of errors. It also- appears that 7 months and 27 daysi have elapsed since the filing of the appeal, and no- order has been obtained for extending the 60 days’ time allowed under the rules of this court within which to- file brief. On the 13th day of November, 1941, attorneys representing defendant wrere permitted for good cause shown to withdraw as counsel in this case.

We have carefully examined the record, including an examination of the evidence offered, and we find no prejudicial error. Defendant has had a fair and impartial trial. The evidence revealed that defendant had been previously convicted of larceny of hogs and had served a term in the penitentiary. This probably accounts for the longer sentence given by the jury in this case.

For the reasons above stated, the judgment and sentence of the district court of Adair county is affirmed.

JONES and DOYLE, JJ., concur.


text:
    C. W. CHRONISTER v. STATE.
    No. A-9895.
    Jan. 21, 1942.
    (121 P. 2d 617.)

      Ted Foster, of Oklahoma City, for defendant.
    Mac Q. Williamson, Atty. Gen., J. Walker Field, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.
   BAREFOOT, P. J.

Defendant was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: “Ten (10) Pints of tax paid liquor”, was tried, convicted and sentenced to pay a fine of $50 and to serve 30 days in the county jail.

This is a companion case 73 Okla. Cr. 367, 121 P. 2d 616, this day decided by this court. The questions raised are identical and the evidence on the motion to suppress are the same. The only difference in the evidence is that in the instant case ten pints of tax paid liquor were found in the icebox of defendant. The evidence revealed that defendant was present at the time the officers searched the premises. Officer J. M. Mabe testified as follows:

“Q. And did you have any conversation with the defendant about this liquor? A. Yes. Q. Tell us about that, please, sir? A. Well, we went there and searched a long time, and he kidded us and said, T am sorry, boys, you won’t find nothing’, but we went ahead and went in there and found in the icebox he had a nice little plant, and found ten pints of whisky. Q. What did Chronister have to say about it then? A. Well, he laughed and said ‘you found it.’ ”

This evidence was corroborated by Officer McGuffin.

Defendant testified and admitted the liquor was found in his kitchen and in the refrigerator or icebox. He testified as to the arrangement of the house, hut did not deny the ownership or possession of the liqnor found.

The judgment and sentence was to run concurrently with the sentence in case No: A — 9894 this day decided by this court. The judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

JONES and DOYLE, JJ., concur.


text:
    WILEY KING v. STATE.
    No. A-9905.
    Jan. 28, 1942.
    (121 P. 2d 1017.)

      E. W. Snoddy and L. Z. Lasley, both of Alva, for defendant.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and H. L. Gasaway, Go. Atty., of Fair-view, for the State.
   BAREFOOT, P. J.

Defendant was charged in the district court of Major county with the crime of operating a motor vehicle while under the influence of intoxicating, liquor, was tried, convicted and his punishment assessed at a fine of $500. From such judgment and sentence he has appealed.

For reversal of this case it is contended:

“(1) That the purported information is demurrable.
“(2) The state’s, evidence was insufficient.
“(8) State’s evidence was illegally obtained.
“(4) The instructions do not embody the law of the case.
“(5) The verdict of the jury is unreasonable, and shows that the jury in said cause was prejudiced and biased.”

In support of the first contention it is. urged that the information alleged the defendant operated a motor vehicle while intoxicated on a “certain highway”, and claims that it should have alleged on a “public highway.” The information alleged :

“That the said Wiley E, King, a person then and there being in the county of Major and the State of Oklahoma, on or about the 6th day of August, 1939, did then and there willfully, wrongfully, unlawfully, knowingly and feloniously operate and drive a certain motor vehicle, to wit: a 1939 Ford Coupe, said motor vehicle being propelled by gasoline, while under the influence of intoxicating liquor on a certain highway within the county of Major, to> wit: the street of Broadway in the city of Fair-view and the county of Major, and on streets adjacent thereto-, contrary to the form of the statutes, in such cases made and provided and against the peace and dignity of the state.”

