author: CHAPPELL, J. DAVENPORT, J.

text:
    J. H. BROCK v. STATE.
    No. A-8641.
    March 30 and
    April 2, 1934.
    Rehearing' Denied, April 14, 1934.
    (32 Pac. [2d] 88.)

      T. M. Robinson, Stansell Whiteside, and George L. Zink, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and D. R. Rutherford, Co. Atty., for the State.
   CHAPPELL, J.

The plaintiff in error, J. H. Brock, was convicted in the district court of Jackson county of the crime of manslaughter in the first degree in the killing of W. C. Ernest, and his punishment fixed by the jury at imprisonment in the state penitentiary for a term of 20 years.

Defendant makes no contention that the evidence is insufficient to support the verdict of the jury, but seeks a reversal because of alleged errors occurring during the trial and in the proceedings in the district court after the trial.

It is first contended the trial court erred in permitting the state to' introduce certain irrelevant, incompetent, and immaterial evidence.

This assignment relates to the testimony of one James N. Fitz, state bank examiner, who testified on behalf of the state that he had made an examination of defendant’s bank immediately after this killing occurred.

The court permitted Fitz to testify, over the objection and exception of defendant’s counsel, to certain shortages and irregularities in defendant’s bank, which culminated in a shortage of $5,191 in the accounts of the bank at the time Ernest was killed. It is contended-this evidence tended to establish a collateral offense, and in view of the fact that defendant admitted the killing, it was not necessary for the state to prove motive, and, even if it was competent for the state to' prove motive, the court should not have permitted the state to introduce details of the alleged defalcations and irregularities.

This evidence being competent to prove motive, the mere fact that it tended to- establish a collateral offense would not make it incompetent.

Beginning with State v. Rule, 11 Okla. Cr. 237, 144 Pac. 807, this court in cases too- numerous to cite has held that in proving motive, system, plan, or scheme of criminality, the state may introduce evidence similar to that complained of in the case at bar. While it was not necessary for the state to prove motive, yet it could not be deprived of the right to introduce any evidence that was competent in the case, and proof of motive is always competent.

It is next contended the court erred in refusing to admit certain alleged competent and material evidence offered in behalf of defendant.

This assignment relates to the refusal of the trial court to permit defendant to introduce certain testimony relative to the violent and turbulent character of deceased, as evidenced by particular and specific acts of violence on the part of deceased.

The trial court permitted defendant, while testifying, to detail certain alleged conversations which he had with deceased, and concerning which defendant swore the deceased informed him in detail of certain acts of violence and threats made and committed by deceased on third persons, in the absence of defendant, and which defendant did not witness or have knowledge of other than that told him by deceased. But the court refused to permit defendant to introduce these alleged third persons to give their version of such alleged acts of violence and difficulties on the part of the deceased, which they had witnessed or known.

Defendant contends this evidence was admissible under the authority of Sneed v. Territory, 16 Okla. 641, 86 Pac. 70, 8 Ann. Cas. 354; Mulkey v. State, 5 Okla. Cr. 75, 113 Pac. 532; and Mathews v. State, 16 Okla. Cr. 466, 184 Pac. 468.

None of these cases hold that evidence of this character, unknown to defendant prior to the commission of the homicide, is admissible.

The question before the jury was not whether the stories told by deceased to defendant, of his quarrels, brawls, and difficulties were true, but was: Did defendant believe deceased had committed such acts detailed to him and by reason thereof believe deceased was a dangerous and violent man, and, acting on such belief, commit the killing in his own self-defense? If he believed what deceased told him, it was immaterial whether it was the truth or a lie for the purposes of the trial. Hence, the mere fact that defendant might have shown by the proffered testimony that deceased had told him the truth could not have affected the issue in the case.

It is not error for the court to refuse to permit deceased to be tried upon the merits of the facts as to each alleged act of misconduct upon his part by the testimony of witnesses who had never detailed any of this evidence to' defendant prior to the commission of the homicide.

It is next contended the court erred in permitting the state in rebuttal to introduce evidence of the good character of deceased for being a peaceable and law-abiding citizen, • since there had been no attack made upon the character of deceased by defendant.

The difficulty about this contention is that there was a specific attack made by defendant in his testimony upon the character of deceased as being a peaceable and law-abiding citizen.

Defendant after detailing the alleged conversations with deceased, in which deceased told him about seven separate and distinct acts of violence, immoral conduct, and threats with a gun on the part of deceased against third persons, testified:

“Q. Now, Mr. Brock, what impression did that create upon your mind as to' the kind of man Mr. Ernest was as to being a bad and dangerous character? A. I knew he was a bad and dangerous man from what he had told me. Q. State whether or not that had any effect upon you? I believe you stated that you thought you were in danger at the time you fired the shot. A. Yes, that came into my mind as quick as a flash, all these things.”

In Cody v. State, 23 Okla. Cr. 236, 214 Pac. 201, this court said:

“It is permissible for the state to offer evidence of the good character of the deceased where evidence that he was of a turbulent or quarrelsome disposition is offered in support of defendant’s claim of justification.”

In Coulson v. State, 48 Okla. Cr. 206, 291 Pac. 152, 153, this court said:

“Where a defendant introduced evidence tending to show the turbulent, violent, and quarrelsome character of the deceased, it is, of course, competent for the state in rebuttal to show good character in these particulars.”

The defendant opened the door for introduction of evidence in rebuttal of the good reputation and character of the deceased for peace and quietude.

It is next contended the court erred in permitting the cross-examination of defendant as to whether or not he had refused to answer questions after his arrest and while in custody.

Defendant testified he had no recollection of anything that occurred immediately preceding the homicide and for more than twenty-four hours after he was placed in jail.

The county attorney asked defendant if he did not remember he was taken first to the county attorney’s office, and he answered:

“I don’t know. Q. You knew enough to' tell him you would tell your story at the proper time, didn’t you? A. I don’t know. Q. You know that you remember the conversation with the county attorney, don’t you? You know that you refused to' talk to him and told him you would tell your story at the proper time?”

This question was objected to by defendant and overruled by the court.

“A. I don’t remember anything about it.”

The cases cited by defendant to support this assignment bear upon the question of binding the defendant by remarks of some third person. But where defendant takes the witness stand, his right to remain silent on cross-examination is waived, and he subjects himself to the same nature of cross-examination as any other witness. Harold v. Territory, 18 Okla. 395, 89 Pac. 202, 10 L. R. A. (N. S.) 604, 11 Ann. Cas. 818; Graham v. State, 28 Okla. Cr. 266, 230 Pac. 763; Davis v. State, 35 Okla. Cr. 156, 249 Pac. 164; Radney v. State, 36 Okla. Cr. 240, 253 Pac. 913.

The only right defendant has to refuse to' answer after he takes the witness stand is to refuse to' answer any question which might incriminate him as to' some other crime. When the defendant as a witness testified he had no remembrance of any of the acts occurring immediately prior to the homicide and until nearly twenty-four hours afterward, the state had a right on cross-examination to call his attention to certain matters and ask if he did not remember them, for the purpose of showing his statement of lack of remembrance was untrue and to' affect his credibility as a witness.

This cross-examination does not come within the rule of binding the defendant by silence as tO' statements made by third persons in his presence, but is controlled by the rule that statements and conduct of a witness contrary to and inconsistent with his testimony may he inquired about on cross-examination.

Finally, it is contended the court erred in permitting the state to introduce photostatic copies of a certain letter and envelope.

This letter and envelope was addressed to L. J. Davis, a state bank examiner in Texas, occupying the same position there that deceased occupied in Oklahoma at the time of the homicide. The state had introduced evidence that defendant had at different times operated and been employed in state banks in Texas, and that defendant had operated a state bank at Walnut Grove, Tex., and that L. J. Davis was examiner for such bank at the time defendant operated it. The state as a foundation for the introduction of these copies proved that they were in the handwriting of defendant, that the originals were in existence and in the possession of Davis, at Marlin, Texas, who was a resident of that state and out of the state of Oklahoma at the time of trial, and that the state could not compel him to attend the trial and bring, the originals of these exhibits.

The theory of the state was that this letter tended to show malice on the part of defendant as against a class and also- to show motive. The state had already shown, through Barnett and other witnesses', that defendant stated he would kill the bank examiner who attempted to close his bank; that a few moments before the homicide was committed he had repeated his threat to Barnett over the phone, hung up the receiver, and very shortly afterward killed deceased. To some extent it might be said this letter was cumulative and tended to support this evidence of the state, but to say the least it was far-fetched and, standing alone, would not establish malice against a class. The exhibits were inadmissible, but under the proof of the state defendant could not have been prejudiced thereby. For that reason the admission of the exhibits was not reversible error.

Under the evidence of the state, defendant was undoubtedly guilty of premeditated murder and should have been found guilty on this evidence. For reasons unknown and unexplained, the jury was merciful and he escaped with 20 years.

There being no fundamental error in the record, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.

DAVENPORT, J.

(specially concurring). I concur in the conclusion reached that the case should be affirmed, but do' not concur in the holding of the majority of the court that the testimony of the witness Fitz, who testified that after the killing he examined the defendant’s bank and found a shortage in the funds of the bank, was ad-missible. This was introduced by the state on the theory that it tended to establish a motive for the killing. The state had already shown by the witness Barnett, the Bank Commissioner, that the defendant had told him he would kill any one who closed his bank. The defendant relied upon self-defense for his acquittal. The evidence of the witness Fitz as to the condition he found the bank assets in after the killing was inadmissible, and it was error for the court to permit it to go to the jury. However, under the facts and circumstances in this case it was not such an error as would justify a reversal'.

I disagree with the majority of the court in its reasoning and holding that the admission of the photostatic copy of the letter alleged to have been addressed to a man by the name of L. J. Davis, a bank examiner in Texas, claimed to have been written by the defendant, in which it is alleged the defendant made threats against Davis was not prejudicial. This photostatic copy of the letter was inadmissible under any rule of evidence that I have been able to find. The state had shown by the witness Barnett that the defendant had told him he would kill any one who closed his bank. Barnett’s testimony showed a motive, if any existed. The defendant relied upon self-defense, claiming he was assaulted by the deceased and fired the shot in his necessary self-defense, but the question of the admission or rejection of this photostatic copy of this letter is not a question of motive, and there was no competent proof that the original letter, from which it was claimed the photostatic copy was made, had been received through the mail by L. J. Davis, or that L. J. Davis was the party that had the photostatic copy made. A sufficient predicate was not laid for the introduction of the original letter, to say nothing of a photostatic copy.

The fact that some witness goes into court and testifies he went into a foreign state and there read a letter and got a photostatic copy of it and brought it back with him and asked that it be used as evidence is a departure from the rules of evidence, a dangerous precedent to establish by this or any other court. The life and liberties of those charged with crime are too- precious, and the defendant, though guilty as the record in this case shows him to be, was entitled to be convicted by competent testimony.

It is perfectly clear from the verdict rendered by the jury that it did not give very much weight to the evidence of the bank examiner as to what he gathered from an examination of the bank books, which examination was made after the killing. Nor did the jury seem to give very much weight to the photostatic copy of the letter which the court permitted to be introduced in evidence, over the objection of the defendant.

I insist the photostatic copy of the letter was inadmissible and was an error, but under the evidence in this case and the verdict of the jury I do not think the errors herein complained of are sufficient to warrant this court in reversing this case. All the competent testimony clearly shows there was no< justification for the killing.


source: Caselaw Access Project

author: EDWABDS, P. J.

license: Public Domain

text:
    LENORA LITTLE v. STATE.
    No. A-8651.
    April 20, 1934.
    (32 Pac. [2d] 94.)

      J. Q. A. Harrod and Laynie W. Harrod, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWABDS, P. J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county, of disposing of mortgaged property and was sentenced to serve a term of 18 months in the state penitentiary.

The prosecution is under section 1946, Okla. Stat. 1931, which in part is:

“Any mortgagor of personal property, or his legal representative, who, while such mortgage remains in force and unsatisfied, conceals, sells * * * without the written consent of the holder of such mortgage, shall be deemed guilty of a felony. * * *”

The amended information on which defendant was tried alleges that—

“* * * Lenora Little * * * did then and there, willfully, unlawfully and feloniously commit the crime of disposing of mortgaged property in the manner and form as follows to wit: That is to say, the said defendant * * * did then and there * * * sell certain personal property, to wit: a one story, two room frame house for the sum of 35 dollars, * * * to Art Hoover and Mrs. Art Hoover, which property was then and there mortgaged to the Gentry-Severance Lumber Co., * * * and which mortgage was then in force and unsatisfied * * * without the knowledge and consent of the mortgagee. * * *”

A demurrer to this information was overruled, and, after verdict, a motion in arrest of judgment was interposed; both the demurrer and the motion to arrest challenged the sufficiency of the information. Error in the ruling of the court on this point is the principal contention made.

The amended information does not allege either directly or by inference that defendant is the mortgagor or the legal representative of the mortgagor and the argument is made that since the statute, section 1946, supra, in defining the crime sought to be charged, limits it to the particular class of persons who are mortgagors or the legal representatives of mortgagors, that an allegation that the person charged belongs to such class is essential. The state contends that only the material ingredients of the crime need be alleged and that the limitation to the particular class of persons is not of the substance of the offense and the omission of such allegation is not fatal. The state relies mainly on State v. Elliott, 61 Kan. 518, 59 Pac. 1047. The state’s evidence, while to some extent conflicting, is in substance that defendant was the owner of a certain building, upon which she had given a chattel mortgage which was in force and unsatisfied and that without the consent of the mortgagee she sold said building which was removed from the place of its location. If the amended information is sufficient to sustain the judgment, the case should be affirmed. If not, it must be reversed.

It has been held by numerous decisions of this court that penal statutes cannot be enlarged by implication or extended by inference. Myers v. State, 19 Okla. Or. 129, 197 Pac. 884, 18 A. L. R. 1057; McDonald v. State, 54 Okla. Cr. 122, 15 Pac. (2d) 149.

It is also held in numerous decisions that where a statute provides that the doing of a certain act by a person of a certain class shall be a crime, the information must allege that the person accused is of the class designated and an information failing to so allege is insufficient. 31 C. J. p. 694, § 240; Stout v. Territory, 2 Okla. Cr. 500, 103 Pac. 375; Titsworth v. State, 2 Okla. Cr. 268, 101 Pac. 288; Shanks v. State, 51 Miss. 464; State v. Sloan, 67 N. C. 357; U. S. v. Woods (D. C.) 224 F. 278. The Elliott Case, supra, is not in point. The opinion does not set out the information, but does disclose that the defendant was convicted of aiding and assisting a chattel mortgagor to dispose of the mortgaged property. The contention was made that one who aided and assisted the mortgagor of personal property to dispose of the property could not be convicted. The opinion simply holds that under the statute one who' aids and abets the mortgagor to dispose of his property in violation of the statute may be convicted the same as the mortgagor. This is true under our statutes, section 1809, Okla. Stat. 1931. In charging an offense against an aider and abetter, no' additional allegations are required, section 2902, Okla. Stat. 1931. That, however, is not the question in the instant case. The question here is the sufficiency of the charge. The amended information is insufficient in failing to allege that the defendant is one of the class defined by the statute. The judgment of the district court is therefore reversed and the case remanded with direction to sustain the demurrer.

DAVENPORT and CHAPPELL, JJ., concur.


author: DAVENPORT, J.

text:
    JACK MARVIN FLIPPIN v. STATE.
    No. A-8660.
    May 4, 1934.
    (32 Pac. [2d] 1119.)

      W. N. Maben, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, ivas convicted of stealing an automobile, and sentenced by the court to be imprisoned in the state penitentiary for a term of five years.

The record in this case was filed in this court December 13, 1933; no- brief has been filed in support of the defendant’s assignment of errors.

A careful examination discloses no fundamental errors, and the evidence is sufficient to support the verdict of the jury.

The case is therefore affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: EDWARDS, P. J.

text:
    W. M. HURT v. STATE.
    No. A-8668.
    May 4, 1934.
    (32 Pac. [2d] 745.)

      J. L. Francis, for plaintiff in error.
    J. Berry King, Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the court of common pleas of Oklahoma county of illegal possession of intoxicating liquor, and was sentenced to pay a fine of |75 and to serve a term of 30 days in the county jail.

Judgment was entered on September 2d. At that time defendant was given 60 days in which to prepare and serve case-made for appeal. Three days were alknved to suggest amendments, to' be settled and signed on three days’ notice. On November 2d, an order Avas made extending time for preparing and serving case-made to November 17th. On November 17th another order was made extending time to prepare and serve case-made to December 1st. On November 27th a further order was made extending the time to prepare and serve case-made to December 16th. None of the orders included an extension of time within which to file appeal in this court. The appeal was lodged in this court December 30th.

An order extending time to make and serve case-made does not automatically extend the time to file appeal, and, unless an order of extension of time to file appeal is made, it must be filed within the 60 days provided by section 3192, Okla. St. 1931. Buxton v. State, 41 Okla. Cr. 376, 273 Pac. 372.

Even had the order extending time to file appeal been incorporated in the orders extending time to prepare and serve case-made, this court would not have acquired jurisdiction. The original order, September 2d, granted 60 days to make and serve case-made. Order extending time was not made until November 2d, 61 days after the original order. The filing of appeal being out of time, this court does not acquire jurisdiction. Welch v. State, 38 Okla. Cr. 300, 260 Pac. 787.

The appeal is dismissed.


author: DAYENPORT, J.

text:
    LAWRENCE (BOG) HOWERTON v. STATE.
    No. A-8654.
    April 20, 1934.
    Withdrawn, Corrected and Refiled May 4, 1934.
    (32 Pac. [2d] 99.)
    A. O. Manning, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAYENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of assault and battery, by means of a sharp or dangerous weapon, without justifiable or excusable cause with intent to do bodily injury, although without intent to kill, and was sentenced to serve a term of imprisonment in the state penitentiary for five years.

Mann Said, the party alleged to have been assaulted by the defendant, testified for the state, as follows:

“I am night watch for the town of Longdale; I saw the defendant, Bog Howerton, and Bill Gaddis in Long-dale the night of December 17, 1932, in the Roy Miller restaurant about eleven o’clock; I was standing back by the stove in the restaurant when they came in; I saw Gaddis change something from his left hand to' his right hand; when in about six feet of me he made a run at me and I stepped to one side and caught him; he had an empty pint bottle in his hand; I took the bottle from hipa and threw it to the floor and broke it; the defendant Bog Howerton was standing over east of me; he run in and hit me Avith his fist; I fell in a pasteboard box where they had kindling, and there was a wood box I fell against; had my gun on me but it slid around in the holster on my hip and I could not reach it; my head went through a sheet rock wash room wall; Gaddis kicked me; I don’t know exactly what happened then, my head Avas through the sheet rock and I was kindy dazed; I heard Bog Howerton tell Bill Gaddis to let me alone, and he said, ‘Well, I’ll knock your damn brains out.’ He had an iron probably a foot long in his hand, SO' I said, ‘Bog, I can’t get up,’ and Bog told me to. I asked Bill Gaddis, ‘Are you satisfied with Avhat you have done,’ and he started to say something. Bog said, ‘Shut your mouth’; about that time another fellow came in the front door. I had the keys to the garage and he wanted to put his car in the garage and I Avent out and never saw any more of them with the exception of Bog.
“I don’t think I Avas hit with anything that night; I think I fell into' that sheet rock and hurt my head; after Bog hit me everything went black. No, sir, I don’t think he hit me with that bar; the first time he hit me he hit me Avith his fist; after it happened I Avent to the drug store and put some mercurochrome on my head.”