It is based upon Oklahoma Statutes 1931, section 10324, O. S. A. Title 47, § 93, which is as follows:

“It shall be unlawful for any person who is under the influence of intoxicating liquor, or who is a habitual user of narcotic drugs, and the having on or about one’s person or in said vehicle of said intoxicating liquor is prima facie evidence of a violation of this Act, to operate or drive a motor vehicle on any highway within this State, as defined in Section 1, of this Act, and any person violating the provisions of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the penitentiary not more than one year, or by fine of not more than Two Thousand ($2,000.00) Dollars, or by both imprisonment and fine.”

This statute has been amended, Session Laws 1941, Title 47, chapter 4, sec. 1, p. 199, and now makes the first offense under its terms a misdemeanor punishable by a fine of not to exceed $500 or one year in jail, or both such fine and imprisonment, and the second offense is a felony and punishment may be assessed at a term of not to exceed two years in the penitentiary or a fine of not to- exceed $1,000, or both such fine and imprisonment. This case was filed and tried under the original statute.

It will be noted that the information described the highway as “the street of Broadway in the city of Fair-view and the county of Major, and on streets adjacent thereto.” We think that this allegation is sufficient to charge that it was such a highway as contemplated by the statute. We think the court, would probably take judicial knowledge that the streets of a city of the state were public highways. But aside from this question, Oklahoma Statutes 1931, section 10324, O. S. A., Title 47, sec. 93, was adopted as section 3, p. 22, ch. 16, Session Laws 1923. It will be noted that in the body of the section the reference is to “any highway within this state, as defined in section 1, of this act.” Section 1 of said act appears as section 10322, Okla. Stats. 1931, O. S. A. Title 47, sec. 91, and in subdivision 3 of said section a highway is defined as follows:

“ ‘Highway’ shall mean to include any thoroughfare, highway, county road, state highway or state road, public street, avenue, public park, driveway, public square or place, bridge, viaduct, trestle or any other thoroughfare or structure, public or private, designed, intended or used by or for the general public for travel or traffic or the passage of vehicles, within the State of Oklahoma.”

From the above statement we are of the opinion that the allegations of the information were sufficient as against a general demurrer.

It is next contended that the evidence was insufficient to sustain the verdict. It is unnecessary to lengthen this opinion by a discussion of this evidence. The evidence offered by the state was amply sufficient to sustain the verdict that defendant was not only under the influence of intoxicating liquor, but that he was drunk, and that he was driving in a reckless manner upon the streets of Fairview on Sunday, August 6, 1939. This evidence was positive on the part of Frank Boss, state highway patrolman who arrested defendant, and E. W. Evans, the police officer, and the sheriff of Major county. Sheriff Wiley testified that defendant was drunk when he was brought to the jail, and he testified to specific acts and conduct which showed his condition. Patrolman Boss testified as follows:

“A. Well he ivas unsteady, his eyes were glassy, his clothing was disarranged, and he had the smell of alcohol on his breath and he was squirming around like he might cause some trouble * * *. Anyway his motions were back and forth and his statements were such that it caused me to put the handcuffs, on him to keep him from causing any trouble and I put him in the patrol car; the other folks got out of the car and two of the other folks were in a very drunken condition and I also' took them in custody and I looked inside the car of Wiley King and underneath the seat — .”

And Sheriff Wiley testified as follows:

“A. I would say he was staggering drunk. * * * Q. What were his actions when you were putting him in jail? A. About the same, or a little worse. The more we tried to do with him the worse things got. * * * A. He talked like a man — any drunk man would, sort of crazy like, on subjects you didn’t want to talk about. * * -x- His actions were better after I locked him in the cell than they were just before I locked him in the cage to start with. Q. What were his actions then? A. He tried to tear up all the furniture we had.”