Witness was asked by the county attorney about previous statements alleged to have been made by him; he denied making the statements as the county attorney had them. Witness further stated that Bog came to his place the night of the trouble. Witness stated he was in Roy Miller’s restaurant, and stated:

“ 'Bill Gaddis is going to make trouble because he is awfully drunk,’ and Bog said he could take care of him, and I said, 'If you can take care of him I will just turn him over to you and you take care of him,’ and he said, 'I will do that.’ ”

They sat around the restaurant for a few minutes and left.

Tom Richter, testifying on behalf of the state, testified that defendant hit Said with a piece of iron he had in his hand. The record further shows that Richter was unfriendly to the defendant, and at the time the trouble occurred had the defendant under a peace bond. No one testified but Richter that the alleged injured party Said was struck by the defendant with anything but his fist; the defendant himself stating he ivas knocked down by the defendant striking him with his fist.

The defendant, testifying in his own behalf, stated, in substance, the same as the witness Said, as to what took place in the restaurant at the time of the trouble, and as to the witness asking the defendant to look after Gaddis that evening to keep him from creating a disturbance while the dance was going on. The defendant stated he and Mann Said had always been friends; that- there were no' hard feelings between them. Defendant said, when Gaddis and Said were scuffling, when Said reached for his gun he hit him with his fist on the head or neck and Said fell back into' the partition.

Defendant further stated Tom Richter did not remain in the restaurant during the fight, but ran out the front door and around the building; that Tom Richter was not in the building at the time he struck Mann Said with his fist; when the witness Said was on the floor he told Gad-dis to let him alone. This is, in substance, the testimony.

¡Several errors have been assigned by the defendants as grounds for reversal. The only error that we deem necessary to consider is the 14th assignment of error, which is that the verdict is unjust, and shows it Avas based upon prejudice and passion, and that it is excessive and not in accordance with the charge in the information, and is vague and uncertain.

The court in its instruction advised the jury the different degrees of crime that were included in the charge against the defendant, and instructed the jury it could find the defendant guilty of assault and battery by means of a deadly weapon with intent to kill, or it could find him guilty of assault and battery by means of a dangerous Aveapon without justifiable or excusable cause and with intent to do bodily injury, although without intent to kill; or it could find him guilty of assault and battery. The court advised the jury as to' the penalty of each of the offenses.

The record clearly shows this trouble grew out of the fact that Bill Gaddis was drinking, and Avhen Gaddis and the witness Mann Said got into a scuffle the defendant assaulted Said without justification or excuse. It is further shown there was no ill feeling between Said and the defendant after the difficulty. The jury in arriving at its verdict must have been influenced by passion or prejudice, as the testimony wholly fails to show the defendant guilty of tbe crime for which the jury returned its verdict.

After considering the testimony, and the instructions of the court, it is the opinion of the court that the evidence in this case is sufficient to sustain a conviction of assault and battery by means of a sharp or dangerous weapon without justifiable or excusable cause, with intent to' do bodily injury, although without intent to kill; that the punishment imposed is excessive, and, under the authority given the court by section 2820, O. O. S. 1921, now section 3204, O. S. 1931, the punishment is modified from five years in the penitentiary to six months, and, as modified, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


author: .CHAPPELL, J.

text:
    F. B. NEEDHAM et al. v. STATE.
    No. A-8666.
    April 14. 1934.
    Rehearing Denied May 4, 1934.
    (32 Pac. [2d] 92.)

      Jack W. Page and Porter H. Morgan, for plaintiffs in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   .CHAPPELL, J.

Plaintiffs in error, F. B. Needham and A. H. Bray, hereafter called defendants, were convicted in the common pleas court of Oklahoma county of the offense of practicing medicine without a license, and, the jury being unable to agree upon the punishment, the same was fixed by the court at fine of $200 each and each ordered committed to the county jail until the fine and costs were paid.

Defendant Needham was not a licensed physician in the state of Oklahoma. He had for a number of years operated what is known as the Needham Cancer Sanitarium, at Fourth and Western, in Oklahoma City. Defendant Bray was a licensed practicing physician, in the state of Oklahoma. The particular charge on which these defendants were convicted was the unlawful treatment of one Mrs. L. L. Marlow for a supposed cancer of the breast.

The testimony of the state shows that both Needham and Bray administered the plaster in the form of a paste as a treatment to Mrs. Marlow, defendant Needham administering the paste both in the presence of defendant Bray and being* assisted by him, and in the absence of Bray but with his knowledge and consent; that Needham and Bray told Mrs. Marlow this paste was a secret formula of defendant Needham’s; that when applied to human flesh if there was a cancerous growth it would burn and eat the cancer out, but if there was no cancer the paste would not burn the flesh; that by this method they would determine if she actually had a cancer, and, if she did, they would apply the proper treatment for the same; that at their solicitation Mrs. Marlow finally submitted to the test; that shortly after the test was applied to her left breast a burning sensation set up; that she went back to the sanitarium, and there Needham and Bray told her this test was positive proof that she had cancer, and for an additional fee they gave her additional treatment; that Needham applied the paste and Bray covered the same with tape; that when the treatment became extremely painful they told her to take paregoric every 30 minutes; that on the following Saturday, Avhen the pain became so terribly unbearable, Mrs. Marlow was taken to a hospital, where the doctors removed the paste and the tape and took pictures of the wounds produced on her body by this paste; that these pictures were introduced in evidence and reveal a shocking physical condition; that Taylor Rogers, state chemist, made a chemical analysis of paste similar to that used on Mrs. Marlow and testified that this secret formula of defendant Needham’s had a heavy test for zinc, a heavy test for chlorides, and the gummy substance had a high content of zinc chloride; that zinc chlorides have a caustic and erosive action and cause burns and blisters on the human flesh whether cancerous or otherwise.

The theory of the defense was that instead of Bray assisting Needham, Bray was the actual practitioner and that Needham only assisted him in emergencies. Testifying for themselves, they both admitted the only treatment used in the sanitarium was Needham’s so-called secret formula.; that Needham applied the paste and Bray did the taping in Mrs. Marlow’s case; that four treatments were given Mrs. Marlow; that Bray was present for the first two treatments and that Needham alone applied the last two; that they divided the fees received for treatment of all patients, one-third going to Bray and two-thirds to Needham, and the division was usually made when the fee was received; that Bray was employed by Needham to take charge of the sanitarium and conduct the treatments; and that while Needham sometimes assisted Bray, he never acted alone except in emergencies.

Many errors are complained of by defendants, but since their own evidence clearly shows them to be guilty of the offense charged, the cause must be affirmed unless the errors complained of are of such a fundamental nature as to require a reversal.

It is first contended the court erred in his instructions to the jury, in that he left the words “beyond a reasonable doubt” out of several of the important instructions.

An examination of the record discloses the court did give the usual instruction that the state must prove all the material allegations of the information beyond a reasonable doubt. This court has held it is not necessary to repeat the words “beyond a reasonable doubt” in every instruction. Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; McCarty v. State, 21 Okla. Cr. 365, 207 Pac. 1069; Tate v. State, 45 Okla. Cr. 96, 281 Pac. 820.

Complaint is also made as to other instructions.

The instructions are voluminous and not as clear as they might have been, but they are sufficient to advise the jury as to the law of the case.

It is next contended the court erred by failing in his typewritten instructions taken by the jury to their jury room to instruct as to the defendants’ theory of the case.

The record discloses the court instructed the jury upon defendants’ theory of the case and is silent as to what instructions were taken by the jury to their room to be considered. The presumption of law is that all of the instructions were considered by the jury.

It is next contended the court erred in refusing to permit defendants to introduce proof that defendant Needham had consulted attorneys, including the county attorney, and been advised by them that if he employed a regular licensed physician to conduct his sanitarium that he would not be violating the law.

The court very properly denied defendants an opportunity to make this proof.

It is well established that an accused cannot prove as a defense that he acted upon the advice of counsel in committing the act complained of, because if such were the law it would be placing the advice of counsel above the law itself. Each person charged with an offense must know what the law is, and he acts at his own peril. Wharton’s Criminal Law (11th Ed.) vol. 1, p. 486; Smith v. State, 46 Tex. Cr. R. 267, 81 S. W. 936, 108 Am. St. Rep. 991.

Counsel for defendants admit they cannot find any authorities to- support their contention. This is not surprising, since there probably are no such cases.

It is nest contended the court erred in making improper remarks in the presence and hearing of the jury, and that the remarks of the court had a tendency to lead the jury to believe the court disbelieved the evidence of defendants.

The remark complained of was improper, but upon objection and motion of counsel for defendants the same was withdrawn and the jury instructed not to consider it. Since under the evidence of defendants they were guilty of the charge, it is apparent defendants Avere not prejudiced by the same.

The alleged errors complained of in this appeal are controlled by that line of decisions in which this court holds:

“When an error has been committed upon the trial of a case, it is the duty of this court upon an inspection of the entire record to determine whether or not the defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal.” Offitt v. State, 5 Okla. Cr. 49, 113 Pac. 554; Coleman v. State, 6 Okla. Cr. 253, 118 Pac. 594; Swartz v. State, 6 Okla. Cr. 590, 120 Pac. 1029; Hooper v. State, 7 Okla. Cr. 43, 121 Pac. 1087; Kay v. State, 35 Okla. Cr. 322, 250 Pac. 438.

It is apparent from a.n examination of the entire record, including the defense made, that the errors complained of were not such as to result in any material injury to defendants.

The cause is therefore affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


author: PER CURIAM.

text:
    A. E. LAUDERMILK v. STATE.
    No. A-8677.
    May 4, 1934.
    (32 Pac. [2d] 745.)
    Ben Goff, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   PER CURIAM.

Plaintiff in error, hereinafter called defendant, was convicted in the county court of Grady county of transporting intoxicating, liquor and was sentenced to pay a fine of $100 and to serve 30 days in the county jail. Judgment was entered on October 16. The appeal was lodged in this court February 8, following. At the time judgment was entered, defendant was given 50 days to make and serve case-made. December 9 a further extension of time to make and serve case-made was made. No order extending the time in which to file appeal was made at any time. In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered, unless the court or judge for good cause shown extends the time not to exceed 60 days additional. Section 3192, Okla. Stat. 1931; Logan v. State, 51 Okla. Cr. 448, 3 Pac. (2d) 748.

The case-made not having been filed in this court until after the expiration of 60 days, the appeal comes too late and this court does not acquire jurisdiction.

The attempted appeal is dismissed.


author: CHAPPELL, J.

text:
    D. A. BOXLEY v. STATE.
    No. A-8680.
    May 4, 1934.
    (32 Pac. [2d] 746.)
    John A. Bemy, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J. H. Lawson, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Logan county of the unlawful possession of intoxicating liquor, and his punishment fixed at a fine of $50 and imprisonment in the county jail for a period of 30 days.

It appears from the record that on the 28th day of October, 1933, the court entered judgment and sentenced defendant in conformity with the verdict of the jury, and on the same day granted defendant 60 days to make and serve case-made, ten days allowed to suggest amendments; the case-made to he settled and signed on five days’ notice.

On December 18, 1933, the case-made was settled and signed by the county judge, and on the same day was attested by the court clerk and duly filed in his office.

It further appears from the record that on the 20th day of December, 1933, two days after the case-made had been settled, signed, and filed by the court clerk, the court attempted to make an order giving 60 days from the 18th day of December, 1933, to file the case in this court. No extension of time to file the appeal in this court had been granted prior to the settling, signing, and filing of the same, and the 60 days provided by law for the filing of the appeal had elapsed.

Section 3192, Oklahoma Statutes 1931, provides:

“In misdemeanor cases the appeal must be taken within 60 days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding 60 days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed.”

When the judge of the trial court has settled and signed the case-made and it has been attested by the court clerk and filed in the clerk’s office, it passes beyond his control, and thereafter cannot be amended, altered or changed by any order of his. Grand Lodge A. O. U. W. v. Furman, 6 Okla. 649, 52 Pac. 932; Sutton v. State, 51 Okla. Cr. 95, 299 Pac. 928.

The attempt of the county judge to extend the time in which appeal might be filed in this court after the case-made had been settled, signed, and filed with the court clerk being a nullity, and the statutory time in which to file the appeal having expired, this court obtained no jurisdiction.

The appeal is therefore dismissed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    J. L. PAGE v. STATE.
    No. A-8702.
    May 4, 1934.
    (32 Pac. [2d] 744.)

      Walter Mathews, for plaintiff in error.
    J. Berry King, Atty, Gen., and Smith C. Matson, Asst. Atty. Gen., (Hester Atherton Gifford, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter called the defendant, was convicted in the county court of Payne county of the crime of maintaining a public nuisance, and his punishment fixed at a fine of $100 and imprisonment in the county jail for 30 days.

The only error presented and argued by the defendant is that the court erred in its instruction No. 9. This same instruction was passed upon and decided adversely to the contention of the defendant in the case of O. B. Brickey v. State, 55 Okla. Cr. 451, 32 Pac. (2d) 743, decided by the court at this sitting, where it states the law in the syllabus and discusses the question in the body of the opinion. The Brickey Case is decisive of the question raised in this case.

For reasons stated, the judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    ALFRED BELL v. STATE.
    No. A-8669.
    May 4, 1934.
    (32 Pac. [2d] 747.)

      Joe Young, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

This is an appeal from the county court of Lincoln county. The parties hereinafter will be referred to as they appeared in the trial court. The defendant, Alfred Bell, was convicted of having possession of a complete still, and his punishment fixed at a fine of $50 and 30 days in jail.

An examination of the record discloses that the county attorney committed reversible error in his argument to the jury. The only question to be considered is the statement contained in the county attorney’s argument to' the jury, when he said:

“He knows he’s as good as stuck. He (Mr. Young) didn’t even put him (the defendant) on the witness stand.”

Section 3068, O. ¡S. 1931, provides as follows:

“In the tidal of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this state, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel, it shall be ground for a new trial.”

The statute which provides, where a defendant in a criminal case fails to testify in his own behalf, said failure must not be mentioned by the trial court, is specific in its terms and must not be violated directly or indirectly. The statement as made by the county attorney is a direct reference to the defendant, and mentions the fact that the defendant’s attorney did not even put him on the witness stand. There is nothing in the record to show that the statement of the county attorney was in reply to any argument advanced by the attorney for the defendant, as the record shows that after the county attorney made his statement, the defendant’s attorney argued the case.

The statement of the county attorney amounted practically to a challenge to' the defendant for not taking, the witness stand. The conduct of the county attorney is such as to require a reversal of this case. Childs v. State, 13 Okla. Cr. 461, 165 Pac. 622; Shrader v. State, 40 Okla. Cr. 261, 268 Pac. 325; Shelton v. State, 49 Okla. Cr. 430, 295 Pac. 240.

The judgment of the trial court is reversed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    A. B. BUTTERFIELD v. STATE.
    No. A-8679.
    May 4, 1934.
    (32 Pac. [2d] 748.)

      Joe F. Birge, Charles W. Schwoerke, and A. O. Johnson, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Hester E. Gifford, for the State.
   DAVENPORT, J.

The parties will be referred to as they appear in the trial court. The defendant was charged with larceny, convicted, and sentenced to imprisonment in the state penitentiary for one year.

The substance of the testimony is as follows: L. B. Jackson, the owner of the property alleged to have been stolen, stated the property was reasonably worth approximately $50, and was taken without his knowledge or consent. The property taken was five wheels, casings, and tubes; of a Ford car.

Bud Johnson testified on behalf of the state that he was a deputy sheriff patrolling the oil fields; on the 17th of May, 1932, about 2 o’clock a. m., he saw the defendant, A. B. Butterfield, and a Mr. Jennings on East Forty-Fourth street, Oklahoma City, Okla.:

“They were driving a Ford roadster in a westerly direction; they turned the lights off on approaching my car; I followed them, blowing a police whistle, and caught them about a mile from the place I first saw them; the defendant was driving the car; we arrested them and took them to jail; I afterwards found that the wheels belonged to Mr. Jackson; the car belonged to the defendant, Butter-field.”

Ossie Rairdon testified he was a deputy sheriff for the I. T. I. O.:

“I accompanied Mr. Johnson on the 17th of May, 1932; I was some distance from Mr. Johnson and did not see the defendant until Mr. Johnson brought him back to where I was; I accompanied Butterfield to jail.”

Jack Thomas stated:

“I am a deputy sheriff of Oklahoma county; I had a conversation with the'defendant, Butterfield, the morning of May 17, 1932, in which he stated, ‘Well, you are so damn smart, find out where we stole them.’ ”

Defendant had been told that if he would confess the sheriff’s office might be able to recommend to the county attorney a light sentence.

George Kerr stated he was a deputy sheriff under Stanley Rogers; he interviewed Butterfield, and he told him he did not care to give him any information.

The defendant took the stand in his own behalf and stated:

“I had the tires and wheels in my car when arrested; Mr. Jennings told me he had found the tires, and I was helping Jennings remove them from the place where he found them by the side of the road; I had no knowledge or suspicion that they Avere stolen; I did not turn off the lights upon approaching Mr. Johnson; my batteries were bad, causing the lights to flash on and off; I did not know he was an officer and did not hear his police whistle.”

George V. King testified the defendant was living at his place at the time the alleged property was stolen; that the defendant remained at his house that night until after midnight.

The foregoing is all the testimony in this case that is material.

The defendant, in presenting his seven errors, alleged to have been committed by the trial court, divided them and argues them under two propositions, the first being, the verdict and judgment is not sustained by sufficient evidence, and is contrary to law for the reason that the evidence introduced by the state is entirely insufficient and does not raise a sufficient inference of guilt, and does not exclude a reasonable hypothesis of innocence.

It is urged by the defendant that the circumstantial evidence upon which he was convicted is insufficient, and cites De Bose v. State, 18 Okla. Or. 549, 197 Pac. 176; England v. State, 29 Okla. Cr. 38, 231 Pac. 1087, and other opinions to sustain his contention that the evidence is insufficient and does not exclude a reasonable hypothesis of innocence. In this case there is no dispute as to the defendant and a Mr. Jennings being found in the possession of the property alleged to have been stolen a few hours after it was stolen. The only controversy in the testimony is that the defendant denies he knew the property was stolen or that he had anything to' do with it being stolen, stating that Mr. Jennings employed him to move the property from where Jennings claims he found it by the roadside.