Defendant produced several witnesses who testified that they had seen defendant’s wife driving the car and not defendant. This evidence was not as direct and positive as that of the state. However, this was a matter for the consideration of the jury, and as has often been1 said by this court, the jury is the exclusive judge of the evidence and the credibility of the witnesses. Drennan v. State, 69 Okla. Cr. 348, 102 P. 2d 952; Marks v. State, 69 Okla. Cr. 330, 102 P. 2d 955.

The contention that the state’s evidence was illegally obtained is based upon the fact that no search warrant ivas had by the officers when the liquor was found in defendant’s car. The evidence of witnesses both for the state and defendant were to- the effect that defendant was ■driving in a reckless and careless manner upon the streets of the city of Fairview. The highway officer chased him around different blocks of the city. At one corner he was traveling so fast that his automobile almost turned over. When stopped by the officers, he again started his car, and they had to chase him further before stopping him. They arrested him for reckless driving before his car was looked into by the officer. Under these circumstances, defendant was committing a misdemeanor in the presence of the officer and was subject to arrest without the necessity of a warrant, and after he was legally under arrest the officer had the right to search his person and immediate surroundings without the necessity of securing a search warrant. Smith v. State, 52 Okla. Cr. 315, 4 P. 2d 1076; Skinner v. State, 65 Okla. Cr. 371, 87 P. 2d 341; Barfield v. State, 68 Okla. Cr. 455, 99 P. 2d 544; Brumley v. State, 69 Okla. Cr. 122, 100 P. 2d 465; Simons v. State, 69 Okla. Cr. 265, 101 P. 2d 852; Tacker v. State, 72 Okla. Cr. 72, 113 P. 2d 394; Mitchell v. State, 73 Okla. Cr. 184, 119 P. 2d 99; Sims v. State, 73 Okla. Cr. 321, 121 P. 2d 317.

Defendant next complains of instruction No. 6, which attempted to define the term “under the influence of intoxicating liquor.” The instruction given was as follows:

“You are instructed that when any person, from the use of intoxicating liquors, has affected his reason or his faculties, to any extent, or has rendered himself incoherent of speech, or has caused himself to lose control, in any manner, or to any extent, of the actions or motions! of his body, such person, in contemplation of the law, is under the influence of intoxicating liquor.”

It may be admitted that this instruction is not a model one, yet we do not find anything therein which would prejudice the defendant. In the case of Luellen v. State, 64 Okla. Cr. 382, 81 P. 2d 323, we have reviewed the cases touching upon this question and have set forth a definition of this term which occurs to us as being fair to both the state and the defendant. It gives the jury an opportunity to come to a right conclusion under the facts in each individual case, as to whether defendant was under the influence of intoxicating liquor at the time charged. Other definitions in different terms may be sufficient. The definition in the instant case conveyed the thought in different terms. It in no' way prejudiced the rights of the defendant.

The last contention of defendant that the verdict of the jury is unreasonable has reference to the penalty being excessive. As a result of defendant’s arrest in this case and in which he was charged with the crime of driving a motor vehicle while under the influence of intoxicating liquor, he was also charged by the county attorney with an offense growing out of this same transaction, i. e., with the crime of unlawful transportation of intoxicating liquor and as a second offender. Oklahoma Statutes 1931, section 2632, O. S. A. Title 37, Section 12. This case was also tried and defendant was convicted and sentenced to serve a term of one year in the penitentiary and pay a fine of $500. This case has been appealed to this court and is now pending here for consideration. As above stated, the Legislature of 1941 and -since this crime was committed have seen fit to lower the penalty in cases of this character and to make the first offense a misdemeanor. Taking all the facts into consideration, we have come to the conclusion that justice would be best subserved in this case by reducing the punishment from a fine $500 to< $100 and costs, and as so modified, the judgment and sentence of the district court of Major county is affirmed.

J'ONES and DOYLE, JJ., concur.


text:
    WILEY KING v. STATE.
    No. A-9904.
    Jan. 28, 1942.
    (121 P. 2d 1021.)
    E. W. Snoddy and L. Z. Lasley, both of Alva, for defendant.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and H. L. Gasaway, Co. Atty., of Fair-view, for the State.
   BAREFOOT, P. J.