The jury heard the evidence, and, after taking into consideration the facts. and circumstances connected with the defendant’s possession of the stolen property, said it was not satisfied with Butterfield’s explanation of the possession of the property. From the testimony it seems that any responsible man called from his bed at midnight, as the defendant alleges he was, to drive out and help pick up five automobile wheels, tires, and tubes from the roadside, must have known the same were stolen property and should have refused to be a party to the crime. He does not seem to have made inquiry of Jennings as to his knowledge of how the property was located by the roadside where the defendant loaded it into his car.

In considering the sufficiency of the evidence, the function of this court is limited to ascertaining whether there is a basis in the evidence on which the jury could reasonably conclude that the defendant is guilty, as charged, and where there is such a basis the case will not be reversed for insufficiency of the evidence. Bond v. State, 53 Okla. Cr. 224, 11 Pac. (2d) 200.

It has always been held by this court that, where there is any competent evidence from which the jury may reasonably and logically find the guilt of the defendant, the weight and value of such evidence is for the jury, and its verdict will not be disturbed for insufficiency of the evidence.

The jury is the exclusive judge of the weight of the evidence, and, if there is a clear conflict in the evidence, or it is such that different inferences can properly be drawn from it, this determination will not be interfered with unless it is clearly against the weight of the evidence or appears to have been influenced by passion or prejudice. Campbell v. State, 23 Okla. Cr. 250, 214 Pac. 738; Cole v. State, 18 Okla. Cr. 430, 195 Pac. 901; Richards v. State, 22 Okla. Cr. 329, 211 Pac. 515; Bond v. State, 53 Okla. Cr. 224, 11 Pac. (2d) 200.

The evidence clearly establishes the guilt of the defendant.

The second proposition discussed by the defendant is that incompetent- evidence was introduced by the defendant to prove the value of the property stolen. The witnesses L. B. Jackson testified as to his experience as an automobile mechanic, and that he knew the value of automobile accessories, and had an idea he would pay about $10 for each wheel, tire, and tube, five of which were taken, and in his opinion these wheels, tires, and tubes taken were worth at least $50. He said, “I am not mentioning new tires, new ones would require a bit more than the value placed on these.” The defendant objected to this testimony, but did not offer any testimony to show the value fixed by the witness Jackson was unreasonable.

The defendant relies upon Hoffman v. State, 24 Okla. Cr. 236, 218 Pac. 176, to sustain his position that the evidence is insufficient to show the value of the property sufficient to sustain a charge of grand larceny. In Hoffman v. .State, supra, relied upon by the defendant, the defendant claims he was not given a fair opportunity to show, if he could, that the value of the property taken was in fact less than $20. In this case the plaintiff in error made no effort to contradict the value of the property fixed by the state’s evidence.

The evidence is sufficient to form a basis for the jury to reasonably and logically conclude that this defendant was guilty of the crime charged. The trial court, in permitting the state’s witness to testify to the value of the property stolen, committed no error. The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal.

The judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    Ex parte MIKE GAULT.
    No. A-8722.
    April 24, 1934.
    (32 Pac. [2d] 94.)
    James H. Mathers, for petitioner.
    The Attorney General, for the State.
   CHAPPELL, J.

Mike Gault filed his petition in this court for a writ of habeas corpus, alleging he was illegally restrained of his liberty by the sheriff of Kingfisher county, Okla.

Petitioner alleges he is charged with the offense of robbery with firearms committed on the 14th day of March, 1933, in the taking of one Chevrolet automobile and certain other property and money, and that he had a preliminary examination before an examining magistrate and was held to' appear for trial in the district court and his bond fixed in the sum of $25,000; that the said bail is excessive and petitioner prays the court- for an order reducing same.

By the provisions of chapter 44, Sess. Laws 1925, robbery with firearms is a capital offense, and the court might well have refused bail.

Upon the hearing petitioner introduced a transcript of the evidence taken by the magistrate at the preliminary, together with his own affidavit.

Under the evidence introduced before the magistrate, he was justified in fixing the bail at $25,000, and the application to reduce the bail is therefore denied.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    LONNIE POE v. STATE.
    No. A-8682.
    May 11, 1934.
    (32 Pac. [2d] 751.)
    Bryan Phillips, for plaintiff in error.
    J. Berry King, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of robbery with firearms and sentenced to serve a term of 15 years in the penitentiary.

The evidence of the state shows that L. W. Geist, on the 5th day of December, 1932, was an employee in the State Bank of Cyril, Caddo county, Okla., and in charge of its funds; that on said date two' men entered the bank and took from the funds of the said bank $3,989, the property of the Bank of Cyril; that it was taken without the knowledge or consent of any of the bank employees, and by force at the point of a pistol.

The witness positively identified the defendant as one of the men who entered the bank and robbed it.

The defendant in this ease is also identified by Ralph Matlock, who gave his post office as Cement, Okla. Mat-lock was in the bank at the time the parties came in and robbed it. The defendant offered no testimony.

The testimony in this case clearly shows the defendant gnilty of the robbery charged with firearms, and this judgment should not be disturbed unless it appears from the record some error was committed in the trial of the case.

The defendant, in his first assignment of error, urges that the court erred in overruling his motion for a new trial. This motion for a new trial covers all the other errors complained of. It is insisted by the defendant that the facts stated in the information do not constitute a public offense. An examination of the information shows that it clearly stated a charge of robbery with firearms against the defendant, and the demurrer is without merit.

The other assignments of errors urged by the defendant do not possess merit. No question is raised by the defendant as to the instructions of the court and as to the admission or rejection of the evidence, except the defendant urges that the state’s witnesses were asked some leading. questions. After carefully examining the record, we hold that the rights of the defendant were not prejudiced by reason of the questions propounded to the witnesses.

The evidence is amply sufficient to sustain the verdict. The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal.

The judgment is affirmed.

EDWARDS. P. J.. and CHAPPELL. J.. concur.


text:
    STATE v. O. C. FOSTER.
    No. A-8693.
    May 11, 1934.
    (32 Pac. [2d] 750.)
    J. M. Springer, for the State.
    W. L. Coffey, for defendant in error.
   EDWARDS, P. J.

This is an attempted appeal by the. state on a reserved question of law in a case tried in the district court of Tulsa county, in which defendant was charged with the murder of one Payne and was acquitted. Section 3191, Okla. St. 1931, permits an appeal by the state on a reserved question of law. Section 3193, Okla. iSt. 1931, provides the manner in which an appeal may be taken either by a defendant or the state, and is:

“An appeal is taken by the service of a notice upon the clerk of the court where the judgment Avas entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court.”

The state has attempted to appeal under the provisions of this section, hut the notice required was not served on defendant, nor posted in the office of the court clerk. The only notice in the record was served on the attorney of record for defendant. When the state attempts to appeal in a criminal case, it must strictly pursue the provisions of the statute; that is, it must serve notice on defendant personally, or if he cannot be found in the county, must post such notice in the office of the court clerk. This was specifically held in State v. Simmons, 43 Okla. Cr. 405, 279 Pac. 524. The court there followed State v. Childers, 17 Okla. Cr. 627, 191 Pac. 1043. See, also, State v. Hudson, 21 Okla. Cr. 475, 204 Pac. 133; State v. Boyd, 22 Okla. Cr. 451, 211 Pac. 1119.

Because of the failure of the state to comply with the mandatory provisions of the statute requiring notice of appeal to be served on defendant or by posting notices if he cannot be found, this court has not acquired jurisdiction of the attempted appeal, and it is therefore dismissed.

DAVENPOET and CHAPPELL, JJ., concur.


text:
    O. B. BRICKEY v. STATE.
    No. A-8700.
    May 11, 1934.
    (32 Pac. [2d] 743.)

      Walter Mathews, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., (Hester Atherton Gifford, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to' as the defendant, was convicted of having possession of intoxicating liquors and sentenced to pay a fine of $50 and be confined in the county jail for a period of 30 days.

The testimony of the state shows the officers went to defendant’s home with a search warrant and found six pints of whisky. The defendant, testifying in his own behalf, denied he had six pints of whisky in his home, and states that the officers came to. his home about, five minutes to 12 o’clock on Sunday night; that he had between a half pint and a pint of whisky in a dresser drawer that had a false bottom to. it; and positively denies the officer took any whisky out of his house.

The defendant in his assignment of errors alleges the trial court erred in overruling his motion for a new trial, the court erred in refusing to give his requested instruction No: 1, and the court erred in giving its instruction No. 7.

The only error discussed by the defendant is that the court erred in giving instruction No. 7, which instruction is as follows:

“You are further instructed that the having and keeping in excess of one quart of any spirituous, vinous, fermented or malt liquors shall be deemed prima facie evidence of an intention to convey, sell or otherwise dispose of, said liquor, and you are also instructed that if you should find beyond a reasonable doubt that on or about the 24th day of July, 1933, that the defendant O. B. Brickey had in excess of one quart of spirituous, vinous, fermented, or malt liquors, that the possession of such liquor, if you should find the defendant had the possession of the same, would be sufficient to establish an unlawful intent, unless rebutted or the contrary proved, yet it does not make it obligatory upon you to convict after the presentation of such proof, but such evidence is competent and sufficient to justify you finding the defendant guilty, provided you are satisfied from sail the evidence that the. defendant is guilty, beyond a reaonable doubt.”

Defendant insists that the court should have instructed the jury under section 6985, C. O. S. 1921 (section 2625, O. S. 1931), which makes it a penalty to have or to keep at, in, or about his place of residence, at any time, more than one gallon of spirituous or one gallon of vinous liquors.

The defendant evidently overlooked subsequent legislation upon this subject and the decisions of this court. In Ex parte Wilson, 6 Okla. Or. 451, 119 Pac. 596, this court held section 6985 unconstitutional.

In Jenkins v. State, 28 Okla. Cr. 249, 230 Pac. 293, this court expressly states that section 6985, supra, was superseded by section 6999, C. O. S. 1921, as amended by chapter 123, of the Session Laws of 1923-24, which law makes the keeping of more than one quart of intoxicating liquor at one’s private residence prima facie evidence of unlawful intent to sell or otherwise dispose of the same. Section 6999, as amended, is now section 2626, O. S. 1931, which section has since been amended by chapter 153, § 3, iSession Laws 1933. The court did not err in giving the instruction complained of, as it is a correct instruction of the law of possession of intoxicating liquors at one’s residence.

There is no error in the record, and. the judgment of the trial court is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    PAUL WALTERS v. STATE.
    No. A-8646.
    April 20, 1934.
    Rehearing Denied May 11, 1934.
    (32 Pac. [2d] 335.)
    C. A. Summers, A. P. Moss, and. Tom Payne, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith O. Matson, Asst. Atty. Gen., and Phil K. Oldham, Co. Atty., for the ¡State.
   CHAPPELL, J.

This is an appeal from the district court of Muskogee county, wherein the plaintiff in error, hereinafter referred to as defendant, was convicted of the crime of manslaughter in the first degree in the killing of Ike Vance, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of seven years.

Defendant was charged jointly with Willie Rainey with having on the 14th day of December, 1932, shot and killed Vance.

The evidence of the state was that deceased, who was a widower, about 60 years of age, residing in the town of Boynton, in Muskogee county, had been keeping company with Willie Rainey; that defendant a short time before the killing also began to go with the Rainey woman; that deceased while going from his home one evening after dark, passed a parked car and casting his flashlight into the car discovered defendant and the Rainey woman in a compromising position; that the next day he told the Rainey girl’s father what he had seen; that the father ordered her to cease her relations with defendant or leave home; that she told defendant about this; that thereupon defendant redeemed a. pistol he had pawued, bought some shells for it, and on the next night waited with the Rainey woman for deceased to pass the car; that the Rainey woman was the only person who knew the route deceased usually traveled from his work to his home; that as deceased walked toward his home, defendant’s car was turned around and driven down the road toward the south, and as defendant approached deceased he said, “There goes the S. B. now” and fired a shot from the car which went through deceased’s left arm and into his body; that a physician was immediately called and deceased said defendant had shot him; that later on in the hospital a dying-statement was prepared by the county attorney; that this statement was read over to deceased and assented to by him, hut being too' weak to write his name, he could only sign it by mark, and died shortly afterward.

That defendant and the Rainey woman fled from the scene of !the homicide and, though not married, traveled and roomed together for several days; that several days later they were married; that the Rainey woman signed a statement telling when, where, and how the shooting was done by defendant, but later repudiated this statement.

Defendants both testified that deceased approached their car with a pistol in his hand, threatening to kill defendant, and that he shot in self-defense.

All of the physical facts in the case show this claim to be untrue. There was snow on the ground and deceased’s tracks showed that he had passed the car and was walking toward home when he was shot. The entrance of the bullet and the course taken also established that deceased was beyond and going away from defendant at the time the shot was fired.

The court granted the motion of Willie Rainey for a new trial and her paid of the case is only indirectly involved.

It is first contended the court erred in overruling the motion for an instructed verdict on behalf of the Rainey woman and in submitting her case to the jury with the case against defendant.

Defendant was entitled to a severance and to be tried separately. Having failed to request a severance, he had to take his chances along with his codefendant. His counsel probably thought the state’s case against the Rainey woman would be weak, and that if he was tried with her, he would get the benefit of that weakness.

Under the state’s evidence defendant was guilty of murder. It is apparent from the whole record that trying defendants jointly did inure to his benefit. Had he been tried separately, the jury probably would have found him guilty of murder.

The burden is always upon appellant not only to assert error, but to support his assignment with authorities and argument showing that error prejudicial to the substantial rights of appellant was committed in the trial court. Lancaster v. State, 2 Okla. Cr. 682, 108 Pac. 1065; Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289; Overton v. State, 7 Okla. Cr. 204, 114 Pac. 1132, 123 Pac. 175; Morrison v. State, 7 Okla. Cr. 242, 123 Pac. 169; Brown v. State, 9 Okla. Cr. 382, 132 Pac. 359; Redden v. State, 22 Okla. Cr. 179, 210 Pac. 556; Clark v. State, 29 Okla. Cr. 243, 232 Pac. 953.

It was not error, therefore, for the trial court to overrule the Rainey woman’s motion for an instructed verdict.

It is next contended the introduction of the purported dying statement of deceased was error, the particular objection being that it was not made in the apprehension of impending death.

The doctor attending deceased testified:

“Q. Did he show any consciousness of impending death? A. Yes, sir. Q. What did he say? A. He told me he was going to die.”

Dr. Graves reached deceased a few minutes after he was shot and asked him how it happened, and he said “Paul Walters said ‘There goes the S. B.’ and shot me.” After deceased was taken to the hospital, he made a statement which he signed by 'mark shortly before he died, in which he told the details of the shooting and that it was done by Paul Walters (this defendant).

This court -has repeatedly held declarations and statements made under circumstances of this kind are admissible. Hawkins v. United States, 8 Okla. Cr. 651, 108 Pac. 561; Offitt v. State, 5 Okla. Cr. 48, 113 Pac. 554; Updike v. State, 9 Okla. Cr. 124, 130 Pac. 1107; Sanders v. State, 36 Okla. Cr. 120, 252 Pac. 855.

Under these authorities the dying declaration was admissible.

Under this assignment counsel advance the argument that the court erred in admitting the statement because it was untrue, since the defendant had testified to> an opposite state of facts.

The question of who was telling the truth was for the jury. Since the state’s evidence and the physical facts support this declaration, the jury very 'properly believed it.

Finally, it is urged the court erred in permitting the county attorney in his closing argument to the jury to make improper, incompetent, inflammatory, and prejudicial statements in the presence of the jury.

No record was made of these alleged improper remarks. Defendant attempted to raise the question in his motion for a new trial. This was too late. Payne v. State, 21 Okla. Cr. 416, 209 Pac. 334; Newcomb v. State, 23 Okla. Cr. 172, 213 Pac. 900; Quitman v. State, 35 Okla. Cr. 245, 250 Pac. 441.

The question of improper remarks not having been properly raised, it cannot be considered by this court.

No reversible error appearing, the cause is affirmed.

EDWARDS, P. J., and DAVENPORT, J., concur.


text:
    JOHN LEMKE v. STATE.
    No. A — 8664.
    April 16, 1934.
    Rehearing Denied May 11, 1934.
    (32 Pac. [2nd] 331.)

      Meacham, Meacham & Meacham, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   EDWARDS, P. J.

Plaintiff in error, hereinafter called defendant, was convicted in the district court of Custer county of murder and his punishment ivas fixed at death.

Defendant was charged with the murder of one Nellie Jelinek. He was a widower about 65 years of age and deceased was a widow about 48 years of age. He resided some five or six miles from the residence of deceased, had been paying her attention for some time, and had been urging her to marry him, which she refused to do. On the night of the homicide, he walked from his place of residence to that of deceased, found all the members of her family absent except two sons of deceased, aged 9 and 11, and two small boys, grandchildren of deceased, aged 4 and 6 years. When he came to the residence, the barking of a dog caused the deceased to go out of the house and she discovered defendant; they engaged in a conversation and deceased then re-entered the house; over her objection he also came in. He fired a shot at one of the sons, then shot deceased and used a vile epithet. The wound inflicted was immediately fatal. After firing the fatal shot, defendant outraged the body. There is no dispute as to the facts of this extremely revolting crime. The defense of insanity was made. Defendant did not take the witness stand and called only three witnesses, a daughter and two sons.

Several assignments of error are discussed in the briefs. Those we deem necessary to discuss may be grouped as follows:

(1) Error in denying a continuance.

(2) Error in the selection of the jury.

(3) Error in excluding testimony offered by defendant and in admitting incompetent evidence offered by the state.

(á) Misconduct by spectators which prevented a fair trial.

(5) Error in the instructions.

(6) Error in the separation of the jury.

Under the first assignment, complaint is made that defendant was forced into trial without his counsel having sufficient time to prepare his defense.

The homicide occurred the night of May 28th. Defendant was arrested on the same night. The preliminary hearing was June 6th. Defendant was arraigned in district court June 10th; application for continuance was filed June 22d. It was denied and' both the state and the defendant announced ready for trial and the trial began on that day. In many decisions of this court it is held that an application for continuance is addressed to' the sound discretion of the trial court and unless an abuse of discretion is shown, a judgment will not be reversed on appeal. The application for continuance is general in its terms; by a eountershowing it appears that prior to June 6th, defendant began consultations with his attorneys, which continued to the trial; that a list of names of witnesses for the state was served June 12th. This, in connection with the fact that after the application was denied defendant announced ready for trial, shows clearly there was no abuse of discretion.

Under the second' assignment, i. e., error in selection of the jury, it is argued the juror Lee was not fair and impartial. This juror on voir dire stated that from rumor and hearsay he had a “temporary opinion,” but upon examination by the court he stated this opinion was not fixed and he could and would disregard it if selected by the jury. It is clear he had a mere impression not amounting to an opinion. Under section 3000, Okla. Stat. 1931, he was not disqualified.