Defendant, Wiley King, was charged in the district court of Major county with the crime of unlawful transportation of intoxicating liquor and with previously having, been convicted of the crime of unlawful transportation of intoxicating liquor, was tried, convicted and sentenced to pay a fine of $50 and serve one year in the penitentiary.

Defendant’s contention for reversal of this case is that the court erred in failing* to sustain his plea of former jeopardy. This plea is based upon the fact that defendant was charged in Major county with the crime of driving a motor vehicle on August 6, 1939, upon the streets of the city of Fairview, while under the influence of intoxicating; liquor, this case being No. 338 in the district court and No. A — 9905 in this court, 73 Okla. Cr. 404, 121 P. 2d 1017, and that growing out of this same offense he was charged with the crime of unlawful transportation of intoxicating liquor and as a second offender, the same being* case No. 339 in the district court of Major county and No. A-9904 in this court.

The facts are recited to some extent in Wiley King v. State, this date decided by this court. It therefore becomes unnecessary to give a detailed statement of the facts in this opinion. In support of his contention defendant relies upon the following cases: Estep v. State, 11 Okla. Cr. 103, 143 P. 64; Fulkerson v. State, 17 Okla. Cr. 103, 189 P. 1092; Hourigan v. State, 38 Okla. Cr. 11, 258 P. 1057; Jackson v. State, 11 Okla. Cr. 523, 148 P. 1058.

We have carefully examined these cases; and find that the facts in each of them are different from the facts in the instant case. If in this case a charge had been filed against the defendant for unlawful possession of the six pints of intoxicating liquor and this charge filed against him of unlawfully conveying the same six pints! of liquor, then it would be such a charge as the jeopardy statute would apply and the cases above cited would be in point; but here there was a charge of driving a motor vehicle while under the influence of intoxicating liquor and with a second or different crime of unlawful transportation of intoxicating liquor as a second offender. It was only necessary in that case for the state to show that the defendant was under the influence of intoxicating liquor while he was driving the car. It could have had no connection in any way with the liquor that was ■being unlawfully transported in the car' at the time. The test in this matter seems to be that when the same facts constitute two or more offenses wherein the lesser offense is not necessarily involved in the greater and when the facts necessary to convict on a separate prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act, the test being whether there were two different crimes committed. This distinction is fully indicated and demonstrated in the following cases: Hall v. Commonwealth, 143 Va. 554, 130 S. E. 416, 417; Ragsdale v. State, 126 Tex. Cr. 538, 72 S. W. 2d 257; Fulkerson v. State, 17 Okla. Cr. 103, 189 P. 1092; Harris v. State, 17 Okla. Cr. 69, 175 P. 627; Storm v. Territory, 12 Ariz. 26, 94 P. 1099; Collins v. State, 70 Okla. Cr. 340, 106 P. 2d 273; Orcutt v. State, 52 Okla. Cr. 217, 3 P. 2d 912; State v. Barton, 5 Wash. 2d 234, 105 P. 2d 63; Matthews v. Swope, 9 Cir., 111 F. 2d 697; People v. Trantham, 24 Cal. App. 2d 177, 74 P. 2d 851; Reed v. State, 136 Tex. Cr. R. 607, 127 S. W. 2d 453; Lewis v. Hudspeth, 10 Cir., 103 F. 2d 23; State v. Sisneros, 42 N. M. 500, 82 P. 2d 274; Usary v. State, 172 Tenn. 305, 112 S. W. 2d 7, 114 A. L. R. 1401; 22 Corpus Juris Secundum, Criminal Law, § 279, p. 418.

In the case of Collins v. State, 70 Okla. Cr. 340, 106 P. 2d 273, 277, it is said:

“Under the constitutional guaranty not to be twice put in jeopardy, the decisive test on a plea of former jeopardy is whether the same testimony will support both charges. Otherwise stated, the offenses are the same whenever evidence adequate to one information will equally sustain the other.”