Complaint is also made that the juror Creswell was not impartial for the reason he had been interested in the prosecution of a murder case some time previously wherein his son had been killed and the slayer had been acquitted. This fact, however, was well known to counsel both for defendant and the state, and no questons were asked on voir dire in reference to that case. Defendant’s counsel, in the instant case, had assisted in the prosecution and the county attorney, at that time engaged in private practice, had defended in that case. It appears that counsel for both sides were satisfied the juror was impartial and neither desired to challenge him nor to call the attention of the trial judge to the facts of the juror’s interest in the former case. We perceive nothing that affected the qualification of the juror.

Complaint is. also made that Thompson, a juror, who sat in the case, was not impartial for the reason that a short time prior to the homicide he had ridden in an automobile in which defendant was also riding and after the homicide he was informed the person riding with him was the defendant and some disparaging remarks were made. This was not shown on voir dire but Avas shown on the motion for new trial. The remarks were not a comment on the facts of the case. There is no material error in this assignment.

Under the third assignment, error in excluding offered testimony, it was shown that Mrs. Schafer, a daughter of defendant, Avas called in support of the plea of insanity. She testified as to her observation of defendant and that for three years there had been something wrong with him. After examination and cross-examination, the witness Avas asked on redirect:

“Q. Mrs. Schafer, from your observation of his actions and from the things he has said to you, do you know whether or not he is sane? County Attorney: Object to that— A. I think he is insane. County Attorney: Wait a minute, — Ave object to that as incompetent, irrelevant and immaterial and for the further reason that the Avitness has not shown herself qualified to answer. By the Court: Sustained. Counsel for Defendant: Exceptions.”

No motion to strike this answer was made and it went to the jury. It will be noticed the form of the question does not touch the matter of sanity at and prior to the homicide, but is in the present tense; it was apparently for this reason the court ruled as it did, for immediately following two sons testified substantially as did the daughter and were permitted to testify that in their opinion defendant was insane at and prior to the time of the homicide.

Under this assignment, complaint is also made that the court erred in permitting the witness Steinberg, qualified as a nonexpert, to testify in his opinion defendant was sane. This testimony was limited to the time at and just prior to the homicide; the ruling on the admission of his testimony was the same as that applied to defendant’s witnesses. When the defense of insanity is made, a non-expert witness, properly qualified, may give his opinion as to the sanity of the accused. The trial court should not be too technical in his ruling on testimony on this point. In the instant case, since the question was not in due form and the witness did answer, no material prejudice could have resulted.

Next it is argued there was error in permitting the witness Simpson, sheriff, to testify he arrested defendant on the night of the homicide after a coroner’s jury had investigated the death and to state it was in part because of the verdict he made the arrest. The verdict was not offered in evidence, nor produced. The coroner’s verdict is based on an ex parte proceeding and is not admissible, but the bare statement made here, while not competent, had no particular significance as going, to the guilt or innocence of defendant and could have had no influence on the jury. It made no difference what reason prompted the sheriff in making the arrest.

Under the fourth assignment, i. e., misconduct of the spectators during the course of the trial, counsel state that the courtroom was crowded; that spectators were permitted to gather about the doors and windows near the jury; that they were bitter in their feelings and laughed and booed at the testimony of defendant’s witnesses. No objection on this point was made during the course of the trial. This motion is supported by testimony of one of defendant’s counsel and was rebutted by the testimony of the court bailiff. At the conclusion the court made a finding, in part as follows:

“On various occasions the court admonished persons to stay away from the open windows because they had to be kept open. It was with considerable difficulty that we got along in that respect. I tried to keep the bailiffs busy keeping' the people in proper condition and in proper position to hear the case. It was a public trial. I think a few times in the course of the trial persons in the courtroom laughed at some question or some answer that was made. Whenever there was any laughing either the court or some bailiff restored order, that is, told them to quit laughing, that we couldn’t tolerate that. Each time that the jury was allowed a recess or was sent out they were placed in charge of a sworn bailiff and the jury and the bailiff were both admonished that it was necessary to keep the jury together. * * *
“It is some place stated in the motion that some person had made the statement that if this defendant were acquitted that they would hang him or kill him or something of the kind. In that connection nothing like that ever came to the ears of the court. The court didn’t consider from the attitude of the people who came here to hear this case that they were in that frame of mind. I don’t think there was anybody inflamed. I don’t think anybody wanted to kill him or anything of the kind. Nothing of that kind reached the ears of the court. Nobody acted like that in the presence of the court. Nobody made any statement of that kind at that time that came to the attention of the court if there was anything of the kind. There were three bailiffs in the court and three persons connected with the sheriff’s office serving the court. There was no spirit manifested in the courtroom or out of the courtroom that I know of that caused anybody to fear that violence might be attempted. * * *”

This finding of the court is conclusive that there was no prejudicial misconduct on the part of the spectators.

Under the fifth assignment, that is, error in the instructions, complaint is made of instruction 14, which is:

“You are instructed that the law presumes every person to be sane, sanity being the usual and normal condition of mankind, and in the prosecution of a criminal case the prosecution may rely upon such presumption until the defendant produces sufficient evidence to raise a reasonable doubt of his sanity, when the law requires that, the state then has the burden of establishing the sanity of the defendant in the manner and to the extent that any other material matter must be established to warrant a conviction ; and if, upon consideration of all the evidence in the case the jury have a reasonable doubt that the defendant at the time of the commission of the homicide was mentally competent to’ distinguish between right and wrong, or to understand the nature of the act he was committing, then it will be the duty of the jury to acquit him.”

The argument is made that this requires the reasonable doubt of sanity to be raised by defendant and thereby places the burden on him. This court, in several cases, has held an instruction substantially in the language quoted is not erroneous. Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119; Smith v. State, 12 Okla. Cr. 307, 155 Pac. 699; Alberty v. State, 10 Okla. Cr. 616, 140 Pac. 1025, 52 L. R. A. (N. S.) 248; Ussaery v. State, 22 Okla. Cr. 397, 212 Pac. 137; Claycomb v. State, 22 Okla. Cr. 315, 211 Pac. 429. This language was criticized in Kell v. State, 53 Okla. Cr. 45, 6 Pac. (2d) 836. Literally construed and considered alone the instruction is subject to criticism. It is true the law presumes every person to be sane and that sanity is the usual and normal condition of mankind, and in the prosecution of a criminal case the state may rely on such presumption until evidence is introduced either by the state or by the defendant sufficient to raise a reasonable doubt of the sanity of the accused, then the burden is on the state to prove the sanity of the defendant in the manner and to the same extent as any other material matter. The instruction on this point would be better stated if the jury were told in substance the presumption of sanity prevailed “until sufficient evidence to raise a reasonable doubt had been introduced either by the state or by the defendant.” An instruction is not to be construed separate and apart from the other instructions, but they are to be construed as a single charge. In instruction 12 the jury are told that defendant had introduced evidence of insanity at the time of the homicide and that the burden was on the state to prove beyond a reasonable doubt that defendant was sane at the time and that if the state had failed to prove to the satisfaction of the jury beyond a reasonable doubt that defendant was- sane at the time, they should return a verdict of not guilty. These two instructions construed with the entire charge fairly state the law.

Lastly it is argued that after the case was submitted, the jury were permitted to separate and that error from the fact of separation is presumed. One Coleman, manager of the hotel in which the jury stayed, testified that on Friday night the wife of juror Nelson called him by phone; that he notified the juror, who then came downstairs with the bailiff, who stood by while the juror talked to his wife. The jury occupied one side of the hotel on the second floor; no other person was on that side of the building. Also on one occasion a bystander Fleming, in the hotel lobby, asked juror Berry what had been done with the Lemke case and Berry answered that the jury was still out. Fleming said Berry was alone; he did not know at the time he was on the jury. The bailiff, however, testified he had the jury in charge, that one of them had left some garments at the hotel and he conducted them through the lobby where the bystander made the inquiry; that they were all together and there was no separation except that they were strung out slightly in passing through the lobby. No prejudice could have resulted. The division of a jury by placing them in different sleeping quarters is not a separation. A mere temporary separation for a purpose as the use of a toilet or the use of a telephone or kindred reasons is not within the meaning of the law forbidding a separation of the jury. Elkins v. State, 29 Okla. Cr. 175, 233 Pac. 491; Forester v. State, 36 Okla. Cr. 111, 252 Pac. 861. See, also, 16 C. J. 1077. It is alsoi held that a temporary absence of an officer in charge is not ground for new trial.

Upon a consideration of the entire record we find no material error. The case is affirmed.

The original time for the execution having passed, owing to the pendency of this appeal, it is considered, ordered, and adjudged by; this court that the judgment and sentence of the district court of Custer county be carried out by electrocution of the defendant on the 15th day of June, 1934.

DAVENPORT and CHAPPELL, JJ., concur.


text:
    RAYMOND S. STRATEGIER v. STATE.
    No. A-8699.
    May 18, 1934.
    (32 Pac. [2d] 1054.)
    Jack W. Page and Justin Hinshaw, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Paul W. Updegraff, Co. Atty., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was jointly charged with Tell Dugger, with transporting intoxicating liquor, convicted and sentenced to pay a fine of $50, and! be incarcerated in the county jail for 30 days.

The testimony on behalf of the state shows C. I. Adams, a deputy sheriff, and Ivan Kennedy, an under-sheriff of Cleveland county, on August 30,1933, were making a trip east of Norman about six miles and saw. a car that had been damaged; on their return they observed the same car they saw as they went out nearer to Norman parked by the side of the road; when they pulled up to the side of the car, the officers say the defendant was out of the car, the left door of the car was open, and the witnesses testified they could see a jar on the floor of the car; they took a half-gallon jar from its side on the floor ivith its lid off, and also a half-pint bottle with the cork out, out of the car. The bottle and jar were introduced in evidence. The officers stated a man by the name of Tell Dugger had turned the jar over and poured the whisky out.

Tell Dugger, testifying in his own behalf, admitted being in the car when the officers drove up to the car; he further stated he did not believe the officers saw the car they were in moving. The following questions were asked, and witness Dugger gave the following answers:

“Q. Were there any liquor in the car? A. Yes, sir. Q. How much? A. There was a half gallon jar and a half pint. Q. When you saw the. officers what did you do? A. I poured it out. 1 had the lid off when they drove up. Every bit of it poured out.”

The defendant testifying in his own behalf denies there was any whisky in the car. The foregoing is an abstract of the testimony as disclosed by the record.

The first assignment of the defendant is that the court erred in overruling, his motion for a new trial. In his motion for a neAV trial, the defendant raises all the questions as to the evidence introduced on behalf of the state, first contending that it was unlawfully secured, and, second, that it Avas not sufficient to sustain a conAdction; the contention of the defendant being that the officers had no authority to search the defendant’s car.

Section 2780, O. S. 1931, is as follows:

“A peace officer may, without a warrant, arrest a person : First. For a public offense, committed or attempted in his presence. Second. When the person arrested has committed a felony, although not in his presence. Third. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. Fourth. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.”

In Sands v. State, 30 Okla. Cr. 55, 252 Pac. 72, the identical question involved in this case was considered by this court, and in the second paragraph of the syllabus the court said:

“The mere looking into an automobile and there seeing intoxicating liquor, which is not concealed, and which requires no' search to discover, is not illegal search within the meaning of the law and Constitution making illegal a search without a valid search warrant.” Miles v. State, 31 Okla. Cr. 4, 236 Pac. 907; Sprinkle v. State, 34 Okla. Cr. 161, 245 Pac. 901; Collins v. State, 31 Okla. Cr. 187, 237 Pac. 865; Stansell v. State, 30 Okla. Cr. 265, 235 Pac. 937.

In Bullington v. State, 38 Okla. Cr. 214, 259 Pac. 876, 877, this court said:

“A peace officer, without a warrant, may arrest a person for any violation of the prohibitory liquor law committed in his presence and may seize any intoxicating liquor in the possession or immediate presence of the person arrested.”

The defendant has cited a number of authorities which he insists sustain his contention that the search was illegal. After examining the authorities cited by the defendant, we hold they are not applicable to the facts in this case. The court did not err in admitting the testimony over the defendant’s objections. The testimony clearly shows the defendant guilty. There are no errors in the record. The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    GEORGE E. TEAGUE v. STATE.
    No. A-8674.
    May 18, 1934.
    (32 Pac. [2d] 951.)
    Morrison, Morrison & Morrison, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith O. Matson, Asst. Atty. Gen. (J. H. Lawson, of counsel), for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of possession of intoxicating liquors, and sentenced to pay a fine of $50 and be imprisoned in the county jail for 30 days.

The record in this case shows the sheriff went to the place of business of the defendant in the town of Okarche, with a search warrant and searched his restaurant, and place of business, and Chevrolet car; as they went into the restaurant a man was sitting at the counter drinking from a bottle; the officer served the search warrant and took the bottle from the man at the counter and drank part of the contents, and also drank a part of the contents of another bottle in the ice box, and in their search they found 72 bottles of what they said was home-brew, and that in their opinion from what they drank of it, it contained 7 or 8 per cent, alcohol. When they went to search the car, they found it locked; they asked for the key and the defendant unlocked the car for them; in the car were some groceries and about nine gallons of corn whisky in half gallon containers.

The defendant offered in evidence Exhibits Nos. 1 and 2, being the return made by the sheriff on the search warrant, showing the officers searched the building and the quantity of home-brew alleged to have been taken by the officers as forty-five pints. This is in substance the testimony.

The defendant has assigned several errors alleged to have been committed by the trial court. The first assignment is, that the court erred in overruling his motion for a new trial. Included in this assignment are all the other questions raised by the defendant.

The defendant urges that his motion to suppress the evidence should have been sustained. After a careful reading of the record, we cannot agree with the defendant’s contention. Under the terms of the search warrant they had a right to search the defendant’s place of business; and after seeing the man drinking the home-brew, as testified to by the officers, the law was being violated in the presence of the officers and they had a right to arrest the defendant without a warrant and, when they did, they, then had the right to search his premises.

After the search had been made in the house, the record shows they went to search the defendant’s car and found it locked, and called the defendant’s attention to the fact, and he unlocked the car and they searched it and found nine gallons of corn whisky in half gallon containers. The testimony in this case shows conclusively the guilt of the defendant. The court did not err in overruling his motion to suppress the evidence.

The defendant was accorded a fair and impartial trial, and was fortunate in getting the minimum punishment under the testimony in this case. No> errors appear in the record possessing merit. The judgment of the trial court is affirmed;

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    JEAN COLLINS v. STATE.
    No. A-8632.
    Feb. 16, 1934.
    Rehearing Denied March 2, 1934.
    (34 Pac. [2d] 284.)
    Perry & Bristow, for plaintiff in error.
    J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
   DAVENPORT, J.

The plaintiff in error, hereinafter referred to as the defendant, was convicted of murder and sentenced to serve a life term at hard labor in the penitentiary. Motion for new trial was filed, considered, overruled, exceptions saved, and the defendant appeals.

The defendant was charged with killing Bert Allen by beating him to death. The defendant and deceased were not married but had been living together in a room at 417 West Reno avenue, Oklahoma, City, Okla., and on the afternoon of February 13, 1933, a disturbance was heard in their room, and parties looking in at a window saw the deceased lying on the floor on his face, and saw the defendant with what is described by the witnesses as the back of a chair, or some part of a broken chair, swinging it. The deceased died from the effect of the wounds inflicted upon him by the defendant.

It is not disputed that the deceased died from the wounds inflicted upon him by the defendant. The only question is, Was the defendant at the time she struck the blows that produced death intoxicated to such an extent she did not know what she was doing, and was she incapable of forming a premeditated design to kill? The defendant insists she was so intoxicated she did not know anything after she had taken two or more drinks a short while before the trouble from a bottle claimed to contain bay rum; that she did not recollect anything that occurred in the room where she and the deceased were; that when she came to herself the next morning she was in the city jail; and the defendant urges that by reason of her intoxication she could not be guilty of murder, and could not be guilty of a higher crime than manslaughter in the first degree.

In Beshirs v. State, 14 Okla. Cr. 578, 174 Pac. 577, this court in the second and third paragraphs of the syllabus held:

“2. In a prosecution for murder, evidence of intoxication is admissible to show an absence of the premeditated design to kill, for the purpose of determining whether the offense was murder or manslaughter, and a state of intoxication which will reduce the degree of homicide from murder to manslaughter in the first degree must be of such character and extent as to render the defendant incapable of entertaining or forming, a design to effect death, and the question is for the jury to determine.
“3. A person who commits a homicide while so drunk as to be incapable of forming a premeditated design to kill, if he had formed no purpose to commit the crime prior to the time he became so intoxicated, is not guilty of murder, but is guilty of manslaughter in the first degree.”

After a careful examination of the evidence and instructions of the court, we find that the court instructed on both murder and manslaughter, and also on the necessity of the defendant entertaining a premeditated design to kill before she could be convicted of the crime of murder.

The evidence is in direct conflict on the question of intoxication. The jury heard the evidence, and under the instructions of the court by its verdict decided the question of the defendant’s intoxication to such an extent as to be incapable of forming a premeditated design against her, and by its verdict found the defendant guilty of murder.

The instructions of the court correctly stated the law as applied to the facts in this case. The defendant was accorded a fair and impartial trial. There are no errors in the record warranting a reversal. The judgment is affirmed.

EDWARDS, P. J., and CHAPPELL, J., concur.


text:
    KENNETH McLAUGHLIN v. STATE.
    No. A-8673.
    May 18, 1934.
    (32 Pac. [2d] 953.)

      A. E. Carpenter, for plaintiff in error.
    J. Berry King, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and J. H. Lawson, for the State.
   CHAPPELL, J.

Plaintiff in error was convicted in the county court of Alfalfa county of the crime of petit larceny in the stealing of some wheat, and his punishment fixed by the jury at a fine of $50 and imprisonment in the county jail for a period of 20 days.

The state jointly charged Ed. McLaughlin and Kenneth, his son, with the larceny of the wheat. The evidence of the state was that some wheat was stolen from one J. T. Bales, who resided about four miles from the home of Ed. McLaughlin; that wheat leaked out of the vehicle in which it was moved, and that by following the trail of the stolen wheat it led to the Ed. McLaughlin farm; that about thirty bushel of wheat was found in an old wagon at that place and a test showed it to be the same kind of wheat; that this wheat had been stored in a house and that plaster and wallpaper were found in the wheat found on the McLaughlin place similar to that left in the Bales bin; that Ed. McLaughlin had purchased an old truck the day before the theft and that this truck had been driven to the McLaughlin home and over to the Highfill home by one Dick Highfill; that Kenneth McLaughlin accompanied High-fill and spent the night and most of the next day at the Highfill home. On this evidence the jury found the father, Ed. McLaughlin, not guilty and the defendant guilty.

Defendant contends this evidence is wholly insufficient to support the verdict of the jury.

A careful reading of the record discloses no competent testimony sufficient to connect the defendant with the larceny of the wheat. There are some suspicious circumstances in the case, but defendant should not be branded a criminal and forced to serve a term in the county jail and pay a fine on suspicion and surmise.

There being a total failure of competent testimony to connect defendant with the commission of the offense, the case is reversed.

DAVENPORT, J., concurs. EDWARDS, P. J., dissents.