In the case of Hall v. Commonwealth, supra [143 Va. 554, 130 S. E. 419], it was held:

“The driving of an automobile while intoxicated was a separate offense from that of transporting ardent spirits, and proof of a conviction of the former would not bar a prosecution for the latter.”

In the case of Ragsdale v. State, supra [126 Tex. Cr. 538, 72 S. W. 2d 259], it is said:

“The offense of which appellant wag acquitted in Runnels county was driving an automobile while he was intoxicated. The present offense was for transporting intoxicating liquor. A person might be guilty of transporting intoxicating liquor and never upon the occasion in question, nor in his whole life for that matter, have taken a drink.”

The two offenses in the Ragsdale Case were (1) for driving an automobile while intoxicated, and (2) for transporting intoxicating liquor. They both grew out of the same transaction, and the facts are identical with the facts in the instant case.

The case of Usary v. State, supra, [172 Tenn. 305, 112 S. W. 2d 10, 114 A. L. R. 1401], after reviewing the facts, quotes the following conclusions as arrived at by the Supreme Court of Tennessee, where it is said:

“In the recent case of Dowdy v. State, 158 Tenn. 364, 13 S. W. 2d 794, while the question for decision was not the same now before us, in the course of his opinion Mr. Justice Cook thus clearly restates ‘general rules deducible from principle and authority,’ which have direct application, in principle, to the instant case:
“ ‘ (1) Where two- or more offenses of the same nature are by statute carved out of the same transaction, and are properly the subject of a single investigation, an acquittal or conviction for one of the several offenses bars subsequent prosecution for the others.
“‘(2) When the facts constitute but one offense, though it may be susceptible of division into parts, as for stealing several articles from the same person at the same time, conviction for stealing one of the articles will bar subsequent prosecution for stealing the others.
“ (3') When the facts constitute two or more offenses, wherein the lesser offense is necessarily involved in the greater — as an assault is involved in an assault and ‘battery, as an assault and battery is involved in an assault and battery with intent to commit felony, and as a larceny is involved in a robbery — and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the first prosecution to1 a final judgment will be a bar to the second.
“ c (4) But when the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily ■have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were 'both committed at the same time and by the same act.’ ”

The facts in the instant case would come clearly within the terms of paragraph 4. We think this is a logical conclusion.

In the instant case defendant was sentenced to pay a fine of $50 and serve one year in the penitentiary. As said in the case of Wiley King v. State, No. A-9905, involving this same defendant and this day decided by this court, 73 Okla. Cr. 404, 121 P. 2d 1017, he was also fined $500 and costs in that case and the judgment and sentence was modified to the payment of a fine of $100 and costs. No person was injured nor was there any wreck or property damage. The Legislature of the state has since amended the statute under which this charg'e was brought to make the first offense that of a misdemeanor and the second that of a felony.

We are of the opinion that justice would be best sub-served by modifying' the judgment and sentence in this case to a fine of $50 and six months in the penitentiary, and as so modified, the judgment and sentence of Major county is affirmed.

JONES and DOYLE, JJ., concur.


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    ERVIN WEAVER v. STATE.
    No. A-9909.
    Jan. 28, 1942.
    (121 P. 2d 1016.)
    Dwight Malcolm, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

Tbe defendant, Ervin Weaver, was charged by information filed in tbe connty court of Comanche county on February 28, 1940, with the unlawful possession of intoxicating liquor, was tried, convicted, and sentenced to serve a term of 30 days in the county jail and to pay a fine of $100, from which judgment and sentence he appeals to this court.

For reversal of this case, counsel for defendant urges two contentions in his brief:

(1) That the court erred in receiving hearsay testimony.

(2) The evidence is insufficient to support the conviction.

The officers had two search warrants for certain rooms situated at 307% D avenue, a rooming house at Lawton. One of the search warrants named the defendant and the search was directed to1 three rooms. The search warrant in controversy was a John Doe search warrant for room No. 10. When the officers went to search this room, the door was open and no one was there. The closet was locked, and the officers opened it by removing, its door from the hinges. They found 16 one-half pints, 30 pints, and 3 quarts of whisky.

The first, assignment of error is that the court erred in allowing the chief of police to testify over the objection of the defendant that he learned that accused had control of the closet from statements made to him by defendant’s stepson and defendant’s wife, not in the presence of the defendant.

The defendant’s contention in this regard is correct. This evidence was hearsay and inadmissible. As to whether it was of such nature as to prejudice the defendant must be determined from an examination of the other evidence which, was introduced in addition to the hearsay statement. In determining this question it must be borne in mind that this case was tried before the county judge without the intervention of a jury.

In addition to the hearsay statement above mentioned, the state showed that the defendant had possession of the rooming house in question; that room No. 10 was not rented to- any one at the time the whisky was found there; that the officers had raided the premises at 307% D avenue previously, and had found the defendant in control, and that whisky was frequently found there. That the reputation of the place as being a place where whisky was kept was bad.

Defendant testified in his own behalf that he had lived at 305% D Avenue from February 7, 1940, to March 10, 1940, while he was having a disagreement Avith his wife, who continued to live at 307% D Avenue; that on February 15, 1940, when the whisky was found in room No. 10 at 307% D Avenue, he had no control over the room and no knowledge of the liquor ; but defendant admitted he paid the rent on the premises.

Turn witnesses for defendant testified that he lived at 305% D Avenue in February.

John Carlisle, a witness for defendant, stated that he was in the real estate business and had gone to- see defendant at 305% D Avenue during this time; that this place belonged to defendant’s son, who was in California; that defendant had listed 307% D Avenue for sale with witness, and that the listing was not withdrawn during February and March.

This proof of the defendant corroborated the evidence of the state that defendant was still exercising control of the premises in question, even though he had tempo-r-arily moved next door after having a quarrel with his wife.

As heretofore stated, the testimony of the officer as to the facts he had learned from defendant’s stepson and defendant’s wife was inadmissible As to the stepson, it was hearsay; and as to defendant’s wife, it was inadmissible both because it was hearsay and because she was not a competent witness against her husband. Combest v. State, 51 Okla. Cr. 38, 299 P. 920; Jenkins v. State, 28 Okla. Cr. 249, 230 P. 293.

We do not think this error of the trial court is prejudicial to defendant under the facts and circumstances of the case, since it was tried before the court without a jury and there was sufficient evidence offered by the state to connect defendant with possession of the whisky without resort to inadmissible statements. Such testimony offered to' a jury might be a contributing factor to a verdict of guilty; however, in this case we are of the opinion that the error was harmless.

The case is accordingly affirmed.

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


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    A. E. RIDDLE v. STATE.
    No. A-9910.
    Jan. 28, 1942.
    (121 P. 2d 1014.)

      Dwight Malcolm, of Lawton, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
   JONES, J.

The defendant, A. E. Riddle, was charged by information in the county court of Comanche county, Okla., on February 10, 1940, with the offense of unlawful possession of intoxicating, liquor, was tried, convicted, and sentenced to serve a term of 30 days in the county jail and to pay a fine of $100, and appeals to this court.

The only contention made by counsel for defendant on appeal to this court is that the search and seizure were illegal.

A hearing upon defendant’s motion to suppress the evidence was had in the county court and overruled.

The testimony introduced upon the hearing was:, in substance, that R. A. West and Buck Serán, investigators for the Department of Public Safety, on February 2, 1940, saw two taxicabs parked at the home of defendant and an intoxicated man being assisted from the house to one of the cabs. They placed the drunk man under arrest and entered the premises after ascertaining that he did not live at that address, but had been there.

Officer West could see through the window that a number of persons in the house were drinking something out of glasses. He entered the kitchen and went into the dining room, where defendant, his son and two daughters, and four men were around the table. There were home-brew and a half pint of whisky on the table. Upon a search of the premises, the officers found both whisky and home-brew, and a retail liquor dealer’s stamp, issued to defendant.

Officers had no warrant for arrest of defendant or for search of his premises.

It is contended by the state that where an intoxicated person is arrested upon the premises of the defendant, the premises, although they include the private residence of defendant, occupied as such, may be searched, without a warrant, as an incident to. the arrest of the third person.

In Wallace v. State, 42 Okla. Cr. 143, 275 P. 354, 355, this court held:

“The right of search in case of arrest is of the person and immediate surroundings of the arrested person. It does not carry with it the right to. search buildings and places other than the immediate surroundings of the person arrested.”

In that case it was further stated that the search incidental to. arrest does not extend to the search of a dwelling where the arrest is not made therein, and the commission of the crime for which the arrest is made is not connected therewith.

This court said in Bullington v. State, 38 Okla. Cr. 214, 259 P. 876:

“Where any person is lawfully arrested by an officer without a warrant, for an offense committed or attempted in his presence, the officer may take from the person and immediate presence of the arrested person the tools, implements, papers, and instrumentalities which have been or manifestly may be used to commit the crime for which such person is arrested * *

The fact that people in an intoxicated condition have been observed issuing' from a private residence is probable cause for the issuance of a search warrant for such residence; however, we do not think that the sphere of search incident to the arrest of a drunk person in a taxicab includes the private residence of another, even though the drunk man had been seen upon the premises.

The trial court erred in refusing* to sustain motion of defendant to suppress the evidence.

The case is reversed and remanded to the trial court, with instructions to dismiss.

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


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    WOODWARD JOHNSON v. STATE.
    No. A-9930.
    Feb. 4, 1942.
    (122 P. 2d 173.)
    Joe S. Eaton, of Okmulgee, for defendant.
    Mac Q. Williamson, Atty. Gen., and Guy A. Curry, Co’. Atty., of Stigler, for the State.
   BAREFOOT, P. J.

Defendant, Woodward Johnson, was charged in the district court of Haskell county with the crime of assault with a deadly and dangerous weapon, to wit: “a certain knife,” was tried, convicted and sentenced to serve a term of two years in the penitentiary, and has appealed.

The appeal in this case was filed in this court on the 10th day of September, 1940. No brief has been filed by defendant nor was anyone present to orally argue the same when it was set for submission on the 24th day of April, 1941. Under the rules of this, court, where no brief hasi been filed or oral argument made, this court will consider the record, and if it appears that no prejudicial error has been committed, the case will be affirmed. Rule 9 is as follows:

“When no' counsel appears and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment.”

The record in this case reveals that defendant was convicted of an assault upon the person of Andrew Garrett with a knife. That he was cut and stabbed in four different places on his body. The evidence amply justified the sentence. The offense occurred on the 25th day of June, 1935. The defendant immediately left the state and was not apprehended until the 19th day of February, 1940, and tried on the 21st day of March, 1940. Defendant had been in the states of New Mexico., Arizona and .Arkansas before returning to Oklahoma. He testified to' having served a year in the penitentiary for the crime of burglary.

The statute upon which this charge is based is Oklahoma Statutes 1931, section 1870, O. S. A. Title 21, § 645, which is as follows:

“Every person who, with intent to do bodily harm, and without justifiable or excusable cause commits any assault upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots or attempts to shoot at another, with any kind of fire-aim or air gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in the penitentiary not exceeding five years, or by imprisonment in a county jail not exceeding, one year.”

See Ponkilla v. State, 69 Okla. Cr. 31, 99 P. 2d 910; French v. State, 73 Okla. Cr. 141, 118 P. 2d 664.

From an examination of the record we find that the defendant has been given a fair and impartial trial, and are of the opinion that the judgment and sentence of the district court of Haskell county should be affirmed.

JONES and DOYLE, JJ., concur.